An Order of Protection is a court order that is designed to protect a person from certain enumerated “family offenses” which include, but are not limited to abuse, harassment, threats of violence and stalking. Most often they are issued by the Family Court. If a person has been subject to abuse, threats of violence, menacing or stalking, he or she may seek an Order of Protection. In family court, the person filing for an Order of Protection is called the “Petitioner”, while the person who allegedly committed the “family offense” is called the “Respondent.”

There are two types of Orders of Protection. The first type is commonly referred to as a “stay away” order. If a Petitioner is awarded a “stay away” Order of Protection, the Respondent will not be allowed to be in the vicinity of the Petitioner, wherever he or she may be, whether at home, or at their place of employment. In the context of a divorce action, a “stay away” order of protection removes a spouse from the marital home, and frequently from the parties children, except for court ordered visitation with them. The second type is commonly referred to as a “refrain from” Order of Protection, prohibiting the Respondent from engaging in certain behavior, but allowing them to remain in the marital home if they choose.

Typically, the party requesting the Order of Protection goes to Family Court and fills out a “Family Offense” Petition before going before a judge. After reading the Petition and asking pertinent questions, the judge will decide whether to issue a “Temporary Order of Protection” and assuming one is issued, whether the Temporary Order of Protection will be a “Stay Away” or a “Refrain From” pending a hearing on the allegations contained in the Petition. It is important to note that a Temporary Order of Protection is relatively easy to obtain, so as to prevent continuing domestic violence and that many “stay away” Orders of Protection are granted ex parte, meaning without both sides of the story being heard by a judge.

The consequences of violating an Order of Protection (temporary or permanent) can be quite severe. The Respondent may be imprisoned for “contempt of court”, will frequently be excluded from the marital home, and may also be discriminated against in any current or future custody proceeding.

Sadly, it is not uncommon in the context of a divorce action for one spouse to file a Family Court Petition, falsely accusing the other spouse of committing a “family offense” to have their spouse forcibly removed from the marital home pending a hearing on the matter, in order to gain an advantage in ongoing divorce and/or custody proceedings.

Whether you are the victim of domestic violence or have been falsely accused of committing a “family offense,” you should obtain the help of an attorney experienced in these matters. If you require assistance in obtaining or defending against an Order of Protection, please contact Michael A. Cohen at 516-280-6806.