Temporary Orders of Protection may be, but not necessarily final Orders of Protection. For a final Order of Protection you need to prove your case more probable than not justifies the Order or, have an agreement between the accuser and accused that the order will be in place.
Filing a Family Offense Petition to get a court to issue an Order of Protection (some people like to call it a Restraining Order) is a relatively simple procedure in New York State . Whether a person is represented by an attorney or not.
If you go down to family court in New York and tell the court filing office what you want to do and why, they often help out. However, getting the wording right in the legal papers with the help of an attorney may make the order of protection application stronger.
If you feel an immediate fear or feel harassed for example, a temporary Order of Protection may be granted at the discretion of a judge the same day you file your paperwork, or soon after. An Order of Protection can include allegations linked to stalking, repeated unwanted phone calls or texts, verbal or physical aggression, sexual intimidation or, physical assault. In family court it can be used to protect you from your husband, your wife, your live-in boyfriend, your live in girlfriend, your adult child and some other related people. It can include words to protect you and some other family members who live with you. The court may issue an Order of Protection for them to stay completely away from you and not to contact you by phone, email or through other people. Or, a court may do a more limited order which could include stating they must not come to your work, home or the school your child attends. A temporary order is often issued by a judge BEFORE the other person who you are accusing even appears in court for the first time. Then it can, and often is, extended until the case ends by a fact-finding hearing (some call it trial) on the issues. An Order of Protection case can also come about through an agreement between the parties approved by the court, which avoids a trial or through a trial.
Defending against allegations that leads to a temporary Order of Protection can be very tricky in New York State family court. It has been said, that some people go into the filing office in family court and make up untrue allegations that sound concerning enough for a judge to immediately issue the order. The other challenge is that the accuser in most cases only has to establish their allegations are more probable than not. Unlike the Orders of Protection filed in Criminal Court where the allegations generally have to be proved beyond reasonable doubt. Many people end up having to defend themselves in family court and criminal court by the same accuser involving the same allegations, as the allegations may be deemed to raise to the level of a criminal offence. This is called the standard of proof, meaning how much does the court have to believe the accuser before deciding that an Order of Protection should be issued. New York State Family Law attorneys may explain this standard of proof to you. These are some of the main hurdles people fighting against Orders of Protection have to deal with.
The solutions to resolving false or unfair or just stressful allegations in an Order of Protection application may involve gathering supporting evidence that contradicts the allegations and be consistent with your defense and wining at a fact finding hearing (commonly called the trial). Or, offer to settle the case by not admitting guilt and agreeing to stay away from the accuser for a set period of time (for example six months) after which time the case automatically ends. A trial is avoided, the case ends, you are not found guilty nor are you admitting guilt, and no more going to court on the case unless you violate the agreement.
Best to ensure any agreement is approved by the court as an Order and you understand the full meaning and consequences of what you have agreed. A violation of such an agreement can have serious consequences, including the risk of the case being placed in criminal court. Criminal court can issue more harsher sentences and penalties than family court for an Order of Protection case. Another point to note, is that the credibility of the accuser can be challenged if they have prior withdrawn allegations or allegations that they lost in court concerning Orders of Protections against you or other people. Or, if the accusers themselves have had Orders of Protections or similar offenses filed or issued against them. These are just some ways of fighting back and defending yourself.
Many clients have an overlap between being fearful or intimidated by their husband or wife or other family member, and concerns about their Immigration status. In some cases Orders of Protection can assist in immigration cases.
The idea that Orders of Protection, at least the temporary ones, are fairly easy to obtain has to be balanced by the too often real harm and fear people go through and the urgent emergency need for help from the courts to protect them. False accusations of harm must also be challenged as this too, can cause real hardship to the person being accused. It is a balancing act that the courts have to juggle and each individual case should be considered on its specific circumstances.
By The Law Office of Leah T. Wills Pllc.
All information in this blog is for general information purposes only and should not be taken as legal advice or direction for any individual situation. The information on this blog does not create an attorney-client relationship.