Victims' RightsWhat Is the Difference Between a Family Court and Criminal Court Order of Protection?

What is the difference between a family court and criminal court Order of Protection?

An Order of Protection is a court order that tells one person what they cannot do to another person. If you are, or have been, stalked, harassed, threatened, or harmed, an Order of Protection (OP) can be an effective tool for keeping you safe. Below are some key differences between Orders of Protection in family court vs. criminal court. Scroll down the page for more detail!

Bear in mind: we work with clients all over the country but the information you see here applies specifically to NEW YORK.

What is the difference between a family court and criminal court Order of Protection?

Family court OP:

• A civil court proceeding
• The process is initiated by you, the victim (called a Petitioner) and/or your attorney
• You must have an intimate relationship* with the offender (called a Respondent)
• You do not need to involve law enforcers or make a police report
• You can get a Temporary Order of Protection (TOP) in as little as a day by showing you will be harmed if you must wait
• If the offender violates the TOP or OP, the offender can be arrested and charged with a class a misdemeanor
• Family court records are generally not accessible to the public without information about the docket number or case file

* such as being members of the same household, having a child together, being in an intimate relationship or previously in one, married or previously married, etc.   

Criminal court OP:

• A criminal court proceeding
• The process is initiated by you, the victim, filing a police report saying you were the victim of a crime. If the offender is arrested, the prosecutor can ask the judge to issue a Temporary Order of Protection (TOP) saying the offender cannot contact you
• You do not need to be in an intimate relationship with the offender
• The TOP is usually renewed during the pending criminal court proceeding
• If the offender pleads guilty or is convicted, the judge can issue a longer-term OP
• If the offender is never arrested, the charges are dropped, or wins the criminal case, the TOP will end.
• You have less control over the outcome than in family court
• If the offender violates the TOP or OP, you can call the police and the offender can be rearrested and charged with the additional crime of violating the OP in a new criminal case
• The criminal court and prosecutor oversee notifying the offender of the TOP or OP
• Criminal OPs rarely last more than five years 

Family court Order of Protection
If you are being stalked, harassed, threatened, or harmed by an abusive ex or partner, an Order of Protection might be exactly what you need to get them to stop contact, go away and stay away.

If the person abusing you is your current spouse, the father of your child, a family member through blood or marriage, or someone with whom you have an “intimate relationship,” then you may be able to get a temporary Order of Protection (TOP) in family court on the very same day.

A family court Order of Protection can:

• direct an abuser to not injure, threaten, or harass you or your children
• direct an abuser to stay away from you and your children
• require an abuser to move out of your home
• require an abuser to follow custody orders
• require an abuser to not have a gun
• require an abuser to stop contacting you at all

Our firm can help you navigate the process of obtaining an Order of Protection. Or, if you already have one, we can take over and support the process going forward. Click here to get in touch.

Is a family court Order of Protection right for me?
In New York, family court has limits who it has jurisdiction over.  Typically, a close relationship between the survivor and offender (“petitioner” and “respondent”) is required, such as being members of the same household, having a child together, being in an intimate relationship or previously in one, married or previously married, etc.

Thus, if the offender is not somebody the victim knows in one of these ways, only civil or criminal court is an option (scroll down to find out more about these).  More states are providing family court jurisdiction to victims of stalking who did not have a prior intimate relationship with their stalker. New York is not yet one of those states (but we are campaigning to change that!).

Here are some scenarios in which an Order of Protection may be helpful for you:

• You are being physically abused or threatened.
  If your current partner or ex is physically harming (or threatening to harm) you or your children.
• You are being emotionally abused. You want to get out but you’re scared of what might happen.
  Not all abuse is physical*.  Many people live in fear that, if they leave, their ex or current partner will spread lies on social media, try to get them fired, turn friends and family against them, or share secrets and naked photos. If you need to get out and don’t know how to do so without compromising your emotional and social wellbeing, an Order of Protection can help prevent an abusive person from retaliating when you leave.* If you notice the features of an emotionally abusive relationship, then you should seek help.
• You are being financially abused.
  Is your partner moving money around? Preventing you from accessing accounts? Draining your financial resources? Abusers rely on financial abuse tactics to keep you dependent on the relationship and prevent you from getting your fair share. An Order of Protection can stop them from using your money to control you.

What do I need to prove to get a family court Order of Protection?
In family court, the survivor must allege that at least one family offense occurred. Family offenses are specific criminal statutes.

In New York family offenses include:

• disorderly conduct
• harassment
• aggravated harassment
• sexual misconduct
• forcible touching
• sexual abuse
• menacing
• stalking
• reckless endangerment
• strangulation
• assault
• obstruction of breathing or circulation 

What should I know about the process of getting a family court Order of Protection?

