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Court Rules on Jurisictional Issue with Order for Protection

On December 29, 2003, the petitioner Mother filed an immediate Family Offense petition with the New York Court, which conformed to the provisions of the Family Court Act. The petitioner requested and was granted a Temporary Order of Protection, which granted temporary child custody to the Mother. The Court, based upon the petitioner’s allegations of domestic violence, directed the Nassau County Department of Social Services to conduct a Court Ordered Investigation. A New York Criminal Lawyer said the matter was adjourned and the respondent was served with the Summons, Petition and Temporary Protection Order wherein the respondent was not present.

The Court received the results of the COI which was indicated and closed as to both parents, for inadequate guardianship. There was also some discussion regarding a letter allegedly sent to this Court by a Virginia Court. The file was searched for said letter but there was no such letter in the file. The respondent Father’s counsel requested a continuance, which was granted. The respondent’s lawyer was again instructed to either submit an order to show cause, file a motion or have his client appear on the next court date. The matter was adjourned.

A Nassau County Family Lawyer said that according to records, sometime during the morning of 2004, the court received a Fax from the counsel’s lawyer purporting to be an Order to Show Cause. The court was also informed that the respondent’s lawyer would not be available to the court until 11:30 AM. At 2:30 PM, the case was called whereupon there being no appearance, the Court granted a two-year Final Protection Order on Default. The Order contained the same provisions as the prior temporary protection order.

The Petitioner asserts that the court did not have subject matter jurisdiction over the events alleged in the initial petition, since all the allegations therein occurred in the State of Virginia. He correctly concedes that the Family Court has jurisdiction concerning specified acts that the Family and Criminal Courts of the State of New York share. However, he mistakenly relies only on the Criminal Procedure Law which provides that the state can entertain jurisdiction over on conduct that has occurred with the state.

In relevant part, the family court and criminal courts shall have concurrent jurisdiction over any proceeding concerning acts which would constitute disorderly conduct between spouses or former spouses, or between parent and child or in relevant part, states that proceedings under the article may be originated in the county in which the act or acts referred to in the petition allegedly occurred or in which the family or household resides or in which any party resides.

The initial petition alleged that the petitioner, and the child, resided in Nassau County at the time of its filing. The petition further indicated that they left Virginia due to incidents of violence. Accordingly, this court properly exercised its jurisdiction.

As to the issue of custody in relevant part states that upon the filing of a petition or counter-claim under this article, the court for good cause shown, may issue a temporary protection order, which may contain any provision authorized on its making provided that the court shall make a determination, and the court shall state such determination in a written decision or on the record, whether to impose a condition pursuant to this subdivision, provided further, however that the failure to make such determination shall not affect the validity of such order.

In relevant part, the protection order shall set forth reasonable conditions of behavior to be observed for a period not in excess of two years. A Queens Family Lawyer said that the court may also award custody of the child, during the term of the protection order to either parent. The Summons served upon the respondent contained notice where the respondent has been served with this summons and petition and does not appear, the Family Court may proceed to a hearing with respect to issuance or enforcement of the order.

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