Lawyers Manual - Unified Court System

Matrimonial Actions 231
eighteen years. Because the Domestic Relations Law is silent on the duration of
an order of protection when there no longer are or never were any minor children,
the duration of a final order of protection is entirely within the discretion of the
Supreme Court justice. In cases of severe violence, Supreme Court justices can,
and do, issue lifetime orders of protection or orders that will be in effect far
longer than the five-year maximum obtainable in Family Court.
The November 1, 2000 amendment of the Domestic Relations Law eliminated
another distinction that used to make Family Court a more desirable forum by
adding provisions to both Domestic Relations Law §§ 240(3) and 252 authorizing
the inclusion of language prohibiting or suspending firearms licenses and ordering
restitution in orders of protection issued pursuant to those statutes. This amendment
made the terms available in a Supreme Court order of protection consistent with
those available in a Family Court order of protection. 17
Another distinction between the two courts is that only a Supreme Court
justice can issue an order of exclusive occupancy. 18 An order of exclusive
occupancy is an order that awards possession of the marital residence to one
party. It is a form of property distribution over which the Family Court has no
jurisdiction unless the issue is directly referred to it by the Supreme Court.
However, the Family Court can obtain virtually the same result by issuing an
order of protection directing the respondent to stay away from the home of the
petitioner. The Supreme Court can also issue an order of protection with a stay
away provision. When possession of a leased residence or ownership of real
property may be an issue, it is important to seek both an order of protection and
exclusive occupancy in the Supreme Court. The police cannot enforce an order
of exclusive occupancy as they can an order of protection, and an order of
exclusive occupancy will preclude partition of marital real property.
When a married client with minor children has been the victim of serious
domestic violence and there is some basis to fear she might be charged with
neglect for failing to protect the child(ren) from the batterer or for their exposure
to the violence, it might be prudent to move for an order of protection in Supreme
Court rather than in Family Court. Because Family Court judges regularly use
the Administration for Children’s Services (ACS) to investigate the parties and
their home environments in Article 10 abuse/neglect proceedings and in Article
6 custody, guardianship and adoption proceedings, they are far more likely to
call upon ACS to investigate domestic violence and a possible failure to protect
charge than are Supreme Court justices, who do not have ACS caseworkers and
attorneys at their immediate disposal.