Thousands of Orders of Protection are filed in New York each year in response to allegations of violence and threats of violence including domestic violence. Often referred to as a restraining order, an Order of Protection is a legally binding court order that places limitations on someone who has injured another person or who has directed threatening behavior toward another person. If an Order of Protection is issued against you, it may direct that you stay away from the petitioner, stay away from the petitioner's children, move out of your home, and give up any guns that you possess. In addition, the order may direct you to remain in compliance with custody orders and to pay child support. While many Orders of Protection are based on the petitioner's legitimate fears, in some cases there is in reality no legal basis to sustain the order. In these cases the person accused, known as the respondent, can fight the Order of Protection and attempt to have it dismissed. If there is an Order of Protection issued against you that you believe is baseless there are ways that you can fight it. Contact an experienced Queens Order of Protection Lawyer who will explain to you your legal rights and work closely with you to get the Order of Protection vacated.
An Order of Protection can be issued by a Family Court judge or by a Criminal Court judge. A Family Court order is typically issued in cases where you are in a domestic relationship with the victim. For example, such an order can protect you against a spouse, former spouse, other family member, someone with whom you have a child, someone with whom you have had in intimate relationship or someone with whom you share a home. To get an Order of Protection in Family Court, the petitioner must complete and file a form called a "Family Offense Petition." The form requires the petitioner to list the reasons for the order. Reasons include criminal offenses such as disorderly conduct, harassment, aggravated harassment, criminal mischief, sexual abuse, strangulation, menacing, reckless endangerment, sexual misconduct, and forcible touching. The petitioner can also describe actions by you that were threatening or dangerous.
A Criminal Court Order of Protection will be issued against you if you have already been charged with a criminal offense against the victim. Such an order may be issued as condition of your release. While the victim may be a relative it could be someone who does not have a relationship with the defendant. Unlike Family Court cases where the victim is the petitioner requesting an order of protection, in a criminal court case the prosecutor will request the order. The judge will decide if the evidence warrants the issuing of an Order of Protection.
Consequences of Violating an Order of ProtectionRegardless of whether the Order of Protection is issued by Family Court or by Criminal Court, if you violate it the consequences can be quite serious. For example, if a Criminal Court issue the Order of the Protection and you violate it, the victim can alert the police and you will be arrested. You will then face an additional criminal charge of criminal contempt in the second degree or criminal contempt in the first degree.
In People v. Lawing, 975 N.Y.S.2d 778 (2013) an Order of Protection was in place prohibiting defendant Jermel Lawing from going near his former girlfriend or their child. After violating the order on 3 occasions, Lawing was charged with two counts of criminal contempt in the first degree and one count of criminal contempt in the second degree. Upon conviction, Lawing was sentenced to 1 year in prison for the second degree charge and consecutive prison terms of 1 1/3 to 4 years for the two counts of first degree criminal contempt.
In People v. Talbot, 981 N.Y.S.2d 152 (2014), the defendant was charged with reckless endangerment based on a domestic violence incident with his wife, as well other criminal offenses. An Order of Protection was issued requiring that Talbot stay away from his wife. As part of a plea agreement Talbot's sentence was to be 1 1/3-4 years in prison, as long as he did not commit any additional crimes. Talbot was arrested for violating the Order of Protection. As a result the judge threw out the plea agreement and sentenced Talbot to 2-6 years in prison.
If you violate an Order of Protection that was issued by Family Court, the petitioner can bring it to the attention of the court by filing a Petition for Violation of an Order of Protection.
Vacating a Family Court Order of ProtectionAn Order of Protection is a legally binding order. The only way for such an order to be changed or vacated is if a court so orders. The petition, meaning the person who requested the order has no authority to change the order. For example, suppose your girlfriend requested and received an Order of Protection against you after an argument. However, after a few days have passed she decides that she wants to see you and invites you to her home. If you go and see your girlfriend under these circumstances, you will be in violation of the Order of Protection. You could face criminal charges. Similarly, suppose you strongly believe that you girlfriend did not tell the truth when she requested the Order of Protection. Thus, you believe that it was wrongfully obtained and should never have been issued. Because of this, you feel justified in violating it. If you do, you will have violated it. It does not matter if the petitioner changes his or her mind, or if you feel that the order was not justified, if it is in place, you must abide by it.
The proper way to fight an Order of Protection and to seek to have it vacated is to go to court. When you were originally served with the Order of Protection, you would have also received a Summons to Appear. The Summons will let you know when you must appear in Family Court to respond to the allegations in the order. This will be your first opportunity to fight an Order of Protection. The key to successfully fighting an Order of Protection is to be prepared. You must demonstrate that the petitioner is not actually in need of protection from you. To show this you will need to refute the allegations that the petitioner made. Be prepared with evidence. Evidence may include eyewitnesses, police reports, and medical reports. Other factors that may support your case is evidence of steady employment, education, lack of criminal history, and positive contributions to the community. The Family Court judge will schedule a fact-finding hearing to determine if the petitioner's allegations are true. If the judge determines that the allegations are not true, then the case will be dismissed. N.Y. FCT. Law § 841. On the other hand, if the judge finds that the allegations are true then the judge may issue a permanent Order of Protection that can remain in effect for up to 5 years. N.Y. FCT. Law §§ 841 and 842
Having an Order of Protection issued against you is not only an inconvenience it can also have serious, negative effects on important aspects of your life. If you are served with an Order of Protection, contact the experienced staff of Stephen Bilkis & Associates, PLLC to discuss the details of your case. We have years of experience representing clients who have Orders of Protection filed against them, as well as clients who have been charged with domestic violence, stalking, assault, strangulation, sexual abuse, aggravated harassment and child endangerment. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We serve those accused of domestic violence and other crimes in the following locations: