What Is a Restraining Order?
In New York, Restraining Orders are officially called Orders of Protection. Judges issue restraining orders to protect an alleged victim from an accused person.
Restraining orders direct the accused not to behave in certain ways against the protected person.
The purpose of a restraining order is to prevent an accused person from committing future acts of violence against an alleged victim.
Which Courts Issue Restraining Orders?
In New York, criminal courts, Family Court, and Supreme Court issue restraining orders.
In criminal court proceedings, the alleged victim is called the Protected Person. The accused person is called the Defendant.
In family offense proceedings, the alleged victim is called the Petitioner. The accused person is the Respondent.
Restraining orders also arise in other proceedings, such as Child Protective Proceedings in Family Court, and Divorce Proceedings in Supreme Court.
Who Is Eligible for a Restraining Order in Criminal Court?
Usually, the protected person in criminal court is an alleged crime victim. However, the protected person also might be a witness or a member of the protected person's family or household.
Criminal courts always issue restraining orders in domestic violence cases, where the defendant and the protected person are "members of the same family or household":
- Former spouses.
- Parent and child.
- Other family members who are related by blood or marriage.
- People who have a child in common.
- People who are or have been in an "intimate relationship" with each other, "regardless of whether the relationship is sexual in nature".
Sometimes, criminal courts issue restraining orders where the defendant and the protected person aren't members of the same family or household. For example, the court might issue an order of protection in an assault case where the the defendant and the protected person are neighbors, co-workers, or strangers.
Who Is Eligible for a Restraining Order in a Family Offense Proceeding?
The protected person in a Family Offense Proceeding in Family Court is the petitioner.
The petitioner and the respondent must have one of the the following relationshps: "spouses or former spouses, or .. parent and child or ... members of the same family or household".
A family offense proceeding is not a criminal proceeding. It can't result in a criminal conviction. It can occur at the same time as a criminal proceeding; or it can occur instead of a criminal proceeding.
The petitioner's goal in a family offense proceeding is to receive a final order of protection against the respondent.
If the petitioner accuses the respondent of violating an existing Family Court order of protection, then the petitioner's goal is for the Family Court to impose an additional penalty against the respondent, which could include jail.
The petitioner is a person who's filed a sworn statement called a Petition.
The petition accuses the respondent of committing one or more of the following offenses: 1) disorderly conduct; 2) harassment; 3) aggravated harassment; 4) sexual misconduct; 5) forcible touching; 6) sexual abuse; 7) stalking; 8) criminal mischief; 9) menacing; 10) reckless endangerment; 11) criminal obstruction of breathing or blood circulation; 12) strangulation; 13) assault or attempted assault; 14) identity theft; 15) grand larceny; or 16) coercion.
Who Is Eligible for a Restraining Order in a Divorce?
In divorce proceedings, the Supreme Court, if warranted, may issue a restraining order on behalf of one spouse against the other.
What Are Mutual Restraining Orders?
Mutual restraining orders are two separate restraining orders. The accused person in one restraining order is the protected person in the other.
Where two people simultaneously accuse each other of committing a crime, the Court might issue mutual restraining orders.
For example, say police arrive at the scene of a fight between John and Jane. If they can't determine who started the fight, they might arrest both of them. In criminal court arraignment, the judge might order John to have no contact with Jane. At Jane's arraignment, the Court might order Jane to have no contact with John.
A similar scenario sometimes occurs in family offense proceedings, where John files a petition against Jane; and Jane files a petition against John.
What Are the Different Types of Restraining Order?
Restraining orders come in two strengths: 1) Limited Orders of Protection, also known as Partial Orders of Protection; and 2) No Contact Orders of Protection, also known as Full Orders of Protection.
A restraining order issued while a case is pending is a Temporary Order of Protection.
A restraining order issued at the end of a case is a Final Order of Protection.
What Is a Limited Restraining Order?
A limited restraining order directs the accused not to commit crimes or engage in other offensive conduct against the protected person. It also directs the accused to surrender all firearms.
Standard language from a limited restraining order looks something like this:
Refrain from assault, stalking, harassment, aggravated harassment, menacing, reckless endangerment, strangulation, criminal obstruction of breathing or circulation, disorderly conduct, criminal mischief, sexual abuse, sexual misconduct, forcible touching, intimidation, threats, identity theft, grand larceny, coercion or any criminal offense against [the protected person].
A limited order might allow the accused and the alleged victim to communicate with each other, and live together.
Even though limited orders allow parties to live together, doing so might not be a good idea. All it takes one allegation (true or false) for an accused to be charged with a felony for violating a limited restraining order.
What Is a No Contact Restraining Order?
A no contact restraining order directs the accused to have no contact whatsoever with the protected person.
In addition to ordering the same relief contained in a limited restraining order (refrain from committing crimes and other offensive conduct against the protected person, and surrender all firearms), the no contact order directs the accused to:
- Stay away from the protected person.
- Stay away from the protected person's home, school, business, and place of employment.
- Refrain from communicating with the accused by mail, telephone, e-mail, voice mail, text messaging, other electronic means, or any other means (including through third parties).
- Refrain from injuring or killing the protected person's pets.
The court often allows two limited exceptions to "no contact":
- Permitting the accused to a) enter the parties' mutual residence, b) accompanied by police, c) at a specific date and time, d) to remove the accused's personal belongings.
