If an protection has been filed against you in a domestic violence criminal case you could be facing some significant consequences in your life. Depending on the terms, it can keep you away from your home, family, and property. It can mean that you cannot own a firearm and it could show up in a background check.

There’s a lot to understand about orders of protection, especially when you are on the receiving end. A violation, even unintentional, can come with serious consequences, including jail time and a felony conviction.

Domestic violence is rampant in our society and the public is outraged, forcing lawmakers to enact stiffer penalties. What has also happened is that the scope expanded. Where domestic violence was once a crime that involved a man abusing a woman, it may now involve same-sex couples, parent and child with either being the aggressor, roommates, or even former romantic partners or spouses. 

As a result, certain standards have changed regarding the process. It is now easier for a victim of domestic violence to get an order of protection, especially if the crime involved was rape or assault. This leaves many people who, in the heat of the moment committed a regrettable act, with a criminal charge and an order of protection against them.

Overview of Orders of Protection in Domestic Violence Criminal Cases

An order of protection, sometimes called a restraining order, is a document that is issued by the court and signed by a judge ordering a person to refrain from having any type of contact with a protected person or people. 

There are two ways a person can get an order of protection against someone.

  • Family Court – Domestic Violence Case – A person can petition a family court judge to issue an order of protection against someone they feel they need protection from. In the petition, they must provide several incidents of specific crimes and offenses that they are accusing the named person of committing. This can include harassment, assault, menacing, and other crimes.
  • Criminal Court – Domestic Violence Criminal Case – If there is a crime connected to the domestic violence case, an order of protection may be issued to protect the victim. For this to occur, the person must be formally arrested based on probable cause. The District Attorney’s office or another prosecutor’s office must then formally charge the person with the crime. They then must appear before a judge who will determine whether an order of protection is appropriate according to the circumstances surrounding that particular case.

In New York, there are two types of orders of protection, temporary and final. A temporary order of protection is usually issued during the pendency of the case in criminal or family court and may be issued and re-issued for the entirety of the case. Typically, it lasts until the next court date and is then re-issued until the case is over.

A final order of protection lasts much longer and is often issued at the culmination of the case. The term can be any period of time with a maximum length of ten years.

Restrictions and Requirements for Orders of Protection

Depending on the terms of the order of protection, there is any number of restrictions and requirements that you could be bound to:

  • Stop abusing partner and/or children
  • Have no contact with the partner, including mail, email, text, letters, social media, in-person, phone, or through other people
  • Leave your home
  • Leave your family
  • Stay away from your children, their school, daycare, babysitter
  • Leave your workplace

The judge can also set other requirements to accompany the order of protection:

  • Modify custody and visitation, including revoking custody, revising visitation to supervised, or suspending visitation
  • Modifications to child support
  • Require the offender to pay for medical care, property damage, and other expenses related to the abuse or incident
  • Require the offender to relinquish their firearms
  • Make determinations on the division of specific types of personal property such as sole use of the family home or vehicle for the protected person
  • Require the offender to undergo anger management or get counseling
  • Require the offender to get substance abuse treatment
  • Require the offender to get regular drug tests
  • Require the defendant to complete a program for domestic violence offenders

In the state of New York, it is also illegal for a person who has an active order of protection against them to own or possess a firearm. It is also illegal to own a firearm if you have been convicted of a felony domestic violence crime.

Orders of Protection and Your Public Record 

One of the most common questions regarding orders of protection is, “Does an order of protection show up on your record?” The quick answer is that it depends. In the State of New York, it will not show up on your record if it is issued in Family Court. 

However, if the order of protection is issued in connection with a domestic violence criminal case then that becomes a public record. So if a prospective employer or landlord runs a background check on you, they won’t see it. But if you committed a crime, say you have felony domestic violence charges and the victim got an order of protection against you, then it will likely come up.

It is worth noting that some types of background checks do not reveal orders of protection or charges against you. But a criminal background check does.

Federal Law Regarding Violating Orders of Protection

While most orders of protection are issued and managed in state court, some fall under federal jurisdiction.

18 U.S. Code § 2262 – Interstate violation of protection order

(a) Offenses.—

(1) Travel or conduct of offender. — A person who travels in interstate or foreign commerce, or enters or leaves Indian country or is present within the special maritime and territorial jurisdiction of the United States, with the intent to engage in conduct that violates the portion of a protection order that prohibits or provides protection against violence, threats, or harassment against, contact or communication with, or physical proximity to, another person or the pet, service animal, emotional support animal, or horse of that person, or that would violate such a portion of a protection order in the jurisdiction in which the order was issued, and subsequently engages in such conduct, shall be punished as provided in subsection (b).

