What happens after you file

A family offense case in Family Court follows the same basic path every time, although many cases end well before the last step. Knowing the path in advance is one of the most useful things you can do for yourself.

Before you go

The case, in order

1. 1

   File the petition

   You file a family offense petition, Form 8-2. You are the petitioner and the other person is the respondent. There is no fee. In Erie County you walk in to Erie County Family Court, One Niagara Plaza, Buffalo, and go to the Petition Processing Unit on the 4th floor. No appointment is needed. Clerks see people weekdays from 9 to 5, and the court asks that you arrive by 3 p.m. to be seen the same day. You can bring a completed petition or fill one in with court staff.

   The court also accepts petitions electronically through EDDS, its online document delivery system. Our advice is to walk in instead: court staff can help you with the petition, and you can see a judge or referee the same day.

   Write down as much detail as you can about each incident: what happened, when, and where. The court gives you a written notice of your rights, Form 8-1. Eligible clients can also start through the Family Justice Center, where a virtual emergency hearing with Family Court is available.

2. 2

   See a judge the same day

   You wait to see a judge or referee and explain what happened. The respondent is not there. The judge decides whether to issue a temporary order of protection and gives you a return date. If an order is granted, you leave with the summons, the petition and the temporary order.

   A temporary order lasts until the next court date, and the judge can extend it at each date until the case ends.

3. 3

   Get the papers served

   The temporary order is not in effect until it is handed to the respondent. You may never serve the papers yourself. A friend over 18, a process server, the sheriff or the police can do it. Whoever serves must fill out proof of service, and you bring it to court. Without it, the case can be postponed or dismissed.

   If the respondent cannot be found, still come back on your return date. The judge can give more time, allow another way of serving them, or in some cases issue a warrant.

4. 4

   Come back on the return date

   One of four things usually happens.

   You do not comeThe temporary order ends and the case is dismissed. If you cannot make it, call the court before the date.

   They were served and do not comeThe judge can hear from you and issue a final order of protection without them.

   They agree to an orderThe judge issues a final order. Agreeing is not an admission, but the order protects you the same way.

   They do not agreeThe case is set for a hearing, and the temporary order is usually extended until then.
5. 5

   The hearing

   If the respondent contests, there is a hearing, which works like a short trial. Both of you testify and can present evidence and witnesses. Bring the photos, messages and witness names you gathered. The judge decides using the civil standard, which means more likely than not. That is a lower bar than in a criminal case.

   The respondent has the right to be heard and to an assigned lawyer if they cannot afford one. So do you.

6. 6

   The final order

   A final Family Court order of protection can last up to two years. It can last up to five years if the judge finds on the record that there were aggravating circumstances, such as physical injury, use of a weapon or dangerous instrument, repeated violations of earlier orders, or prior convictions for crimes against you, or that the conduct violated an order that already existed. The court can also extend an order for good cause.

   The order can include restitution of up to $10,000 for losses caused by the abuse. Ongoing child support is decided in its own support case, so ask about filing one at the same time if you need it.

While the case is open

Either side can ask the judge to change the terms of the order. People do this for things like visitation, contact needed to sell a house or run a shared business, or adding another protected person. You can also withdraw your petition. In Family Court it is your case.

Family Court records are private, although courtrooms are generally open.

After you have a final order

Keep a copy of the order with you, and think about who else should have one: your children's school, your workplace, a neighbor who looks out for you.

If the order is broken

If you are in danger, call 911. Breaking an order of protection is the crime of criminal contempt, and no injury is required. Under current New York law, police must arrest when there is reasonable cause to believe a served or known order was violated by breaking a stay-away condition or by committing a family offense. The most serious forms of criminal contempt are felonies; aggravated criminal contempt carries up to seven years in prison.

For a Family Court order you can also file a violation petition in Family Court. That usually does not lead to an arrest by itself. You can go to the police, to Family Court, or to both. Write down the date, time and what happened each time, and keep any messages.