US Laws, Codes, Statutes & Cases

 
    §  252.  Effect  of  pendency  of  action  for  divorce, separation or
  annulment on petition for order of  protection.  1.  In  an  action  for
  divorce,  separation or annulment or in an action to declare the nullity
  of a void marriage in the supreme court, the supreme court or the family
  court shall entertain an application  for  an  order  of  protection  or
  temporary order of protection by either party. Such an order may require
  any party:
    (a)  to  stay  away  from  the  home,  school,  business  or  place of
  employment of the child, other parent or any other party,  and  to  stay
  away from any other specific location designated by the court;
    (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 530.11 of the criminal procedure law, or any
  criminal offense against such 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 a proceeding or action under this chapter or the  family  court
  act;
    (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; or
    (g) to observe such other conditions as are necessary to  further  the
  purposes of protection.
    2.  An  order of protection entered pursuant to this subdivision shall
  bear in a conspicuous manner, on the  front  page  of  said  order,  the
  language  "Order  of  protection  issued pursuant to section two hundred
  fifty-two of the domestic relations law". The absence of  such  language
  shall  not affect the validity of such order. The presentation of a copy
  of such an order to any peace officer acting  pursuant  to  his  or  her
  special  duties, or police officer, shall constitute authority, for that
  officer to arrest a person when that person has violated  the  terms  of
  such an order, and bring such person before the court and, otherwise, so
  far  as  lies  within  the  officer's  power,  to  aid  in  securing the
  protection such order was intended to afford.
    2-a. If the court that issued an  order  of  protection  or  temporary
  order  of protection under this section or warrant in connection thereto
  is not in session when an arrest is made for an alleged violation of the
  order or upon a warrant issued in connection with  such  violation,  the
  arrested  person  shall  be brought before a local criminal court in the
  county of arrest or in the county in which such  warrant  is  returnable
  pursuant to article one hundred twenty of the criminal procedure law and
  arraigned  by  such  court.  Such  local  criminal court shall order the
  commitment of the arrested person to the custody of the  sheriff,  admit
  to,  fix  or  accept  bail, or release the arrested person on his or her
  recognizance pending appearance in the court that issued  the  order  of
  protection,  temporary  order  of  protection or warrant. In making such
  order,   such   local   criminal   court   shall   consider   the   bail
  recommendations,  if  any,  made  by  the  supreme  or  family  court as
  indicated  on  the  warrant  or  certificate  of  warrant.  Unless   the
  petitioner  or complainant requests otherwise, the court, in addition to
  scheduling further criminal proceedings, if any, regarding such  alleged
  family   offense   or  violation  allegation,  shall  make  such  matter
  returnable in the supreme or family court, as applicable,  on  the  next
  day such court is in session.
    3.  An order of protection entered pursuant to this subdivision may be
  made in the final judgment in any matrimonial action, or by one or  more
  orders  from  time to time before or subsequent to final judgment, or by
  both such  order  or  orders  and  the  final  judgment.  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. An order of protection may be entered  notwithstanding  that  the
  court  for  any  reason  whatsoever,  other  than  lack of jurisdiction,
  refuses to grant the relief requested in the action or proceeding.
    4. No order of protection may direct any party to  observe  conditions
  of behavior unless: (i) the party requesting the order of protection has
  served  and  filed an action, proceeding, counterclaim or written motion
  and, (ii) the court has made a finding on the record that such party  is
  entitled  to issuance of the order of protection which may result from a
  judicial finding of fact, judicial acceptance of  an  admission  by  the
  party  against  whom  the  order was issued or judicial finding that the
  party against whom the order is issued has  given  knowing,  intelligent
  and   voluntary   consent  to  its  issuance.  The  provisions  of  this
  subdivision shall not preclude the court from issuing a temporary  order
  of  protection  upon  the  court's own motion or where a motion for such
  relief is made to the court, for good cause shown.
    5.  Except  with  respect  to  enforcement  pursuant  to  a   criminal
  prosecution  under  article  two  hundred  fifteen of the penal law, the
  supreme court may provide in an order made pursuant to this section that
  the order may be enforced or modified only in the supreme court. If  the
  supreme  court  so  provides,  the  family  court  may  not entertain an
  application to enforce or modify such an order of the supreme court.
