Immediate Hearing if Removal From Home for Family Offense Order of Protection

Unhappy-couples-300x200The recent issues caused by COVID-19 have surfaced some common questions about family court cases, and what kind of issues require immediate attention. For instance, if a person was removed from their home because of a temporary order of protection, would this require an immediate hearing to ensure that each person is the case is properly protected?

For related people, and people who have been in an intimate relationship before, the Family Court can offer order protections when someone has a claim to being a victim of a Family Offense. The concept of a “family offense” can be difficult to understand, as there are many different levels to family offense cases. A broad description for this matter would identify family offenses as specific acts defined by Penal law and committed against members of “family”.

Family, defined by the New York Family Court Act, can include everything from obvious family relationships, to boyfriends, girlfriends, and people with children in common. The term “family” might also refer to people living in the same household. A person seeking an order of protection would need to file a petition with the Family Court and highlight the offenses that were allegedly committed by the “family” member.

It’s possible for people to obtain orders of protection against family and non-family members in criminal court if law enforcement brings criminal charges against someone. Family offense petitions, however, are prosecuted by the person who believes they are the victim, parent, or guardian of the victim, usually with the help of an order of protection lawyer. These cases are not about criminal convictions and punishment for crimes. These are civil proceedings that address whether a family offense has been committed and, if so, what sort of protection is necessary.

Understanding the Nature of Family Offense Cases

In cases of family offenses, there are two kinds of orders of protection to consider. The first is a limited order of protection which directs the person in question to refrain from certain acts. The order might request the respondent to refrain from harassment, disorderly conduct, or stalking. In some cases, these orders may even request that communication with the protected party is stopped. A limited or refrain from order of protection does not require the respondent to stay away from the protected party or the protected party’s home or place of employment.

The alternative form of protection order is a full or “stay away” order. This can require a person to stay away from the victim, the person’s home, and place of employment. When someone files an offense petition that details a family offense, the court will usually grant a temporary order protection, just based on their one—sided presentation. In some cases, this requires someone to be vacated or removed from their own home.

In these cases, it is possible for a person to be removed from their home prior to having a chance to defend themselves against the allegations. The Respondent in that case may be entitled to an immediate hearing to see if they should be deprived of the right to their own property. This immediate hearing is based on the due process rights of people not to be deprived of their property without receiving due process. What this means for lawyers and parties is that whichever side of this case one finds themselves on, they would be wise to prepare for the possibility of an immediate hearing. For all practical purposes, hearings are trials.

At the time of writing for this blog, the courts were closed due to the COVID-19 pandemic, however they were open for some emergency and essential matters. New filings for even “non-essential” cases are going to be accepted, however, in the coming week. Family offenses, though, are regarded as essential matters. This means that petitions were still being filed in court throughout the pandemic, but the proceedings have been running differently. The Family Courts in Long Island and New York City are doing Skype court appearances. Just the other week I ended up doing an immediate hearing via Skype because the Respondent was vacated from the home that he owned and due process required an immediate hearing since he requested it.

Responding Immediately to Family Offense Cases

When a family offense case forces someone to be removed from their home, often even without them having a chance to defend themselves, it is important to realize that a hearing or trial on these issues should come quickly if requested. According to the Matter of Charmaine C. vs. Elizabeth C, the family court does allow courts to issue temporary orders of protection that require someone to stay away from another party and their home. However, when that order of protection leads to an “exclusion”, which forces the party in question to leave their home, the excluded party will be entitled to an immediate hearing.

The reason that immediate hearings are available for these cases is that the person in question will has a right to some share of their property, which should not be deprived without due process. The interest that any person has into their home is significant, whether they’re renting or owning that property. According to the People v. Forman, parties cannot be deprived of their property right without first having a hearing.

In circumstances, where issues may force a person to be immediately removed from a home before a hearing, then a hearing will need to be scheduled immediately after if requested according to the Appellate law. For instance, if domestic violence is alleged in the family offense case, then the courts may have to act by issuing a temporary order of protection to reduce the risk of further injury or violence. However, the court will need to respond with a hearing soon after, so that the other half of the case can present their side of the story, and fight for their right to remain in the family home.

If the courts submit a temporary order of protection and allow a person to be excluded from the home, this does not constitute a determination of who has ownership over the property when it comes to equitable distribution for divorce or separation proceedings later.

If you want to know more about immediate hearings and issues that may occur in family offense cases, reach out to my office today. You can get in touch either via my online contact form, or over the phone at (516) 333-6555. Video conferencing and phone conversations are available in line with the COVID-19 social distancing regulations and even after we are out of this pandemic.

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