As an experienced Long Island Divorce and Family Law Attorney, we see countless clients come to us seeking advice on obtaining an Order of Protection (OP).
The Basis for Granting an Order of Protection on Long Island
Orders of Protection are court-ordered documents that require the respondent (the abuser) to stay away from or refrain from contact with the petitioner (the victim of abuse). Family Courts in Suffolk County, Nassau County or any other county in New York are the most common forum in which to seek an Order of Protection. In order for the Family Court to grant an Order of Protection, the respondent must have committed a family offense.
What is a Child Protective Proceeding on Long Island?
A child protective proceeding is commenced by a Long Island child protective agency with a petition in the family court in Nassau County or Suffolk County. If your county or city agency has a concern for abuse or neglect, it can petition the family court and begin an action against the parent or guardian who is suspected of abuse or neglect. The county or city agency is known as the petitioner, and the parent or caretaker that is suspected of abuse or neglect will be the respondent. The goal of these proceedings is to ensure the safety and wellbeing of the child. Sometimes this means the court will have the parent or guardian address and correct problematic behaviors. If the parent or guardian cannot or does not correct abusive behaviors, the child may be removed from the home and placed into kinship or foster care. (more…)
Domestic Violence and Orders of Protection on Long Island, New York
As a family law attorney serving Suffolk County and Nassau County residents of Long Island, I am saddened to see a number of domestic violence cases each year.
For a person experiencing family violence, including threats or other abusive behavior, an Order of Protection is a helpful tool that can help to limit the behavior of the offender.
In Suffolk County or Nassau County Family Court, these orders are often between a current and former spouse, a person with whom the victim has a child in common, another family member related by either blood or marriage, or a person with whom the victim has had an intimate relationship. Many Orders of Protection in New York are “limited” in that they allow contact between the offender (also known as the respondent) and victim (also known as the petitioner) so long as there is no harassment, physically abusive behavior, or other intimidating or threatening conduct.
Orders of Protection Vary in Nassau County and Suffolk County Family Courts
Orders of Protection can vary greatly depending on the circumstances of each case and the reason the order is needed. Orders of Protection can instruct an offender to “stay-away” from the victim and the victim’s children and/or to “refrain from” certain abusive behaviors or activities. In certain circumstances, an Order of Protection may direct the offender to move out of the home in order to protect the victim. An order will likely direct the offender to refrain from threats, intimidation, or physical abuse. The Order of Protection can also instruct the offender to follow custody orders, pay child support, to not have a gun, or to stop calling or texting the victim.
In Suffolk County & Nassau County, Orders of Protection Issued by Family Court, Criminal Court & Supreme Court
Orders of Protection may be issued by the Family Court, Criminal Court, or Supreme Court. The existence of any other legal proceeding involving the parties may determine which court issues the Order. For example, for couples involved in a divorce, an Order of Protection may be issued in Supreme Court where the matrimonial proceeding is pending. For parties involved in a domestic violence or other criminal charge in Criminal Court, the Criminal Court may issue the order. And, finally, a family member may petition the Family Court for an Order of Protection.
Family Offense Petition
In Family Court, the victim may wish to file what is called a “Family Offense Petition.” The petition should contain all of the relevant information, including the conduct and behavior that caused them to believe the protective order is necessary. Once the petition is filed, a temporary order of protection may be issued until the other party has a chance to appear in court. Once the court determines that, based on the petition, an Order of Protection may be necessary, both parties will be asked to appear in court. The judge will decide which terms and conditions are to be included in the order based upon the nature of the offense and conduct in the petition.
Orders of Protection Can Be Useful Deterrents for Abusive Behavior on Long Island
An Order of Protection is often a useful deterrent for abusive behavior. It is a crime to violate an Order of Protection. The Order acts as probable cause for an arrest if police are called to a scene of a domestic dispute. This means that the police will not have to use judgment in determining whether to arrest the offender at the scene; the order of protection will allow the police to arrest if it appears that the Order of Protection is being violated. Any violation of an Order of Protection can result in new criminal charges. It is important for offenders to know that even if the victim/petitioner initiates the contact, it does not excuse the violation of the Order of Protection.
Contact Long Island Family Law Lawyer for Information on Domestic Violence and Orders of Protection in Nassau County and Suffolk County
If you believe that you may need an Order of Protection, or if an Order of Protection has been issued against you, it is important that you speak with an experienced attorney to know your rights and options. The Law Office of Robert E. Hornberger, Esq., P.C. can assist you with your Family Law and Divorce Law matters in Nassau County and Suffolk County. Contact our office at 631-923-1910 or fill out the short form on this page to schedule your free consultation.
