Assisting Clients in Long Island Gain an Order of Protection

Section 812 of the New York State Family Court Act provides that a party can seek an order of protection against someone in both family court and the criminal courts where a person has committed an act against them (or their child) which, under New York State Penal Law, would constitute the crimes of: disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, sexual misconduct, forcible touching, sexual abuse in the third degree, sexual abuse in the second degree, stalking in the first degree, stalking in the second degree, stalking in the third degree, stalking in the fourth degree, criminal mischief, menacing in the second degree, menacing in the third degree, reckless endangerment, criminal obstruction of breathing or blood circulation, strangulation in the second degree, strangulation in the first degree, assault in the second degree, assault in the third degree, an attempted assault, identity theft in the first degree, identity theft in the second degree, identity theft in the third degree, grand larceny in the fourth degree, grand larceny in the third degree or coercion in the second degree between spouses or former spouses, or between parent and child, or between members of the same family or household. In addition, the fact that a person has elected to proceed in family court, the matter can still proceed in criminal court.

Though the family court is designed to accommodate unrepresented people who wish to come into court and attempt to complete a petition form on their own, great care should be given to the crafting of such petitions to avoid their later being dismissed by the court for failure to meet the minimum requirements of statute and case law. At Mangi& Graham, LLP, we have been drafting such petitions on behalf of our clients for more than 30 years and are quite adept at assisting our clients to construct the most successful petitions possible. Often when we are hired after a petition has been drafted by a client without the assistance of an attorney, we are still often permitted by the Court to amend a weak petition in order to prevent dismissal.

Clients should keep in mind that they may not even be aware they have the basis for an order of protection until they actually speak with us. For instance, even if the relevant allegations have not happened recently, the family court is not supposed to deny an order of protection to a person, or dismiss their petition, solely on the basis that the allegations are not relatively contemporaneous with the date of the petition. In addition, certain of the enumerated family offenses pursuant to Article 812(1) of the Family Court Act, which under the Penal Law would require that they be committed in public, offenses are still viable in family court if they were committed in the privacy of your own home.

The client should always understand that a certain relationship is required between two parties in order for a petition for an order of protection to be successful. For purposes of this article, such relationships would include the following:

  • (a) persons related by consanguinity (by blood) or affinity (by marriage);
  • (b) persons legally married to one another;
  • (c) persons formerly married to one another regardless of whether they still reside in the same household;
  • (d) persons who have a child in common regardless of whether such persons have been married or have lived together at any time; and
  • (e) persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time. Factors the court may consider in determining whether a relationship is an “intimate relationship” include but are not limited to: the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an “intimate relationship.”

We welcome the opportunity for clients in Long Island to explore whether an order of protection would be right for you and your family. Contact us to book a free consultation.