When a family in New York feels they need an order or protection, they will have to file a family offense petition. This is a court order that demands an individual stay a specified distance from a person’s work, home as well as children if necessary. Some can be written so a person is not permitted to have any contact with a petitioner.
A family offense petition is designed to provide an order of protection. This can be a good way a petitioner can protect themselves and loved ones from an abusive family member. A person who violates an order of protection could be sentenced to jail time. Family offense petitions have also been used improperly. Some have been utilized to obtain a better position in a custody dispute.
Family Offense Petition Reasons
Having an order of protection granted will require a person to prove a family offense has been committed. There are certain offenses in the state of New York defined as family offenses
*4th, 3rd, 2nd, and 1st-degree Stalking
*2nd-degree Aggravated Harassment
*2nd or 3rd-degree Menacing
*3rd and 2nd-degree Assault
*1st or 2nd-degree Reckless Endangerment
*Individuals who are determined to have had an intimate relationship with the petitioner in the past. A New York Family Court is will determine what is and is not an intimate relationship. It’s possible the relationship with a roommate, close friend, or significant other could meet their criteria for being intimate.
*An individual with whom the petitioner has had a child
*A former Spouse
Limited Or Full
A limited order of protection doesn’t require the respondent to avoid all contract with the petitioner. It does require the respondent to not engage in any additional criminal activity involving the petitioner. In New York, a limited order of protection is often referred to as an order to be good. Its focus is to make certain a respondent behaves correctly when around the petitioner. A full order of protection requires the respondent to stay away from the petitioner and not have any communication. This will include everything from Facebook contact, phone calls, e-mails, text messages and more.
Filing Family Offense Petition
To begin the process of filing a family offense petition, a petitioner should have the respondent’s current address. They will be asked to provide a description of what happened in detail. Should there be a police report involved, copies of it should be provided. It is recommended a person get help from a New York family lawyer to make certain it is completed correctly.
Once the family offense petition has been filed, the petitioner will be sent to a judge immediately. This judge will have the authority to issue a temporary order of protection. They can do this right away. If the accusations are serious, the respondent does not need to be present.
Scheduled Court Date
Once a petitioner files a family offense petition, they can be given a court date and summons. On this date, they will be required to prove the respondent has been properly served. The petitioner and the respondent must appear in court. It’s important a petitioner understand their rights in these procedures.
In a child custody case, the petitioner in a family offense petition will be provided significant leverage. When someone is a true victim of abuse, it is a legal action designed to help provide protection for them and their children. Should it be discovered the petitioner falsely filed a family offense petition, an order of protection can be made against them. They would then be kept away from their children.
The last step in the process is to have the family offense case resolved. It can be settled or move forward to a trial. Many times respondents consent to the order of protection but don’t admit to the allegations made against them. It’s also possible for those involved to agree to an adjournment in contemplation of dismissal. This is when the order of protection will remain in place for a specified amount of time. Should it not be violated during this time, a family offense petition could be dismissed.
A petitioner can try and obtain a family offense petition in Family Court or Criminal Court. It’s also possible to purse it in both. In a Family Court, a judge can issue an order of protection. In Criminal Court, a judge can give sentences that are much more serious. In either situation, the petitioner and the respondent have a right to be represented by an attorney. An experienced New York attorney will be able to provide the best possible outcome for either situation.
When a family dispute occurs, many things happen. In most cases, all parties cool off and make up with one another. However, in situations where emotions run high, certain behavior may require legal intervention in the form of a family offense petition.
What is a Family Offense Petition?
Filed by an attorney when a family member claims another family member committed certain acts against them or another family member, a family offense petition covers a number of alleged acts, including:
–Assault or attempted assault
For a family offense petition to be filed, the people involved must meet the legal criteria of “family members.” In most instances, “family members” are defined as those who are related by blood or marriage, those who have been previously married, and those people who are unrelated yet do have a child together.
What Happens When a Family Offense Petition is Filed?
Once a family offense petition is filed, many things are set in motion. To begin with, once the petition is filed, the petitioner has the right to have a court appearance that same day. If at that court appearance the judge determines there is “good cause,” a temporary order of protection, along with one for child support if needed, will be issued. Because the orders are temporary, they last only until the date the person accused of the abuse, known as the respondent, appears in court. This date will be determined by the judge, who will then issue a summons requesting the respondent to appear in court, where they can admit the allegations are true, deny them, or consent to the order of protection being entered.
Which Courts Issue Family Offense Petitions?
In most of these cases, a Family Court will issue the family offense petition. However, if none of these courts are in session, a Criminal Court can issue the order under extreme circumstances. If the respondent chooses to deny the allegations, a judge will then conduct a fact-finding hearing in an attempt to determine if the allegations are true. If after this hearing the judge determines nothing occurred, the case is dismissed. However, if the allegations are found to be true, a dispositional hearing is then held.
Before the dispositional hearing is held and a dispositional order is issued, the judge usually adjourns court so that an inquiry can be made into the surroundings, capacities, and conditions of the people involved. However, once the dispositional hearing is held, the dispositional order can contain a number of stipulations, which can include placing the respondent on probation up to one year, suspending judgement for six months, ordering payment of up to $10,000 restitution, and making a final order of protection effective for up to five years. In addition, the final order may contain many requirements the respondent must abide by, such as:
–Pay petitioner’s medical bills for abuse-related injuries
–Staying away from petitioner and their children
–Participation in a treatment program for battery and/or substance abuse
–Staying away from petitioner’s employer and children’s school
–Refrain from injuring or killing any pets owned by petitioner and children
–Paying legal fees of the petitioner
In addition to these requirements, the final order of protection may also include a time when the respondent will be allowed to remove personal property from the residence, as well as times when visits with children may be permitted, assuming the court deems the children will be safe during these visits.
Violating the Order of Protection
If a respondent violates the order of protection, certain consequences usually result. Once the petitioner filed a violation petition and the violation is confirmed, the court will modify the protective order, and sentence the respondent up to 6 months in jail for each violation. Along with this, the case may be transferred to Criminal Court if the violations put the petitioner and/or their children at risk of physical harm, and the court can revoke or suspend a respondent’s firearms license, as well as force them to turn over any firearms they possess. In any case, it’s important to remember than all parties involved do still have the right to retain attorneys during these matters.
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