Download our Free New York Divorce Guide
Our 41-page “Guide to New York Divorce: What You Need to Know Before Hiring a Divorce Lawyer in New York” written by an experienced family law lawyer Long Island’s Robert E. Hornberger, Esq., provides you with real information on the divorce process and the laws it rests upon in the state of New York. This book will help give you a solid foundation upon which you can begin the process of making your family’s, life better. Download your Free Guide to New York Divorce here.
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Why the ‘Guide to New York Divorce: What You Need to Know Before Hiring a Divorce Lawyer in New York’?
Speaking to your spouse about a divorce is not likely a conversation you imagined yourself having when you got married. But as we all find out sooner or later, we never know what life has in store for us. As a Long Island divorce attorney with 15 years of experience, I have seen husbands and wives enter my office with numerous emotions; complete disbelief, extreme anger, and at times, even joy.
However one thing that stays the same with the majority of the clients we encounter is that each one is anxious. Most people will go their entire lives without dealing with the court system, but a divorce puts you in the position to stand in front of the judge and discuss personal matters.
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During your Long Island divorce, a main area of concern for you and your spouse is likely the question of who gets to remain in the marital residence. The two of you may have purchased this home at the beginning of your marriage and resided there for years, or it may be a relatively new home you moved into after you had your children.
Whatever the case may be, you both feel a connection to the residence and neither is willing to voluntarily say it is no longer their home. Many clients who find themselves in situations such as this ask me if they may change the locks on the residence when their spouse is at work or otherwise out. In short, the answer is no, absent a few rare situations which are discussed below.
Why Can’t I Change the Locks?
The fact that I am telling you to refrain from changing your locks may seem odd to you as a homeowner. However, you are free to change the locks on the residence just as you always were. The catching point is that during a divorce most people’s intent behind doing so is to keep his or her spouse out, and that is what is not permitted. If you do decide to change the locks, you must give your spouse the new keys, therefore giving him or her access to the residence just as before.
When Am I Permitted to Change the Locks to Keep My Spouse Out?
While your divorce is pending, there are a limited number of circumstances in which one spouse is granted use of the marital residence to the exclusion of the other spouse.
- Your Spouse Abandoned the Marital Residence: The first such instance is if your spouse has voluntarily abandoned the marital residence and established a new residence. If your spouse took his or her belongings, furniture, and other personal effects and moved into an apartment 20 miles away seven months ago, you may have grounds for changing the locks and establishing the residence as your own, separate and apart from your spouse.
- A “Stay Away” Order of Protection: While situations which require Orders of Protection tend to be volatile and at times even dangerous, an Order of Protection can serve to keep your spouse out of the marital residence and away from you. In order to be granted Order of Protection your spouse must commit one of the qualifying family offenses, and you then must file the petition with the court. There are two types of orders of protection: a “refrain from” and a “stay away”. If you are granted a “refrain from” order of protection, your spouse must “refrain from” engaging in the behaviors listed in the order, however unless otherwise noted, he or she is still permitted to be in your immediate presence. On the other hand, a “stay away” order of protection provides that your spouse not come within a certain distance of you, and at times your children. If you are granted this type of order, it naturally follows that your spouse must vacate the marital residence and has no right to re-enter during the duration of the order. In such an instance, you may change the locks to prevent your spouse from entering. However, if the order of protection is only valid until a certain date, once that date comes, your spouse must be permitted to access the residence again.
- Temporary Exclusive Use and Occupancy of the Marital Residence: During the pendency of your litigated divorce, your Long Island Divorce Attorney may file what is called a pendente lite order to show cause. In other words, your attorney may file a motion asking for relief that will begin on the date the order is signed and continue until the final judgment of the case. When preparing these motions most Long Island Divorce Attorneys request that their client be granted exclusive use and occupancy of the marital residence. Although the divorce laws in New York provide for this type of relief, it is rarely granted by the courts. In order to grant one spouse exclusive use and occupancy of the marital residence, the court must find that continuing to allow both parties to reside in the marital residence would threaten the safety of persons or property. This is a hard standard to meet. Your divorce attorney will likely ask you about the specific facts and living conditions at home, and look to see what if anything may be useful to support your request.
The bottom line: do not resort to self-help. While locking your spouse out may seem like an attractive option, it will only work against you in court, as it may be seen as abandonment by lock-out, which then may provide your spouse with a counter-claim or additional grounds for divorce. Until a court rules otherwise or your spouse abandons you, both parties are entitled the same access to the marital residence as before. As always, be sure to speak to your divorce attorney about the specifics of your case.
Compassionate & Experienced Long Island Divorce Lawyers Can Help
The compassionate and experienced divorce attorneys at Robert E. Hornberger, Esq., P.C. have years of experience helping couples resolve their marital residence issues. If you have questions, give us a call Contact us today at 631-923-1910 to schedule your free, no-obligation consultation with an experienced Long Island divorce attorney.
What is Parental Alienation & Are You a Victim?
All too often in divorces on Long Island, one spouse attempts to influence the child or children of the marriage against the other spouse/parent. Often, this is a result of anger and resentment at the former spouse, who then tries to use the children against the other out of revenge. While divorce is often an emotionally charged event, there is no excuse for using your innocent children as weapons or pawns in your own childish vendetta against a person you once loved.
These situations, which as a practicing Long Island divorce attorney, we see too often, are referred to in legal circles as “Parental Alienation”, and can include things such as:
• Speaking badly about you directly to the children
• Speaking badly about you to relatives who in turn relay these messages to your child
• Making allegations of physical or emotional abuse against you
• Prohibiting the child from speaking about you or anything concerning you in a positive way
It is not uncommon for those involved in a romantic relationship to act out of emotion, and at times those negative emotions toward the former spouse can be purposely or inadvertently directed at the children.
Even if you have no direct knowledge of the actions of your former spouse, you may notice that your child is unable to maintain as close of a loving relationship with you as you had prior to your divorce. This could be a sign of Parental Alienation.
Long Island, NY Laws Affecting Parental Alienation?
If you feel that your situation may potentially be an instance of parental alienation, you should immediately contact your divorce lawyer for advice. This is a complex area of law but there is a possibility that your case may rest upon Section 241 of New York’s Domestic Relations Law. This statute references only the non-custodial parent in instances where the custodial parent interferes with the relationship, but does not discuss what the result may be if you feel the non-custodial parent is interfering with your relationship with your child.
You Could Lose Your Child Support & Maintenance
Under Section 241, a non-custodial parent is permitted to suspend child support or maintenance payments if a judge finds that the custodial parent receiving these payments wrongfully interfered with or withheld the court ordered visitation of the non-custodial parent. Additionally, if the judge determines such is warranted, he may order a complete cancellation of the child support or maintenance payments. Parental alienation however cannot be used as a defense by the non-custodial parent for failure to pay child support.
The non-custodial parent may only suspend payments if it is so ordered by a judge in court. If you feel you are the victim of parental alienation, be sure to discuss your legal options with your divorce attorney, who will inevitably be able to give you the best guidance.
How to Prevent Yourself from Committing Parental Alienation?
Assuming that you love your children and do not want to do them any emotional harm, the worst part about parental alienation is that you may not even recognize the fact that you are doing it. If you fear you may be doing this unconsciously, it may be beneficial to you to focus on supporting your child’s relationship with the non-custodial parent. We’re not saying you have to sing your former spouse’s praises every minute, but you could encourage the children to spend more time with your former spouse doing activities they both enjoy.
You May Note Even Realize You’re Doing It
It is important that you be aware of what you say about your ex and be careful not to make stray remarks about your former spouse that have the potential to be interpreted negatively by a child. A common example of such a statement might be instructing your child to ask your former spouse to pay for something for the child because he or she has more money. While to you that is a seemingly harmless statement of fact, a child will see such a sentence as requiring him or her to make a choice between his two parents.
If You’re Doing It On Purpose; Stop
On the opposite end of the spectrum are the parents who actively and consciously try to destroy the relationship their former spouse has with his or her children. This type of alienation stems from extreme anger on behalf of the parent directed toward the other. The parent may seek revenge for an affair or other betrayal of trust (whether real or imagined), and use the child’s love as the bargaining chip. Most important to preventing this type of alienation is to recognize it before the child comes to favor one parent over the other. Afterward, it will be necessary to work on the relationship between the child and the former spouse in order to rebuild the trust and emotion.
Are You the Victim of Parental Alienation? We Can Help
If you feel you are a victim of Parental Alienation, you should take action to protect your children and their relationship with you. Give the experienced and compassionate Divorce Attorneys at Robert E. Hornberger, Esq., P.C. a call today at 631-923-1910 to schedule a free consultation to discuss your case and what you can do about it. We’re here to help.