Orders of Protection in New York Criminal Cases
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Put Out of Your Own Home Before You Said a Word
In New York, an order of protection is issued at arraignment in nearly every domestic violence, assault, and criminal contempt case, before you have told your side to anyone. If the judge issues a full stay-away order, you cannot go home, contact your spouse or partner, or in some cases see your children, starting that night. Violating it, even at the protected person's invitation, is a new crime.
Attorney Andrew DeLuca represents people on the receiving end of orders of protection across Saratoga, Warren, Washington, Fulton, and Montgomery Counties: getting orders modified so clients can go home and see their kids, defending violations, and fighting the underlying charge that produced the order in the first place.
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Full Stay-Away vs. Limited Orders
New York criminal courts issue two kinds of orders of protection, and the difference determines whether you can live your life while the case is pending.
Full (Stay-Away) Order
No contact of any kind: no visits, calls, texts, emails, social media contact, or messages passed through friends or family. You must stay away from the protected person's home, work, and school, even if the home is also yours.
Limited (Refrain-From) Order
Contact is allowed. The order requires you to refrain from assaulting, harassing, threatening, or intimidating the protected person. Couples can continue living together under a limited order.
Which one issues at arraignment often turns on what the judge hears in those first few minutes, which is exactly why walking into arraignment with your own attorney matters. Where a full order has already issued, the realistic goal is usually a prompt motion to convert it to a limited order.
What an Order of Protection Actually Does to Your Life
- Your home: a full order removes you from a shared residence regardless of whose name is on the lease or deed.
- Your children: if the children live with the protected person, a full order can cut off contact until the order is modified or Family Court sets a schedule.
- Your firearms: in specific circumstances, the court is required, not merely permitted, to order guns surrendered and any license suspended or revoked: a prior violent felony conviction, a prior willful violation of an order of protection involving injury or a weapon, a prior stalking conviction, or a court finding of a substantial risk that you would misuse a firearm.
- Your job: if you work with or near the protected person, a stay-away order can make your workplace off limits.
- Your record: the order is a court order in a criminal case, visible to police statewide through the registry, and any claimed violation results in arrest first and sorting-out later.
Only the Court Can Change It
The most common misunderstanding in these cases: the protected person cannot drop the order. It is the court's order, not theirs. Reconciliation, an apology, an invitation to come home, none of it changes the order's terms, and acting on an invitation is the single most common way people pick up a criminal contempt charge while their case is pending.
What actually works is a motion to modify. Your attorney presents the court with the reasons and a workable arrangement, the district attorney takes a position, the protected party's wishes are heard, and the judge decides. Courts grant modifications regularly, particularly for returning home, communicating about children, and custody exchanges. Until that signed modified order exists, the original terms control.
Violations Are a New Criminal Case
Contact that violates an order of protection is prosecuted as criminal contempt. Second-degree criminal contempt is a misdemeanor; where the violation involves threats, repeat conduct, or physical contact, it becomes first-degree criminal contempt, a felony. It does not matter who initiated the contact. A text message answered, a phone call accepted, a visit agreed to, all of it lands on the person the order restrains.
Violation cases also poison the original case. A defendant who complied with the order for six months negotiates from a very different position than one with a fresh contempt charge. If contact has already happened, get ahead of it with counsel rather than waiting for the arrest.
Criminal Court and Family Court Orders Can Run at the Same Time
Orders of protection issue from criminal court as part of a criminal case, and from Family Court in civil family offense proceedings. Many people in this region are dealing with both at once, sometimes with different terms, and compliance means following the stricter of the two. If there is a custody case running alongside your criminal case, the two need to be coordinated so that what happens in one does not damage the other. Related pages: Domestic Violence Defense, Assault, Stalking, What Happens After an Arrest.
Local Courts, Local Practice
Domestic violence arraignments happen in the city, town, and village courts across Saratoga, Warren, Washington, Fulton, and Montgomery Counties, often at night or on weekends within hours of the arrest. How readily full orders get converted to limited orders varies from court to court, and an attorney who appears in these courts regularly knows what each judge needs to see before saying yes.
Frequently Asked Questions
The protected person wants to drop the order of protection. Can they?
No. In a criminal case the order belongs to the court, not to the protected party. Only the judge can modify or lift it. The protected party can tell the district attorney and the court that they want it changed, and that carries real weight, but until the judge signs a modified order, the original terms are fully in force.
We live together. Where am I supposed to go?
A full stay-away order removes you from the shared home even if your name is on the lease or the deed. You are allowed to arrange a single police-escorted visit to collect essential belongings in most localities. One of the first things a defense attorney does in these cases is ask the court to convert a full stay-away order to a limited order so you can return home, and courts do grant that when the facts support it.
What happens if I violated the order?
Contact that violates an order of protection is a new crime, criminal contempt, and it gets charged separately from and on top of the original case. It also makes the original case harder to resolve. If a violation has already happened, do not wait for the arrest. Call an attorney now.
Can the order be changed so I can see my kids?
Often, yes. Courts regularly modify orders to allow contact for custody exchanges or communication about the children, especially where Family Court proceedings are running alongside the criminal case. This does not happen automatically. Your attorney has to request the modification and give the judge a concrete, workable arrangement.
How long does an order of protection last?
A temporary order lasts while the criminal case is pending and can be extended each time the case is adjourned. If the case ends in a conviction, current law allows a final order lasting up to 8 years for a felony, up to 5 years for a Class A misdemeanor, or up to 2 years for a lesser offense, measured from sentencing. If the case is dismissed or ends in acquittal, the order ends with it.
Get the Order Addressed, Not Just Endured
An order of protection is not something to wait out. It can be modified, it must not be violated, and the charge underneath it needs a defense. Attorney Andrew DeLuca offers free consultations on order of protection and domestic violence matters throughout the Capital Region.
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