Queens Order of Protection Lawyer

An order of protection is a legal order issued by a court to limit the behavior of an individual who poses a threat or harm to another person. In Queens, an order of protection is often used in cases involving family or household members, such as spouses, former spouses, parents, children, or those in intimate relationships. The primary goal of an order of protection is to safeguard individuals from harm, abuse, or harassment. According to the New York State Unified Court System’s Domestic Violence Registry, in 2023 Queens Family Court issued 36,358 orders of protection. That amounts to approximately 100 issued each day of the year. Contentious family relationships can lead to frequent legal disputes and safety concerns, making orders of protection a critical tool for maintaining peace. While an order of protection can be a temporary solution, it often plays a significant role in divorce and custody cases, as it can influence decisions on child custody and visitation rights. Violating an order of protection can result in serious legal consequences, including arrest and criminal charges. Therefore, understanding the terms and ensuring compliance is essential for both parties involved.

Whether seeking protection or defending against an unjust order, having legal counsel ensures your case is handled appropriately and fairly.It is imperative to contact an experienced Queens order of protection lawyer who can assist in gathering the necessary evidence, representing your interests in court, and ensuring the order is properly enforced.

There are two types of orders of protection available in Queens Family Court:

• Temporary Orders of Protection: Issued before a full hearing, these orders are meant to provide immediate protection while the case is pending. Under Family Court Act (FCA) § 828, a temporary order of protection can be granted when the court believes that the petitioner requires immediate relief from harm. The petitioner must complete Form 8-2 (Family Offense Petition) stating reasons for the request. The court can issue a temporary order of protection with minimal evidence, and the accused person is not required to appear in court at this stage and often does not. The order is temporary, remaining in effect until a full hearing can take place. In 2023, in Queens Family Court, 31,017 temporary orders of protection were issued.
• Final Orders of Protection: After a full hearing where both parties can present evidence, a final order of protection may be issued. Under FCA § 841, this order can last for a set period, often up to two years, and can be extended for up to five years if aggravating circumstances are found, such as the use of a weapon or if the respondent has a history of violent behavior. If the terms of the final order are violated, the respondent may face legal consequences, including arrest and criminal charges under Penal Law § 215.50 (criminal contempt). In 2023, in Queens Family Court, 5,341 final orders of protection were issued.

Final orders of protection from Family Court generally can last up to 2 years. In Monos v. Monos, 123 A.D.3d 931 (N.Y. App. Div. 2014), the plaintiff requested an order of protection by showing the Family Court, Queens County by a preponderance of evidence that the defendant had threatened to use a dangerous instrument against her and had harassed her. As a result, the court issued an order of protection on October 31, 2013 that required the defendant to stay away until and including October 31, 2015. However, if there are aggravating conditions, the order of protection can last up to 5 years. An order of protection from Supreme Court as part of a divorce is permanent.

In order for Queens Family Court to grant an order of protection, the petition must state specific grounds. The petitioner must provide evidence of abusive or threatening behavior. Common grounds for seeking an order of protection include:

• Physical abuse or assault: Under FCA § 812, acts constituting physical abuse, including assault, are valid grounds for seeking an order of protection. For example, in Riordan v. Riordan, 8 N.Y.S.3d 414 (N.Y. App. Div. 2015), the Appellate Division affirmed the decision of the Queen County Family Court for an order of protection based on multiple acts of physical abuse, including actions that amounted to assault in the third degree, menacing in the second degree, reckless endangerment in the second degree, and criminal mischief in the fourth degree.
• Stalking: Stalking behavior is addressed under FCA § 812 and further defined under Penal Law § 120.45-120.60, which outlines the varying degrees of stalking that can lead to an order of protection.
• Harassment: Harassment, both in-person and over communication devices, is covered under FCA § 812 and is further elaborated in Penal Law § 240.25 (second-degree harassment) and Penal Law § 240.26 (first-degree harassment).
• Threats of harm: Threatening behavior is actionable under FCA § 812, and threats of physical harm fall under Penal Law § 120.15, which deals with menacing.
• Sexual abuse: Sexual misconduct, abuse, or non-consensual acts are covered under FCA § 812, along with Penal Law § 130, which outlines sexual offenses.
• Destruction of property: The willful destruction of property can be considered harassment or coercion, and may fall under Penal Law § 145 regarding criminal mischief.
• Intimidation or coercion: Coercive or controlling behavior, which can include intimidation or emotional manipulation, is covered under FCA § 812 and addressed under Penal Law § 135, regarding coercion.

Note that the behavior does not necessarily have to involve physical violence; it may also include non-physical forms of abuse, such as psychological or emotional abuse, or even identity theft.

