The holidays are rolling in and while some people see this as “the most wonderful time of the year”, many others find it to be the most stressful time of the year. Between buying gifts on a budget, increased traffic, and being cooped up inside, emotions can run hot. These emotions, sometimes combined with a bit of alcohol, can lead to some pretty intense arguments, even with the people that we love most. Bearing that in mind, this time of year is a good time for people to be aware of temporary orders of protection (TOP’s), better known to some, as restraining orders.
TOP’s prevent the defendant (in a criminal case) or respondent (in a family court case) from having certain types of communication with the complainant or petitioner. TOP’s can also impact defendants/respondents in other ways, such as requiring them to surrender their firearms, impacting the custody of their children, and even preventing the defendant/respondent from returning to their home if they share it with the protected party. While TOP’s can be issued by both the criminal and family courts, we will focus on TOP’s issued by the criminal court for today.
One of the most common cases where criminal courts issue temporary orders of protection are domestic violence cases. Particularly around the holidays, we see the amount of family arguments rise dramatically, and when these arguments lead to violence, the police get called. People are often surprised that even though police respond after the situation has been diffused and no one has been hurt, an arrest still gets made. In fact, people are often shocked to discover that even though the complainant tells the officers that they don’t want their sibling/parent/spouse/cousin/etc., arrested, the police still walk out with their family member in handcuffs.
After the arrest is made, that person goes through the booking process, sometimes taking as long as 24 hours before they see an arraignment judge. Then, they are arraigned on the charges as a defendant, and more often than not, a temporary order of protection is issued. Most of the time this order is a full order of protection, although in rare circumstances where the complainant appears at the arraignment, the defendant’s attorney may be able to convince the prosecutor and the court to issue a limited order instead.
Bearing that in mind, it’s important to note, that temporary orders of protection generally come in two forms – full orders and limited orders.
Limited Order of Protection
Limited orders of protection have less requirements than the full order that will be discussed in a moment. Limited orders allow you to continue speaking with the complainant, seeing the complainant, living with the complainant, etc. What they do require though, is that you not assault, stalk, harass, or commit a number of other types of crimes against the complainant. Typically, they also require that you surrender all your firearms to the local precinct immediately. Depending on the circumstances, they may also contain requirements related to service animals, children, and other conditions.
Full Orders of Protection
Full orders on the other hand, are full stay away orders. This means that along with the requirements of a limited order, you also cannot contact the person named in the order, whatsoever. You cannot call them, text them, e-mail them, write them, Facebook message them, or reach out to them in any other way that you can possibly imagine. It even means that you cannot have any third-party contact. What’s that you ask? Well, that means that even asking a friend or family member to deliver a message to the protected person is a violation of the order. In fact, even if the complainant tries reaching out to the defendant, telling them that they don’t want the order of protection anymore, this can still result in a violation of the order of protection if the defendant begins talking to the complainant. The order of protection is a court order, and only the court can modify or vacate it.
In addition to being unable to contact the person named in the order, a full order of protection generally prevents the defendant from returning to a residence that they share with the complainant, even when that residence belongs to the defendant, and the defendant has nowhere else to go. The defendant must also stay away from the complainant’s place of employment and school. Furthermore, just as in the limited order, the court generally orders the defendant to surrender all of their firearms to a local precinct immediately.
Access orders are a kind of limited exception to the full order of protection. There are instances where defendants have personal property in the shared residence that they simply cannot live without (i.e. medication). In these instances, a defendant’s lawyer may ask the judge to issue an access order, which allows the defendant to enter the home WITH A POLICE ESCORT during a certain time period. I emphasize a police escort, because quite often people don’t realize this is a requirement and end up getting rearrested.
But what’s the big deal, it’s just a piece of paper?
The important thing to remember about any order of protection is that it is a court order. Disobeying it can result in being arrested and having additional criminal charges filed against you. Depending on the circumstances, these charges can be misdemeanor or felony charges.
If you are interested in seeing what orders of protection look like, the NY courts have copies of them posted here.
Disclaimer: This information is for general informational purposes only, and is not intended to create an attorney-client relationship. This information should not be taken as legal advice for any individual case or situation. Legal jurisdictions often differ on major and minor aspects of the law, and each legal situation is unique; requiring that all legal situations be addressed with competent legal counsel. My practice is based in New York, and the law of other jurisdictions may differ.