Issuing a New York Order of Protection

Issuing a New York order of protection is one way to ensure that both the accuser and the accused in a domestic violence case, have time apart from each other. Not only does it protect the alleged victim from intimidation and harm, it can also protect the accused from inaccurate or false allegations, as well. If you want to know more about how protective orders work, consult a qualified protective order lawyer that can answer your questions.

Circumstances That Would Lead to an Order of Protection

Orders of protection are granted in virtually every case where a complainant is identified at the arraignment. Prosecutors have the ability to speak to the complainant subsequent to that initial appearance and can potentially request to modify a full order of protection based on what the complainant in the case wants. For the most part, if there are any allegations of threats, violence, or danger, issuing a New York order of protection is the next step.

What Must Happen for an Order of Protection to Be Issued

The two ways that a complainant can get an order of protection is from the criminal courts where they go to the precinct or to call 911 and make an accusation against an individual that some sort of crime has been committed against them. That individual is arrested and a criminal court order of protection is generated.

When issuing a New York order of protection in a criminal case, the judge will find good cause if the alleged conduct constitutes some sort of danger or harm to a complainant. Whether there is actual physical harm from an assault or harassment or even if the charges relate to threatening, stalking, or menacing, the judge will issue an order of protection.

Petitioning for an Order

In civil court, a person can go directly to family court and fill out a petition for an order of protection. That petition will be brought to the judge and the petitioner will have the opportunity to explain to that judge why they are seeking the order of protection. Generally, that is done when this person might not have specifically violated any law to the point where there is enough to make an arrest or if the police have done whatever investigation that they are prepared to do and did not make an arrest. A person can still go to family court, stand in front of a judge, and explain why they think that they should not be given an order. There is no requirement that a person commits a criminal act to get an order of protection from the family court.

Who Issues Protective Orders?

Judges are the ones usually responsible for issuing a New York protective order while the case is being called in court. In a criminal case, the order is generally issued at the arraignment from that date until the next court date. On the next court date, the defendant is required to be in court in front of usually a different judge and that judge will see that there is an order of protection in the file, and that judge will issue an extension of that order of protection, which means that the judge will basically fill out a new order decided on that date until the next court date. This will continue until the case is resolved.

During the pendency of a case, there will usually be a continuous order of protection in effect. Depending on how the case is resolved the order may be extended to a certain finite date in the future or may cease to exist completely. For example, if the charges are dismissed, the order of protection will go away as of that date, because that would have been the expiration date of the previous order and no new extension order is being generated. If there is a conviction, there will be a final order of protection, which instead of being issued to expire at the next court date will expire in a fixed period of time in the future, whether it is one, two, or three years, depending on the case disposition.

Process of Issuing a Civil Order of Protection

For a civil order of protection, an individual goes to the family court, fills out a petition for the order of protection, and appears in front of the judge. The difference, generally speaking, is the criminal court order of protection is issued in the presence of the defendant and the contents are explained to the defendant by the judge in court.

In civil court, the petitioner alone appears in front of the judge initially, and the order of protection is issued without any knowledge by the respondent. It is then the petitioner’s responsibility make sure that the respondent is provided a copy of the order of protection and given notice of the date on which the respondent has the right to appear in court to challenge the order. Individuals who want to know more about how issuing a New York order of protection works, and how it could impact their case, they should consult an attorney.