Violating an Order of Protection in New York Family Court
Reviewed for legal accuracy by Pieter G. Weinrieb, Esq. · Admitted NY 2005
A violation can be pursued in Family Court, in criminal court, or in both at once. The two roads have different proof requirements and different consequences.
Two Roads, and They Can Run at the Same Time
When an order of protection is violated, there are two separate mechanisms, and they are not alternatives in the sense of having to choose one.
The Family Court route is a violation petition under Family Court Act 846, decided under 846-a. It is civil in form, it stays inside the existing Article 8 case, and its remedies run from a new or modified order up to a jail term.
The criminal route is a prosecution for criminal contempt. Violating an order of protection can itself constitute criminal contempt in the second degree under Penal Law 215.50(3), and in aggravated cases criminal contempt in the first degree under Penal Law 215.51, a class E felony.
The Court of Appeals set out the shape of this in Matter of Lisa T. v King E.T., holding that Family Court Act 846 and 846-a “unequivocally grant Family Court jurisdiction and authority to prosecute contempt of its orders, including temporary orders of protection.”
The practical holding matters more than the jurisdictional one. Once Family Court has jurisdiction through a facially sufficient family offense petition, a violation of a temporary order is a separate matter, and the court may find a willful violation and issue a new order of protection even after dismissing the underlying family offense petition. A respondent who assumes that winning the family offense case disposes of an alleged violation along the way is mistaken. The same decision confirms that violating the order can constitute second-degree criminal contempt under Penal Law 215.50(3).
Family Court Act 846 gives the court three options when a violation is alleged. It may hear the violation itself under Article 8. It may keep the contempt issue while referring the criminal allegations to the district attorney under Family Court Act 813. Or it may transfer the whole proceeding to criminal court.
Filing a Violation Petition
A Family Court violation proceeding starts with a petition alleging that the respondent failed to obey a lawful order of the Family Court, or a qualifying order of protection issued by a court of competent jurisdiction in another state, territory or tribal jurisdiction.
The original petitioner may file. So may any other person authorized to originate a proceeding under Family Court Act 822. Once the petition is filed, the court may issue process requiring the respondent to appear and show cause why he should not be dealt with under 846-a.
What makes a violation petition succeed is documentation rather than narrative. Before you file, and ideally from the day the order issued:
- Keep every text, voicemail, email and message, with dates and times, and do not delete anything even if it is upsetting.
- Screenshot social media contact, including likes, comments, tagging and messages from accounts you believe belong to the respondent.
- Write down in-person incidents the same day: where, when, how long, who else saw it.
- Call the police for incidents as they happen. A police report made contemporaneously carries weight a later account does not.
- Keep a copy of the order itself and note exactly which term was violated.
Erie County Family Court sits at 1 Niagara Plaza in Buffalo. Our guide to orders of protection in New York Family Court covers the Article 8 process from the beginning.
What Willful Means, and What Proof It Takes
Family Court Act 846-a applies when a respondent is brought before the court for failure to obey a lawful order issued under Article 8. The court can act if, after a hearing, it is satisfied by competent proof that the respondent willfully failed to obey the order.
There are two different standards of proof here, and which one applies depends on what the court is being asked to do.
For a willful violation generally, the standard is clear and convincing evidence. The Appellate Division applied that standard in Matter of Sicina v Gorish, which also confirms that the violating conduct need not independently amount to a separate family offense for the Family Court to act on it.
Where the court imposes a fixed punitive jail term, the standard rises to proof beyond a reasonable doubt. An Article 8 violation proceeding can involve civil contempt, criminal contempt, or both, and a definite punitive sentence is criminal in nature, which brings the criminal standard of proof with it. Matter of Stuart v Aimee KK. and Rubackin v Rubackin both make this point.
That distinction is the most consequential thing on this page for either side. A petitioner seeking a modified order and counsel fees is in a different evidentiary position than a petitioner seeking to have the respondent jailed for a set term.
What the Court Can Do
On competent proof of a willful failure to obey, Family Court Act 846-a gives the court a substantial set of remedies:
- Modify an existing order of protection.
- Issue a new order of protection.
- Order forfeiture of bail.
- Direct payment of the petitioner’s reasonable and necessary counsel fees.
- Commit the respondent to jail for a term not to exceed six months.
The statute also carries firearm consequences that sit alongside anything Family Court Act 842-a did when the order was first issued. Where the willful violation involves violent behavior, the court may immediately revoke a license and arrange immediate surrender of firearms. Where it involves physical injury, or the use or threatened use of a deadly weapon or dangerous instrument, revocation, surrender and disposal are mandatory. That is covered further on our page about orders of protection, firearms and pistol permits.
When a Violation Becomes a Felony
Criminal contempt in the second degree under Penal Law 215.50(3) covers intentional disobedience of a lawful court mandate, which includes an order of protection.
