COVID-19 Update: How we are serving and protecting our clients.

Articles Posted in Order of Protection

A family offense petition, or order of protection, can be filed in New York on the behalf of a child when a parentsuspects, or has evidence of an act of abuse or neglect initiated by another family member. To act within a child’s best interests, the New York courts must consider who should be permitted to file a family offense petition on the behalf of that child. The court inherently recognizes that a parent will always have the standing to commence a proceeding of family offense on the behalf of his or her child, under New York Family Court Act Article 8. However, grandparents and other individuals who share the same family home do not always have the same rights.

When dealing with cases that ask the court to re-consider issues of child custody and visitation, it’s important to remember that, in an effort to act in the best interests of the child, the court will not make changes to pre-existing custody orders unless there is evidence of a substantial change in circumstances that requires a need to look at whether modification is in the best interests of the child. As such, when it comes to family offense petitions made on the behalf of the child, the court must also be equally stringent about who it believes to be an appropriate individual to launch a complaint on the behalf of that child.

Usually, only a parent of the child, as recognized by the law, will be able to act on the behalf of that child when presenting an issue in court. For instance, in a case entitled Hitchcock v. Kilts, 772 N.Y.S.2d 386 (N.Y. App. Div. 3d Dep’t 2004), the family court awarded sole custody of two children to the mother during the divorce, but gave the father visitation rights. During the visitation, the oldest child told his father that his mother had slapped him, dragged him by the hair, and poured Tabasco sauce into his mouth. Those allegations led the father to file a family offense petition which was heard by the court because the father was recognized as an appropriate person to act on the behalf of the child. Though a temporary order awarded custody to the father for a short time, the order was reversed and the original order was reinstated after evidence from both parties had been presented. Continue reading ›

Resolving issues in a New York divorce through mediation is usually less expensive than asking the court to resolve them through trial. However, certain conditions are necessary to mediate matters like property division, spousal support, child custody, and child support. The primary condition that needs to be present is the ability to communicate.  Sometimes a mediator is the very thing that can work to facilitate the communication necessary to resolve the issues needed to be agreed upon to legally separate or divorce.

Unfortunately, many relationships have broken down because of difficulties communicating. When a couple engages in deceit, threats, coercive behavior, or physical violence, the relationship may be too   damaged to have a rational discussion of options, especially with regard to such matters as maintenance and child custody.  Just because any of those aspects exist, does not mean it is impossible to mediate.  As, it all starts with the willigness to try to mediate.  Last week’s blog was about situations where mediation is worth trying, even in high conflict relationships.  If one spouse is phsyically afraid of the other, because of prior domestic violence for example, it is possible that he or she may agree to things in the process of mediation in order to get away from the other spouse.

Couples that have a high degree of conflict or even abuse in their relationships may not be able to communicate with each other in a productive way, but instead they may communicate out of strong destructive emotions like extreme anger (anger is not uncommon with mediating couples or fear. In those cases, mediation is not a good option because peaceful negotiations are not possible.  I should mention, that although past performance is not predictive of future results, I have seen a high success rate in resolving issues for the couples that have agreed to mediate.  But today’s blog is about a case, not one of mine, in which at least one of the parties to a mediation had second thought afterwards. Continue reading ›

Restraining Orders for protection of a person in New York Family Law are called Orders of Protection. It’shelpful to know the proper legal names under each state of what it is people are seeking.  Restraining order and orders of protection (aka protective orders), for example, can mean different things.

Orders of protection in New York may be granted to protect the alleged victims of crimes as part of a criminal case against the accused perpetrator. But, without a criminal prosecution going on, if people are “family” such as: blood relations, share a child in common, are defined as family under the law, members of the same household or in intimate relationships, orders of protection are possible to require a person to stay away from another or refrain from communication or doing certain acts against the protected party. Sometimes people simply want orders of protection but do not wish for the alleged abuser to have a criminal case against them. Please see my other blog entries and website for more information about Family Offenses, and Orders of Protection in family law and divorce cases. I have represented many alleged victims and at other times people accused in connection with order of protection matters. Continue reading ›

The Difference between Family Court and Criminal Court Orders of Protection in New York

An order of protection is an official document issued by the court with the intention to limit the behavior of someone who has been alleged to harm or threaten another person. These orders are used in addressing numerous claimed safety issues, including matters of domestic violence. Supreme courts, family courts, and criminal courts are all permitted to issue orders of protection. So what’s the difference between an order of protection in family court, and one that is issued in criminal court?

First things first, a family court case is not regarded as a criminal proceeding. This means that for an order of protection to be permanently granted in family court, unless an agreement is made for the order, the petitioner would need to prove their case with the assistance of an experienced family law attorney by a “preponderance of the evidence” rather than the higher burden of proof in criminal matters . In criminal cases, if a plea deal has not been made, the case needs to proven “beyond a reasonable doubt” for a final order of protection to be issued. The accused must is convicted of a violation of the Penal Law, which requires a higher burden of proof than is expected in family court. Continue reading ›

People dealing with allegations involving domestic violence, concerning family, as defined under New York law, whether as the victim or the accused, have different forums in New York that they might find handling their case.  Family can be blood relations, people with children in common, and people in intimate relationships.  Please call or see our other blog entries or website for more information on what is defined as a family under New York Law.

