Long Island Family Law and Mediation Blog
If you’ve followed my bullet point series on orders of protection until now, you’ll know that these documents can be a common consideration in a range of divorce and family law cases. When a family “offense” takes place, causing danger to a specific member of the family unit, an order of protection can be issued to protect that individual.
Orders of protection appear in both family court, and the criminal court, depending on the case in question. For today’s segment on this order of protection series, we’re going to be looking at the differences in the ways different courts address orders of protection.
As usual, you can find additional guidance on the topics mentioned here throughout this website.
Orders of Protection in Family Court
An order of protection is a document issued by the court to reduce certain behaviors in someone who has been accused of a family offense or attempting to harm/threaten another person. Your family law attorney can argue for or against these orders. These orders can address various safety issues in the family unit, including domestic violence issues.
- Supreme courts, criminal courts, and the family court are all permitted to issue orders of protection. However, there are differences in the orders issued by each of these courts. For instance, a family court case will not be considered a “criminal” proceeding. For a family court order of protection to be granted at the end of the case, either an agreement is made for that or the petitioner would need to show evidence of their case, ideally with the help of a family law attorney, by a preponderance of evidence (more probably true than not).
- In criminal cases, regarding orders of protection, if a plea deal hasn’t been made, a case will need to be proven beyond a reasonable doubt for the order to be issued. The accused in a criminal court case may face a criminal conviction, which demands a higher burden of proof than typically expected in family court.
- Family court orders of protection can be issued within a civil proceeding, and these orders are often helpful to stop violence in a family or intimate relationship. The accuser in family court must have a “family” relationship with the accused to take the order of protection case to family court. Family might be defined as someone you’re related to via blood or marriage, people from an intimate relationship, or an individual with whom you have a child.
- For proceedings to begin in a family court case, the accuser must file a form known as the family offense petition, which names the individual as the “petitioner”. The accused can challenge whether family offense allegations are true.
Orders of Protection in Criminal Court
Orders of protection in criminal court can be granted for people who wouldn’t normally fall into the typical categories of “family”. Criminal cases will often begin after an arrest has been made. The person accused of the crime will need to be brought into a court environment, in front of a judge. In this case, it is crucial to have an experienced attorney working with you.
- Orders of protection in criminal court are only issued against someone charged with a crime. In New York, district attorneys handle criminal cases, and the victim will be seen as the complaining witness. In family court, the petitioner initiates a case, but the government prosecutes the individual in a criminal case.
- If a protected party in a criminal case doesn’t want to pursue the order of protection any further, they may not be able to have the order request withdrawn, because of the government’s involvement.
- Pending orders of protection in criminal court will often be referred to as “temporary” orders. However, despite this, it’s important to note that if one is granted at the end of the case, it will be referred to as a “permanent” order of protection. This term doesn’t mean that the order will last forever. Instead, a permanent order of protection simply refers to the one given after the case has ended, for any length of time.
- Sometimes, orders of protection can also be common in cases surrounding domestic violence, and these issues are dealt with by Integrated Domestic Violence
- If a person properly alleges a family offense when taking their order of protection case to family court, the court will usually grant a temporary order of protection without even waiting for feedback or arguments from the accused side.
If you have any questions about orders of protection, whether issued through the family court, supreme court, or criminal court, you can find additional guidance on this website to help you. If you have specific concerns and would like to talk to me about your case, you can arrange for an initial consultation lasting up to thirty minutes free by getting in touch via our online form, or over the phone to get a tine on our calendar. We can arrange your consultation in a range of ways, including in-person conversations and video chat.