A Modification Petition or a Petition to End a Family Offense Order can be requested under a number of different circumstances.
For instance, let’s say a respondent had a “stay-away” Order of Protection entered against them by someone they live with. This type of order requires the respondent to physically stay away from the plaintiff, as well as the plaintiff’s home, workplace, or school. Obviously, this poses logistical issues if the petitioner and the respondent share a home.
To address those issues, the respondent may decide to file a Modification Petition to challenge the “stay-away” portion of the Order of Protection, or to amend it such that they are not barred from their home. In the same situation, if the respondent simply wants to enter the home to retrieve their belongings, they may file a Modification Petition asking for the judge’s permission to do so without violating the Order.
Another common use of Modification Petitions has to do with something called a “usual terms” order of protection. A “usual terms” order bars the respondent from committing certain standard family offenses against the petitioner. In some cases, behaviors escalate and circumstances change, and the petitioner may request a Modification Petition to add additional protections (like as a no-contact provision or a stay-away provision) to their Order.
A petitioner may also ask for certain provisions to be made more specific. For instance, let’s say the petitioner’s original Order had a no-contact provision, but the respondent simply started using a third party to contact the petitioner instead. In that case, the petitioner may file a modification petition asking that the court change the order and bar third-party communication as well.
Those are among the most common reasons to file a modification petition. Once a final order of protection has been issued, there is a wide variety of methods either party can use to get back into court to modify the order.
New York State law also provides a way for petitioners/victims of family offenses to extend the length of an order of protection. For example, if a petitioner has an Order of Protection that was entered into for one year, and they feel that they need protection beyond that year, they can file a petition to extend the Order.
Usually, there has to be some kind of factual basis to extend an order of protection. When requesting an extension, the petitioner will be asked to present their reasoning for the extension, as well as any evidence. The court will hear the petitioner’s case, and if they feel that the petitioner has stated a good factual basis on which to extend the Order, they will do so.
What Does The Court Consider When Determining Whether To Modify The Terms Of A Protection Order In New York Family Court?
When considering whether to modify the terms of a protection order, the court will be looking at a number of factors.
First, they will be looking at the factual basis stated as to why the Order needs to be modified. Let’s use the example of the person with a “stay away” Order of Protection to illustrate this point. Let’s say the respondent comes to court with a Modification Petition asking to remove the “stay away” provision in the Order of Protection against them. They may argue the “stay away” portion excludes them from their own home and should be removed on that basis.
While the Judge in this case is obliged to consider the argument and evidence presented by the respondent, they will always want to make very sure the reasoning is sound and actually justifies removing that portion of the Order. They will be especially careful if there has not yet been a trial on the issue, because there is no precedent of behavior or rulings to look back on.
Many times, if a Judge has already excluded someone from a specific activity or area, they will be hesitant to remove that restriction. Unless the respondent can convincingly argue they will literally be out on the street if they aren’t allowed back into their home, it is unlikely a Judge will lift the “stay-away” portion of the Order of Protection. Instead, the Judge will usually say that the respondent’s best remedy is to seek an expedited trial on the family offense issue. It is the court’s responsibility to protect vulnerable people, and in this case, they will often prioritize the protection of victim or alleged victim (who stated that they do not feel safe with the respondent in the house with them).
If the court has already found the respondent was guilty of committing a family offense, their request to modify or amend the Order of Protection against them will be examined through that lens. Specifically, the court will look at the factual bases of the request, and will consider what (if anything) has changed since the Order of Protection was entered into in the first place.
For instance, if the respondent has taken steps to address their behavior and improve the situation, that will be considered. They may be able to show s/he has gone to counseling, for example, or attended a batterer’s program or an anger management program. If substance abuse was an issue, they can show they have completed rehab and/or stayed clean and sober. Generally, the court will be looking at what have they done to change the circumstances that gave rise to the original Order of Protection. They will then try to discern whether those changes warrant some kind of modification of the Order.
Obviously, if a victim is petitioning the court to modify their Order of Protection, the court will still want to monitor and examine the situation so as to make sure that the victim is not acting under duress, or otherwise being coerced or pressured to request the modification. If the court feels the victim is acting under duress, coercion, or pressure, then they may make a referral to the District Attorney’s office and/or Protective Services Child to make sure everyone (including children, if relevant) will continue to be safe and protected.
What Happens If Either Party Violates The Terms Of A Protection Order In New York Family Court?
Family offense petitions are only generally in favor of the victim, meaning they are meant to restrict the actions of one party (the offender) rather than both parties. There aren’t many situations in which a victim would be found by the court to have violated the Order of Protection taken out to protect them.
Let’s say, for example, that there is an Order of Protection with a no-contact provision taken out by the victim to protect them from their ex-spouse. If the victim contacts the alleged offender, the victim would not be held liable by the court. The court would only be concerned if they felt the victim was putting children at risk of harm by contacting the alleged offender. If the court feels children are being put in danger, they do have the ability to ask CPS to investigate the situation and discern whether the children are being harmed. That’s virtually the only scenario in which the court might take action against the victim for “violating” the Order of Protection.
The alleged offender, on the other hand, is subject to the restrictions of the Order. They face many repercussions for potential violations of the Order. If they violate one or more terms of the Order, they can have the police called on them and can be arrested. As mentioned previously, the victim can also file a violation petition against them, which can lead to incarceration for up to 6 months.
For more information on Modification of an Order of protection in NY, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling Call (347) 797-1188 | (914) 362-3080 Now To Schedule A 20-minute Case Assessment Or Full 50-minute Case Strategy Consultation! today.
Call Now To Schedule A 20-minute Case Assessment
Or Full 50-minute Case Strategy Consultation!
(347) 797-1188 | (914) 362-3080