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What Are Restraining Orders In New York?
A Family Lawyer's Guide to Restraining Orders
What is a Restraining Order?
Restraining Orders also called Orders of Protection are issued by a Judge to protect you from another person who is threatening, harassing, abusing, sexual misconduct, annoying, and/or intimidating you, or has committed a crime against you in violation of the Family Court Act. See Family Court Act Section 842. Restraining Orders are commonly issued in Family Court, but may also be issues in Criminal Court.
Family Court Restraining Orders offer the same level of protection as Restraining Orders issued in Criminal Court, and may include: a full stay away order mandating that the respondent (like a criminal defendant) cannot have any contact with the petitioner whether they reside or work in Queens, Nassau, Manhattan, Brooklyn, Bronx, Suffolk, Westchester, or any other jurisdiction throughout the State of New York or New York City. If a Family Court order of protection is violated, the respondent can be arrested and charged with Criminal Contempt as either a misdemeanor or felony. A conviction can lead to jail or even time in a New York State prison for up to six months. Family Court orders of protection are very powerful tools.
If you are served with a Restraining Order you should take this extremely seriously. If someone alleges that you violated the Restraining Order you will likely be arrested immediately and spend the night in jail. If the police cannot find you right away, a detective will likely be assigned to find you at work or other places. They may call you and give you an opportunity to surrender or may find you and arrest you.
If you need a Restraining Order or you have been served with a Restraining Order, you should consider hiring an experienced Family Lawyer to present your case in court. There are technical rules of evidence that need to be followed. If you don’t know the rules your petition may be denied, or on the other hand, you may not be able to adequately defend yourself.
Contact the Family Attorneys at Solomos & Storms, PLLC for help with Restraining Orders.
“If You Are Served With A Restraining Order You Need to Take it Extremely Seriously. If Someone Alleges That You Violated the Order – You Will Likely Be Arrested and Spend the Night in Jail!”
What Do I Do If I'm Served With a Restraining Order?
If you are served with a restraining order you will need to appear in court. The order will tell you the location, date and time of your court appearance. You should hire an attorney in advance so that you can gather evidence and prepare a defense. There are instances when an ex-spouse makes up allegations to retaliate against you. In other situations, your spouse or partner may seek a Restraining Order to get you removed from your home, so long as it is your primary residence. This is known as an Exclusionary Order. A hearing will be held shortly after the petition is made for a Restraining Order, often in 24 hours. You need to be ready for trial, to either put on your case or defend yourself.
Contact the Family Lawyers at Solomos & Storms, PLLC for assistance with Restraining Orders.
What Allegations Do I Need to Get A Restraining Order?
A Family Court Restraining Order concerns domestic relationships, such as between a spouse, family member, boyfriend or girlfriend. Your petition for a Restraining Order will need to make allegations specifically stating the offending conduct and the date that the conduct occurred. If you fail to provide specific dates, your petition will likely be denied by the court. The Family Court must make sure that petition properly alleges that the respondent engaged in conduct that violated the Family Court Act. See Family Court Act Section 842. There are many instances that qualify for the issuance of a Restraining Order, such as abuse, threats, harassment, sexual misconduct, annoying behavior, intimidating you, and/or committed a crime against you.
What Allegations Should be Made in my Petition for a Restraining Order?
The petition for a restraining order must properly allege that a Family Offense has been committed against you by the respondent. Alleging several instances of misconduct is helpful to obtain a Restraining Order, such as the respondent threatened you on June 19th, slapped you on June 20th, pushed you on June 21st, damaged your furniture on June 23rd, etc. Each of these is a separate offense, and the totality makes your petition stronger. It is also best to allege all instances of abuse, so that you are not later precluded from alleging them at a later date.
Court Appearances for Restraining Orders
What Happens at the Initial Appearance?
