Order Of Protection: Criminal Court vs. Family Court

People that are related by blood or marriage (even if divorced), have a child together or have been in an intimate relationship are often the ones who seek an Order Of Protection from either the District Court (Criminal Court) or the Family Court (Civil Proceeding) but they often do not know the difference and whether they should file both criminal charges and a civil complaint (Petition). The law permits both filings but not everyone does that. However, in the criminal court an order of protection can also be issued for persons that have no relationship other than the incident.

While the reasons for either filing are quite similar there are many differences between the two proceedings.

A proceeding in the Family Court has to allege and ultimately prove that the Respondent has committed a "family offense". Most of the listed family offenses are based upon different crimes set forth in the NY Penal Law. So the event that caused the harm or fear of harm are quite similar. In a proceeding in the District Court, the District Attorney's office has to prove the criminal offense charged. In the District Court the case is prosecuted and the complainant does not need to hire an attorney or have an attorney appointed as the DA does all of the work. In the Family Court it is generally best to have an attorney represent the Petitioner (the person complaining).

In a criminal case the proof must be beyond a reasonable doubt while in the civil case the proof is a preponderance of the evidence (which is a lot less than beyond a reasonable doubt). In a criminal case the punishment, if convicted, can be a fine or incarceration as well as the issuance of an Order of Protection. In the Family Court, nobody goes to jail (unless it may be for the violation of the Order of Protection.)

In a Family Court case both parties have to appear each time the case is on the court calendar. In a criminal case only the Defendant has to appear for court conferences. In a criminal case the prosecutor as part of a plea bargain will often require that the Defendant attend anger management classes. Often if it is a first offense the resolution will include an Adjournment In Contemplation Of Dismissal ("ACOD") which means that if the Defendant does not get re-arrested during the stated period, the charge will be dismissed in six months to a year essentially due to proper behavior. If the Defendant is re-arrested during the "adjourned period" the charges may be reinstated.

In the Family Court case the Petitioner may have greater control of the terms of settlement as they can actively participate in the settlement discussions. So for example, visitation provisions can be included as to where pick-up and drop off of any children will take place.

There are times where clients will have criminal charges made as well as the civil proceeding as one court might issue only a "refrain from" order of protection while the other court issues a "stay away" order. One case may move faster and the other slower.

Victims of domestic violence should seek legal counsel to advise them of their rights and make recommendations as to the best way to proceed based upon the unique circumstances of each person's case. Retaining an experienced matrimonial attorney is valuable so that the best decisions are timely made.