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

Order of Protection Series (Part 2): What Are Orders of Protection and Defining Family

Couch-Couple-300x200Welcome to your complete bullet point guide to orders of protection involving family members, and family offenses. This series is inspired by the other guides I’ve created on this blog to help my clients understand complex topics like divorce, equitable distribution, child custody, and child support.

Orders of protection can be a sensitive area of family law, and something that many people struggle to fully understand. Usually designed to keep people safe in a complex situation, these orders can be crucial to helping someone move on with their life after a marriage or relationship comes to an end.  It is also important for a person to defend themselves when someone is seeking an order of protection against them.

In this part of our guide, we’ll be looking at defining the order of protection, comparing it to a restraining order, and understanding how “family members” and “family offenses” are classified by the New York courts.

What is an Order of Protection?

People considered family according to the guidelines of New York law are able to use their family law attorneys to access orders of protection against other members of the same family when a “family offense” has been committed. Family offenses are certain enumerated violations and crimes defined in the New York Penal Law.

  • Family members have unique opportunities to access orders of protection against family members without having to take the case through the criminal prosecution system. It is also possible for the victim seeking the order of protection to seek the help of law enforcement in addition to, or instead of working with the family or supreme court for an order of protection.
  • Courts will usually grant temporary orders of protection if a family offense is properly alleged as part of a petition for the order. Based on the one-sided presentation of the petitioner, the accused may be required to stay away from the petitioner or avoid doing certain prohibited acts. Agreements are often made to settle an order of protection case after a specific period of time, with the accused not admitting the allegations and no finding by the court that an offense has been committed. The attitude of the accused might be “I don’t need to speak with or see the other person anyway so rather than litigate this case, I will consent to the order as long as I am not agreeing that the allegations are true.”
  • If an agreement isn’t in place that dictates the length of an order of protection, and a family offense has been properly alleged in the petition (not saying proven, just properly written out) the court is required to hold hearings based on the consideration of the evidence available. The court will need to determine whether it’s more likely than not (preponderance of evidence standard) that the family offense in question has been committed. The burden of proof in this case is much lower than that required for a criminal case, where guilt needs to be shown beyond a reasonable doubt.
  • If it is found that a family offense was committed, the court needs to decide which order of protection is appropriate to deliver on a more long-term basis than the temporary order.

How is an Order of Protection Different to a Restraining Order?

An order of protection is often confused with a restraining order by many people. However, orders of protection are a kind of restraining order. It’s also possible for restraining orders to be given as injunction, a court order which prevents a party from doing certain things. Injunctions can be used, among other possible prohibitions, to stop someone from building something, transferring money, or conducting certain kinds of business.

  • Automatic orders in a divorce case are one example of a restraining order. These orders are often followed in New York divorce until they are terminated by court orders, written agreements or otherwise. These restraining orders deal with restraints on transferring money, taking money from retirement accounts and other things.
  • Orders of protection are usually issued as a result of someone making a family offense petition. This petition indicates that the person in question has committed an offense such as stalking family members, threatening them, and so on. An order of protection can also be issued as part of a custody case for child protection.
  • Custody cases are often initiated by separate petitions from proceedings for a family offense proceeding. An order of protection can further be issued as part of an abuse or neglect case in family court. Divorces, which are conducted in the Supreme Court may also involve orders of protection during matrimonial proceedings.
  • In New York, a family offense is defined as behavior between family members dictated as crimes under section 812 of the New York Penal Law family court act. In order for family courts in New York to award an order of protection, it needs to ensure that a family offense was committed. Since these activities are crimes according to the penal law, there’s also a risk that the person may be at risk of criminal prosecution.
  • Family offense proceedings in family court are not criminal prosecutions, they are instead civil proceedings which aren’t about putting someone in jail, fines, probation or criminal records. Although, if someone allegedly violates a protection order then criminal prosecutions and all that is associated with them, including jail time is a possibility.

Defining Family for Orders of Protection

One of the most difficult challenges for people considering orders of protection is what relationships should qualify as family. The family court act defines members of family and the household entitled to orders of protection in a unique way.

  • Family can be people related by blood or affinity, as well as people legally married to each other, people who were previously married, or people who have a child together, it doesn’t matter if these persons have been married or lived together at any time. Persons who aren’t related by blood or affinity and have been in an intimate relationship can also be classified as family, even if these people have not lived together.
  • Factors the courts can consider in determining relationships as being intimate or not include the nature of the relationship, regardless of sexual activities in the relationship. Casual acquaintances and ordinary fraternization between individuals in business or social contexts will not be deemed intimate.

If you have questions about the issues raised above, or you would like to discuss your own order of protection case in greater detail, you can contact me to arrange a free initial consultation up to the first 30 minutes is free, Please feel free to get in touch using our contact form or via phone at (516) 333-6555 to inquire about getting an appointment on our calendar.

Contact Information