New York Order of Protection Defense

In New York, Criminal Court orders of protection are issued during criminal proceedings to help protect alleged victims from further harm. These court orders can arise in cases involving assault, stalking, domestic violence, or any behavior that poses a threat to the safety of another person. Though the initial purpose is to address concerns in a criminal prosecution, a Criminal Court order of protection can also have significant implications in Family Court.

In some cases, the protected party or the accused may later file a petition in Family Court. This can result in concurrent legal proceedings in two separate court systems, both involving the same parties and often the same underlying incident. If you are subject to a Criminal Court order of protection, it is important to understand how that order could impact or lead to proceedings in Family Court, especially if child custody, visitation, or allegations of family offenses are involved.

If you have been served with a Criminal Court order of protection or are navigating related Family Court matters, contact an experienced New York order of protection lawyer to understand your rights and options.

A Criminal Court order of protection is issued in the context of a criminal case under New York Criminal Procedure Law (CPL) Article 530. When a person is charged with a criminal offense, the judge may issue an order of protection to help ensure the safety of the alleged victim or witnesses. These orders can be temporary or final, depending on the status of the case.

Temporary orders of protection are often issued at arraignment and remain in effect while the case is pending. A final order may be issued as part of a sentence following a conviction or plea deal. The person who is the subject of the order is referred to as the defendant, while the protected party is usually the alleged victim.

Common charges that may result in a Criminal Court order of protection include:

• Assault (Penal Law § 120.00)
• Menacing (Penal Law § 120.15)
• Stalking (Penal Law § 120.45)
• Harassment (Penal Law § 240.26)
• Criminal Mischief (Penal Law § 145.00)
• Sexual Offenses (Penal Law Article 130)
• Endangering the Welfare of a Child (Penal Law § 260.10)

Under CPL § 530.12 and § 530.13, the court has authority to issue orders of protection in misdemeanor and felony cases alike. The order may include provisions such as no contact, stay-away directives, and requirements to surrender firearms.

There are generally two forms:

• Full Stay-Away Order: The defendant must avoid any contact with the protected party, including in person, by phone, text, email, or through third parties.
• Limited Order: The defendant may have contact but must refrain from acts of harassment, intimidation, threats, or violence.

Criminal Court judges have wide discretion in setting the terms of the order based on the nature of the charges and any past conduct. Violating the terms can result in additional criminal charges, including criminal contempt. If you are unsure how the terms of your order apply, speak with an experienced New York order of protection lawyer for guidance.

Although Criminal Court handles criminal prosecutions, the people involved in the case often have personal relationships that fall within the jurisdiction of Family Court. These relationships include current or former spouses, people with a child in common, family members by blood or marriage, and those in an intimate relationship.

A protected party in a criminal case may also file a family offense petition in Family Court under Article 8 of the Family Court Act. This is a separate civil proceeding that can lead to a Family Court order of protection. Family Court proceedings are designed to address ongoing family or relationship dynamics, and they may deal with issues not addressed by the Criminal Court, such as:

• Child custody and visitation
• Parental access and supervision
• Counseling and services
• Civil remedies for harassment or abuse

People v. Cruz, 2023 NY Slip Op 50437(U) offers a practical example. In that case, the defendant was charged with assaulting the complainant, who was also the mother of his child. The Criminal Court issued a temporary order of protection, but because the parties shared a child and a residence, the judge modified the order to allow limited contact and made clear that the terms were subject to future Family Court decisions. The case underscores how Criminal Court may impose immediate protective measures, while Family Court is often the forum for resolving longer-term family matters, particularly those involving parenting and cohabitation.

In addition to a criminal case leading to a Family Court case, it is also possible to have both a Criminal Court order of protection and a Family Court order involving the same individuals. Each court acts independently, though the underlying facts may overlap. The legal standard and procedures in each court are different. A qualified and experienced New York order of protection lawyer can help you understand how proceedings in one court may affect the other.

The protected party seeks to establish or modify custody or visitation arrangements. Criminal Court orders of protection can impose restrictions that inadvertently affect parental rights, such as limiting contact between a parent and their child. To address and formalize custody or visitation rights under these new circumstances, the protected party may initiate proceedings in Family Court.

