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Court Discusses Family Court Act

On March 4, 2009, the respondents (mother and her sons) filed three separate family offense petitions seeking the entry of orders of protection in favor of them and against appellant, respondent’s mother, and her sons’ grandmother. A New York Family Lawyer said that, the alleged family offenses included, inter alia, assault, harassment, and menacing. In their respective petitions, the respondents described how they were related to the appellant and asserted that the parties all resided together in a home in Elmont, Nassau County. The petitions detailed certain incidents which allegedly occurred on February 19, 2009, on the island of Anguilla. According to the respondents, the appellant pushed the respondent mother to the floor twice, causing her to hurt her back and hit her head. The appellant allegedly was screaming, yelling, and cursing at the respondent mother during the assault. In addition, the appellant allegedly used a glass bowl to strike one of his grandsons on the head, causing injuries.

Further, the appellant allegedly chased the other grandson with a meat cleaver and threw an ashtray at him, which hit him in the back.

Thereafter, a New York Custody Lawyer said that, the appellant filed three of her own family offense petitions seeking orders of protection in her favor and against the respondents. The appellant alleged that on or about February 14, 2009, also in Anguilla, the respondents committed the family offenses of, inter alia, aggravated harassment in the second degree, harassment in the first degree, attempted assault, and menacing in the third degree.

A Bronx Family Lawyer said, during an initial appearance before the Family Court, the appellant’s counsel objected to the court’s exercise of subject matter jurisdiction because the alleged offenses occurred in Anguilla. The Family Court held that “the fact that this took place in the West Indies is no different from it taking place in Pennsylvania, Virginia, or Vermont. They’re all residents of Nassau County and they’re entitled to protection from future occurrences. Family Orders of Protection are to prevent further hostility and further assault, attempted assault, et cetera.

A Bronx Child Custody Lawyer said that, after a hearing, the Family Court found that the respondents proved by clear and convincing evidence that the appellant had committed certain family offenses against them and granted the respondents’ respective petitions. The Family Court also entered three two-year orders of protection on behalf of the respondents and against the appellant. The orders of protection directed the appellant to stay away from each of the respondents and to refrain from assaulting, stalking, and similar conduct. In addition, the Family Court issued three orders of dismissal which dismissed the appellant’s three petitions. The appeals are from the three orders of protection and from the three orders dismissing the appellant’s petitions.

The issue in this case is whether the Family Court has subject matter jurisdiction over family offense proceedings where the alleged acts occurred outside of the state and even outside of the country.

The Court holds that Family Ct Act § 812 grants the Family Court subject matter jurisdiction to hear such proceedings and that the Family Court properly exercised jurisdiction over the parties’ petitions, despite the fact that the acts alleged occurred on the island territory of Anguilla.
As a threshold matter, it is evident that the Family Court acquired personal jurisdiction over the appellant, as she appeared before the Family Court without challenging personal jurisdiction. Additionally, the appellant affirmatively sought the entry of orders of protection against the respondents. Further, venue was appropriate inasmuch as the petitions were filed in the Family Court, Nassau County, the county where the parties resided.

The appellant’s contentions provide this Court with an opportunity to address an issue which does not appear to have been previously addressed by an appellate court in this state: the limits of the subject matter jurisdiction of the Family Court with respect to family offenses which occurred outside of the state, and even outside of the country.

The Family Court is a court of limited jurisdiction constrained to exercise only those powers conferred upon it by the state Constitution or by statute. Article VI of the New York State Constitution establishes “the family court of the state of New York” and “enumerates the powers thereof”. Included within the actions and proceedings over which the Family Court has been given subject matter jurisdiction are family offense proceedings. Pursuant to the New York State Constitution, family offense proceedings are to determine “as may be provided by law crimes and offenses by or against minors or between spouses or between parent and child or between members of the same family or household”. In light of the provision stating “as may be provided by law,” the grant of jurisdiction to the Family Court over family offense proceedings is permissive and requires legislative action to be implemented.

