Little Neck, NY asked in Criminal Law, Domestic Violence and Family Law for New York

Q: How can I get all the order of protections against me modified/removed and what type of hearing is required?

My case started back in October, when my wife and the stepmother of my children abused my kids and then claimed herself the victim in the incident and blamed everything on me. I have 3 children, 2 daughters that currently live with me and a 1 year old son that lives with my wife. There is a order of protection for my wife against me, she also has my son with her and is living elsewhere. My eldest daughter, who is 18 years old, has a order of protection against her stepmother. I want to get the order of protection of my wife and son against me modified or removed. There are 2 cases in family and criminal court. How can I get all of the order of protections against me modified or removed? My wife and me want to get back together as a family, what do I need to do in order for all the order of protections against me removed? What type of hearing needs to be held in order for this to happen?

2 Lawyer Answers
Aubrey Claudius Galloway
Aubrey Claudius Galloway
Answered
  • Criminal Law Lawyer
  • Scarsdale, NY
  • Licensed in New York

A: This is a very difficult issue that comes up often in criminal/family practice. The reason behind this is that, at least in New York, once a complaint is made, it is up to the district attorney and not your wife to continue to prostitute/keep the order.

As a result of the above, I generally suggest that my clients go to family court. You should petition the court for modification of the order removing the "stay away provision"... in general, so long as your wife does not object this should be granted.

The order of protection itself cannot be avoided in till the criminal action is over, and I have only had success on one occasion in criminal court do you have a "stay away order The order of protection itself cannot be avoided in till the criminal action is over, and I have only had success on one occasion in criminal court do you have a "stay away order" modified to allow contact.

As such, you should ask your attorney to request a modification of the order in family Court killing the "stay away" part. Just to warn you though… If you and your wife get into any sort of argument whatsoever and the police are called, you will likely be charged with aggravated criminal contempt, a felony, because they will also hit you with something like harassment, assault or robbery, all of which are more severe than a simple second-degree criminal intent, a misdemeanor, if a "stay away order quote is broken simply because you were in the presence of your loved ones.

The bottom line is though, the right to marry and raise your family as you see fit is a constitutional right and is the supreme law of the land. If both you and your wife want to be able to see each other with your children, a family court must grant this ... if they do not, you should immediately appeal the decision.

I have been dealing with this issue for a while with several clients, so if you have anymore questions feel free to contact the undersigned.

Aubrey C. Galloway III, Esq

Ali Shahrestani, Esq.
Ali Shahrestani, Esq.
Answered
  • Criminal Law Lawyer
  • San Francisco, CA
  • Licensed in New York

A: The DA has the authority to bring or drop criminal charges against you, not the victim. As for the family and custody matter, you and your partner can file a stipulated agreement in family court for a judge to sign as an order. More details are necessary to provide a professional analysis of your issue. The best first step is an Initial Consultation with an Attorney. You can read more about me, my credentials, awards, honors, testimonials, and media appearances/ publications on my law practice website. I practice law in CA, NY, MA, and DC in the following areas of law: Business & Contracts, Criminal Defense, Divorce & Child Custody, and Education Law. This answer does not constitute legal advice; make any predictions, guarantees, or warranties; or create any Attorney-Client relationship.

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