New York Family Law Blog
In this case, the petitioner filed against the respondent to whom she is married and has one child. The petitioner received a temporary order for protection against the respondent. This was ordered to direct the respondent to cease from all communications with the petitioner, except those relating to the care of the child. Through various court appearances, the order was extended. The petitioner filed various violation petitions.
The violation petitions were consolidated. The court concluded that she failed to prove a family offense petition, but the court sustained the violation petition and issued a one-year final protection order.
The respondent appealed, and the appellate court affirmed. One dissenting justice claimed that the family court lacked jurisdiction for the final order because the family offense petition had been dismissed [147 AD3d 675]. The court certified to this court regarding this issue.
The respondent states that the prior family court lacked jurisdiction in finding that the respondent had violated the petition because there was never a determination that the alleged conduct in either previous petition amounted to a family offense.
The family court has limited jurisdiction (HM v ET, 14 NY3d 521). The NY Constitution and Family Court Act provides that the court has concurrent jurisdiction regarding family cases [Family Court Act 812 [1]). The purpose of Article 8 is to remove a limited class of offenses arising out of family disputes.
When a family petition is filed, the court can issue a temporary protection order (Family Court Act 821-a [2][b]). In the event of wrongdoing, the court can hear the violation, consider it as a contempt of court, or transfer the allegations as criminal conduct. The court said if a respondent is brought before the court for failure to obey and it is shown that they did violate the order, the court may modify the original order to add conditions of behavior, or make a new order, or commit the respondent to a jail term.
The court looks at the statutory intent for guidance, which is contained in the language itself (Majewski v Broadalbin-Perth Cent. School District 91 NY2d 577). The Family Court Act clearly grants the Family Court jurisdiction over its orders. The language authorizes the court to create a new order for protection if the respondent was found to have willfully violated the last one.
The court contends, however, that the new order can’t be created where the original petition has been dismissed and the underlying conduct doesn’t qualify as a family offense. The respondent argues that dismissing the family offense petition deprives the court of any further jurisdiction. We disagree.
The court held that the Family Court Act 846 doesn’t contain any language binding the family court’s authority to impose penalties for a willful violation of a temporary order.
There is a legal basis to draw a distinction between the jurisdiction of the family court over violations of orders for protection after finding a family offense and violations for temporary orders entered during a family proceeding.
Statutes establish that conduct that violates an order for protection doesn’t need to constitute a separate family offense for the court to have jurisdiction.
The court held that the family court properly concluded that the respondent violated two orders for protection and the family court acted within its jurisdiction to rule on those findings. The appellate decision is affirmed.
If you have a family law matter, it is important to seek legal guidance as soon as possible. Attempting to handle a matter on your own can be detrimental to your case. Come and speak to the legal team at Stephen Bilkis and Associates for guidance and a free consultation at 1-800-NYNYLAW.