Domestic violence affects men and women from all backgrounds and circumstances, notwithstanding race, ethnicity, age, sexual orientation, religious affiliation, socioeconomic status, education, and occupation.
Who May Obtain an Order of Protection
A victim of domestic violence can request a civil Order of Protection from the Family Court or the Supreme Court. To have standing to apply for a New York Order of Protection, the applicant (Petitioner) must be a current or have former intimate or family (blood or affinity) relationship. This includes same-sex relationships.
The Family Offenses
To obtain a Final Order of Protection, the Petitioner must present and prove allegations making out at least one enumerated Family Offense, as defined by New York's Penal Law:
Disorderly conduct
Unlawful dissemination or publication of an intimate image
Menacing in the second or third degree
Harassment in the first or second degree
Reckless endangerment Aggravated
Harassment in the second degree
Stalking
Assault in the second or third degree
Attempted assault
Criminal mischief
Sexual misconduct
Sexual abuse in the second or third degree
Forcible touching
Strangulation
Criminal obstruction of breathing or circulation
Identity theft in 1st, 2nd or 3rd degree
Grand larceny in 3rd or 4th degree
Coercion in 2nd degree [Penal Law §135.60 (1),(2),or (3)]
The standard of proof is low - the preponderance of the evidence standard. The only evidence may be the testimony of the parties. If the Court finds, after a trial, that it is more likely than not that at least one family offense occurred, it will grant a Final Order of Protection. In making custody and parenting time decisions, the Court must give weighty consideration to findings of domestic violence.
Temporary and Final Orders of Protection
The Family Courts routinely grant Temporary Orders of Protection ex parte (without the other side present). The Courts can also address, on an emergency and temporary basis, child support and custody issues, order the removal of firearms, and award exclusive occupancy of the parties' residence.
The Family Court can grant an Order of Protection for a duration of 2-5 years, depending on whether there has been aggravating circumstances. Aggravating circumstances can include the use of a weapon or dangerous instrument or posing a threat to members of the household.
The Supreme Court can also grant an Order of Protection in connection with divorce proceedings.
As a family law attorney for over 25 years, I've seen that Orders of Protection can and do make a big difference in the lives of many New Yorkers, and their families. For more information on Orders of Protection, visit the New York State's Unified Court System's page on Family Offenses.