How do I Get a Family Violence Order of Protection in New York
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Recently updated on December 12th, 2024 at 01:42 am
In New York, a Family Violence Order of Protection can be requested by your local family court online or by getting a copy of the standard court forms issued by the NY Courts, filling them which includes specifics of harassment and submitting them at the court. Getting an Order of Protection requires filing a petition with the court, supported by evidence of abuse.
A Family Violence Order of Protection helps those facing abuse within spouses, partners, cohabitating individuals, family members, and those in intimate or dating relationships, regardless of living arrangements. It is a legal warning to the abuser to stay away and refrain from contact, or face criminal charges. These orders have a fixed duration but can be extended if the threat persists. Violating the terms of the order carries severe penalties, such as fines or imprisonment, emphasizing the legal repercussions.
Protective orders serve as a crucial tool in breaking the cycle of abuse and reclaiming control over one’s life. They offer a sense of security and support for individuals facing difficult situations of domestic violence.
Definition of Domestic Violence in New York
Comparison with Criminal Case
If you’re victims of domestic violence, then you can file the following legal cases:
- Criminal Case: In a criminal case, the burden of proof is beyond a reasonable doubt, the highest burden of proof.
- Domestic Violence Order of Protection: This is considered a family law case, and the victim has to give some evidence and generally the burden is low and the victim must establish “reasonable proof of a past act or acts of abuse”. For Domestic Violence Order of Protection, you just need evidence to support that abuse occur which is defined as bodily injury or fear that you will get bodily injury.
The court considers accusations of abuse leniently, and favors on issuing orders as long as there is some evidence.
Precheck: Does my situation even qualify for filing for an Order of Protection
Before you do the work of preparing and filing the case documents, here’s a summary of the criteria.
Criteria for Family Violence Order of Protection
Domestic Violence is abuse, threat, or harassment from a qualifying relationship such as
- Acts of domestic violence, assault, harassment, stalking, menacing, or other abusive behavior.
- The behavior must make you feel unsafe, threatened, or harassed.
- Proof of physical violence is not always required; emotional or psychological harm may suffice if severe.
Abuse is not limited to the actual infliction of physical injury or assault.
Qualifying Relationships for Domestic Violence
1. Spouse: A spouse or former spouse such as husband or wife, registered domestic partners
2. Cohabitants: Couples who are in a relationship and living together without the benefit of marriage are known as cohabitants under New York law. It does NOT include roommates without romantic relationship.
3. Past or Current Romantic Relationship: A person with whom the respondent is having or has had a dating or engagement relationship.
4. Coparent: A person with whom the respondent has had a child
5. A child of a party or a child who is the subject of an action under the Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected.
6. Relatives: Any other person related by consanguinity or affinity within the second degree. This includes: Children, Parents, Brother or Sister, half-brother or Sister, step-brother or sister;, grandparents
niece, nephew, uncle, and aunt
What if I am Under 18 years of Age
A person who is under 18 i.e. a minor, can file a petition for an Order of Protection if they qualify under the family or household relationship criteria.
- If the minor is too young to file independently, a parent, guardian, or other responsible adult may file on their behalf.
- The court may appoint a guardian ad litem to assist the minor in the legal process.
If the Respondent Is a Minor
Orders of Protection can also be issued against minors. In Family Court, this typically involves cases of abuse or harassment where the respondent is at least 10 years old, as this is the age of jurisdiction for juvenile delinquency cases in New York.
A minor who feels unsafe should involve a trusted adult, such as a parent, school counselor, or social worker, to help navigate the process. If the situation involves abuse by a parent or guardian, the child can seek assistance from Child Protective Services (CPS) or request a legal advocate.
What if the abuser lives out of New York state
A non-New York state resident who abuses a New York resident may be subject to the state’s jurisdiction. That means that a New York court can make orders prohibiting a non-New York resident from further abusing a New York resident. Abuse committed by out-of-state parties subjects them to this state’s personal jurisdiction.
An act of abuse by a party in another state against a person in New York is subject to “special regulation” in this state and is sufficient to vest personal jurisdiction in the New York courts over the out-of-state party to enjoin any further such conduct.
Situation Examples
Example 1: Husband is sexually and verbally abusive, and controlling
My husband doesn’t allow me the option to say no to sex, and often that warning is not explicit but I know bad things will happen if I say no such as bullying, threats and immense tension. As a couple we have been having sex everyday for nearly two decades now. He verbally abuses me by calling me a whore if I don’t sleep with him. During this time he is intoxicated so I am fearful of having a discussion as his anger will quickly get out of control, and he will hurl things at home thereby inducing more fear in me. Such behavior has been going on for over a decade now so I am not sure about the date of the first incident now. One day I very carefully chose my words and mentioned that maybe we are not a right fit, and should seek counseling. He was enraged and threated me that he will utterly destroy me, my work reputation, and expose some minor things I did to the immigration authorities. Since about six months, I have been sleeping in a separate room. He comes there routinely and tries to sleep with me forcefully. Often times I feel that if I resist, or decline his advances that my reputation, our property, or even me life will me in danger. I feel little, humiliated and disgusted with myself.