For example, as mentioned earlier, in People v. Cruz, the complainant was the mother of the defendant’s child. She reported that he assaulted her by grabbing her arms, shaking her, and squeezing her neck, leading to charges including assault and menacing. At arraignment, Criminal Court issued a full stay-away order of protection. However, because the parties shared a child and a residence, the judge modified the order to allow the defendant one-time access to retrieve his belongings and clarified that the order was subject to any future Family Court rulings. This case shows why someone might need to go to Family Court even with a Criminal Court order—only Family Court can decide custody or visitation.

The protected party wants to extend protection beyond the duration of the criminal case. Criminal Court orders of protection are typically tied to the duration of the criminal proceedings and may expire upon case resolution. If the protected party feels the need for continued protection, they can petition Family Court for an extension.

In Matter of Molloy v. Molloy, 137 A.D.3d 47 (2d Dept 2016), the petitioner sought to extend a Family Court order of protection beyond its two-year term, even though a separate Criminal Court order had been issued. The Family Court denied the extension, reasoning that the Criminal Court order was sufficient. On appeal, the Appellate Division reversed, holding that the existence of a Criminal Court order did not bar Family Court from extending its own order if “good cause” was shown. This case illustrates how a protected party may turn to Family Court to extend protection beyond the duration of a criminal proceeding, especially when the Family Court order offers broader or longer-term safeguards.

The criminal matter is dismissed or resolved without a final order, and civil protections are still desired. Criminal Court orders of protection are typically tied to the duration of the criminal proceedings and may expire upon case resolution. If the protected party feels the need for continued protection, they can petition Family Court for an extension.

A Criminal Court order of protection can significantly affect custody and visitation, even if it does not directly address those issues. For example, if a parent is accused of domestic violence and a stay-away order is issued, they may be unable to see their children or access the home. This can lead the other parent to seek a Family Court order limiting or supervising parenting time.

Either party may start a Family Court case even while a related criminal case is pending. The process begins by filing a petition under Article 8 of the Family Court Act. The petition must allege that a family offense occurred and that the parties are related in a qualifying way.

The official form used to initiate this proceeding is Form GF-5, the Family Offense Petition. It is available from the New York State Unified Court System website or can be obtained directly from any Family Court clerk’s office. The petition should be filed in the Family Court located in the county where the petitioner lives, where the respondent lives, or where the alleged incident occurred. For example, if the petitioner lives in Nassau County, they would file the petition at Nassau County Family Court, located at 1200 Old Country Road, Westbury. If the petitioner lives in Suffolk County, they could file at one of two Suffolk County Family Court locations: 400 Carleton Avenue, Central Islip or 210 Center Drive, Riverhead.

Even if the protected person is already named in a Criminal Court order, they may want Family Court to address additional matters, such as:

• Temporary custody
• Supervised visitation
• Family counseling
• A longer-lasting civil order of protection

The respondent in Family Court is entitled to notice and a hearing. A temporary order may be issued on the same day the petition is filed. The outcome of the criminal case does not automatically determine the result in Family Court. An experienced order of protection attorney serving New York can help you present or respond to a petition and protect your rights throughout this process.

A dismissal in Criminal Court does not prevent the protected party from pursuing a Family Court case. The two courts operate under different standards and serve different purposes. In Criminal Court, the prosecution must prove the charges beyond a reasonable doubt. If that standard is not met—because of insufficient evidence, witness unavailability, or other reasons—the charges may be dismissed. But that outcome does not mean the alleged conduct never occurred.

Family Court cases are civil, and the burden of proof is lower. Under Family Court Act § 812(2)(b), Family Court can hear a family offense petition based on the same incident that led to a dismissed criminal charge. The court only needs to find that the offense occurred by a preponderance of the evidence—meaning it is more likely than not that the conduct happened.

Family Court also has broader goals. In addition to safety, the court considers the nature of the relationship, whether children are involved, and whether ongoing contact between the parties may be necessary due to shared parenting responsibilities. Even if the criminal case ends without a conviction or final protective order, the Family Court may still issue a civil order of protection, impose conditions such as supervised visitation, or refer the parties to services like counseling or mediation.

