Vacate/Exclusionary Orders as a Provision of Orders of Protection Issued Under Article 8 of the Family Court Act

Jennifer DeCarli January 01, 2001


Questions frequently arise regarding what conditions can be contained within an order of protection.  Specifically, advocates express that at times courts are reluctant to issue orders that include a provision that the Respondent vacate his/her current residence.  By looking at the case law on this issue, this memo will delineate the standard courts should be using when issuing such orders.

Family Court Act §842

Family Court Act §842 addresses the conditions that can be included within an order of protection granted under Article 8 of the Family Court Act.  The general standard for such conditions is that the order of protection “set forth reasonable conditions of behavior”.   Sections a- i of §842 set forth specific examples of conditions that can be included with the order of protection.  Such conditions include requiring the parties to stay away from the home, work, school of the other party, refrain from committing any family offenses, set forth specific visitation schedules, award a party temporary custody of a child etc.    However, these are not the only conditions that can be included as part of an order of protection as (i) specifically states, “to observe such other conditions as are necessary to further the purposes of protection.”  For example in Jane Y. v. Joseph Y., 123 Misc.2d 771, 474 N.Y.S.2d 681, the Court included provisions in the order of protection ordering the respondent to vacate his dog from the family premises as he was used as a tool for abusing the petitioner.

The legal standard regarding the types of conditions that can be imposed is whether or not the condition is reasonable and will further the purpose of Article 8 as articulated in §812 (2)(b) which states,  “a family court proceeding is a civil proceeding and is for the purpose of attempting to stop the violence, end the family disruption and obtain protection.”   This principle has been articulated in the case law.   For example, in Leffingwell v. Leffingwell, 86 A.D.2d 929, 930 the Court specifically stated, “the major criterion of the reasonableness of conditions imposed is whether they are likely to be helpful in eradicating the root of family disturbance.”  Thus, conditions within orders of protection must be reasonable, must further the purpose of the Act and can expand beyond the specifically stated examples set forth in §842.

The Legal Standard for Issuing Exclusionary Orders as a Condition of an  Order of Protection

As a specific condition of an order of protection, the Family Court can require that the Respondent vacate his home pursuant to FCA §842(a).  As stated in the recent case of V.C. v. H.C., this condition can be imposed “not only where parties are already living apart at the time the order is issued but, where necessary, may also be imposed where it will require a party to stay away from what has heretofore been his or her own home.”

The above principle has been articulated in the case law for quite some time.  For example, in Kilmer v. Kilmer, 486 N.Y.S.2d 483 (N.Y.A.D. 3 Dept., 1985), the husband appealed a lower court ruling that had granted his wife an order of protection requiring him to stay away from the marital residence.  The husband argued that as tenant of the entirety of the property, he had a right to be in the residence and due to certain health conditions he had nowhere else to live.  The Court upheld the lower court’s ruling.  The Court specifically stated, “Contrary to the contention, defendant’s right to possession is no stronger than plaintiff’s and is dependent on his conduct, which has been found to be annoying and molesting in regard to her.”  Id.

Similarly, in  Leffingwell v. Leffingwell, 86 A.D.2d 929, 448 N.Y.S.2d 799 (N.Y.A.D. 3 Dept., 1982),  the lower court found that the husband had committed the family offense of harassment and issued an order of protection that included a provision vacating the Respondent from the home.  On appeal, the Court held that the conditions of the order were not unreasonable as the lower court had found that a family offense was committed and the conditions were intended to further the purpose of Article 8 of the Family Court Act.

Again, in Merola v. Merola, 146 A.D.2d 611, 536 N.Y.S.2d 842 (N.Y.A.D. 2 Dept., 1989), the Court addressed the appropriate legal standard for  issuing an order of protection requiring the Respondent to vacate the home.   In this case, the Petitioner appealed the lower court’s ruling which after a hearing found that the Respondent had committed the family offenses of harassment and disorderly conduct but it allowed the Respondent to return to the marital home on the condition that he comply with the order of protection and obtain counseling.  The Court found that this decision was not supported by the record as the Respondent had clearly engaged in a pattern of frightening behavior.  The Court specifically stated, ” ..it is clear that a directive to the respondent to vacate the marital residence is reasonably necessary to provide meaningful protection to the petitioner and to eradicate the root of the family disturbance.” Id at 843.

On the flip side, Ross v. Ross, 152 A.D.2d 580, 543 N.Y.S.2d 162 (N.Y.A.D. 2 Dept., 1989),  addresses a situation whereby the lower court denied the Petitioner/wife’s request to modify her current order of protection to include a new provision requiring the Respondent/husband to stay away from the marital home based on the new commission of a family offense.  The Court affirmed the lower court decision due to the Petitioner’s failure to prove that any of the alleged acts committed by the Respondent constituted any of the enumerated family offenses.

