The State of New York defines family offenses as the commission of certain violent and threatening crimes when committed between people who share one of the specified relationships. In addition to facing criminal prosecution, a person who commits a family offense may be named in a restraining order, referred to as an order of protection.
The following crimes are considered family offenses when committed between current or former spouses, parent and child, or members of the same family or household:
The following persons are considered “members of the same family or household”:
In determining whether two people are in an intimate relationship, the court may consider the following factors: the type of the relationship, the frequency of the couple’s interaction, and the duration of the relationship. The court may consider additional factors, and the relationship does not have to be sexual in order to be considered intimate. (N.Y. Family Court Act § 812)
Sentences for conviction of a family offense can vary in severity. For example, third-degree assault is a Class A misdemeanor, punishable by up to a year in jail and a $1,000 fine, while first-degree strangulation is a Class C felony, punishable by up to 15 years in prison and a $5,000 fine.
When a person is charged in criminal court with committing any crime against a current or former spouse, a family member, a parent or child, or a member of the same household, a court may issue a temporary order of protection. A victim may also file a petition for an order of protection in a family court proceeding. A victim can file a petition for an order of protection even if the offender has not been arrested. After reviewing the petition and asking the victim questions, the judge will issue the temporary order upon determining that the victim is in need of an order of protection. A temporary order of protection may be issued ex parte, that is, without notifying the offender prior to the judge issuing the order.
A temporary order of protection may contain provisions that:
Once a court issues a temporary order of protection, it schedules a hearing; the defendant receives a copy of the petition and order and a summons for the hearing. After hearing evidence from both the victim and the defendant, the judge will issue an order of protection if sufficient evidence exists to justify a longer-term order of protection. An order of protection issued in a family court proceeding can last up to two years, unless the court determines that there is an aggravating condition or that the conduct in question violates an existing order of protection, in which case the court can make the order valid for up to five years. (N.Y. Family Court Act § 842)
Criminal court proceedings can result in longer orders of protection. If the defendant is convicted of a family violence offense that is a felony, the order of protection will last eight years from the date the sentence is entered, or eight years from the expiration of the sentence. Orders of protection based on a felony conviction will last either five years or three years from the expiration of the sentence, whichever is greater.
For a Class A misdemeanor, the order will last five years from the date of sentencing or three years from the expiration of a term of imprisonment, whichever is greater. The duration of an order of protection in the case of a Class A misdemeanor conviction cannot exceed three years. A conviction for any crime other than a felony or Class A misdemeanor results in an order of protection lasting either two years from sentencing or two years from the expiration of a term of incarceration, whichever is greater. An order issued as the result of such a conviction cannot exceed one year. (N.Y. Crim. Proc. Law § 530.12)
Warning and Resources for Victims
If you're being abused by a family or household member, you can find help by contacting the National Domestic Violence Hotline or one of the other organizations on this list of resources for crime victims. However, remember to consider how private your computer, Internet, and phone use are. Some victims, for instance, might use the same computer or device as the abuser or might have a phone plan that allows the abuser to see the calls they make and receive. Other kinds of technology, like home security cameras and GPS in phones and cars, can also allow for monitoring by the abuser. Consider what you can do to prevent your abuser from learning that you’re doing research or seeking help, including using a friend's device or a computer at a library; at the very least, clear your search history after you've been researching online.
And if you aren't eligible to get an order of protection but you're worried that someone you know poses a risk of gun violence, you may be able to get an extreme risk protection order under New York's red flag law.
If you criminally charged with a family violence offense, you should speak with an attorney immediately. You should also speak with an attorney if you are accused in a petition for an order of protection of committing a family offense, even if you have not been arrested or charged with a crime. An order of protection can affect your property and parental rights as well as impose financial obligations, while a criminal conviction can result in incarceration as well as the court issuing an order of protection. An attorney will evaluate the accusations against you and provide invaluable guidance while working to protect your rights and ensure the best outcome.