N.Y. Domestic Relations Law § 252: Effect of pendency of action for divorce, separation or annulment on petition for order of protection

§ 252. Effect of pendency of action for divorce, separation or

annulment on petition for order of protection. 1. In an action for

divorce, separation or annulment or in an action to declare the nullity

of a void marriage in the supreme court, the supreme court or the family

court shall entertain an application for an order of protection or

temporary order of protection by either party. Such an order may require

any party:

(a) to stay away from the home, school, business or place of

employment of the child, other parent or any other party, and to stay

away from any other specific location designated by the court;

(b) to permit a parent, or a person entitled to visitation by a court

order or a separation agreement, to visit the child at stated periods;

(c) to refrain from committing a family offense, as defined in

subdivision one of section 530.11 of the criminal procedure law, or any

criminal offense against such child or against the other parent or

against any person to whom custody of the child is awarded or from

harassing, intimidating or threatening such persons;

(d) to permit a designated party to enter the residence during a

specified period of time in order to remove personal belongings not in

issue in a proceeding or action under this chapter or the family court

act;

(e) to refrain from acts of commission or omission that create an

unreasonable risk to the health, safety or welfare of a child;

(f) to pay the reasonable counsel fees and disbursements involved in

obtaining or enforcing the order of the person who is protected by such

order if such order is issued or enforced;

(g) to refrain from intentionally injuring or killing, without

justification, any companion animal the respondent knows to be owned,

possessed, leased, kept or held by the person protected by the order or

a minor child residing in such person's household. "Companion animal,"

as used in this section, shall have the same meaning as in subdivision

five of section three hundred fifty of the agriculture and markets law;

(h) (1) to promptly return specified identification documents to the

protected party, in whose favor the order of protection or temporary

order of protection is issued; provided, however, that such order may:

(A) include any appropriate provision designed to ensure that any such

document is available for use as evidence in this proceeding, and

available if necessary for legitimate use by the party against whom such

order is issued; and (B) specify the manner in which such return shall

be accomplished.

(2) For purposes of this paragraph, "identification document" shall

mean any of the following: (A) exclusively in the name of the protected

party: birth certificate, passport, social security card, health

insurance or other benefits card, a card or document used to access

bank, credit or other financial accounts or records, tax returns, any

driver's license, and immigration documents including but not limited to

a United States permanent resident card and employment authorization

document; and (B) upon motion and after notice and an opportunity to be

heard, any of the following, including those that may reflect joint use

or ownership, that the court determines are necessary and are

appropriately transferred to the protected party: any card or document

used to access bank, credit or other financial accounts or records, tax

returns, and any other identifying cards and documents;

(i) (1) to refrain from remotely controlling any connected devices

affecting the home, vehicle or property of the person protected by the

order.

(2) For purposes of this paragraph, "connected device" shall mean any

device, or other physical object that is capable of connecting to the

internet, directly or indirectly, and that is assigned an internet

protocol address or bluetooth address; and

(j) to observe such other conditions as are necessary to further the

purposes of protection.

1-a. Translation and interpretation of orders of protection. The

office of court administration shall, in accordance with paragraph (t)

of subdivision two of section two hundred twelve of the judiciary law,

ensure that a court order of protection or temporary order of protection

is translated in writing into the appropriate language for a party to a

proceeding where the court has appointed an interpreter. The office of

court administration shall ensure that the standard language of the

office of court administration order of protection and temporary order

of protection forms shall be translated in writing in the languages most

frequently used in the courts of each judicial department in accordance

with paragraph (t) of subdivision two of section two hundred twelve of

the judiciary law. A copy of the written translation shall be given to

each party in the proceeding, along with the original order or temporary

order of protection issued in English. A copy of this written

translation shall also be included as part of the record of the

proceeding. The court shall read the essential terms and conditions of

the order aloud on the record and direct the court appointed interpreter

to interpret the same terms and conditions. Such written translation or

interpretation shall not affect the validity or enforceability of the

order. In every case a party to a proceeding shall be provided with an

English copy of any court order of protection or temporary order of

protection issued. The authority provided herein shall be in addition to

and shall not be deemed to diminish or reduce any rights of the parties

under existing law.

2. An order of protection entered pursuant to this subdivision shall

bear in a conspicuous manner, on the front page of said order, the

language "Order of protection issued pursuant to section two hundred

fifty-two of the domestic relations law". The order of protection shall

also contain the following notice: "This order of protection will remain

in effect even if the protected party has, or consents to have, contact

or communication with the party against whom the order is issued. This

order of protection can only be modified or terminated by the court. The

protected party cannot be held to violate this order nor be arrested for

violating this order.". The absence of such language shall not affect

the validity of such order. The presentation of a copy of such an order

to any peace officer acting pursuant to his or her special duties, or

police officer, shall constitute authority, for that officer to arrest a

person when that person has violated the terms of such an order, and

bring such person before the court and, otherwise, so far as lies within

the officer's power, to aid in securing the protection such order was

intended to afford.

2-a. If the court that issued an order of protection or temporary

order of protection under this section or warrant in connection thereto

is not in session when an arrest is made for an alleged violation of the

order or upon a warrant issued in connection with such violation, the

arrested person shall be brought before a local criminal court in the

county of arrest or in the county in which such warrant is returnable

pursuant to article one hundred twenty of the criminal procedure law and

arraigned by such court. Such local criminal court shall order the

commitment of the arrested person to the custody of the sheriff, admit

to, fix or accept bail, or release the arrested person on his or her

recognizance pending appearance in the court that issued the order of

protection, temporary order of protection or warrant. In making such

order, such local criminal court shall consider the bail

recommendations, if any, made by the supreme or family court as

indicated on the warrant or certificate of warrant. Unless the

petitioner or complainant requests otherwise, the court, in addition to

scheduling further criminal proceedings, if any, regarding such alleged

family offense or violation allegation, shall make such matter

returnable in the supreme or family court, as applicable, on the next

day such court is in session.

