New York Family Law Blog
In Sicina v. Gorish, 209 A.D.3d 658, (N.Y. App. Div. 2022) the court considered whether to extend an order of protection. In New York, a family court order of protection may be extended for various reasons, including instances where the order has been violated. When a violation occurs, the court may opt to extend the duration of the order to provide continued protection to the petitioner.
One primary reason for extending an order of protection is to ensure the safety and well-being of the petitioner and any other individuals covered by the order. If the court finds that the respondent has willfully violated the terms of the order, it may view this as evidence that the threat to the petitioner still exists. Therefore, extending the order allows the court to maintain safeguards against potential harm.
Moreover, extending an order of protection serves as a deterrent to future violations. By imposing additional time on the order, the court sends a clear message that violations will not be tolerated and that consequences will follow. This can act as a deterrent to the respondent, discouraging further attempts to breach the terms of the order.
Additionally, the extension of an order of protection may be warranted to provide the petitioner with a sense of security and peace of mind. Knowing that the protection order remains in effect for an extended period can offer reassurance to the petitioner, particularly if they continue to feel threatened or harassed by the respondent.
Furthermore, in cases where the respondent has repeatedly violated the order or has demonstrated a pattern of abusive behavior, extending the order may be necessary to ensure long-term protection. This is especially true if the respondent shows little regard for the court’s orders or exhibits a propensity for escalating their behavior.
Background Facts
Gorish v. Family Court, Orange County, involves an appeal by Otto Gorish from an order issued by the Family Court, Orange County, on September 7, 2021. This order, among other things, extended an order of protection against Gorish and directed him to pay $1,000 in counsel fees to the petitioner.
In August 2020, a family offense petition was filed against Otto Gorish by his ex-boyfriend, alleging harassment, aggravated harassment, and forcible touching. The petitioner sought protection from the court, leading to the issuance of an order of protection on October 15, 2020, which mandated Gorish to stay away from the petitioner’s home by a distance of 1,000 feet.
Subsequently, on February 23, 2021, the petitioner filed a petition asserting that Gorish had violated the order of protection. The Family Court conducted a hearing, during which evidence was presented that Gorish had been within the prohibited distance from the petitioner’s home on multiple occasions, including November 5 and November 10, 2020.
Following the hearing, the Family Court determined on September 7, 2021, that Gorish had willfully violated the order of protection. Consequently, the court extended the order until September 7, 2023. Additionally, Gorish was directed to pay counsel fees amounting to $1,000 to the petitioner.
Gorish appealed the decision, contesting the finding of willful violation.
Issue
The primary issue before the appellate court is whether Gorish willfully violated the order of protection issued by the Family Court.
Holding
The appellate court affirms the Family Court’s determination that Gorish willfully violated the order of protection. However, it modifies the order by striking the provision that directed Gorish to pay $1,000 in counsel fees to the petitioner.
Rationale
The appellate division upheld the Family Court’s decision, stating that Gorish’s violation of the protection order was supported by clear and convincing evidence. They emphasized that the Family Court, as the fact-finder, had the authority to determine the credibility of witnesses, and their decision should not be overturned unless unsupported by the record.
Regarding jurisdiction over the violation, the appellate division clarified that conduct constituting a violation of the protection order did not necessarily need to be a separate family offense for the court to have jurisdiction. They cited relevant legal precedents to support this position.
Additionally, the court addressed the issue of counsel fees, noting that the Family Court had the discretion to award them to the petitioner if the violation of the order was found to be willful. However, they found that the Family Court erred in determining the amount of counsel fees without a hearing. Consequently, they remitted the matter back to the Family Court for further proceedings to establish the reasonable and necessary amount of counsel fees.
Conclusion
The appellate court affirmed the Family Court’s decision regarding Gorish’s violation of the order of protection but modified the order concerning the payment of counsel fees. The case was remanded to the Family Court for further proceedings to determine the appropriate amount of counsel fees.