NY Dom Rel L § 252 (2021)
2021 New York Laws DOM - Domestic Relations Article 13 - Provisions Applicable to More Than One Type of Matrimonial Action 252 - Effect of Pendency of Action for Divorce, Separation or Annulment on Petition for Order of Protection.

§  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;  (g)  to  refrain  from  intentionally  injuring  or  killing,  without justification,  any  companion  animal the respondent knows to be owned, possessed, leased, kept or held by the person protected by the order  or a  minor  child residing in such person's household. "Companion animal," as used in this section, shall have the same meaning as  in  subdivision five of section three hundred fifty of the agriculture and markets law;  (h)  (1)  to promptly return specified identification documents to the protected party, in whose favor the order  of  protection  or  temporary order  of  protection is issued; provided, however, that such order may: (A) include any appropriate provision designed to ensure that  any  such document  is  available  for  use  as  evidence  in this proceeding, and available if necessary for legitimate use by the party against whom such order is issued; and (B) specify the manner in which such  return  shall be accomplished.  (2)  For  purposes  of this paragraph, "identification document" shall mean any of the following: (A) exclusively in the name of the  protected party:   birth  certificate,  passport,  social  security  card,  health insurance or other benefits card, a card  or  document  used  to  access bank,  credit  or  other financial accounts or records, tax returns, any driver's license, and immigration documents including but not limited to a United States permanent resident  card  and  employment  authorization document;  and (B) upon motion and after notice and an opportunity to be heard, any of the following, including those that may reflect joint  use or   ownership,   that  the  court  determines  are  necessary  and  are appropriately transferred to the protected party: any card  or  document used  to access bank, credit or other financial accounts or records, tax returns, and any other identifying cards and documents;  (i) (1) to refrain from remotely  controlling  any  connected  devices affecting  the  home, vehicle or property of the person protected by the order.  (2) For purposes of this paragraph, "connected device" shall mean  any device,  or  other  physical object that is capable of connecting to the  internet, directly or indirectly,  and  that  is  assigned  an  internet protocol address or bluetooth address; and  (j)  to  observe such other conditions as are necessary to further the purposes of protection.   1-a. Translation and  interpretation  of  orders  of  protection.  The office  of  court administration shall, in accordance with paragraph (t) of subdivision two of section two hundred twelve of the  judiciary  law, ensure that a court order of protection or temporary order of protection is  translated in writing into the appropriate language for a party to a proceeding where the court has appointed an interpreter. The  office  of court  administration  shall  ensure  that  the standard language of the office of court administration order of protection and  temporary  order of protection forms shall be translated in writing in the languages most frequently  used in the courts of each judicial department in accordance with paragraph (t) of subdivision two of section two hundred  twelve  of the  judiciary  law. A copy of the written translation shall be given to each party in the proceeding, along with the original order or temporary order  of  protection  issued  in  English.  A  copy  of  this   written translation  shall  also  be  included  as  part  of  the  record of the proceeding. The court shall read the essential terms and  conditions  of the order aloud on the record and direct the court appointed interpreter to  interpret the same terms and conditions. Such written translation or interpretation shall not affect the validity or  enforceability  of  the order.  In  every case a party to a proceeding shall be provided with an English copy of any court order of  protection  or  temporary  order  of protection issued. The authority provided herein shall be in addition to and  shall not be deemed to diminish or reduce any rights of the parties under existing law.   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 order of protection shall also contain the following notice: "This order of protection will remain in effect even if the protected party has, or consents to have,  contact or  communication  with the party against whom the order is issued. This order of protection can only be modified or terminated by the court. The protected party cannot be held to violate this order nor be arrested for violating this order.". 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 shall make a determination regarding the suspension and revocation of  a  license  to carry,   possess,   repair   or   dispose  of  a  firearm  or  firearms, ineligibility for such a  license  and  the  surrender  of  firearms  in accordance  with  sections  eight  hundred forty-two-a and eight hundred forty-six-a of the family court act, as applicable. 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 judgment or  settlement  of  the action.   9-a.  The  protected  party  in whose favor the order of protection or temporary order of protection is issued may not be held  to  violate  an order  issued  in  his  or  her  favor  nor  may such protected party be arrested for violating such order.   10. All orders of protection and temporary orders of protection issued pursuant to this section along with any associated papers  that  may  be served  simultaneously  shall  be  served in accordance with subdivision three-a of section two hundred forty of this article.