Find out about New York’s Civil Harassment Restraining Orders, eligibility requirements, court processes, and other legal remedies.
Harassment can also make it harder to feel safe in the home, at work… Or just in everyday life. Repeatedly being subjected to unwanted contact threats intimidation, stalking, and similar acts can mean questions of whether someone can ask the court for an order requiring another person to keep their distance.
The legal procedures in New York vary as the interaction of the individuals, their behavior, and the specific forms of legal action accessible to them. New York does not have one exclusive general civil harassment restraining-order process for anyone experiencing harassment, as many other states do. People who have been harassed in New York may obtain their relief in a Family Court family offense proceeding, a criminal court proceeding, or in some other specific types of civil proceedings where a legal remedy exists.
Knowing, which is situation applies is key. The right process will determine where you should file, what you will need to prove… And what a judge has the authority to order under Personal Law.
Is there a Civil Harassment Restraining Order in New York?
In New York, such applications are typically made via particular statutory procedures… And not through one standard civil harassment restraining-order process.
One important option is a family offense petition under Article 8 of the New York Family Court Act. This process allows an eligible person to ask Family Court for an order of protection when another person has committed an offense listed in the statute and the parties have a qualifying family or household relationship.
People who are not eligible to file a family offense petition still may still have options. Based on the situation, they can request a protective order in a criminal case or another civil case, like a preliminary injunction or a specific harassment case involving housing.
Different kinds of orders are not interchangeable. For instance, a civil preliminary injunction is linked to a related civil case. A criminal court order of protection is linked to a related criminal case. Never assume that every mean interaction, inappropriate message, or personal dispute warrants a court order.
When Can a Person File a Family Offense Petition?
Section 812 of the New York Family Court Act specifies the relationship and offenses that constitute a family offense.
A family offense petition can usually be filed if the parties:
- Related by blood or marriage;
- Legally married to one another;
- Are, or have been, married to each other.
- Parents who share a child, whether, or not they were married or lived together; or.
- Those in or ever in an intimate relationship, even if they never cohabited.
Intimate relationship does not have to be sexual for the law. The court can consider the nature of the relationship, the time that the couple spent together and the frequency of the time they spent together when trying to decide if there was an intimate relationship. A friendship or a business relationship would not be an intimate relationship.
The statute also specifies the crime or crimes upon which a family offense petition is based. The list includes, for example, certain types of disorderly conduct and aggravated harassment, threatening conduct stalking assault, reckless endangerment, malicious mischief, coercion, and certain other listed crimes.
The alleged conduct must satisfy the legal requirements for an offense as defined in the statute. A disagreement, rude comment, or a single unwanted interaction alone does not constitute a family offense.
What Conduct May Qualify as Harassment?
Types of harassment are defined under New York Penal Law. The elements of the specific law, which applies are critical as a court will determine whether or not the conduct makes up a cognizable offense.
Harassment in the Second Degree
Harassment in the second degree is a class B misdemeanor in New York. Under New York Penal Law 240.26… A person may commit harassment in the second degree when, with the intent to harass, annoy, or alarm another person:
- Pushing shoving kicking, or otherwise physically contacting another individual; or trying or threatening to do so;
- Following another person in or about a public place; or.
- Engages in a course of conduct or repeatedly commits acts, which alarm or seriously annoy another person and, which serve no legitimate purpose.
More than in reality someone disliked another person’s conduct, the statute must be proven. The possible intent and elements of the statute must be established.
New York’s second degree harassment is a violation.
Aggravated Harassment in the Second Degree
New York Penal Law 240.30 is a section of the penal code defining certain conduct about speech and communication.
One provision also covers intentionally causing another person to reasonably fear damage to their or a member of their family or household’s physical safety or property when one knows or should reasonably know that the communication will cause that fear.
The law has this exceptions. Don’t interpret the law as creating a crime for every unwelcome phone call text email, or message sent through social media.
