When you are thinking about filing a Petition seeking an Order Of Protection in Family Court, there are a number of factors that must be considered. To begin with, you can only file for an Order Of Protection in Family Court if you are related to the Respondent in some way or have a child in common.
For instance, when you file a Petition seeking an Order Of Protection you must place a check in a box in response to the following question “The Respondent and I are related as follows:”
1. We are married;
2. We have a child in common;
3. We are related by blood or marriage;
4. We are in an intimate relationship (not casual, social or business acquaintances);
5. We were in an intimate relationship (not casual, social or business acquaintances);
6. We were married; or
7. We are parent and child.
If you cannot check off one of those boxes, you cannot file a Petition seeking an Order Of Protection in Family Court. This does not mean that you cannot get an Order Of Protection against that individual in Criminal Court but that is for another blog.
In addition to the above, you can only file a Petition for an Order Of Protection if the Respondent, the person against whom you are seeking to obtain an Order Of Protection, has committed an Article 8 Violation against you or your child or children. By Article 8 I am referring to the pertinent part of the Family Court Act.
Accordingly, when you file a Petition, you must check off a box or boxes in response to the following question: “Respondent committed the following offense (s) against me and/or my children, which constitute(s):”
1. Disorderly conduct;
2. Harassment in the First or Second Degree;
3. Aggravated harassment in the Second Degree;
4. Assault in the Second or Third Degree;
5. Criminal mischief;
6. Sexual abuse in the Second or Third Degree;
8. Menacing in the Second or Third Degree;
9. Reckless endangerment;
11. Attempted assault;
12. Sexual misconduct;
13. Forceful touching;
14. Criminal obstruction of breathing or circulation
Even if someone has cursed at you or said horrible things to you, unless what they have done fall under the category of an Article 8 violation, you will not be able to obtain an Order Of Protection against that individual. Cursing someone out or yelling at them without threatening them is protected speech and will not get you an Order Of Protection.
The procedure to obtain an Order Of Protection is as follows:
1. You either hire an attorney to file a Petition on your behalf or you go down to the Family Court Clerk and ask for the appropriate paperwork and fill out the Petition yourself. It is important to note that in most instances, you are on your own when filing a Petition without an attorney. In other words, if you do not do it right, the Petition may be thrown out because you did not fill out the Petition properly. Even if you hire the best lawyer on Long Island, your Petition may be dismissed if it was not done properly.
2. Once your Petition is filled out and processed by the Family Court Clerk, you will go before a judge who will hear your application and then decide if you are entitled to an
Ex-parte Order of Protection. An Ex-parte Order of Protection means one sided because the Respondent has not yet been served the Petition and therefore he or she does not appear in Court with you the first time.
3. If your Petition is dismissed, you will go home empty handed. If your Petition is granted, then you will need to speak with the Sheriff’s office in the building to give them all of
the necessary information so that may serve the Respondent as soon as possible.
4. If you are given a Temporary Order Of Protection by the Judge or Referee you will be given a follow-up date for your matter for a conference where the Respondent will be present with you in Court.
5. If at that Court Conference or conferences subsequent thereto it is apparent that the matter will not settle, the Judge or Referee will give you a hearing date where the matter will be tried and the Judge will make a decision as to whether or not you keep your Order Of Protection. If so, what type of Order Of Protection you will have from that date forward. By that I mean either a “stay away” Order Of Protection” or a “refrain from” Order Of Protection”.
With a stay away Order of Protection, the Respondent is ordered to stay away from you and not have any contact with you. With respect to a refrain from Order Of Protection, the Respondent will be able to be around you, but will not be able to threaten or intimidate you.
Another way the matter can be resolved is by settlement where you and the Respondent agree to settle the matter either by withdrawing your Petition or the Respondent agreeing to some type of Petition going forward.
Whether you are the Petitioner or Respondent with respect to an Order Of Protection, it is in your best interest to hire an experienced and knowledgeable attorney that has handled numerous matters involving Orders of Protection. If not, you run the risk of either not getting the Order Of Protection you are seeking or, if you are a Respondent, having an Order Of Protection entered against you which could affect you in many ways.
For instance, if you have an Order Of Protection against you, it could affect you visiting or even seeing your children. Also, you will not be able to be in possession of any weapons if you have an Order Of Protection against you. If you are in law enforcement or are required to carry a weapon, this could affect your livelihood.
Therefore, if you find yourself in need of an Order Of Protection or someone has filed a Petition seeking an Order Of Protection against you, contact my office to set up your free consultation so that we may discuss your matter in detail so that I may advise you as to how you should proceed. I have handled thousands of Family Court Matters in my twenty three (23) year career and have conducted dozens of hearings involving Order of Protections. I am certainly in a position to help you with your matter.