Orders of Protection in Custody Cases

Orders of Protection in Custody Cases

The sphere of family law is vast and complex, with many complicated branches, from divorce to mediation, child custody cases and more. It is the field of the law that deals with matters of the family and domestic relations, which naturally makes it an emotional and significantly intricate area. Sometimes, divorce and custody cases do not go entirely according to plan, and in these instances, individuals may find that they need to take steps to protect themselves and their family from physical or mental harm. On the other hand, one may find themselves defending against an order of protection requested by the other side. When allegations involving the safety of children arise, s orders of protection might become at issue in a custody case. Darren M. Shapiro, Esq., an attorney with years of training and experience in the realm of family law, has the knowledge and skill to help clients successfully navigate through this difficult process.

An order of protection may be issued through the Supreme Court, or the Family court as part of a divorce or child custody case. The fundamental purpose of an order of protection is to restrict or limit the behavior that one person exhibits towards another or to stay away. For good cause, the Family Court may allow for a temporary order of protection to be issued, which requires an individual to stay away from the other party and/or their children or to refrain from certain acts to the other party and/or the children until further order of the court while the case is pending. Legally, the length of time wherein a temporary order remains valid does not need to be considered when determining the duration of a final order of protection.

A final, or permanent order of protection may be issued as part of a custody case, or divorce as a condition of the judgment, and like all legal matters concerning children, whether the order is issued will depend largely on what is determined to be most suitable for the child’s best interests.

What an Order of Protection Does

Obtaining or defending against an order of protection can be a difficult and emotional process. Accusations from or against other family members can cause emotions to run high. Family members struggle with the idea of taking legal action against someone they used to be particularly close to, such as a spouse or former spouse. For someone already dealing with the anxiety of a custody case or divorce, worrying about keeping family members safe or an infringement on one’s right to see people and to do certain things can be particularly stressful. At this office we understand how important winning your order of protection struggle can be.

When an individual requests an order of protection as part of a divorce or custody case, that order can dictate certain aspects of the opposing party’s behavior. For example, the other party may be required to abide by particular restrictions, such as:

• Taking educational classes
• Staying away from the other side or child
• Refraining from activities that put the welfare of the child at risk
• Paying for medical care or treatment that stem from the reason for the order of protection
• Paying the fees for the lawyer of the protected party
• Refraining from harming the pet of a parent of child
• Returning information or identification belonging to the other party, such as passports or drivers licenses
• Observing other conditions put in place as protective measures

The orders of protection involved in custody cases apply to family members. Individuals who can be defined as “family” according to law include former spouses, spouses, household members, and people that have had a child together, among other circumstances.

How do Custody Case Orders of Protection Differ from Family Offense Petition Orders?

In orders of protection that are issued as part of a custody case, a family offense does not have to be alleged or proven. On the other hand, a family offense petition order of protection requires family offenses (violations and crimes under the Penal law) to be alleged and proven, if there is not an agreement to put an order of protection in place, for the final order of protection to be issued.

There are a numbers of behaviors that are defined as a “family offense”, but in any case, the courts should exercise some discretion in making a final decision. The choice to grant or deny an order of protection is subject to appellate review, and no individual should have an order levied against them without a proper basis. In other words, allegations should not be enough by themselves to convince a court.

Furthermore, in a family offense petition, the burden of proof is also different. For example, for a judge to issue a final order of protection during a family offense petition, the allegations brought against the other party have to be proven via the preponderance of evidence. In simple terms, this means that the allegations made against that individual need to be seen as more likely to be true, than false.

In the case of child custody cases, the burden of proof is centered on the best interests of the children. For example, an appellate court in the past has held that the tension held between two involved parties adversely effected the state of the children involved to such an extent that an order of protection became justified.

Finally, the duration of time that the order of protection lasts for is also largely different. The orders of protection that are issued in Family offense cases typically last for up to two years, and can be extended if there is a specific violation of the order of protection, or circumstances have arisen that can be defined as “aggravated”, such as threats, the use of a weapon, physical injury or past violations. The order of protection that is issued as part of a custody case, or the judgment made in a divorce, has no time limitation. It is possible for the court to decide that an order of protection should remain in place for the best interests of the child, until that child has turned eighteen years old.

Acquiring Representation

As with most of the areas involved in family and matrimonial laws, there are various complicated nuances to consider when it comes to order of protection cases. This is why it is important for people to seek the help and guidance of professionals like Darren M. Shapiro, Esq. who have the knowledge and skill to guide them through the process. To learn more, don’t hesitate to call for a free initial consultation – we always welcome the opportunity to offer our assistance.