Domestic Violence

DOMESTIC VIOLENCE

If you or your children are subjected to physical abuse, sexual abuse, harassment, violence, stalking, or certain other "family offenses," you can seek an order of protection from the court.

The State of New York defines family offenses as the commission of certain violent and threatening crimes when committed between people who share one of the specified relationships.  In addition to facing criminal prosecution, a person who commits a family offense may be named in a restraining order, also referred to as an "order of protection." Violation of an order of protection by the accused person can result in arrest and possible incarceration.

Family Offense Defined

The following crimes are considered family offenses when committed between current or former spouses, parent and child, or members of the same family or household:
•disorderly conduct
•harassment in the first and second degree
•aggravated harassment in the second degree
•sexual misconduct
•forcible touching
•sexual abuse in the third degree
•sexual abuse in the second degree when the victim is incapable of consent for some reason other than being under the age of 17
•stalking in the first, second, third, and fourth degree
•criminal mischief
•menacing in the second and third degree
•reckless endangerment
•criminal obstruction of breathing or blood circulation
•strangulation in the first and second degree, and
•assault in the second and third degree and attempted assault.

Family Members Defined

The following persons are considered “members of the same family or household”:
•persons related by blood or marriage
•current or former spouses
•co-parents of a child, regardless of whether the persons have ever been married or lived together, and
•persons who are in or have been in an intimate relationship, regardless of whether such persons have ever lived together.  In determining whether two people are in an intimate relationship, the court may consider the following factors: the type of the relationship, the frequency of the couple’s interaction, and the duration of the relationship.  The court may consider additional factors, and the relationship does not have to be sexual in order to be considered intimate.
[N.Y. Family Court Act § 812]

Sentences for conviction of a family offense can vary in severity.  For example, third-degree assault is a Class A misdemeanor, punishable by up to a year in jail and a $1,000 fine, while first-degree strangulation is a Class C felony, punishable by up to 15 years in prison and a $5,000 fine.

Temporary Orders of Protection

When a person is charged in criminal court with committing any crime against a current or former spouse, a family member, a parent or child, or a member of the same household, a court may issue a temporary order of protection.  A victim may also file a petition for an order of protection in a family court proceeding.  A victim can file a petition for an order of protection even if the offender has not been arrested.  After reviewing the petition and asking the victim questions, the judge will issue the temporary order upon determining that the victim is in need of an order of protection.  A temporary order of protection may be issued ex parte, that is, without notifying the offender prior to the judge issuing the order.  A temporary order of protection may contain provisions that:
•require the defendant stay away from the home, workplace, or school of the household or family member or any witness designated in the order
•set a child visitation schedule for a parent
•prohibit the defendant from committing criminal offenses against a family or household member or a child
•prohibit the defendant from committing acts that create an unreasonable risk to the health, safety, and welfare of a child or a family or household member
•require the defendant to allow a designated person the right to enter the residence at a specific time to remove personal belongings, and
•prohibit the defendant from harming any pet kept by the victim or a child residing in the household.

Longer Orders of Protection

Once a court issues a temporary order of protection, it schedules a hearing; the defendant receives a copy of the petition and order and a summons for the hearing.  After hearing evidence from both the victim and the defendant, the judge will issue an order of protection if sufficient evidence exists to justify a longer-term order of protection.  An order of protection issued in a family court proceeding can last up to two years, unless the court determines that there is an aggravating condition or that the conduct in question violates an existing order of protection, in which case the court can make the order valid for up to five years.
[N.Y. Family Court Act § 842]

Criminal court proceedings can result in longer orders of protection.  If the defendant is convicted of a family violence offense that is a felony, the order of protection will last eight years from the date the sentence is entered, or eight years from the expiration of the sentence.  Beginning September 1, 2013, orders of protection based on a felony conviction will last either five years or three years from the expiration of the sentence, whichever is greater.  For a Class A misdemeanor, the order will last five years from the date of sentencing or three years from the expiration of a term of imprisonment, whichever is greater.  As of September 1, 2013, the duration of an order of protection in the case of a Class A misdemeanor conviction cannot exceed three years.  A conviction for any crime other than a felony or Class A misdemeanor results in an order of protection lasting either two years from sentencing or two years from the expiration of a term of incarceration, whichever is greater.  Beginning September 1, 2013, an order issued as the result of such a conviction cannot exceed one year.
[N.Y. Crim. Proc. Law § 530.12]


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An attorney can help protect your rights.  If you are a victim, a lawyer can seek a restraining order against the abuser.  Or if you are wrongly accused, they can challenge the evidence against you, cross-examine witnesses, help you to decide if you want to testify and subpoena witnesses for your behalf.