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New York StateUnified Court System

Herkimer, Jefferson, Lewis, Oneida, Onondaga & Oswego Counties


Family Court


Domestic Violence (Family Offense)

 

Who can file a petition in Family Court?

You can file a petition in Family Court for an order of protection if

1) you are related to the respondent by blood or marriage;
2) you are or were legally married to the respondent;
3) you have a child with the respondent; or
4) you are or were in an intimate relationship with the respondent.

You may file for yourself or on behalf of your child, if appropriate.

If you need an order of protection against someone other than those listed above, you can only get one through Criminal Court. To get a criminal court order of protection, the police must arrest the person.

Factors the court may consider in determining whether a relationship is an "intimate relationship" include but are not limited to: the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an "intimate relationship".

You may proceed for orders of protection in Family or Criminal Court or both. There are no filing fees in Family Court.

 

How do I file a petition in Family Court?

Forms are available on-line at www.nycourts.gov, or you may go the Family Court Clerk’s office in the county where you live to request forms to file for an Order of Protection.

There are no filing fees in Family Court.

 

What should I put on my petition ?

Write down as many details as possible. In order to obtain an order of protection you must state that a “family offense” occurred. Many actions are family offenses, such as when a person verbally, physically, emotionally, or sexually abuses you, or threatens to hurt you. Describe when each incident occurred, where it occurred, what happened, whether you were injured (bruises, cuts), and whether weapons were used. It is best to include the most recent incident, the first incident and the worst incident. If there was verbal abuse, tell the clerk the exact words the respondent used. Tell the clerk if there is criminal court involvement and if there were earlier orders of protection. Before you sign the petition, read it carefully and tell the petition clerk if anything important has been left out. Make sure the petition is accurate and fully states what you want to tell the Judge.

 

What can I ask for in my petition?

Most temporary orders of protection say that the respondent must not assault, menace, or harass you, but you can ask for additional terms. You must tell the petition clerk specifically what you would like the Judge to order. Some of these things may be in the temporary order and some may be in the final order. You can ask for:

  • Stay away: The court can order the respondent to stay away from you, your home, your job, your children, your children's school or any other place or person the court finds necessary.
  • Refrain from certain acts: The court can order the respondent to stop abusing or threatening to abuse you or your children. The order can be specific, such as, ordering the respondent to stop calling you at work.
  • Collect your belongings: If you do not want to return home, you can ask the court to allow you to enter your home with the police to collect your personal belongings at a certain date and time.
  • Exclude the respondent from the home: If the respondent is dangerous to you or your children, you can ask the court to order the respondent out of the home ("excluded") while the order of protection is in effect. It does not matter that the home is not in your name.
  • Temporary child support and/or child custody: The court can award temporary child custody and or temporary child support. However, you must also file a separate petition for custody and/or child support. The child support case would then be heard by a Support Magistrate.
  • Revoke or suspend firearms: The court can revoke or suspend respondent's license to carry firearms or order surrender of any or all firearms owned or possessed by respondent.
  • Five year order: Most Family Court orders of protection are for two years. You can get a five year order of protection if there are "aggravating circumstances", or if the court finds there was a violation of an order of protection. Aggravating circumstances exist where there is physical injury, the respondent used a weapon or other dangerous instrument against you, there is a history of repeated violations of prior orders of protection, the respondent has been convicted of crimes committed against you in the past, there is exposure of any family or household member to physical injury, or other behaviors that pose a danger to you, your family or other household members.

 

What's the difference between a temporary and a final order of protection?

A temporary order of protection is issued on the day you file for an order of protection before the respondent is served with the papers. If a final order of protection is issued, this occurs at the end of the case after the Judge finds that a family offense was committed or the respondent agrees. A final order lasts for two or five years. A final order of protection can also include:

  • Restitution: If the respondent damaged any of your property (e.g. car, windows, furniture), the court can order the respondent to pay damages ("restitution") up to $10,000. You will have to prove the value of what was damaged.
  • Medical expenses: The court can order the respondent to pay for any medical expenses arising from the abuse.
  • Participation in a Program: The court can order the respondent to participate in services, such as a batterer's education program, or make referrals for drug or alcohol counseling.

 

Can I ask for custody or visitation with my children?

Custody: You can ask the court to order that the respondent not interfere with custody of your children as part of the order of protection. However, you must also file a separate petition for custody in Family Court.

Visitation: The court may order visitation for either parent as part of the order of protection. The court can specify times for the visits and safe places to exchange the child, such as a police precinct or friend's home. If necessary, the court can order supervised visits. You must also file a custody petition to secure permanent visitation rights.

 

When will I see the judge?

After you file your petition with the Family Court Clerk’s office and your petition is processed, you will be seen by a Judge or, in some counties, by a Court Attorney Referee.

 

What do I say to the judge?

The Judge may ask you questions about what you said in the petition. The Judge will decide whether to issue a temporary order based on your petition and answers to the questions. Even if the Judge does not issue the temporary order of protection, you may get one later. If you can't afford a lawyer, you can ask the Judge to appoint one for you.

The Judge will ask you how you want to serve the papers. (The different options are listed below.) The court may issue a warrant directing that the respondent be brought immediately before the Family Court. Warrants are issued under special circumstances, such as when your safety or the safety of your child is at risk.

 

Where do I get a temporary order of protection?

After you have seen the Judge or Court Attorney Referee, you must wait to pick up your papers in a designated waiting area. You will receive your copies of the temporary order of protection, if one has been issued. You will also receive a summons and copy of the petition for the respondent, if you are arranging service on the respondent.

