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Order of Protection in NY

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Recently updated on May 7th, 2024 at 11:53 pm

Overview

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: a judge orders an abuser to stay away from and not contact their victim who the abuser is harming.

Order of Protection applies in situations of domestic violence where there is a credible threat to an individual’s safety. If the abuser disobeys the Order of Protection, then the abuser can be charged with committing a crime and can be jailed.

If a person believes their situation qualifies for a Order of Protection as defined in the New York state Civil Code (23 Pa. C.S.A. § 6101, Protection from Abuse Act), they can apply for one through the Superior Court in their county of residence. The process may involve filing a petition, attending a hearing, and presenting evidence to support the request for the order.

Definition of Abuse in NY

NY Civil Code (23 Pa. C.S.A. § 6101, Protection from Abuse Act), Domestic violence in New York occurs when someone in your family or someone you're dating does any of these things:

  1. Tries to hurt you or actually hurts you.
  2. Threatens to hurt you so you're scared of being seriously harmed.
  3. Stalks you in a threatening way.
  4. Invades your property in a threatening manner.
  5. Harms a child mentally or physically.
  6. Commits a sexual offense like rape, sexual battery, or other similar crimes.

Comparison with Criminal Case

If you're a victims of domestic violence, then you can file the following legal cases. There are two main types of court cases: civil and criminal.

  • Criminal Case: In a criminal case, the burden of proof is beyond a reasonable doubt, the highest burden of proof.
  • Order of Protection: This is considered a civil law case, and the victim has to give some evidence and generally the burden is low and the victim must establish “preponderance of the evidence" of a past act or acts of abuse.” In a civil case, the judge assesses whether the claims made by the accuser are more likely than not to be true. This standard is relatively less rigorous, and certain kinds of abuse may easily meet the standard for Order of Protection but may be difficult to prove as criminal. You just need evidence to support that abuse occurred which is defined as bodily injury or fear that you will get bodily injury.

 

Situations where a Order of Protection applies

There are a few different types of restraining orders and typically only one of them may apply to your situation. The first step is to see if any of the different types of restraining order applies to your situation or is remotely related as that might help you decide whether to apply .

The types are:

1. Family Violence

Family Violence is for situations involving domestic violence which is when a victim has been abused by a romantic partner (spouse, domestic partner, girlfriend/boyfriend) or a family member.

2. Civil harassment

It applies to situations involving repeated irritating behavior, stalking, abuse, or threatened by someone you are not as close to as is required under domestic violence cases, like a roommate, a neighbor, or more distant family members like cousins, aunts or uncles, or nieces or nephews.

3. Sexual Assault Protection Orders

Sexual Assault Protection Orders are issued to victims of sexual assault, rape, or attempted sexual assault. These orders provide protection against further contact or harassment by the perpetrator.

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.

Situations where other types of Restraining Order apply

 

Criminal Court Order of Protection is issued as a condition of a defendant’s release and/or bail in a criminal case. A criminal court order of protection may only be issued against a person who has been charged with a crime. An Assistant District Attorney may request a criminal court order of protection on your behalf. You do not need to have an intimate or personal relationship with the person charged with the offense. The judge decides whether to issue an order of protection, as well as the terms and conditions. The person charged with abuse is called a “defendant.” The victim of abuse is called the “complaining witness.” There does not need to be a relationship between the complaining witness and the defendant.

 

 

A Supreme Court order of protection: can be issued as part of an ongoing divorce proceeding. If you have an ongoing divorce case and would like to request an order of protection, you may do so by making a written request by Motion or Order to Show Cause; or you may make an oral request at a court appearance. If you are represented by an attorney, your attorney may make the written or oral request for you. The judge decides whether to issue the order of protection and what terms and conditions will be included in the order.

 

 

What if I am Under 18 years of Age?

An Order of Protection  can be requested by anyone including those who are under 18 years of age. The judge may assign you a

However, as a minor (a person under the age of 18) , you will need a parent, adult household member or guardian ad litem to file the protection from abuse order on your behalf. The relevant laws are 23 Pa.C.S.A. § 6102(a) and 23 Pa.C.S.A. § 6106(a).

