Lawyers Manual - Unified Court System

Domestic Violence in the LGBT Communities 407
Domestic Violence Specific Legal Remedies for Same-Sex
and Trans Survivors of Domestic Violence
Orders of Protection in Criminal Court
Although same-sex couples without children in common are ineligible for
civil orders of protection, Criminal Court orders are available. Under the
expanded New York City Police Department definition, family or household
also includes persons who are not legally married but are currently living
together in a family-type relationship; are not legally married but formerly
lived together in a family-type relationship; and registered NYC domestic
partners. LGBT victims of domestic violence are protected by mandatory arrest
laws only if the police respond to an abusive incident as a domestic incident
committed by a “family or household member.” An appellate court has ruled
that a domestic violence incident report (DIR) should be filled out even when
the parties are not a “family member” within the meaning of the Family Court
Act. 24 However, police department practices vary throughout the state.
The content of the order of protection obtained in Criminal Court will have
different terms depending upon whether the parties meet the definition of
“family” under the Family Court Act. Criminal Procedure Law (CPL) allows for
protection for victims of family offenses, when the parties have a relationship of
“family” as defined by the Family Court Act, with the following provisions: 25
stay away;
visitation;
“refrain from committing a family offense;”
refrain from creating an unreasonable risk to the health, safety
or welfare of a child, family or household member; and
permission to enter a residence to remove personal belongings.
In contrast, the CPL section that governs victims of crimes other than
family offenses grants Criminal Court power to issue only orders with
provisions to: 26
stay away; and
refrain from harassment, intimidation, threats or other
interference.