Orders of Protection

Various criminal acts, when perpetrated upon the family, can be the basis for an order of protection. These crimes include;

• Assault (intentionally or recklessly inflicting physical injury); attempted assault; menacing (causing fear of physical injury)
• Reckless endangerment (placing someone at risk of serious injury)
• Harassment (which can be either unwanted physical contact that does not cause any real injury or by non-physical contact, such as stalking or by annoying another through threatening phone calls or some other means)
• Disorderly conduct

An order of protection can be granted by either in criminal court or the family court (and Supreme Court in matrimonial proceedings). It is important to know, however, that unmarried domestic partners, who do not have any children together, are not considered family members and, thus, can only seek an order of protection in criminal court. Either court can forbid the defendant from returning to a certain address or addresses and from having future contact with the victim or children.

What differs between the criminal court and the family court is the other types of remedies available. A criminal court can put the perpetrator in jail, whereas the family court cannot, unless a pre-existing order of protection was violated. Yet, the family court has other powers that the criminal court does not have, including the ability to award temporary custody of children, emergency support and direct a referral to counseling. This is because the purpose of the criminal court is merely to punish, while the purpose of the family court is to protect the victim, protect children, and resolve other practical issues.

Another difference between the criminal and family courts is the amount of control the petitioner has over the process. In the criminal court it is the District Attorney who decides whether or not to prosecute and whether or not to offer a plea bargain. Although, the District Attorney is required to notify the victim of any decision or plea bargain made. By comparison, in the family court, it is the victim who decides whether or not to proceed.

Orders of protection in custody, paternity and support cases can remain in effect for as long as the child is a minor or for as long as the order custody or support is in place. All other orders of protection continue for a maximum of two-years, unless aggravating circumstances are found and, if so, they can run as long as five-years.