FAMILY OFFENSES PETITIONS
- a.k.a. -
REQUEST FOR AN ORDER OF PROTECTION
By Sari M. Friedman, Esq.
An order of protection from Family Court is a very serious matter. Too often those truly in need never go to Court to obtain such an order, and too often, such orders are sought not for protection, but for leverage in a divorce, custody or visitation case, or some other reason other than protection. We will be discussing the fact that too often petitions for an order of protection are sought for reasons which the Court has no jurisdiction, or authority, to grant an order of protection for. This is because Family Court is a court of limited jurisdiction, limited authority.
Being a Court of limited jurisdiction means that Family Court is only allowed to hear and decide those cases and issues that our State legislature has authorized them to decide. In contrast, Supreme Court can decide all matters in the state of New York, with few exceptions. The Family Court is empowered to hear cases requiring orders of protection, known as family offenses, by Family Court Act section 812. This section allows Family court to hear only a few specific charges or allegations. These are:
- Acts which would constitute disorderly conduct,
- Harassment in the first degree,
- Harassment in the second degree,
- Aggravated harassment in the second degree,
- Menacing in the second degree,
- Menacing in the third degree,
- Reckless endangerment,
- Assault in the second degree,
- Assault in the third degree or :
- an attempted assault between spouses or former spouses, or
- between parent and child or between members of the same family or household except that if the respondent would not be criminally responsible by reason of age pursuant to section 30.00 of the penal law, then the family court shall have exclusive jurisdiction over such proceeding.
Each of these listed offenses are defined as the criminal laws of this State defines them, even when charged in Family Court. This means that an act must have occurred which falls in the meaning of one of the above offenses, and a particular state of mind must have existed when the act occurred. For example, to harass someone, you must have done something recognized by law as harassing and in addition to this, have intended to harass, annoy, threaten or alarm that person.
Now, hypothetically speaking, you are a licensed private investigator. A husband contracts with you, for you to follow his wife, who he suspects is cheating on him. You follow that wife all over town. The wife realizes you are following her, she becomes frightened and calls the police stating that she is being stalked. Your intent was to follow her for pay from her husband to see if she is cheating on your client.
You have a private investigators license and can prove your intent. The problem though is if you follow your spouse or girlfriend yourself.
Very hard to prove your intent was not to harass, annoy, threaten or alarm her.
Another interesting example, and all to often occurs, is if you are accused of harassing your wife by telephone by having called her HOME ten times in two hours, leaving messages such as: "Where are you? I am supposed to talk our child for phone visitation, don't you care? What kind of parent are you?" Well, your intent is obvious to me that all you intend is to talk to your child. But, many moms will still seek an order of protection based on this alone. Here, whether or not you made these calls should not be the primary and sole issue, especially if you did make them. The primary issue is whether or not you intended to harass, annoy, threaten or alarm that person or otherwise.
But, beware, though Family Court actually does not have the power to hear petitions alleging telephone or mail harassment, Family Court usually does hear such cases anyway, and issues orders of protection against such behavior. Thus, it is still important to address the issue of intent, whether or not the mailings or phone calls were to harass, annoy, threaten or alarm that person. Beware that a Judge may just say that no reasonable person would call someone else's HOME ten times in one hour leaving messages such as: "Where are you? What kind of parent are you?" unless they intended to harass that person, fully discounting the fact that you were emotionally distraught at the time and had no such intent. Additionally, mail or telephone harassment is an offense which a criminal order of protection can be sought for and issued.
This same concept of intent would hold true if you were to go to her HOME ten times in two hours ringing her doorbell at the time of your visitation and she appears not to be HOME. Obviously your intent is to pick up your child for visitation, but again, she may seek an order of protection based upon this. Your intent then becomes crucial, and yet, a Judge may still issue an order of protection.
It is important to note that sex abuse and child neglect cannot be prosecuted under an Article 8 petition. Nowhere is such an offense found within this section 812 of the Family Court Act. Often, though, I have seen and heard of an Article 8 petition being sought for allegations of sex abuse and child neglect. Sometimes, the Court does issue orders of protection based on such allegations. It is your responsibility to bring to the Courts attention that they do not have the jurisdiction to hear such allegations under Article 8. Article 10 of the Family Court Act is the proper provision for such allegations and the petition must be brought by Social Services and not the child's other parent.
An order of protection cannot be obtain to stop you from smoking near your child and your child's other parent. An article 8 petition cannot be filed against you for your failure to help your spouse to regularize her immigration status. Yes, such petitions have been filed and litigated in the Courts to date. What I have always found most perplexing is when a person files for an order of protection against someone else and then travels to and from Court in the same car with the same person who she is seeking an order of protection against.
We should also consider who an Article 8 petition can and cannot be brought against. An article 8 petition seeking an order of protection can only be brought against "members of the same family or household". This means persons related by consanguinity or affinity (by blood or marriage); persons legally married to one another; persons formerly married to one another; and persons who have a child in common regardless whether such persons have been married or have lived together at any time. Thus, an Article 8 order of protection cannot be properly obtained against the unwed father of a child not yet born. However, an order of protection can be obtained against a father who is also the husband of the mother, on behalf of the mother's unborn child.
The allegations in an Article 8 petition only need to be proved by a preponderance of the evidence, that it is more likely than not that it did happen, a 51% probability of truth. Review the petition carefully. The allegations cannot be conclusions, i.e., he harassed me on Sunday when he was on my block. The allegations in the petition must be the facts of what happened which constitute one of the offenses listed in section 812 of the Family Court Act as defined in the criminal laws of this State.
One word of caution:
These types of proceedings are usually so emotionally charged that it is best to be represented by counsel who has extensive experience in this field of law. The consequences, should you lose, are too many and too severe to do otherwise.