Family Court Limitations
Who can get an order of protection?
To bring a family offense petition in Family Court, it is necessary that you have an “intimate relationship” with the offender. An intimate relationship includes members of your family or household, but can also apply to other sorts of close relationships. If you and the offender are legally married or divorced, have a child in common, are related by marriage, are related by blood, reside or resided in the same house, or are or were in an intimate relationship, a court will likely consider you to have an intimate relationship with the offender. Intimate relationships are not necessarily sexual in nature and do not need to be current.
For example, a person you once dated or your roommate might be considered an intimate relationship but your co-worker would not. While there is no hard and fast line governing the definition of an intimate relationship, courts consider the nature or type of your relationship, how often you see or saw each other, and the duration of the relationship.
If I go to Family Court, will the filed documents become public?
There are two important upsides to bringing your action in family court. First, family court records are private and not open for public inspection. If you are worried about the allegations in your family offense petition making their way onto a public e-filing system, family court is the best way to avoid that. Second, if you want to bring a family offense petition but are concerned for your safety, you can ask that your address remain confidential by completing an address confidentiality affidavit.
What’s the process for bringing a family offense petition?
First you must file your family offense petition in family court. Once your family offense petition has been accepted for filing, you will go before a judge or referee who will review your petition and listen to your allegations. The person who you have brought the family offense petition against, the respondent, will not be present in the courtroom or at the courthouse. After hearing your story, the judge or referee will determine whether to issue a temporary order of protection and will set a date for your next appearance. If you receive a temporary order of protection, you must have it served on the respondent. You cannot serve the respondent with the order of protection yourself.
Temporary orders of protection can and often contain many of the same restrictions as a final order of protection. For instance, you can ask that the respondent be ordered to stay away from your home and/or workplace and refrain from communicating with you and others. Temporary orders of protection are only valid until the following court appearance and must be extended at each subsequent court date.
It is important that you show up to your next court date or your temporary order of protection will no longer be in effect and your case will be dismissed. The respondent should also be present at your second court date, but if they are not, the court can consider your allegations and issue a final order of protection without the respondent being present. If you are both present, the respondent will either consent to an order of protection or the judge or referee will set a date for a trial.
At the trial, both parties present their facts to the judge or referee. This is your opportunity to tell your side of the story and show the judge or referee your preserved evidence. The respondent will also tell their side of the story and present evidence of their own. At the conclusion of the trial, the judge will decide whether to issue a final order of protection.
What types of offenses constitute a family offense?
Do I need to file a police report prior to bringing a family offense petition?
No. You do not need to go to the police prior to seeking relief in Family Court. A family offense proceeding in New York is a special type of proceeding, brought under Article 8 of the Family Court Act. What this means is that the offender against whom you brought the family offense petition will generally not be arrested for the acts he/she committed against you prior to filing the action. The purpose of this process is to keep family matters outside of the hands of law enforcement as much as possible, keeping the victim safe while minimizing the lifelong consequences of involving the criminal justice system.
That is not to say, however, that if you bring a family offense petition against someone, they will never be arrested. If someone violates a restraining order by engaging in the forbidden acts listed therein after being served with the necessary papers, he/she can be arrested by the police and charged with criminal contempt.
What are the upsides of family offense petitions?
There are many perks to seeking relief in family court rather than attempting to do so through the criminal justice system. First, to an extent, you and your attorney remain in control of the case and can pursue it as you see fit. Second, family court has a lesser standard of proof than criminal court, meaning you will not need to prove your case beyond a reasonable doubt. Third, the speed at which you can get protection through a temporary order of protection is unparalleled.
What are the downsides of family offense petitions?
The downsides of family offense petitions are plenty. As previously indicated, only individuals with certain relationships with the offender may bring a family offense petition, and those qualifying individuals are limited to the delineated list of family offenses. The types of relief available to petitioners are also limited, compared to what may be available in criminal or civil court.