Can an order of protection be a part of a custody case?

Parents FightOrders of protection can be issued by either the Family Court or the Supreme Court as part of a child custody case or divorce in New York. My previous blog articles concerning orders of protection in family law matters focused on the most common method that orders of protection cases occur against family members, outside of criminal prosecutions, which is called a Family Offense proceeding.  Later in this article I will discuss some of the differences between the orders of protection in custody cases from Family Offense petitions.  First, though, I will outline the order of protection authority given to the courts in child custody cases pursuant to the New York Family Court Act (for family court cases) and the New York Domestic Relations Law (for Supreme Court matters like divorces).

On good cause, the Family Court Act authorizes temporary orders of protection to be issued as part of a custody case. The temporary order may stay in effect for as long as the case is pending.  Under the law, the length of time any temporary order of protection is in effect does not need to be a consideration on how long a final order of protection should be in force.  A final order, or permanent order of protection, can be issued as part of a divorce or custody case to help with or as a condition of the judgment of divorce or custody order.  As the standard is in all child custody matters, whether or not the order of protection is proper would be controlled by the children’s best interests.

The order can require a party to the case to obey certain conditions of behavior like to: stay away from the children or parent; refrain from activities that put a child’s welfare at risk; take an educational class; pay for treatment or medical care that stem from the reasons that require the order or protection; pay lawyer fees of the protected party; not injure a pet of the child or a parent; to give back identification of the other party like drivers licenses, passports, etc.; observe other conditions required to protect. The orders of protection contemplated in this article are between family members, in a custody case, as defined in the law.  Family under the law includes spouses, former spouses, household members, and people that have a child together among other specific situations.  The law also allows the court to give the protected party authority to terminate a lease under the Real Property Law.

So, what is different about orders of protection issued as part of custody cases or in the judgment of divorce from the family offense petition orders of protection? One is that in the former a family offense does not have to be alleged or proven whereas a family offense (crimes and violations of the Penal Law) must be alleged and proven, for a final order of protection, in the latter.  Please see my prior blog entries about orders of protection for more information about family offenses.  But the courts should properly exercise discretion, which is subject to appellate review, in granting or denying an order of protection.  In other words someone should not have an order of protection levied against them without a proper basis.  Allegations alone should not be enough.

The burden of proof is different as well. For a final order of protection to issue in a Family Offense petition, the allegations must be proven by a preponderance of evidence (more probably true than not).  Since the orders of protection herein are part of child custody cases, as mentioned, the burden of proof for these are the best interests of the children.  For example, an appellate court has held that the tension between the parents that adversely effected the children justified an order of protection.

The duration of the order of protection is a big difference as well. Orders of protection in Family Offense cases are generally for up to two years and can be longer only if there is a violation of an order of protection or “aggravating” type circumstances like physical injury, a weapon, or past violations among other reasons.  The orders of protection as part of a custody case or judgment of divorce have no such time limitation.  An order of protection that was in effect until a child turned eighteen years old has been found to be proper.

As with most areas of matrimonial and family law there are many nuances to order of protection cases. For more information about different family law, matrimonial, mediation and collaborative law situations please click around this blog, our website or call about your free initial consultation.  We would welcome the opportunity to see if we can help.