§ 252 — Effect of pendency of action for divorce, separation or annulment on petition for order of protection

New York § 252

• Jurisdiction: New York
• Law DOM: Domestic Relations
• Art. 13: Provisions Applicable to More Than One Type of Matrimonial Action

Text

§ 252. Effect of pendency of action for divorce, separation or\nannulment on petition for order of protection. 1. In an action for\ndivorce, separation or annulment or in an action to declare the nullity\nof a void marriage in the supreme court, the supreme court or the family\ncourt shall entertain an application for an order of protection or\ntemporary order of protection by either party. Such an order may require\nany party:\n (a) to stay away from the home, school, business or place of\nemployment of the child, other parent or any other party, and to stay\naway from any other specific location designated by the court;\n (b) to permit a parent, or a person entitled to visitation by a court\norder or a separation agreement, to visit the child at stated periods;\n (c) to refrain from committing a family offense, as defined in\nsubdivision one of section 530.11 of the criminal procedure law, or any\ncriminal offense against such child or against the other parent or\nagainst any person to whom custody of the child is awarded or from\nharassing, intimidating or threatening such persons;\n (d) to permit a designated party to enter the residence during a\nspecified period of time in order to remove personal belongings not in\nissue in a proceeding or action under this chapter or the family court\nact;\n (e) to refrain from acts of commission or omission that create an\nunreasonable risk to the health, safety or welfare of a child;\n (f) to pay the reasonable counsel fees and disbursements involved in\nobtaining or enforcing the order of the person who is protected by such\norder if such order is issued or enforced;\n (g) to refrain from intentionally injuring or killing, without\njustification, any companion animal the respondent knows to be owned,\npossessed, leased, kept or held by the person protected by the order or\na minor child residing in such person's household. "Companion animal,"\nas used in this section, shall have the same meaning as in subdivision\nfive of section three hundred fifty of the agriculture and markets law;\n (h) (1) to promptly return specified identification documents to the\nprotected party, in whose favor the order of protection or temporary\norder of protection is issued; provided, however, that such order may:\n(A) include any appropriate provision designed to ensure that any such\ndocument is available for use as evidence in this proceeding, and\navailable if necessary for legitimate use by the party against whom such\norder is issued; and (B) specify the manner in which such return shall\nbe accomplished.\n (2) For purposes of this paragraph, "identification document" shall\nmean any of the following: (A) exclusively in the name of the protected\nparty: birth certificate, passport, social security card, health\ninsurance or other benefits card, a card or document used to access\nbank, credit or other financial accounts or records, tax returns, any\ndriver's license, and immigration documents including but not limited to\na United States permanent resident card and employment authorization\ndocument; and (B) upon motion and after notice and an opportunity to be\nheard, any of the following, including those that may reflect joint use\nor ownership, that the court determines are necessary and are\nappropriately transferred to the protected party: any card or document\nused to access bank, credit or other financial accounts or records, tax\nreturns, and any other identifying cards and documents;\n (i) (1) to refrain from remotely controlling any connected devices\naffecting the home, vehicle or property of the person protected by the\norder.\n (2) For purposes of this paragraph, "connected device" shall mean any\ndevice, or other physical object that is capable of connecting to the\ninternet, directly or indirectly, and that is assigned an internet\nprotocol address or bluetooth address; and\n (j) to observe such other conditions as are necessary to further the\npurposes of protection.\n 1-a. Translation and interpretation of orders of protection. The\noffice of court administration shall, in accordance with paragraph (t)\nof subdivision two of section two hundred twelve of the judiciary law,\nensure that a court order of protection or temporary order of protection\nis translated in writing into the appropriate language for a party to a\nproceeding where the court has appointed an interpreter. The office of\ncourt administration shall ensure that the standard language of the\noffice of court administration order of protection and temporary order\nof protection forms shall be translated in writing in the languages most\nfrequently used in the courts of each judicial department in accordance\nwith paragraph (t) of subdivision two of section two hundred twelve of\nthe judiciary law. A copy of the written translation shall be given to\neach