There is no question that domestic violence by abusive partners is a serious problem, and that situations exist in which protections are legitimately needed.
What is equally true is that sometimes, domestic abuse allegations are lodged against a person for the sole purpose of gaining the upper hand in a contentious child custody dispute or to receive preferential treatment in court proceedings. These allegations are not reflective of the truth, and can reflect negatively on the accused, and may also jeopardize one's career, personal relationships and reputation.
Fighting a protection order in New York City is going to require the aid of an experienced attorney who can help gather evidence to disprove the allegation. Judges do understand the serious implications of a protection order - even a temporary one - and will not be inclined to grant the request if the accuser is proven dishonest. Once finalized, an order of protection can drastically impact a defendant's life and so fighting the allegations from the outset is typically the best course of action.
False allegations are more common than one might think. One of the worst things someone in this situation can do is not hire or a lawyer or fail to show up to court. Either one of these can leave the accused vulnerable to unfair or unreasonable requirements by the court, as they will be largely based upon the position of the accuser.
An order of protection will have very specific and immediate consequences. Each order will differ, depending on the circumstances, but generally, a judge can order an individual to have no contact with the accuser or the children the two share in common. That contact often extends beyond the physical to phone calls, text messages and other forms of electronic communication. A protection order can also result in the accused being forced to move out of the shared home and may bar the the accused from possessing a firearm or consuming alcohol.
Beyond that, there could be consequences to one's immigration standing. If a person is convicted criminally for domestic violence and is a non-citizen, this could be grounds for immediate deportation. It doesn't matter if the person has lived here 30 years, has purchased a home, has a stable job and extensive family here in America.
An order of protection could have the same effect if it's violated.
Orders of protection can be issued by the criminal court, but can also be obtained in family court. In and of itself, a protection order may not constitute grounds for deportation, but it certainly won't help you, particularly if you are actively seeking citizenship. Plus, if you violate the order in any way, that IS considered a crime, and could be grounds for deportation.
Another potential motivation for false allegations of domestic violence is that in some situations, legal aid will assist accusers in expediting immigration applications. This can provide a powerful motivator for someone who simply wants a divorce or separation, but doesn't want to risk their immigration standing.
False allegations of domestic abuse are also fairly common in cases where there is a bitter battle for child custody. Accusers know that the courts will weigh the case in terms of whatever is in the best interest of the child. Showing that the other partner is somehow unfit - or worse, violent - can prompt a judge to set an arrangement that favors the accuser.
Unlike the standard of proof required in criminal court, grounds for orders of protection do not need to be proven beyond a reasonable doubt. This lower proof threshold means that it's up to the accused to show why such an order is unjustified. Given the seriousness of potential consequences, experienced legal help is always warranted.
If you are trying to fight a false order of protection New York City, call our offices at (718) 864-2011.
Obtaining an order of protection, NYCOURTS.gov
More Blog Entries:
Fighting Brooklyn Child Custody Case Without Attorney is Unwise, Jan. 6, 2014, New York City Family Law Attorney Blog