New York Family Law Blog
On June 30, 2010, Petitioner filed an Illegal Lockout proceeding by order to show cause in lieu of notice of petition, alleging that on May 5, 2010, his wife, Respondent had illegally locked him out of their apartment located at 1880 Valentine Avenue, Bronx, New York. Neither party appeared on the return date nor did the court dismiss the petition. A New York Family Lawyer said that, petitioner filed a second Illegal Lockout proceeding. On that occasion, Petitioner alleged that Respondent wife had locked him out of the subject premises in February 2010. Although Respondent appeared, Petitioner again failed to appear and the court dismissed that proceeding as well.
A New York Custody Lawyer said that, petitioner filed the Illegal Lockout proceeding now before the court, by order to show cause in lieu of notice of petition, on July 16, 2010, alleging that his wife had locked him out of the subject premises. Petitioner further alleged that he had contacted the police and that the police ordered him to leave. On July 23, 2010, both parties appeared and this court ascertained that on July 16, 2010, Family Court, Bronx County, granted each party a Temporary Order of Protection against the other. The Order of Protection obtained by respondent directed to petitioner, to stay away from respondent and the three minor children who reside with her at 1880 Valentine Avenue, Bronx, New York, and expressly excluded Petitioner from their home, the subject premises. In addition, Petitioner herein was directed to stay away from respondent’s place of employment and to refrain from any communication or other contact with the parties listed in the Order, except for court-ordered visitation with the parties’ infant child. Further, there was currently pending in Family Court a Family Offense proceeding, and a child custody and visitation proceeding, which listed petitioner’s address as 1160 Wheeler Avenue, Apt. # 1, Bronx, New York, not the address of the subject premises of this Lockout proceeding. Based upon the information presented, this court determined that Family Court was the most appropriate forum to resolve the parties’ dispute and dismissed the petition. The parties were directed to seek recourse in Family Court.
A Queens Family Lawyer said that, petitioner filed an order to show cause in Housing Court, alleging that the Family Court petition did not accurately state his address. On July 30, 2010, this court denied Petitioner’s motion based upon improper service. On August 4, 2010, Petitioner filed a second order to show cause in which he alleged that he had proof that Family Court had misstated his address. On August 13, 2010, the motion was adjourned to September 7, 2010. Petitioner failed to appear and the court again denied the motion.
A Queens Custody Lawyer said that, on the afternoon of September 7, 2010, Petitioner filed the motion now before the court seeking re-argument or renewal. Petitioner attached a copy of the Amended Petition for Visitation, which stated his address as 1880 Valentine Avenue, Apt. 1205, Bronx, New York, the subject premises of this Illegal Lockout proceeding. The Visitation petition also alleged that Petitioner’s wife, respondent herein, had gained custody of their child when she locked him out of the subject premises on July 1, 2010.
A Bronx Order of Protection Lawyer said that, the parties’ Family Court history appears to have begun in July 2009 with a Family Offense petition, filed by Respondent against Petitioner. Family Court issued a Temporary Order of Protection against Petitioner on July 31, 2009 and ordered him to stay away from Respondent and her home, located at the subject premises. The order was to remain in force and effect through October 1, 2009. On August 3, 2009 petitioner filed a Family Offense petition, and Child Custody and Visitation petition, against Respondent. Petitioner withdrew both petitions on the October 19, 2009 return date. On November 2, 2009, Family Court dismissed another Family Offense proceeding commenced by petitioner against respondent. In February 2010, both parties filed Family Offense petitions, each listing the other as the respondent. After several court appearances, both proceedings were dismissed for non-appearance on June 3, 2010. Finally, on July 16, 2010, the parties filed cross-Family Offense petitions and obtained Temporary Orders of Protection against one another. Petitioner also filed a Custody and Visitation petition. On July 22, 2010, Family Court granted Petitioner a Temporary Order of Visitation, which provides that Petitioner may have supervised visits with his infant daughter on Saturdays between noon and 5:00 PM. The parties’ Family Court proceedings are all scheduled for trial on October 22, 2010.
The issue in this case is whether petitioner’s motion to reargue or renew pursuant to CPLR §§ 2221(d)(2) and (e)(2) should be granted.
As this court stated in its Order on July 23, 2010, Family Court is the appropriate forum to resolve the critical issues of custody and visitation and of which spouse may live in this apartment with the infant child. Among the purposes of a Family Court Act (FCA) Article 8 family offense proceeding is to protect victims of domestic violence by providing a civil, non-criminal alternative to criminal prosecution when family members commit certain designated criminal offenses. An Order of Protection pursuant to FCA Article 8 may require a respondent to stay away from the home of any other party to the proceeding or of a child who is the subject of that proceeding. Similarly, in abuse and neglect proceedings pursuant to FCA Article 10, Family Court may issue Orders of Protection, including exclusion orders, to safeguard a child’s physical, mental and emotional well-being.
Indeed, Family Court has already undertaken to determine the relationship among Petitioner, his spouse, Respondent and their child by issuing an order on July 22, 2010 allowing Petitioner only supervised visits with his infant daughter, who lives with her mother at the subject apartment. That order prevents Petitioner from living in the apartment by permitting only very limited supervised visits with his child, outside the apartment. That Family Court order, by itself, which is continued through October 22, 2010, effectively prevents this court from restoring Petitioner to possession of the subject premises.
At the time Petitioner filed this proceeding on July 23, 2010 there was in effect a Family Court Order of Protection against Petitioner on behalf of his wife, and their child, expressly excluding Petitioner from the subject premises. It is noteworthy that in Petitioner’s prior Housing Court proceeding, which was dismissed for non-appearance, Petitioner alleged that he had been locked out in February 2010, yet he filed that petition five months later, in July 2010. In fact, Petitioner has listed several possible dates on which he might have been locked out of the subject premises.
There is an extensive history of domestic violence alleged by Petitioner and Respondent which has led to a number of cross-Family Offense petitions filed in Family Court which have resulted in Petitioner’s exclusion from the subject premises, as well as multiple domestic incident reports and the issuance of Orders of Protection by Family Court and Criminal Court against Petitioner on behalf of various other women.
Family Court, Bronx County, has scheduled for trial on October 22, 2010 Petitioner’s and Respondent’s cross-petitions for Orders of Protection and the Custody and Visitation petition involving their child, who lives with her mother and other minor children, in the subject apartment. Family Court is the proper forum to adjudicate these issues between the parties, as well as who may reside with the children in subject apartment. Family Court is charged with the responsibility of protecting against domestic violence and, unlike Housing Court, has the responsibility and expertise to determine who may live or have contact with the children living in an apartment. Family Court has asserted its jurisdiction over these matters and these parties, and has issued a series of Temporary Orders of Protection seeking to prevent domestic violence and to protect a child under the court’s jurisdiction by fixing the time and manner Petitioner may have contact with their child in common, as well as the other minor children living in the subject premises. Furthermore, Family Court has set a specific date for final adjudication of these matters. Not only must this court adhere to its earlier decision because there was a Family Court Order of protection expressly excluding Petitioner from the subject premises at the time Petitioner filed this Housing Court proceeding, this court must not interfere with the critical issues, involving these parties, presently before that court.
Accordingly, the court held that Petitioner’s motion is denied.
If you are a victim of domestic violence, seek an order of protection from the court. To do this, you will need the help of a Bronx Order of Protection Attorney and/or Bronx Domestic Violence Attorney at Stephen Bilkis and Associates. Call us.