Stalking and Other Family Offenses
The remaining charges, like stalking menacing assault, reckless endangerment, and any other violations cited in Family Court Act 812 can also provide the basis for a family offense proceeding when the relationship requirement has been satisfied.
The court looks to the real-world actions and the legal criteria that apply. There is a difference between testifying about real-world actions and relying solely on conclusory allegations that the defendant is harassing or intimidating.
How to Obtain an Order of Protection in Family Court.
A person who has the relationship and family-offense requirements can also seek a protection order by filing a family offense petition with Family Court.
This process typically encompasses these steps:
1. File a Family Offense Petition
Typically, the petitioner first reports the conduct to the proper Family Court and instructs the allegations. Except for an active domestic-violence-advocacy group aiding in the petition, it normally is required to be filed in family-court directly.
Court clerks may have information on forms and procedures. The court’s official instructions state that there is no cost to file a family offense petition.
The more specific the petition is about what occurred, the better it should be written. To provide as much detail as possible, include:
- The specific dates or approximate dates when the events occurred;
- Where the incidents occurred;
- What the respondent said or did;
- Whether there were threats, physical contact, injuries, or damage to property.
- Whether weapons were involved;
- Whether there were witnesses; and
- If there were any prior police reports, court proceedings, or protection orders.
Fact findings inform the judge about the allegations and what relief may be granted.
2. Ask for a Temporary Order of Protection.
What can be done if the case is still being settled? A petitioner can request that the Court grant a temporary order of protection.
The court may also issue a temporary order if the statutory criteria, including good cause, are established under Family Court Act 828. The court can issue this order before the appearance of the respondent.
Often, a temporary order will contain conditions intended to protect the petitioner while the case is pending. It may be necessary, for example, to bar the respondent from contact with the petitioner, order the respondent to stay away from certain places, or impose other conditions per the law.
A temporary order does not mean that the respondent actually engaged in the behavior. The matter may proceed on to a hearing on the allegations.
3. Serve the Respondent
The respondent must be served with the petition and notice of the proceeding. Service is also significant since the respondent must receive notice and be given an opportunity to attend.
The petitioner must comply with the court’s direction as to service. Based on New York Courts, the petitioner typically may not serve the respondent itself. Service may be made by a friend, process server, sheriff, or police officer, given the case, and proof of service must be filed with the court.
Temporary order of protection shall not be in effect against the respondent until properly served.
4. Attend the Court Hearing
It is also appropriate for the court to hold a fact-finding hearing if the respondent denies the allegations.
Testimony to be Heard at this Hearing The petitioner shall present testimony, by a fair preponderance of the evidence, that the alleged family offense occurred.
The petitioner can produce witnesses documents photographs messages recordings (if obtained legally) and other forms of evidence. The petitioner may even have witnesses.
The respondent may testify to defend the allegations and may present witnesses in the respondent’s defense. If the court determines that a family offense has been proven, a disposition may be held and a final order of protection may be entered.
A final order may also be entered upon respondent’s stipulation to an order, following the applicable court rules.
What are the terms of a Protection Order?
Possible terms of a New York Family Court Order of Protection A New York Family Court order of protection can include provisions designed to prevent future abuse and to otherwise protect the petitioner or other covered persons.
In some circumstances, an order might tell the respondent to do something.
- Avoid the petitioner’s home job school, or others;
- Do not try to reach the petitioner by telephone letter email, text message, social media, or someone else.
- No harassment, intimidation, threats, or further family offenses;
- Comply with specified custody or visitation arrangements;
- Avoid interfering with the petitioner’s care or custody of a child; or.
- Adhere to other requirements permitted by law.
In some cases, the court can take up other issues, including: temporary custody visitation access to personal property, medical bills and other relief authorized by the Family Court Act.
The specific words will vary based on the case and the court’s authority. The person petitioning must state what protections are required and why.
How Long Does an Order of Protection Last?
New York Family Court Act 842 offers, in part, that a final order of protection shall continue for a period not to exceed 2 years.