    6. In any such matrimonial action  however,  the  court  may  not  sua
  sponte   consolidate  actions  or  make,  vacate  or  modify  orders  of
  protection issued in family court involving the same parties except upon
  motion and with notice to the non-moving party.  Such  non-moving  party
  shall be given an opportunity to be heard.
    7. A valid order of protection or temporary order of protection issued
  by  a  court  of competent jurisdiction in another state, territorial or
  tribal jurisdiction shall be accorded full faith and credit and enforced
  as if it were issued by a court within the state  for  as  long  as  the
  order  remains  in effect in the issuing jurisdiction in accordance with
  sections two thousand  two  hundred  sixty-five  and  two  thousand  two
  hundred sixty-six of title eighteen of the United States Code.
    (a)  An  order  issued by a court of competent jurisdiction in another
  state, territorial or tribal jurisdiction shall be deemed valid if:
    (i) the issuing court had personal jurisdiction over the  parties  and
  over the subject matter under the law of the issuing jurisdiction;
    (ii)  the  person  against  whom  the  order was issued had reasonable
  notice and an opportunity to be heard prior to issuance  of  the  order;
  provided, however, that if the order was a temporary order of protection
  issued  in  the  absence  of such person, that notice had been given and
  that an opportunity to be heard had been provided  within  a  reasonable
  period of time after the issuance of the order; and
    (iii)  in  the  case  of  orders  of protection or temporary orders of
  protection issued against both a petitioner and respondent, the order or
  portion thereof sought to be enforced was supported by: (A)  a  pleading
  requesting  such  order,  including,  but  not  limited  to, a petition,
  cross-petition or counterclaim; and (B)  a  judicial  finding  that  the
  requesting  party  is  entitled  to the issuance of the order, which may
  result from a judicial  finding  of  fact,  judicial  acceptance  of  an
  admission  by  the  party  against whom the order was issued or judicial
  finding that the party against whom  the  order  was  issued  had  given
  knowing, intelligent and voluntary consent to its issuance.
    (b)  Notwithstanding the provisions of article fifty-four of the civil
  practice law and rules, an order of protection  or  temporary  order  of
  protection issued by a court of competent jurisdiction in another state,
  territorial  or  tribal  jurisdiction,  accompanied by a sworn affidavit
  that upon information and belief such order is in effect as written  and
  has  not  been  vacated  or  modified, may be filed without fee with the
  clerk of the court, who shall transmit information regarding such  order
  to   the  statewide  registry  of  orders  of  protection  and  warrants
  established  pursuant  to  section  two  hundred  twenty-one-a  of   the
  executive  law;  provided,  however, that such filing and registry entry
  shall not be required for enforcement of the order.
    8. Any party moving for a temporary order of  protection  pursuant  to
  this  subdivision  during hours when the court is open shall be entitled
  to file such motion or pleading containing  such  prayer  for  emergency
  relief on the same day that such person first appears at such court, and
  a  hearing  on  the  motion  or  portion of the pleading requesting such
  emergency relief shall be held on the same day or the next day that  the
  court is in session following the filing of such motion or pleading.
    9.  Upon  issuance  of  an  order  of protection or temporary order of
  protection or upon a violation of such order,  the  court  may  take  an
  order in accordance with section eight hundred forty-two-a of the family
  court  act directing the surrender of firearms, revoking or suspending a
  party's firearms license, and/or directing that such party be ineligible
  to receive a firearms license. Upon issuance of an order  of  protection
  pursuant  to  this section or upon a finding of a violation thereof, the
  court also may direct payment of restitution in an amount not to  exceed
  ten thousand dollars in accordance with subdivision (e) of section eight
  hundred  forty-one of such act; provided, however, that in no case shall
  an order of restitution be issued where the court  determines  that  the
  party against whom the order would be issued has already compensated the
  injured  party  or  where  such  compensation is incorporated in a final
  judgement or settlement of the action.