Served With a Temporary Order of Protection in Erie County: What to Do
Reviewed for legal accuracy by Pieter G. Weinrieb, Esq. · Admitted NY 2005
Being served does not mean anything has been decided. What you do in the days before your return date, though, can decide a great deal.
The First 72 Hours
A temporary order of protection is an order of the court from the moment it is served on you. It is not a suggestion, an accusation to be argued about at home, or something that pauses while you work out what happened. Treat it as binding immediately, and do these things in order.
- Stop all contact. All of it. No calls, texts, emails, social media messages, comments, likes, or tagging. No contact through friends, relatives, or coworkers. Third-party contact is still contact.
- Read the order clause by clause. The terms vary considerably from one order to another. Some allow contact about the children; many do not. Do not rely on what anyone told you it says.
- Do not go to the residence, even for your belongings. If the order excludes you from a home you pay for or own, that is still the order. Retrieval of property is arranged through the court or through counsel, often with a police escort.
- Write down your own account while it is fresh. Dates, times, who was present, what was said. Preserve texts and call logs rather than deleting them.
- If you hold a pistol permit or own firearms, address it now. See orders of protection, firearms and pistol permits.
- Get counsel before the return date, not on the courthouse steps.
What the Order Actually Restrains
Family Court orders of protection generally come in two shapes, and many orders combine them.
A stay-away order directs you to stay away from a person and usually from specified places: a home, a workplace, a school. These are the terms most likely to be violated accidentally, because they attach to geography rather than to intent.
A refrain-from order lets the parties remain in contact but prohibits particular conduct: assault, harassment, menacing, intimidation, threats. A refrain-from order is not permission to behave as before. It is a narrower restriction with the same force.
An order may also exclude you from a shared residence, set terms for contact about children, or direct that you surrender firearms. Read every line. If a term is ambiguous as applied to your life, that is a question for your attorney before the return date, not an interpretation for you to make on your own.
The Order Stays in Force Until a Court Vacates It
This is the point that creates the most violations, so it belongs early rather than late.
An order of protection must be obeyed unless and until it is vacated by a court. That holds even where the basis for the order is later undermined, and the Appellate Division has said so in People v Brown. A criminal charge being dropped does not lift a Family Court order. The petitioner changing her mind does not lift it. A verbal agreement between the two of you does not lift it.
The corollary matters just as much. If the protected person contacts you, that does not suspend the order and it is not a defense. The order restrains you, not her. Family Court Act 846 makes this explicit from the other direction: a protected person cannot be held to have violated an order issued in that person’s favor, and cannot be arrested for violating it. If she calls, you do not answer. If she appears, you leave and document it.
A violation is not a small matter. It can be prosecuted as criminal contempt in the second degree under Penal Law 215.50(3), and in aggravated cases as criminal contempt in the first degree under Penal Law 215.51, which is a class E felony. It can also be pursued in Family Court as a willful violation. Violation proceedings are covered here.
The Return Date at 1 Niagara Plaza
Erie County Family Court sits at 1 Niagara Plaza in Buffalo. The date on your papers is the return date on a family offense petition brought under Article 8 of the Family Court Act.
Expect it to be short. The first appearance is generally not a trial. The court will confirm you were served, ask whether you have or want a lawyer, decide whether the temporary order continues, and set the next date. If you cannot afford counsel, tell the court, because assigned counsel is available in these proceedings and asking is how you get it.
You are not obliged to explain yourself at the first appearance, and doing so unprepared rarely helps. Anything you say is on the record and can be used in a related criminal case, a custody case, or a divorce. Arrive early, dress for court, bring the order and every document you were served with, and do not speak to the petitioner in the hallway or anywhere in the building.
Cases are frequently adjourned. A temporary order continued across several adjournments can stay in place for months before any hearing happens. That is normal, and it is one of the reasons the terms of the temporary order are worth contesting early.
Consenting Without Admitting
Many family offense cases resolve by consent rather than by hearing, with the respondent agreeing to a final order of protection without admitting to any of the allegations.
The attraction is obvious. There is no hearing, no testimony, no finding that a family offense occurred, and the matter ends. For some people that is the right resolution, particularly where the relationship is over, contact is not wanted anyway, and the cost and exposure of a hearing outweigh the benefit of fighting.
It is not free, though, and the costs are the part that gets undersold. A consent order is still an order of protection. Violating it carries the same consequences. It may still carry firearm terms. It appears in the statewide registry of orders of protection. It can affect a pending custody case, and it can matter to employers and licensing bodies that ask. The terms themselves, in particular the duration and whether the order is stay-away or refrain-from, are negotiable and worth negotiating.
