Lawyers Manual - Unified Court System

228 Emily Ruben
Orders of Protection
An order of protection is an injunction that prohibits a person from
engaging in certain offensive and illegal behavior and/or directs that person to
stay away from specific people and places. In the context of a divorce case, an
order of protection in either Family Court or Supreme Court can contain the
same terms and conditions and will be issued when a “family offense” has been
committed. In New York, a battered spouse can obtain an order of protection in
three different forums — Criminal Court, Family Court and Supreme Court.
Domestic Relations Law §§ 240 and 252 are the statutes that authorize the
Supreme Court in any matrimonial action to issue an order of protection.
Because neither of these statutes provides any standards or criteria for
determining whether to grant an order of protection, courts have consistently
held that the standard to be used is that provided in Article 8 of the Family
Court Act. 12 However, the procedure for requesting an order of protection in
Supreme Court is governed by the Civil Practice Law and Rules and not the
Family Court Act. Accordingly, in Supreme Court a request for an order of
protection is made in a summons with notice, a complaint or by motion, not by
petition. Domestic Relations Law § 240(3) authorizes the court to grant an order
of protection even if the other relief demanded in the divorce action is denied,
as long as the other relief was not denied because of lack of jurisdiction.
In the Supreme Court, a party to a matrimonial action can seek an order of
protection in several different ways. A plaintiff can include an order of protection
as part of the ancillary relief she requests in her summons with notice or her
verified complaint. A defendant can request one in her answer. Putting the
request for an order of protection in the initial pleading assures that this issue
will be adjudicated at the trial of the case. If more expeditious relief is needed, as
will usually be the case, the party seeking an order of protection may also move
for pendente lite relief by either notice of motion or order to show cause. For
obvious reasons, this relief is most frequently sought by order to show cause.
When a client who needs an order of protection and a divorce first consults
with an attorney, a strategic and pragmatic decision must be made regarding
the best forum to obtain the needed relief. An order to show cause from the
Supreme Court, with a temporary restraining order granting an order of
protection, could be served on the defendant simultaneously with the summons
and complaint or summons with notice commencing the divorce. Alternatively,
the commencement of the matrimonial action could be put on hold while an
order of protection is sought in Family Court. A third option is to proceed