An order of protection restrains the behavior of somebody who harms or threatens to harm you. It may direct the offending person not to injure, threaten, or harass you or your children. It may direct the offending person to stay away from you and your children, move out of your home, handover firearms, refrain from all contact with you, etc.
Through family court, survivors can obtain a temporary order of protection that very same day. (Be sure to go early in the day!) The temporary order of protection will have most of the same limits as a permanent one and will be in effect until there’s a final disposition on the matter.
We can go with a client to obtain a temporary order of protection or simply instruct her on what to do. We can also take over after she already has one.
In most states, family court limits who it has jurisdiction over. Typically a close relationship between the survivor and offender (“petitioner” and “respondent”) is required; such as being members of the same household, having a child together, being in an intimate relationship or previously in one, married or previously married, etc. Thus, if the offender is not somebody the victim knows in one of these ways, only civil or criminal court is an option. More states are providing family court jurisdiction to victims of stalking who did not have a prior intimate relationship with their stalker. New York is not one of those states.
How it works: A survivor (with or without an attorney) goes to family court and says she wants to commence a family offense proceeding (in New York, this is Article 8 of the Family Court Act). She will then talk to a clerk who will listen to the survivor’s allegations and convert her words into a petition and affidavit. The survivor must allege that at least one family offense occurred. Family offenses are specific criminal statutes. In New York family offenses include disorderly conduct, harassment, aggravated harassment, sexual misconduct, forcible touching, sexual abuse, menacing, stalking, reckless endangerment, strangulation, assault, and obstruction of breathing or circulation. The survivor will confirm that the petition is accurate and then sign it. The clerk will then assign a judge who will read the petition and briefly bring the survivor into the courtroom. If the petition convinces the judge that she has a reasonable fear of harm based on past abusive conduct or threats and that any further delay may expose her to imminent harm, the judge may issue a temporary order of protection that very day. This order (the temporary order of protection) will be available in the clerk’s office. The temporary order of protection will have specific instructions demanding that the offender stay away from the survivor. It is important to read the temporary order of protection and make sure it contains all the protections needed, but note that only the survivor and her children can be protected. It does not usually extend to other family members or friends outside the household. In addition to the temporary order of protection, the survivor will also have a notice of oetition and petition. The notice of petition will provide a return date. The temporary order of protection most likely will only be in effect until that return date. All three documents must be served on the offender. The offender must show up on that return date or else the survivor will receive a default judgment awarding her a permanent temporary order of protection. Before she can obtain the default judgment, though, she must show that the papers were properly served on the offender and prove the merits of her case.
On the day she goes to court for the temporary order of protection, it's key to have her thoughts and statements organized and prepared ahead of time. She'll want to bring contact information for the offender and herself (she may keep her contact information private on the petition), detailed information about the first, the most recent, and the most severe acts of domestic violence. If stalking is alleged, she should tally up the frequency of contacts, the method, and the number of other people who were also contacted. She should not add extraneous information to her statements -- explain why she is scared, and be factual.
Many individuals are able to obtain the initial temporary order of protection in family court without an attorney. Some communities have legal services that provide free counsel to those who qualify financially. Others have volunteers who will assist people with the process of filing for an order of protection. Having an attorney on the return date will make life much easier, especially when it comes time for the actual hearing for the permanent order of protection.
A permanent order of protection is obtained only after a hearing with a judgment in her favor or if the offender agrees not to fight it. Even if the offender does not show up, a hearing, called an inquest, is necessary at which point she must prove the offender was properly served and also must prove the elements of the family offense(s) alleged in the petition.
The survivor is responsible for serving the family court temporary order of protection petition and notice of petition on the offender along with the petition and notice of court date. The temporary order of protection is not enforceable until it is served on the offender. Though she is responsible for serving the offender, she is not allowed to do it herself. Somebody else must do it and that person must sign an affidavit of service which the survivor must bring to court on the return date. In many places law enforcement officers will serve family court orders of protection, but this can be a logistical nightmare. Hiring a process server is always an option for delivering the court papers.
On the first return date, even if the offender shows up, it is unlikely a hearing for a permanent order of protection will be held that very same day. Often offenders want to postpone (called an “adjournment”) the hearing to give them time to obtain a lawyer. If that’s the case, the judge will extend the temporary order of protection. Sometimes it can be several months until a hearing actually occurs.
The survivor should realize that she will be face-to-face with the offender on the family court return date. This can be frightening for people leaving an abusive relationship whose biggest desire is to avoid their ex. Most courts have special rooms where survivors can wait until their case is called so they can minimize contact with the abuser. She should bring a support person with her to court on the return date. She should also arrive early to lessen the likelihood that she will run into the offender in the elevator or security line.
Some angry exes file cross-complaints to further abuse their victims and may even seek orders of protection against them. Unfortunately, some exes with a disregard for the law and authority, may even react to a temporary order of protection with more aggression. It is hard to predict how somebody will react and survivors will want to be in a safe place and with others after their abuser is served the Temporary Order of Protection. If a survivor suspects he will react violently, she should get the police involved.
If the survivor lives with the offender and the temporary order of protection requires that he stay away from the home, the police may escort him to your home to collect some of his personal belongings.
Family court records are generally not accessible to the public without information about the docket number or case file.
The family court orders of protection are boilerplate and, in most places, they will not have specific language barring the offender from aggressing against the victim on social media or posting nude pictures online. Some judges may be willing to add the language.
If family court does not have jurisdiction over the offender, there are two other ways to restrict somebody’s behavior:
1. Criminal court – After somebody is arrested for domestic violence-related claim, judges will frequently issue a temporary order of protection requiring the offender stay away from the victim. The victim has less control over the outcome than in family court.
2. Civil court – Victims may seek an injunction to stop harmful behavior and the judge may issue a preliminary temporary restraining order pending the outcome of the case. These cases can be trickier for an unrepresented victim to navigate, but may be the only option if there’s no intimate relationship between the offender and the victim and no criminal proceeding.