The Difference between Family Court and Criminal Court Orders of Protection in New York
An order of protection is an official document issued by the court with the intention to limit the behavior of someone who has been alleged to harm or threaten another person. These orders are used in addressing numerous claimed safety issues, including matters of domestic violence. Supreme courts, family courts, and criminal courts are all permitted to issue orders of protection. So what’s the difference between an order of protection in family court, and one that is issued in criminal court?
First things first, a family court case is not regarded as a criminal proceeding. This means that for an order of protection to be permanently granted in family court, unless an agreement is made for the order, the petitioner would need to prove their case with the assistance of an experienced family law attorney by a “preponderance of the evidence” rather than the higher burden of proof in criminal matters . In criminal cases, if a plea deal has not been made, the case needs to proven “beyond a reasonable doubt” for a final order of protection to be issued. The accused must is convicted of a violation of the Penal Law, which requires a higher burden of proof than is expected in family court.
A family court order of protection is issued as an aspect within a civil proceeding, with the purpose of stopping violence within an intimate relationship or family, and to provide protection to individuals involved. For your order of protection lawyer to obtain the order from the family court, the accuser must have a relationship with the accused that falls under one of the following categories:
- A family member you are related to via marriage or blood
- A former or current spouse
- An individual with whom you have a child
- Someone you have, or have had an intimate relationship with – this does not necessarily mean a sexual relationship, as a relationship can be considered intimate according to factors like how often you see each other, or how long you have known each other.
For proceedings to begin, the accuser must file a form called the “family offense petition”, therefore naming themselves as the “petitioner”, whereas the person the petition is filed against will be called the “respondent”. The accused can challenge whether the allegations are true or even constitute a family offense. Moreover challenges could be made whether or not the people fall under the definitions of “family” required to proceed in family court.
Orders of protection may be granted or issued against people who do not fall into the typical categories of “family” in criminal court. However, to get an order of protection in criminal court – there must be a criminal case. Generally, criminal cases will begin after an arrest has been made, and the person who is accused of the crime will need to be arraigned and brought before a judge. It is crucial to have an experienced attorney on your side. A criminal court order of protection is generally issued as part of the conditions set for the release of a defendant and/or bail in his or her criminal case. The court order for protection in a criminal court may only be issued against someone that is charged with a crime.
In New York, criminal cases are typically dealt with by district attorneys, and the victim is seen as a complaining witness rather than as a party in the case. In family court, the petitioner will initiate the case, whereas in criminal court the government prosecutes. In other words, if a protected party within a criminal case no longer wants to pursue the order of protection, it may not be their prerogative to get the order withdrawn. Rather the defense attorney or prosecutor would have to file a motion. Family Offense proceedings can be withdrawn by the petitioner.
Although pending orders of protection in a criminal court are generally referred to as “temporary orders of protection”, it’s important to note that if one is granted at the closure of the case, it will be called a permanent order of protection. However, the term “permanent” does not mean that the ruling given, or the order of protection will last forever. In family court cases, orders of protection can be issued for just about any length of time, up to two years in most cases, but for as long as five years in cases where there are aggravating circumstances involved. Criminal orders of protection typically vary in length according to how severe the alleged offense is. For example, misdemeanors and violations generally result in shorter orders of protection than felonies.
Most parents who have been accused of something which could lead to an order of protection in family or criminal court find themselves wondering whether they will still be permitted to see their children if an order is placed against them. In either family, or criminal court, it’s important to note that with the help of the right attorney, it is possible for the order given to provide that it is subject to future or existing orders of parenting time or custody. This means that even if the protected party in question is the custodial parent of the children involved, the other person may be permitted contact and visitation in accordance to court ordered parenting time with their children.
Another common question to arise in regard to orders of protection from both family and criminal courts is what happens if an alleged violation of an order takes place? Generally, if the order has been issued by the family court, then the protected party will be able to file a contempt/violation petition. In family court, contempt is punishable by as much as six months incarceration – as family court still treats orders of protection as civil rather than criminal proceedings. A family court order of protection may also be enforced in criminal contexts too. The authorities (police) would need to arrest for a violation, and depending on whether it amounts to a felony or misdemeanor would control the severity of the punishment if contempt is found.
Whether you are dealing with the stress of attempting to have an order of protection issued on your behalf, or are attempting to defend yourself against accusations that are being levied against you – remember that having a highly experienced attorney at your side is the best possible method of achieving the legal goals that are in your best interests. As always, please read through our other web pages and blogs for more information on family law, orders of protection, and more, or call about your free initial consultation. We look forward to speaking with you.