Orders of protection (sometimes called restraining orders) can be issued in New York as part of a divorce or custody case, or simply on their own. These types of orders are issued to protect family members from violence and crimes like stalking or harassment. Domestic violence can happen in any family -- regardless of socioeconomic, race, age, etc.
Who Can Obtain a Protective Order
Family court protective orders offer protection for:
- Current or former spouse
- Someone with whom you have a child in common
- A family member to whom you are related by blood or marriage
- Someone with whom you have or have had an intimate relationship. This does not have to be a sexual relationship. The court will determine if a relationship fits the definition by considering how often you have contact with each other and how long you have known each other.
An order of protection can also be issued in Supreme Court as part of a divorce proceeding.
An order of protection is designed to protect family members from violence and to de-escalate conflict within a relationship. The order can be quite wide-ranging though and can include the following:
- A stay away order: This directs the respondent to stay away from you, your home, your place of business, your children, your children's school, and any other place or person deemed necessary. The order can include a specific distance that must be maintained.
- An order to refrain from certain acts: This can include a direction to stop abusing the petitioner and their children as well as an order to stop threatening the petitioner. The order can also include things like stalking or harassing phone calls or texts.
- A no-contact order: The court can direct the respondent to have no contact at all with the petitioner, even if they share children and a home.
- An order of exclusive occupancy: The respondent can be ordered to stay out of the home while the order of protection is in place.
- An order to collect belongings: If the petitioner does not want to return to the home, the court can set a specific date and time when they can enter safely to retrieve them.
- An order about firearms: The respondent's firearm license can be revoked or suspected, and the court can order them to turn over all their firearms during the pendency of the order.
- An order for temporary child custody: Because of the violence or danger, the court can grant the petitioner sole custody of any children during the term of the order.
- An order for temporary child support: Child support can also be ordered for the length of the order.
Length of an Order of Protection
A temporary order of protection lasts during the time the divorce or custody case is pending in the court, or until a full hearing can be scheduled on the order of protection itself. A permanent order of protection lasts for two years. A five-year order can be granted if there are aggravating circumstances, such as a violation of an existing order, use of a weapon, or physical injury.
How to Get Immediate Assistance
Domestic violence is a serious issue, and if you find yourself in danger, it is essential that you call 911 if the danger is immediate. If you want to create a safety plan, you can contact the New York State 24 Hour Domestic Violence Hotline at 1-800-942-6906, the National Domestic Violence 24 Hour Hotline at 1-800-799-7233, or Safe Harbor New York City Domestic Violence Hotline at 800-621-HOPE (800-621-4673). Your attorney can also assist you in seeking safety.
Strategic Uses to Be Aware Of
All of this being said, people have been known to use protective orders as leverage in divorce and custody cases, and it is important to understand this so you and your attorney can be prepared.
Ex Parte Orders
When a petition for a temporary order of protection is filed, the hearing is normally held ex parte, which means only the petitioner and their attorney appear. The respondent is not there, and the court issues the order without the respondent having a chance to defend themselves.
The standard of proof is quite low – a preponderance of the evidence is required. The court will likely order a temporary order based only on the word of the petitioner. The petitioner must tell the truth; however, there have certainly been cases where petitioners rush to court to get a temporary order when there is no factual basis for it.
Because the judge can order the respondent out of the home, the petitioner can use the protective order to get control of the marital residence. The party living in the residence is then much more likely to be granted that property in the divorce.
An order of protection can include a custody order to ensure that the children are safe from the alleged abuse. However, keep in mind that New York statutes require that when a court in a custody case that they consider any orders of protection as well as any alleged domestic violence when issuing a permanent custody order.
The existence of an order of protection can be harmful to the respondent's custody case, even if all that is issued is a temporary order based on ex parte information. Obtaining an order of protection can thus provide an important strategic edge for the petitioner in the custody case. Any time a court has concerns about one parent's behavior, judgment, or propensity for violence, the custody case is deeply affected. Once custody has been established temporarily in a case, the court is much more likely to continue that arrangement in its final order or decree.
The order of protection can keep the respondent away from the children entirely but may include provisions for visitation if the petitioner’s safety can be secured. Supervised visitation is a common element in these orders, allowing the petitioner to see the children only in the presence of a court-approved supervisor. Brad Pitt was ordered to have only supervised visitation with his children after an alleged incident of domestic violence involving one of his children. Once supervised visitation is ordered, it is challenging to convince the court that normal visitation is appropriate.
Courts take the violation of protective orders very seriously, and a violation can be a felony. One problem to be aware of is that unless a mutual order of protection is issued (directing both parties to stay away from each other), the order impacts only one person's behavior. The respondent is prohibited from being present within a certain distance of the petitioner and from doing or saying certain things. The petitioner, however, has no such restraints, so they can show up to places where they know the respondent will be and can do things to create a reaction, and then call the police because there has been a violation of the terms of the order.
Protective orders are a lifesaver if you are in danger or feel threatened. However, they can become a tactical tool in a divorce case, so it is important to be aware of the laws and nuances surrounding them.