To get an order of protection in family court, you will have to prove two things: subject matter jurisdiction and the commission of a family offense.
To prove subject matter jurisdiction, you must prove to the court that either you are related to the person against whom you’re seeking an order of protection by blood or marriage, that you have a child in common, or that you were in an intimate relationship. Please note how the law interprets an intimate relationship — a common misconception is that an intimate relationship must be of a sexual nature. The law specifically says that the relationship does not have to be sexual in nature to qualify as an intimate relationship. However, an intimate relationship is not “ordinary fraternization,” which basically means someone that you see around town regularly.
Once you’ve proven subject matter jurisdiction, the next thing to prove is that the other person committed a family offense. A family offense is a crime or violation, and the list of penal law violations that qualify as family offenses are listed in Family Court Act Section 812.
The Case Will End with a Settlement or Trial
- Settlement: If the respondent (the person you’re seeking the order of protection against) agrees to an order of protection for a short amount of time (6-12 months for example), then settling the case can reduce their risk of being subject of a lengthier order of protection. This would also relieve you from having to prove your case at trial.
- Trial: If the respondent will not agree anything that you’re willing to accept, there will be a trial in which you will have to prove that there is subject matter jurisdiction and that the respondent committed a family offense.
What Happens at Trial?
- You will testify. Your attorney will ask you questions about what happened and, if the respondent has an attorney, then they will ask you questions as well (i.e. cross-examination).
- If there are other witnesses, they will be questioned by both sides.
- Evidence will be presented. Evidence can come in the form of text messages, photographs, or anything else that helps prove your case.
- Once your case has been presented, the respondent’s case will be presented in the same manner as yours.
- With both sides presented to the court, the Court will determine whether or not you (a) proved subject matter jurisdiction and (b) that the respondent committed a family offense.
What Happens After a Trial?
If you win, the court can do two things:
- The court can issue an order of protection. Usually, the lengthiest order of protection that can be issued is two years. However, in the most severe cases, if there are aggravating circumstances, you could potentially get an order of protection for up to five years.
- The court can also suspend judgment, meaning certain orders can be issued against the respondent for a period of up to six months. If the respondent follows those orders, then the case is over. If the respondent does not follow the orders, then you can go back and ask for another order of protection.
- Additionally, in rare circumstances, the court can put the respondent on probation.
- If you get an order of protection, and it expires, then you can come to court and ask for an extension. The court will decide whether or not to grant it.
Joseph H. Nivin, Esq.
The Law Offices of Joseph H. Nivin, P.C.
118-35 Queens Boulevard, Suite 1220
Forest Hills, NY 11375
The Chanin Building
122 E. 42nd Street, Suite 2100
New York, NY 10168