Filing an Order of Protection — Family Court or Criminal Court?
COVID 19, job loss, furloughs, unemployment, food lines and increases in drug use and alcohol abuse have each led to an increase in Domestic Violence incidents.
These involve family members, children, partners and relatives. Therefore, what do victims of domestic violence do to protect themselves and their children? There are two legal avenues available to someone seeking an order of protection - family court or criminal court. I’ll discuss briefly what occurs in family court and Derrick Hogan, Partner and lead criminal attorney in our Saratoga Springs office will discuss the criminal court proceeding.
In family court, there are limitations on who can file for an order of protection. These are parties who are legally married or now divorced, have children in common, related by marriage (in-laws), related by blood (brothers, parents and cousins), unrelated individuals who live or have lived together for a period of time, and also unrelated individuals who are in or were in an intimate relationship.
If seeking an order of protection in family court you must file what is called a family offense petition against the other individual, and request an order of protection for yourself and your children. In the family offense petition you will be asked a number of questions. Primarily, what has the other individual done to you that requires an order of protection. There are a number of criminal acts which, if committed by the other party, will entitle you to an order of protection.
Specifically, you need to state what this individual did to you. The criminal acts must be stated specifically in the petition so do not hesitate if you need additional pages to set forth what happened - you can attach them to your petition.
Upon completion, you then provide the family offense petition to the court clerk who will present it to a family court Judge for review. If you believe that you need an emergency order of protection, you can request that the judge review your petition as soon as possible. In deciding whether to issue an order of protection, the judge may have you testify under oath in the courtroom so they can decide whether to grant or deny you an immediate temporary order protection.
The order of protection can grant varying forms of relief (such as a custody order for the children, directing the other party to stay away from you, your home, your work, ordering no contact, ordering they stay away from your children, or for the offending party to move out of the home and turn in any guns or weapons they might have).
Once the temporary order of protection is issued, the Sheriff will serve the order on the other individual. If there is an order to remove them from the home, that party would be removed.
The court will also schedule a date for both parties to appear in court, preferably with counsel to address the family offense petition. In family court, there is a lower level of proof than in criminal court. In addition, the individual that files a petition can choose to withdraw the case and/or modify the order of protection issued by the court.
In filing for an order of protection in family court, I tell all my clients to use the order of protection as a shield to protect themselves and their family, but never use the filing of a family offense petition as a sword to gain an upper hand in any custodial proceeding in family court or other litigation.
Orders of protection can also be issued in a criminal court, and are usually accompanied by a corresponding charge pursuant to the New York State Penal Law. In this instance, an individual cannot get an order of protection directly by requesting one from law enforcement. They must make some type of allegation of a violation of the Penal Law.
The individual will be charged with a crime, will appear in criminal court and if convicted could have a criminal record. In a criminal court proceeding you can file for an order of protection not only against a family member like you can in family court, but also against a non-family member. In criminal court, once a criminal charge is filed against an individual, the District Attorney’s Office for that county assumes responsibility for prosecuting the case and it is up to the District Attorney’s Office, not the individual who filed the criminal charges, to determine the outcome.
When a criminal action is pending involving a complaint charging any crime or violation between spouses, former spouses, parent and child, or between members of the same family or household, a court may issue a temporary order of protection. Similar to an order of protection issued in family court, an order of protection issued by a criminal court may require an individual to stay away from another individual’s home, school, business, or place of employment.
Additionally, the order of protection may require the individual to refrain from communication or any other contact with the other person, whether it is by mail, telephone, e-mail, voice mail or other electronic means. In most instances, the temporary order of protection remains in effect throughout the pendency of the matter, and the court has the ability to extend the order of protection prior to the expiration date if the criminal matter is still ongoing.
Once the criminal matter has concluded, unless the case is dismissed outright, the court will issue a final order of protection covering a specific duration of time and with the same or modified conditions as the temporary order of protection.
Michael J. Belsky, Esq. is a partner with Tully Rinckey PLLC. He provides representation in matters relating to divorce, parental alienation, separation agreements, annulments, child custody, child support, modifications to child support and child custody, enforcement of divorce decrees, spousal maintenance, pre- and post-nuptial agreements, orders of protection and family offenses. He can be reached at (518) 218-0493 or mbelsky@tullylegal.com. Derrick Hogan, Esq. is a partner with Tully Rinckey PLLC. He primarily focuses his practice on criminal defense and heads the Firm’s Criminal Practice in the Albany Office. He has represented clients facing all types of criminal charges at both the State and Federal level. He can be reached at (518) 218-0493 or dhogan@tullylegal.com.