Domestic Violence And Orders Of Protection

Domestic violence may be present in divorce proceedings and cannot be ignored. This section contains basic information and other resources that can help you understand the legal issues involved and your rights if you are a victim of domestic violence and are seeking a divorce in New York state.

In New York state law, domestic violence is defined as a pattern of abusive behavior by a person against an “adult intimate partner” designed to control and hold power over that partner. This abuse can be physical, emotional, sexual, psychological or economic.

What Constitutes Domestic Violence in New York?

The definition of domestic violence varies depending on the context in which it is used, and when discussing the legal definition, can vary by jurisdiction. Generally speaking, it is an abusive act committed by one household or family member against another. In some cases, abuse that is not physical can be considered domestic violence. Examples include financial abuse, emotional abuse, isolation, and stalking. Also, there are different circumstances where domestic violence may be charged, including: 

  • When one roommate is abusive towards another roommate
  • When two people share a child together but no longer live with one another
  • A couple no longer lives together due to divorce or separation

When a person has been accused of domestic violence, there are several different ways their accuser may be able to prove their case.

Physical Evidence

Physical evidence tends to carry a lot of weight in proving domestic violence. Physical evidence can include photographs and videotaped evidence of the injuries. Doctor reports, items used in an assault (e.g., a weapon), and damaged property are also considered physical evidence.

Eye Witnesses

If anyone else saw domestic violence take place, their testimony may be used to prove that the domestic violence occurred. This includes any police officers that may have responded to an emergency call to the place the domestic violence occurred. It can also include neighbors, co-workers, friends, family, and others.

Expert Witnesses

Experts on domestic violence can provide evidence in several different ways. They may produce reports after examining the survivor(s) and analyzing the case. They can also help educate the judge and jury on domestic violence and how it has occurred and impacted the current case.

What An Order Of Protection Can Do

Victims of domestic violence have the right to seek an order of protection against their abuser. Commonly known as a restraining order, an order of protection is a legal order that limits or outright prohibits the abuser's right to see, contact or communicate with the victim. Family Court judges have the power to order an abuser to do any or all of the following:

  • Stay away from the victim and their children
  • Move out of the shared home
  • Follow child custody orders
  • Pay child support
  • Not own or possess firearms

Judges in Family Court, criminal court, and Supreme Court can issue an order of protection. In Family Court, the order of protection is issued as part of a civil proceeding to put an end to violence within a family or intimate relationship. To obtain an order of protection in Family Court, the relationship between you and your abuser must be one of the following:

  • Current or former spouse
  • Someone with whom you have a child in common
  • A family member to whom you are related by blood or marriage
  • Someone with whom you have or have had an “intimate relationship,” which is not necessarily a sexual relationship. You can demonstrate intimacy based on many factors, such as whether you live together or if you have known each other for several years. Ultimately, it is up to the judge to determine if your relationship qualifies as intimate.

Domestic violence is often a factor in divorce proceedings. Spouses who need an order of protection during their divorce must go to Supreme Court to petition for one. Your divorce attorney can make the request on your behalf before a Supreme Court judge. Finally, an order of protection can be issued against a criminal defendant as a condition of their bail.

Order Violations

No matter which court issued the order of protection, violation of the order is a crime. If the order was issued in Family Court, the person protected by the order can choose to call the police or file a petition in court to report the violation.

Call 518-427-7000 To Talk To A Family Law Attorney

If domestic violence is a factor in your divorce, or if you are involved in an accusation of domestic violence, contact our office in Albany for prompt and compassionate legal representation. Please do not hesitate to call us when you need assistance.