25 Sep 23

How can I get a restraining order in a domestic violence case in New York?

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Last Updated on: 26th September 2023, 03:40 am

How to Get a Restraining Order in a Domestic Violence Case in New York

Getting a restraining order against someone who has been abusive or violent towards you can be an overwhelming process. I totally get it–you’re dealing with a difficult situation and trying to navigate a complicated legal system. But getting that order in place is so important for your safety. This article will walk you through the step-by-step process and legal specifics of getting restraining orders in New York, especially in domestic violence situations. I’ll share tips from my own experience going through this process, as well as advice from lawyers and advocates. My goal is to empower you with the knowledge you need to get the protection you deserve!

What is a Restraining Order?

A restraining order (also called an order of protection) is a court order that requires the abusive person to stop harming or threatening you and/or your children. It may also set rules and restrictions about contact, communication, and being near you. Restraining orders provide important legal protection. If the order is violated, the abusive person may be arrested and charged with a crime.

Types of Restraining Orders in New York

There are a few different types of restraining orders in New York:

  • Family Court Order of Protection – This is the type you would get for domestic violence situations. You file a petition in Family Court.
  • Criminal Court Order of Protection – This can be issued if the abuser is arrested and charged with a crime related to the abuse. It’s requested as part of the criminal case.
  • Supreme Court Restraining Order – Can be issued as part of divorce or custody cases.

You can actually get orders from both Family Court and Criminal Court at the same time for more protection. I’ll focus on Family Court orders here since those are most common for domestic violence situations.

Who Can File for a Family Court Order of Protection?

To file for an order in Family Court, the abuser must be someone in your family or household. This includes:

  • Spouses or ex-spouses
  • Parent, child, step-parent, step-child
  • People who have a child in common
  • Intimate partners who lived together in the past
  • Siblings, step-siblings
  • Grandparents, grandchildren
  • In-laws (like parent in-law, sibling in-law)

If the abuser doesn’t fall into those categories, you may be able to file for a Criminal Court order instead after reporting the abuse to police. A lawyer can help you figure out your options.

How to File for an Order of Protection

Here are the steps to take to file for an order of protection in Family Court:

  1. Fill out a Family Offense Petition – This is the form you file to start the request. Many courts have advocates on site who can assist you with filling it out accurately.
  2. File the petition with the court clerk – You would file in the Family Court in the county where you or the abuser lives.
  3. See a judge – The judge will ask you questions and decide whether to grant a temporary order of protection.
  4. Serve notice to the abuser – For the order to be valid, the abuser has to be officially served with notice, often by law enforcement.
  5. Attend a court hearing – The judge decides whether to keep the order in place long-term.
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It may sound straightforward, but each step can get complicated. Having an advocate or lawyer guide you through the process can be extremely helpful. Many domestic violence agencies provide legal advocacy services.

What to Expect at the Court Hearing

The court hearing is where the judge will decide whether to keep the order of protection in place long-term. Here’s what you can expect:

  • Arrive early – Get through security and find your courtroom.
  • Check in with the clerk – They will let the judge know you are there.
  • Wait for your case to be called – There may be many cases heard that day.
  • Present your side – You’ll have a chance to explain why you need the order, through testimony.
  • The abuser responds – They can agree to the order or argue against it.
  • Answer questions – The judge may ask you questions about the situation.
  • The judge decides – They will either grant the order or dismiss the case.

Having an advocate with you on the court date can make the experience less intimidating. They can even sit with you while you wait and guide you through the hearing process. Many domestic violence agencies provide court accompaniment services.

What Does the Order of Protection Include?

The order of protection will include rules the abuser must follow. Common rules include:

  • No further abuse, threats, harassment
  • Stay away from your home, workplace, school
  • No contact with you, your children, other family members
  • Follow custody orders for children
  • Stay 100 yards away from you
  • Surrender firearms

The order can be customized with any rules to help keep you safe. The judge can also order the abuser to attend counseling or substance abuse treatment. Violating the order is a crime that can result in arrest.

How Long Does the Order of Protection Last?

Temporary orders last until the court hearing, which must happen within a few weeks. If the order is kept in place, it generally lasts up to two years. But it can be extended if you file again before it expires. There is no limit on how many times you can extend an order.

Tips for Getting an Effective Order

Here are some tips to help make sure you get an order with all the protections you need:

  • Be specific – Give dates and details about the abuse when testifying.
  • Keep a record – Keep copies of threatening texts, emails, voicemails.
  • Ask for what you need – Request rules like surrendering firearms, if applicable.
  • Bring evidence – Photos of injuries or damage, medical records.
  • Get a lawyer – They can advocate for the protections you need.
  • Be prepared – Make childcare arrangements for court dates.
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Having an advocate or lawyer to guide you through the process can make a huge difference. Many domestic violence agencies provide legal advocacy services at no cost.

Enforcing Your Order of Protection

Getting the order is just the first step – enforcing it is key. Here’s what you can do:

  • Keep a copy with you – Have it on hand to show law enforcement if needed.
  • Call the police – If the order is violated, call 911 and make a report.
  • Document violations – Keep a record of any prohibited contact or incidents.
  • Consider cameras – Home security cameras can help document violations.
  • Tell family/friends – Make sure people close to you know about the order.
  • Be vigilant – Take steps like changing locks and avoiding the abuser.

Violating a restraining order is a criminal offense. But police do not always enforce them consistently. Having evidence like videos or recordings can help. If the order is violated, contact an advocate or lawyer right away.

Safety Planning

While the restraining order provides legal protection, it’s also crucial to have a safety plan in place. Some tips:

  • Identify safe areas – Like a room to lock/barricade yourself in if needed.
  • Pack a bag – With important items in case you need to leave quickly.
  • Make a signal – A code word to use with family or friends if you need help.
  • Memorize numbers – Like the police, domestic violence hotline, family/friends.
  • Come up with an escape route – How to safely leave your home.
  • Avoid isolated areas – Don’t go places where you could get trapped alone with the abuser.

Domestic violence advocates can help you customize a safety plan for your unique situation. Many agencies provide safety planning services.

The Court Process Can Be Frustrating

I want to acknowledge that getting an order of protection through the courts can be incredibly frustrating and disempowering. You may feel like you are not being heard or taken seriously. The abuser may make false counter-claims. The process takes time. Your safety may be at risk in the meantime. You might not get all the protections you hoped for. I see you, I hear your frustration, and I know how unjust the system can be. Do not hesitate to reach out to an advocate – having support can make a big difference.

You Deserve to Feel Safe

Despite its flaws, the restraining order system exists for an important reason – to protect victims of domestic violence. You deserve to feel safe, period. An order of protection, while not a perfect solution, can provide meaningful legal protection. It sends a message that the abuse will not be tolerated. It imposes consequences for the abuser. It paves the way for a life free from violence. You are brave for seeking an order, and you are not alone.

I hope this information helps you understand how to get an order of protection in New York. Reach out if you need any help with the process – I’m happy to point you towards resources and support in your area. Wishing you strength and safety.