Domestic Violence, NY - Hornberger Verbitsky, P.C., Long Island Divorce Attorney

Divorce Lawyer on Long Island Asks If You Need an Order of Protection if You’re Afraid of Your Spouse

by Robert E. Hornberger, Esq | Aug 12, 2015

Do You Need an Order of Protection on Long Island?

As a Divorce Lawyer on Long Island, I’ve seen that some Nassau County and Suffolk County Divorces proceed quickly and smoothly; the parties agree on everything, their divorce attorney drafts the necessary paperwork, the parties execute all documents and the paperwork is submitted to the Court in Nassau County or Suffolk County. This is the desire of the majority of clients who walk into my office, and I am more than pleased when their matter proceeds as described.

However, a number of my Long Island divorce clients cases precede nothing like the above, and at times, spouses may be afraid of one another. If you find yourself in a situation where you are in fear for the safety of yourself or your children as a result of your spouse’s actions, the following are the most common routes to ensure you and your children are protected.

1. Call the local police department. If you find yourself in the midst of an argument with your spouse and you begin to fear for either your physical or mental well-being, dial 911 and call the police immediately. Upon the police’s arrival, they will take what is called a Domestic Incident Report. You will be the complainant, and the police will ask you for a description of the event, or events, that took place. While you may hope your spouse gets arrested on that spot, his or her arrest will depend upon the severity of the incident. But do not lie about what occurred in the hopes you will get your spouse thrown in jail. Be truthful and honest, as you may be required to annex a domestic incident report as an exhibit in a later court filing.

2. File for an Order of Protection in Nassau County or Suffolk County Family Court. If your spouse’s troublesome behavior is routine and consistent you may file for an Order of Protection in the Family Court of the county in which you reside. There are two types of orders of protection: a Stay Away and a Refrain From.

a. A Stay Away order of protection directs the subject of the order to “stay away from” the petitioner’s residence, place of employment and the petitioner themselves. If you are granted a “stay away” order of protection against your spouse, he or she will be required to vacate the marital residence.

b. A Refrain From order of protection directs the subject to “refrain from” engaging in the behaviors which brought the matter in front of the Family Court in the first place. If you are granted a “refrain from”, your spouse is not required to vacate the marital residence, however, if they violate the order, you can call the police who will likely arrest your spouse for said violation.

3. File in the Supreme Court for Exclusive Use and Occupancy of the Marital Residence. At times, I will direct clients to file for an order of protection in Nassau County or Suffolk County Family Court and they will either be denied said order or receive a refrain from. On occasion, clients are satisfied with the refrain from order, however, some are still in fear of their spouse’s behavior and want to know what other remedies are available to them.

My next step in these instances is to file an Order to Show Cause for Exclusive Use and Occupancy of the Marital Residence in the Supreme Court. This is a motion which, if granted by the judge, provides the relief requested immediately. This will also ensure that your spouse can no longer enter the marital residence. Generally, parties are not required to appear on the initial date of filing of an Order to Show Cause; however, the Judge may require a party’s appearance in extreme cases. If you previously filed domestic incident reports or orders of protection against your spouse, these will most likely be annexed to the motion as an exhibit.

If you are going through a Nassau County or Suffolk County Divorce and are afraid of your spouse make sure you speak to your Long Island Divorce Attorney about the remedies available to you. Divorce cases are not one size fits all, and therefore what was appropriate in your friend or family member’s matter may not be appropriate for your case.

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For more information about how to protect yourself and your children during your divorce in Nassau County of Suffolk County, contact an experienced Long Island divorce attorney. Long Island’s Robert E. Hornberger, Esq., PC and his compassionate and experienced divorce lawyers can help. Call us at 631-923-1910 for a complimentary, confidential consultation or fill out the short form on this page and we’ll get right back to you

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Obtaining an Order of Protection in Long Island Family Court

by Robert E. Hornberger, Esq | Jan 16, 2014

As a Long Island Family Law Attorney, Divorce Lawyer and Divorce Mediator, I am regularly asked by prospective clients, “How do I go about obtaining an Order of Protection?”. Nassau and Suffolk County Family Law Courts have very specific, yet comprehensive requirements for obtaining an Order of Protection.

