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Court Overturns Order for Protection

Petitioner filed a family offense petition in wherein she alleged in pertinent part that respondent physically assaulted her on numerous occasions and threatened to shoot her. A New York Family Lawyer said although served with a copy of the summons and petition, respondent did not appear on the return date of the petition. The Presiding Judge in the Part conducted an inquest on that date. Finding aggravated circumstances, the judge entered a final order of protection on the same date for a term of four years, requiring respondent to stay away from petitioner and her children, and to refrain from communicating with or committing any acts constituting a family offense against petitioner mother and the children.
A Queens County Order of Protection Attorney said that respondent father filed a petition seeking visitation with the children. The court dismissed the petition without prejudice as neither party appeared. There is no indication that the father ever served the mother with the petition. This is how matters remained until the Administration for Children’s Services filed neglect petitions against the mother alleging in pertinent part that the mother had engaged in sexual intercourse with a 12-year-old minor and that the home and the children were malodorous. Through that date the father had no contact with the children at least since the mother had filed the 2006 family offense petition.
Later, the mother withdrew her previous denial to the allegations of the neglect petition and submitted to the jurisdiction of the Family Court pursuant to Family Court Act § 1051 (a). Based upon the allegations set forth in the verified petition, the court found that the mother neglected the subject children based upon failure to exercise a minimum degree of care in providing the subject children with adequate guardianship and supervision. As part of the dispositional order, petitioner mother was ordered to refrain from making disparaging comments against respondent, who was not a respondent in the neglect proceedings.

During the pendency of the neglect proceedings, the father filed the instant motion in Family Court, Queens County, in the family offense proceeding seeking vacatur, or in the alternative modification, of the four-year final order of protection. A New York Custody Lawyer said the motion was transferred to Bronx County Family Court without a decision on the motion. This court received the motion and a letter was sent to all counsel seeking submission of response papers, particularly concerning the potential impact of `a Court of Appeals decision discussed below. In support of his motion, the father submitted an affidavit stating that he mistakenly appeared in Family Court, Queens County, one day late, and that he took immediate action by filing a custody petition. He contends that he was not able to effectuate service of the custody petition, and therefore that matter was dismissed. With respect to that branch of his motion seeking to establish a meritorious defense, the father contends that the mother’s allegations in the family offense petition are false and that the mother brainwashed the subject children in a manner that caused them to fear him.

In response, a Queens Family Lawyer said both petitioner and the Law Guardian submitted affirmations in opposition, claiming that respondent failed timely to file his motion to vacate within the statutory one-year period, and furthermore, that the interests of justice require finality herein. The Law Guardian also submits, from a factual standpoint, that the subject children fear respondent and have no desire to visit with him as a result of observing acts of violence by the father perpetrated against the mother.

During oral argument, the court asked the parties to address the possible impact upon the motion of the Court of Appeals decision wherein the Court held, inter alia, that in the context of a Family Court Act article 10 proceeding, the trial court must conduct periodic review of an order of protection to determine whether or not continuance of the order of protection is in the best interest of a subject child.

In the instant case, the court expressed the concern that a four-year order of protection against a natural parent, which order required that parent to stay away from his children for that entire period of time without periodic review of the order, could have a significant impact upon the parent-child relationship sufficient to invoke the same concerns expressed by the Court of Appeals. A Nassau County Family Lawyer said the parties submitted supplemental affirmations which have been reviewed by the court. The Administration for Children’s Services and respondent supported application of the Court of Appeals decision to the instant case. While petitioner and the Law Guardian opposed such an application. Upon reflection, this court finds that, although the Court of Appeals holding is specific to an article 10 proceeding and is not automatically applicable to the instant Family Court Act article 8 proceeding, the reasoning employed by the Court of Appeals in limiting the duration and expanding the required review of an order of protection in article 10 proceedings is instructive for a court in determining the length and level of review of an order of protection issued pursuant to a family offense petition. The reasons for this conclusion are set forth.

The court denies that branch of the instant motion seeking an order pursuant to CPLR 5015 vacating the order of protection based upon excusable default and a meritorious defense. As a threshold matter, petitioner contends that the motion must be denied because of the more than one-year delay in filing the motion. This argument is unavailing, however, as the motion must be made within one year after service of a copy of the order with written notice of its entry upon the moving party. Petitioner has not submitted any proof of service of a copy of the order with notice of entry. While as a practical matter the Clerk’s office of Family Court usually mails a copy of the order, the file does not indicate that this was done and therefore this court cannot presume that this was done in this particular proceeding or that such a mailing would satisfy statutory requirements.

Respondent has not, however, shown an excusable default for his failure to appear on the return date of the family offense petition. He clearly received notice of the actual court date. If respondent had appeared one day late, elementary inquiry of court personnel would have established the correct court date and respondent could easily have filed a motion to vacate the default. Respondent asserts that he filed a custody petition that was dismissed based upon his failure to serve the mother. In fact, the court papers reveal that the father filed a visitation, not a custody petition. Where service upon a party whose address is confidential cannot be effectuated, the procedure in effect at that time was to have the court notify the party whose address is confidential. Respondent herein presented no evidence as to attempts to locate the mother or to effectuate service of a custody petition. There certainly was no impediment to the father filing a motion to vacate the order of protection. Respondent acknowledges receiving notice of the existence of the order of protection, but did not file the instant motion until 16 months later.

Under these circumstances, respondent has not established the excusable default prong of his vacatur motion. Respondent’s extended delay in filing the instant motion and his apparent lack of diligence in seeking to challenge the order of protection prior to the filing of this motion undercuts his argument that the court should exercise its inherent discretion to vacate an order in the interests of justice. In addition, the clear and repeated statements of the subject children as to witnessing serious acts of domestic violence against their mother by respondent also negatively impact upon the application to have the order vacated in the interests of justice. Thus, there is no appropriate basis upon which this court should rely in vacating the order of protection based upon excusable default and meritorious defense or in the interests of justice.

The order of protection in the instant case was entered pursuant to article 8 of the family Court Act. Although this article has been under constant review, the legislature has not chosen to modify or change article 8 in light of the Court of Appeals holding, any modification and review continues to remain pursuant to Family Court Act § 844. This section permits a Family court after hearing to reconsider and modify any order of protection issued under Family Court Act § 841. The primary purpose of this section is “to allow the Court to refashion its dispositional orders based on changed circumstances or new information.”

Although the court holds that the Court of Appeals case does not mandate vacatur or modification of the subject order of protection, the concerns expressed by the Court of Appeals as to unduly lengthy intrusion into a parent-child relationship without periodic review will inform in part this court’s continued review and possible modification of the order of protection pursuant to Family Court Act § 844. Although there may be no basis to modify the order of protection on behalf of the mother, the court has been presented with a change of circumstances concerning the subject children which this court must address. Since the original order of protection was issued on behalf of the subject children in 2006, the mother was arrested for having sexual relations with a 12-year-old boy and the mother submitted to this court’s jurisdiction pursuant to Family Court Act § 1051 (a) in neglect proceedings concerning the subject children. At least one of the subject children has expressed interest in possibly resuming a relationship of some kind with the father. The subject children are receiving individual therapy and the issue of their relationship with their father is one of the issues addressed in therapy. Under these circumstances, the court will conduct an evidentiary hearing as to whether the length and terms of the order of protection should be modified insofar as they relate to the subject children based upon a change of circumstances since the original order was issued.

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