Divorce Attorney: Long Island

An order of protection is an order issued by a judge requiring a person to stay away from, or to refrain from harming another person that the court finds needs protection.

An order of protection may be issued in Family Court against members of the same family or household. A former spouse is still considered a family member. The Supreme Court may also issue an order of protection as part of a divorce or other matrimonial action.

The court in a criminal case may also issue an order of protection, in favor of a defendant’s victims. Orders of protection in criminal cases are obtained by the district attorney prosecuting the case, on behalf of the victims, not by a private attorney hired by the victim.

In Family Court, the judge may issue an order of protection based on the claim of a “family offense” which must be one of the following: disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, stalking in the first degree, stalking in the second degree, stalking in the third degree, stalking in the fourth degree, menacing in the second degree, menacing in the third degree, reckless endangerment, assault in the second degree, assault in the third degree or an attempted assault.

The Family Court is required to see a person seeking protection from a family member, who appears at the Family Court. At that time, the court may issue a summons against the person complained of, requiring him to come to court, and may also issue a temporary order of protection. At a subsequent court date, the judge may issue a permanent order of protection on consent of both parties, or if no agreement is reached, hold a hearing. At the hearing, the court determines whether the family offense occurred, and if so, then make a decision as to granting an order of protection. The term “permanent order of protection,” may be confusing, it is only permanent in that it issued at the conclusion of the court case, and the judge has made a final or permanent decision. The permanent order of protection includes a specific date on which it expires, most often one year from the date it was issued.

Not every request for an order of protection is ultimately granted. Many times the court will issue a temporary order of protection to the person who came into court, as described above, with a petition, only to dismiss the case and refuse to grant the permanent order of protection.

Anyone involved in an order of protection proceeding should seek legal advice. The requirements for succeeding in obtaining an order of protection is complex, and many petitions are dismissed because was not properly written, or the case was not properly pursued. This could mean that a person truly in need of protection is left in danger. Often a person responding to the petition ends up with an order of protection that need not have been granted, because they were not properly defended, or unsuccessfully attempted to defend themselves. The stakes are very high in an order of protection case, as the results could ultimately lead to who has custody of children or possession of the house. Violating an order of protection often will end up with an arrest; it is a crime to violate an order of protection. A person charged with violating an order of protection may be prosecuted for that crime, and end up sentenced to a prison term. It is very risky to be without a lawyer in Family Court.

Orders of protection may be known as “stay away” orders or “refrain from” orders. A “stay away” order requires the respondent to “stay away” from the petitioner, and may include requirements to stay away from the person, the person’s home, place of business, to refrain from all contact by phone, fax, email, etc. and will also contain refrain from provisions. “Refrain from” orders of protection allows the respondent to be near, even cohabit with, the petitioner, but requires the respondent to refrain from certain offensive behavior, such as harassment and assault.