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Orders of Protection
Domestic violence is a serious problem on Long Island, NY and in America in general. Every nine seconds, a woman in this country is a victim of this crime. It’s the leading cause of injury to women, more than muggings, car accidents and rapes combined. Even more horrifying is that one in three women who are victims of homicide are murdered by their current or former partner.
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. Here’s what to know about Orders of Protection on Long Island, NY and how the team at Hornberger Verbitsky, P.C. can help you keep yourself and your family safe.
Domestic violence is a pattern of violent and coercive behaviors that occur repeatedly over time, often daily. The behavior is directed to achieve and maintain power and control over someone within the family structure. It could be either a criminal or non-criminal act. It could also be mental or physical abuse of anyone in the house, not just the partner.
Examples of abusive behavior can include: power and control (giving punishments for “bad” behavior), verbal abuse (threats or ridiculing), physical abuse, sexual abuse, control, manipulation, harm to a pet, forced isolation, and controlling finances. Even constant calling or “checking in” isn’t violent itself, but can be a sign or signal of violence to come.
There is a common misconception that in order to qualify for an Order of Protection, the abuse must be physical. While physical abuse such as punching, kicking, slapping and choking are horrific and absolutely subject to an Order of Protection, other forms of abuse as listed above may also qualify.
An Order of Protection, sometimes referred to as an OP, is a court order that will direct one party to stay away from the other or to refrain from engaging in certain activity directed at the other. An Order of Protection may also contain additional instructions that the abuser must follow, such as refraining from visiting the place of business of the victim or refraining from any telephone contact, etc.
If you want to press charges for assault, you have rights under criminal law as well. The law requires the police to arrest abusers who commit a felony or misdemeanor against a household or family member. Repeated offenders of this crime can receive four to seven years of prison time depending on the injury.
To file for an order of protection, the person accused must have committed one of the following offenses under New York state law:
- 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
- Attempted Assault Penal Law § 110/120.00(1)
- Assault in the First Degree – Penal Law § 120.10
- Assault in the Second Degree – Penal Law §120.05
- Assault in the Third Degree – Penal Law § 120.00
- Aggravated Assault – Penal Law § 120.12
- 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
- Menacing in the First Degree — Law § 120.13
- Menacing in the Second Degree – Penal Law § 120.14
- Menacing in the Third Degree – Penal Law §120.15
- Criminal Mischief – Penal Law §145.00
- Disorderly Conduct – Penal Law §240.20
- Reckless Endangerment – Penal Law §120.20, §120.25
- Strangulation in the First Degree – Penal Law § 121.13
- Strangulation in the Second Degree – Penal Law § 121.12
- Criminal Obstruction of Breathing or Blood Circulation – Penal Law §121.11
- Sexual Misconduct – Penal Law § 130.20
- Forcible Touching – Penal Law § 130.52
- Sexual Abuse in the Second Degree – Penal Law § 130.60(1)
- Sexual Abuse in the Third Degree – Penal Law § 130.55
- Aggravated Sexual Abuse in the Fourth Degree — Penal Law § 130.65-a
Not all individuals are eligible to obtain an Order of Protection from someone who has caused them harm or has threatened them with harm. According to New York state law, only the following people may file:
- A spouse, former spouse, parent, child or member of the same family or household as the respondent
- A duly authorized agency, association society or institution
- A peace officer, acting pursuant to his or her duties, or a police officer
- A person on the court’s own motion
For purposes of a Family Offense Proceeding, “members of the same family or household” mean the following:
- Persons related by consanguinity (blood relation) or affinity
- Persons legally married to one another
- Persons formerly married to one another regardless of whether they still reside in the same household
- Persons who have a child in common regardless of whether such persons have been married or have lived together at any time
- 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
Whether or not you need to obtain an Order of Protection against your spouse or ex-spouse is a purely personal decision made based upon the facts of your unique situation. If there is domestic violence involved, obtaining protection may be the first step to ensuring the physical safety of both you and your children.
In order for a court in Nassau County or Suffolk County to grant an Order of Protection, you’ll need to file what is called a Family Offense Petition.
The Petition asks you to provide information about your relationship to the respondent, which Family Offense was violated, whether children live with you, whether the respondent owns or is in possession of a firearm and whether the respondent has a criminal record. In most cases, the day a Family Offense Petition is filed, the petitioner will appear before the court.
