When you are thinking about filing a Petition seeking Orders Of Protection Family Court, it is important to know the factors to consider. To begin you can only file for an Order of Protection in Family Court if you are related to the Respondent in some way or have a child in common. For instance, when you file a Petition seeking an Order of Protection you must place a check in a box in response to the following question: “The Respondent and I are related as follows:”
1. We are married
2. We have a child in common
3. We are related by blood or marriage
4. We are in an intimate relationship (not casual, social, or business acquaintances);
5. We were in an intimate relationship (not casual, social, or business acquaintances);
6. We were married
7. We are parent and child
If you cannot check off one of those boxes, you cannot file a Petition seeking an Order of Protection in Family Court. It is important to note that this does not mean you cannot obtain an Order of Protection; it means you need to obtain the Order in Criminal Court. That discussion is for another blog post but you can check out more by visiting my Criminal Defense vlogs.
Article 8 Violations For Orders Of Protection Family Court
Additionally, one can only file a Petition for an Order of Protection if the Respondent, the person against whom you are seeking to obtain an Order of Protection, has committed an Article 8 Violation against you, your child, or children. When you file a Petition, you must check off a box or boxes in response to the following question: “Respondent committed the following offense (s) against me and/or my children, which constitute(s):”
1. Disorderly conduct
2. Harassment in the First or Second Degree
3. Aggravated harassment in the Second Degree
4. Assault in the Second or Third Degree
5. Criminal mischief
6. Sexual abuse in the Second or Third Degree
7. Strangulation
8. Menacing in the Second or Third Degree
9. Reckless endangerment
10. Stalking
11. Attempted assault
12. Sexual misconduct
13. Forceful touching
14. Criminal obstruction of breathing or circulation
The 14 items listed above are considered Article 8 violations in Family Court qualLaw. Although someone may curse at you, and say horrible things it does not qualify for an Order of Protection. If it does not fall under the category of an Article 8 violation, you will not be able to obtain an Order of Protection against that individual. Cursing someone out or yelling at them without threatening them is protected speech and will not get you an Order of Protection.
The Procedure To Obtain An Order Of Protection
1. You either hire an attorney to file a Petition on your behalf or go down to the Family Court Clerk. You will be required to complete the appropriate paperwork and fill out the Petition yourself. It is important to note that in most instances, you are on your own when filing a Petition without an attorney. In other words, if you do not do it right, the Petition may be thrown out because you did not fill out the Petition properly. Even if you hire the best lawyer on Long Island, your Petition may be dismissed if it was not done properly.
2. Once your Petition is filled out and processed by the Family Court Clerk, you will go before a judge. The judge will hear your application and decide if you are entitled to an
Ex-parte Order of Protection. An Ex-parte Order of Protection means one-sided because the Respondent has not yet been served the Petition. Therefore he or she does not appear in Court with you the first time.
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3. If your Petition is dismissed, you will go home empty-handed. If your Petition is granted you will need to speak with the Sheriff’s office in the building. It is necessary to give them all of
the necessary information in order to serve the Respondent as soon as possible.
4. If you are given a Temporary Order of Protection by the Judge or Referee you will be given a follow-up date for your matter. You will have a conference where the Respondent will be present with you in Court.
5. If at that Court conference or conference, it is apparent that the matter will not settle, the Judge or Referee will give you a hearing date. The matter will be tried, and a Judge will make a decision on whether or not you keep your Order of Protection or it ceases. There are two types of Orders of Protection one can seek, either a “stay away” or a “refrain from” Order Of Protection.
Types Of Orders Of Protection
- Stay away Order of Protection: In this order type the Respondent is ordered to stay away from you and not have any contact with you.
- Refrain from Order of Protection: In this order type the Respondent can be around you, but not able to threaten or intimidate you.
Another way the matter can be resolved is by settlement where you and the Respondent agree to settle the matter either by withdrawing your Petition or the Respondent agreeing to some type of Petition going forward.
Whether you are the Petitioner or Respondent it is in your best interest to hire an experienced and knowledgeable attorney that has handled numerous matters involving Orders of Protection. If not, you run the risk of either not getting the Order Of Protection you are seeking or having an Order Of Protection entered against you which could affect you adversely.
If you have an Order of Protection against you, it could affect your visiting or even seeing your children. In addition, a person is unable to possess any weapons with an Order of Protection against them which could affect their career. If you are in law enforcement or are required to carry a weapon, this could affect your livelihood.
If you find yourself in need of an Order of Protection or someone has filed a Petition seeking an Order of Protection against you I recommend contacting my office. This action is your first step in protecting your rights. We offer a free consultation to discuss your rights and how you should proceed.
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Do you need legal representation concerning a divorce or Family Court matter? Contact my office to set up a free consultation by calling 631-588-3155.
I have handled thousands of Family Court Matters in my 33-year career. Not to mention countless hearings involving Orders of Protection. I am certainly in a position to help you with your matter. Check out my book about divorce and family law titled Divorce: A Practical Guide. The book can be purchased on Amazon.com
