Orders Of Protection & Exclusive Use And Occupancy Of The Marital Residence
Both the Family and Supreme Courts have the authority to issue orders of protection, which nay range from the full “stay-away” to a “refrain” types. Parties need not be married to one another to seek and obtain an order of protection against the other party, however, there must be some familial relationship, such as they have a child in common, related through marriage, etc.
A “full “stay-away” order is exactly what it sounds like. The restrained party is prohibited from being near the other party. The restrained party is prohibited from going to the protected parties home, school, place of employment, etc. Additionally, they restrained party is ordered to refrain from specific conduct, such as assault, battery, menacing, harassing, recklessly endangering, telephoning, e-mailing, texting, etc., the other party or from having a third party do so on their behalf. The full “stay-away” order may extend for the benefit of the children of the parties as well, however, this part of the order is often made “subject to” an order of visitation that will be made by the Supreme or Family Court. If the “stay-away” order is granted to a protected party and they parties reside together, the restrained party will be required to move out of the marital or joint residence, oftentimes, without being given the opportunity to collect and remove their personal belongings. Most of the time, the court will allow the restrained party to return to the joint residence to collect and remove their personal belongings from the home, while in the presence of a police officer. Even if this relief is granted, the restrained party is only allowed to remove items such as clothing, small personal items, etc.
The second type of order of protection is commonly known as a “refrain” order, meaning, that the restrained party must refrain from certain specific conduct against the protected party such assault, battery, menacing, harassing, reckless endangerment, or any other specified wrongful conduct. “Refrain” orders are issued to parties who still reside together.
