New York Family Law Blog
A husband filed a petition seeking an order of protection against his spouse, based upon the sole ground that she smokes cigarettes in the presence of himself and the children, causing harm to them.
A New York Family Lawyer said that the records of the case showed that the wife commenced an Action for Divorce on the grounds of domestic violence and cruel and inhuman treatment. The husband brought on an order to show cause in which he seeks a protection order against the wife prohibiting her from smoking cigarettes in the presence of himself and their children, together with other requests. The husband is a physician and claims that his wife’s smoking is causing harmful effects upon their children. He describes his wife as a “chain smoker” who smokes at least three packages each day. He claims that she smokes all over the marital residence. The husband argued that, pursuant to relevant provisions of family laws, the court not only is empowered, but is required to step in and protect the welfare of adults or children wherever they are subjected to any form of harmful or abusive conduct.
The wife contended that she is not a “chain smoker.” However, the wife did not reveal how much she does in fact smoke, nor did she indicate whether she ever smokes in the presence of the children. A New York Custody Lawyer said that the wife said her cigarette smoking is confined to a small T.V. room on the ground floor of the marital residence. She also indicates that she does not smoke in the upstairs area of the house.
The court held that the Domestic Relations Law authorized the Court in any matrimonial action to issue an order of protection. However, the court pointed out that it is well settled that, in deciding whether or not to grant a protection order, the court must limit itself to the enumerated crimes or violations. These enumerated crimes or violations are disorderly conduct, harassment, menacing, reckless endangerment, assault, and attempted assault. A request for a temporary or final protection order, which fails to allege any of the enumerated crimes or violations must be dismissed.
The court also explained that the purpose of the legislators in adopting the Family Court Act was to provide families, a civil, non-criminal alternative to a criminal prosecution. Failure to make certain that its original purpose is implemented may result in a chilling effect upon those who desperately need the protection order but do not wish the other party placed in jail or to have to incur large sums of money defending against a criminal charge. A Nassau County Family Lawyer said protection orders are essential tools designed to protect family members from domestic violence.
In this case, the husband’s request for a protection order is based on the sole ground that his wife is a cigarette smoker and that her habit is offensive and detrimental to the health and welfare of the defendant and the children. The husband did not allege that cigarette smoking is a crime or a violation of any section of the Penal Law nor does he allege that she has committed any acts which would constitute disorderly conduct, harassment, menacing, reckless endangerment, assault, or an attempted assault between spouses.
A Queens Family Lawyer said that the court denied the husband’s petition for a protection order because he has failed to allege that cigarette smoking is a crime or violation of any section of the Penal Law and further has failed to allege that the acts of the wife violated any enumerated crime or violation listed in the Family Court Act. The legislature never intended to grant the court the power to issue a protection order against a spouse for smoking in the marital residence which could result in her being arrested, fingerprinted, held in jail awaiting appearance before a court and being forced to defend against a criminal charge of criminal contempt.
Being involved in a lawsuit arising from domestic violence or child custody is difficult for all. Stephen Bilkis & Associates will make sure you and your rights are protected at all stages in the case.