After Being Served With A Family Court Order Of Protection What Are The Options

If you have been served with a Temporary Order Of Protection from the Family Court (civil proceeding) vs District Court (criminal proceeding) there are four basic options that I advise clients are their choices based upon the allegations, the need to or not to litigate, the likelihood of success and the overall strategy.

It is important to know that each case is different as the relationship between the two persons may be ongoing or it may have terminated. There may be a child in common or none in which case the two people really do not need to interact in the future. If the two persons are married there may also be a pending or future divorce case commenced.

The basic options are the following:

1. See if the Petitioner (the one who filed) is willing to withdraw, push the reset button and go forward without an Order of Protection. If so the two persons go to court and then the order is vacated without prejudice. This means that should there be another problem in the future the prior allegations can be restated.

2. The Respondent (the one who is alleged to have committed a "family offense") can state that the allegations are untrue, never happened or that even if true do not constitute a "family offense" in that the alleged act is not a listed family offense. One time I had someone claim that a hot dog bun was thrown at them. Another time there were nasty words said but no threat. Both cases were dismissed. If the court does not dismiss the petition initially then the Respondent is entitled to have a trial and a determination based upon the testimony and evidence. The judge/referee will then decide the final result and if a family offense occurred whether to issue a "stay away" or "refrain" from Order of Protection.

3. Although the initial petition is against the Respondent, it is also possible that the Petitioner has committed a family offense against the Respondent. Therefore, the Respondent needs to file a petition alleging what happened and seek an Order of Protection. If the allegations are family offenses it is possible that both parties may have temporary or eventually final orders of protection against each other. Often the filing and granting of a second temporary order of protection will create an environment for settlement since both parties are accused of improper conduct.

4. Finally, if the allegations are significant and it appears likely that they can be proven (perhaps there is a witness, photos, written proof, recording, medical treatment, police involvement) then rather than risk losing at trial the Respondent can consent to the final order of protection (usually for one year) without admitting or denying the truth or falsehood of the allegations.  The advantage to the Petitioner is that the order is granted without a trial and without further expense and without any risk of not succeeding.  The advantage to the Respondent is that the court di did not make a determination of a family offense which in the case of domestic violence could affect custody and parenting schedules.

These decisions should be made with the counsel of an experienced matrimonial attorney so that the best choices are made and so that any negotiations are more likely to be successful.