Only the judge in Criminal Court can modify or lift a Criminal Court order of protection. Even if the protected party requests contact, the order remains enforceable until the court officially changes it. A violation can still result in arrest and prosecution.

If a related Family Court case exists, the defendant may ask that court to address visitation or custody, but Family Court cannot modify a Criminal Court order. Coordination between the two courts is sometimes necessary.

Yes. A Criminal Court order of protection can appear on background checks, particularly if it is part of an open or resolved criminal case. Even temporary orders may be visible during the pendency of a criminal matter. This can affect employment, licensing, immigration status, and housing.

In addition, under federal and state law, individuals subject to certain Criminal Court orders of protection may be prohibited from possessing firearms. CPL § 530.14 requires surrender of firearms when an order is issued in cases involving physical force or threats. This may affect law enforcement officers, security personnel, and others whose jobs involve firearms.

Q: Can a Criminal Court order be extended after the case ends?

A: Yes. According to New York Criminal Procedure Law § 530.13, upon sentencing for a conviction, the court may enter an order of protection as part of the sentence. The duration of such orders is determined by the court and can be up to eight years for felony convictions and five years for misdemeanor convictions.

Q: Can I file in Family Court even if there is a Criminal Court order?

A: Yes. The existence of a Criminal Court order does not prevent you from seeking a Family Court order, especially for child custody or civil protections.

Q: Can the protected party drop the Criminal Court order?

A: No. Only the judge can modify or terminate the order. The protected person’s wishes may be considered but are not controlling. Keep in mind that criminal cases are brought by the District Attorney's Office, not by individual victims. Once charges are filed, the case proceeds at the discretion of the prosecution, and the court, not the protected party, has the authority to decide whether an order of protection remains in effect.

Q: Can I see my child if there is a Criminal Court order?

A: Only if the order permits it. If not, you must ask the court to modify the order or seek parenting time through Family Court.

Q: What happens if I violate the order?

A: Violating an order of protection in New York is a serious offense that can lead to additional criminal charges, primarily under the state's criminal contempt statutes. The severity of these charges depends on the nature of the violation:

• Criminal Contempt in the Second Degree (Penal Law § 215.50): A class A misdemeanor charged when someone knowingly disobeys a court order, including an order of protection.
• Criminal Contempt in the First Degree (Penal Law § 215.51): A class E felony involving threats, stalking, or physical contact in violation of an order of protection.
• Aggravated Criminal Contempt (Penal Law § 215.52): A class D felony for causing physical injury to a protected person while violating an order of protection.

An illustrative case is People v. Wood, 95 N.Y.2d 509 (2000). In that case, the defendant was subject to a Family Court order of protection that directed him to stay away from the complainant, his former partner. Despite this, the defendant went to the complainant’s home and engaged in threatening and harassing conduct. He was arrested and charged with criminal contempt in the first degree under Penal Law § 215.51. The defendant argued that because the underlying order came from a civil proceeding in Family Court, it could not serve as the basis for a criminal contempt prosecution.

The New York Court of Appeals rejected this argument and upheld the conviction, holding that an order of protection issued by Family Court carries the full force of law. The Court emphasized that violating such an order, even if issued in a civil case, can be prosecuted criminally, and doing so protects the integrity of judicial authority and the safety of those who rely on court-ordered protection.

It's important to understand that even minor or seemingly innocuous contact with the protected party can constitute a violation. For instance, sending a text message or appearing at the protected person's residence, even without direct interaction, can lead to criminal contempt charges. Therefore, strict adherence to the terms set forth in an order of protection is essential to avoid further legal consequences.

If you are dealing with a Criminal Court order of protection or have questions about how it may lead to or affect a Family Court case, talk to an experienced order of protection attorney in New York. At Stephen Bilkis & Associates, we represent clients in both criminal and family law matters. Whether you are facing charges, seeking to enforce an order, or responding to a Family Court petition, we can help you understand your rights and develop a strategy to protect your interests. Contact us at 800.696.9529 for a free consultation. We represent clients throughout New York City and Long Island, including in Queens, Brooklyn, Manhattan, Bronx, Staten Island, Nassau County, Suffolk County, and Westchester County.