To obtain an order of protection in a Long Island Family Court, a respondent must commit one of the following family offenses:

Disorderly Conduct – Penal Law §240.20
Harassment in the First Degree – Penal Law §240.25
Harassment in the Second Degree – Penal Law §240.26
Aggravated Harassment in the Second Degree – Penal Law § 240.30
Sexual Misconduct – Penal Law § 130.20
Forcible Touching – Penal Law § 130.52
Sexual Abuse in the Third Degree – Penal Law § 130.55
Sexual Abuse in the Second Degree – Penal Law § 130.60(1)
Stalking in the First Degree – Penal Law § 120.60
Stalking in the Second Degree – Penal Law § 120.55
Stalking in the Third Degree – Penal Law § 120.50
Stalking in the Fourth Degree – Penal Law § 120.45
Criminal Mischief – Penal Law §145.00
Menacing in the Second Degree – Penal Law § 120.14
Menacing in the Third Degree – Penal Law §120.15
Reckless Endangerment – Penal Law §120.20, §120.25
Assault in the Second Degree – Penal Law §120.05
Assault in the third Degree – Penal Law § 120.00 or an Attempted Assault
Strangulation in the Second Degree – Penal Law § 121.12
Strangulation in the First Degree – Penal Law § 121.13
Criminal Obstruction of Breathing or Blood Circulation – Penal Law §121.11
Criminal Obstruction of Breathing or Blood Circulation or Strangulation between:
- Spouses or
- Former Spouses or
- Between Parent and Child or
- between members of the Same Family or
- Household (except that if the respondent would not be criminally responsible by reason of age pursuant to § 30.00 of the Penal Law, then the family court shall have exclusive jurisdiction over such proceeding.

How to Originate the Order of Protection Proceeding

An Order of Protection proceeding is originated by the filing of a petition containing allegations that respondent committed one of the above family offenses and setting forth the relationship of the alleged offender to the petitioner and the name of each child in the family or household and the relationship of the child, if any, to the petitioner and to the respondent.

Who can Originate a Family Offense Proceeding in Family Court?

(A) Any person in the relation to the respondent of spouse, or former spouse, parent, child or member of the same family or household

(B) A duly authorized agency, association, society or institution

(D) A person on the court’s own motion

For purposes of a Family Offense Proceeding, “members of the same family or household” shall mean the following:

(a) Persons related by consanguinity (blood relation) or affinity

(b) Persons legally married to one another

(d) Persons who have a child in common regardless of whether such persons have been married or have lived together at any time

(e) Persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time

First, Obtain a Temporary Order of Protection

Upon the filing of a petition, a Long Island Family Court, for good cause shown, may issue a Temporary Order of Protection. The court may direct that the respondent refrain from certain actions, or stay away from the petitioner and/or the petitioner’s child(ren). The court may direct no communication between the parties. The court may also direct that the respondent turn over their firearms to the police until the proceeding is resolved. The court may also make other directions to the respondent, as it feels are necessary.

Fact-Finding Hearing Determines Validity of Petition

The petitioner must establish the allegations of the petition by a fair preponderance of the evidence. The potential outcomes of the hearing are:

1. Dismissing the petition.

2. Suspending judgment for not more than 10 months

3. Placing respondent on probation for not more than a year (FCA § 841 )

4. Making an Order of Protection

5. Direction restitution in an amount not to exceed $10,000.00

If Granted, an Order of Protection May Include:

A. Reasonable conditions of behavior for not more than two years

B. Stay away from individuals and places

C. Refrain from behaviors

D. Pay counsel fees and disbursements

E. Require counseling

F. Provide for medical expenses incurred as a result of the incidents established

G. Surrender of Firearms and Licenses.

Order of Protection Violations

If the court finds by competent proof that respondent willfully failed to obey an Order of Protection, the court may modify an existing order to add conditions, make a new Order of Protection, may order respondent to pay petitioner’s counsel fees and may commit respondent to jail for a term not to exceed six months.