New York Family Law Blog
In Dayonna W. v. Jhon S. 201 A.D.3d 539 (N.Y. App. Div. 2022), an order of protection was issued against the respondent, directing him to stay away from the petitioner until June 10, 2023. The order stemmed from a fact-finding determination that the respondent committed the family offenses of second-degree harassment and third-degree assault.
In Family Court, the determination of the length and terms of an order of protection is based on several factors, primarily focused on ensuring the safety and well-being of the petitioner. The court considers the specific circumstances of each case, including the nature and severity of the alleged offenses, the relationship between the parties involved, and any history of violence or harassment.
One consideration is the extent of the perceived threat to the petitioner’s safety. If the court finds that there is a substantial risk of harm to the petitioner, it may issue a longer-term order of protection to provide extended protection. Conversely, if the risk is deemed less severe or temporary, the court may opt for a shorter-term order.
The court also takes into account any aggravating or mitigating factors presented during the proceedings. This may include evidence of prior incidents of violence or harassment, the presence of weapons, or any other relevant circumstances that could impact the petitioner’s safety.
Additionally, the court considers the relationship between the parties involved. If they have children together or share a household, the court may include provisions in the order of protection to address issues such as visitation rights or financial support while still prioritizing the safety of the petitioner and any children involved.
Furthermore, the court may tailor the terms of the order of protection to fit the specific needs of the petitioner. This could include provisions such as requiring the respondent to stay a certain distance away from the petitioner, refrain from contacting them, or attend counseling or anger management programs.
Background Facts
The case involves an order of protection issued by the Family Court of New York County on or about June 11, 2021. The order stemmed from a fact-finding determination that the respondent committed the family offenses of harassment in the second degree and assault in the third degree. As per the order, the respondent was directed to stay away from the petitioner until June 10, 2023.
The Family Court’s finding of assault in the third degree was supported by a fair preponderance of evidence. The petitioner testified that on May 11, 2020, the respondent physically harmed her by grabbing her right wrist, pushing her, slamming a shopping cart into her right foot, and pushing her into a wall. The petitioner suffered bruises, cuts, and substantial pain as a result of the respondent’s actions. Additionally, photographs documenting the injuries corroborated the petitioner’s testimony, supporting the inference that the respondent intended to cause her physical injury.
Similarly, the court found that the respondent committed the family offense of harassment in the second degree. The petitioner testified that on May 18, 2020, the respondent engaged in a course of conduct that alarmed and seriously annoyed her. This included attempts to remove her child from her vehicle without permission, screaming obscenities, and following her despite her repeated requests to be left alone. The respondent’s actions caused the petitioner to feel unsafe and compelled her to temporarily relocate to another address.
Issue
Whether there was sufficient evidence to support the Family Court’s findings and whether the length and terms of the order of protection were appropriate based on the circumstances of the case.
Holding
The court held that a fair preponderance of the evidence supported the finding that the respondent committed both offenses. The petitioner’s credible testimony, supported by photographic evidence, established that the respondent’s actions caused her physical injury and constituted harassment.
Rationale
The Appellate Division affirmed the Family Court’s order of protection based on the evidence presented during the proceedings. They found that there was enough evidence to support the Family Court’s determination that the respondent committed the family offenses of assault in the third degree and harassment in the second degree.
Regarding the assault charge, the Appellate Division noted that the petitioner’s testimony, which the fact-finder deemed credible, provided sufficient evidence of the respondent’s actions causing physical harm and pain to the petitioner. Additionally, photographs of the petitioner’s injuries from the incident supported her testimony, indicating that the respondent’s actions were intentional and aimed at causing harm.
On the harassment charge, the Appellate Division concluded that the evidence presented by the petitioner, along with the respondent’s own testimony, demonstrated a pattern of behavior that alarmed and annoyed the petitioner. The respondent’s repeated attempts to confront the petitioner, including attempting to remove her child from her vehicle without consent and following her despite being asked to stop, constituted harassment under the law.
Furthermore, the Appellate Division found that the Family Court appropriately considered the evidence and circumstances in determining the length of the order of protection. They noted that the court was not required to take into account the duration of any temporary order of protection previously issued.
Conclusion
The court affirmed the order of protection against the respondent, finding that the evidence overwhelmingly supported the petitioner’s claims of assault and harassment. The length of the order was determined without considering the duration of any previous temporary order of protection.