Whether consent is right in your case depends on what the order will say, what else is pending, and what you stand to lose either way. It is a decision to make with counsel after reading the proposed order, not a box to tick to get the day over with.
Cross Petitions and Dual Orders
Where both people allege a family offense, each can file. Family Court can and does issue orders of protection in both directions, and that outcome is more common than most respondents expect.
Filing a cross petition is a real option and it is not merely tactical. In a relationship where conduct ran both ways, a respondent may have a genuine claim. It also changes the shape of the negotiation over what a final resolution looks like.
It also complicates life considerably. Two orders means two sets of terms to comply with, and dual stay-away orders in a household with children require the court to build workable arrangements for exchanges. Raise it with counsel early, because a cross petition filed late reads differently than one filed on the merits at the outset.
What an Order of Protection Can Affect
The order itself restrains conduct. The consequences reach further, and they are worth understanding before the return date rather than after.
Firearms and a pistol permit. Family Court Act 842-a governs suspension and revocation, and the consequence turns on findings the court makes. This is covered in full on our page about orders of protection, firearms and pistol permits.
Custody and parenting time. Where an order of protection and a custody case overlap, the two have to be coordinated, and courts will shape parenting arrangements around the order’s terms. See domestic violence and child custody in New York.
Housing. An exclusion from the residence has immediate practical consequences regardless of whose name is on the lease or deed.
Employment and professional licensing. The effect depends entirely on the profession, the employer, and what is asked. Some licensed professions and some employers ask about court orders or about criminal charges arising from a violation. We describe the mechanism here; what it means for your particular job is a question for counsel with your facts in front of them.
Immigration status. For someone who is not a United States citizen, an order of protection, and above all a criminal contempt charge arising from a violation, can have consequences that far exceed the family matter. If this applies to you, say so to your attorney at the first meeting so that immigration counsel can be involved.
What a Defense Looks Like
A family offense proceeding in Family Court is decided on a preponderance of the evidence, which is a lower standard than a criminal case. The petitioner must establish that a family offense enumerated in the Family Court Act was committed and that the relationship between the parties falls within Article 8.
Defending one is ordinary litigation work rather than anything dramatic. It means testing whether the alleged conduct meets the definition of an enumerated offense at all, building an accurate timeline from documents rather than recollection, identifying witnesses, and addressing the terms of any order the court is considering, including its duration and its firearm provisions.
Two cautions. First, most of these cases involve people who have to keep dealing with each other afterwards, usually as parents, and a scorched-earth defense often costs more in the custody case than it wins in the family offense case. Second, nothing here is a prediction. What a defense achieves depends on the facts and the record.
Weinrieb Law represents clients on both sides of family offense proceedings in Erie and Niagara Counties, and we do not treat a respondent as presumptively in the wrong. If you have been served, contact us before your return date.
This page is general information about New York law, not legal advice, and reading it does not create an attorney-client relationship. Follow the terms of any order issued in your case.
Frequently Asked Questions
What should I do first after being served with a temporary order of protection?
Stop all contact with the protected person immediately, including through friends, relatives and social media, then read the order clause by clause so you know exactly what it restrains. Do not go to the residence, even for belongings. Write down your own account of events while it is fresh and preserve texts and call logs rather than deleting them. Then get counsel before your return date.
Can I be charged with a violation if the protected person contacted me?
Yes. The order restrains you, not the protected person. Family Court Act 846 provides that a protected person cannot be held to have violated an order issued in that person's favor and cannot be arrested for violating it. If the protected person contacts you, do not respond, and document what happened. Contact initiated by the petitioner is not a defense to a violation.
Does the order end if the criminal case is dropped or the petitioner changes her mind?
No. An order of protection must be obeyed unless and until a court vacates it, and the Appellate Division has held that this holds even where the basis for the order is later undermined. A dismissed criminal charge does not lift a Family Court order, and neither does an informal agreement between the parties. Only the court can modify or vacate it.
What happens at the return date in Erie County Family Court?
The first appearance at 1 Niagara Plaza is generally short and is not a trial. The court confirms service, asks whether you have or want a lawyer, decides whether the temporary order continues, and sets the next date. Assigned counsel is available if you cannot afford an attorney, but you have to tell the court. Cases are frequently adjourned, and a temporary order can remain in place across several adjournments.
Should I consent to an order of protection without admitting anything?
Sometimes, but not reflexively. Consenting avoids a hearing and avoids any finding that a family offense occurred. But a consent order is still an order of protection: violating it carries the same consequences, it may carry firearm terms, it appears in the statewide registry, and it can affect a pending custody case. The duration and the terms are negotiable. Read the proposed order with counsel before agreeing to it.
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