party in the proceeding, along with the original order or temporary\norder of protection issued in English. A copy of this written\ntranslation shall also be included as part of the record of the\nproceeding. The court shall read the essential terms and conditions of\nthe order aloud on the record and direct the court appointed interpreter\nto interpret the same terms and conditions. Such written translation or\ninterpretation shall not affect the validity or enforceability of the\norder. In every case a party to a proceeding shall be provided with an\nEnglish copy of any court order of protection or temporary order of\nprotection issued. The authority provided herein shall be in addition to\nand shall not be deemed to diminish or reduce any rights of the parties\nunder existing law.\n 2. An order of protection entered pursuant to this subdivision shall\nbear in a conspicuous manner, on the front page of said order, the\nlanguage "Order of protection issued pursuant to section two hundred\nfifty-two of the domestic relations law". The order of protection shall\nalso contain the following notice: "This order of protection will remain\nin effect even if the protected party has, or consents to have, contact\nor communication with the party against whom the order is issued. This\norder of protection can only be modified or terminated by the court. The\nprotected party cannot be held to violate this order nor be arrested for\nviolating this order.". The absence of such language shall not affect\nthe validity of such order. The presentation of a copy of such an order\nto any peace officer acting pursuant to his or her special duties, or\npolice officer, shall constitute authority, for that officer to arrest a\nperson when that person has violated the terms of such an order, and\nbring such person before the court and, otherwise, so far as lies within\nthe officer's power, to aid in securing the protection such order was\nintended to afford.\n 2-a. If the court that issued an order of protection or temporary\norder of protection under this section or warrant in connection thereto\nis not in session when an arrest is made for an alleged violation of the\norder or upon a warrant issued in connection with such violation, the\narrested person shall be brought before a local criminal court in the\ncounty of arrest or in the county in which such warrant is returnable\npursuant to article one hundred twenty of the criminal procedure law and\narraigned by such court. Such local criminal court shall order the\ncommitment of the arrested person to the custody of the sheriff, admit\nto, fix or accept bail, or release the arrested person on his or her\nrecognizance pending appearance in the court that issued the order of\nprotection, temporary order of protection or warrant. In making such\norder, such local criminal court shall consider the bail\nrecommendations, if any, made by the supreme or family court as\nindicated on the warrant or certificate of warrant. Unless the\npetitioner or complainant requests otherwise, the court, in addition to\nscheduling further criminal proceedings, if any, regarding such alleged\nfamily offense or violation allegation, shall make such matter\nreturnable in the supreme or family court, as applicable, on the next\nday such court is in session.\n 3. An order of protection entered pursuant to this subdivision may be\nmade in the final judgment in any matrimonial action, or by one or more\norders from time to time before or subsequent to final judgment, or by\nboth such order or orders and the final judgment. The order of\nprotection may remain in effect after entry of a final matrimonial\njudgment and during the minority of any child whose custody or\nvisitation is the subject of a provision of a final judgment or any\norder. An order of protection may be entered notwithstanding that the\ncourt for any reason whatsoever, other than lack of jurisdiction,\nrefuses to grant the relief requested in the action or proceeding.\n 4. No order of protection may direct any party to observe conditions\nof behavior unless: (i) the party requesting the order of protection has\nserved and filed an action, proceeding, counterclaim or written motion\nand, (ii) the court has made a finding on the record that such party is\nentitled to issuance of the order of protection which may result from a\njudicial finding of fact, judicial acceptance of an admission by the\nparty against whom the order was issued or judicial finding that the\nparty against whom the order is issued has given knowing, intelligent\nand voluntary consent to its issuance. The provisions of this\nsubdivision shall not preclude the court from issuing a temporary order\nof protection upon the court's own motion or where a motion for such\nrelief is made to the court, for good cause shown.\n 5. Except with respect to enforcement pursuant to a criminal\nprosecution under article two hundred fifteen of the penal law, the\nsupreme court may provide in an order made pursuant to this section that\nthe order may be enforced or modified only in the supreme court. If the\nsupreme court so provides, the family court may not entertain an\napplication to enforce or modify such an order of the supreme court.