After your attorney files the petition in court, an initial appearance will be scheduled by the court, often 1 to 2 days after the petition is filed. At the initial appearance the Judge will ask you to confirm that the allegations in the petition are true. You will be placed under oath. If the Judge is convinced that a Family Offense has been properly alleged, the court will issue a Temporary Restraining Order, also known as a Temporary Order of Protection, and a summons to appear for a hearing. The Temporary Restraining Order will prevent the respondent from engaging in certain conduct. Often, the Temporary Restraining Order will be a “Refrain From” Order, which prevents the respondent from engaging in certain acts, such as threatening you, harassing you, assaulting you, and other improper conduct. The respondent will need to be served with the order and the summons. You cannot serve the respondent. Generally the Sheriff or a process server will perform service. Once served, if the respondent violates the order, you can call the police and have the respondent arrested immediately.
The summons will provide a date for a hearing, usually in a few days.
What Happens at the Hearing?
At the hearing, the petitioner will need to present evidence to prove that the respondent committed a Family Offense. It is highly advisable to retain an attorney to represent you at the hearing. You will be required to testify and present evidence. Technical rules of evidence apply, which may prevent you from introducing testimony and evidence if you do not understand the rules of evidence and courtroom procedure. In order to win the hearing, you must establish that a family offense was committed by a preponderance of the evidence – which means it is more likely than not that a violation occurred. If you meet the burden of proof, the court will issue a Full Order of Protection. The Full Order of Protection may include a STAY AWAY Order that prevents the respondent from coming into contact with you, your HOME, your WORKPLACE. The order may also preclude the respondent from COMMUNICATING with you by text message, email, social media, or other means. If the respondent violates any of these provisions he/she may be arrested. In certain instances an EXCLUSIONARY ORDER may be issued, that orders the respondent to leave the home IMMEDIATELY. Thus, the respondent may be ordered to leave his/her residence.
It should be noted that at the hearing, the respondent will be afforded an opportunity to contest the allegations and mount a defense in court. The respondent will have an opportunity to object to improper procedure, cross-examine witnesses, and present his/her own evidence in an effort to prove that a Family Offense was not committed. If the respondent is successful, the petition will be denied. If you have been served with a Temporary Order of Protection you should hire an experienced Family Court attorney as soon as possible to begin preparing for the hearing.
Contact the Family Attorneys at Solomos & Storms, PLLC if you want to apply for a Restraining Order, or if you need to defend yourself from a Restraining Order.
How Long Does A Restraining Order Last?
A Final Restraining Order can last up to 2 years, and under aggravating circumstances can last up to 5 years. A Final Restraining Order can be renewed upon request. A restraining order can be amended or altered based on a substantial change in in circumstances. For example a REFRAIN FROM order can be amended to a STAY AWAY order, and vice versa.
Contact the Family Attorneys at Solomos & Storms, PLLC for help with Restraining Orders.
An Experienced Family Court Attorney Should Be Retained to Assist You With Restraining Orders. You Must Comply With Technical Rules of Evidence to Win Your Case or to Defend Yourself. Don't Risk Losing Based on a Technical Mistake!
What Do I Do If The Restraining Order Is Violated?
If the respondent violates the Restraining Order call the police to report it. Have a copy of the Restraining Order printed out, the police will need to read it and confirm that it has been violated. If the respondent is on the scene, he/she will likely be arrested. If the respondent has fled, a detective will likely be appointed to find the respondent. The detective will likely call the respondent and request that he/she surrender to the police station. If the respondent fails to do so, the police will likely arrest the respondent at his/her home or place of work.
Can a Police Report Be Used as Evidence?
A police report generally cannot be used as evidence at trial unless it is certified. Even if certified, the statements contained in the report can be objected to as hearsay, which is an out of court written or oral statement. If an officer is called to testify the report can be used to “refresh” the officer’s recollection of events. Typically, the police are called after a Family Offense has been committed, so officers generally do not have first-hand witnesses (personal knowledge) of what occurred. At trial, only expert witnesses can deduce testimony without first hand knowledge. However, if the respondent committed a Family Offense against you in front of an officer, the officer can be called as a witness in court to testify what he/she personally observed.
