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Posted on April 8, 2024

Understanding the Evidence Required to Obtain an Order of Protection in New York

Obtaining an order of protection can be a crucial step in ensuring your safety and well-being. An order of protection is a legal order issued by a court that prohibits an individual from engaging in harmful behavior towards another person, and it can provide vital protections for victims of domestic violence, harassment, stalking, or other forms of abuse.

First, it is important to understand the legal basis for obtaining an order of protection in New York. The Family Court Act provides for two types of orders of protection: an order of protection in the family court and a criminal court order of protection. Family court orders of protection are typically obtained in cases where there is no pending criminal case, or where the alleged conduct does not constitute a criminal offense.

In New York Family Court, the victim of abuse must file a Family Offense Petition, which alleges at least one of the available Family Offenses elaborated in the Family Court Act. If you are experiencing domestic violence or abuse in New York and need assistance obtaining an order of protection, please do not hesitate to reach out to our team of Manhattan family law attorneys at the Law Office of Richard Roman Shum. We are committed to advocating for victims of domestic violence and helping them obtain the legal protections they need to stay safe. Call us today at (646) 259-3416 to schedule a consultation.

What is a Family Offense?

Family offenses are defined in the Family Court Act as offenses committed between certain family or household members, including spouses, former spouses, persons related by blood or marriage, persons who have a child in common, and persons who are or have been in an intimate relationship. Family offenses include, but are not limited to:

  • Disorderly conduct: This includes any behavior that is likely to cause a public disturbance or that is intended to provoke a fight or argument. Disorderly conduct can include physical violence, threatening behavior, or verbal abuse.
  • Harassment: This offense involves any behavior that is intended to annoy, alarm, or harass another person. Harassment can include repeated phone calls, emails, or text messages, as well as following or stalking a person.
  • Menacing: This offense involves threatening to cause physical harm to another person. Menacing can include brandishing a weapon or making verbal threats of violence.
  • Assault: This offense involves causing physical harm to another person. Assault can include hitting, slapping, punching, or any other physical act that causes injury.
  • Sexual assault: This offense involves any sexual act that is performed without the victim’s consent. Sexual assault can include rape, sexual abuse, or any other unwanted sexual act.

Types of Orders of Protection

When we have filed your Family Offense Petition describing how you have suffered one or more of the above Family Offenses, the Court may decide to hear from us Ex Parte, which means before having notified and without the participation of the alleged abuser. In cases of serious abuse, where the victim reasonably believes they are in danger of imminent harm, the Court may issue a Temporary Order of Protection to protect you. In those cases, the Court orders the Temporary Order of Protection and your Family Offense Petition be served upon the alleged abuser and sets a date for both parties to come to Court, in-person or virtually. Those papers may be served by a uniformed New York City Sheriff. 

How To Get An Order Of Protection In NY?

A protection order is an official legal document issued by either a criminal court or a family court within the state of New York. Its purpose is to instruct an individual to cease engaging in harmful behavior towards you or to maintain a certain distance from you, and an attorney can assist you in pursuing this legal measure.

In the Family Court, you, as the party seeking protection, are referred to as the “petitioner,” while the person causing problems is identified as the “respondent.”

To initiate this legal process, it is recommended to consult with an attorney who focuses on family law. An attorney can help you navigate the complexities of obtaining a protection order. They can accompany you to the Family Court and work with the Family Court Clerk to obtain a Family Offense Petition. They can assist you in completing the petition comprehensively, ensuring that all relevant details are included, and can help you submit it on the same day.

Once your attorney has submitted the family offense petition, they will work with you to prepare for a meeting with the judge. In urgent situations, your attorney can request a prioritized meeting with the judge to seek a temporary protective order until a formal court date is scheduled. If you have concerns about the safety of your children, your attorney will help you present these concerns to the judge during the meeting.

