Orders of Protection
If you have had an order of protection, also known as a restraining order served against you, it's important to know what you are up against. As the respondent you have rights too, not just the petitioner. Once the order of protection has been issued it can have a significant impact on your life including where you can live and custody and visitation of children.
There are two basic types of protection orders:
- Full order of protection or "stay away' order. The respondent is allowed no contact of any sort with the petitioner including no phone calls, e-mails, letters or third party communication. This order will also require the respondent to find new residency if they reside in the same home as the petitioner.
- Limited order of protection or "do not harass" order. This order prohibits the respondent from engaging in yelling, threatening, harassing or intimidating the petitioner.
Explanation of Orders of Protection
In the state of New York, people who are victimized by domestic abuse have the option of seeking an order of protection. This is a legal document granted by the Court which will prohibit the alleged abuser from coming near the alleged victim. While is not a promise or a guarantee of safety, it does provide an extra level of support by legally keeping the abuser away. Should it be violated, the abuser can be thrown in jail, criminally charged, lose their possessions and even thrown out of their home.
While an order of protection is a valid form of protection needed by the legitimate victims of domestic violence, it can be grossly misused. For example, someone trying to gain the upper hand in a custody battle may fraudulently seek an order of protection against their ex-spouse. At our firm, we know that these wrongful actions happen all the time and we are here to help those are victimized by them. Below, we have answered some of the most common questions regarding orders of protection:
Where can someone get an order of protection?
These can be received either in the Family or the Criminal Court – in some cases, in both. Cases of spouses, household members, parents of your child, blood-relatives, adopted relatives or those you are in an intimate relationship will likely be in the Family Court. If the defendant is arrested, it will go to the Criminal Court.
What information will be included in the petition?
The petition filed with the court will include all information regarding the case – including instances of abuse, threats or even forced sexual activity. It can also include drug and alcohol use, history of mental illness and previous criminal activity on behalf of the defendant.
When can an order of protection be received?
In the state of New York, most courts are open only on weekdays from 9:00 a.m. to 5:00 p.m. – although most of them open their doors to the public at 8:30 a.m.
Will the papers be mailed to me?
If an order of protection has been given, they must be served to the abuser in person. It is against the law to mail them, leave them with a third party or leave them on their doorstep. The petitioner is not allowed to be the person who serves the person; however, it may be someone of their own choosing, so long as they are not a minor. In some cases, the petitioner may request for the police to serve the papers.
Can I contest an order of protection?
Unfortunately, in many cases an order of protection is not seriously considered before it is granted. This can result in a wrongful protection being served. In these cases, it is in your best interests to get the involvement of a lawyer to contest the document and fight to get the order lifted.
Will an order of protection be on my criminal record?
Yes, anytime someone runs a background check on you, they will see that you have had an order of protection taken out against you – even if you are not criminally charged with anything. For this reason, it is vastly important that you fight against an unfair restraining order.
What happens if I am accused of violating the terms of the order?
In these cases, you will be accused of an order of protection of violation and will likely be arrested. In these cases, you can file a "violation petition" to combat the charges, negotiate with the DA or even take it to Criminal Court. If convicted, you will be punished with anything from probation to incarceration.
Contact a criminal defense lawyer as soon as possible!
Contact a criminal defense attorney from our firm today and let us help you determine what your best course of action will be to protect your rights. An order of protection is issued in an attempt to stop
harassment, stalking, abuse and other types of violence against an individual. If an order of protection is granted and subsequently violated by the respondent, the respondent could be facing jail time. As the respondent you have the right to contest any type of order of protection. Having the skilled legal guidance of a knowledgeable attorney to assist you can make a tremendous difference in the outcome of your case.