Domestic Violence is defined as use of economic control, use of emotional and/or psychological control, threats and physical/sexual violence.

The first step in the legal process of Domestic Violence cases may be police interaction. When police officers respond to a call of domestic violence situation (regardless of who makes the call) they are required by police department policy to make an arrest.  This policy came into existence after several domestic violence incidents ended up in one of the parties being murdered or seriously injured when the police failed to make an arrest. See Domestic Violence - Criminal

As a result of the arrest, the aggressor (the party inflicting the violence) is usually charged with a misdemeanor or felony, depending on the extent of injuries or harm caused. There will be an Order of Protections issued, either prohibiting that person from assaulting, harassing or annoying the other party (which is referred to as a "usual terms" or "no harass") or prohibiting that person from going near that person's home, place of employment or school (which is referred to as a "stay away"). The extent of the restrictions or conditions in the Order of Protection depend on the allegations made in the complaint.

The next step in the legal process, whether there was an arrest or not, may be going to court. Either at the same time a criminal case is started or anytime thereafter, an individual may seek an Order of Protection ("Family Offense Proceeding") in Family Court, where the parties must be married, related by blood, related by marriage or have a child in common. If the parties are married and a Contested Divorce is pending, the individual must go to Supreme Court for an Order of Protection, unless there is an emergency situation that would make doing so harmful. If there is a child custody, child visitation or child support case already pending in either Family Court or Supreme Court, all of these matters may be transferred to the recently established Integrated Domestic Violence Part ("IDV") in the Supreme or Criminal Court of the county.

The Family/Supreme Court (or IDV Part) judge may include temporary child custody, child visitation, child support and may order that the aggressor spouse pay the carrying charges for the home where there is a "stay away" Order of Protection, even if there are no petitions for any such relief. The court may also order drug and alcohol counseling.

Criminal Court Order of Protection vs. Family Court Order of Protection:

There are instances where there will be an Order of Protection issued from Criminal Court and Family Court/ Supreme Court at the same time. There can be a "usual terms" or "limited" Order of Protection, which prevents harassment, annoyance or harming the non-abuser party issued; a "stay away" Order of Protection, which prevents the abuser from being in a specific vicinity of the non-abuser (including at their job or school) or a conditional Order of Protection, where the abuser is prevented from either under certain conditions, i.e. when he/she is intoxicated. If the aggressor is arrested as a result of the domestic violence and the victim went to Family Court (or Supreme Court) for an Order of Protection, there may be two separate Orders of Protection. The main difference in the two usually only exists when there is a Final Order of Protection. The duration of the Criminal Court Order of Protection is two years, while a Family Court Order of Protection is usually two years, but may be extended to up to five years if there are "aggravating circumstances". A Supreme Court Order of Protection may be extended for up to ten years or until the youngest child of the parties reaches the age of 18 years, whichever is longest in extraordinary circumstances.

While the case is still pending, the court issues a Temporary Order of Protection ("TOP") which must be renewed at each court appearance. When the particular case is resolved, that court will issue a Final Order of Protection ("FOP").

Violation of an Order of Protection:

A violation petition may be filed in Family Court if any of the terms of the Order of Protection have not been adhered to. If the judge finds that the Order of Protection was violated, he/she may order the violator to go to counseling or treatment; may impose probation or may refer the matter to Criminal Court for incarceration. Violating either a Final Order of Protection ("FOP") or Temporary Order of Protection ("TOP") is now a felony offense in a few situations and a misdemeanor in most, as criminal contempt.  The victim may call the police, which must result in an arrest or may go to court and/or file a Violation of the Order of Protection.

Domestic Violence is very serious and therefore a factor that is given considerable weight in Contested Divorce, child custody, child visitation and even in name change cases. 

Contact our office to discuss your domestic violence case or to discuss available resources for domestic violence victims.