In today’s blog post, I discuss what constitutes a family offense and how to file a Family Offense Petition and obtain an Order of Protection in Family Court.
How Family Offense Is Defined
In simple terms, a family offense is a crime committed against a relative or another person whom the perpetrator has an “intimate relationship” with. This could be someone you are married to, someone you used to be married to, or someone you have a child with. Some of the crimes included in the statutory definition of a family offense are harassment, disorderly conduct, stalking, and assault, to name a few.
Aggravated Family Offense
The aggravated family offense is when someone commits specified misdemeanors within five years of being convicted of another misdemeanor. The aggravated family offense is a class E felony. This was put into law in 2012 and was designed to limit repeat misdemeanor domestic violence offenders. In the past, those charged with misdemeanors could coast through the legal system with no real penalty. Those accused and convicted will now face felony charges and state prison sentences.
This also comes with new bail provisions which permit judges to consider the following:
- Any violations that go against Protection Orders
- The history of firearm use or possession by the accused
Suppose a family offense has been committed against you, in addition to calling the police and filing criminal charges. In that case, you can go to Family Court and file a Family Offense Petition. In that Petition, you would outline in detail the offense that was committed against you, who committed it, and the relief you are seeking. The most common form of relief sought is an Order of Protection.
What Is an Order of Protection?
An Order of Protection issued by the Family Court can either be a full Order of Protection or a limited Order of Protection. A full Order of Protection requires the perpetrator of the family offense to stay away from the victim of the offense (the Petitioner in the Court action) and refrain from any communication with the Petitioner, including phone calls, text messages, e-mails, Facebook contact and the like.
A limited Order of Protection does not require the perpetrator (or Respondent in the Family Court action) to stay away from the Petitioner or cease all contact with the Petitioner, but prohibits the Respondent from engaging in any further criminal activity toward the Petitioner. Many people call a limited Order of Protection a “be good” Order, because it essentially prohibits the Respondent from misbehaving with respect to the Petitioner.
Taking the Case to Family Court
When you first go to Family Court to file a Family Offense Petition, you will be seen by a Judge and, in many cases, be issued a temporary Order of Protection, which will then be served upon the Respondent. You will then be given a date to come back to Court, at which time the Respondent will have a chance to appear and respond to the allegations made in the Petition. The parties have the right to be represented by attorneys in family offense proceedings, and if they cannot afford attorneys and meet certain financial guidelines, the Court will assign attorneys to represent them.
Settle or Go To Trial?
The next step is to either resolve the family offense case with a settlement or proceed to trial. In many cases, Respondents will consent to Orders of Protection without admission, which means they do not admit the allegations against them in the Family Offense Petition but agree to an Order of Protection for a specified time. Parties also sometimes agree to what is called an adjournment in contemplation of dismissal, or ACD. If the parties consent to an ACD, the Family Offense Petition gets adjourned for a specified period, during which a temporary Order of Protection remains in place. If the Respondent does not violate the Order of Protection during the specified period, the Family Offense Petition gets dismissed.
A trial will be held if the parties cannot settle a family offense case. At that time, the Petitioner will have to prove to the Court through testimony and evidence that the allegations in the Family Offense Petition are true. If the Court finds the allegations true, and finds that the Respondent has committed a family offense, the Court will then decide how to dispose of the case, which will often include an Order of Protection.
While we hope you never find yourself in the above situation, if you have been the victim of a family offense and need to discuss your rights and options, don't hesitate to contact us at (845) 203-2287 for a free consultation.