Temporary Orders of Protection (TOPs) are strong tools to prevent domestic violence. If your spouse or partner obtains a TOP from the Family Court (civil proceeding) as distinguished from the District Court (criminal proceeding) what choices and strategies can be utilized to handle the case?
Orders of Protection whether temporary or permanent must be obeyed to avoid a violation, contempt of court and arrest. They are serious documents to be respected and complied with even if you believe that the order was wrongfully obtained.
I tell clients that are the subject of a TOP that they have several choices:
1. If the other person also committed a "Family Offense" against the client, I recommend that my client promptly also seek a TOP. Often if both parties have TOPs a resolution can be reached where either both parties keep their orders or both parties withdraw their applications.
2. If the client claims that his/her conduct is falsely alleged, they have the right to a trial and for the judge to make a determination if the incident occurred and whether, if true, the incident constitutes a "Family Offense".
3. If the person who sought the TOP believes that the situation has calmed down and no longer feels the need to have the TOP, then the person tells the judge that they would like to withdraw the petition.
4. If it is obvious that if the case were tried the client will be found to have committed a Family Offense, I will recommend that the client neither admit or deny the allegation but consent to the entry of the Order of Protection for a period of one year. By doing so the applicant is protected and the client is not determined by a judge after a hearing to have actually committed the Family Offense. This can be useful where there is a custody dispute because it avoids a finding of domestic violence in a contested case.
If you are the subject of a TOP it is important to get immediate legal advice so that your rights are protected, to prevent future arrest, prevent inadvertent violations and to determine which strategy should be utilized for your case.