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Wife Contends Husband Violated Order for Protection

The complainant woman filed a Family Offense Petition in the Family Court of Bronx County against her husband. A New York Family Lawyer said acting on the petition, the Family Court issued a permanent Order of Protection in favor of the wife. The Order, the duration of which is 12 months, directed that the husband shall refrain from acts constituting assault, menacing, reckless endangerment, and/or disorderly conduct directed against his wife and it is further ordered that the husband is excluded from the wife’s apartment.

Earlier, the Bronx County Family Court had issued an order governing visitation by the husband to their child.

On August 10, 1987, the complainant filed a Petition for Violation of the Order of Protection in the Bronx Family Court based on conduct allegedly engaged in by the husband on several occasions. It is the conduct complained of on August 9 and 10, 1987 along with the events of July 26, 1987 which likewise form the basis of the criminal charges. A New York Custody Lawyer said also on August 10, 1987, the complainant filed with the Family Court a Petition for Modification of the Visitation Order. Both petitions were signed by the wife on August 10, 1987. The husband was arrested on the wife’s complaint to the police and given a desk appearance ticket returnable in the Bronx Criminal Court.
The wife appeared at the offices of the Bronx County District Attorney and swore out a criminal complaint against her husband for his actions. The complaint was filed by the City but the husband was not actually arraigned until October 8, 1987. The Family Court dismissed the Petition for Violation of the Order of Protection based on the pendency of the criminal proceedings.

A Queens Family Lawyer said the husband bases his motion to dismiss on the complainant’s irrevocable election of the Family Court as the forum in which to litigate the issues arising out of the alleged violation of the Family Court’s Order of Protection. He argues that more than seventy-two hours passed after his wife appeared in Family Court when she commenced a proceeding in that forum and when she signed the complaint to have her husband’s conduct prosecuted according to the Penal Law.

The City argues that the wife was not provided with the admonitions and information mandated by Family Court Act Section 812, and therefore did not make a legally effective election to proceed in the Family Court. The wife’s affidavit recites that she was not informed of the differing purposes of proceeding in the fora and that had she known she would have chosen the Criminal Court. In the alternative, the City contends that even if the wife is found to have made a binding election to proceed in the Family Court, the Criminal Court nevertheless retains jurisdiction over that count of the information charging the husband with Criminal Contempt.

A Queens Custody Lawyer said the Court concludes that complainant has made a binding election to proceed in the Family Court with respect to those counts of the information charging the husband with Attempted Assault in the Third Degree, Harassment, and Aggravated Harassment in the Second Degree. Consequently, those charges are dismissed with leave to restore in the Family Court. With regard to the charges of Endangering the Welfare of a Child, Criminal Trespass in the Second Degree and Criminal Contempt in the Second Degree, the Court hold that those counts are within the jurisdiction of the Criminal Court.

The Family Court Act, Section 812(1) confers jurisdiction on the Family Court concurrent with the Criminal Court over certain acts designated as family offenses which constitute disorderly conduct, harassment, menacing, reckless endangerment, assault in the second degree, assault in the third degree or an attempted assault, between spouses or between a parent and child or between members of the same family or household. In addition to these enumerated family offenses, case law has extended the jurisdiction of the Family Court to other penal offenses when the non-enumerated offense is inextricably linked to an enumerated family offense.

Offenses will be considered inextricably linked only when they share a common legal element. An offense whose legal elements stand independently of the enumerated offenses charged in a given case is distinct and may not be heard in the Family Court. It follows that with regard to those penal offenses which are not inextricably linked to one of the enumerated family offenses, no right of election exists because the Criminal Court has exclusive jurisdiction over them. Conversely, a right of election exists only with regard to those offenses over which both courts may exercise jurisdiction.
Endangering the Welfare of a Child occurs when a defendant knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a male child less than sixteen years old or a female child less than seventeen years old or when a parent, guardian or other person legally charged with the care of custody of a child less than eighteen years old, he fails or refuses to exercise reasonable diligence in the control of such child to prevent him from becoming an abused and neglected child, a juvenile delinquent or a person in need of supervision.

Finally, the purpose of a prosecution for Criminal Contempt is not in any sense private, but has as its objective the vindication of the integrity of the judicial system. It is inconceivable that the decision to bring a criminal proceeding for this offense could rest in the hands of an individual complainant.
Whether the charges of Attempted Assault, Harassment and Aggravated Harassment may be heard by the Court depends on whether the complainant has elected the said forum or another forum. When events occur which violate a Family Court Order of Protection and which would constitute family offenses under Family Court Act, a complainant has three available choices. A Family Court Petition or a Petition for Violation of the Order of Protection may be filed in the Family Court or a complainant may proceed to institute a prosecution in the Criminal Court.

It is undisputed that the wife commenced a proceeding in the Family Court based on her husband’s alleged violation of the Family Court’s Order of Protection. The earliest date on which the criminal prosecution may be said to have originated was the day that she signed a criminal court complaint. The District Attorney’s office filed the charges against the husband on the same day. Because the proceedings in criminal court commenced more than seventy-two hours after a still-pending Family Court proceeding was instituted, it would appear that the Court lacks jurisdiction over those counts of the information for which complainant had a right of election, Attempted Assault, Harassment and Aggravated Harassment. However, there still remains the issue of whether the wife made an effective election to proceed in the Family Court absent her receipt of the information and admonitions required to be provided to every complainant seeking redress for a family offense.

In order to effectuate the right of the victim to make an intelligent choice at a time of stress, both the Criminal Procedure Law and the Family Court Act require that before any proceeding is commenced, a complainant be given information, including the right to elect either forum, how that election may be made, the possible consequences of proceeding in Criminal Court and the services and functions available to bring about conciliation through Family Court. In addressing the City’s contention that failure to so inform the wife renders her initial selection of the Family Court invalid, the Court will assume that the wife was not provided with such information when she went to the Family Court on August 10, 1987.

Accordingly, the failure of various agencies to apprise the wife of her options does not affect her election to proceed in the Family Court even if that election was not the product of an informed decision or was not appropriate to her needs.

In dealing with each other’s differences and misunderstandings, the couple most often than not, forget that their child needs them both. Sometimes the husband and wife compete with one another and put their children in the middle of their fight. If you want to put your child’s best interest, visit Stephen Bilkis and Associates and talk to their Bronx County Family Lawyer together with their Bronx County Order of Protection Attorney.

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