Getting Help

If you are being stalked, harassed, or mentally or physically abused in any way, please consider calling the statewide domestic violence hotline at 1-800-942-6906. This hotline is maintained by the Office for the Prevention of Domestic Violence.

When you are ready to ask the court for an Order of Protection, you can fill out a Family Offense Petition. When you file this form, you are telling the judge that the abuser abused you, and you are asking the judge to sign an Order of Protection.

Family Court can only be used to get an order of protection if the victim is "related" to the abuser or has a child with the abuser. (FCA §812 1. & §822) These relationships qualify:

• persons related by blood or marriage

• former spouses

• unmarried couples if they have a child together.

What is an Order of Protection?

An order of protection is a legal document that protects you from an abuser. You can ask for an order of protection if you have been abused or are afraid of being abused.

Please be aware that the person who is being abusive to you may decide to disobey the judge's order to stay away from you or to stop being abusive. If you have an Order of Protection, though, the police may arrest the abuser for violating the order.

A Family Court Order of Protection can order the Respondent (Person accused of abuse) to do any of the following: (FCA§841 &§842)

• stay away from you and other household members needing protection

• stay away from your home, workplace, or child’s school (Or leave your home!)

• refrain from offensive conduct (violation resulting in greater penalty than if there is no order)

• pay your lawyer fees or restitution for damages caused

• allow you to retrieve your personal property, with police, from premises in his possession

• stop contacting you - by phone in writing or through other people

• participate in a batterer's intervention program

• give up guns and revoke handgun permits

The court should consider prior incidents of abuse, alcohol or drug use, compliance with any past orders, and the severity of the abuse or threats, in deciding which conditions are needed for your protection.

How do I get an order of protection?

To get a Family Court order of protection, you can file a petition at Family Court. Probation will help you draft the petition. Once you have filed the petition, you will appear in court. A judge will review the petition and decide whether or not your case deserves a temporary order of protection. This happens without your partner present. Because of this, the order is only temporary, and you will be told to return to court. On that date, both you and your abusive partner will appear in court, and the judge will decide whether or not to make your order permanent.

In Family Offense proceedings, both parties have the right to be represented by a lawyer. (See FCA §262 a. ii.).

• Both parties can request an adjournment (delay) to get a lawyer.

• Both parties are entitled to a lawyer regardless of whether they are able to afford an attorney.

• The court can appoint you a lawyer.

How long does a permanent order of protection last for?

Permanent orders usually last for one year from the date they are made. Sometimes they can last three years.

Does the Abuser Have to be Convicted of a Crime for me to Get an Order of Protection?

No. You can get an Order of Protection in Family Court even if the abuser was never arrested, charged, or convicted of a crime.

Can the Order of Protection force me to do anything?

No, the Order of Protection cannot make you do anything. Your abuser is responsible for making sure it is obeyed.

What happens if my abuser does not obey the order of protection?

If your abuser violates the order of protection you must call the police.

How do I make sure my order of protection is obeyed?

In order to enforce your order of protection, you must call the police. As long as your abuser knows about the order of protection and was served with a copy of the order by the police or while in Court, your partner should be arrested by the police. If your abuser violates the order of protection you can call the police and report the violation. If you have a Family Court order of protection, you can go to Family Court and file a violation petition.

It is important to keep a copy of the order of protection with you at all times. Also keep extra copies in your home and give them to family members and your domestic violence worker, if you have one. Remember, an order of protection is not a guarantee against further violence. You should have a safety plan as well as an order of protection.

Can I change my order of protection?

If your situation changes you should ask the Court to change your order of protection. You can ask for a change if your situation is getting worse, or if you want to fix your relationship with your partner. The Court will decide whether or not to change your order of protection. To do this in Family Court, you should file a modification petition. In Criminal Court, you should speak with the Assistant District Attorney who handled your case if you wish to change your order of protection.

Forms and information about orders of protection are available at the NY Office of Court Administration web site. Visit them on the web at:

http://www.nycourts.gov/forms/familycourt/general.shtml

 What Kind of Abuse Allows Me to Get an Order of Protection?

