Westchester County Order of Protection Lawyer

An Order of Protection is a court order that is designed to protect people who fear for their safety. While Orders of Protection are regularly issued in situations where those involved do not know each other or do not have a close relationship, they are also regularly issued in cases of domestic violence. Domestic violence is a general term used to describe certain types of crimes that occur between people who have a family or intimate relationship. Examples of such relationships include spouses and former spouses, those who are dating or who used to date, roommates and people who are co-parents. Because such relationships can involve complicated emotions, violent or threatening behavior sometimes occurs. As a result, an Order of Protection is needed to protect the person to whom the violent behavior or threats were targeted. While many Orders of Protection are issued based on legitimate fears in some cases such fears are baseless. An unnecessary Order of Protection can be damaging to your personal and professional lives. In fact, it could cause you to lose custody or visitation with your children. If an Order of Protection has been issued against you there are ways that you can fight it. Contact an experienced Westchester County Order of Protection Lawyer who understands the legalities related to Orders of Protection and who will work closely with you to develop a strategy to get the Order of Protection vacated.

What is an Order of Protection?

An Order of Protection, commonly referred to as a restraining order, is a legally enforceable court order that is designed to protect someone against the violent or threatening acts of another person. The person whom the Order is designed to protect is referred to as the victim or the petitioner. If an Order of Protection is issued against you it will place limitations on your behavior. For example, it may direct 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. An Order of Protection may be issued by a Criminal Court judge based on the request of the prosecutor, or it may be issued by a Family Court judge upon petition from the victim.

What Types of Court can Issue Orders of Protection?

An Order of Protection can be issued by a Family Court judge or by a Criminal Court judge. A Family Court Order of Protection can only be issued in situations where there is a dispute or court proceeding involving family members. The person seeking protection, called the petitioner, must petition the Family Court for an Order of Protection. In Family Court the petitioner can seek an Order of Protection against:

  • A spouse
  • A former spouse
  • Another family member
  • A person with whom the petitioner has a child
  • A person with whom the petitioner has or has had an intimate relationship

After filing the petition for an Order of Protection, the petitioner must appear in court. The judge will determine whether or not based on the information provided in the petition, an Order of Protection is warranted. If the judge determines that an Order is warranted, the judge will typically issue a temporary Order of Protection that will last only until the next court date.

A Family Court judge can also issue an Order of Protection without a petitioner. This will happen in instances where a judge is presiding over a Family Court matter and based on what occurs during that proceeding feels that and Order of Protection is warranted even if the person needing protection has not requested one.

The process for obtaining a Criminal Court Order of Protection is different from the Family Court process. First, there must be a criminal case. In other words the person named in the Order of Protection must have been arrested, or there must be a warrant for that person's arrest. Second, the parties involved do not have to be family members of have some sort of intimate relationship. In fact, the parties are often strangers. At some point during the criminal case if the prosecutor feels that an Order of Protection is needed, the prosecutor will request that the judge issue one to protect the complaining witness who is also the victim of the crime.

What Types of protects can Orders of Protection provide?

An Order of Protection can be full, limited or combination of both. A full Order of Protection will require you to stay away from the victim or petitioner. The judge will be very specific as to what you can and cannot do. For example, the Order of Protection may require that you stay away from the home, school, business or place of employment of the victims. N.Y. Crim. Proc. Law § 530.13(1)(a). A full order of Protection is also called a "stay away" Order.

A limited Order of Protection requires you to stop certain types of behavior including harassing, intimidating, threatening, or otherwise interfering behavior directed toward the victim or family members of the victim. It may also direct you to refrain from injuring or killing a pet of the victim. N.Y. Crim. Proc. Law § 530.13(1)(b). This type of Order is also called a "refrain from" Order.

In the case of a Family Court refrain from Order, the court may direct that the respondent refrain from committing a family offense. Family offenses include:

  • Disorderly conduct
  • Harassment in the first and second degree
  • Aggravated harassment in the second degree
  • Stalking in the first, second, third, and fourth degree
  • Menacing in the second and third degree
  • Reckless endangerment in the first or second degree
  • Assault in the second and third degree
  • Attempted assault

In addition, if an Order of Protection is issue against you, your license to possess a firearm will be suspended.

How long will an Order of Protection last?

An Order of Protection can be either temporary or permanent. A Criminal Court temporary Order will remain in effect until the next time the defendant appears in court. At that time the judge may extend it. At the end of a criminal proceeding a judge may make a temporary Order of Protection permanent. Even though such an order is called "permanent" the maximum duration of a permanent Criminal Court Order of Protection is 8 years for a felony conviction, 5 years for a Class A misdemeanor conviction or 2 years for a Class B misdemeanor conviction.

A Family Court temporary order is generally effective for only 4 days. This allows time for the respondent to come to court to address the allegations in the Order. At that time the Family Court judge will decide whether to vacate it or extend it.

What are the Consequences of Violating an Order of Protection?

Regardless 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 issued 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. This is what happened to the defendant in People v. Lawing, 975 N.Y.S.2d 778 (2013). In this case defendant Jermel Lawing violated a stay away Order of Protection 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.

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.

In addition, if you cross state lines to violate an Order of Protection, you may be subject to federal prosecution.

How can I get an Order of Protection dismissed?

An 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. Even the person requesting the Order cannot change the order. The petitioner can ask the court to dismiss the Order. However, it is ultimately up to the judge to decide whether or not to lift the Order.

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 informs you as to 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

What should I do if I am Named in an Order of Protection

While having an Order of Protection issued against you is not the same as being incarcerated, it can present serious problems for both your personal and professional life. However, if you violate such an order you will face criminal charges that could result in you going to jail. Thus, it is important that you abide by the restrictions of an Order of Protection and go through proper legal channels to fight 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 1.800.NY.NY.LAW (1.800.696.9529) to schedule a free, no obligation consultation regarding your case. We serve those accused of domestic violence and other crimes in the following locations:

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