What Do I Do If My Spouse Abuses Me? -- Document Abuse For Court.
If you are being abused at home you should take immediate action. It is recommended to call the police to protect your safety and have a police report written to document the incident. You should also take pictures of your injuries and email them to herself in case your spouse destroys your phone or camera. Pictures of abuse can help prove your case in court.
Unfortunately, once abuse starts it often continues until the offender receives proper therapy. You should consider obtaining a Restraining Order if you have been abused and you believe the abuse will continue. In addition to physical pain, abuse often causes lasting psychological harm, including to children who witness abuse, that can take years of therapy to recover from. Children who witness abuse may repeat the cycle of violence to others and may have difficulty with intimate relationships. Sexual abuse is among the most damaging forms of abuse, and often leaves scars that last a lifetime. If you witness any form of sexual abuse, you should report it to the police immediately and seek an Order of Protection. Domestic abuse is a very serious issue that should be dealt with immediately — don’t wait until serious damage occurs to your mental health.
Contact the Family Lawyers at Solomos & Storms, PLLC for assistance with Restraining Orders
Can I Secretly Record My Spouse Yelling at Me or Abusing Me?
Audio or video recordings of abuse can be very helpful in court. An Apple watch can be a useful tool to discretely record harassing comments and other improper conduct. Pictures and recordings of your spouse engaging in abusive conduct can be used as evidence in a hearing. In New York State, you can record conversations without consent of the other person so long as you are a party to the conversation. However, you must be a party to the conversation in order to secretly record them. It is against the law to record someone by wire tapping or eavesdropping because you are not a party to the conversation. Keep in mind it, in other states, such as California, Delaware, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania, and Washington it is illegal to secretly record a conversation. Research the law in your state or contact an attorney before you secretly record someone.
Contact the Family Lawyers and Divorce Lawyers at Solomos & Storms, PLLC to learn more.
We Look Forward to Working With You
The attorneys at Solomos & Storms, PLLC are battle tested Divorce Lawyers and Family Court Lawyers with experience in Queens, Nassau, Brooklyn, Manhattan, Suffolk and Westchester. We have substantial experience with a wide variety of divorce and family court cases. We are a veteran owned law firm – one of the founding partners, Derrick Storms, Esq., served in the United States Marine Corps in the Iraq War as a Reconnaissance Marine. We offer zealous advocacy, attention to detail, and client satisfaction that few firms can match. Our mission is to resolve cases as quickly and efficiently as possible. Call us for a free consultation at (718) 278-5900.
Where We Serve Clients
Where we serve clients?
We serve clients in Queens, Nassau, Brooklyn, Manhattan, Suffolk and Westchester.
Areas in Queens include: Astoria, Long Island City, Ditmars, Woodside, Flushing, Bayside, Rego Park, Jackson Heights, Corona, Jamaica, Elmhurst, Kew Gardens, Whitestone, College Point, Bay Terrace, Great Neck, Kings Point, Port Washington, and all areas of Queens.
Areas in Nassau include: Freeport, Merrick, Baldwin, Oceanside, Roosevelt, Hempstead, and all areas of Nassau.
Areas in Brooklyn include: Brooklyn Heights, Park Slope, Carrol Garden, Cobble Hill, DUMBO, Bay Ridge, Williamsburg, Fort Green, Gowanus, Brighton Beach, and all areas in Brooklyn.
Areas in Manhattan include: Upper East Side, Upper West Side, Midtown, Tribeca, Lower East Side, Financial District, and all areas in Manhattan.
Areas in Suffolk include: Babylon, Brookhaven, East Hampton, Huntington, Islip, Riverhead, Shelter Island, Smithtown, Southampton and Southold, and all areas in Suffolk.
Areas in Westchester include: Lower Westchester Pelham, New Rochelle, Yonkers, Eastchester, Larchmont, Mamaroneck, Scarsdale, Ardsley, White Plains, Rye, Harrison, Sleepy Hollow, Pleasantville, and all areas of Westchester.
