Order of Protection Law

In order to obtain an order of protection you must state that a �family offense� occurred. Many actions are family offenses, such as when a person verbally, physically, emotionally, or sexually abuses you, or threatens to hurt you. Describe when each incident occurred, where it occurred, what happened, whether you were injured (bruises, cuts), and whether weapons were used. It is best to include the most recent incident, the first incident and the worst incident. If there was verbal abuse, tell the clerk the exact words the respondent used. Tell the clerk if there is criminal court involvement and if there were earlier orders of protection. Before you sign the petition, read it carefully and tell the petition clerk if anything important has been left out. Make sure the petition is accurate and fully states what you want to tell the Judge.

What can I ask for in my petition?

Most temporary orders of protection say that the respondent must not assault, menace, or harass you, but you can ask for additional terms. You must tell the petition clerk specifically what you would like the Judge to order. Some of these things may be in the temporary order and some may be in the final order. You can ask for:

1) Stay away: The court can order the respondent to stay away from you, your home, your job, your children, your children's school or any other place or person the court finds necessary.

2) Refrain from certain acts: The court can order the respondent to stop abusing or threatening to abuse you or your children. The order can be specific, such as, ordering the respondent to stop calling you at work.

3) Collect your belongings: If you do not want to return home, you can ask the court to allow you to enter your home with the police to collect your personal belongings at a certain date and time.

4) Exclude the respondent from the home: If the respondent is dangerous to you or your children, you can ask the court to order the respondent out of the home ("excluded") while the order of protection is in effect. It does not matter that the home is not in your name.

5) Temporary child support: The court can order temporary child support based on the needs of the child. You do not have to show how much money the respondent has or earns. Since the child support is only temporary, you will still have to file a separate petition for child support. You can do this on the 1st floor of the Family Court. The case will be heard by a Support Magistrate in about two or three months, but you can get support back to the date you filed the petition.

6) Revoke or suspend firearms: The court can revoke or suspend respondent's license to carry firearms or order surrender of any or all firearms owned or possessed by respondent.

7) Five year order: Most Family Court orders of protection are for two years. You can get a five year order of protection if there are "aggravating circumstances", or if the court finds there was a violation of an order of protection. Aggravating circumstances exist where there is physical injury, the respondent used a weapon or other dangerous instrument against you, there is a history of repeated violations of prior orders of protection, the respondent has been convicted of crimes committed against you in the past, there is exposure of any family or household member to physical injury, or other behaviors that pose a danger to you, your family or other household members.

What's the difference between temporary and permanent order of protection?

A temporary order of protection is issued on the day you file for an order of protection before the respondent is served with the papers. It only lasts until the next time that you are in court. The court usually will extend the temporary order at each court date until the case is over. If a final order of protection is issued, this occurs at the end of the case after the Judge finds that a family offense was committed or the respondent agrees. A final order lasts for two or five years. A final order of protection can also include:

1) Restitution: If the respondent damaged any of your property (e.g. car, windows, furniture), the court can order the respondent to pay damages ("restitution") up to $10,000. You will have to prove the value of what was damaged.

2) Medical expenses: The court can order the respondent to pay for any medical expenses arising from the abuse.

3) Participation in a Program: The court can order the respondent to participate in services, such as a batterer's education program, or make referrals for drug or alcohol counseling.

Violation of the Order of Protection

It is a crime to violate a temporary or final order of protection. If the respondent does not obey the order, then you can call the police. The police will probably arrest the respondent for violating the order of protection. The respondent does not have to hit you to violate the order. If the respondent comes to your home and the order says he can't, then you can call the police. You also have the right to file a violation of the order in Family Court. Filing a violation in Family Court usually will not result in arrest of the respondent. You can choose to go to Family or Criminal Court, or both.