 

How Order of Protection Solve the Problem

The purpose of a restraining order 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 a restraining 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, a restraining order may prohibit the respondent from

  1. Approaching or contacting the petitioner including via text or social media
  2. Staying away from the usual places petitioner is at such as home, work or school
  3. Prohibit stalking, or surveillance of any kind
  4. In situations where they lived together, provide custody or access to
    • Children
    • Pets
    • Important documents
    • Personal items such as clothes, medications, cell phones
    • Cars
  5. 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 ViolenceReduce 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

Cost Effective

They are a relatively low-cost solution, particularly when compared with the social and personal costs of partner violence.

Countryside

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.

Process for Getting a Order of Protection

Step 1: Gather Evidence

The first step is to gather the evidence to support your case. The fallowing are considered as evidence of domestic violence

Evidence Type 1: Pending Criminal Case

Judges are also more likely to issue an order if there is an ongoing criminal case, therefore it's important to call such cases out when seeking a temporary restraining order.

When a judge sees that there's a criminal case happening, they might think it means the police or the district attorney are pretty sure they can prove the crime happened.

Examples of evidence are:

Evidence Type 2: Photos of violence, injuries, damage

These are the most common types of evidence submitted. These can be photos of victim's injuries inflicted by the abuser. It is helpful to add photos next to the related incident description to help create a complete picture for the judge.

Evidence Type 3: Print outs of messages, emails or transcripts of voicemail

You can take screenshots of text messages and attach them. Similarly you can print emails and attach them as pictures or PDF files. While in most cases you cannot submit digital files such as

Evidence Type 4: 911 Calls

Rather than just saying you called 911 or any specific hotline, you can make your case stronger by listing the following items

  • The number dialed in case of the domestic hotline
  • The date and time (or approximate date and time) when the call was made
  • Who made the call
  • What was reported on the call
  • Any specific details of the person who answer the 911 call e.g. male/female voice

Evidence Type 5:  Medical Records

.You can attach documentation of previous medical emergencies or injuries that resulted from the actions of the abuser. These could be hospital visit records, print outs from your hospital portal (E.g. mychart) showing details of your visit.

Evidence Type 6:  Police reports

You can attach a copy of the police reports filed against abuser for domestic violence.

Evidence Type 7:  Testimony

  • A testimony from a witness. The witness can be anyone such as a family member, neighbor a co-worker or a bystander. The testimony is just an essay written describing the incidents witnessed, with as many specifics as possible.

Step 2: Get a copy of court forms 

Domestic Violence Forms

New York State Unified Court System

The court forms are provided an organization that oversees all courts in New York, called NY State Unified Judicial System , and are freely available on their website as a PDF file.  Some forms are required for all applicants and then the rest are optional and apply depending on the situation and stage.

 

Form Number Title PDF DOC WPD
GF-5 Temporary Order of Protection (Family Court) PDF Doc -
GF-5a Order of Protection (Family Court) PDF Doc -
GF-5b Affidavit in Support of Issuance of Family Court Temporary Order of Protection (Individual Complainant/Petitioner) PDF Doc WordPerfect
GF-5c
CRIM-4
Affidavit in Support of Issuance of  Family Court Temporary Order of Protection (Peace or Police Officer, Agency or Designated Person) PDF Doc WordPerfect
GF-5d
SC-3
CRIM-5
Affidavit in Support of Modification Of Family Court Temporary Order of Protection or Order of  Protection PDF Doc WordPerfect
GF-5e Affidavit In Support Of Entry Of Out-of-State Order Of Protection Or Temporary Order Of Protection Onto Statewide Registry Of Orders Of Protection PDF Doc WordPerfect
GF-6 Temporary Order of Protection (Person in Need of Supervision or Juvenile Delinquency) PDF Doc -
GF-6a Order of Protection (Person in Need of Supervision or or Juvenile Delinquency) PDF Doc -
GF-9 Order (Violation of Order of Protection with/witout Commitment) PDF Doc WordPerfect
GF-11 Order of Commitment PDF Doc WordPerfect
8-1 Information for Victims of Domestic Violence PDF Doc
8-1 Informacion Para Las Victimas De Violencia Domestica
(above 8-1 form in Spanish)
PDF  Doc
8-1 الأسري
(above 8-1 form in Arabic)
PDF
8-1 পারিবারিক সহিংসতার আক্রান্তদের জন্য তথ্য
(above 8-1 form in Bengali)
PDF
8-1 ENFÒMASYON POU MOUN KI VIKTIM VIOLANS DOMESTIK
(above 8-1 form in Haitian Creole)
PDF
8-1 가정폭력피해자에 관한 정보
(above 8-1 form in Korean)
PDF
8-1 ИНФОРМАЦИЯ ДЛЯ ЖЕРТВ БЫТОВОГО НАСИЛИЯ
(above 8-1 form in Russian)
PDF
8-1 家庭暴力(家暴)受害者需知
(above 8-1 form in Simplified Chinese)
PDF
8-1 家庭暴力(家暴)受害者需知
(above 8-1 form in Traditional Chinese)
PDF
8-2 Petition (Family Offense) PDF Doc WordPerfect
8-3 Notice to the District Attorney PDF -
8-4 Order of Transfer For Criminal Prosecution PDF Doc WordPerfect
8-5 Order of Disposition PDF Doc WordPerfect
8-6 Order - Firearms Licenses And Surrenders Notice to Law Enforcement Agency PDF Doc WordPerfect
8-6A Firearms Search and Seizure Order PDF Doc
8-7 Family Offense - Order of Dismissal PDF Doc WordPerfect