 

Does the respondent have to know about the petition ?

Yes. You can not get a final order of protection unless the respondent has received notice of the case through service of the petition.

 

How do I serve the petition and temporary of protection?

The summons with notice, petition for an order of protection and temporary order of protection must be personally served (handed to) the respondent. Any person over eighteen years old, except you, may serve these papers. The police, a friend or relative can serve the papers. You can also hire a process server. You (the petitioner) may never serve the papers yourself. Papers for an order of protection may be served any day of the week at any time of the day or night. If the temporary order of protection is not properly served, it is not enforceable.

  • Service by police:

There are two ways to have the police serve the papers. You can take the papers to the police yourself, or the Court can send them to the police.

  • Service by relative, friend, or process server:

If a friend or relative gives the papers to the respondent, this person must complete an "Affidavit of Service" and have it notarized. You must bring this with you when you return to court, or the case will be postponed or dismissed. You may also bring the person who served the papers with you to court.

 

What if I don't know where the respondent lives?

The respondent may be served anywhere. As long as you can arrange for the respondent to be personally served with the court papers, it will not matter if you don't know where the respondent lives.

 

What if the respondent has not been served?

You should come back to court even if you have not been able to serve the respondent. Tell the Judge the efforts you made to serve the respondent. If the police attempted service, note the date and times, precinct number, and officers' names who attempted service. Try to get a statement from the police showing their attempts to serve the Respondent. If someone other than police attempted service, write down the dates, times, and places that service was attempted. When you return to court, the Judge may give you more time to try to serve the papers on the Respondent. You can ask the Judge for other ways to serve the respondent, such as service by certified mail. You can also ask the court to issue a warrant if you can not find the respondent or if he is avoiding service.

 

What if I decide not to persue a order of protection?

You may change your mind once you have started the case. If you decide not to pursue the order of protection, you may wish to come back to court or send a letter asking that your petition be withdrawn "without prejudice." This means that if you change your mind again, and wish to re-file at a later date, you can raise the same allegations again in a new petition. You can always come back to court if a new incident occurs. If you withdraw your petition, it will be dismissed and the temporary order of protection will be vacated (no longer in effect).
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What happens if I don't come back to court ?

It is very important for you to come to court on your adjourn date. In case of a serious emergency, send someone in your place to explain your absence or notify the court by phone or in writing. It is up to the Judge to decide whether to grant you an adjournment. If you do not appear, your case may be dismissed and you will no longer have a temporary order of protection.

 

What if I am afraid to see the respondent in court?

When you arrive at court, notify a court officer in the part (room) where your case is being heard that you are afraid to see the respondent. The officer can arrange for you to stay in a place away from the respondent until the Judge calls your case. Make sure that a court officer knows you are there and where you are waiting. You can ask a court officer to escort you from one location to another or to help keep the respondent away from you. You may also bring a friend, relative or an advocate to court with you who can come with you into the courtroom

 

What happens when I come back to court on the next court date?

You will have to return to court to ask for your final order of protection. The respondent has the right to a hearing.

If the respondent does not come to court: You will be asked to show the Judge that the respondent was properly served. You will need to give the Judge an affidavit of service from a relative or friend, or a statement of service from the police. If the court does not conclude that the respondent was properly served, your petition may be dismissed or you may be given more time to serve. If there are serious allegations, the court might also issue a warrant to bring the respondent back to court immediately.

If the court finds the respondent was properly served, the court will swear you in (place you under oath) and ask you to explain the incidents that you allege in the petition. This is called an Inquest. Be specific: speak clearly and organize your thoughts. Don't forget to tell the Judge if a weapon was used or you were injured. If the Judge finds that a family offense has occurred, the Judge will issue a final order of protection. You will receive a copy of the order the same day. The court will arrange to have the Respondent served with the final order of protection, or you may arrange for service. The order is not enforceable unless it is properly served on the respondent.

If the respondent comes to court:

a) If the respondent agrees to an order of protection: When respondents agree to an order of protection, they usually consent to the order without admitting that they have done anything wrong. This means the court has not made a finding against them. An order without a finding ("on consent") has the same effect and will protect you the same way that an order after a trial would. If the order is violated, the respondent can be arrested. However, an order on consent does not establish that the respondent did anything wrong for use in other proceedings, such as custody or visitation.

b) If the respondent does not agree to the order of protection: If the respondent does not agree to an order of protection and all of the terms you asked for, your case will go to trial. If there is a trial in your case, there may be several court dates before it is resolved. You will have the opportunity to tell the Judge your story and present evidence in support of your case and the respondent will have the opportunity to defend himself.

 

Am I entitled to an attorney?

Both petitioners and respondents in family offense cases are entitled to court-appointed attorneys if they are "indigent" (cannot afford to retain an attorney). Only the Court can decide if you qualify for an attorney. You can ask for one at any time. You can also try to find an attorney on your own.

 

What if the respondent violates the order of protection?

It is a crime to violate a temporary or final order of protection. If the respondent does not obey the order, then you can call the police. The police will probably arrest the respondent for violating the order of protection. The respondent does not have to hit you to violate the order. If the respondent comes to your home and the order says he can't, then you can call the police. You also have the right to file a violation of the order in Family Court. Filing a violation petition in Family Court usually will not result in arrest of the respondent. You can choose to go to Family or Criminal Court, or both.