Lastly, in Quintana v Quintana, 237 A.D.2d 130, 654 N.Y.S.2d 27 (N.Y.A.D. 1 Dept. 1997), the Court again upheld the lower court’s ruling which after a hearing granted an order of protection requiring the husband to stay away from the marital residence.  It found that the husband’s conduct was “offensive and frightening”enough to justify such disposition as it was reasonably necessary to provide the Petitioner with meaningful protection.

The Recent Case of V.C. v. H.C.

The recent case of V.C. v. H.C., 689 N.Y.S.2d 447, 257 A.D.2d 27 (N.Y.A.D. 1 Dept. 1999)  is clearly instructive on this issue and is an important case for all domestic violence advocates to be familiar with.

In V.C.v. H.C., the wife petitioned for a three year order of protection against her husband and her adult son and had requested that they be excluded from the family residence.  A temporary order of protection was issued but the request for the exclusionary order was denied.  At the subsequent fact finding hearing, the court heard substantial testimony from the wife and others regarding the many abusive incidents that had forced her to flee the family residence.  Based on this testimony, the court terminated the fact finding hearing early as it found the Petitioner had already presented sufficient evidence to support a finding of harassment 2nd. Petitioner’s counsel objected to this arguing that the rest of the evidence would allow the Court to make a finding of more serious family offenses. The lower court rejected this argument and proposed an offer to the Respondents whereby if they admitted to the harassment 2nd, it would allow them to remain in the marital residence pending the dispositional hearing.  Otherwise, the court told Respondents it would make a finding of harassment and exclude them from the residence pending the dispositional hearing.   Not surprisingly, the Respondents admitted to the harassment 2nd and were allowed to remain in the marital residence pending disposition.

Unfortunately, for various reasons the dispositional hearing was not held until eighteen months later.  At disposition, the lower court granted the Petitioner a one year order of protection requiring the Respondents to stay away from the Petitioner.  It refused to grant the Petitioner a three year order of protection based on aggravating circumstances.  Further,  it denied the Petitioner’s request for an exclusionary order as part of the final order of protection as it stated that it was not the appropriate court to hear that issue and the Petitioner should seek that result in a divorce action.

On appeal, the Court reversed. First, the Court held that the appeal was not moot even though the petitioner’s order of protection had expired at the time of the appeal, as the Petitioner’s argument that the order was not adequate was not academic.  Secondly,   a dispositional hearing should have been held in Family Court on the vacate issue and the fact that the Petitioner could have theoretically sought exclusive occupancy of the home in Supreme Court did not prohibit the Family Court from considering the issue.  Moreover, although the Respondents had stopped harassing the petitioner after the issuance of the TOP, this did not alleviate the need for a dispositional hearing to consider whether or not a vacate order was warranted.   Third,  even though the petition did not specifically state the existence of aggravating circumstances, the Family Court erred in not considering whether a three year order of protection was warranted.

This opinion contains strong language regarding the Family Court’s mandate to consider whether or not a vacate/exclusionary order is an appropriate remedy.  For example, the Court stated, ” We find no basis in the law for the Family Court’s action in refusing to even consider whether respondents should be excluded from the apartment as a condition of the order of protection, which it had found to be clearly warranted by respondent’s behavior.  As noted above, the Family Court is unquestionably permitted to order a non-resident party to stay away from the home of the other spouse or to exclude a resident party from the common home.” Id at 452.   The Court went on to state, “We can hardly require evidence of continuing harassment to be a condition to an order of exclusion in a situation where the respondents, who were found to have committed harassment, remain in the home while the victim has been forced to flee, thereby eliminating both their motivation and opportunity to further abuse her. ” Id at 453.

Additionally, this opinion addresses an issue often facing victims of domestic violence victims when seeking vacate orders.  Victims are often the ones forced into shelter as they must flee from the abuser in order to stay safe.  This opinion specifically states, “….the court should not base its decision solely on the fact that one party has found another place to stay and the other has not.”   Id at 453.


In conclusion, vacate orders should be included as a provision of an order of protection when it is necessary to further the stated purposes of Article 8 of the Family Court Act. If the vacate order is necessary to end the family disruption and provide protection, the Family Court should be issuing such a provision.  When arguing for a vacate provision in an order of protection, advocates should reference the strong language used in the V.C. v. H.C. decision as it clearly sets out the standard lower courts should be using when issuing such orders.  Moreover, whether or not the victim has already been forced to flee the family residence as a result of the domestic violence should not be a reason for denying a vacate order.

Lastly, as the case law clearly states that orders of protection can include provisions other than the specified provisions contained in §842 of the FCA,  advocates should be thinking creatively and making arguments to include other provisions in an order of protection that would provide additional protection to their clients.