Manhattan Order of Protection
When people fear for their safety and the safety of their family members, the court may issue an Order or Protection against the person who poses the threat. 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. While many Orders of Protection are based on the petitioner's legitimate fears, in some cases such fears are baseless. In other words, there are always two sides to a story. If someone has wrongly filed a petition for an Order of Protection against you there are ways that you can fight it. Contact an experienced Manhattan Order of Protection Lawyer who understands the legalities related to Orders of Protection and who will work closely with you to get the Order of Protection dismissed.
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An Order of Protection can be issued by a Family Court judge or by a Criminal Court judge. Family Court orders of protect can only be issued under specific circumstances. To get an Order of Protection in Family Court the person requesting the order, referred to as the petitioner, must have a special relationship with the respondent. The respondent is the person from whom the petitioner needs protection. The relationship must be that the petitioner and the respondent are members of the same family or have or had an intimate relationship. For example, the petitioner and the respondent must be people who are or were spouses, people who are or were dating or people who shared the same household.
The process for obtaining a Criminal Court Order of Protection is different from the Family Court process. First, there must be a criminal case. 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 victim, also referred to as the complaining witness. Unlike Family Court, it is not required that there be any family or intimate relationship between the parties involve regarding a Criminal Court Order of Protection. In fact, the parties could be complete strangers.
An Order of Protection can be full, exclusionary, or limited. A full Order of Protection will require you to stay away from the victim or petitioner. This means that you must stay away from that person's home, place of employment, and any other place mentioned in the Order. It may also require that you stay away from that person's children. This type of Order of Protection is also called a "stay away" Order.
An exclusionary Order of Protection will require you to leave the home that you share with the person holding the order. This means that you have to move out of the home or apartment, even if your name is on the lease.
A limited Order of Protection requires you to stop a certain type of behavior such as threatening or harassing the person holding the order. This type of Order is also called a "refrain from" Order.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.Vacating a Family Court Order of Protection
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
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 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 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: