What to do if you have an order of protection against you in NY?

Order of protection or restraining order is a legal order issued by a court that requires one person to stop abusing, harassing, threatening or intimidating another person. Orders of protection are a common occurrence in a domestic violence case, but may be issued under other circumstances.

  1. Contact your attorney immediately. They will help you with what your rights are.
  2. Review the papers with your lawyer — It is essential to review the papers to determine exactly what the restraining order requires you to do.
  3. Once you understand the order, you will need to comply with the terms, which may include not having contact with the person who filed the order against you. Avoid any behavior that could be interpreted as threatening or harassing toward the person who has the order of protection against you. This could mean no direct, or third-party contact including texting, email social media. Violating an order of protection - restraining order - can result in criminal charges.
  4. Appear at the order of protection hearing.
  5. In New York State, if you have been served with an order of protection, you have the right to challenge the order in New York courts. To do so, you must file a Motion to Vacate the order of protection. This document tells the court that you do not agree with the order of protection and why you believe it should be removed. The court will then hold a hearing where both you and the person who filed the order of protection (the petitioner) will have a chance to present evidence and argue your respective positions. The judge will then decide whether to vacate (remove) the order of protection or leave it in place. If the order of protection becomes permanent, it will show up on your criminal record and background checks.

    An order of protection needs to be served on the defendant and needs to be properly filed with the court. If this was not properly done, there can be a case for dismissal.

  6. If the order of protection stands, you will need to go with your lawyer to all subsequent court dates

A Family Court Order of Protection, Domestic Violence restraining order is issued as part of a civil proceeding to stop violence or offenses that are occurring within the family or within an intimate relationship. Family offenses include: disorderly conduct, harassment, assault, sexual abuse, menacing, reckless endangerment, strangulation, stalking and criminal mischief. Judge first grants a temporary order of protection to petitioner and in a future court date the judge will determine if the order of protection will remain in place – permanent order of protection in NY.

The order of protection can order the respondent to stay away from the protected person, and not come within a certain distance of them. Give custody of children to the protected person, order the respondent to move out of the home, to surrender their firearms, require the payment of child or spousal support, require the respondent to pay petitioner’s legal cost, and require respondent to attend abusive partner intervention program.
In order to obtain an order of protection in Family Court, your relationship to the other person involved must fall in at least one of the following categories:

  • Current or former spouse.
  • Someone with whom you have a child in common.
  • A family member to whom you are related by blood or marriage.
  • Someone with whom you have, or have had, an 'intimate relationship.” Family Court will consider several factors such as, but not limited to: how often you see each other or how long to determine “intimate relationship.”

A judge can issue an order of protection to the accused during arraignment. This order will be temporary until the case is resolved. A “final” order of protection may be granted as a part of a plea deal or sentencing.

The petitioner does not need to have an intimate or personal relationship with the person charged with the offense.

A Supreme Court order of protection can be issued as part of ongoing divorce or criminal proceeding.

Protective order violation can result in them modifying the protective order or issuing a new one with more restrictive terms, new arrest and misdemeanor or felony criminal contempt charges.

Temporary Order of Protection - sometimes called emergency restraining orders: Issued the same day that a complainant files for an order of protection and lasts only until the next court date, at which point it may be extended.

Stay-away or Full Order of Protection: A full order of protection means that the subject of the order of protection must stay completely away- no-contact order - from the complainant, their home, job and school, and must not abuse, harass, or threaten them. Subject of order of protection should have no contact directly or through third parties.

Refrain from or Limited Order of Protection: The parties can have contact but must refrain from committing family offenses or criminal offenses like harassing, assaulting, stalking, threatening.

Final Order of Protection: A final order of protection is issued when the case results in a conviction (whether by plea or after a trial) in criminal court

New York ex parte restraining orders or orders of protection are orders issued by a judge while the respondent is not present in court. Ex parte restraining orders can sometimes be the result of harassment offenses, stalking, assault, and sometimes even domestic violence offenses.

A temporary order of protection will last at least until the next court date. From there it can be extended until the matter is resolved. A Family Court order of protection can last up to two years. Under aggravating circumstances, a family court order may last up to 5 years. A final order of protection from Criminal Court can last up to 8 years depending on the matter or what crime is committed. An order of protection from Supreme Court as part of a divorce is permanent.

An order of protection can only be changed by a judge.

Defenses include:

  • You did not have actual notice of the order of protection - restraining order
  • You were not given adequate notice of the hearing at which the order of protection was entered
  • You did not have an opportunity to participate in the hearing
    The order was issued without a hearing
  • The order was not supported by substantial evidence
  • The order is unclear or ambiguous
  • The order was issued in violation of the due process
  • The order was obtained by fraud
  • You acted in good faith and with a reasonable belief that you were not violating the order

If someone lies to get a restraining order, the consequences can be serious. The person who lied may be charged with perjury, which is a felony. If convicted, the person could face jail time. In addition, the person who was falsely accused could sue to seek damages.

An Order of Protection issued in Family Court will not show up on a criminal background check, since cases in Family Court are not criminal cases. However, an Order of Protection issued in connection with a criminal case is a public record, and can be discovered in a criminal background check.

No. A victim who has an order of protection (temporary or final) cannot violate his/her own order or be arrested for violating such order.

Yes. You do not need an attorney to file for an order of protection, but it is strongly recommended. The process can be complex, and an experienced attorney can help ensure that you take the right steps and present the strongest possible case.

Yes. You do not have to be a citizen of the United States to get a restraining order.

Contact The Law Office of Lisa Pelosi Immediately at 845-999-9394 if served with an order of protection in NY

An order of protection is a serious matter and can have a lasting impact on your life. If you are facing an order of protection in NY, you should contact a criminal defense attorney as soon as possible. Our criminal defense attorneys at The Law Office of Lisa Pelosi with offices in Poughkeepsie and New York City help you protect your rights and fight the order of protection (restraining order).

Lisa Pelosi and her team will offer legal guidance on how best to proceed with an order of protection. Lisa Pelosi, a former prosecutor, has 35+ years’ experience in criminal justice. En el bufete de Abogados de Lisa Pelosi temenos abogados y personal que hablan español.

The Law Office of Lisa Pelosi  serves the areas of:
Dutchess County, Poughkeepsie, Wappingers Falls, Fishkill, Beacon, Hopewell Junction, Lagrangeville, Poughquag, Wassaic, Amenia, Pleasant Valley, Hyde Park, Billings, Castle Point, Chelsea, Clinton Corners, Dover, Hughsonville, Rhinebeck, Red Hook, Staatsburg, Rhinecliff, Pine Plains, Pawling, Millbrook, Millerton, Holmes, Glenham, Salt Point, Stanfordville, Verbank, Wingdale, Stormville ;
Putnam County, Cold Spring, Carmel Hamlet, Mahopac, Brewster, Lake Carmel, Philipstown, Patterson, Putnam Lake, Putnam Valley, Nelsonville, Brewster Hill ;
Ulster County, Kingston, New Paltz, Saugerties, Woodstock, Ellenville, Highland, Stone Ridge, Wallkill, Gardiner, Kerhonkson, Phoenicia, Rosendale, High Falls, Lake Katrine, Esopus, Port Ewen, Accord, Wawarsing, Milton, Plattekill, Shandaken, Hurley, Lloyd, Marlboro, Napanock, West Hurley ;
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Columbia County, Hudson, Ancram, West Copake, Copake, Copake Lake, Boston Corner, Ancramdale, Silver Nails, Taghkanic, Livingston, Clermont, Nevis, Germantown.

*These questions and answers are not intended to be exhaustive, nor do they constitute legal advice

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