For a while now, I’ve been working on bullet point series on my website as a way of delivering useful information about family law in an easy-to-consume format. Recently, I finished a serious on child support. Today, I’m starting a new series which will revolve around orders of protection and family offenses.
Orders of protection are an important component of family law, and something that is available to “family members”, which could include not only related people but those that are or were in intimate relationships or have a child or children in common. Sometimes they come up in divorce cases as well. However, just like many aspects of family and divorce law, the order of protection can also be a little tricky, and at times challenging to get your head around.
Today, we’ll be looking at temporary orders of protection, or pendente lite orders in a divorce. We’ll also be discussing the concept of surveillance and whether the use of a PI violates an order of protection.
What is a Temporary Order of Protection?
Orders of protection are designed to keep people safe in a situation where they may be under threat by another person’s actions, or potential behaviors. There are cases where an order of protection may be requested by your divorce lawyer for an extended period of time, and cases where the order may only be temporary. In the case of a pendente lite (while a case is pending) situation, an order of protection may well be issued only until the full case can be heard, and a long-term decision can be made.
- Pendente lite motions are common requests in divorce cases. These motions are requests made by parties within the divorce case, to request some kind of relief while the case is ongoing. For instance, a party may request for a child support order to be granted while the case is ongoing so they can afford to continue paying for the child’s needs and get the legal support they require.
- Translated to mean “when the act is pending”, Pendente Lite orders aren’t intended to settle a case in its entirety. Instead, these orders basically tide things over until the rest of the case can be decided. There are various things you can ask a court to rule on as part of a pendente lite motion. If you’re concerned about your safety as you await a divorce, then requesting an order of protection temporarily may be the best next step (although some New York Supreme Court judges, where divorce cases are heard, believe orders of protection are best dealt with in family court).
- Pendente lite orders of protection only require a person to abide by a certain series of rules until the divorce case has been decided, and a “final” order of protection (that just means at the end of the case, not necessarily forever) has been issued, or removed alongside it. Temporary orders of protection are often based on a “family offense” (certain enumerated crimes under the New York criminal law aka Penal Law) being alleged by the person requesting the order.
- Orders of protection can be given in favor of a party, as well as the party and/or their children in different circumstances. When requesting an order of protection, it’s important to get guidance from the right professional, if you can, to ensure the request is issued correctly.
Surveillance and Orders of Protection
For some people, the biggest issue with managing an order of protection is understanding what violates it. For instance, I’ve been asked in past cases whether hiring a Private Investigator or using surveillance on someone is a violation of an order of protection.
- In a previous published New York case, a husband filed for a motion of summary judgment to dismiss a wife’s petition that alleged he had violated her order of protection. The order had been entered to request the husband to stay 1,000 feet away from the residence and job of the wife, unless he was engaged in court-ordered visitation.
- The wife claimed that the husband had retained a PI to record the wife, and the DVD showed that the wife had engaged in an affair with someone from where she worked. However, the wife also said that the husband had no reason to send a PI to follow her, and that he was attempting to humiliate her, or cause her to lose her job.
- The wife argued that the husband hired the PI after filing counterclaims that she was having an affair. In the summary judgment motion, the wife didn’t dispute the claim that she was having an affair.
- The court explained to both parties that it is required to obey the order asking the husband not to commit certain acts. However, the court also explained that it was not improper for the husband to obtain the services of a PI for a proper purpose.
- The husband had the right to gather evidence to the date of the divorce trial to support his counterclaims. The court ruled that given the circumstances, hiring the PI wasn’t an example of the husband breaking the requirements of the order of protection.
- Notably, the court also said that if the husband had requested a PI to follow the wife with the intention of getting material that would cause her to lose her job, this would potentially qualify as harassment. However, the fact that the person whom the wife was having the affair with was a priest that was still giving mass to the family meant that there was a legitimate and justifiable reason for the husband to talk to the church officials about his wife’s behavior.
If you have any questions about the issues covered in this guide, please browse through this website for more information about divorce law, orders of protection, and the family courts. You can also get in touch with my office via telephone or through the online form on this website to set up a consultation to discuss your own case. Up to the first thirty minutes of the initial consultation is free.