Orders of Protection

An Order of Protection is a lawful Order which can exclude a person from their home; prohibit them from communicating with the protected party; order them to stay away from protected people, which may include children; and can make various other Orders which seek to protect a person from continued domestic abuse and/or violence.

In Family Court, a request for an Order of Protection is made by filing a petition. The petition can be filed by an attorney on your behalf or can be prepared at the courthouse using the services of the court to assist in the preparation of the formal written petition. A judge will see the petitioner the same day of the filing to determine if a Temporary Order of Protection will be issued. The judge will make a short inquiry of the requesting party and review the petition. This initial determination will be made one-sided (ex-parte), without the appearance of the other party, known as the Respondent. If a Temporary Order of Protection is issued, the same will usually be forwarded to the police or sheriff for service on the Respondent. The court will add a Summons to the petition, which will notify both parties as to when the case will appear on the court calendar.

On the first date the Respondent appears, the Court will afford an opportunity to argue about the terms of any Temporary Order of Protection that had been issued in their absence, seeking to remove or change provisions or eliminate the order entirely. It is uncommon for the court to eliminate the Temporary Order of Protection entirely during the pendency of the matter.

The petition, otherwise known as a family offense proceeding under article 8 of the Family Court Act, will proceed until there is a resolution. A final resolution of the petition will usually take the form of a voluntary withdrawal of the case, a finding made upon the default of the Respondent, an Order of Protection without findings being made against the Respondent on consent, or after a trial at which the court will determine if one or more family offenses have been committed.

The petition can be withdrawn by the petitioner at any time, and may be subject to dismissal in the event that the petitioner does not appear timely when the case is on the court calendar. If the respondent fails to appear, a default may be entered with a corresponding final order of protection.

Many petitions are resolved with an “order without findings.” This means each party waives their right to a formal trial, known as a fact finding hearing, and agrees instead that a final order of protection may be issued against the respondent containing certain specific terms without any determination by the court that the respondent did anything wrong or violated any law. Such a resolution avoids the petitioner’s risk that they will be unable to convince the court after a formal hearing that a family offense was in fact committed, and avoids the risk to the respondent that the court will believe the petitioner and make a factual finding against them, which may not serve their long-term interests.

Our attorneys have represented clients in Family Court family offense proceedings on hundreds of occasions. We have prepared many petitions and defended them successfully.