New York Family Law Blog
The parties are Sunni Muslim and the marriage was arranged between the families. On 18 June 1998, the parties got married at a civil ceremony in New York, and on 10 July 1998, the religious ceremony was performed. Thereafter, within 48 hours after the religious ceremony, defendant-wife left the marital residence and never returned. A New York Family Lawyer said that consequently, on 29 July 1998, plaintiff-husband filed a summons with notice in the Supreme Court to annul the marriage based upon fraud. On 6 November 1998, defendant-wife filed a verified answer and counterclaim seeking a divorce upon the grounds of cruel and inhuman treatment. The defendant-wife’s counterclaim contains allegations which, if true, may rise to the level of spousal abuse. In addition, the wife counterclaims for money damages in the sum of $21,000 for plaintiff’s failure to abide by a religious wedding contract, referred to as a “Mehr agreement”, defendant’s share of the wedding gifts, monies expended by defendant’s family for a lavish wedding, return of defendant’s jewelry, and the award of counsel fees. In regard to defendant-wife’s allegations of suffering, abuse, and violence by her husband on their wedding night, on 20 August 1998, defendant-wife filed a petition for an order of protection in the Court of Common Pleas in Delaware County, Pennsylvania. However, on 17 September 1998, the petition was withdrawn by defendant-wife, and the Court issued an order stating that the withdrawal was with prejudice to the petitioner. Defendant-wife also filed a criminal complaint against plaintiff-husband for the crime of Harassment in the Court of Common Pleas of Delaware County, Pennsylvania. On 7 December 1998, a preliminary hearing was held.
A New York Custody Lawyer said the defendant-wife appeared pro se, while plaintiff-husband was represented by counsel. The court dismissed the criminal complaint since defendant-wife failed to prove a prima facie case that a crime was committed and that the husband had committed the crime charged.
On 21 September 1998, defendant-wife obtained an order of protection in a Family Court in Queens County, New York, which was subsequently dismissed by that Court on 10 December 1998 since a matrimonial proceeding was pending in the Supreme Court, Nassau County. On 11 December 1998, defendant-wife submitted an order to show cause ex parte to the Supreme Court, Nassau County, requesting a temporary order of protection against plaintiff-husband, which was assigned to another Justice of the court due to the unavailability of the Justice assigned to the case. The affidavit by the wife in support of the order to show cause contained substantially, in sum and substance, the same allegations of abuse and domestic violence averred in the counterclaims. In addition, defendant-wife claimed that plaintiff-husband had violated a previous temporary order of protection without making reference to the date issued and the name of the court and judge who issued the order. Subsequently, the defendant’s application was granted, and the temporary order of protection was issued by the Supreme Court Justice. The order was to expire on 16 December 1998, the date the case was scheduled to appear before the Court. On that date, counsel for the defendant-wife submitted an application to be relieved, pursuant to CPLR § 321, which was granted by the order of the Court on 23 December 1998. The action was stayed until 15 January 1999 in order to allow defendant-wife to obtain an attorney. The temporary order of protection issued on 11 December 1998 was extended by the Court until 15 January 1999 over the objections of plaintiff’s counsel. Plaintiff’s counsel then requested a hearing on the record and sought to vacate the temporary order of protection issued upon the ground that the allegations by the wife were contrived and fabricated in order to have his client repeatedly arrested on false allegation of violation of the temporary order of protection. According to plaintiff-husband’s counsel, plaintiff-husband is a neurologist, and his ability to care for his patients has been severely impaired by the wife’s conduct. The Court has extended the temporary order of protection several times until a hearing could be held on plaintiff’s application to vacate the temporary order of protection. The temporary order of protection has been extended to 17 May 1999 by order of the Court dated 23 February 1999.
On 22 January 1999, the Court commenced a hearing. A Nassau County Family Lawyer said the defendant-wife appeared with counsel. The defendant-wife is the petitioner for purposes of the hearing and decision on the application for a temporary order of protection, and the plaintiff-husband is the respondent. The hearing continued on 27 January 1999, 3 February 1999, 8 February 1999, 11 February 1999, 17 February 1999, and 23 February 1999. On 3 March 1999, at the close of petitioner’s case, the respondent-husband informed the Court that he would consent to the Court’s issuance of the temporary order of protection. However, petitioner stated on the record that she wanted respondent to testify at the hearing and sought a court determination on the merits of the allegations made by the petitioner. Also, petitioner-wife made a belated request to the Court, for the first time, to convert the hearing for a temporary order of protection into a hearing for a permanent order of protection.
In other words, a Nassau County Custody Lawyer said the case is all about the husband’s opposition to the issuance of the temporary order of protection and the wife’s application, among other things, to convert the temporary order of protection to a permanent order of protection.