Penal Law 215.51 raises certain order of protection violations to criminal contempt in the first degree, a class E felony. The pathways include violating a duly served order, or one the defendant knows about from having been present in court, by:
- intentionally placing the protected person in reasonable fear of physical injury, serious physical injury or death;
- subjecting the protected person to unwanted physical contact, or attempting or threatening it, with intent to harass, annoy, threaten or alarm;
- intentionally or recklessly damaging the protected person’s property in an amount over $250; or
- committing second-degree criminal contempt with a qualifying prior contempt conviction within the preceding five years.
The felony route is not reserved for dramatic cases. The property damage threshold is low, and the repeat-conduct pathway turns a second incident into something categorically more serious than the first.
The Protected Person Cannot Violate Their Own Order
Family Court Act 846 says this directly, and almost nobody knows it.
A protected person cannot be held to have violated an order of protection issued in that person’s favor, and cannot be arrested for violating it. The order restrains the respondent. It does not restrain the person it protects.
This answers a question that frightens a great many petitioners. If you have an order of protection and you contact the respondent, whether out of loneliness, to sort out a car payment, or because a child is sick, you have not committed a violation and you cannot be arrested for one.
Two things follow, and they cut in opposite directions. A petitioner who no longer wants the order in place should ask the court to modify or vacate it, not simply resume contact, because only the court can change an order and informal contact makes the situation harder to manage for everyone. And a respondent should understand that the protection runs one way only. The next section deals with that.
What if the Contact Was Accidental, or She Contacted Me?
These are the two defenses respondents raise most often, and they need an honest answer rather than a comforting one.
Contact initiated by the protected person is not a defense. Because of Family Court Act 846, she has not violated anything by reaching out, and the order still binds you. If the protected person calls, texts, appears at your door, or invites you over, responding puts you in violation. Do not answer, leave if you are somewhere she is, and write down what happened the same day.
The order remains in force until a court vacates it. An extant order must be obeyed unless and until it is vacated, even where the basis for it is later undermined, as the Appellate Division held in People v Brown. A dismissed criminal charge does not lift a Family Court order. Nor does an agreement between the parties.
Willfulness does carry real weight. Family Court Act 846-a requires a willful failure to obey, and that requirement exists for a reason. Genuinely accidental contact, a chance encounter in a store, being served process, a message sent to an old group thread, is a different matter from calling someone forty times. Whether particular conduct was willful is a question of proof, and it is where most of these hearings are actually decided.
None of this is a reason to take a risk and argue about it later. If contact is unavoidable, for example because of a shared workplace or a school event, the answer is an application to modify the order, made in advance.
We handle violation petitions on both sides in Erie and Niagara Counties, for petitioners seeking enforcement and for respondents facing a violation allegation. Contact us to discuss your situation.
This page is general information about New York law, not legal advice, and reading it does not create an attorney-client relationship. If a violation involves immediate danger, call 911.
Frequently Asked Questions
How do I file a violation petition for an order of protection in New York?
You file a petition in Family Court alleging that the respondent failed to obey a lawful order. The original petitioner may file, as may any other person authorized to originate a proceeding under Family Court Act 822. The court may then issue process requiring the respondent to appear and show cause why he should not be dealt with under Family Court Act 846-a. Documentation matters more than narrative: keep messages, screenshot social media contact, write down incidents the same day, and call the police as incidents happen.
What is the penalty for willfully violating an order of protection in Family Court?
On competent proof of a willful failure to obey, Family Court Act 846-a allows the court to modify an existing order, issue a new order of protection, order forfeiture of bail, direct payment of the petitioner's reasonable and necessary counsel fees, and commit the respondent to jail for a term not to exceed six months. Firearm revocation and surrender are also available, and are mandatory where the violation involved physical injury or the use or threatened use of a deadly weapon or dangerous instrument.
What standard of proof applies to a violation petition?
It depends on what the court is asked to do. A willful violation is generally proved by clear and convincing evidence. But where the court imposes a fixed punitive jail term, the proceeding is criminal in nature and proof beyond a reasonable doubt is required. An Article 8 violation proceeding can involve civil contempt, criminal contempt, or both.
Can the protected person get in trouble for contacting the respondent?
No. Family Court Act 846 provides that a protected person cannot be held to have violated an order of protection issued in that person's favor and cannot be arrested for violating it. The order restrains the respondent, not the person it protects. A petitioner who no longer wants the order should ask the court to modify or vacate it rather than simply resuming contact, because only the court can change an order.
Is it a defense that my ex contacted me first?
No. Because the order restrains you rather than the protected person, contact she initiates does not suspend the order and does not excuse your response. If the protected person contacts you, do not respond, leave if you are in the same place, and document what happened the same day. Where contact is genuinely unavoidable, such as a shared workplace, the answer is an application to modify the order made in advance.
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