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
(C) A peace office, acting pursuant to his special duties or a police officer
(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
(c) Persons formerly married to one another regardless of whether they still reside in the same household
(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.
More Questions About Orders of Protection on Long Island?
We’re Here to Help
The Law Offices of Robert E. Hornberger, Esq. regularly helps Long Islanders obtain Orders of Protection in Nassau County and Suffolk County Family Law Courts. For a free consultation, call us at 631-923-1910 or fill out the short form at the top of this page.