- Permitting contact, communication or access as allowed by a subsequent order issued by Family Court or Supreme Court in a custody, visitation, or child protective proceeding.
What Is a Temporary Restraining Order?
A temporary restraining order is a limited or no contact order of protection, that remains in place while litigation is pending.
For example, at an accused person's arraignment, the criminal court might issue a temporary order that expires on the next court date. On the next court date, the Court might issue a new temporary order that expires on the following court date. This will continue until the case is resolved.
Similarly, in family offense proceedings, the Family Court might issue a temporary order of protection that extends from the date the petition is filed until the first court date, and then subsequently issue temporary orders that extend from one court date to the next.
What Is a Final Restraining Order?
A final restraining order is a limited order of protection, or a no contact order of protection, issued at the end of litigation. It remains in place for a period of years.
In a criminal case, depending on the seriousness of the conviction, this might be for a period of 2 years to 10 years, measured either from the date of sentencing, or the date when a prison term is completed.
In family offense proceedings a final order typically extends for a maximum of two years from the date when the Family Court issues an order of disposition. However, the order can extend for a maximum of five years where the court finds the "existence of aggravating circumstances".
What Are Aggravating Circumstances?
Aggravating circumstances expose the accused person to harsher penalties in Family Court proceedings.
"Aggravating circumstances" means:
physical injury or serious physical injury to the petitioner caused by the respondent, the use of a dangerous instrument against the petitioner by the respondent, a history of repeated violations of prior orders of protection by the respondent, prior convictions for crimes against the petitioner by the respondent or the exposure of any family or household member to physical injury by the respondent and like incidents, behaviors and occurrences which to the court constitute an immediate and ongoing danger to the petitioner, or any member of the petitioner's family or household.
When aggravating circumstances "appear" to be alleged in a family offense petition filed in Family Court, the Court may "issue a warrant, directing that the respondent be brought before the court".
When the Family Court makes "a finding" of aggravating circumstances at the conclusion of a family offense proceeding, the Court may extend the period of an order of protection from a maximum of 2 years to a maximum of 5 years.
What's Happens If You Violate a Restraining Order?
If you knowingly violate a restraining order, regardless of what court issued it, you could be convicted of criminal contempt in a criminal court.
Criminal contempt is a crime, either a misdemeanor or a felony depending on the nature of the underlying conduct. If convicted, you could be sentenced to jail – up to 7 years in prison if you're convicted of a class D felony called "aggravated criminal contempt". Even if you're convicted of "criminal contempt in the second degree", a misdemeanor, you will have a criminal record for at least 10 years – perhaps for the rest of your life.
If Family Court finds that you've "willfully failed to obey" a Family Court restraining order, Family Court may sentence you to up to 6 months in jail.
How Do Courts Learn about Alleged Violations of No Contact Restraining Orders?
Courts become aware of alleged violations of no contact restraining orders when paperwork is filed with the Court.
In New York City, prosecutors charge criminal contempt by filing a misdemeanor complaint or a felony complaint in Criminal Court, or by filing an indictment in Supreme Court.
Probation officers supervise defendants sentenced to probation. They may commence "violation of probation" proceedings by filing a "request for a declaration of delinquency", alleging that the probationer violated a final order of protection.
In Family Court, petitioners file a "violation petition" against a respondent accused of violating an order of protection previously issued in a family offense proceeding.
in Supreme Court, a divorcing spouse may file an "order to show cause" why the the Court should not hold the other spouse in contempt for violating a restraining order.
How Are No Contact Restraining Orders Monitored?
No contact restraining orders are monitored in numerous ways. Most often, a protected person, allegedly aggrieved by the violation of a restraining order, will report the incident to police or prosecutors.
However, an accused person may get caught violating a no contact restraining order, even when the protected person consents to the violation. Here are a few:
- Being in the same home as the protected person when the local precinct's "domestic violence officer" stops by.
- Being in the same car as the protected person during a traffic stop.
- Re-entering the US with the protected person after traveling abroad.
- Conceiving a child with the protected person while the restraining order is in effect.
- Appearing on security video at the protected person's apartment building.
- Calling the protected person from jail. (All inmate phone calls are recorded.)
- Being reported to police by a family member or friend of the protected person.
What is a Domestic Violence Officer?
Domestic violence officers monitor and enforce compliance with restraining orders. The NYPD has a domestic violence officer assigned to each precinct in New York City.
According to the NYPD Patrol Guide, duties of the "domestic violence prevention officer" include:
- "Maintain contact with complainants (e.g., telephone calls, home visits, or interviews at the command, depending on the complainant's needs and preferences)" while using "caution when attempting to contact victims so as not to alert the alleged offender of police intervention".
- "Effect summary arrests ... if during the course of a home visit, interview, etc., a wanted offender is present."
What Happens If the Protected Person Violates a No Contact Restraining Order?
A protected person can't violate a no contact restraining order.
A no contact restraining order directs the accused person not to have contact or communication with the protected person. It doesn't direct the protected person to do anything.
May the Protected Person Authorize the Accused Person to Violate a Restraining Order?
A protected person has no power or authority to permit an accused person to violate a restraining order.
Restraining orders are court orders issued by judges. Only a judge has authority to issue, modify, or vacate a restraining order. The protected person can't override the judge's authority by consenting to contact with the accused.
If you knowingly violate a restraining order with the protected person's consent, you're just as guilty of criminal contempt as if you'd violated the order without consent.