Final Orders of Protection
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WHAT STANDARD OF EVIDENCE IS NEEDED TO OBTAIN A FINAL ORDER OF PROTECTION?
In New York State, domestic violence is defined by the New York Family Court Act 812 (1) as “assault, attempted assault by a respondent to his/her current or former spouse, parent, child or other member of the same family or household or engaged in disorderly conduct, harassment, stalking, menacing, or reckless endangerment toward any such person.”
The evidentiary standard is unspecified, but prior cases suggest that allegations need to be supported by a preponderance of evidence in order to have an order of protection approved. For instance, Machukas v. Wagner (1989) states: “In order to warrant issuance of protective order under CLS Family Ct. Act Art. 8, allegations must be supported by fair preponderance of Evidence.”
Recent cases have shown that New York courts have upheld high standards for evidence in family offense proceedings. Holman v. Beaulieu (Nov. 28, 2012), for example, upheld that a family offense must be established by a “fair preponderance of evidence.” The mother’s petition for sole custody of her child was denied because evidence at the hearing consisted of inconsistent out-of-court statements by the child and failed to satisfy the burden of proof.
If you need help determining what evidence is needed to obtain an order of protection, or if you are facing false allegations of abuse and need assistance opposing a protection order, an attorney from Brian D. Perskin & Associates P.C. can help you today.