N.Y. Family Court Act § 842: Order of protection

§ 842. Order of protection. An order of protection under section eight

hundred forty-one of this part shall set forth reasonable conditions of

behavior to be observed for a period not in excess of two years by the

petitioner or respondent or for a period not in excess of five years

upon (i) a finding by the court on the record of the existence of

aggravating circumstances as defined in paragraph (vii) of subdivision

(a) of section eight hundred twenty-seven of this article; or (ii) a

finding by the court on the record that the conduct alleged in the

petition is in violation of a valid order of protection. Any finding of

aggravating circumstances pursuant to this section shall be stated on

the record and upon the order of protection. The court may also, upon

motion, extend the order of protection for a reasonable period of time

upon a showing of good cause or consent of the parties. The fact that

abuse has not occurred during the pendency of an order shall not, in

itself, constitute sufficient ground for denying or failing to extend

the order. The court must articulate a basis for its decision on the

record. The duration of any temporary order shall not by itself be a

factor in determining the length or issuance of any final order. Any

order of protection issued pursuant to this section shall specify if an

order of probation is in effect. Any order of protection issued pursuant

to this section may require the petitioner or the respondent:

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

employment of any other party, the other spouse, the other parent, or

the child, and to stay away from any other specific location designated

by the court, provided that the court shall make a determination, and

shall state such determination in a written decision or on the record,

whether to impose a condition pursuant to this subdivision, provided

further, however, that failure to make such a determination shall not

affect the validity of such order of protection. In making such

determination, the court shall consider, but shall not be limited to

consideration of, whether the order of protection is likely to achieve

its purpose in the absence of such a condition, conduct subject to prior

orders of protection, prior incidents of abuse, extent of past or

present injury, threats, drug or alcohol abuse, and access to weapons;

(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 eight hundred twelve of this article, or any

criminal offense against the 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 this proceeding or in any other proceeding or action under this

act or the domestic relations law;

(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 require the respondent to participate in a batterer's education

program designed to help end violent behavior, which may include

referral to drug and alcohol counselling, and to pay the costs thereof

if the person has the means to do so, provided however that nothing

contained herein shall be deemed to require payment of the costs of any

such program by the petitioner, the state or any political subdivision

thereof;

(h) to provide, either directly or by means of medical and health

insurance, for expenses incurred for medical care and treatment arising

from the incident or incidents forming the basis for the issuance of the

order;

(i) 1. 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 petitioner or a minor child

residing in the household.

2. "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;

(j) 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 subdivision, "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;

(k) 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 subdivision, "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

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

purposes of protection.

The court may also award custody of the child, during the term of the

order of protection to either parent, or to an appropriate relative

within the second degree. Prior to awarding custody pursuant to this

paragraph, the court shall direct a review pursuant to section six

hundred fifty-one of this act of the reports of the sex offender

registry established and maintained pursuant to section one hundred

sixty-eight-b of the correction law, reports of the statewide

computerized registry of orders of protection established and maintained

pursuant to section two hundred twenty-one-a of the executive law,

related decisions in court proceedings conducted pursuant to article ten

of this act, and all warrants issued pursuant to this act. Nothing in

this section gives the court power to place or board out any child or to

commit a child to an institution or agency.

Notwithstanding the provisions of section eight hundred seventeen of

this article, where a temporary order of child support has not already

been issued, the court may in addition to the issuance of an order of

protection pursuant to this section, issue an order for temporary child

support in an amount sufficient to meet the needs of the child, without

a showing of immediate or emergency need. The court shall make an order

for temporary child support notwithstanding that information with

respect to income and assets of the respondent may be unavailable. Where

such information is available, the court may make an award for temporary

child support pursuant to the formula set forth in subdivision one of

section four hundred thirteen of this act. Temporary orders of support

issued pursuant to this article shall be deemed to have been issued

pursuant to section four hundred thirteen of this act.

Upon making an order for temporary child support pursuant to this

subdivision, the court shall advise the petitioner of the availability

of child support enforcement services by the support collection unit of

the local department of social services, to enforce the temporary order

and to assist in securing continued child support, and shall set the

support matter down for further proceedings in accordance with article

four of this act.

Where the court determines that the respondent has employer-provided

medical insurance, the court may further direct, as part of an order of

temporary support under this subdivision, that a medical support

execution be issued and served upon the respondent's employer as

provided for in section fifty-two hundred forty-one of the civil

practice law and rules.

Notwithstanding the provisions of section eight hundred seventeen of

this article, where a temporary order of spousal support has not already

been issued, the court may, in addition to the issuance of an order of

protection pursuant to this section, issue an order directing the

parties to appear within seven business days of the issuance of the

order in the family court, in the same action, for consideration of an

order for temporary spousal support in accordance with article four of

this act. If the court directs the parties to so appear, the court shall

direct the parties to appear with information with respect to income and

assets, but a temporary order for spousal support may be issued pursuant

to article four of this act on the return date notwithstanding the

respondent's default upon notice and notwithstanding that information

with respect to income and assets of the petitioner or respondent may be

unavailable.

In any proceeding in which an order of protection or temporary order

of protection or a warrant has been issued under this section, the clerk

of the court shall issue to the petitioner and respondent and his or her

counsel and to any other person affected by the order a copy of the

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

copy of the order of protection or temporary order of protection is

transmitted to the local correctional facility where the individual is

or will be detained, the state or local correctional facility where the

individual is or will be imprisoned, and the supervising probation

department or the department of corrections and community supervision

where the individual is under probation or parole supervision.

Notwithstanding the foregoing provisions, an order of protection, or

temporary order of protection where applicable, may be entered against a

former spouse and persons who have a child in common, regardless of

whether such persons have been married or have lived together at any

time, or against a member of the same family or household as defined in

subdivision one of section eight hundred twelve of this article.

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.