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.