Once the Petition is filed, the abuser will be served with legal papers. A county sheriff will personally serve the papers on the abuser so that the court can ensure the abuser receives notice of the Petition and has an opportunity to be heard at the hearing.
On that first appearance date, a family court may issue a Temporary Order of Protection. The court may order the respondent to refrain from certain actions, like communicating with the petitioner, or stay away from the petitioner and/or the petitioner’s children.
If the respondent owns or is in possession of a firearm, the court may direct the respondent to turn it over to the police until the proceeding is resolved. However, because this order is temporary, it will typically only be in effect until the date the respondent is directed to be in court.
While there won’t be a trial, you may have a fact-finding hearing before your Order of Protection is granted. When the respondent appears in court, they have the choice to admit or deny the allegations in the petition.
If they admit to the allegations, then the order will be issued and there will be no hearing. If the allegations are denied, a fact-finding hearing will take place to determine whether the claims are likely to be true based on preponderance of the evidence.
The potential outcomes of this hearing are:
- Dismissing the petition
- Suspending judgment for not more than 10 months
- Placing respondent on probation for not more than a year (FCA § 841 )
- Granting an Order of Protection
- Restitution ordered from the respondent
What’s included in an Order of Protection can vary greatly depending on the circumstances of each case and the reason the order is needed. If granted, the order may include but isn’t limited to restrictions like:
- Reasonable conditions of behavior for not more than two years
- Stay away from the individuals and places specified in the order
- Refrain from behaviors specified in the order
- Pay counsel fees and disbursements as ordered
- Court-ordered therapy, anger management, or drug/alcohol counseling
- Pay for medical expenses incurred due to violence against the victim
- Surrender of firearms and licenses
Some 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.
When a parent files a petition for an Order of Protection, Child Protective Services (CPS) may be contacted to determine whether a child is or may be in danger of abuse or neglect. Abuse is defined by Long Island, NY courts as any behavior that results, or is likely to result, in serious physical injury to the child, including any sexual offense.
If you believe that your partner or ex-partner may be abusing your children, you should immediately report it to CPS. If CPS determines that the child is the subject of abuse or neglect after its investigation, criminal charges will likely follow.
Depending on the circumstances of each case, CPS may decide to place the child in foster care while services such as parenting classes are provided to the abusive parent. Or, the court may decide to release the child to a fit and willing relative who will care for the child.
An Order of Protection is often a useful deterrent for abusive behavior, since it’s a crime that can be prosecuted if it’s violated. 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. Instead, the order of protection will allow the police to arrest immediately on-site if the order is being violated. Even if the victim or petitioner of the order initiates contact, the respondent still may not violate the terms of the order.
If the respondent violates a valid Order of Protection, you should immediately call the police, who will enforce the order and document the violation. If the court finds that the respondent willfully violated or knowingly failed to obey an Order of Protection, they could:
- Modify the existing order to add conditions
- Issue a new order
- Direct the respondent to pay counsel fees for the petitioner
- Commit the respondent to jail for a term of no more than six months
If you’re facing a difficult situation involving domestic violence, you don’t have to go it alone. At Hornberger Verbitsky, P.C., Long Island Divorce & Family Law Attorneys, our team understands the importance of addressing these issues with sensitivity and care. If you find yourself in need of protection or are a victim of domestic violence seeking legal support, our unwavering commitment is to stand firmly by your side.
Our experienced team of divorce attorneys is here to assist and support you during this challenging time. We can help you navigate the legal process and obtain the necessary orders of protection to ensure your safety. Contact us today at 631-923-1910 or fill out the form on this page to schedule a free consultation and case evaluation and take the first step toward a safer and brighter future.
Christine Verbitsky was an absolute godsend. At arguably the most difficult time in my life, Christine helped me cope with my situation and gave me a solid basis for hope going forward. She got to know me. She understood what I wanted and helped me understand my legal options. Christine is intelligent, incredibly well-versed in the law and was able to pro-actively take the bull by the horns in caring for both my legal and emotional needs. Instead of letting things drag on, Christine stayed on top of my case and kept costs at a minimum. She was always available to me, fast, efficient, knowledgeable, and caring. I highly recommend her professional services.
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