During the meeting with the judge, your attorney will represent your interests. They will respond to the judge’s questions on your behalf and provide a clear explanation of why you or your children require a temporary order of protection. If there is a valid reason, the judge, based on your attorney’s arguments, will grant a temporary order of protection. Make sure to discuss with your attorney the coverage of the protection order to fully understand its implications. Subsequently, your attorney will work with you to prepare for a court date to determine whether the protection order should remain in effect. Both you and your attorney will attend this hearing, where your attorney will advocate for your continued safety and well-being.

If you’re seeking an order of protection in New York, navigating the legal complexities can be overwhelming. At the Law Office of Richard Roman Shum, our skilled Manhattan family law attorneys can guide you through the process, ensuring your rights and safety are protected. We understand the urgency of your situation and can provide you with the guidance needed to secure the necessary legal measures swiftly. Contact us today to take the first step toward securing the protection you deserve.

Evidence Required to Obtain an Order of Protection

In the court appearances that follow, we will have to use evidence to convince the judge to grant a Permanent Order of Protection. Case law and the Family Court Act provide guidance on the evidence required to obtain an Order of Protection in New York. 

“To prevail on her family offense petition, petitioner bore the burden of establishing, by a fair preponderance of the evidence, that respondent committed one of the enumerated family offenses set forth in Family Ct Act § 821 (1) (a)” (Matter of Allen v Emery, 187 AD3d 1339, 1340 [2020] [citation omitted  ]; see Family Ct Act § 832; Matter of Marianna Kv David K., 145 AD3d at 1362; Matter of Elizabeth Xv Irving Y., 132 AD3d 1100, 1101 [2015]). “The question of whether a family offense has been committed presents a factual issue to be resolved by Family Court, and Family Court’s determinations regarding the credibility of witnesses are accorded great weight” (Matter of Allen v Emery, 187 AD3d at 1339 [citation omitted]; see Matter of Jasmin NNv Jasmin C., 167 AD3d 1274, 1276 [2018]; Matter of Shana SSv Jeremy TT., 111 AD3d 1090, 1091 [2013], lv denied 22 NY3d 862 [2014]).

The evidence required may include, but are not limited to:

  • Affidavits or sworn statements: The petitioner may submit affidavits or sworn statements describing the incidents of abuse or violence, including dates, times, and specific details of the incidents. Affidavits from witnesses who have firsthand knowledge of the abuse may also be submitted.
  • Police reports: If the abuse or violence has been reported to law enforcement, police reports can serve as evidence of the incidents.
  • Medical records: Medical records documenting injuries or medical treatment related to the abuse or violence can be presented as evidence.
  • Photographs or videos: Photographs or videos of injuries, damage to property, or other evidence of abuse or violence can be powerful evidence in obtaining an order of protection.
  • Other documentation: Any other relevant documentation, such as emails, text messages, social media posts, or recordings that support the allegations of abuse or violence, may also be presented as evidence.
Orders of Protection in New York Examples of Required Evidence
Temporary Order of Protection Affidavits, Police Reports
Permanent Order of Protection Medical Records, Police Reports, Witness Statements, Photos of Injuries

It’s important to note that hearsay evidence, which is generally an out-of-court statement offered to prove the truth of the matter asserted, may be admissible in family court proceedings for orders of protection. However, the admissibility of hearsay evidence in family court is subject to certain limitations and requirements, as established by case law.

In conclusion, obtaining an order of protection in New York requires providing evidence of abuse or other family offenses. The Family Court Act provides for several types of family offenses that can be the basis for an order of protection. If you or someone you know is experiencing abuse or harassment, it is important to seek legal advice from an experienced family law attorney. At The Law Office of Richard Roman Shum, our team of New York family lawyers may be able to help you navigate the legal system and obtain the protection you need to stay safe. Contact us today at (646) 259-3416 to schedule a consultation.

If you or someone you know is experiencing domestic violence, harassment, or other forms of abuse, you can contact the National Domestic Violence Hotline at 1-800-799-SAFE (7233) for help and support.

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