An Order of Protection is an Order issued by a court specifying the type of conduct that the opposing side must follow. An Order of Protection can be issued in a matrimonial action, in criminal court, or family court. If there is a pending divorce action, the party seeking the Order of Protection can file a motion or an Order to Show Cause seeking an Order of Protection. The matrimonial judge will then determine if an Order of Protection should be issued and what type should be issued. An Order of Protection can be issued in Criminal Court if someone was arrested and charged. The District Attorney can request the Order of Protection on behalf of the victim, and the judge will then determine if one will be issued and what type will be issued.
In Family Court, the party who files for the order of protection is the Petitioner. The Petitioner must have a relationship with the opposing party or the respondent, and the relationship requirement is set forth in Family Court Act Section 812. Also, there must have been harm or a threat of harm by the opposing side.
It is important to note that family court requires a special relationship between the Petitioner and respondent, whereas in criminal court this is not required. Also, family court and matrimonial court are civil proceedings; hence they issue civil orders of protection.
One could have two Orders of Protection pending, meaning one can file for it in Family Court, and one can be issued in Criminal Court by the judge if the defendant was arrested and charged. If the opposing side fails to comply with the terms set forth in the Order of Protection, the police could be called, as this is a violation of the Order of Protection. Then, that person could get arrested. For example, is there is an Order of Protection stating that you must stay away from the home of the Petitioner and you show up there? That is a violation of the protection, and the police could arrest you for such violation.
If the violating party is charged, then there is now a criminal case pending.
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