Wednesday, March 30, 2011

Orders of Protection Against Domestic Violence

Domestic violence, sometimes called battering, relationship abuse, or intimate partner violence, is a pattern of behavior used to establish power and control over another person through fear and intimidation, often including the threat or use of violence. Batterers use threats, intimidation, isolation, and other behaviors to maintain power over their victims. Thirty percent of Americans say they know a woman who has been physically abused by her husband or boyfriend in the past year.

In New York, a victim of domestic violence can obtain an order of protection against the person who has abused him or her. Prior to 2008, family offense proceedings could only be brought if the parties were related by blood or marriage or if they had a child in common. Since that time, the law was expanded to include persons who are not related, but who are or have been in an “intimate relationship.”

Courts can issue orders of protection as part of a divorce or a criminal court case. The Family Court can also issue orders of protection in connection with family offense proceedings involving crimes such as harassment, sexual abuse, stalking, reckless endangerment, and strangulation.

To commence a family offense proceeding, the victim must file a petition for an order of protection. The person who files the petition is called the petitioner, and the one against whom it is filed is called the respondent. The petition must be personally served on the respondent.

When a petition is filed, the judge can immediately issue a temporary order of protection that will stay in effect until a final order of protection is issued or the case is settled or dismissed. A temporary order of protection can direct the respondent to stay away from the home, school, business or place of employment of the petitioner as well as any children who live with the petitioner. It can also prohibit the respondent from communicating or contacting them.

The respondent has the right to a hearing. If the petitioner successfully proves that the respondent committed a family offense, the court will issue a final order of protection, the terms of which can be the same as those in the temporary order. Most final orders last for two years. However, they can be extended for up to five years if there are “aggravating circumstances,” such as physical injury, use of a weapon, or a history of repeated violations by the respondent of prior orders of protection. 

It is a crime to violate an order of protection, whether temporary or final. Any violation of the order can result in criminal charges and incarceration. If the court finds that the respondent willfully violated the order, it can commit him or her to jail for up to six months. A violation of a Family Court order of protection may also be prosecuted in Criminal Court, where it can result in a prison term for as long as seven years.

In addition to recourse to the legal system, victims of domestic violence should take advantage of the myriad resources available to them. One such resource is Safe Horizon, the country’s largest service provider for individuals and families affected by domestic violence, with direct services available for those living in New York City. Their Domestic Violence Hotline can be reached at 800.621.4673 (HOPE).