Family Law Blog

Protecting Yourself From Danger: How to Get an Order of Protection

November 13, 2009

Filed under: Order of Protection — Tags: , , , , — Burt & Feldman @ 1:58 pm

lock and key

by Elizabeth Feldman

If you are a victim of domestic violence, you may need an Order of Protection (OOP).  An OOP may be issued before, during or after a divorce.  You must believe, and convince the Court, that there is a threat of violence, danger or harm to you from your spouse, significant other (or a few other enumerated relationships).

You must first decide where to request an OOP.  If you have not yet filed for divorce (or separation or paternity), you MAY be able to request that a Justice Court or City Court issue an OOP.  If you are in the midst of a divorce, you will need to file in Superior Court.  In any case, depending upon the timing, most OOPs eventually get transferred to Superior Court.

The process of getting an OOP is personal and involved. You will need to go to the courthouse and fill out the form.  You can bring a lawyer, but you will need to fill out the form and speak to the judge or commissioner.  The form will ask for specifics, including any evidence of any past threats, assaults, interference, harm, harassment, stalking, damage, trespass, etc., and/or any future potential threats.  The form will ask if you want anybody else included in the OOP, such as a child.  It is usually difficult to include other adult third parties, as they will need to get their own orders.  If you, however, believe that your child is in danger, you may ask the court to include him/her and you will need to state specific reasons.  Sometimes, it can be more difficult to include children.  The form will also ask if you want “exclusive use” of the residence, if you feel it necessary to preclude the defendant (your spouse, significant other, etc.) from returning to the house.  The request may also ask if you want some kind of contact with the defendant, such as phone, e-mail or text.  Often having some way of communicating, especially about children, such as e-mail, where there is a written record, can be helpful.  Finally, the request will ask if you believe the defendant possesses any weapons or guns.

Once the Judge (or commissioner) grants your OOP, you will need to have it served.  A lawyer can help with this process, or the court can tell you how to utilize law enforcement or a process server.  Remember, you CANNOT serve the order yourself.

Once the order is served, the defendant can request a hearing.  The courts usually set the hearing relatively quickly, usually within about a week.  You can bring a lawyer to the hearing.  At the hearing, you will have the “burden” of proving that the OOP should remain in place.  You will be sworn and testify as to the statements that you included in your request for the OOP.  You should be as specific as you can.  The defendant may or may not testify.  The Court may continue the OOP, modify it or dismiss it.

If you believe that you or your children are in danger you will want to take whatever legal steps available to protect yourself.  We can help you get the protection you need. Remember that an OOP is different than temporary orders. If you have questions about either of these, please contact our office.

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