In that regard, Family Court Act article 8 delineates the parameters of the Family Court’s subject matter jurisdiction. The Family Court Act and the Criminal Procedure Law provide the criminal court and the Family Court with “concurrent jurisdiction” over certain enumerated criminal offenses when allegedly committed by one family member against another. Thus, while a family member may choose to seek redress for a family offense in the Family Court, a parallel criminal proceeding also is available. Indeed, the Legislature has specifically authorized a petitioner to commence a family offense “proceeding in either or both Family Court and criminal court”. Moreover, each court has the authority to issue temporary or final orders of protection.
As relevant here, Family Court Act § 812(1) provides: “Jurisdiction. The family court and the criminal courts shall have concurrent jurisdiction over any proceeding concerning acts which would constitute disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, sexual misconduct, forcible touching, sexual abuse in the third degree, sexual abuse in the second degree as set forth in subdivision one of section 130.60 of the penal law, stalking in the first degree, stalking in the second degree, stalking in the third degree, stalking in the fourth degree, criminal mischief, menacing in the second degree, menacing in the third degree, reckless endangerment, assault in the second degree, assault in the third degree or an attempted assault between spouses or former spouses, or between parent and child or between members of the same family or household except that if the respondent would not be criminally responsible by reason of age pursuant to section 30.00 of the penal law, then the family court shall have exclusive jurisdiction over such proceeding. Notwithstanding a complainant’s election to proceed in family court, the criminal court shall not be divested of jurisdiction to hear a family offense proceeding pursuant to this section.”

Furthermore, Family Court Act § 812(2)(b) provides: “that a family court proceeding is a civil proceeding and is for the purpose of attempting to stop the domestic violence, end the family disruption and obtain protection.” There is no geographic limitation in Family Court Act § 812, or elsewhere in the Family Court Act, as to where a family offense is to have occurred in order to confer subject matter jurisdiction upon the Family Court. Since Family Court Act § 812 is clear on its face, it is arguably unnecessary to consider the legislative history of the statute. However, a historical review of the amendments to Family Court Act § 812 is instructive with respect to the issue presented here, and nothing contained therein negates the jurisdiction of the Family Court over family offenses as provided in Family Court Act § 812.

In view of the foregoing, there is no indication that the Legislature intended to prohibit the Family Court from exercising jurisdiction over family offenses where the alleged acts occurred in another state or country. As discussed above, the Family Court and the criminal court have concurrent jurisdiction over family offenses. However, a question that arises is whether the geographic or territorial limitation on the jurisdiction of the criminal court also limits the jurisdiction of the Family Court. Criminal Procedure Law § 20.40(1)(a) provides, in pertinent part, that “a person may be convicted in an appropriate criminal court of a particular county, of an offense when conduct occurred within such county sufficient to establish an element of such offense.” The Family Court is not a criminal court. Whereas the criminal court’s subject matter jurisdiction over family offenses is limited by geography, there is no statutory provision which states that such a geographic limitation also applies to the Family Court.

The Family Court properly dismissed the appellant’s petitions. Although the three orders which dismissed the appellant’s petitions stated the dismissals were due to the appellant’s “failure to state a cause of action,” those orders also provided that the Family Court dismissed the appellant’s petitions following “an examination and inquiry into the facts and circumstances of the case, and after hearing the proofs and testimony offered in relation thereto.” Therefore, contrary to the appellant’s contentions, the Family Court was not required, inter alia, to accept the appellant’s allegations as true and determine whether the facts, as alleged, fit into a cognizable cause of action.

Here, the Family Court was presented with conflicting testimony as to whether the respondents, among other things, assaulted or attempted to assault the appellant during the course of the subject incident. The Family Court’s determination that the appellant failed to establish that a family offense was committed against her was based upon its assessment of the credibility of the parties, and is supported by the record. Accordingly, the Family Court properly dismissed the appellant’s petitions.

Moreover, the Family Court did not improvidently exercise its discretion in entering the three orders of protection, to remain in effect up to and including June 23, 2011, directing the appellant to, inter alia, stay away from the respondents. While the orders of protection, in effect, require the appellant to also stay away from her home because the respondents also reside there, those provisions were reasonably necessary to provide meaningful protection and to end the family disruption.

Finally, the appellant maintains that the Family Court’s comments and rulings during the hearing demonstrated its partiality in favor of the respondents and bias against her, as well an adversarial attitude. However, there is no evidence that the Family Court was biased against the appellant and thereby deprived her of a fair. Furthermore, the record does not support the appellant’s contention that the Family Court displayed an adversarial attitude toward her.
Accordingly, the court held that, the orders of protection and the orders of dismissal are affirmed.

Family Court Act article 8, as enacted in 1962, was intended by the New York State Legislature to provide “practical help” to domestic violence victims through the use of civil proceedings in the Family Court, in lieu of the previous practice of punishing the perpetrators of domestic violence through criminal court proceedings. If you are a victim of domestic violence, seek the representation of a Nassau Domestic Violence Attorney and/or Nassau Order of Protection Attorney at Stephen Bilkis and Associates. Our Nassau Criminal Attorney will stand by your side. Call us for free legal advice.

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