Orders of Protection

An order of protection, sometimes called a restraining order, is usually obtained from either the Family Court or the District Court. For certain criminal offenses, the District Court will issue an order of protection (“OP”) when the defendant is arraigned (i.e., he/she first appears in court and pleads not guilty). This initial OP, called a temporary order of protection, will remain in effect until replaced by a permanent OP should the defendant be found guilty of the charge. Often, a defendant will plead guilty to a less severe charge as part of a plea bargain, and will agree to the court issuing a permanent order of protection as part of the disposition. A permanent OP is not, despite its name, permanent. It will issued for a period of one, two or three years in a domestic situation, depending on the severity of the incident.

You may also obtain an order of protection for yourself or your child from the Family Court. Because it is a civil proceeding, the district attorney will not prosecute the case for you, and you will be expected to retain your own attorney. There are, however, distinct advantages to using the Family Court instead of the District Court to get an order of protection. Most importantly, you will not have to prove the respondent guilty beyond a reasonable doubt, the more difficult burden of proof used in criminal proceedings. In Family Court, you need only prove the respondent committed a family offense by a “fair preponderance” of the evidence. This means that the weight of your proof need only be slightly greater than the weight of the respondent’s proof in defense of the charge. A further advantage to proceeding in Family Court is that you will retain control over the outcome. This is especially important if you later decide you do not need an order of protection because you have reconciled or relocated with the respondent. In Family Court you are free to withdraw the petition you filed. In District Court, that decision rests solely with the district attorney, who may be reluctant to abandon a prosecution.

If you are a victim of a crime, the district attorney will request an order of protection for you. If the other party has not been charged with a crime, you will have to go to Family Court to file a family offense petition to ask for an order of protection for yourself or your child, or both.  The Department of Probation can assist you in the preparation of the petition and will provide all the forms. It is best to go early in the morning to ensure a good spot on line. If you arrive late in the morning, you may be in court all day. The caseworker will assist you in the preparation of the petition, but it is best to come prepared with an outline of the event, as well as other recent events. Before leaving court that day, you will appear before a judge of the Court who will ask you a few generic questions (e.g., “Is this your petition?” and “Are you afraid for your safety?”) before issuing a temporary order of protection and giving you a date to come back. On that next date you will be expected to be ready for a hearing on the petition, although many judges will use the first adjourned date as a conference to explore settlement options.

You generally do not need an attorney to get the temporary order of protection on the first day, but having counsel represent you for conferences and the hearing is strongly recommended. If you fail to prove your case adequately, the court will dismiss your petition and vacate the temporary order of protection. This will not only subject you to further domestic violence, but may ruin your credibility in court should you wish to try again after further incidents occur.

Sadly, this is a fairly common occurrence which is often the result of one spouse trying to gain advantage in a custody or divorce case. Many unscrupulous individuals will exaggerate or even outright lie in the hope that the court will grant them a “stay away” order of protection. If you are the victim of such manipulation, you should seek legal advice immediately to learn about your options. These options include filing a cross-petition so that your side of the story is heard in court. We will thoroughly prepare your defense and give you specific methods to best present your case in court.