Man tapping an Iphone with his fingers

The Role of Evidence in Securing an Order of Protection

By Michael DiFalco

An order of protection is a valuable tool for stopping domestic violence. It tells your abuser to stay away from you. If they fail to do so, the police can arrest them for violating the order. Depending on the nature of the violation and whether they committed any additional crimes when they contacted you, they could go to jail for several years upon conviction.

Procedure for Getting an Order of Protection

You obtain an order of protection from the family court. To get this order, you file a family offense petition. Because you file the petition, the court will call you the petitioner. The person you want protection from is called the respondent.

Since this proceeding happens in family court, you and the respondent must have a familial relationship, including:

  • Current or former spouses
  • Parents of a child
  • Relatives by blood or marriage
  • Intimate partners, such as boyfriend/girlfriend

The family offense petition is a form that you fill out. You will identify yourself and the respondent. You will also explain why you need the order of protection. Thus, you will describe when and how the respondent assaulted or abused you. You can include any actual or threatened verbal, physical, emotional, or sexual abuse.

Seeing a Judge After Completing a Petition

Once you complete your petition, a judge will hold an “ex parte” hearing. “Ex parte” means the respondent will not attend the hearing. You will talk to the judge alone or with your attorney. The judge may ask you questions about your petition. If your petition and your answers persuade the judge, they will issue a temporary order of protection after the hearing.

The temporary order of protection tells the respondent to stay away from you. It goes into force immediately and stays in place until the next hearing.

After you receive your temporary order, you must serve it on the respondent. You have many options for service, including asking the sheriff’s office to deliver the papers. If you or your process server are unable to serve the respondent, you can ask the judge for more time.

When do I need evidence?

The judge will begin to consider whether you have met the burden for a final order of protection at the next hearing. This hearing occurs after the respondent received notice of the order of protection and has the right to appear, with an attorney if they choose.

If you serve the respondent but choose not to attend the hearing, the judge can proceed with the hearing in their absence. You need to present your case along with evidence to back up your claims. Since the respondent is not present, your testimony might provide enough evidence for the judge to issue the final order of protection.

Options for Respondent

If the respondent appears in court, the court will give them two options.


First, they can agree to the final order of protection without admitting the abuse. This is a win-win option because you receive the final order and the respondent does not need to make any admissions that can be used against them in custody or criminal proceedings.


Second, they can oppose the petition. The judge will set the matter for trial. At trial, you will need evidence to prove your allegations. Bear in mind that the respondent can also present evidence, so you should be prepared to rebut it.

What evidence do I need?

Evidence includes anything that tends to prove or disprove a disputed fact. Your evidence can include:

  • Your testimony
  • Eyewitness testimony
  • Official documents, like police reports
  • Photos and videos
  • Medical records

The rules of evidence are complex and confusing. For example, the hearsay rule might limit how you can use police reports. The court will allow you to introduce them to prove that you called the police and what you told them. But under the hearsay rule, you cannot introduce them to prove what happened.

Secure Your Order of Protection

You can secure a temporary order of protection without introducing any evidence. But you must introduce evidence to get a final order. To discuss your hearing and the evidence you need, contact Aiello & DiFalco, a family law firm in Garden City, NY.

About the Author
I am a partner at Aiello & DiFalco LLP, and my priority for my clients is to guide them through an arduous court case to provide them with the opportunity to write the next chapter in their life. I tailor my approach to each client’s priorities and positions, and to the extent that matters can be predicted, I will always provide a realistic perspective of how the law could be applied to the particular facts and circumstances of a case. Since I thrive on helping people and solving problems, I bring an optimistic and positive approach to practicing in a very difficult area of law. With more than a decade of experience handling hundreds of cases, I have the ability to get results on the issues my clients view as priorities. When cases or certain issues cannot be settled, I have a solid record of success at trials, hearings, and on appeals. Feel free to contact me for a free initial consultation, I am always available to help.