Orders of Protection
Family Offense Proceedings in Supreme and Family Court
DRL 240(3), 252, FCA Article 8, Rule 141 IDV
By J. Douglas Barics
Updated August, 2008
1. What is an Order of Protection?
An order of protection is a court order which directs a respondent not to take specific actions, such as staying away from another person or place. Failure to obey this order can result in immediate arrest and possible incarceration. Orders of protection may be part of a criminal proceeding or as part of a civil proceeding in Supreme or Family Court.
An order of protection can be requested in Family Court or in Criminal Court, or both. Supreme Court also has the authority to issue an order of protection as well. When the parties to a family offense matter are in front of two or more judges in Supreme Court, Family Court, or Criminal Court, their case may be referred to the integrated domestic violence part and consolidated before one judge.
2. The Scope of an Order of Protection
An order of protection issued by Family or Supreme Court can contain one or more of the following:
(a) ordering someone to stay away from the a specific location such as the home, school, business or place of employment of the parent, child, or any other person
(b) permitting a child visitation at specific times or places parent so that visitation can occur which would otherwise violate the order of protection
(c) ordering someone not to commit a family offense as defined in subdivision one of section 530.11 of the criminal procedure law, or any criminal offense against the other parent or child, or from harassing, intimidating or threatening such persons
(d) allowing a person to enter their residence at a specific time to remove personal belongings without it being a violation of the order of protection
(e) refraining from acts that would create an unreasonable risk to the welfare, health or safety of a child
(f) payment of reasonable attorney fees and related costs which were necessary to obtain or enforce the order of protection
(g) any other conditions which the court deems necessary to further the purposes of protection
3. Supreme Court Order of Protection
Orders of protection are authorized by two sections of the Domestic Relations Law. Section 240 subsection 3 authorizes the Supreme Court to issue an order of protection in actions or proceedings to obtain custody of a child either by writ of habeas corpus, or by petition and order to show cause seeking custody or visitation of any child of a marriage, or as ancillary relief in an action for divorce, a judicial separation, or an annulment action.
Section 252 authorizes the court to issue orders of protection in divorce actions (DRL 170), separation actions (DRL 200), and annulments (DRL 140).
As Supreme Court is a civil court, the burden of proof required is a preponderance of the evidence. There is no right to a jury trial in a family offense proceeding, nor is there a right to invoke the 5th Amendment privilege against self incrimination; the refusal to testify will result in a negative inference being drawn.
DRL 240 and 252 both authorize that an order of protection can remain in effect during the minority of any child subject to the final judgment or order.
4. Family Court Order of Protection
Family Court Act 812 provides that in order to bring a family offense petition in Family Court the parties must fall under one of the four categories.
- They must be related by blood (consanguinity) or by marriage (affinity)
- They are currently married
- They are formerly married regardless if they live in the same household
- They have a child in common
- They are not related by blood or marriage, but have been in an intimate relationship, regardless if they lived together
If the parties do not fall into one of these categories, the Family Court will not have jurisdiction.
Like Supreme Court, the burden of proof is the preponderance of the evidence. No right for a jury trial exists.
An order of protection issued by Family Court can last for up to two years, If aggravated circumstances are found, the court has the authority to issue an order of protection for up to five years.
5. Criminal Court Order of Protection
The Criminal Court is authorized to issue an order of protection on behalf of virtually anybody against a defendant. However, it is up to the prosecutor to decide whether to bring charges an whether to seek an order of protection.
The burden of proof for all criminal matters, including an order of protection in criminal court, is proof beyond a reasonable doubt. This means it is substantially harder to obtain an order of protection in criminal court than it is Supreme or Family Court.
There are no restrictions on the relationship between the parties; Criminal Court can grant an order of protection to complete strangers. In other words, if Supreme and Family Court lack jurisdiction based on an insufficiently close relationship between the parties, Criminal Court is the only option.
Those accused have a right to a trial by jury, and may invoke the 5th amendment right not to testify without any negative inference being drawn.
6. Integrated Domestic Violence (IDV) Court
When two or more judges are involved for the same parties or for a divorce where domestic violence is alleged, the matter will be transferred to the integrated domestic violence court, and one judge will hear all matters between the parties.
Thus an IDV court will hear the divorce, custody, visitation, support and orders of protection. Prior to the IDV court, it was no uncommon to have a divorce before a Supreme Court justice, family offense matters before a Family Court judge, and criminal matters pending in Criminal Court. The result was conflicting orders, and judges dealing with issues piecemeal.
For additional information about the IDV Court, click here.
7. Differences Between Criminal and Civil Orders of Protection
In Criminal Court, the district attorney is the one prosecuting the case, the victim's role is that of a witness. Therefore, the prosecutor will determine whether or not to file, what the specific charges are, whether to try to settle the matter or proceed to trial. There is a right to a jury trial, and the standard of proof is beyond reasonable doubt. No negative inference can be drawn if the defendant does not testify.
Supreme and Family Court are both civil courts. That means the victim is the one prosecuting the family offense will decide what evidence to present, will decide whether to settle or have a hearing. There is no right to a jury, and the burden of proof is that of a civil lawsuit, being the preponderance of evidence. There is no right to invoke the 5th amendment right against self incrimination, and should a respondent choose not to testify, the court will draw a negative conclusion as to why there was no testimony.
8. Temporary Order of Protection
A temporary order of protection is issued by the court before a final determination is made as to the underlying family offense. The court has the authority to issue temporary orders if it concludes there is a credible basis in the request for an order of protection, and that an order of protection cannot wait until a full hearing. Issuance of a temporary order of protection does not mean the underlying allegations are proven, but in all other respects the temporary order has the same effect as a final order. A temporary order of protection can be issued ex parte, but courts will attempt to give the respondent notice of the court date. When an order of protection is issued ex parte, many judges will try to give a short court date to allow the respondent to appear and hear before deciding whether or not to extend the temporary order.
9. What an Order of Protection Does
Normally, when police are called to intervene in a domestic situation, the police offers will make a judgment call in deciding whether or not to arrest someone. When an order of protection is present, and if it appears that the order is being violated, the police have probable cause to make an immediate arrest.
The article "Orders of Protection: Family Offense Proceedings in Supreme and Family Court" is provided as a free educational service by J. Douglas Barics, attorney at law, and does not constitute legal advice. Legal advice may only come from a qualified attorney who is familiar with the facts and circumstances of a specific case.
If you have any questions or comments, please feel free to contact Mr. Barics at firstname.lastname@example.org or (631) 864-2600. For more articles and information, please visit www.jdbar.com.
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