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Family Offense

Family Offense
O PETITION

A family offense petition is filed when a family member claims that another family member committed one of the following acts against another family member:

  • Disorderly conduct
  • Harassment
  • Aggravated harassment
  • Menacing
  • Reckless endangerment
  • Assault or attempted assault
  • Stalking
  • Criminal mischief

For the purpose of filing a family offense petition, "family members" are defined as individuals related by blood or marriage, individuals who were formerly married, or individuals who are unrelated but have a child together.

On the day a family offense petition is filed, the petitioner has the right to an immediate court appearance.

If there is "good cause", the judge may issue a temporary order of protection and/or a temporary order of child support. The temporary order of protection lasts until the date the respondent or alleged abuser is scheduled to appear in court.

The judge will set this return date and issue a summons for the respondent to appear. If the petitioner is in imminent danger, the judge can issue a warrant for the respondent to be brought to court.

The respondent may admit or deny the allegations described in the petition or simply consent to the entry of the order of protection.

If Family Court is not in session, the petitioner may obtain an order of protection from Criminal Court if the circumstances so warrant.

If the respondent denies the allegations, a fact-finding hearing is held to determine if the allegations in the petition are true.

If the judge determines that the allegations have been proven, a dispositional hearing is held. Before this second hearing takes place, the court may adjourn in order to make inquiries into the surroundings, conditions, and capacities of the individuals involved.

If the judge determines that the allegations have not been proven, the case is dismissed.

If the allegations are proven and a dispositional hearing is held, the judge will issue a dispositional order which may include any of the following:

  • Suspending judgment for 6 months
  • Placing the respondent on probation for up to 1 year and requiring the respondent to participate in a batterer's education program which may include alcohol and/or drug treatment, and require the respondent to pay the costs of the program
  • Requiring the respondent to pay restitution of up to $10,000
  • Making a final order of protection that may be effective for up to 2 years, or up to 5 years with a finding by a judge of aggravating circumstances

A final order of protection may include the requirement that the respondent:

  • Stay away from the petitioner and any children involved
  • Pay reasonable counsel fees of the petitioner
  • Participate in a batterer's education program
  • Pay petitioner's medical bills for injuries sustained as a result of the abuse
  • Stay away from the home, school, or place of employment of the petitioner and any children involved
  • Refrain from committing additional family offenses or acts that endanger the welfare of other family members
  • Be permitted to remove personal property from a shared residence at a time designated by the court
  • Be permitted to visit with any children at court designated times and places
  • Refrain from intentionally injuring or killing, without justification, any companion animal the respondent knows to be owned, possessed, leased, kept, or held by the petitioner or a minor child residing in the household.

Violations of Protection Orders:If the respondent violates the order of protection, the petitioner can file a violation petition.

  • If the violation is proven, the order of protection can be modified, and the respondent sentenced for up to 6 months in jail for each act committed in violation of the order.
  • Depending upon the severity of the violation, the case may be transferred to a criminal court where the respondent may face a substantially longer jail sentence.
  • In addition, the court can revoke or suspend the respondent's license to carry a firearm. Moreover, the court can arrange for the surrender and disposal of any firearm the respondent possesses where there is a risk that it will be used to harm the petitioner or where the violation of the order involved violent behavior.

A petitioner has the right to pursue a family offense case in either Criminal Court or Family Court, or both. In Family Court, the judge can issue an order of protection, among other remedies, as well as determine temporary custody and visitation of any children who may be involved. In Criminal Court, the judge can impose more severe sentences, including jail time. In addition, a family offense is considered a criminal act in Criminal Court, which means that the prosecutor can move ahead with a case without the consent or cooperation of the petitioner or abused individual.

In both courts, respondents have the right to an attorney. Petitioners have the right to an attorney in Family Court. In Criminal Court, the assistant district attorney represents the petitioners.

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