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Order of Protection Series (Part 3): Custody and Orders of Protection, and Time Limits

Finger-Pointing-300x200Welcome back to another issue in our family law Order of Protection Series. This guide follows the similar guides I’ve created in the past for child custody and equitable distribution. If you’d like to learn more about custody, orders of protection, and the other issues mentioned here, you can find more blogs here and pages on my website.

Orders of protection can be a complex part of family law. Though they’re similar in some ways to restraining orders, these orders don’t necessarily lead to the same legal actions. Although, orders of protection do require the person in question to avoid certain activities.

This guide aims to make complex concepts easier to understand in family law. For instance, in this segment, we’ll be talking about custody orders, and how long orders of protection might last when issued by the family court.

Can Orders of Protection Be Issued in Custody cases?

Orders of protection are issued in instances wherein a person accuses another family member of committing a family offense. This can include anything from stalking, to threatening a person, to actual violence. Orders of protection may be issued by the Supreme or Family courts, and they can be issued as part of a divorce case, or a child custody case.

  • Orders of protection can be issued temporarily by the Family Court on “good cause” as part of a custody case. Usually, when this happens, the temporary order can stay in effect for as long as the case is pending. Notably, the length of time a temporary order of protection is in place will not necessarily have an impact on the length of the final order of protection if one is given.
  • Permanent orders of protection may be issued as part of a custody or divorce case to assist with maintaining the conditions of a certain order. As is standard in most child custody matters. Whether the order of protection is proper will depend on what is deemed to be in the best interests of the children.
  • An order of protection may require a party to the case to obey specific conditions like staying away from a parent or children or refraining from an activity that might risk the welfare of the child. Orders of protection may apply to a previous spouse or a parent of a child, but they can also apply to other household members deemed as family.

Are Orders Issued in Custody Cases Different?

There are some differences to the kind of orders issued in a child custody case for family protection, and the other standard orders of protection available in New York.  In a custody case, a family offense doesn’t have to be alleged or proven, whereas it would in typical cases for a final order of protection.

  • The courts are required to exercise discretion carefully when granting or denying an order of protection. It’s important not to levy one of these orders against someone without the proper basis to do so. The burden of proof in these cases is often different, however.
  • To deliver a final order of protection, allegations must be proven by the preponderance of evidence. The proof must demonstrate that the issuing of an order of protection is within the best interests of the children.
  • The duration an order of protection can last for in a custody case may differ too. In family offense cases, orders of protection are usually given for up to two years, but they can be longer if a violation of an order of protection takes place or there are aggravating circumstances. Longer orders may be available for those who have been the victim of physical injury, for example.
  • Orders of protection in a custody case can be in effect until the case is over initially. A final order of protection might be in effect until a child turns 18.

How Long Do Orders of Protection Last?

The length of an order of protection can depend on various factors, including whether the issue was addressed in a custody case, or a standard family offense case. Temporary orders of protection and final orders of protection have different lengths.

  • Temporary orders of protection are issued by the family and supreme court, often for as long as a case remains pending with the case. The final order of protection given after a case is over may not take the length of the temporary order into consideration.
  • Some courts only make the temporary order last for the length of time until the next court appearance is scheduled. Usually, the order will then be continued until the next appearance again if the case continues to be pending. A party can discuss options with their attorney to determine how long an order of protection can be asked for.
  • The most common way to resolve a family offense petition is to ask for an order of protection with no admission, or withdrawing the petition, dismissing the petition before or after trial, or by finding a family offense petition has been committed.
  • The order of protection issued at the end of the case will become a permanent order of protection. This doesn’t mean that the order lasts indefinitely, but that it will remain in place for a length of time after the case is over. In most cases, permanent orders of protection last for up to two years.
  • Longer protection orders can be given if the court finds that certain situations exist or that the behavior explained in a petition violates a previous protection orders. If there is cause for an order of protection to be extended, the courts can consider the right move by considering the available evidence.

If you have concerns or questions about the length of orders of protection in a family case, or how they work, please contact me at your earliest convenience. I’m available if you want to contact our office to schedule your initial consultation.  Up to the first thirty minutes is free. Our number is (516) 333-6555.

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