Articles Posted in Order of Protection

In family law, an order of protection can serve as a legal tool to prevent harm and ensure the safety of individuals involved in domestic disputes. These disputes often arise out of family offenses, which are specific criminal acts that occur between people who share a family or household relationship. A family offense includes actions such as assault, harassment, stalking, menacing, and other harmful behaviors that place a victim at risk of physical or emotional harm. In the case of Monos v. Monos, 123 A.D.3d 931 (N.Y. App. Div. 2014), the Appellate Division considered an appeal from an order of protection issued by the Family Court in Queens County.

Background Facts

The case involved a petitioner who sought an order of protection against the appellant in Family Court. The petitioner alleged that the appellant committed several family offenses, including criminal mischief, reckless endangerment, and attempted assault. Specifically, the petitioner claimed that the appellant had threatened her with a fork during an altercation. Based on this conduct, the petitioner requested the court to issue an order of protection, directing the appellant to stay away from her for a specified period.

In hearings regarding orders of protection, if one party does not show up and does not provide an explanation, the court will typically issue a default order against that absent party. In the case of Troy Barcia in Muhammadu v. Barcia, 100 A.D.3d 904 (N.Y. App. Div. 2012), the issue before the court centered on a default final order of protection that was issued and whether there was substantive evidence to support the order.

Background Facts

On August 8, 2011, a family offense petition was filed against Troy Barcia. The petitioner alleged multiple offenses, including attempted assault, assault in the second or third degree, aggravated harassment, harassment, menacing, sexual abuse, and forcible touching. The Family Court responded to the allegations by issuing a temporary order of protection that was to remain in effect until August 15, 2011.

In Cohen v. Escabar 219 A.D.3d 726 (N.Y. App. Div. 2023), Louis Escabar, a minor, appealed from an order of protection issued against him, dated June 28, 2021. The order stemmed from a family offense proceeding initiated by Jamie Cohen against her ex-boyfriend, Escabar.

An individual under the age of 18 is considered a minor or an infant in legal terms. When a minor is involved in a legal matter, they typically require representation by a parent, guardian, or a guardian ad litem appointed by the court. This representation ensures that the minor’s interests are adequately protected during legal proceedings.

If a minor does not have a parent or guardian available to represent them, the court may appoint a guardian ad litem to act on the minor’s behalf. A guardian ad litem is a person appointed by the court to represent the best interests of the minor and make decisions on their behalf during the legal process.

In Sicina v. Gorish, 209 A.D.3d 658, (N.Y. App. Div. 2022) the court considered whether to extend an order of protection. In New York, a family court order of protection may be extended for various reasons, including instances where the order has been violated. When a violation occurs, the court may opt to extend the duration of the order to provide continued protection to the petitioner.

One primary reason for extending an order of protection is to ensure the safety and well-being of the petitioner and any other individuals covered by the order. If the court finds that the respondent has willfully violated the terms of the order, it may view this as evidence that the threat to the petitioner still exists. Therefore, extending the order allows the court to maintain safeguards against potential harm.

Moreover, extending an order of protection serves as a deterrent to future violations. By imposing additional time on the order, the court sends a clear message that violations will not be tolerated and that consequences will follow. This can act as a deterrent to the respondent, discouraging further attempts to breach the terms of the order.

In Dayonna W. v. Jhon S. 201 A.D.3d 539 (N.Y. App. Div. 2022), an order of protection was issued against the respondent, directing him to stay away from the petitioner until June 10, 2023. The order stemmed from a fact-finding determination that the respondent committed the family offenses of second-degree harassment and third-degree assault.

In Family Court, the determination of the length and terms of an order of protection is based on several factors, primarily focused on ensuring the safety and well-being of the petitioner. The court considers the specific circumstances of each case, including the nature and severity of the alleged offenses, the relationship between the parties involved, and any history of violence or harassment.

One consideration is the extent of the perceived threat to the petitioner’s safety. If the court finds that there is a substantial risk of harm to the petitioner, it may issue a longer-term order of protection to provide extended protection. Conversely, if the risk is deemed less severe or temporary, the court may opt for a shorter-term order.

In New York family court, obtaining an order of protection requires meeting a specific standard. Pursuant to the Family Court Act, the petitioner must demonstrate the existence of family offenses by a fair preponderance of the evidence. This standard necessitates showing that it is more likely than not that the alleged conduct occurred. Family offenses include various acts such as harassment, assault, stalking, and other forms of domestic violence.

The petitioner bears the burden of proof in establishing the allegations of the family offense petition. This means they must present evidence and testimony to support their claims. The court evaluates the credibility of the witnesses and weighs the evidence presented before making a determination.

The court’s decision regarding the issuance of an order of protection is based on its findings of fact. It must determine whether the alleged conduct meets the criteria for a family offense and whether the petitioner has sufficiently proven their case. The court may consider factors such as the nature and severity of the alleged conduct, any history of violence or abuse, and the safety and well-being of the parties involved.

V.A. v. L.S. 2023 N.Y. Slip Op. 51477 (N.Y. Fam. Ct. 2023) involved an application to extend an order of protection. Extending an order of protection in New York involves a legal process that aims to maintain the safety and well-being of individuals who have been subjected to domestic violence or other forms of harm. In the state of New York, orders of protection can be extended upon motion for a reasonable period of time upon a showing of good cause, as outlined in Family Court Act §842.

Good cause for extending an order of protection can be demonstrated through various factors, including the nature of the relationship between the parties, any instances of domestic violence or violations of the existing order of protection, and the safety concerns for the petitioner and any children involved. This may involve providing evidence of past incidents of abuse, threats, or harassment, as well as the potential for future harm if the order is not extended.

The process typically begins with the filing of a motion in the appropriate court, such as the Family Court where the original order of protection was issued. The petitioner, often with the assistance of legal counsel, presents arguments and evidence supporting the need for the extension. This may include witness testimony, police reports, medical records, or other documentation relevant to the case.

In New York, obtaining a family court order of protection involves specific requirements for both temporary and final orders. For a temporary order, known as an ex parte order, the petitioner must demonstrate to the court that they have been subjected to or are in immediate danger of domestic violence or harassment by the respondent. This can be achieved through sworn testimony or evidence provided to the court.

Once a temporary order is granted, a final order of protection can be sought through a formal court hearing or by mutual agreement of the parties. To obtain a final order, the petitioner must present evidence of the alleged family offense, such as testimony, documents, or other supporting evidence. The respondent has the opportunity to present a defense and contest the allegations during the hearing.

For both temporary and final orders, the court will consider factors such as the nature of the relationship between the parties, any history of violence or harassment, and the current circumstances surrounding the request for protection. The court will issue the order if it determines that there is a sufficient basis to warrant protection for the petitioner.