3. An order of protection entered pursuant to this subdivision may be

made in the final judgment in any matrimonial action, or by one or more

orders from time to time before or subsequent to final judgment, or by

both such order or orders and the final judgment. The order of

protection may remain in effect after entry of a final matrimonial

judgment and during the minority of any child whose custody or

visitation is the subject of a provision of a final judgment or any

order. An order of protection may be entered notwithstanding that the

court for any reason whatsoever, other than lack of jurisdiction,

refuses to grant the relief requested in the action or proceeding.

4. No order of protection may direct any party to observe conditions

of behavior unless: (i) the party requesting the order of protection has

served and filed an action, proceeding, counterclaim or written motion

and, (ii) the court has made a finding on the record that such party is

entitled to issuance of the order of protection which may result from a

judicial finding of fact, judicial acceptance of an admission by the

party against whom the order was issued or judicial finding that the

party against whom the order is issued has given knowing, intelligent

and voluntary consent to its issuance. The provisions of this

subdivision shall not preclude the court from issuing a temporary order

of protection upon the court's own motion or where a motion for such

relief is made to the court, for good cause shown.

5. Except with respect to enforcement pursuant to a criminal

prosecution under article two hundred fifteen of the penal law, the

supreme court may provide in an order made pursuant to this section that

the order may be enforced or modified only in the supreme court. If the

supreme court so provides, the family court may not entertain an

application to enforce or modify such an order of the supreme court.

6. In any such matrimonial action however, the court may not sua

sponte consolidate actions or make, vacate or modify orders of

protection issued in family court involving the same parties except upon

motion and with notice to the non-moving party. Such non-moving party

shall be given an opportunity to be heard.

7. A valid order of protection or temporary order of protection issued

by a court of competent jurisdiction in another state, territorial or

tribal jurisdiction shall be accorded full faith and credit and enforced

as if it were issued by a court within the state for as long as the

order remains in effect in the issuing jurisdiction in accordance with

sections two thousand two hundred sixty-five and two thousand two

hundred sixty-six of title eighteen of the United States Code.

(a) An order issued by a court of competent jurisdiction in another

state, territorial or tribal jurisdiction shall be deemed valid if:

(i) the issuing court had personal jurisdiction over the parties and

over the subject matter under the law of the issuing jurisdiction;

(ii) the person against whom the order was issued had reasonable

notice and an opportunity to be heard prior to issuance of the order;

provided, however, that if the order was a temporary order of protection

issued in the absence of such person, that notice had been given and

that an opportunity to be heard had been provided within a reasonable

period of time after the issuance of the order; and

(iii) in the case of orders of protection or temporary orders of

protection issued against both a petitioner and respondent, the order or

portion thereof sought to be enforced was supported by: (A) a pleading

requesting such order, including, but not limited to, a petition,

cross-petition or counterclaim; and (B) a judicial finding that the

requesting party is entitled to the issuance of the order, which may

result from a judicial finding of fact, judicial acceptance of an

admission by the party against whom the order was issued or judicial

finding that the party against whom the order was issued had given

knowing, intelligent and voluntary consent to its issuance.

(b) Notwithstanding the provisions of article fifty-four of the civil

practice law and rules, an order of protection or temporary order of

protection issued by a court of competent jurisdiction in another state,

territorial or tribal jurisdiction, accompanied by a sworn affidavit

that upon information and belief such order is in effect as written and

has not been vacated or modified, may be filed without fee with the

clerk of the court, who shall transmit information regarding such order

to the statewide registry of orders of protection and warrants

established pursuant to section two hundred twenty-one-a of the

executive law; provided, however, that such filing and registry entry

shall not be required for enforcement of the order.

8. Any party moving for a temporary order of protection pursuant to

this subdivision during hours when the court is open shall be entitled

to file such motion or pleading containing such prayer for emergency

relief on the same day that such person first appears at such court, and

a hearing on the motion or portion of the pleading requesting such

emergency relief shall be held on the same day or the next day that the

court is in session following the filing of such motion or pleading.

9. Upon issuance of an order of protection or temporary order of

protection or upon a violation of such order, the court shall make a

determination regarding the suspension and revocation of a license to

carry, possess, repair or dispose of a firearm or firearms,

ineligibility for such a license and the surrender of firearms in

accordance with sections eight hundred forty-two-a and eight hundred

forty-six-a of the family court act, as applicable. Upon issuance of an

order of protection pursuant to this section or upon a finding of a

violation thereof, the court also may direct payment of restitution in

an amount not to exceed ten thousand dollars in accordance with

subdivision (e) of section eight hundred forty-one of such act;

provided, however, that in no case shall an order of restitution be

issued where the court determines that the party against whom the order

would be issued has already compensated the injured party or where such

compensation is incorporated in a final judgment or settlement of the

action.

9-a. The protected party in whose favor the order of protection or

temporary order of protection is issued may not be held to violate an

order issued in his or her favor nor may such protected party be

arrested for violating such order.

10. All orders of protection and temporary orders of protection issued

pursuant to this section along with any associated papers that may be

served simultaneously shall be served in accordance with subdivision

three-a of section two hundred forty of this article.