New York Family Law Blog
This matter has had a convoluted history and presents a legislative “glitch.” A New York Family Lawyer said that during a contested divorce proceeding, the Family Court issued, inter alia, a temporary order of protection dated April 26, 2001. At the time the order was issued, both parties appeared before the Judge. A New York Custody Lawyer said that, pursuant to the temporary order of protection, the Sheriff’s Department seized 26 guns belonging to the petitioner. Thereafter, on May 2, 2001, the Judge issued a permanent order of protection against the petitioner. On or about January 31, 2002, the parties reached a settlement agreement. By order dated April 11, 2002, pursuant to the settlement agreement, the Judge withdrew the permanent order of protection before it expired by its own terms. A judgment of divorce was entered on July 3, 2002.
Subsequently, Nassau County Family Lawyer said that, petitioner applied to this court, pursuant to article 78, for an order directing the release of the firearms seized by the Sheriff’s Department, Family Court Domestic Violence Unit. This court denied the application without prejudice to renew in Family Court. Its decision was based upon the theory that the Family Court was better capable of deciding the issue since the history and appropriate records of alleged violence had been before the Family Court when the order of protection was first issued, the seizure of the firearms was first ordered, and the order of protection was subsequently vacated by the Judge.
A Nassau Family Lawyer said that, on December 2, 2002, in compliance with this court’s order, petitioner brought a notice of petition to the Nassau County Family Court for an order releasing the firearms seized in conjunction with the order of protection that the Judge had issued. Although the petition was unopposed, it was dismissed by the said Judge due to lack of jurisdiction. Petitioner appealed the Family Court order to the Appellate Division, Second Department, and the order was affirmed. As a result, the matter was brought before this court by notice of motion for renewal of this court’s previous order. The motion was granted, but since this court had no familiarity with the parties or the proceedings that were held before the Judge, it was necessary for the court to conduct a hearing. A Nassau County Custody Lawyer said for the purpose of the hearing, the court renewed the appointment of the Law Guardian, who had been appointed in Family Court to protect the interests of the children. At the time of the hearing, the children were 8 and 10 years of age and had visitation with the petitioner.
The issue in this case is whether the court erred in denying to release the firearms seized by the Sheriff’s Department, Family Court Domestic Violence Unit despite of the lapse of the order of protection against petitioner.
The Court said that, section 842-a of the Family Court Act provides the Family Court with the authority to revoke or suspend a firearms license and order immediate possession. However, the section does not specifically provide authority to the Family Court judge to return the firearms ordered to be seized. In a 2003 case decision, the Appellate Division held that the Family Court did not have jurisdiction to issue an order directing the return of firearms which movant had surrendered pursuant to previous court orders. The Appellate Division held that the movant’s remedy was instead to make an application to the officer that had custody of the firearms. Unfortunately, it can reasonably be anticipated that the officer that has custody of the firearms will refuse to return the firearms without a court order, which is the present situation before this court.
Since there is no law and no enabling legislation directing the Family Court judge to order the return of the firearms, once Family Court jurisdiction is lost, the burden is put on this court, which does not have the comparable knowledge or background on cases litigated in the Family Court. Since a Family Court judge has the authority to issue orders of protection and vacate said orders of protection, it appears to be a legislative oversight in not providing the Family Court judge with continued jurisdiction to determine whether the firearms seized pursuant to that judge’s order of protection can be returned to the offending party. Once Family Court jurisdiction is lost, the decision to determine the return of said firearms is now left to a judge who is not familiar with the history of the family, the parties, and any alleged violence that may have transpired resulting in the issuance of the order of protection and seizure of said firearms.
Presently, the Integrated Domestic Violence Court has been instituted in New York State by Chief Judge in order to have one judge handle not only the parties’ divorce proceeding and/or Family Court proceeding but also any alleged criminal actions arising from domestic violence in conjunction with those proceedings in order to avoid the past situations where different judges were handling different aspects of the case and were unaware of the family history of violence. Similarly, the Family Court judge who issues an order of protection with seizure of firearms should be given the authority to decide whether to allow the return of said firearms rather than the bifurcation of the two issues of the order of protection and the return of firearms between two judges.
Thus, this court strongly urges legislation to amend section 842-a of the Family Court Act to provide Family Court judges with not only the authority to seize firearms pursuant to an order of protection but also the discretion to determine when or if said firearms should be returned.
Accordingly, the court held that petitioner’s application pursuant to CPLR article 78 for an order directing the release of 26 firearms previously seized by the respondent, Nassau County Sheriff’s Department, Family Court Domestic Violence Unit, pursuant to an order of protection issued by the Judge in the Family Court is granted.
The Family Court has jurisdiction to issue order of protection in cases of domestic violence. If you are a victim of such crime, you will need the help of a Nassau Domestic Violence Attorney and Nassau Order of Protection Attorney in order to secure a protection order to prevent further harm to yourself.