If, on the record, the court finds the existence of aggravating circumstances set forth in Family Court Act 827(a)(vii) or that the defendant’s conduct, as alleged in the petition, was in violation of a valid order of protection, an order of protection may be made for up to five years.
It further brings that the court may extend the period on a showing of good cause or consent of the parties for a reasonable period upon a motion.
A temporary order is not the same as a final order. A temporary order is usually effective while your case is still before the court, based on the court’s orders and extensions.
What Takes Place When an Order of Protection Is Violated?
A person who intentionally violates an order of protection could have quite a bit more severe repercussions.
If the petitioner thinks the respondent has violated an order, he, or she should keep all relevant evidence and possibly call the police. In some cases, the alleged violation can be taken to Family Court, too.
Family Court Act 846-a The Court, upon a hearing and upon proof beyond a reasonable doubt of a wilful failure to obey a lawful order of the Court may besides or in lieu of any other relief, provide that such order be modified, conditioned, or that a new order be made, award counsel fees, or commit the respondent to jail for a period not exceeding six months.
A violation can have a criminal effect on you. But the effects vary according to what the violation is and, which type of proceedings it is.
Can Someone Get Protection Through Criminal Court?
Yes. Orders of protection in New York can be issued in a criminal case in New York.
Family Court Act 812 has concurrent jurisdiction over certain family offenses where the parties involved have qualifying family or household relationships. Criminal Procedure Law 530.12 orders of protection in a criminal case involving a family offense.
Criminal Procedure Law 530.13 concerns orders of protection in certain criminal cases involving victims of offenses that are not classified as family offenses, provided the statutory criteria are satisfied.
This makes a difference. Someone who is not eligible to file a Family Court family offense petition may be eligible for protection in a criminal case. Though, a criminal court order is typically linked to a criminal case. It’s not really an isolatable civil application just available without the valid criminal-case underlying basis.
How long does a criminal court order last? The length of a criminal court order will depend on the statute used, the offense and sentence involved, and other factors. For instance, CPL 530.13 dictates criminal order timeframes after conviction based on a prescribed statutory calculation based on the crime and sentence; it cannot just be a bare statement that all criminal orders last for a maximum of 8, 5, or 2 years.
Are There Other Civil Remedies for Harassment?
If an individual isn’t qualified to file a family offense petition with Family Court, he, or she may choose to pursue another type of remedy. The appropriate remedy will vary based on the nature of the behavior, the type of relationship and the kind of injury sustained.
Preliminary Injunctions
In an appropriate civil lawsuit, a party may file a motion for a preliminary injunction or temporary restraining order under New York Civil Practice Law and Rules 6301 and 6313.
A preliminary injunction is not a substitute for a family offense petition. It is a form of relief connected to an underlying civil action and needs the applicant to satisfy the applicable legal standards.
In New York, courts tend to look at the probability of success on the merits, whether there is irreparable harm absent the injunction, and whether the equities tip in the petitioner’s favor. The Court of Appeals addressed this three-prong test in Nobu Next Door, LLC v Fine Arts House. Inc. 4 N.Y.3d 839, 840 (2005).
Some New York appellate decisions have termed the applicant’s burden of proof as clear and convincing evidence. See e.g. Matter of P. & E. T. Foundation, 204 A.D.3d 1460 (4th Dep’t 2022). A determination of what standard is appropriate and how to weigh such standard should be made considering the court and proceeding involved.
In some cases of immediate and irreparable injury, a temporary restraining order may be granted before a hearing, pursuant to statutory provisions.
Housing-Related Harassment
A tenant might have extra protections against harassment when the person accused of harassment is the landlord or owner of the building.
Harassment types what comes next are no longer allowed under the New York City Housing Maintenance Code. Under New York City Administrative Code 27-2120(b), a tenant or lawful occupant can bring a housing Court proceeding for an order restraining an owner in certain instances.
