How to Get an Order of Protection Dismissed in NY
An order of protection can make life very difficult.
Although orders of protection are justified when a person repeatedly threatens someone, unfortunately, many orders are unfairly and unnecessarily issued. When an order of protection is unfairly issued, a person may be unjustly displaced from his home and family.
When an order of protection is unjustly issued, a domestic violence lawyer can take steps in effort to get the order of protection dismissed. This article discusses how to get an order of protection dismissed.
What is an Order of Protection?
An order of protection, commonly called a “restraining order,” is a court order that typically orders a person to not contact someone. In New York, orders of protection are typically issued in Family Court or Criminal Court.
Most orders of protection require the person subject to order to not:
- Call the complainant;
- Email the complainant;
- Contact the complainant on social media;
- Go to the home of the complainant;
- Go to the school or place of business of the complainant; and
- Engage in any criminal conduct towards the complainant.
If a person violates an order of protection in NY, he can be charged with the crime of criminal contempt. A basic violation of an order of protection is misdemeanor criminal contempt. If a person also commits a crime—like harassment or assault—against the complainant while the order of protection is in place, the person can face enhanced felony charges.
Who Controls an Order of Protection?
In New York, an order of protection is issued—and dismissed—by a judge only. Consequently, the complainant in a case does not control whether an order of protection is issued or dismissed. This fact creates a lot of issues for families that are intertwined in Family Court or Criminal Court.
For instance, a common scenario is that a person will call the police after she gets into a heated argument with her spouse. The police arrive and arrest the defendant for harassment. The defendant is then brought to Criminal Court, and the judge issues an order of protection, which orders the Defendant not to go home or speak with the defendant’s spouse.
The spouse may say that she does not want an order of protection because she is not fearful of her spouse. However, the decision to issue an order of protection is solely up to the judge. In other words, the judge can prevent the defendant from being with his spouse, even if his spouse wants to be with him.
Unfortunately, many defendants and complainants believe that the complainant controls the order of protection. Accordingly, the complainant will tell the defendant that, since she doesn’t want a restraining order, the defendant can come back home. Then, they get into another argument, and someone calls the police, and the defendant is arrested for criminal contempt. Or, a police officer familiar with the case sees them together, and arrests the defendant for criminal contempt.
The takeaway is that only a judge can dismiss an order of protection. Until then, a defendant who contacts a complainant with an open order of protection faces the risk of being arrested for criminal contempt.
Steps to Take to Get and Order of Protection Dismissed
If you are the defendant or complainant in a case involving an order of protection and want it dismissed, you may be able to get the order dismissed.
When the Complainant Doesn’t Want an Order of Protection
The most important factor is the desire of the complainant. A judge will oftentimes issue an order of protection at the defendant’s first court appearance without knowing the preference of the complainant. However, if the complainant maintains that she does not want an order of protection, then usually at later court appearances the court will agree to modify the order of protection.
If a complainant doesn’t want an order of protection, she should contact the defendant’s lawyer. The defendant’s lawyer will then relay the complainant’s desires to the court and prosecution. Further, the complainant should also contact the prosecution to let them know she does not want a restraining order.
When the Complainant Wants an Order of Protection
Even if the complainant wants an order of protection, in some situations a domestic violence lawyer may be able to show the court why an order of protection is not appropriate. For instance, if the defense can provide video footage that proves the complainant is lying about this incident, the court may realize it is unfair to order the defendant to be away from his home. Further, courts in NYC routinely grant Crawford hearings, which is where a defendant can show the court that the order of protection violates his property rights in his home, and a full order of protection is not justified under the circumstances in the case.
Typically, when the court modifies the restraining order during a pending case, it will make the order a limited order of protection. A limited order of protection means that the defendant can contact the complainant and live with the complainant, but the defendant still faces enhanced penalties if he commits a crime against the complainant.
If you want to get an order of protection dismissed in NYC, contact Cody Warner for a free consultation. Cody is an experienced domestic violence lawyer who protects his clients rights to help ensure that the court does not unfairly issue orders of protection. He also knows how to strategically navigate the criminal justice system to get outstanding results for his clients.