Order of Protection Series (Part 5): Immediate Hearings and Removal from Home

Couple-Staring-300x200Welcome back to this series of bullet point guides on the topic of “Orders of Protection”. In this bullet point guide, I’m aiming to provide you with some useful information that may be helpful when making decisions about your Order of Protection case.

Today’s segment of the bullet point guide series examines what happens when someone needs to be removed from a home as part of an order of protection case. We’ll also be looking at how immediate hearings might be necessary in these cases, and why this is crucial.

Removal from Home in Family Offense Cases

To access an order of protection in the New York courts, an individual must properly set forth, through their order of protection lawyer or on their own, in their petition that there has been a “family offense”, which requires this order to be issued. There are different kinds of orders of protection. One is a “limited order” or “refrain from order” which asks the person in question to stop certain acts, like stalking or harassment. In these cases, communication with another party may also be stopped. An alternative is a full “stay away” order.

  • With a limited order of protection, the party in question will not necessarily have to stay away from the protected person’s place of employment or home. However, a full stay away order may ask the person to remain away from the victim’s home or place of employment.
  • When someone files for an order of protection with details of a family offense, the courts will typically order “temporary” orders of protection. In some cases, this will require one person to stay away for another until the full matter is addressed. In some cases, this may require removal from a person’s own home.
  • A person may be removed from their home with this kind of order of protection, even before they’ve had chance to defend themselves against any allegations. The respondent in this case may be entitled to an immediate hearing, as it will be important to determine whether this person should not have access to their own property.
  • Lawyers and parties in this case will need to prepare for an immediate hearing, where they can discuss the needs of both parties, and access an order from the judge. When an order requires someone to be removed from their home, this is a serious matter.

Handling New York Orders of Protection

Orders of protection may be granted to spouses or children of a specific party as part of divorce proceedings, or as part of a standalone case. An order of protection case that involves a family offense may be handled by the family courts, whereas it’s also possible to obtain an order of protection through the supreme court.  Orders of protection might be a part of a divorce case.

  • Orders of protection, whether immediate or otherwise, are often resolved in family court with an agreement for an order of protection, without admission, for a specific period of time. The party protected by the order might end up being the petitioner, or their child. In circumstances when a person needs to be removed immediately from a home before a hearing, the hearing is often scheduled quickly.
  • Usually, the courts will require serious allegations to remove someone from their home in an order of protection case, but this may be necessary in some instances. For instance, if domestic violence is present within the family offense case, the courts may need to issue a temporary order of protection to reduce the risk of further violence or injury.
  • When orders of protection are issued which remove a person from their home, the individual removed from the property must have the earliest possible opportunity to present their side of the case. If the courts allow for the person in question to be removed from the home, this may have an impact on the divorce or other cases such as child custody and parenting time.
  • In the case where an order of protection is issued as part of a build up to a divorce case, it’s important to note that the impact of the order of protection case may not necessarily influence property ownership, use and occupancy or equitable distribution in the divorce. If someone is removed from the family home, from any reason, this doesn’t necessarily mean the courts have decided who has ownership over the home.
  • Even if a person is removed from the home, their ownership of the property will be considered in full by the courts when it comes to the equitable distribution of property during the divorce case.
  • To fully protect yourself in an order of protection case, regardless of which side you’re on, it’s important to seek the right assistance from a family law and/or divorce attorney who understands your situation fully. Make sure that you seek assistance as soon as you can, particularly if you are concerned that your partner might attempt to have you removed from the family home or you are a victim that needs an order of protection.

If you have any questions or concerns about the issues raised above, please reach out for a free initial consultation (up to the first thirty minutes are free). We can offer this consultation via phone and video chat, or in person. You can get in touch via our online form, or over the phone.

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