It’s also worth noting that the courts have reduced the number of cases that they are willing to hear, to avoid the unnecessary gathering of people in a legal environment. The courts are only open for essential cases at this time. Although the definition of “essential” may change in the months to come and may differ on a case by case basis, we do know that Orders of Protection are listed as essential. Usually, these cases are managed in Family Court, within Nassau, Suffolk, Queens County and other areas. Most of these courts have adopted virtual court appearances at this time for safety reasons and to comply with the orders, guidelines, and directives that apply during the coronavirus
Applying for an Order of Protection at This Time
People considered to be family have the option to access orders of protection against other family members when certain offenses are committed. My office has helped various families to apply for or defend against these orders over the years and will continue to do so at this time.
Orders of protection can be given in favor of alleged victims of crimes without the family member needing to go through a criminal prosecution. To do this it is possible to request an order of protection by going through the family court with your order of protection lawyer or by yourself. In most cases, if a person alleges a family offense in a petition to the courts, the court will usually grant a temporary order of protection, based on the presentation by the petitioner. Frequently, agreements are made to set an order of protection in place for a specific amount of time, such as six months, one year or up to 2 years, even if the accused doesn’t admit to any of the allegations. These are called consent orders.
There is a much lower burden of proof in these cases than that required for criminal cases, which is called “preponderance of evidence”. This means that if a court believes someone’s allegations are more probably true than not that they have sustained their burden of proof. We can actually put a number of greater than 50% probable to quantify how much proof is required. Likewise, if the proponent of the Order of Protection has not met this burden than the other side can ask for the case to be dismissed.
If you’re concerned about getting an order of protection during the time when the Coronavirus COVID-19 pandemic is happening, you can reach out to myself to discuss what your options are.
What is a Family Offense?
To acquire an order of protection, an individual will need to allege that a family offense has occurred. A family offense is defined as conduct between family members that are deemed as crimes or violations under Section 812 of New York Penal Law. Possible examples of family offenses that may allow for an order of protection include:
- Harassment in the second degree: Referring to actions like attempting physical contact, following people in public places, or pursuing someone with the intent to harass or alarm that person.
- Assault in the third degree: Referring to an instance where someone attempts to cause physical injury to another.
- Disorderly conduct: Referring to reckless behavior causing annoyance or alarm by making noise, using abusive language in public, or fighting.
- Stalking in the fourth degree: Referring to someone following a person and intending to cause physical or mental harm to the person through starting contact with that person or threatening them.
- Menacing in the third degree: Referring to using physical menace to put someone in fear for their life, or in fear of serious physical injury.
- Aggravated harassment in the second degree: This can happen when someone intends to annoy, threaten, alarm or harass a person when communicating with that individual by phone, text, or email for example. A husband or wife calling a partner and threatening to kill them or injure them might be cause for an order of protection in this case.
There are a number of other specified family offenses.
The family court defines members of a family or household entitled to an order of protection as people who are legally married to each other, people formerly married to each other, people who have a child in common, and people who are not related who have been in an intimate relationship.
Importantly, it’s worth noting that every case is different in family law, and you will need to work carefully with an experienced attorney to ensure that you present your case in the correct way to the family court, even in this difficult time.
If you’re not sure whether you need a family order of protection at this time, or you need help figuring out how to pursue the right kind of protection, please feel free to call my office. You can arrange for a meeting with me at a time when I will be available over the phone, video or skype. We can discuss exactly how to present your issue to the courts, defend yourself against them and determine your best course of action. Please use my contact form or call. It would be my pleasure to speak with you about it.