How are New York Order of Protection cases done in Family Court ?

People that are considered family, by the law, have the ability to get orders of protection against other family members in New York Family Court (or New York Supreme Court while in a divorce) if a Family Offense has been committed by the person against whom the order of protection would be made.  Otherwise, orders of protection can be given in favor of victims or alleged victims of crimes against the perpetrator or the defendant in a criminal prosecution.  What that means is that family members have the unique ability to get orders of protection against their family members without having the person go through the criminal prosecution system.  Of course, the victim, or alleged victim, has the right to seek a criminal prosecution instead, or in addition to, seeking the order of protection through the Family Court or Supreme Court.

If a person properly alleges a Family Offense in the petition, the court will usually grant a temporary order of protection, just based on the one sided presentation by the petitioner, for the accused to either stay away from the protected person(s) or to refrain from doing prohibited acts against that person (such as harassment, disorderly conduct, assault, etc.).  Frequently, agreements are made to settle an order of protection case for an agreement to have an order of protection in place for a specified period of time such as six months, one year, or two years with the accused not admitting any of the allegations.  If there is not an agreement for an order of protection, the court must hold a hearing to determine based on a fair preponderance of the evidence whether a family offense has been committed.  This is a much lower burden of proof than is required in a criminal case which is guilt beyond a reasonable doubt. If the court finds a family offense was committed then the court must decide what order of protection would be appropriate to issue on a “permanent” basis which means for some duration after the completion of the case.

So, you might be wondering what is a family offense.  A family offense is defined as conduct between family members that are crimes or violations under the New York Penal Law. Section 812 of the New York Family Court Act has the list of crimes and violations that qualify as Family Offenses.  In order for a New York Family Court to award an Order of Protection after the filing of a Family Offense petition, it must find that one of these specifically enumerated Family Offenses was committed.  Since these are activities are crimes and violations under the Penal law, it is possible that the alleged perpetrator could also face criminal prosecution.  The more detailed elements of each of these family offenses can be found in the Penal law.  But remember, a family offense proceeding in family court is not a criminal prosecution, it is a civil proceeding that is usually about obtaining an order of protection not having someone put in jail.  Although, if someone violates the order of protection, jail is a distinct possibility.

A next reasonable question is what relationships qualify as family to be able to maintain a family offense proceeding for an order of protection?  The Family Court Act defines members of the family or household entitled to proceed as:   persons related by consanguinity or affinity; persons legally married to one another; persons formerly married to one another regardless of whether they still reside in the same household; persons who have a child in common regardless of whether such persons have been married or have lived together at any time; and persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time. Factors the court may consider in determining whether a relationship is an “intimate relationship” include but are not limited to: the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an “intimate relationship”.

This office frequently represents Petitioners and Respondents in Family Offense matters.  Feel free to call to discuss. Please also click around our website and blog for more information about different family law, collaborative law, mediation or matrimonial law topics.  As always, interested people can call about their free initial consultations.  It would be our pleasure to speak with you about it.

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