Orders of Protection in New York State

A Restraining Order, Stay Away Order and Order of Protection are different names for the same order issued by a court (Judge). There are generally two ways to secure an Order of Protection (OP). In criminal court, a Judge can issue an OP after an arrest and during the arraignment of a criminal defendant and in Family Court, a Family Court Judge can issue a temporary or permanent OP in a civil proceeding pursuant to the New York State Family Court Act, Article 8.

A temporary OP is most often issued during the pendency of a criminal/civil case and upon resolution of that case, a permanent OP is issued for a certain length of time.

A criminal court OP is granted by either a local Justice Court Judge, a Supreme Court or County Court Judge, Criminal Term. An OP is issued most often upon the application of an Assistant District Attorney. In this instance, there is not a need to know nor have any relationship with the accused / defendant for the issuance of such OP. The key issue for the Court to decide is whether there was probable cause to arrest a particular person and, if so, whether there is danger to the complainant from the accused/defendant. The District Attorney’s Office will ultimately dictate the case trajectory and disposition of the case. If the case is dismissed outright, the temporary OP that had been in place from the arraignment through the criminal proceedings, will cease to exist (terminate). Further, depending on the final resolution of the case, a permanent OP can last as little as six months or can last up to multiple years.

Unlike a criminal court OP, only certain people are candidates for a Family Court Order of Protection in New York. An OP issued by a Family Court Judge has the same effect as one issued in criminal court, however, the parties involved must be family members or have a past or current intimate relationship. Although a Family Court proceeding is a civil one, the basis for the issuance of an OP is found in the New York Penal Law. To that end, certain criminal offenses have parallel Family Offenses in the New York Family Court Act Article 8, Section 812. Unlike criminal court, probable cause or an arrest is not required to secure a Family Court OP. Rather than an arrest, a triggering the application for an OP in Family Court, is a filing of a Family Offense Petition by the Petitioner (complaining person) filed in the Family Court of the county he/she resides in against the Respondent (the accused). Each county in New York State – Manhattan, Queens, Kings (Brooklyn), Westchester, Putnam, Dutchess, Rockland, Orange etc. – has its own Family Court in place. Upon filing of the Family Offense Petition, the individual (and an attorney is he/she wishes to hire one) will appear before a Family Court Judge to argue why an temporary OP is necessary. The Family Court Judge can issue a temporary OP, deny the petition outright or temporarily refuse to issue the OP. The OP issued in Family Court can have various clauses for the Respondent (accused) to follow. For example, some OPs direct the Respondent to stay away from the Petitioner for a 1,000 feet, some OPs direct the Respondent to refrain from stalking, harassing, etc., the Respondent. The temporary OP generally requires the Respondent to surrender their fire arms.

The Family Court Judge will then require that the individual or a local law enforcement agency serve the respondent with the temporary OP and the underlying Family Offense Petition, with a notice to appear in court. Ultimately, in order to resolve the case, the Respondent can accept the temporary OP to become permanent, without an admission of wrongdoing or opt out for a hearing. The Petitioner would need to prove his/her case with the preponderance of the evidence (which is a lower standard than in a criminal case).