Violation of Order of Protection in Westchester County, NY
An Order of Protection in New York State is a judicial order directing a person to refrain from doing certain acts against a protected party. These acts include the following:
- Staying away from a person or within a certain distance of the person
- Staying away from the person’s home, workplace or school
- Communicating with the person by calling, emailing or sending letters
- Communicating with the person through third parties
- Possessing any weapons or licenses for weapons
Importantly, a “stay away” Order of Protection will prohibit the person from living with the protected party. In a domestic violence situation, a person will have to move out of their home if they are subject to an Order of Protection thereby permitting the protected party to stay at the home.
Orders of Protection, also referred to as restraining orders, can be issued in the New York Criminal Courts after an arrest and New York Family Court upon the filing of a family offense or neglect petition. Orders of Protection issued by the Criminal Courts or Family Courts are identical in their form and content but broken down into non-family and family Orders of Protection, respectively.
NY Order of Protection Violation FAQ
Whether you are the victim or the restrained party, it’s important to understand the terms and effects of your NY Order of Protection. Below we answer our clients’ frequently asked questions:
Is an Order of Protection worth the paper it’s written on?
Yes, just like any court order, an Order of Protection is a serious matter. A violation of an Order of Protection can result in a Violation Petition of an Order of Protection in the Family Court or an arrest for criminal contempt of a court order as follows:
- Criminal contempt in the second degree: This Class A misdemeanor applies when you intentionally disobey a court order. If convicted, you could spend up to a year in jail and be forced to pay a $1,000 fine.
- Criminal contempt in the first degree: If you deliberately cause (or attempt to cause) the victim to fear for their safety by contacting them, brandishing a weapon or any other behavior intended to arouse alarm, then you can be charged with a Class E felony, resulting in a four-year prison sentence and a fine of up to $5,000.
- Aggravated criminal contempt: A criminal contempt charge becomes aggravated when you recklessly or intentionally cause physical injury to the victim. It also applies if you are found guilty of criminal contempt in the first degree and have one aggravated contempt charge or two first degree contempt charges (within the past five years) on your record. This Class D felony is punishable by up to seven years in prison and a $5,000 fine.
What are the impacts of an Order of Protection?
Orders of Protection are designed to protect a person in need who is the victim of violence, domestic violence or other offense against their person. This is referred to as having an Order of Protection as a shield.
An individual can use an Order of Protection as a sword against another person by filing a false complaint against them. Filing a false complaint is a crime but an individual may file to use an Order of Protection as a sword to gain leverage in a divorce, custody matter or to exclude a person from a residence.
Can a protected party permit the restrained party to disobey their Order of Protection?
No, the only person who can modify or vacate (remove) and Order of Protection is a judge. In other words, if the protected party changes their mind and decides to see or communicate with the restrained individual, that individual is violating the Order of Protection and can get arrested for criminal contempt. These arrests are generally mandatory.
Is it possible to have Orders of Protection from the Criminal Courts and Family Courts?
Yes, but this can be a complex situation as they are separate courts. Unless specifically stated in the Order of Protection, one judge cannot modify or vacate another judge’s Order of Protection.
Do I need a family lawyer or criminal defense lawyer if I have an Order of Protection against me?
A lawyer who is familiar with both family and criminal law is ideal. Family Court and Criminal Court are two very different areas of law and an attorney who is experienced in both criminal and family law can provide the necessary guidance to protect an accused person’s rights.
Can I travel if I have an Order of Protection against me?
Yes, unless the judge specifically prohibits you to travel in the Order of Protection. You may also travel internationally but may be subject to certain restrictions in the country you are traveling to. You will be questioned by authorities about your Order of Protection upon your return to the United States.
Do I need a lawyer to defend my criminal charge or violation of an Order of Protection?
If you have been charged with a crime or violating an Order of Protection in New York, then it is critical to contact a criminal defense attorney immediately. A felony or misdemeanor charge will have serious consequences on your future, including possible barriers to employment and owning a weapon.
The attorneys at Proto, Sachs & Brown, LLP have over 20 years of experience in the New York Family and Criminal Courts. Andrew Proto and David Sachs are former Westchester County prosecutors turned criminal defense and family law attorneys in Westchester and the surrounding counties of New York.
Our firm has Westchester County Offices conveniently located in downtown White Plains and Peekskill. If you would like to learn more about your legal rights call (914) 840-5104 today to schedule your free consultation.