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Wife Contends Ex-Husband Violated Order for Protection

A woman filed divorce action against her husband on the ground of abuse. The Court issued a decree of divorce and gave the custody of their son to the woman. A New York Family Lawyer said an Order of Protection was made permanent by the Court; the husband was ordered to leave the conjugal apartment and not to assault, menace or otherwise commit any disorderly conduct with his ex-spouse. The husband was given visitation rights. However, twelve months after the order, the woman filed a family offense petition before the Family Court.

She filed a complaint with the police that her ex-husband had violated the Order of Protection issued by the Family Court by going to her apartment, hitting her in front of their son, repeatedly calling her home phone number and threatening her and her child. The police arrested her ex-husband and he was arraigned.

At his arraignment he asked the dismissal of the cases for aggravated assault, aggravated harassment and harassment on the ground that his ex-wife filed an election where she agreed that these charges be tried not before the criminal courts but within the Family court that had jurisdiction over them.

The trial court dismissed the charges and transferred the jurisdiction to hear and decide these matters with the Family Court. A New York Child Custody Lawyer said the charges of Trespass to Dwelling and Criminal Contempt were not dismissed and these were continued to be tried by the criminal court.

The only issue in this appeal is whether or not the criminal trial court erred in dismissing the indictments for aggravated assault, aggravated harassment and harassment.

The Court held that under the law, the spouse has the right to elect if the charges she had brought against her ex-husband or partner should be tried in criminal court or in the family court. A Queens Family Lawyer said the ex-wife herself stated in her affidavit that she was not aware at the time she made the election of the consequences of her election. No one explained to her the difference between the proceedings before the criminal court and the family court. She also stated that had she knows what the election meant, had she known that electing to have the Family Court hear and decide her complaint meant that her ex-husband would not spend time behind bars, then she would have elected to bring the complaint before the criminal court.

The Court held that the Family Court and the Criminal Court had concurrent jurisdiction over the cases of Aggravated Assault, aggravated harassment and harassment. These crimes are also designated as family offenses because these are acts that may be committed not only between ex-husbands and ex-wives but also between parents and their children or between the children themselves.

These charges arise out of domestic relations which are usually subject matter of ongoing proceedings in Family Court. In contrast, a Queens Custody Lawyer said the crimes of Endangerment of a Child and Trespass to Dwelling may not include only acts which may be committed between members of one family. For this reason, these charges have been retained under the sole and exclusive jurisdiction of the trial courts to hear and decide.

The charge of criminal contempt cannot be tried anywhere else except in criminal courts. What is punished is the violation by the ex-husband of the lawful order of a court of competent jurisdiction. In this case, a the Family Court issued an order of protection prohibiting the ex-husband from menacing threatening or otherwise harassing his ex-wife. The fact that he did menace, threaten and harass her means that the ex-husband held the power and the order of the court in contempt.

The Court resolved that the dismissal by the criminal court of the charges of aggravated assault, aggravated harassment and harassment was proper.

Has an Order of Protection been issued in your favor? Did your spouse violate the Order of Protection? You need a NYC Family Lawyer to represent your interests in court. A New York Family Lawyer can help you file a complaint for criminal contempt with the criminal courts. A New York City Family Lawyer can help you present evidence of the harassment or assault your spouse committed against you in violation of the Order of Protection. Come and visit the offices of Stephen Bilkis and Associates. Speak with any of their NY Family Lawyers on staff. The New York Family attorneys at Stephen Bilkis and Associates are willing to represent you.

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