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Court Questions Jurisdiction of Stay Away Order


A man filed a request for an order granting him a decision prohibiting his opponent from continuing the temporary stay away order of protection against him. The opponent however opposes the application, in its entirety.

A New York Family Lawyer said this case started when the man was arrested because of the complaint of a woman. On that same day, the judge of the district court arraigned the man. Over the man’s counsel’s objection, the judge set bail and as a condition of bail, she issued a temporary stay away order of protection against the man. Even if the man’s counsel requested that a hearing be held concerning the propriety of issuing the order, no hearing was conducted at that time. Instead, the judge ordered that the hearing be held on the date of the next adjournment. The man appeared before his opponent. After hearing the arguments from both parties regarding to whether or not to hold a temporary stay away order of protection hearing. But, the court denied the man’s counsel’s application for the hearing.

The man, when arrested in the criminal matter and for some time prior, shared a residence with the complainant and their child. Sources revealed that pursuant to the temporary stay away order of protection, the man was required to stay away from the complainant at her home and it resulted in his inability to legally live in his home.

As to the issue of jurisdiction, a New York Custody Lawyer said the court finds that the woman exceeded her authority when she refused to comply with the bail order of the judge. As the judge set bail and as a condition of it, she issued the order against the man. She also indisputably ordered that a temporary stay away order of protection hearing be held on the following adjourned date. On that date, the opponent failed to hold a hearing, although she did hear both sides on the issue of whether or not the order hearing should be held. Based on records, the oral argument on the possibility of having a hearing is not the equivalent of actually holding the hearing on the issue of whether the temporary stay away order of protection should be continued. Additionally, the court of concurrent jurisdiction cannot modify bail status in absent of finding a good cause to warrant the change.

A Queens Family Lawyer said the next consideration of the court is the severity of harm caused by the act sought to be performed. In the instant case, the temporary stay away order of protection resulted in the man being totally excluded from his residence. By continuing the order without holding a hearing, the woman deprived the man of significant interests in his home to which he is constitutionally entitled of.

Based on records, the next factor that needs to be considered is whether the harm can be sufficiently corrected on appeal or by recourse to ordinary proceedings at law or in equity. Even if an order setting bail cannot be appealed, the law allows for one application for review of a bail or recognizance order by a superior court judge.

Consequently, the review is limited to just three issues and none of which applies to the instant case. Clearly the arraignment judge had jurisdiction to initially set the bail and issue a temporary stay away order of protection. Also, a Queens Custody Lawyer said no application for recognizance or bail has been denied. Lastly, the man is not challenging the amount of bail as excessive.

As a result, since the man’s application does not fall within any of the grounds enumerated, he is, in effect, left without means, other than a special trail, to challenge the opponent’s order.

One of the hardest situations that we can have is a family related problem. Sometimes problems result into something deep that it could prevent us from seeing our loved ones. If you need legal guidance with such matter, you can hire the Nassau County Family Lawyer. You can also seek help of the Nassau County Criminal Attorney or Nassau County Criminal Defense Lawyers at Stephen Bilkis and Associates.

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