New York Divorce Law Blog : New York Divorce Lawyer & Attorney : Law Offices of David A. Gabay, PC : Serving New York City, Long Island, Suffolk County, Nassau County

The Suffolk County Family Court has recently decided to open its clerk’s office earlier for the filing of a petition for an Order of Protection and simplified the procedure for filing petitions seeking Orders of Protection. As of November 9, 2009, the clerk’s office will open at 8:00 a.m. (the old opening time was 9:00 a.m.), and a party may see a judge as soon as the petition is processed, which can be before 9:00 a.m.

This change should make it easier and quicker for a party to file for an Order of Protection and will allow the Court to handle more requests in an efficient manner.

Previously, a petition for an Order of Protection had to be processed through either the clerk’s office or the Suffolk County Probation Department and could not be filed before 9:00 a.m., and no judge was available prior to 9:00 a.m.

For more information on New York Orders of Protection, please visit my website at www.GabayLawFirm.com

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In my practice, I often represent men who whose wives or girlfriends have orders of protection against them or are seeking to obtain one in Court. One of the more interesting aspects of this area of practice is explaining to my clients how orders or protection are used or abused, and how they are enforced.

I typically tell my clients that when it comes to orders of protection the police have a mandatory arrest policy: if the person who has an order of protection call the police and tells them you violated the order, the police will arrest you first and ask questions later. It’s that simple. There is no discussion, no debate, and no appeal. This policy was created and authorized by elected officials and whether you, the defendant, are guilty or innocent is at the very bottom of their list of concerns. When you get back to Court, you will be charged with either a class A misdemeanor or a class E felony, depending on how the prosecutor decides to charge the case.

Now, I have a new way of making my point to my clients. I came across this story today. A man and his ex-wife decided to remarry, but it turns out she had an order of protection against him from a prior dispute and it was never vacated. At the wedding, the groom got into an argument with a guest, and the police were called. When the police arrived, they discovered that the bride had an order of protection against the groom, and he was arrested and charged with criminal contempt for violating the order. He was charged with felony contempt has held without bail.

This unfortunate incident just goes to show how strictly police enforce orders of protection and how careful clients need to be when faced with a petition for an order of protection or an actual order.

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On July 22, 2008, New York State Governor David A. Patterson signed into law a bill permitting the Family Court to issue orders of protection to persons in ‘intimate relationships.’

Prior to the new legislation, the Family Court had jurisdiction to grant orders of protection only to victims of domestic violence and other family offenses who were:

1.         Married to or divorced from the alleged perpetrator.

2.         Related to the alleged perpetrator by blood or marriage.

3.         Had a child in common with the alleged perpetrator.

Under the new law, the Family Court may now issue an order of protection in favor of a person who is in an ‘intimate relationship.’ The law defines an ‘intimate relationship’ as:

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”

The new law is intended to encompass dating relationships and couples who live together. Both heterosexual and homosexual relationships are included in the law.  

This increased access to the Family Court for victims of domestic violence brings New York law into line with that of the other 49 states, all of which currently have similar provisions for orders of protection.

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A New York judge recently ruled that using MySpace to contact a person covered by a Family Court order of protection is a violation of the order. In People v. Fernino, Judge Matthew A. Sclarrino, Jr., of the Richmond Criminal Court denied a defense motion to dismiss an accusatory instrument, finding that:

In this case, the defendant used MySpace as a conduit for communication prohibited by the temporary order of protection issued  by the Family Court.

The interesting aspect of the decision is that the Court noted that the contact was by means of a ‘friend request’ which the defendant sent to the victim.   The Court observed that even though the victim had the option to refuse the ‘friend request’ and not have any contact with the defendant , the mere fact that the request was sent at all constitutes a violation of the ‘no contact’ provisions of the order of protection. Unfortunately, the Court’s opinion did not reveal whether the victim accepted or rejected the ‘friend request.’

This decision is yet another example of the way in which family law practice is being affected and shaped by the internet.

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