An Order of Protection is a legally binding court order that acts as a tool to prevent harassment, abuse, stalking, or other violent and threatening behavior to occur between two or more people. In a divorce or family court action, the victim of domestic violence would petition the court for an Order of Protection against their spouse, with the goal of shielding themselves (or their children) from danger.
Getting an Order of Protection
In order for one party to be awarded an Order of Protection, they first must court in the borough in which their divorce action is pending. If the Order of Protection is part of a divorce case, then the Supreme Court would be the appropriate venue to pursue the issue. A type of motion called an Order to Show Cause would need to be filed with the court. If requesting an Order of Protection in Family Court, a Family Offense Petition would need to be filed. An Order of Protection can be requested, and granted, in Family Court if the petitioner can prove that the respondent is:
- A current or former spouse;
- A parent to their child(ren);
- A blood relative;
- A relative related by marriage (an in-law, for example); or
- A person that the petitioner has had, or has, an intimate relationship with.
Given the incredibly sensitive nature of protective orders, it is highly recommended that both parties seek guidance from an experienced matrimonial or family law attorney. Failing to do so can result in a denied Family Offense Petition, or reduced parenting time or limited custodial rights of a parent who was falsely accused of abuse. Do not take chances when it comes to Orders of Protection.
Types of Protective Orders
There are two main types of Protective Orders: Temporary (Ex-Parte) Orders of Protection, and Final Orders of Protection.
A temporary protection order is meant to provide one party protection against another person for a short duration of time, typically throughout the extent of a divorce proceeding. An ex-parte order is issued after the filing of a Family Offense Petition, and without the respondent being present. A judge must determine if there is “good cause” to grant an Ex-Parte Order of Protection, which usually means that there is a valid or credible threat or need for protection between the petitioner and respondent. A temporary protection order is typically issued for a few months at a time, until both parties are able to appear in court, and can be renewed throughout the proceedings.
Final Orders of Protection are granted after a divorce or child custody action is finalized. If a respondent denies or disagrees with the allegations made in a Family Offense Petition, he or she has the right to contest them during trial. If the allegations are found to be credible, then a judge can issue a Final Order of Protection, which is typically valid for up to 2 years. In some cases, a Final Order of Protection can be valid for up to 5 years, assuming there are “aggravating circumstances”. Such circumstances can include, but are not limited to, serious physical injury, a history of repeated abuse or violations to the Order of Protection, previous convictions as a result of violence from the respondent, or incidents that can lead a judge to believe that the abuser is an immediate threat to the petitioner or a member of their family.
The Importance of Molloy v. Molloy
Unfortunately, it is not always easy to get a Final Order of Protection extended. An example of this can be found in the New York City case of Molloy v. Molloy. Jennifer and William Molloy were married in 2002 and had one child together. In 2010, Jennifer filed a Family Offense Petition in Family Court, and was eventually granted a two year Final Order of Protection. William was found to have committed third-degree assault and menacing, and second-degree reckless endangerment. The protection order only allowed for the parties to have contact during court ordered child visitation time.
William continually violated the terms of the Order of Protection by harassing Jennifer at her apartment, and threatening to kill her once their order expired. Jennifer reported these incidents to the police, and William plead guilty to disorderly conduct in Criminal Court. Another two year protection order was awarded.
Because of William’s previous behavior, Jennifer requested an extension in Family Court, but her petition was denied in 2014. At the time, Judge Dennis Lebwohl stated that he was denying the request because Criminal Court had already issued an extended Order of Protection, and that Jennifer failed to show good cause to extend the existing order.
Jennifer appealed Hon. Lebwohl’s decision, and won. On January 20, 2016, appellate Justice Cheryl Chambers overturned Judge Lebwohl’s decision, and granted Jennifer the extension she so desperately needed. Justice Chambers’ said that courts need to look closely at a variety of factors when determining whether or not a request for an extension has “good cause”. Factors to consider are:
- The nature of the relationship between parties, both before and after a Final Order of Protection has been awarded;
- The frequency in which parties interact;
- Circumstances leading up to the request for extension, including new instances of domestic violence or violations of the current order; or
- If there is a valid concern for the petitioner’s safety.
Justice Chambers’ ruling is crucial because it helps to define what qualifies as “good cause” in a petition for an extension of a Final Order of Protection. Unfortunately, some New Yorkers rely on protection orders to keep their family safe from an abuser. This clarification should make it easier for a petitioner to keep their loved ones safe and out of harm’s way.
Hire a Brooklyn Divorce Lawyer
Filing a Family Offense Petition and asking the court to grant an Order of Protection are both very serious matters. The safety of you and your family is at risk, and because of this, it is recommended that you hire a lawyer to advocate on your behalf throughout the proceedings. At Brian D. Perskin & Associates P.C., we focus our practice on complex matrimonial and family law matters, helping New York City residents obtain Orders of Protection. For more information, contact Brian or a member of his team to schedule your free and confidential consultation.