As a social worker and court advocate I helped clients file dozens of orders of protections. You can file in Family Court as well as Criminal Court. At this time the United States has a limited definition of family, which does affect which court you will be able to file in. Please note: When discussing filing the order of protection, I will usually refer to abuse because in my personal experience, that has been the main cause of the filing.
Family Court is only for people who are married, divorced, or have never been married but have a child in common. If you are in a gay relationship, if one person gave birth, and the other has adopted the child, you can go to Family Court. If you are dating or engaged to the person you are filing against you must go to Criminal Court.
This can affect your case greatly. In Family Court you state facts, and the judge makes a judgment; which I will walk you thru momentarily. In Criminal Court you must prove abuse, stalking, etc., beyond a reasonable doubt. This means you must prove your case with not only statements but hard evidence. Criminal Court is more detailed, and difficult than Family Court procedures, so a lawyer is strongly recommended.
Family Court differs from state to state, as does the procedures, but this is a generic idea of what you will have to do when filing for an order of protection in Family Court.
Firstly, if you have ever called the police and have a police report, bring it with you. When the police fill out the report, do not let them talk you out of what happened. Many times a physical altercation, verbal abuse, and threats get watered down to “arguing” in police reports. In most states, you will be given an opportunity to write you own account. Write what actually happened; do not embellish, do not over edit.
Any pictures of physical abuse/bruises, damage to home/car/property, as well as abusive text messages/voice mails/emails/notes should be brought with you to court. When you go to Family Court you will most likely have to walk thru a mental detector, and have your bag checked. Don’t bring anything with you that you don’t want a court officer to see. Realize that getting wanded, (having the metal detector wand passed over you), is nothing personal. It’s for your safety and everyone else’s. It is helpful to bring a friend with you, in case you are nervous, and they can take notes that you can refer to later.
A majority of the time you can simply tell the court officer what you are there for and they’ll point you in the right direction. In New York, you ask for the Records Room. The person there will give you the proper forms to fill out. Many courts have information booklets with commonly asked questions. Some courts have advocates working in the building. Court advocates walk around the court houses looking for people who need help with paperwork, and/or who need some support. They can help walk you thru the papers and help you kill time, since there is a very good chance you will be in court, waiting for your turn, for most of the day.
After you fill out the paperwork you wait until you are called into the Petition Room. That is where you tell your account of what happened to someone who types it up for the judge to read. Most Petition Rooms will allow an advocate in with you, for support only, with your permission. Be sure to mention specifics, such as, if someone kicked you, were they barefoot, wearing work boots, etc. If you were hit, was it with an open hand, closed hand, was the person holding a weapon? One client I had was usually hit with an opened wire hanger. When I asked her if it was a closed hand, she said no, that he used a hanger. It was so common for her to be struck with a wire hanger, that she almost didn’t mention it to the Petition writer. That is something that the judge will take into account. You want to give the Petitioner a mental movie of what happened, because this is a document the judge reads.
After the Petition Room, you will sit and wait. If you are there for a large part of the day, the court might even break for lunch. Be back from lunch ten minutes before the rest of the court. It’s better to be early than late.
When the court officer calls your name, you will be brought into the courtroom, and swore in. If you don’t have a lawyer the judge will review your paperwork and ask you about wanting a lawyer. If you cannot afford one, you will be granted an 18B attorney, which is a court appointed attorney. If you don’t want an 18B, many judges will give you the card of local organizations that do pro-bono or sliding scale work. (Sliding scale is where the organization adjusts what you have to pay, by how much money you make.) If you did find a court advocate, they often can refer you to various law representation.
Be calm, and respectful when speaking with the judge, but make sure they know that you are in fear of the person you are filing against. There are two kinds of orders, an Exclusionary and a Non-Exclusionary. An Exclusionary Order will remove the person from your home, if they live there. A Non-Exclusionary lets the person stay in the home, but restricts they’re behavior. (Personally, I have no faith in Non-Exclusionary, since the person already is hurting you a paper telling him not to will not make a difference.)
Most of the time, for an Exclusionary Order, the judge will have the police serve and remove the person from the home, if you share one.
Only people 18 years of age and older may serve someone with an Order of Protection. It is recommended that you NOT serve the person, but have someone else do it. Most sheriffs offices do it for free. You should give the police the daily schedule of the person you are serving. If you do not serve the order, or have it served, it become invalid after the date on the temporary order. You must also have the affidavit filled out by the person who served it. If that is not done, it is invalid. If you do not go back to court for the return date your order becomes invalid. You are to keep one order of protection on you at all times, one must be kept in a safe place, and the last one is served to the person you are serving.
There are some organizations that will change the locks on your door, free of charge, with a copy of the order. Places such as, “Project Safe,” serves all five boroughs of New York.