How to Obtain an Order of Protection
If you are being abused obtaining an
Order of Protection is not a difficult task as long as it is done correctly. The first
thing that you have to do is go to your local Family Court and fill out a Petition. This is the most important step in the process because if you do not meet the necessary elements for such an Order than it will either not be granted or it may simply get dismissed at the initial Court appearance. Often a temporary Order of Protection is granted but ultimately is dismissed at the initial Court appearance as the petition is defective. How does that happen? Well not many individuals are familiar with the Criminal Penal Code or the Family Court Act and they simply are not aware of what needs to be plead in the Petition. That is why it is always best to hire an attorney who can help you fill out the petition correctly.
Who can file for an Order of Protection?
The laws have changed and have become more liberal in the past few years. The criteria that must be met has been expanded to include the following individuals:
(a) persons related by consanguinity or affinity;
(b) persons legally married to one another;
(c) persons formerly married to one another regardless of whether they still reside in the same household;
(d) persons who have a child in common regardless of whether such persons have been married or have lived together at any time; and
(e) persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time. Factors the court may consider in determining whether a relationship is an “intimate relationship” include but are not limited to: the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an “intimate relationship”.
What exactly defines an “intimate relationship” has been left for the Courts to determine on an individual case basis.
Criminal Context vs Family Court context
Although Article 8 of the Family Court which defines Orders of Protection is based off of the Penal Code there are differences. One of those differences are the burdens of proof as Criminal court requires proof beyond a reasonable doubt that the allegations were committed and the Family court’s burden is a fair preponderance of the evidence.