\n 6. In any such matrimonial action however, the court may not sua\nsponte consolidate actions or make, vacate or modify orders of\nprotection issued in family court involving the same parties except upon\nmotion and with notice to the non-moving party. Such non-moving party\nshall be given an opportunity to be heard.\n 7. A valid order of protection or temporary order of protection issued\nby a court of competent jurisdiction in another state, territorial or\ntribal jurisdiction shall be accorded full faith and credit and enforced\nas if it were issued by a court within the state for as long as the\norder remains in effect in the issuing jurisdiction in accordance with\nsections two thousand two hundred sixty-five and two thousand two\nhundred sixty-six of title eighteen of the United States Code.\n (a) An order issued by a court of competent jurisdiction in another\nstate, territorial or tribal jurisdiction shall be deemed valid if:\n (i) the issuing court had personal jurisdiction over the parties and\nover the subject matter under the law of the issuing jurisdiction;\n (ii) the person against whom the order was issued had reasonable\nnotice and an opportunity to be heard prior to issuance of the order;\nprovided, however, that if the order was a temporary order of protection\nissued in the absence of such person, that notice had been given and\nthat an opportunity to be heard had been provided within a reasonable\nperiod of time after the issuance of the order; and\n (iii) in the case of orders of protection or temporary orders of\nprotection issued against both a petitioner and respondent, the order or\nportion thereof sought to be enforced was supported by: (A) a pleading\nrequesting such order, including, but not limited to, a petition,\ncross-petition or counterclaim; and (B) a judicial finding that the\nrequesting party is entitled to the issuance of the order, which may\nresult from a judicial finding of fact, judicial acceptance of an\nadmission by the party against whom the order was issued or judicial\nfinding that the party against whom the order was issued had given\nknowing, intelligent and voluntary consent to its issuance.\n (b) Notwithstanding the provisions of article fifty-four of the civil\npractice law and rules, an order of protection or temporary order of\nprotection issued by a court of competent jurisdiction in another state,\nterritorial or tribal jurisdiction, accompanied by a sworn affidavit\nthat upon information and belief such order is in effect as written and\nhas not been vacated or modified, may be filed without fee with the\nclerk of the court, who shall transmit information regarding such order\nto the statewide registry of orders of protection and warrants\nestablished pursuant to section two hundred twenty-one-a of the\nexecutive law; provided, however, that such filing and registry entry\nshall not be required for enforcement of the order.\n 8. Any party moving for a temporary order of protection pursuant to\nthis subdivision during hours when the court is open shall be entitled\nto file such motion or pleading containing such prayer for emergency\nrelief on the same day that such person first appears at such court, and\na hearing on the motion or portion of the pleading requesting such\nemergency relief shall be held on the same day or the next day that the\ncourt is in session following the filing of such motion or pleading.\n 9. Upon issuance of an order of protection or temporary order of\nprotection or upon a violation of such order, the court shall make a\ndetermination regarding the suspension and revocation of a license to\ncarry, possess, repair or dispose of a firearm or firearms,\nineligibility for such a license and the surrender of firearms in\naccordance with sections eight hundred forty-two-a and eight hundred\nforty-six-a of the family court act, as applicable. Upon issuance of an\norder of protection pursuant to this section or upon a finding of a\nviolation thereof, the court also may direct payment of restitution in\nan amount not to exceed ten thousand dollars in accordance with\nsubdivision (e) of section eight hundred forty-one of such act;\nprovided, however, that in no case shall an order of restitution be\nissued where the court determines that the party against whom the order\nwould be issued has already compensated the injured party or where such\ncompensation is incorporated in a final judgment or settlement of the\naction.\n 9-a. The protected party in whose favor the order of protection or\ntemporary order of protection is issued may not be held to violate an\norder issued in his or her favor nor may such protected party be\narrested for violating such order.\n 10. All orders of protection and temporary orders of protection issued\npursuant to this section along with any associated papers that may be\nserved simultaneously shall be served in accordance with subdivision\nthree-a of section two hundred forty of this article.\n