New York Restraining Orders: How Do They Work?

Restraining orders are called orders of protection in New York State. Two types of courts issue them – family courts and criminal courts. But, how do they work, how do they differ and what happens when they're violated? Our New York legal expert explains.

New York Criminal Lawyer Elliot Schlissel

Elliot Schlissel, a Long Island criminal law lawyer whose firm represents individuals charged with criminal matters in Suffolk and Nassau counties and in the greater New York metropolitan area, explained the how New York orders of protection work, how they differ and what happens when they're violated:

Differences in orders of protection

  • Family Court: Orders of protection are issued in family courts when one person goes to court and claims that a family member, (brother, sister, aunt, uncle, parent, grandparent, etc.) girlfriend or boyfriend is either threatening them or physically abusing them. Most people refer to this as domestic violence.

    When the alleged victim appears in Family Court, he or she will usually get an order of protection right away. The legal term is called an ex parte order of protection, ex parte meaning in Latin, “without a hearing and without the other side present.” The other side is then served with the notice of the order of protection and given a court date when they can tell their side of the story.

    Unfortunately, the system is fraught with long delays – both in the five boroughs of the City of New York and on Long Island. Sometimes an order of protection is given to someone and then their next court date is two or three weeks later. When they show up on that court date, they find out it’s not going to be a hearing; it’s just going to be a conference and the hearing could be put off for months.

    Orders of protection ordered by the Family Court fall into two categories. The first is a stay-away order where you’re tossed out of the house completely and can’t come back. The other is called a “do not harass,” which allows you back in the residence to live but prevents you from taking any inappropriate action, whether verbally or physically, with regard to the other person.

  • Criminal Court: Orders of protection are issued in criminal courts to individuals who are allegedly the victims of criminal activity – usually cases involving assault by one individual against another individual. The person charged with the crime is the subject of an order of protection and has to avoid all contact and communication, either directly or indirectly, with the person they allegedly assaulted – or threatened to assault.

Violating NY Orders of Protection

Schlissel says that violation of a New York order of protection subjects the individual to further arrest and more severe prosecution. He also told us that these are handled a bit differently depending upon which county you live:

Nassau County has the first female district attorney in it’s history. Her name is Kathleen Rice and she vigorously prosecutes individuals charged with both domestic violence matters and driving while intoxicated (DWI) matters. Suffolk County, which is the other county on Long Island, prosecutes these matters aggressively, but not quite as aggressively as in Nassau County. The City of New York and the boroughs of Brooklyn and Queens, have their own prosecutorial standards concerning these matters.