Know the Laws: New York
UPDATED October 29, 2012
An order of protection is a civil order that provides protection from someone who you are married to, separated from, divorced from, have a child in common with, are/were in an intimate/dating relationship with (including same-sex couples) or are related to by blood or marriage.
In family court, you can file your petition in the county where either you or the abuser lives, or where one of the family offenses (acts) alleged in your petition took place. However, one thing to consider is that if you are living in a domestic violence shelter or other confidential location that is in a different county than where the abuser lives and where the violence took place, you may not want to file your petition in the county where you are living. If you do, the abuser will likely figure out that you filed in that county because you are living in that county and it might be easier for the abuser to find you if he knows what county you are living in. To find the courthouse in your area, go to NY Courthouse Locations. Note: As of November 2012, NY State now has an Address Confidentiality Program ("ACP"), which helps a victim who registers with the program to keep his/her address confidential when filing court petitions. All mail is sent to the ACP and the ACP will send it to your actual (confidential) address. To register, click here.
If the incident was reported to the police, you may want to bring the police report to court, if possible. Remember to bring some form of identification (a driver's license or another picture I.D.).
At the courthouse, ask the clerk for the forms that you need to file. You can also find links to online court forms on our NY Download Court Forms page. You may be able to get help with this process through one of the domestic violence agencies listed on our NY State and Local Programs page.
In family court, the petition that you file for an order of protection is called a "family offense petition." Carefully fill out the petition. You will be the "Petitioner" and your abuser will be the "Respondent."
Many judges will automatically issue an immediate temporary order of protection on the first court date (also known as the "intake date"). Other times, the judge might issue only a summons for the other party to appear in court before issuing a temporary order or protection. If you feel that you need a temporary order to protect you right away, you should speak up and ask for one.
Read the petition for an order of protection carefully and ask questions if you don’t understand something. Describe in detail how the abuser (respondent) injured or threatened you. Explain when and where the abuse or threats occurred. You will usually be asked to include details about the most recent incident of violence as well as prior incidents. It is important to use descriptive language (slapping, hitting, grabbing, strangling, threatening, etc.) and include details about injuries or pain you suffered, dates of the incidents, and even the specific language of threats made by the abuser if possible. For example, instead of just saying "the Respondent physically abused me and I got hurt," it would be more informative to the judge to explain what happened, such as "the Respondent hit me in the face approximately 3 times with a closed fist causing me to get a black eye that lasted for a week."
Note: Do not sign the form until you have shown it to a clerk. The form might need to be signed in front of a notary public or a judge.
If you do not want to put your address on the forms, the court should have a way for you to keep it confidential. Be sure to bring this to the clerk's attention. Another possibility may be to register for NY State's Address Confidentiality Program ("ACP"), which NY began in November 2012. The ACP allows a victim who registers with the program to keep his/her address confidential when filing court petitions. All mail is sent to the ACP and the ACP will send it to your actual (confidential) address. To register, click here.
After you finish filling out your petition, bring it to the court clerk. The clerk may then type it up while you are present or not. The clerk will take it to a judge who may issue either a summons for your abuser to appear in court on a certain date, or a warrant for his or her arrest, depending upon the circumstances.
The judge may also issue a temporary order of protection and, if requested, the judge can also issue a temporary order of custody. The judge can also temporarily order child support in an amount sufficient to meet the needs of the child, without having to prove an immediate or emergency need for the money. The judge can make this order of temporary child support even if you do not know the respondent's income.* Furthermore, the judge may issue temporary custody during the term of the order of protection to either parent or an "appropriate relative."*
In order to get a permanent or final order of protection, there are two possibilities. The first possibility is that the case will go to trial. During a trial, or hearing, both you and the abuser will have an opportunity to be heard (through testimony) and either party can present evidence in support of their case. The judge would then make his/her decision after hearing the evidence. In order to get a five year order of protection, the judge usually must make a "finding" that aggravating circumstances existed. The second possibility is that the parties (you and the abuser) come to an agreement or settlement under which the respondent (the abuser) consents to you having a final order of protection against him. An order of protection issued "on consent," as it may be called, is usually only given for up to two years since the respondent can usually consent to the order of protection without admitting any wrongdoing. Therefore, if you believe that you can prove "aggravating circumstances," and you are willing to go through a trial, you can ask for a trial and try to seek a five-year order rather than agree to get an order on consent which would only last up to two years. (Check the section entitled What is an Order of Protection? How long does it last? to read about aggravating circumstances)
*See NY Fam Ct Act § 842(j)
The court will give you instructions on how the summons, petition, and order of protection can be served on (delivered to) the abuser. The court should also tell you that you have the right to have the Police Department serve the summons, petition, and order. In many counties, you can also use the Sheriff's office instead of the police department - call your local Sheriff's office for their hours of operation and to make sure there is no fee involved. Note: In October 2012, NY state created the Order of Protection Notification System, which allows you to be notified by e-mail, text, iPhone/iPad app, telephone, fax or web query, when law enforcement serves your family court order of protection upon the abuser. For more information or to register, click here and here.
Service is important because an order of protection does not go into effect (is not valid) until it is served. Furthermore, the respondent (the abuser) has to be given notice of the court date since the respondent has the right to appear in court on the next court date.
Please remember that if you are using a friend, relative or a process server to serve the papers, that person has to be over 18 years of age. Since you are what is called a "party" to the case, you cannot serve the court papers yourself. The police are required by law to help with service and have to try more than once to find the respondent if they cannot find him on the first attempt.
It is important that no matter who serves the court papers, you ensure that the person who serves the papers fills out the affidavit of service that the court will give to you and that you bring the completed affidavit to court with you on your return court date. This is your proof that the respondent was served even if s/he doesn't show up in court. The affidavit of service usually asks for the time and date that the respondent was served as well as other identifying information about the respondent such as his/her physical appearance, etc. The affidavit of service must be notarized. If you are using the police or sheriff to serve the papers, they usually will fill out what is called an affirmation of service and it does not need to be notarized. If you have a question as to whether the form needs to be notarized, you should check with your local court clerk.
It is very important that you attend all of the court dates. If you find out you absolutely cannot attend, contact the court clerk immediately and ask how you can get a "continuance" or an "adjournment" for a later court date. If you do not attend, the judge may dismiss your case and any temporary orders of protection will stop being effective.
If the court case does not settle, it will go to a hearing or trial. At the hearing, you will be able to testify in court about the abuse and harassment you have experienced. You can also present witnesses and other evidence to support your case. The abuser will also be allowed to present evidence and testify at the hearing. If you are not represented by a lawyer, you may want to consult with a lawyer before the hearing to understand what documents and evidence is legally admissible in court. For example, you might not know that if you wanted to enter a copy of hospital records documenting an injury you received from the abuser, those records may have to be "certified."
If your abuser does not attend the hearing, the court may issue a "default judgment" and you may receive an order of protection against him in his absence. Another possibility is that the court may hold what is called an "inquest," which is a one-sided trial where you present your evidence and testimony and the judge decides the case based on that alone. It is also possible that the judge may decide to reschedule the hearing for a different day.
If you have a temporary order of protection, it may expire on the next court date and another temporary one may be issued that is effective until the following court date. Be sure to look at the expiration date of the order before each court date so you know if the judge should be issuing another temporary order of protection on your return court date. If the judge does not mention that the order of protection is "extended" or "continued," be sure to ask the judge if a new order is being issued on your behalf. Once the case goes to a hearing or trial, if you win your case, the judge would issue a final order of protection instead of a temporary order of protection.
See the Preparing Your Case section under the Preparing for Court tab on the top of this page for ways you can show the judge that you were abused.