Orders of Protection in New York Family Court: A Complete Guide

An order of protection (sometimes called a restraining order) is a court order directing a specific person (the “respondent”) to do or refrain from doing specific things to protect another person (the “petitioner”). In New York Family Court, orders of protection are issued in connection with family offense proceedings under Article 8 of the Family Court Act.

Orders of protection are also issued in criminal court when a person is arrested and charged with a crime against a family or household member. The two systems — Family Court and criminal court — operate independently. You can seek a Family Court order regardless of whether a criminal charge has been filed, and a criminal proceeding can proceed alongside a Family Court case.

Family Court jurisdiction over orders of protection extends to “members of the same family or household,” as defined by FCA §812. Eligible relationships include:

• Spouses and former spouses
• Parents and children
• Persons who have a child in common, regardless of whether they were ever married
• Persons who are or were in an intimate relationship (including same-sex relationships)
• Other persons related by blood or marriage (siblings, in-laws, etc.)

If your relationship with the person you need protection from does not fall within these categories — for example, a neighbor, coworker, or acquaintance — you would need to seek an order of protection through Supreme Court under the Family Court Act’s sister statute or through a harassment proceeding in criminal court.

Family Court can only issue an order of protection in connection with conduct that qualifies as a “family offense” under FCA §812. The list of qualifying offenses includes:

• Disorderly conduct
• Harassment (first and second degree)
• Aggravated harassment
• Stalking (first through fourth degree)
• Menacing (first through third degree)
• Reckless endangerment
• Assault (first through third degree)
• Strangulation (first and second degree)
• Forcible touching and sexual abuse
• Coercion
• Identity theft and unlawful imprisonment related to domestic situations

Emotional abuse, manipulation, and controlling behavior that does not constitute one of these specific offenses may not, by itself, qualify for Family Court jurisdiction — though courts can sometimes be creative in fitting such behavior within the statutory categories.

Stay-Away Orders

A stay-away order directs the respondent to stay away from the petitioner’s residence, place of employment, school, and person. The respondent may be ordered to stay a specified distance away (e.g., 100 yards) from these locations. Stay-away orders are typically issued in cases involving physical violence, threats, or a significant pattern of harassment. They can effectively require the respondent to vacate a shared residence even if the respondent is on the lease or owns the home.

Refrain-From Orders

A refrain-from order allows the respondent to maintain contact with the petitioner but prohibits specific conduct — such as harassment, intimidation, assault, stalking, or threatening behavior. Courts often issue refrain-from orders in cases where the parties have children together and some form of co-parenting communication is necessary, but the underlying conduct has been problematic. A refrain-from order is not a license to harass; it simply means the respondent is not ordered to maintain physical distance.

Temporary Orders of Protection

When you file a family offense petition in Erie County Family Court, the court will typically issue a temporary order of protection (TOP) the same day if you allege conduct qualifying as a family offense. The TOP is issued ex parte — without the respondent present — and remains in effect until the next court date, which is scheduled for the respondent to appear. TOPs are renewed at each adjournment until the case is resolved.

Final Orders of Protection

A final order of protection is issued after a hearing (or by consent of the parties) at which both sides have the opportunity to be heard. Final orders last up to two years in standard cases, and up to five years in aggravated cases. “Aggravated circumstances” include: prior violations of an order of protection, use of a dangerous weapon, physical injury to the petitioner, or conduct involving a child under 18.

To begin, you file a family offense petition at Erie County Family Court, located at 1 Niagara Plaza in Buffalo. The Clerk’s Office can provide the form; you complete it describing the conduct you are reporting and your relationship to the respondent. The petition is reviewed by a judge or referee the same day. If the conduct alleged qualifies as a family offense, a temporary order of protection will be issued and the case will be scheduled for a return date.

The respondent must be served with the petition and the TOP before the return date. Service is handled by the Erie County Sheriff’s Office or a process server — the court can arrange this. On the return date, the respondent appears before the court. The case may be resolved immediately by consent (both parties agree to the terms of a final order) or adjourned for further proceedings.

If the case does not resolve by consent, it proceeds to a fact-finding hearing — essentially a trial — at which the petitioner must prove the alleged family offenses by a preponderance of the evidence. After the fact-finding hearing, the judge issues a decision and, if the petitioner prevails, enters a final order of protection. The judge may also proceed to a dispositional hearing to determine what conditions the order should include.

You do not need an attorney to file a family offense petition. The court has staff available to assist unrepresented petitioners. However, having an attorney significantly improves your ability to present a coherent, legally sound case at the fact-finding hearing and to negotiate favorable terms if the case resolves by consent.

Orders of protection frequently arise in the context of divorce or custody proceedings. An order of protection issued by Family Court can run concurrently with a divorce or custody case in Supreme Court. If you have both a Family Court case and a Supreme Court divorce pending, the cases may be consolidated or coordinated — or they may proceed separately. Your attorney can help you understand how the cases interact.

A final order of protection based on domestic violence is a significant factor in subsequent custody proceedings. Under DRL §240(1)(a) and FCA §651, courts must consider any history of domestic violence when determining custody and parenting time. A documented pattern of family offenses can result in restrictions on the respondent’s parenting time, a requirement for supervised visitation, or the appointment of a forensic evaluator.

Being served with a temporary order of protection does not mean you are guilty of anything. The court issued it based only on the petitioner’s allegations, without hearing your side. You will have the opportunity to appear in court and contest the allegations at the return date and at any subsequent fact-finding hearing.

What you must do immediately: read the order carefully and comply with every term. A stay-away order means exactly that — even if you own the home, even if your children are there, and even if the petitioner calls you and asks you to come over. Violating a temporary order of protection is a crime. If you believe the allegations are false or exaggerated, you must address that through the court process, not by ignoring the order.

Contact an attorney as soon as possible after being served. At the return date, the respondent has the option to consent to a final order, contest the allegations, or request an adjournment. The choice you make at that first court appearance can have lasting consequences for any concurrent divorce or custody proceeding.

Violation of a New York order of protection is a criminal offense. Under Penal Law §215.50 and §215.51:

• Criminal contempt in the second degree (first violation, no physical injury): Class A misdemeanor, up to one year in jail
• Criminal contempt in the first degree (repeat violation, or violation involving physical injury, weapon, or aggravated circumstances): Class E felony, up to four years in prison
• Aggravated criminal contempt (violation with physical injury or involving a weapon when there is a prior contempt conviction): Class D felony, up to seven years in prison

A violation can also result in a contempt of court finding in Family Court, which can carry its own sanctions. Additionally, any violation of an order of protection — whether it results in criminal charges or not — will be front and center in any pending or future custody or divorce proceeding. Courts take these violations extremely seriously.