 

Form Number Title PDF DOC WPD
SC-1 Temporary Order of Protection (Supreme Court) PDF Doc -
SC-2 Order of Protection (Supreme Court) PDF Doc -
SC-3 Supreme Court Seizure Order Form PDF Doc -
CRIM-1 Order of Protection/Family Offense (Criminal Courts) PDF Doc -
CRIM-2 Order of Protection/Non-Family Offense (Criminal Courts) PDF Doc -
Family Protection Registry Center Information Sheet PDF WordPerfect
Family Protection Registry Center Addendum to Information Sheet PDF WordPerfect
Application for an Order to Terminate or Sever Lease (Criminal) PDF Doc
Order to Terminate or Sever Lease (Criminal) PDF Doc

 

 

Tip: You can check your local court's website to see the exact versions and set of court forms needed. You need to prepare these forms. Courts also offers a free self help center where you can take forms. Alternatively you can use a free website such as LegalAtoms to prepare the restraining orders paperwork online.

 

Nothing happens until you file the forms. So its a good idea to step through the forms even if you think you don't plan to file for a protection order right now, to get

You can then file them online when you've thought through all aspects.  There are special protections for victims, and you're protected even if your immigration status is undocumented in United States.

 

Step 3: File the Court Forms

Typically these are filed at your county's Court. Some of these courts are also called Family Justice Center.

 

 

Step 4: Get a Temporary Order 

Depending on the facts and evidence presented, a Judge can issue a restraining order with immediate effect until the hearing, called an Emergency Temporary Order.  In relatively less risky situations, a temporary order is issued in a few days.

If there are no grounds or if the application is incomplete or the jurisdiction is incorrect the application may be rejected.

The temporary order is only valid for about 3 weeks which is the amount of time until the hearing. 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.

Step 5: Serve the abuser 

 

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.

 

L.A. County court to staff: Get COVID vaccine or get fired - Los Angeles Times

 

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 five years.

Costs

There are no costs associated with a Domestic Violence Restraining Order.

  • FREE forms : You can get the court forms for free, or prepare them using the guided experience below.
  • FREE filing: There is fees for filing. Online filing platforms may charge a service fees

If later in the process a Order of Protection is successfully issued, then the defendant might be required to pay all the fees of filing and service as well as an additional $100 government frees for enforcement of domestic violence laws.

Process Duration

You can get a temporary 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

 

Risks

It is conceivable that following the submission of a civil protection order, 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 a 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:

  1. Physical assault or violence
  2. Harming or taking away children
  3. Damaging jointly owned property
  4. Disregarding the order and persisting with threats, possibly through intermediaries
  5. Inflicting harm or causing harm to pets
  6. Harassing your loved ones for information
  7. Engaging in stalking behavior
  8. Initiating a retaliatory restraining order against you
  9. Spreading false information about you in court documents, online, or publicly

Following the submission of a domestic violence Protection order, it's important to continuously assess your situation and prepare for the potential escalation of your case into more violent territory.

 

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