Orders of protection may be granted to protect a spouse and/or children by the Supreme Court as part of a divorce or matrimonial proceedings.  An order of protection case, aka a Family Offense, might be started in the Family Courts.  Unlike when someone receives an order of protection through a criminal court, a Family Offense proceeding is not about crime and punishment.  The Supreme Court, Family Courts and the Criminal courts, however, can order incarceration if orders of protection are violated. Continue reading ›

Orders 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. Continue reading ›

Temporary orders of protection are issued by the Family Court (or the Supreme Court in divorce cases) and can last as long as a Family Offense case is pending in the court. Final orders of protection are those that are issued at the end of the case. Family Offense petitions are the method by which order of protection cases are initiated in the New York Family Courts. If the filed petition makes out the elements of a “Family Offense”, the court will issue a temporary order. This initial order is based on the one sided presentation by the applicant and requires the other side, or respondent to observe certain behaviors to protect the alleged victim. The respondent will have a right to contest the petition. Each county has different procedures on the length of the temporary order of protection which I have seen in my practice as a New York City, Suffolk County and Nassau County Order of Protection Lawyer.

For example, some courts make the temporary order for only the length of time until the next court appearance.   Usually the temporary order will then be continued again until the next court appearance if the case remains pending. Other venues issue the temporary order to last for six months or a different time period. This does not mean that the order will definitively stay in place for six months or the other time period as court appearances will most likely be scheduled for sooner time periods than the order is set to expire. If the case is still not resolved before the order expires then, usually, the court will extend the temporary order while the case is still unresolved. Some courts will extend or continue the orders automatically, however, others will only do so upon a request. Therefore, it is important for a party or better yet, their lawyer to pay attention to when an order is set to expire so appropriate requests can be made to the court to extend it or arguments be made against the order continuing or being extended.

The common ways to resolve a Family Offense petition is by an agreement for an order of protection without an admission; withdrawal of the petition; dismissal of the petition before or after a trial; or the finding that a family offense petition has been committed and an order of protection put into place. The order of protection that is made at the end of a case becomes a permanent order of protection. It does not mean an order of protection that will be in place forever, rather it is permanent as it remains in place for a length of time after the case is over in contrast to a temporary order of protection. Continue reading ›

In 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.  Continue reading ›

No matter how amicable or contentious a divorce case was, issues can arise after judgment that can be dealt with in the Supreme Court.  As a Nassau County Divorce Lawyer, I frequently defend against or bring applications in the Family Courts in Long Island, New York City and the surrounding regions of New York involving post judgment child support, child custody, maintenance or orders of protection issues for both my ex-husband and ex-wife clients.  The Supreme Court, however, is usually available to deal with these post judgment issues as well.

Sometimes, the issues must be dealt with in the Supreme Court such as for enforcement of a property settlement, an attempt to vacate certain terms of the divorce, or in the event that exclusive continuing jurisdiction is reserved in the Supreme Court for future matters involving child support, child custody, or maintenance. Often times the Supreme Court is selected to deal with issues over the Family Court as the Supreme Court can deal with the issues as part of one case, while the Family Court requires the issues to be dealt with in separate cases.  For example, support issues are assigned to a Support Magistrate while custody issues may be assigned to a Referee or a Judge in the Family Court.   This blog entry is intended to outline some of the more common issues that the Supreme Court can deal with that come up soon after or many years after a couple has divorced.  More specifics about the specific areas of law are covered in other blog entries and on my website.

Contempt or enforcement applications often come up after a divorce.  These applications are done when either the former wife or husband is asking the court to punish the other party for their disregard of the order or to help them enforce the terms of the divorce.   The contempt allegation may be that one of the parties violated:  an Order of Protection that was issued as part of the divorce; the provisions involving a property settlement; the requirement to sell the marital residence; the custody and parenting time provisions in the divorce; the terms of the payment of child support or maintenance (formerly known as alimony); or other provisions that were a part of the terms included or incorporated into the Judgment of Divorce.  Remedies for contempt could be money damages, incarceration, modification of the previous terms, or the award of attorney fees among other possibilities. Continue reading ›

People that are considered family, by the law, have the ability to get orders of protection against other family members in New York Family Court (or New York Supreme Court while in a divorce) if a Family Offense has been committed by the person against whom the order of protection would be made.  Otherwise, orders of protection can be given in favor of victims or alleged victims of crimes against the perpetrator or the defendant in a criminal prosecution.  What that means is that family members have the unique ability to get orders of protection against their family members without having the person go through the criminal prosecution system.  Of course, the victim, or alleged victim, has the right to seek a criminal prosecution instead, or in addition to, seeking the order of protection through the Family Court or Supreme Court.

If a person properly alleges a Family Offense in the petition, the court will usually grant a temporary order of protection, just based on the one sided presentation by the petitioner, for the accused to either stay away from the protected person(s) or to refrain from doing prohibited acts against that person (such as harassment, disorderly conduct, assault, etc.).  Frequently, agreements are made to settle an order of protection case for an agreement to have an order of protection in place for a specified period of time such as six months, one year, or two years with the accused not admitting any of the allegations.  If there is not an agreement for an order of protection, the court must hold a hearing to determine based on a fair preponderance of the evidence whether a family offense has been committed.  This is a much lower burden of proof than is required in a criminal case which is guilt beyond a reasonable doubt. If the court finds a family offense was committed then the court must decide what order of protection would be appropriate to issue on a “permanent” basis which means for some duration after the completion of the case.

So, you might be wondering what is a family offense.  A family offense is defined as conduct between family members that are crimes or violations under the New York Penal Law. Section 812 of the New York Family Court Act has the list of crimes and violations that qualify as Family Offenses.  In order for a New York Family Court to award an Order of Protection after the filing of a Family Offense petition, it must find that one of these specifically enumerated Family Offenses was committed.  Since these are activities are crimes and violations under the Penal law, it is possible that the alleged perpetrator could also face criminal prosecution.  The more detailed elements of each of these family offenses can be found in the Penal law.  But remember, a family offense proceeding in family court is not a criminal prosecution, it is a civil proceeding that is usually about obtaining an order of protection not having someone put in jail.  Although, if someone violates the order of protection, jail is a distinct possibility. Continue reading ›

Contact Information