There are additional remedies available under the New York City Administrative Code or, in some cases, New York Real Property Law 235-d. Section 235-d applies to particular types of buildings and tenancies, it is not available for every landlord/tenant situation.
There are remedies. They do not operate as a ‘blanket’ restraining-order regime where any and all personal differences and harassment charges are deemed to be requiring a restraining order.
What Evidence Should a Person Keep?
Evidence is useful to help the court get an idea of what has happened and to decide whether or not the law gives you any protection.
Harassment victim may get to keep:
- Text message, email, and social media contact;
- Voicemails and call logs;
- Photos of the injury or property damage;
- Police reports and incident numbers;
- Medical records relevant to alleged injuries;
- Log a written record of the date, location… And details of an incident.
- Witness information, names, and contact details; and
- Previous court orders or other relevant documents.
The original form of evidence should be maintained where possible. An individual may not modify messages, create false documents, or acquire recordings otherwise in breach of law.
When it comes to an immediate danger, safety is the first factor to consider at the expense of evidence collection.
Do You Need a Lawyer?
An individual may commence a Family Court family offense action without engaging an attorney. An attorney can be helpful in a family offense claim, in particular if the alleged offense is challenged, the parties share children, there are other family court or criminal proceedings related to the alleged family offense, or if the relief sought is complex.
The court shall advise a petitioner that if eligible the petitioner has the right to the appointment of counsel by the court under section 262 of this article and if ineligible has the right to retain counsel. Family Court Act 821-a.
Indigent if you cannot afford an attorney… Tell the court and ask for appointed counsel. The court will decide if you qualify.
Frequently Asked Questions
Can I get a restraining order in NY against a nonfamily member?
Maybe the family court family offense petition process typically has a relationship requirement of the person seeking relief and the respondent (such as family, household, or intimate). Failure to meet the relationship requirement may allow an individual to seek an order of protection in a criminal case or through other legal remedies.
Can repeated text messages be considered harassment?
They may be relevant, but unwanted messages are not, in, and of themselves, enough to establish a crime or to allow for a protection order to be made. The purpose content frequency, context, and statutory requirements all matter.
Is it possible to apply for a restraining order without the defendant?
A temporary order of protection can be issued by a judge before the defendant having an opportunity to be heard if the legal elements are met. The respondent is still entitled to due notice and an opportunity to be heard.
What is the difference between a temporary order of protection and a final order of protection?
What is a temporary order? This is a temporary order to protect the victim during the life of the court case. An order of finality can be made once the court process including the court’s fact-finding hearing (when the respondent or defendant denies the allegation).
How long does a New York Family Court order of protection last?
Normally, a final Family Court order may last for up to 2 years. A final Family Court order may last up to 5 years if the Court enters one of the qualifying findings specified in Family Court Act 842.
What should I do if the respondent violates the order?
If you believe a violation of an order has occurred… You should report the incident to the police and document evidence of the violation. You can inquire with the court about requesting a violation proceeding. The appropriate action for you will depend on the terms of the order and behavior.
Conclusion
New York offers different legal options for individuals who need protection from harassment threats stalking and other similar behavior. A family offense petition in Family Court can be filed when the parties share a relationship that qualifies, and the behavior falls into an offense covered by Family Court Act. Criminal court orders and some civil and housing options are also available.
The trick is to apply the correct legal process and not to assume that New York has one form of civil harassment restraining-order application. If you are planning a court hearing, review the statutes, gather evidence of the specific facts… Follow all court procedures, and consult with a New York attorney for the remedies available based on the facts.
Additional Resources
- Filing a Family Offense Petition: Official guidance on eligibility, filing procedures, temporary orders of protection, and available assistance.
- Family Court Act § 812, Family Offenses and Jurisdiction: Primary legal authority defining qualifying family or household relationships and offenses that may support a Family Court petition.
- Family Court Act § 842, Duration of Orders of Protection: Explains how long final orders of protection may remain in effect and when extended protection is permitted.