1. It is important that you and your attorney make sure your OP contains all the protections you need in your individual situation. We have worked with victims to secure Orders of Protection that include specific language that prohibits things like: sharing intimate images, making posts about the victim on social media, attempting to impersonate a victim on an internet platform, and lots more! It’s so important to have an attorney who understands the digital threat and can properly advocate for your protection.
2. The OP is not enforceable until it is served on the offender.  Though the survivor is responsible for serving the offender, she is not allowed to do it herself. Somebody else must do it and that person must sign an affidavit of service which the survivor must bring to court on the return date (see below). All three documents must be served on the offender.
3. You will be given a return date. The Order of Protection will most likely only be in effect until that return date. For an OP to become permanent, there needs to be a hearing with a judgment in the survivor’s favor, or the offender agrees not to fight it. If the offender does not show up and respond, a hearing (called an inquest) is necessary. On the first return date, even if the offender shows up, it is unlikely a hearing for a permanent Order of Protection will be held that very same day. Often, offenders want to postpone the hearing (called an “adjournment”) to give them time to obtain a lawyer.  If that’s the case, the judge will extend the initial OP.  Sometimes it can be several months until a hearing actually occurs.
4. OPs are never forever. In New York, even a “permanent” OP is rarely in effect for longer than two years, however victims can seek to have it extended by returning to court with their attorney, or alone, and explaining why they believe they’re still at risk.

It’s so important to have an attorney who understands the digital threat and can properly advocate for your protection.

What else should I know?
The survivor should realize that they will be face-to-face with the offender on the family court return date. This can be frightening for people leaving an abusive relationship whose biggest desire is to avoid their ex. Most courts have special rooms where survivors can wait until their case is called so they can minimize contact with the abuser.

We always recommend that the survivor bring a trusted friend or family member to court.  It can feel stressful and foreign to be in the courthouse; there is often a lot of waiting and grumpy unhappy people milling about.  Plus, you may find yourself face-to-face with the offender when you are going through security or waiting for the elevator.

One of the great innovations during COVID is that proceedings are virtual. We are fighting for it to stay that way!
Reminder: Keep your TOP or OP on you at all times. Take a picture and have it on your phone. If the offender violates it, you need to have it ready to show law enforcers.

Although it’s not necessary to have an attorney during a Family Court OP proceeding, we ALWAYS recommend it. You have a legal burden you must meet to get an OP, and it’s not always straightforward to know what to include in the petition. It can be shattering to lose a TOP or OP proceeding and is especially high risk if the offender has an attorney and you do not.  If you lose a TOP or OP, it makes it harder to get one against the same offender because the court will already have documentation about why you did not qualify before.

An OP isn’t always the best course of action. Some offenders have a disregard for the law and authority and may even react to an OP with more aggression. Your attorney is experienced at predicting the behaviors of an abusive individual and will consider what is best for your unique situation. They can also help you develop a comprehensive safety plan. Click here to get in touch.

If family court does not have jurisdiction over the offender, there are two other ways you can restrict somebody’s behavior: criminal court and civil court:

Criminal court Order of Protection
After somebody is arrested for a crime, judges will often issue a temporary Order of Protection requiring the offender stay away from the victim. In a criminal case, the prosecutor requests the Order of Protection (not the victim or the victim’s attorney). A criminal court OP may be issued as a condition of a defendant’s release or bail. The duration of the criminal order of protection depends on the seriousness of the crime. Reminder: You do not need to have a relationship with someone to get a criminal Order of Protection.

Another difference between a family court and criminal court Order of Protection is that, generally, in criminal court the victim has less control over the process and the outcome than in family court. This is because a criminal court OP is pursued by a prosecutor (known as the district attorney) who is a lawyer representing and working on behalf of the government – not on behalf of the victim.

Civil court Injunction
If there is no intimate relationship between the offender and the victim and no criminal proceeding, the victim may be able to seek an injunction to stop harmful behavior through a civil court injunction.

These cases can be tricky for an unrepresented victim to navigate, but may be the only option if there’s no intimate relationship or criminal proceeding.  If the victim (known as the plaintiff) is able to show imminent injury if the injunction is not immediately granted, they may qualify for a preliminary injunction and/or a temporary restraining order. The standards are very high and require a variety of legal papers, affidavits, and memorandum.

Unlike Orders of Protection issued by family court or criminal court, it is not a crime to violate an injunction. Instead, it may be contempt of court. In our experience, very aggressive offenders are unlikely to be deterred by a civil injunction.  Additionally, if the offender is using speech to scare and intimidate you, courts will almost never issue an injunction that prevents the offender from speaking or communicating about you in the future. An injunction like that would likely be considered an unconstitutional “prior restraint” that violates the right to free speech.

We can help you navigate the process of obtaining an Order of Protection. Or, if you already have one, we can take over and support the process going forward. Click here to get in touch.

Reminder! Many abusers monitor their partner’s online activity. Make sure you are reading this from a secure device and that your browser history is not available to your abuser.

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