FAQ’S
Contact a Family Lawyer for assistance drafting your petition and representing you in court.
Some reasons a Restraining Order can be issued are to stop abuse, threats, harassment, sexual misconduct, annoyance, destruction of property, and/or if a crime has been committed against you.
A Restraining Order can be issued in 24 hours or sooner. Often a court appearance will be scheduled within 1 or 2 days of the petition being filed in court.
We serve clients in Queens, Nassau, Brooklyn, Manhattan, Suffolk and Westchester.
Areas in Queens include: Astoria, Long Island City, Ditmars, Woodside, Flushing, Bayside, Rego Park, Jackson Heights, Corona, Jamaica, Elmhurst, Kew Gardens, Whitestone, College Point, Bay Terrace, Great Neck, Kings Point, Port Washington, and all areas of Queens.
Areas in Nassau include: Freeport, Merrick, Baldwin, Oceanside, Roosevelt, Hempstead, and all areas of Nassau.
Areas in Brooklyn include: Brooklyn Heights, Park Slope, Carrol Garden, Cobble Hill, DUMBO, Bay Ridge, Williamsburg, Fort Green, Gowanus, Brighton Beach, and all areas in Brooklyn.
Areas in Manhattan include: Upper East Side, Upper West Side, Midtown, Tribeca, Lower East Side, Financial District, and all areas in Manhattan.
Areas in Suffolk include: Babylon, Brookhaven, East Hampton, Huntington, Islip, Riverhead, Shelter Island, Smithtown, Southampton and Southold, and all areas in Suffolk.
Areas in Westchester include: Lower Westchester Pelham, New Rochelle, Yonkers, Eastchester, Larchmont, Mamaroneck, Scarsdale, Ardsley, White Plains, Rye, Harrison, Sleepy Hollow, Pleasantville, and all areas of Westchester.
Yes, the person will likely be arrested if they violate the Restraining Order.
Yes, you will need to go to court. Some appearances may be scheduled virtually. You must appear at each appearance, even if you have a Family Court Lawyer representing you.
Absolutely! A Restraining Order can damage your reputation. It can place you at a disadvantage in a divorce case. It can also make it very easy for you to be arrested. Once you are served with a Restraining Order, a mere phone can to the police alleging that you violated the order can get you arrested. You should take Restraining Orders extremely seriously and mount the best defense possible with an experienced Family Court Attorney.
You should hire an Family Attorney immediately to guide you and help prevent you from making mistakes–especially when your emotions are high. This is the time when you need counsel the most! You will have limited time to gather witnesses and evidence. You will need to prepare for the hearing with your attorney. Also, DO NOT contact the petitioner, they can use your actions against you at the hearing. Remember the saying: anything you do can be used against you in court.
You will have the opportunity to go to court and defend yourself at a hearing. You present your own witnesses and evidence to disprove the allegations made against you. Remember, the petitioner has merely made allegations against you, the petitioner has the burden to prove those allegations at the hearing. You can cross-examine the petitioner’s witnesses to refute their testimony. You should hire an experienced Family Law attorney and spend considerable time preparing for the hearing. Preparation often pays off in court!
Yes, a certain type of Restraining Order called an Exclusionary Order can require you to leave your home, even if you are the home owner! Again, Restraining Orders are EXTREMELY POWERFUL tools and they should be taken very seriously!
Yes, abuse is a form of Family Offense that qualifies for a Restraining Order. Also, a romantic relationship qualifies as a domestic relationship that is covered by the Family Offense Act.
A lock out may be considered harassment that qualifies for a Restraining Order.
A Restraining Order can be issued in 24 hours or less. Courts will first issue a Temporary Restraining Order that will remain in effect until a hearing is performed.
Yes, the Family Court can order your spouse to REFRAIN FROM showing the pictures, posting them on the internet, and other improper actions.
Yes, you can get a Restraining Order that prevents a spouse or partner from sexually touching you against your will.