The list is long and hard to understand. There is a very specific list of things that the abuser must have done for you to get an order of protection. This list is mostly taken from the criminal law in New York.

The best way to decide whether a court would give you an order of protection is to talk to a domestic violence agency in your area or a lawyer. Even though some Family Court clerks will ask you to pick out which "Family Offense" the abuser committed when you fill out a petition, all you have to do is describe what the abuser did. Your petition should not be rejected by the clerk.

You can get an Order of Protection if the court believes the abuser has done something that would fit in the list of "enumerated crimes," even if he was never charged with a crime. (see FCA §812 & §821)

This list includes:

* Disorderly Conduct

* Menacing

* Harassment

* Reckless Endangerment

* Assault

* Attempted Assault

* Stalking

Many of these crimes have different "degrees."

Enumerated Crimes for Family Offenses

(This list may not be complete)

The following is a brief overview of the "family offense" crimes outlining the behavior that constitutes each crime. The Family Court petition should include allegations of the necessary elements of the offense, or it is subject to dismissal.

Disorderly Conduct (Penal Law §240.20)

Legal Definition: Intentionally creating a disturbance, inconvenience or alarm by fighting, tumultuous, violent or threatening behavior.

Note: Family Court Act does not require a public disturbance, unlike a criminal case.

Key Elements of Behavior: intent; to create a disturbance.

This is a Violation (maximum criminal penalty is 15 days, monetary fine - Penal Law §70.15).

Harassment 1^st (Penal Law §240.25) - very similar to new crime of Stalking 4^th

Legal Definition: Intentionally and repeatedly harasses another person by:

•following a person in a public place, or

•engaging in a course of conduct or committing acts which place

•a person in a reasonable fear of physical injury.

This is a crime of stalking; the key being a repeated, continuous course of conduct.

Key Element of Behavior: Intent; repeated or continuous course of conduct; creating a fear of physical injury.

This is a Class B Misdemeanor (maximum criminal penalty is 3 months).

Note: It is important to document the pattern with police reports as incidents occur.

Harassment 2^nd (Penal Law §240.26)

Legal Definition: With intent to harass, annoy, or alarm, a person:

•Strikes, shoves, kicks, subjects to physical contact, or attempts or threatens to do so

•follows a person in a public place

•engages in course of conduct or repeatedly commits acts which annoy or alarm.

Key Elements of Behavior: intent, physical contact without physical injury; intent to bother; repeated conduct.

This is a Violation.

Note: There can be physical injury, however, it is not necessary in order to have a charge filed.

Aggravated Harassment 2^nd (Penal Law §240.30)

Legal Definition: With intent to annoy alarm, threaten or harass another:

•communicates or causes a communication by mechanical or electronic means anonymously or otherwise by telephone, telegraph, mail, or other form of written communication

•makes a telephone call whether there is conversation or not, with no legitimate purpose to communicate

•commits an act of Harassment 1^st and has previously been convicted of Harassment 1^st within the past ten years.

This crime also is a type of "stalking", but no pattern requirement- compare to the newer statutes.

Key Elements of Behavior: intent, harassing contact by phone or mail, including hang up calls for no legitimate purpose; repeat conviction for Harassment 1^st

This is a Class A Misdemeanor (maximum criminal penalty is one year).

Menacing 2^nd (This is a Class A Misdemeanor) (Compare to the newer crimes of "stalking")

Legal Definition: Intentionally places a person in reasonable fear of physical injury, serious physical injury or death by displaying a deadly weapon or dangerous instrument;

Repeatedly follows or engages in a course of conduct or commits acts over a period of time which place a person in reasonable fear of physical injury, serious physical injury or death;

Violates an order of protection (duly served or which he has actual knowledge of) by committing an act of Menacing 3rd.

Key Elements of Behavior: intent, puts a person in fear of physical injury or death by display of a weapon; repeated action over a period of time.

Menacing 3^rd (Penal Law §120.15 - This is a Class B Misdemeanor)

Legal Definition: by physical menace places or attempts to place a person in fear of death, imminent serious physical injury, or serious injury.

Key Elements of Behavior: puts someone in fear of injury or death without a weapon.

