An order of protection exists to shield people from genuine danger. It can also be put to tactical use — in a divorce, a custody dispute, or the breakdown of a relationship — where the restrictions it imposes have little to do with safety and a great deal to do with advantage. If you have been served with an order, or expect to be, you need counsel who will take the allegations apart and present your side to the court.
The Gilmer Law Firm, PLLC, defends clients in Brooklyn against unfounded and misused orders of protection. Many of these orders arise from family offense petitions filed in Family Court between spouses, former partners, or co-parents. George M. Gilmer, Esq., who leads the firm, has 24 years of experience in New York’s family and criminal courts.
What an Order of Protection Is
An order of protection directs one person to refrain from contact with, and from certain conduct toward, the people named in it. Some call it a restraining order or a protective order. It may be issued in Family Court, in Criminal Court, or in Supreme Court as part of a matrimonial case, and its terms can be narrow or sweeping — permitting limited contact with your children, for example, while barring you from the home you share.
Temporary and final orders
An order issued at the outset of a case is temporary. Under Family Court Act § 828, a court may issue a temporary order on a showing of good cause — and, importantly, that order is not a finding that you did anything wrong. It is generally continued from one court date to the next while the matter is pending. At the conclusion of the case, the court may enter a final order of protection. Under Family Court Act § 842, a final order ordinarily runs up to two years, and up to five where the court finds aggravating circumstances. A Kings County matter shows how serious the final stage can be: after findings of disorderly conduct, second-degree harassment, and second-degree menacing, the court entered a two-year stay-away order (Mitchell-George v. George).
Who can be named
A family offense proceeding reaches people who share a defined relationship — current or former spouses and intimate partners, blood relatives, and the parents of a shared child. That relationship requirement is what distinguishes a Family Court order from one sought in Criminal Court.
What an Order of Protection Can Cost You
An order of protection is not a minor inconvenience. Depending on its terms, it can:
- Exclude you from your own home;
- Restrict or suspend contact with your children, including at their school;
- Require you to surrender firearms;
- Appear on background checks and affect your employment; and
- Shape the course of a parallel divorce or custody case.
The exclusion point deserves emphasis, because it does not depend on whose name is on the lease. In one case, a court required a former spouse to leave a shared apartment and stay away for two years after the respondent admitted to second-degree harassment (Y.M.R.P. v. B.P.). Being put out of your home is a practical crisis — housing, belongings, children, and finances at once — and the procedure that decides it is explained in the firm’s discussion of an exclusion hearing. Because an order can also bear directly on custody, it is rarely an isolated problem; the conduct alleged in a family offense petition tends to resurface in the custody dispute, and in a true emergency it can prompt an application for emergency custody.
How Orders Are Issued — and Why That Matters to Your Defense
A court will often issue a temporary order before hearing from the person it restrains, on the strength of the petitioner’s account alone. That is a deliberate caution on the court’s part, but it means the first version of events to reach the judge is not yours. In a Family Court case, the petitioner must ultimately prove a family offense — harassment, menacing, assault, and the like — by a fair preponderance of the evidence, a lower standard than the proof beyond a reasonable doubt required in Criminal Court, but a real burden nonetheless. A respondent who has been served is entitled to a hearing at which both sides may testify and present evidence.
That hearing is where misused orders come apart, because a petition is not proof. In one matter, two former spouses who were still sharing a residence filed competing family-offense petitions full of serious allegations; the court dismissed both, because neither party called a witness or produced evidence to support the claims (A.S. v. L.S.). In another, an appellate court set aside family-offense findings where the petitioner had not established the content, context, and intent of the messages at issue — a reminder that angry words are not automatically a crime, and that the proof must tie the conduct to a specific family offense (Matter of T.M.S. v. K.R.G.). In my experience defending these matters in Brooklyn, the most common misunderstanding is that being served means the case is already lost. It is not.
If you have been served, the firm can move to modify or vacate the order and prepare your case for that hearing. While the order is in force, it is essential that you comply with every term of it. Violating an order — even one you believe is unjust — can lead to criminal charges and will tend to persuade the court that the order was warranted.
Building the Defense
The evidence that answers a misused order is often already in hand. It can include:
- Telephone and message records;
- Email and other electronic communications;
- Location records establishing where you were; and
- Accounts from witnesses.
Preserve it early and in full. The cases that fail tend to fail on the same point — the messages were described but never produced, or their context was never shown. Modern orders reach modern conduct, too: New York courts now issue terms forbidding the remote monitoring or control of a person’s phone, vehicle, or home devices, so electronic records can cut both ways. Where the record shows that the allegations are exaggerated or false, that evidence can persuade a court to narrow or dismiss the order. Where there is genuine evidence of violence, a court will be far less flexible, and counsel’s task becomes one of candid advice and careful management of the consequences.
What Not to Do
- Do not destroy anything you fear may hurt your case; doing so can itself be a crime.
- Do not contact the petitioner, or anyone you expect to be a witness.
- Do not attempt to see children named in the order, however indirectly.
- Do not disregard any term of the order.
Speak With a Brooklyn Order of Protection Defense Lawyer
An order of protection can separate you from your home and your children before you have had a chance to be heard. The sooner you have counsel, the sooner the court can hear the rest of the story. Where allegations of abuse or neglect have also drawn in a child-welfare agency, the firm’s ACS defense practice and its family law practice work in tandem. Contact The Gilmer Law Firm, PLLC for a free telephone consultation, or call (718) 864-2011.