Example 2: Boyfriend blackmails and destroys property to control and induce fear
Today, Michael was armed with a pistol and seemed to be under the influence of an unidentified substance. He made threats to create false narratives with the aim of jeopardizing my 28-year accounting career, stating he would falsely accuse me of engaging in illegal financial activities. His menacing statement, “if you mess with me, I’ll retaliate,” was accompanied by destructive actions, such as damaging property in my home, including creating a hole in the wall. Michael’s behavior becomes particularly alarming when he is under the influence of drugs.
Example 3: Ex-boyfriend stalks
Jenna’s ex-boyfriend shows up at Jenna’s work unexpectedly and drives around. Jenna is fearful, and had earlier clearly asked him to leave her alone.
Gather Evidence
The first step is to gather the evidence to support your case. What proof do you need for an Order of Protection in New York. The following are examples to help you organize though anything that supports your claims can be used.
Criminal Case
A criminal case in progress shows that the district attorney also found evidence of the abuse or crimes and therefore supports your claims.
Photos
Photos of violence, injuries, damage
Messages
Print outs of messages, emails or transcripts of voicemail
911 Calls
For each call document the #, date, time, caller, callee details
Medical Records
Documentation of any medical emergencies or injuries or treatments resulting from abuser’s violence.
Police Report
Police reports filed against abuser for domestic violence.
Testimony
A testimony from a witness who can be a family member, neighbor a co-worker or a bystander, either in writing or in person at the hearing, describing the incidents witnessed.
Step 2: Get a copy of court forms
You can fill these online for free by visiting here
In order to apply for an Order of Protection, you need to fill and submit a specific set of official New York court forms. These have questions aimed at understanding your situation and the people involved.
Step 3: File with the County’s Family Court
Filing is the process which means the following steps
- Formally submitting the case documents at the court with the office of the clerk
- The clerk reviews and verifies the correctness of forms and completeness of the required info
- Clerk enters the case in the court database, stamps the documents and assigns a case #
County (Venue)
The proper venue for an Order of Protection case is the county where the abuse took place or where the restrained party lives. However, venue is a defensive motion and should be considered by the court only if the restrained party objects by filing a noticed motion for change of venue at or before the time of responding to the request.
Determine the County
In New York, one typically file at the Family Court at the county (including borough in New York City) of your residence or where the abuse occurred. For example, if you live in Manhattan, then the Family Court of New York County would be your venue. There can be many special cases and fine print but that is the most common case. Please consult a lawyer if your situation is uncommon e.g. the abuser is overseas or you are overseas and the abuser is in New York state.
Identify the methods of Filing
Method # 1: In Person by visiting the court house
Your court location would accept the forms to be submitted in person at the court hours.
Tip: All courts have lunch hours when they are closed for an hour
When you submit your case documents at the court, typically you take 3 copies.
The clerks reviews it, and if everything is ok, they formally enter it into the court system and put a stamp near the top of the documents. That acceptance is called filing.
The stamp may look something like this:
Method # 2: E-file online
This is the most efficient option if you have an e-mail address and some basic computer skills like registering an account, and uploading PDF files.
Some counties now have one or more online portals where you create an account for free, and then you can upload documents and hit submit.
You will be required to some online service fees.
Method # 3: Via another person
Some counties accept filing via a friend or legal courier. These companies or individuals charge a flat or hourly fee and file the documents at the court.
Step 4: Judge Sets Hearing, Grant/Deny Temporary a Order of Protection
A judge reviews the case offline and then you will be notified by the court about the outcomes which are:
- Temporary Order of Protection Granted
- Temporary Order of Protection Denied
In addition the Judge would typically set a hearing. If the case doesn’t have sufficient evidence it might be dismissed without even a hearing.
The Temporary Order of Protection (if issued) is valid until the hearing i.e. typically about 3 weeks. If the hearing is delayed for any reason, you need to check with the court to ensure the temporary order is renewed until the hearing to provide you with legal protection.
Step 5: Serve a set of Stamped Case Forms including Hearing Notice to Abuser
Whenever one party initiates a restraining order it needs to inform or serve the other party formally by delivering the court documents. That step is called serving the respondent
Under the New York law there are multiple ways in which the other party can be served.
You cannot serve your papers yourself.
Option 1: Ask the Sheriff (FREE)
A sheriff or marshal can serve the opposing party for you which is a big help. This service is offered for FREE. To ask the sheriff to serve your papers, you must have an address or location for the abuser. If the respondent is in jail, the sheriff can serve them. If the other side is in prison in New York, prison staff, not the sheriff, will serve your papers.
Option 2: Ask a friend, relative or any adult (FREE)
You ask someone you know to be your server
- 18 or over, and
- not part of your case
Think about safety when choosing your server.
Option 3: Hire a courier for legal papers (Process Server)
You can also hire a courier called professional process server. You can search on Yelp or Google to get a list of options near you. Yelp Example . An example is ABC Legal Services.