The Domestic Relations Law § 252 provides for a very little substantive law and guidance for the procedural devices to be utilized when a party’s motion for a temporary order of protection is contested in a pending divorce proceeding. Under its provisions, a temporary order of protection may be issued upon the Court’s own motion or, where a motion for such relief is made to the Court, for good cause shown. This seems to contemplate the issuance of a temporary order of protection upon an ex parte motion since it precludes some of its provisions, applicable to orders of protection, requiring a court finding on the record. However, the Court can find guidance under the statutory provisions of Article 8 of the Family Court Act relating to temporary orders of protection involving allegations of domestic violence, which are far more extensive and instructive regarding the court procedures and substantive law for the issuance of temporary orders of protection.
As a rule, applications for temporary orders of protection are commonplace in Family Court and are usually issued prior to the commencement of a matrimonial proceeding in Supreme Court. Prompt issuance of a temporary order of protection often is needed to deal with dangerous and potentially explosive situations. The applicant requesting a temporary order of protection, pursuant to Family Court Act § 828, is entitled to file a petition without delay. The applicant must show good cause before the Court may issue an order of protection. Although no hearing is explicitly required by Section 828 of the Family Court Act, the practice commentaries to Section 828 suggest that it would be error not to issue a temporary order of protection without a full judicial inquiry upon demand by the respondent. If the order is made ex parte, which is common practice, the party against whom the order is made should be given a hearing to reconsider the order, unless the case is presently coming to trial, as held in the landmark case of Peters v. Peters. The courts have long recognized the opportunities for abuse of ex parte applications made permitting the issuance of temporary orders of protection on the unilateral testimony or affidavit of a petitioner who may have a substantial axe to grind. Consequently, where the allegations by the petitioner are disputed as being contrived and suggest that the petitioner is seeking to manufacture instances of spousal misconduct, a hearing should be held in order to ensure that the court process has not been impermissibly invoked as a sword rather than a shield, as held in the celebrated case of Chieco v. Chieco.
In the case at bar, an immediate hearing was necessary by reason of the allegations made by the respondent-husband who is a neurologist that the lives of his patients are in constant jeopardy since petitioner has had him arrested pursuant to the temporary order of protection.
At the conclusion of the petitioner’s case, the respondent’s counsel consented to the issuance of the temporary order of protection which is to remain in effect until 15 December 1999. The court found that the argument presented by the petitioner-wife that the respondent must continue with the hearing and present witnesses until a final factual determination by the Court was without merit. The Court can make a finding that the petitioner is entitled to the issuance of the temporary order of protection based upon a judicial finding that the party against whom the order is issued has given knowing, intelligent, and voluntary consent to its issuance. Such a finding by the Court is allowed in determining the issuance of an order of protection, pursuant to DRL § 252(4), and the Court does not see why it should not also be applicable to a judicial finding on the issuance of a temporary order of protection based upon the consent of the opposing party. Besides, judicial economy mitigates against the continuance of the hearing since it would only result in a further delay of trial. Nonetheless, a judicial finding that the husband consents to the issuance of the temporary order of protection does not collaterally estop the wife from litigating her counterclaims on grounds for divorce. The temporary order of protection is an intervention device to prevent the serious injury of a party. The temporary order of protection is not a finding of wrongdoing. It does not resolve the litigation on the grounds for a divorce or annulment. Here, it must be noted that the respondent-husband has voiced his consent to the issuance of the temporary order of protection through his attorney. However, this is not satisfactory to the Court. The respondent will have to allocute, under oath, that he is knowingly, intelligently, and voluntarily consenting to the issuance of the order of protection.
Nevertheless, petitioner’s belated request to convert her application for a temporary order of protection to an order of protection was denied. The Court has the discretion to wait until a final judgment in the matrimonial action before issuing an order of protection. The issues of spousal abuse as alleged by the petitioner will be revisited during the trial with the same witnesses since the allegations were also contained in her counterclaim for divorce upon the ground of cruel and inhuman treatment. Additionally, the respondent’s anticipated defense is mirrored in his action for annulment based upon fraud contained in his complaint. The Court found that a continued hearing to determine the issuance of an order of protection is unnecessary in order to avoid a duplication of litigation, and doing so will only prolong petitioner’s right to an expedient trial.
Sad to say, domestic violence in families is not that uncommon.
Spousal abuse has been known to occur in each and every household from time to time. If you find yourself caught up in this kind of situation and you want to protect yourself or prevent this from happening again, contact us and consult with our Nassau County Domestic Violence Lawyers. We, at Stephen Bilkis & Associates, have the best Nassau County Criminal Lawyers, Nassau County Family Lawyers, and the like. We are here to help you with your concerns on safety and the protection of your rights.