This week, Latwin builds on last week’s discussion of domestic violence cases by explaining orders of protection.
By Joe Latwin
When a criminal action is pending involving a complaint charging any crime or violation between spouses, former spouses, parent and child, or between members of the same family or household, as members of the same family or household the court may issue a temporary order of protection (“TOP”). A TOP may require the defendant to stay away from the home, school, business or place of employment of the family or household member
or of any designated witness.
The TOP may permit a person entitled to visitation to visit the child. It may direct the defendant to refrain from committing a family offense or any criminal offense against the protected parties and direct the defendant to refrain from acts of commission or omission that create an unreasonable risk to the health, safety and welfare of a child, family or household member’s life or health. Powerful stuff.
In making a determination to issue a TOP, the court must consider whether the TOP is likely to achieve its purpose in the absence of such a condition, conduct subject to prior orders of protection, prior incidents of abuse, past or present injury, threats, drug or alcohol abuse, and access to weapons. Most judges will issue TOPs without much thought simply so they cannot be criticized if something goes sideways.
However, the only penalty if a TOP is violated is being charged with criminal contempt – a misdemeanor carrying a six-month sentence or having bail imposed or increased. If the TOP excludes the defendant from the household, requires surrender of firearms, or separates parent from child, the defendant is entitled to a prompt hearing after the deprivation of his/her rights or property. The complainant will have to testify.
Sometimes a defendant will challenge the enforcement of a TOP claiming: (1) the
TOP was not properly served on the defendant; or (2) the violation was not knowingly made. To prevent the former, most Courts will advise the defendant of the TOP on the record in court when the TOP is issued and require the defendant to sign the TOP acknowledging receipt. This is not possible if the defendant does not appear for their arraignment. The knowingly issue most often arises if the TOP is unclear or the violation is inadvertent – such as when the defendant is supposed to stay away from another, but by circumstances end up in the same supermarket at the same time. Most courts will tell the defendant that if there is a chance meeting, the defendant should leave so as to avoid any issue.
A TOP is only a piece of paper. It provides only protection by the threat of another charge being added and relies on the good faith by the defendant. I have taken a TOP, shot it with a pistol, stabbed it with a knife, and set it on fire. The bullets and knife passed right through the TOP without any impediment. It was not fireproof. If a defendant is violating a TOP, the police will have to be called and arrive on the scene before they are able to stop anything. In the interim, the protected party is not protected.