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An order of protection is a court order that directs one person (the "subject") to avoid behavior directed at another person (the "protected person"). For example, an order of protection might direct John Doe not to communicate with Jane Doe.
A New York City order-of-protection lawyer defends you against criminal contempt charges for allegedly violating a restraining order.
Table of Contents
Criminal courts issue orders of protection in virtually all domestic violence ("DV") cases, and in many non-DV cases involving allegations of violence, threatened harm, stalking, or harassment.
Family Court also issues orders of protection where domestic violence is alleged: in family offense proceedings, child protective proceedings, and custody proceedings.
The Civil Term of Supreme Court issues orders of protection in divorce proceedings that involve accusations of domestic violence.
Orders of protection are often called restraining orders. However, they're just one type of restraining order.
"Restraining order" is a broader term that includes "injunction". Criminal courts and Family Court can't issue injunctions.
If you're the subject of an order of protection, think of the order as a penal law that applies only to you. If you violate that law, you could be convicted of a crime.
You can be convicted in a criminal court even if the order came from Family Court or divorce court.
Intentionally failing to obey an order of protection is a crime called "criminal contempt in the second degree", a misdemeanor that carries a maximum sentence of 1 year in jail.
"Criminal contempt in the first degree" is a felony that carries a maximum sentence of 4 years in jail. It can be committed by:
Aggravated criminal contempt is a felony that carries a maximum sentence of 7 years in jail. It can be committed by:
Due to the serious penalties, people shouldn't make frivolous domestic violence complainants.
A "temporary order of protection" ("TOP") is issued during litigation, usually at the beginning. A "final order of protection" is issued at the end.
In criminal cases, TOP's are typically issued at arraignment. In DV cases, they're issued virtually 100% of the time. In non-DV cases, less often.
In Family Court proceedings, judges often issue TOP'swith only the protected person present. The subject has no opportunity to oppose. (This one-sided process is called ex parte.) An ex parte TOP application in Family Court typically occurs when the protected person files a family offense petition, alleging that the subject committed a "family offense" against a “member of the same family or household”.
Divorce courts sometimes issue ex parte TOP's when one spouse alleges domestic violence against the other. The TOP effectively awards "exclusive occupancy of the marital residence" to the protected-party spouse by kicking out the subject spouse.
Criminal courts may issue ex parteTOP's simultaneous with arrest warrants.
A subject usually has no knowledge of an ex parte TOP until the subject is served with a copy. The subject can't be liable for contempt unless the subject is aware that the TOP exists. Typically, this occurs in court, when a judge orally describes the TOP to the subject – or outside of court, when a police officer, marshal, or process server delivers a copy of the written TOP to the subject.
A TOP might expire on the next court date, or on some other specific date – for example, 6 months after it's issued.
A TOP issued with a warrant will remain in effect indefinitely, until the subject appears in court and vacates the warrant.
Where the case underlying a TOP is dismissed before the TOP expires, the TOP immediately becomes ineffective, regardless of the subsequent expiration date.
Criminal courts issue final orders of protection upon conviction, whether by guilty plea or trial, with the order lasting up to:
cases that result in dismissal or acquittal are the only criminal court DV cases that are resolved without a final order of protection. Virtually every other DV case results in a final order of protection of some kind.
Family Court may issue a final order of protection during a family offense proceeding, at the conclusion of a "dispositional hearing". The order may remain in effect for up to:
Family Court may extend a final order of protection for a reasonable period of time, upon a showing of good cause, or upon consent of the parties.
An order of protection directs the subject to obey certain conditions, such as:
An order that imposes all these conditions is often referred to as a "no-contact order of protection" or a "full order of protection".
A less-restrictive order – solely directing the subject to refrain from committing family offenses against the protected person, and to refrain from harassing, intimidating, or threatening the protected person – is often referred to as a "limited order of protection" or a "no-harass order of protection".
In domestic violence cases, criminal courts routinely issue full orders of protection at arraignment. Upon conviction, with the DA's consent, the Court might issue a limited order of protection. Sometimes, the Court will issue a limited order of protection while a case is pending.
Typically, criminal courts issue limited orders only where the protected person advocates for a limited order – or no order – with the DA.
The lack of contact required by a full order of protection can place enormous financial stress on parties who live together. A full order directs the subject to stay away from the protected person's home, which requires cohabiting couples to pay the expense of two residences.
Often, while a full TOP is in effect, the DA will offer a limited final order of protection, as leverage to force a guilty plea: the full order will continue to harm the affected family unless the defendant accepts the offer.
Temporary orders of protection issued by criminal courts and Family Court always:
Final orders of protection issued by criminal courts and Family Court always:
Firearms licenses are very difficult to obtain in New York City. As a practical matter, even if the case against you is dismissed, an order of protection issued in a DV case may prevent you from ever being licensed to possess a firearm in NYC.
The subject of a full order of protection might have children in common with the protected person.
If a criminal court order bars the subject from communicating with the protected parent of children that the parties have in common, then the subject is effectively barred from parenting the parties' children – the subject can't speak with the protected parent to arrange visitation.
Criminal court orders of protection usually permit Family Court and Supreme Court to issue subsequent orders that would permit communication necessary to facilitate custody and visitation. The subsequent orders might also permit the subject to pick up and drop off the children at the protected person's home. Acquiring such an order requires the subject to commence a custody proceeding, unless one is already begun.
If the parties have a custody order that predates an order of protection, then the subject must return to Family Court or Supreme Court to get a new custody order.
A protected person can't violate an order of protection issued for the protected person's benefit. Only the subject can.
Orders of protection must include the following notice to police: "The protected party cannot be held to violate this order nor be arrested for violating this order."
There are many ways to get caught violating an order of protection. Don't try to outsmart the system.
Only courts have authority to modify or terminate orders of protection.
Protected parties have no authority to permit subjects to violate orders of protection.
If you're prosecuted for violating an order of protection, for example, by being in the protected person's home, it's no defense to claim that the protected person invited you there.
Criminal court orders of protection contain the following notice in capital letters: "This order of protection will remain in effect even if the protected person has, or consents to have, contact or communication with the party against whom the order is issued."
Where the subject and the protected person live together, the subject's lawyer should ask the Court to grant the subject permission to retrieve property from the parties' joint residence. Courts typically grant such requests.
However, the Court will order that:
Some practical pointers for subjects:
If the subject and the protected person work together, or attend school together, or if the subject must visit a family member who resides in the same apartment building as the protected person, then the Court might allow "incidental contact" at a specific location.
If the parties work for the same company, for example, permitting incidental contact would allow the subject to perform job duties at the same premises as the protected person.
If you're the subject of an order of protection with an incidental-contact clause, don't speak with the protected person. Also, avoid being in close proximity to the protected person – for example, don't get on the same elevator. Don't get on the same bus or subway car to and from work.
If you and the protected person must communicate at work, then seek an order of protection that specifically allows such communication. Don't rely on a generic incidental-contact clause.
If you're the subject of an order or protection, and you inadvertently contact the protected person, police will believe you did it intentionally.
Take steps to avoid butt dialing and other unintended communication:
For a free consultation about criminal contempt charges call New York City order of protection lawyer Bruce Yerman at 212-390-0036, or complete this short form:
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