Domestic Violence Divorce Lawyer Helps New Yorkers

NYC Divorce Attorney Explains Protective Orders and Other Resources

Video Transcript: 

Carla Barone: 

Certainly, if anyone in the case of an emergency needs to leave to either call 911 or get to safety, that's the number one most important thing.

Molly Hendrickson: 

If you're gonna file for divorce and you fear for your safety, what precaution should you take? And we're gonna find out right now on this episode of Ask The Lawyer. My guest is New York City Attorney, Carla Barone, and I wanna remind you that if you wanna ask Carla questions about your situation, it's easy, go to askthelawyers.com, click the button up top, it says Ask a Lawyer, or you can always call the phone number you'll see at the top of the screen. Carla, thanks for joining us today.

Carla Barone: 

Thank you for having me.

Molly Hendrickson: 

Tough topic, domestic violence. If a person is being abused by their partner, what do they need to know to protect themselves and also start the divorce process?

Carla Barone: 

Yes, definitely. So very hard topic and very difficult situation, so certainly contacting a professional, the person should really get some expert legal advice in the area to ensure a safe transition from the home, there are many factors involved, including children, oftentimes, finances and things of that nature. So having a good consultation to know how that can be managed, there are many different things that the lawyer can take initiative on and make contact with the other spouse, or the lawyer for the other spouse to get to a situation where there can be something that is worked out, so that there could be an amicable separation.

Molly Hendrickson: 

Can you talk a little bit about getting a protection order? What does that process like? And do you always need to get a lawyer to get a protection order?

Carla Barone: 

You don't need a lawyer always to get an Order of Protection, however, it's highly recommended because it is a difficult process for one person to navigate on their own, on top of all of the other emotional factors that are going on for the person who is being abused and wants to get out and get protection. So the first part is that a petition has to be drafted, and if someone is self-represented and they don't have a lawyer or resources to get a lawyer, they can go to the court house on their own, and the clerk's office in New York will help them draft a petition. However, the reason why it's recommended that a lawyer does it with and that someone retains a lawyer is because there are certain things that need to be put in the petition in order for it to be legally sufficient for an order protection.

And so the first step is drafting the petition, after that, there will be a same day, what's called ex-parte hearing, meaning one-sided, only the person who's seeking the Order of Protection appears with his or her lawyer on that first day, and then the court will make a determination, if there's a sufficient showing based just on that petition alone and also seeing the person in court asking them a couple of questions, they'll be a determination made that very same day, so someone who is afraid for their safety can go and get a civil restraining order or order of protection has nothing to do with the criminal aspect of an arrest and get a civil restraining order same day if facts are sufficient to support that.

Molly Hendrickson: 

So the process is relatively swiftly once you get to court, can an Order of Protection remove a person from a marital residence, and what if the person who is being abused left the residence, do they have to then find a new place to live.

Carla Barone: 

So the person who is seeking the Order of Protection can definitely exclude the abuser from the home, and that has to be made part of the petition, and clearly indicated that the person wants to stay away, what's called a Stay Away Order from the home of the protected person, so that the abused person, the person who is inflicting the abuse would be then precluded from the home, that would happen same day and so therefore, it's very important to have someone serve, a proper person serve the person who's been excluded, in that case, the court must set a hearing date and a return date within five days to come back to court in order to hear the other side, because remember, it's a one-sided petition. It's an ex-parte petition in the first instance. The court is only hearing one side of the story.

If someone is excluded from the home, then there has to be a return back much sooner to be sure that those provisions are something that the court will wanna continue, and wanna know that the person has an alternate place to stay. As to your second question, if the person who's being abused just wants to leave the home, they can do that, the question is, "can they get back in?" Again, that would be navigated through that Order of Protection hearing, and with a specific request. But certainly, if anyone in the case of an emergency needs to leave to either call 911 or get to safety, that's the number one most important thing, the home can be solved later.

Molly Hendrickson: 

And the situation gets even more complicated when kids are involved as an Order of Protection, also protect kids, and how can this affect things like child support and child custody?

Carla Barone: 

Yes. So a person who may be seeking a relief from abuse by a civil order protection, getting a restraining order can also include minor children, children under the age of 18 on that order. Again, this is where the petition becomes important, whether or not the abuse is happening in front of the children or directly to the children, in both circumstances, a guardian or parent of that child can seek an Order of Protection on behalf of the child, and then with respect to support petitions for child support and custody generally go right along with the request for an Order of Protection in the civil Family Court.

Molly Hendrickson: 

And can an Order of Protection then be turned into a divorce filing and what should people consider if they find themselves in these types of situations?

Carla Barone: 

Sure. In New York City, there's the Family Court and the Supreme Court, the Supreme Court of the State of New York hears matrimonial actions, the Family Court hears only Orders of Protection and issues of custody and support, but is not the court of jurisdiction with regard to a divorce. So oftentimes, a case will start as an Order of Protection case in the Family Court, and later, if there is a divorce, the lawyer would request consolidation in the Supreme Court of the underlying Order of Protection, if there's also a family offense petition seeking an Order of Protection in the Family Court with a correlating custody case, those cases could either stay in the Family Court or again, be consolidated into the divorce action. It really just depends on how much time is going on between the two and how much crossover is going on between the two actions, but the Supreme Court is not going to wanna hear issues that the Family Court's hearing and vice versa, so they are courts, considered courts of concurrent jurisdiction with regard to custody, support and family offense issues.

Molly Hendrickson: 

Carla, It was nice to see you today, thank you so much for taking the time to talk to us.

Carla Barone: 

Thank you.

Molly Hendrickson: 

And that's gonna do it for this episode of Ask the Lawyer. My guest has been lawyer Carla Barone, and I wanna remind you, if you'd like to ask Carla questions about your situation, you can go to askthelawyers.com. Click the button at the top of the page that says Ask a Lawyer, and it'll walk you through the very simple process. Thanks for watching, I'm Molly Hendrickson for Ask the Lawyer.

Disclaimer: This video is for informational purposes only. In some states, this video may be deemed Attorney Advertising. The choice of lawyer is an important decision that should not be based solely on advertisements.