(2) Causing travel of victim. — A person who causes another person to travel in interstate or foreign commerce or to enter or leave Indian country by force, coercion, duress, or fraud, and in the course of, as a result of, or to facilitate such conduct or travel engages in conduct that violates the portion of a protection order that prohibits or provides protection against violence, threats, or harassment against, contact or communication with, or physical proximity to, another person or the pet, service animal, emotional support animal, or horse of that person, or that would violate such a portion of a protection order in the jurisdiction in which the order was issued, shall be punished as provided in subsection (b).

New York Law Regarding Orders of Protection

The domestic violence laws in New York allow for a victim of domestic abuse to file an order of protection against their alleged abuser. These laws establish certain provisions and requirements for orders of protection:

  • Who can petition the court for an order of protection
  • What relief or protection that person can or may receive with the order
  • How the order of protection will be enforced

This applies to a family court order of protection as well as one issued in criminal court. Both carry a great deal of power. Violation of a family court order of protection can result in arrest with a charge of criminal contempt which can be a misdemeanor or a felony, depending on the circumstances. This can mean jail or even state prison for up to seven years.

The criminal court and family court are separate courts. One judge cannot vacate or modify an order of protection issued by another judge. 

Several laws deal directly with violating a protective order:

If a crime was committed in addition to the crime of violating the protective order, then additional charges may be added.

Full Faith and Credit Given to Protection Orders

If an order of protection is ordered by a state, tribal, or territorial court, it is valid and enforceable in other states where the protected person may travel or live. This is provided under federal law 18 U.S. Code § 2265 – Full faith and credit given to protection orders.

It essentially makes the order of protection universal so that it is valid across state lines. This is important to know. Just because a protected person moves to another state or travels to another state, it does not mean that the order of protection doesn’t follow them. It is always valid and can be enforced anywhere in the US.

How to Vacate an Order of Protection

An order of protection can be vacated or modified, but the person named in the order, the “enjoined party,” has a much more significant burden of proof that they must show than the protected person who requested the order.

If the enjoined party wishes to modify or vacate an order that is issued through criminal court, they must file a post-conviction motion and appear before a judge to present their arguments, giving reasons why they believe the order is unfair or no longer serves its purpose.

There are three possible avenues:

  • File a Motion to Dissolve the order of protection
  • File a Motion to Modify the order of protection
  • File an appeal

There are several factors that the judge will take into consideration when making his or her decision on vacating the order:

  • The validity of the enjoined party’s argument
  • The length of time the order has been in place
  • If the enjoined party has had any criminal charges or convictions during the term of the order
  • If the enjoined party has changed their circumstances that would show they are no longer a threat to the protected party

Even if you believe that the order of protection is not valid, you are still required by law to abide by its terms. You also cannot make an agreement with the protected person to modify or vacate the order. Only a judge can do that.

Penalties for Violating an Order of Protection

The penalties for violating an order of protection can be severe at both the federal and state levels. 

18 U.S. Code § 2262 – Interstate violation of protection order

(b) Penalties.—A person who violates this section shall be fined under this title, imprisoned—

(1) for life or any term of years, if death of the victim results;

(2) for not more than 20 years if permanent disfigurement or life threatening bodily injury to the victim results;

(3) for not more than 10 years, if serious bodily injury to the victim results or if the offender uses a dangerous weapon during the offense;

(4) as provided for the applicable conduct under chapter 109A if the offense would constitute an offense under chapter 109A (without regard to whether the offense was committed in the special maritime and territorial jurisdiction of the United States or in a Federal prison); and

(5) for not more than 5 years, in any other case, including any case in which the offense is committed against a pet, service animal, emotional support animal, or horse, or both fined and imprisoned.

New York law has similar penalties

  • New York Penal Law – Article 215.50 – Criminal contempt in the second degree
    • Class A Misdemeanor
      • Maximum 364 days in jail
      • $1,000 fine
  • New York Penal Law – Article 215.51 – Criminal contempt in the first degree
    • Class E Felony
      • No jail, probation (non-violent)
      • Maximum 4 years jail (violent)
  • New York Penal Law – Article 215.52 – Aggravated criminal contempt
    • Class D Felony
      • No jail, probation (non-violent)
      • Maximum 7 years in prison (violent)

If another crime was committed when the defendant violated the order of protection, then those charges will be added as well.

Defenses for Order of Protection Violation

Some of the most common defenses include:

  • The protected person filed a false complaint against the defendant
  • The protected person called or contacted the defendant
  • The addresses were listed as “confidential” and the defendant was not aware that he or she was at an address covered by the order of protection
  • The protected person approached the defendant
  • The defendant was not notified of the order of protection and therefore did not know of any restrictions therein
  • The defendant went to a public place and the protected party showed up there

If you have an order of protection against you, you believe it is unwarranted, or if you have been charged with domestic violence or with violating an order of protection, you need the experience and knowledge of a criminal defense attorney. You need The Litvak Law Firm. Mr. Litvak has the knowledge, skills, and experience you need and deserve.  

Protecting your rights is not just your priority, it is your legal right and our number one mission. Contact our office today at (718) 989-2908 for your free consultation.