Reckless Endangerment 1^st (This is a Class D Felony-criminal penalty of 3 to 7 years) (Penal Law §120.25)

Legal Definition: With depraved indifference to human life, creates a grave risk of death to another.

Key Elements of Behavior: Depraved indifference, which causes severe risk of death.

Reckless Endangerment 2^nd (This is a Class A Misdemeanor) (Penal Law §120.20)

Legal Definition: Recklessly places another person in substantial risk of serious physical injury.

Key Elements of Behavior: Reckless actions; which cause danger of serious injury.

The Assault Crimes: (Penal Law §120)

Assault 3^rd: (Class A Misdemeanor - maximum criminal penalty of 1 year)

Legal Definition: With intent to cause physical injury causes physical injury, or recklessly causes physical injury, or with criminal negligence causes physical injury by means of a deadly weapon or dangerous instrument.

Assault 2^nd : (Class D Felony - criminal penalty of 3 to 7 years)

Legal Definition: Intends to cause serious physical injury and does; or intends to cause physical injury or recklessly causes serious injury, and does, by means of a deadly weapon or dangerous instrument.

Assault 1^st: (Class C felony - criminal penalty of 3 to 15 years) Intends to cause serious physical injury (or sometimes is reckless), and does so with a weapon. This is not Family Court Jurisdiction - but attempt of it is.

Serious Injury (Penal Law §10.00): creates a substantial risk of death, or causes protracted impairment of health or of bodily function.

"Physical" Injury: impairment of physical condition or substantial pain.

"Weapons" & "Dangerous Instruments" are defined at Penal Law §10.00 (12.)

Attempted Assault: means all elements of assault are present, e.g. intent, (but assault is not completed).

(Penal Law §110.05 - Class B misdemeanor, or Class D felony)

The Stalking Offenses (December 1999 amendments)

Legal Definition: Intentionally & for no legitimate purpose engages in a course of conduct directed at a person & should know that such conduct:

1. Is likely to cause fear of material harm to physical health, safety, or property of that person or someone close to them; OR

2. Is likely to cause fear that employment or business is threatened, if the conduct involves contact at the person’s place of employment, after having clearly been told not to; OR

3. Causes such harm by phoning or contacting the person or the person close to them, after having clearly been told not to.

Note: Document the pattern of repeated conduct, as well as a clear notice to cease - including in the notice the effect of the conduct, may assist in proving intent & knowledge.

Stalking 3rd (Penal Law§120.50 - Class A Misdemeanor) "Serial Stalking"

Legal Definition:

•Stalking 4^th if against 3 or more persons, in three or more separate transactions; OR

•Stalking 4^th if previously convicted in the preceding 10 years of certain other crimes against the victim or a member of her/his family, or previously convicted of stalking 4^th against anyone; OR

•With intent to harass, annoy, or alarm, intentionally engages in course of conduct likely to cause reasonable fear of physical injury, sex offense, kidnapping, unlawful imprisonment, or death of the victim or a member of her/his family.

Stalking 2nd (Penal Law§120.55 - Class E Felony- criminal penalty of 3 to 4 years)

Legal Definition:

•Commits Stalking 4^th and displays what appears to be a firearm, or displays, possesses and threatens use of other weapons; OR

•Stalking 3^rd subd. 3. , if previously convicted in the preceding 5 years of certain other crimes against the victim or a member of her/his family; or Stalking 4^th if previously convicted twice of stalking 3rd against anyone within the last 10 years; OR

•If over age 21, stalks a person under age 14.

•With intent to harass, annoy, or alarm, intentionally engages in course of conduct likely to cause reasonable fear of physical injury, sex offense, kidnapping, unlawful imprisonment, or death of the victim or a member of her/his family (Stalking 3^rd ), AND therein:

•Intentionally or recklessly causes physical injury; OR

•Commits certain sex offenses;

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Legal Assistance of Western New York, Inc.

This article provides general information about this subject. Laws affecting this subject may have changed since this article was written. For specific legal advice about a problem you are having, get the advice of a lawyer.  Receiving this information does not make you a client of our office.