Lawyers Manual - Unified Court System

230 Emily Ruben
Effective November 1, 2000, the New York State Legislature eliminated a
major distinction between Family Court and Supreme Court order of protection
practice. It amended Domestic Relations Law §§ 240(3) and 252 to mandate
that a party moving for an order of protection in Supreme Court, as in Family
Court, shall be entitled to file her motion or pleading on the same day she first
appears in court. Furthermore, the Supreme Court, like the Family Court, is now
required to hold a hearing on the motion for a temporary order of protection on
the same day or the next day that the court is in session.
The duration of a temporary order of protection, which is generally granted
ex parte, also differs, at least in New York City. Because of the Family Court’s
overwhelming case load and the fact the Family Court judge who issues a
temporary order of protection may not be the judge before whom the case will
be returnable, the return date for a hearing on the order of protection petition is
generally several weeks or even months in the future. If the petitioner has been
granted a temporary order, this is a positive factor, and in Family Court it is
likely to be granted if the allegations in the petition support a family offense.
If she is denied temporary relief, the long return date may work to her detriment.
In Supreme Court, the judge who signs the order to show cause and decides
whether or not to grant a temporary ex parte order of protection is generally the
judge who will hear the case. Supreme Court judges have greater control over
their calendars and are likely to make the motion returnable within a week.
A party who has been excluded from the marital residence by a Supreme Court
justice on an ex parte basis can expect a far more expeditious hearing than one
ordered ex parte to stay away from the home of his spouse by the Family Court.
Similarly, a party who has been denied temporary ex parte relief can expect her
motion to be returnable in a relatively short period of time.
Perhaps more significantly, the duration of a final order of protection differs
in each court and the Supreme Court is the more friendly forum on this count.
The duration of a final order of protection is very limited in Family Court.
As of October 22, 2003, the term of a final order of protection in Family Court
is generally two years. The term can be extended to five years only if the conduct
alleged in the petition is in violation of a valid order of protection or the court
makes a finding of aggravating circumstances. 16 On the other hand, Domestic
Relations Law §§ 240(3) and 252 both provide: “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.” Thus, at least when the parties have minor
children, an order of protection in Supreme Court can clearly last as long as