To file for an order of protection in Queens, you must file a petition in Family Court, located at 151-20 Jamaica Avenue, Jamaica, New York. The phone number is (718) 298-0197. The court’s hours are Monday to Friday, 9:00 AM - 5:00 PM. Queens Family Court handles all matters related to family offenses, including orders of protection, child custody, and child support. As an experienced Queens order of protection lawyer will explain, if you are seeking an order of protection against someone you have or once had an intimate relationship with or other family member, it is important to go to the Family Court, as orders of protection related to family or household members are specifically handled here, while orders of protection in other contexts (such as criminal cases) are handled in other courts.

The petition details the relationship between the parties and the alleged behavior that justifies the order of protection. Here's an outline of the steps:

1. Filing the Petition: The individual seeking protection, known as the petitioner, files a Form 8-2 (Family Offense Petition) in Queens Family Court. The petition must clearly describe the relationship between the parties and the incidents that led to the request for an order of protection. The petition will typically include dates, descriptions of the incidents, and any police reports or medical records that support the claim.
2. Temporary Order of Protection: After the petition is filed, the judge may issue a temporary order of protection if there is evidence of immediate harm or danger. This temporary order remains in effect until a full court hearing takes place.
3. Service of Process: The respondent (the person against whom the order is sought) must be formally served with a copy of the petition and the temporary order of protection. Service must be done following the rules outlined in the New York Civil Practice Law and Rules (CPLR). Proper service ensures that the respondent is notified of the hearing and has the opportunity to appear in court.
4. Court Hearing: A court hearing is scheduled, and both parties have the opportunity to present their case. The petitioner may bring witnesses, documents, and other evidence to support the request for a final order of protection. The respondent can also present their defense and refute the allegations.
5. Issuance of Final Order: After reviewing the evidence and testimony, the judge may issue a final order of protection. This order will detail the specific terms and conditions that the respondent must follow, such as staying away from the petitioner, avoiding contact, or moving out of a shared residence. Note that a final order can be appealed.For example, in Muhammadu v. Barcia, 100 A.D.3d 904 (N.Y. App. Div. 2012), the Appellate Division reversed the Queens Family Court’s decision to deny the appellant’s motion to vacate a final order of protection issued upon his default. The appellant had missed the scheduled hearing due to a misunderstanding of the date, believing it to be October 7, not October 5, 2011. The court found his explanation reasonable and determined that his absence was not willful. Additionally, the appellant denied the allegations that the plaintiff had made in her petition seeking the order of protection, stating that they were fabricated. The appellate court held that the Queens Family Court improperly exercised its discretion and remitted the case for further proceedings.

Once an order of protection is issued, it is enforceable by law. The respondent must follow the terms and conditions outlined in the order. Violating an order of protection can result in serious legal consequences, including arrest, criminal charges, and contempt of court.

If a respondent violates the order, the petitioner can report the violation to the police or file a violation petition in Family Court. In such cases, the court may impose additional penalties on the respondent, which may include:

• Arrest and criminal charges under New York Penal Law § 215.50 (criminal contempt in the second degree)
• Fines or other sanctions
• Extension of the order of protection for additional time

In some cases, either party may seek to modify or extend the terms of an order of protection. To request a modification, the petitioner or respondent must file a petition with the Family Court and present evidence showing why the modification is necessary.

For example, if the petitioner believes that the threat of harm has subsided, they may request that certain restrictions in the order be lifted. Alternatively, if the petitioner feels that the threat has increased or continues, they may request an extension of the order beyond the original expiration date.

According to FCA § 842, an order of protection can be extended for “good cause.” While the statute does not define “good cause” the courts have interpreted it to mean that they review the following factors to determine if there is a sound basis to take judicial action:

• The nature of the relationship, including its history and current state
• The events that led to the original order of protection
• The level of contact between the parties since the order was issued
• Any new instances of domestic violence or violations of the existing order
• Whether current circumstances justify ongoing concern for the petitioner's safety and well-being

In Molloy v. Molloy, 137 A.D.3d 47 (N.Y. App. Div. 2016), the petitioner argued that there was “good cause” to extend a two-year order of protection. She presented evidence that the defendant had violated the order of protection multiple times by coming to residence and banging on the door. He also had driven his vehicle close to her.The petitioner had reported the incidents to the police and there was a criminal case pending against the defendant for violating the order of protection. Ultimately, the court granted the petition and extended the order of protection to 2018.

Navigating the process of obtaining an order of protection can be legally complex and emotionally difficult. An experienced order of protection attorney serving Queens at Stephen Bilkis & Associates can assist you in preparing the necessary documents, filing petitions, and representing you in court. Experienced legal representation is even more important if the respondent challenges the petition or if the case involves complicated issues such as child custody or divorce. Contact us at 800.696.9529 to schedule a free, no-obligation consultation regarding your case.