You cannot hire regular couriers such as UPS, FedEx or US Postal Service unless in exceptional scenarios where the judge authorizes service by mail, but that’s a whole different topic altogether.
Step 6: Present Evidence in a Court Hearing
Attend a hearing: The court holds a hearing within a couple of weeks where the evidence is examined. If there is sufficient supporting evidence as determined by a Judge, a full restraining order is issued. At this point it becomes a crime for the abuser to break the conditions of the restraining order.
Step 7. Collect the Final Order
After the hearing, a final order may be issued. You can take a paper copy of the order with you. The order is typically valid for two years.
Costs – How much does it cost to get an Order of Protection
There is no government fees for filing for an Order of Protection i.e. its free.
There may be costs for printing documents, or serving the other party.
How long does it take to get an Order of Protection after I file
Depending on the seriousness of the case, you can get a Temporary Order of Protection order the same day as you file.
Courts can have a cutoff of around 2 p.m. for the same day service, so you need to file before then. Otherwise, the order would be issued the following day when courts open.
Courts are generally open Monday-Friday and closed on Saturday-Sunday.
The temporary order is valid until a formal hearing is held in which both parties need to be present. Typically a hearing is scheduled in 2 weeks of filing.
At the hearing a formal order may be issued
Is an Order of Protection helpful?
The purpose of an Order of Protection is to restrict the contact or proximity of one person (the respondent or alleged perpetrator) to another person (the petitioner or victim) in order to ensure the safety and well-being of the petitioner.
The specific terms of an Order of Protection order can vary depending on the circumstances of the case e.g. if the people live together then it might require one party to vacate the place.
Typically, an Order of Protection order may prohibit the respondent from
- Approaching or contacting the petitioner including via text or social media
- Staying away from the usual places petitioner is at such as home, work or school
- Prohibit stalking, or surveillance of any kind
- In situations where they lived together, provide custody or access to
- Children
- Pets
- Important documents
- Personal items such as clothes, medications, cell phones
- Cars
- Extending the protections to others living with the petitioner
Research findings on benefits of Order of Protection
Here’s the top three findings from a study on domestic violence and restraining orders from the University of New Hampshire
Reduce Violence
Civil protective orders (such as a DVRO) are effective in reducing partner violence for many women. For half the women in the sample, a protective order stopped the violence. For the other half, the orders significantly reduced violence and abuse.
Cost Effective
They are a relatively low-cost solution, particularly when compared with the social and personal costs of partner violence.
Urban Vs. Rural
The impact of civil protective orders on reducing violence and abuse did not differ for rural and urban women. In rural areas where resources and services for partner violence may be more limited, the restraining orders hold greater importance.
Risks of an Order of Protection
It is conceivable that following the submission of a Order of Protection, the abuser particularly in domestic violence situations may react with anger due to the perceived loss of control over you and your household. In certain instances, the abuser may portray themselves as the victim and shift blame onto the actual victim they were mistreating.
The response of your abuser after the filing of a protection order is unpredictable. While an Order of Protection can provide legal protection, one should not automatically assume that it guarantees safety. The initial weeks post-filing can be particularly precarious, contingent on your abuser’s reaction.
Despite the safeguards intended by an Order of Protection, abusers may retaliate through various means, such as:
- Physical assault or violence
- Harming or taking away children
- Damaging jointly owned property
- Disregarding the order and persisting with threats, possibly through intermediaries
- Inflicting harm or causing harm to pets
- Harassing your loved ones for information
- Engaging in stalking behavior
- Initiating a retaliatory restraining order against you
- Spreading false information about you in court documents, online, or publicly
Following the submission of an Order of Protection , it’s important to continuously assess your situation and prepare for the potential escalation of your case into more violent territory.
WHAT RESTRICTIONS CAN YOU ASK THE JUDGE FOR
Here are the typical restrictions places on the abuser via the Order of Protection.
Stay Away From You
Abuser would have to stay at least 100 yards away from you, your children and locations you request such as your work
Not To Contact You
Not to contact you via phone or text or mutual friends
Not Stalk You
Not stalk you or your loved ones, including your accounts on Facebook or other social media
Hand Over A Car
Get access to cars held by the abuser
Vacate The Shared Residence
The respondent can be asked to vacate the shared residence. You can also request help from police to kick them out.
Handover Passport, Cell Phone, Medications Etc.
You an ask for your personal items such as passport, medications, clothes. This would be applicable if you were living together up to now.
Don’t Post Intimate Images
Take down, delete, and do not distribute intimate images of a protected person
Restrict Abusive Litigation
This is to prevent the misuse of the legal system to harass, intimidate, or burden you.
Get Drugs, Mental Health And Sex Offender Treatment
You can request the abuser to seek treatment for alcoholism, drug use, domestic violence abuse
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Create & E-file Order of Protection Forms
An Order of Protection is a kind of restraining order in the New York state which is aimed at relatives or current or former romantic partners. The basic idea is the same as any other restraining order.
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