In most cases, victims of violence or assault must apply for a restraining order. In New York, temporary protective orders are available at Family Court.
These types of orders cover abuse from a sibling, boy or girlfriend, spouse, parent, adult offspring, or even a one-night stand. They also prohibit harm or threats.
Eligibility
Whether you have already been granted an Interim Protective Order or are filing for the first time, you will appear in front of a Judge to explain your reasons for needing protection. The Judge has the power to grant you different kinds of relief depending on the facts presented. For example, the court can grant you an order of protection that bars the respondent from having any physical contact, verbal or written communication, or being in the presence of the petitioner. The judge can also exclude the respondent from your home (“exclusive occupancy”) and order them to relinquish all firearms during the pendency of the order.
If the Judge grants you an emergency temporary order, you will be asked how you intend to serve the respondent on notice of the petition and hearing. If police attempted service, it is helpful to have the dates and times, precinct number and officers’ names who tried to serve.
Filing
The process of asking a judge for a Protective Order begins by filing a Family Offense Petition with the Court clerk. This petition includes information about the abuse, the Respondent, and your request for relief. You can file alone or with an advocate.
When you file the petition, write down as many incidents of abuse as possible including when they happened, where they happened, how they happened, whether there were injuries (bruises, cuts), and what kinds of weapons were used. Also tell the clerk if the Respondent is involved in any current or pending Family, Juvenile, Criminal, Paternity, Custody, or Domestic Violence cases.
If the judge grants your Temporary Protective Order, a date for a final hearing will be set. It is important that you come to the hearing because you will need to be able to present your case to the Judge. If you do not appear, the TPO will expire. If you cannot be present at the hearing, you can request that the Judge issue a Default Order.
Service
If you need to protect yourself from a person who is not a family or household member, you can file a criminal restraining order with your local prosecutor’s office. You should work with your attorney to determine which type of protection is best for you.
In Family Court, you can seek a Temporary Protective Order against your current or former spouse or intimate partner, someone with whom you have a child in common or are related by blood or marriage and certain other persons. You may also request a protective order as part of a case involving custody, visitation and/or support.
Once the Judge signs your Temporary Protective Order it must be served on the respondent. The Sheriff’s office can serve the order Monday through Friday, and they will send the Court proof of service or a statement that service was attempted. You can also ask the Judge for alternative methods of service. If the police attempt service, you should get a statement from them including the date and time, precinct number and officers’ names who made the attempts.
Hearing
In order for a judge to grant an order of protection, both you and the person against whom you want protection must appear at a future court date. Your case will be heard by a Family Court Judge or Magistrate, depending on the circumstances.
The Judge will hear your petition, take into account all of the facts presented in your Petition and then decide if you should get an order. The petition must include all of the relevant details in a clear and coherent manner to maximize the chances of success.
Generally, the order will direct the respondent to stay away from you, your home, work, school, children and other places where you go. It may also provide for supervised visitation with your children if the safety of the child can be assured. The respondent must be served with the petition and Affidavit of Service and have them notarized. Both petitioners and respondents are entitled to a court appointed (“18-B”) attorney if they can’t afford to hire their own.
