Practice Area
Domestic Violence
A family offense petition is filed by someone who claims that a family member hurt or threatened him or her or another member of the family or household. Family members include persons related by blood or marriage, formerly married persons, and unrelated persons who have a child in common. Family offense cases may go forward in a Family Court and/or they may be prosecuted in a Criminal Court. Parties to family offense matters can have cases in a Criminal Court and a Family Court at the same time.
The purpose of a family offense proceeding in Family Court is to stop the violence, end the family disruption and obtain protection. The victim who goes to Family Court to start the action is the petitioner. The alleged abuser is the respondent.
A petitioner has the right to an immediate appearance before the court on the day the petition is filed or on the next day the court is in session. The judge will ask the petitioner questions about the petition and if the judge finds “good cause,” a temporary order of protection will be issued. A temporary order of protection does not mean that the judge made a finding of wrongdoing. At the same time that the temporary order of protection is issued, the judge may also issue a temporary order of child support. Temporary orders may be changed after the other party appears in court or after a trial takes place.
If a person needs protection during the evening hours or on the weekend when the Family Court is closed, he or she may go to a Criminal Court to obtain an order of protection or to have an existing order of protection enforced or modified. A police officer or law enforcement agent and the District Attorney’s office will assist in this process.
At the initial hearing in the Family Court, the court will set another court date (return date) and issue a summons for the respondent to appear. If the judge determines the petitioner is in immediate danger, the court may issue a warrant for the respondent to be brought to court.
A respondent who is charged with a family offense may admit or deny the allegations in the petition or, without admitting or denying, consent to the entry of an order of protection against him/her. If the respondent denies the allegations, the petitioner has a right to a fact-finding hearing in order to prove the allegations in the petition. If the petitioner proves the case, then the judge will make a finding that the respondent committed a family offense. A dispositional hearing will then be held, based on which the judge will decide on the terms of a court order designed to protect the petitioner.
At a dispositional hearing, a judge may issue a final order of protection (sometimes referred to as a permanent order of protection) on behalf of the petitioner and/or his or her children. A temporary or final order of protection may provide for any or all of the following:
require the respondent to move out of the home shared with the petitioner, stay away from the petitioner and his/her home, school and place of employment, and have no contact by telephone or other means with the petitioner and his or her family;
require the respondent to refrain from committing family offenses;
require a party to pay medical expenses;
order temporary custody of any children;
permit a parent to visit with a child at stated times;
permit one party to enter the home accompanied by a police officer during a specific time to remove personal belongings;
require the respondent to turn in weapons, and/or suspend or revoke a gun license;
require the respondent to participate in a batterer’s education program, designed to help end violent behavior, which may include referral to an alcohol and/or substance abuse evaluation, treatment and counseling; and/or
require a party to pay restitution up to $10,000 for damages caused to the victim; and
order a period of probation for the respondent.
Orders of protection are typically issued for one year. The terms of a protective order can only be changed by a judge.
A judge may issue an order of protection for up to three (3) years if there are aggravating circumstances in the case. Aggravating circumstances include physical injury; use of a weapon; repeated violations of orders of protection; prior criminal convictions for acts against the petitioner; and the exposure of children or other family members to harm.
A victim of domestic violence may also file a criminal complaint at the local police precinct, which may result in prosecution and punishment in Criminal Court. In that court, the District Attorney’s office prosecutes the case and asks the judge to issue an order of protection for the victim. The defendant may receive a criminal conviction as a result of the prosecution and be sentenced to probation or jail time. The Criminal Court judge may also issue an order of protection.
An order of protection may also be issued by a Supreme Court judge in connection with matrimonial proceedings (divorce or separation).
How to Enforce an Order of Protection
If a respondent violates any part of an order of protection, the petitioner may file a violation petition. For example, a temporary order of protection may prohibit a spouse from entering the family residence, including the lawn of a house, or the lobby of an apartment building. If the spouse violates that condition of the order by coming within those areas, the protected spouse may file a violation petition and the judge may issue a warrant to bring the respondent into court quickly. If the Family Court judge determines that the respondent violated the order, the judge may sentence the respondent to as much as six (6) months in jail for each act committed in violation of the order. The judge may also modify the order of protection.
If a violation of a Family Court order of protection occurs during the evening hours or on the weekend when the Family Court is closed, the petitioner may contact the police and go to a Criminal Court to have the order enforced or modified. A police or law enforcement agent and the district attorney’s office will assist in this process.
A violation of a Family Court order of protection may also be prosecuted in a Criminal Court by a District Attorney. Depending on the seriousness of the case, the person who violated the order may be sent to prison for as long as seven (7) years.
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