Can I get an Order of Protection against family?

OLYMPUS DIGITAL CAMERAIn this blog I will attempt to outline some of the elements of common family offenses, which I have seen in my practice as a New York City and Long Island Order of Protection Lawyer.  If a family offense is proven, it usually entitles the victim to an order of protection.  Under the New York Family Court Act, if someone that meets the definition of Family under the Act commits a Family Offense against the other then there should be a finding that a Family Offense has been committed and a decision as to what order of protection, if any, is appropriate among other possible dispositions.  Orders of protection might direct a person to stay away from the protected individuals and/or to refrain from committing certain acts against them, among other things.

At a hearing, facts that are not alleged in the petition, if properly objected to, may be inadmissible to prove that a family offense was committed.  Only relevant, competent and material evidence should be admitted to prove or disprove a family offense.  Each case is different and whether or not a Family Offense was committed and the appropriate action to take if there was an offense, is up to the discretion of the trier of fact or judge in each particular case within certain evidentiary requirements and standards.  Usually Family Offense cases are heard in the New York Family Courts.  They may, however, also be heard in the Supreme Court such as during a divorce case.  Often times the Family Offense case may initially be assigned to a Referee, instead of a judge, who can be given the authority by the consent of the parties to be the judge that decides the case.

Family offenses are enumerated in the New York Family Court Act and are violations and/or crimes under the New York Penal Law.  A family offense proceeding in Family Court or Supreme Court, however, is not a criminal prosecution and thus is usually simply about whether or not an order of protection should be issued.   Again, the following is not a complete list as there are many more acts or crimes enumerated under the law, but the intent is to illustrate of what might constitute some of the more common. 

Harassment in the Second Degree, prohibits activities like:  attempting or committing physical contact; following a person in a public place; or engaging in a course of conduct or doing things which alarm or seriously annoy another, if there is intent to harass, annoy or alarm another person.  One example of Harassment in the Second Degree would be one spouse pushing another during an argument.  A little more serious allegation would be Assault in the Third Degree.  This family offense covers situations where someone causes an injury to another by negligence with a dangerous instrument, recklessness or with intent to injure them.  Bruising a family member with a punch can qualify as assault.

Another common family offense is disorderly conduct.  This family offense can come about when someone intends or recklessly creates a risk of public inconvenience, annoyance or alarm by:  fighting; making noise; using abusive or obscene language in public; and congregating in public and refusing to listen to a lawful police order to disperse to name some facets of disorderly conduct.  Screaming obscenities at a spouse in the park might constitute disorderly conduct.

Stalking in the fourth degree can consist of someone with intent to engage in a course of conduct connected to a specific person and knows or should know that the conduct is likely to:  cause fear to the physical health or safety of the person or their family; cause material harm to the metal health of the person by following, telephoning or starting contact with a person when the actor was already told to stop this conduct; cause the person fear that their job is threatened by appearing, telephoning or starting contact at the person’s workplace after being told to stop this conduct.  If someone repeatedly calls and hangs up on the other parent of their child late at night after being told to cease they might be found to have committed Stalking in the fourth degree.

Menacing in the third degree is using physical menace to intentionally put or try to put someone else in fear of death, imminent serious physical injury or physical injury.  A husband that holds his hands up as if he is going to choke his wife could be found to have committed the Family Offense of Menacing in the third degree.  A final example, of a common family offense is Aggravated Harassment in the Second Degree which can occur if someone intends to harass, annoy, threaten or alarm another she or he communicates with them by phone, mail or another form of written communication in a way likely to result in alarm or annoyance or by causing someone else to initiate that communication.  A wife calling her husband and threatening to kill him might constitute the Family Offense of Aggravated Harassment in the Second Degree.

Once again, this is not a complete list of Family Offenses and the elements listed are not exhaustive either.  This entry was meant to be illustrative of some frequent types of reasons that a family member can get an order of protection against another family member without there being a criminal prosecution.  Feel free to contact my office for a free initial consultation about Orders of Protection.  It would be my pleasure to speak with you about it.