§ 842 — Order of protection

New York § 842

• Jurisdiction: New York
• Law FCT: Family Court Act
• Part 4: Orders
• Art. 8: Family Offenses Proceedings

Text

§ 842. Order of protection. An order of protection under section eight\nhundred forty-one of this part shall set forth reasonable conditions of\nbehavior to be observed for a period not in excess of two years by the\npetitioner or respondent or for a period not in excess of five years\nupon (i) a finding by the court on the record of the existence of\naggravating circumstances as defined in paragraph (vii) of subdivision\n(a) of section eight hundred twenty-seven of this article; or (ii) a\nfinding by the court on the record that the conduct alleged in the\npetition is in violation of a valid order of protection. Any finding of\naggravating circumstances pursuant to this section shall be stated on\nthe record and upon the order of protection. The court may also, upon\nmotion, extend the order of protection for a reasonable period of time\nupon a showing of good cause or consent of the parties. The fact that\nabuse has not occurred during the pendency of an order shall not, in\nitself, constitute sufficient ground for denying or failing to extend\nthe order. The court must articulate a basis for its decision on the\nrecord. The duration of any temporary order shall not by itself be a\nfactor in determining the length or issuance of any final order. Any\norder of protection issued pursuant to this section shall specify if an\norder of probation is in effect. Any order of protection issued pursuant\nto this section may require the petitioner or the respondent:\n (a) to stay away from the home, school, business or place of\nemployment of any other party, the other spouse, the other parent, or\nthe child, and to stay away from any other specific location designated\nby the court, provided that the court shall make a determination, and\nshall state such determination in a written decision or on the record,\nwhether to impose a condition pursuant to this subdivision, provided\nfurther, however, that failure to make such a determination shall not\naffect the validity of such order of protection. In making such\ndetermination, the court shall consider, but shall not be limited to\nconsideration of, whether the order of protection is likely to achieve\nits purpose in the absence of such a condition, conduct subject to prior\norders of protection, prior incidents of abuse, extent of past or\npresent injury, threats, drug or alcohol abuse, and access to weapons;\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 eight hundred twelve of this article, or any\ncriminal offense against the 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 this proceeding or in any other proceeding or action under this\nact or the domestic relations law;\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 require the respondent to participate in a batterer's education\nprogram designed to help end violent behavior, which may include\nreferral to drug and alcohol counselling, and to pay the costs thereof\nif the person has the means to do so, provided however that nothing\ncontained herein shall be deemed to require payment of the costs of any\nsuch program by the petitioner, the state or any political subdivision\nthereof;\n (h) to provide, either directly or by means of medical and health\ninsurance, for expenses incurred for medical care and treatment arising\nfrom the incident or incidents forming the basis for the issuance of the\norder;\n (i) 1. 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 petitioner or a minor child\nresiding in the household.\n 2. "Companion animal", as used in this section, shall have the same\nmeaning as in subdivision five of section three hundred fifty of the\nagriculture and markets law;\n (j) 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 subdivision, "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 (k) 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 subdivision, "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 (l) to observe such other conditions as are necessary to further the\npurposes of protection.\n The court may also award custody of the child, during the term of the\norder of protection to either parent, or to an appropriate relative\nwithin the second degree. Prior to awarding custody pursuant to this\nparagraph, the court shall direct a review pursuant to section six\nhundred fifty-one of this act of the reports of the sex offender\nregistry established and maintained pursuant to section one hundred\nsixty-eight-b of the correction law, reports of the statewide\ncomputerized registry of orders of protection established and maintained\npursuant to section two hundred twenty-one-a of the executive law,\nrelated decisions in court proceedings conducted pursuant to article ten\nof this act, and all warrants issued pursuant to this act. Nothing in\nthis section gives the court power to place or board out any child or to\ncommit a child to an institution or agency.\n Notwithstanding the provisions of section eight hundred seventeen of\nthis article, where a temporary order of child support has not already\nbeen issued, the court may in addition to the issuance of an order of\nprotection pursuant to this section, issue an order for temporary child\nsupport in an amount sufficient to meet the needs of the child, without\na showing of immediate or emergency need. The court shall make an order\nfor temporary child support notwithstanding that information with\nrespect to income and assets of the respondent may be unavailable. Where\nsuch information is available, the court may make an award for temporary\nchild support pursuant to the formula set forth in subdivision one of\nsection four hundred thirteen of this act. Temporary orders of support\nissued pursuant to this article shall be deemed to have been issued\npursuant to section four hundred thirteen of this act.\n Upon making an order for temporary child support pursuant to this\nsubdivision, the court shall advise the petitioner of the availability\nof child support enforcement services by the support collection unit of\nthe local department of social services, to enforce the temporary order\nand to assist in securing continued child support, and shall set the\nsupport matter down for further proceedings in accordance with article\nfour of this act.\n Where the court determines that the respondent has employer-provided\nmedical insurance, the court may further direct, as part of an order of\ntemporary support under this subdivision, that a medical support\nexecution be issued and served upon the respondent's employer as\nprovided for in section fifty-two hundred forty-one of the civil\npractice law and rules.\n Notwithstanding the provisions of section eight hundred seventeen of\nthis article, where a temporary order of spousal support has not already\nbeen issued, the court may, in addition to the issuance of an order of\nprotection pursuant to this section, issue an order directing the\nparties to appear within seven business days of the issuance of the\norder in the family court, in the same action, for consideration of an\norder for temporary spousal support in accordance with article four of\nthis act. If the court directs the parties to so appear, the court shall\ndirect the parties to appear with information with respect to income and\nassets, but a temporary order for spousal support may be issued pursuant\nto article four of this act on the return date notwithstanding the\nrespondent's default upon notice and notwithstanding that information\nwith respect to income and assets of the petitioner or respondent may be\nunavailable.\n In any proceeding in which an order of protection or temporary order\nof protection or a warrant has been issued under this section, the clerk\nof the court shall issue to the petitioner and respondent and his or her\ncounsel and to any other person affected by the order a copy of the\norder of protection or temporary order of protection and ensure that a\ncopy of the order of protection or temporary order of protection is\ntransmitted to the local correctional facility where the individual is\nor will be detained, the state or local correctional facility where the\nindividual is or will be imprisoned, and the supervising probation\ndepartment or the department of corrections and community supervision\nwhere the individual is under probation or parole supervision.\n Notwithstanding the foregoing provisions, an order of protection, or\ntemporary order of protection where applicable, may be entered against a\nformer spouse and persons who have a child in common, regardless of\nwhether such persons have been married or have lived together at any\ntime, or against a member of the same family or household as defined in\nsubdivision one of section eight hundred twelve of this article.\n 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