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Petitioner Claims Respondent Violated Order for Protection

The petitioner spouse filed a supplemental petition alleging that the respondent failed to obey the modified order of protection issued by the court. A New York Family Lawyer said the supplemental petition alleged that the respondent, upon release from incarceration for prior violation of the order of protection, arrived at the petitioner’s residence with police at approximately 1:00 a.m. attempting to gain entry to the petitioner’s residence and subsequently on March 11, 1994, that a car belonging to a friend was towed from the petitioner’s driveway, and the petitioner thinking the car stolen filed a police report and later learned where the car was towed, and upon inquiring found the respondent had filed a complaint and stated to be the owner of the property and claimed that the car was illegally parked and have the car towed.

A warrant was issued for the respondent’s arrest. The respondent was returned on the warrant on March 21, 1994, and issue joined. A New York Custody Lawyer said the hearing was held and at the conclusion of the hearing the court made two findings beyond a reasonable doubt to wit that the respondent willfully violated the final order of protection by attempting to gain entry to the petitioner’s residence and that the respondent willfully violated the final order of protection by having a vehicle lawfully parked on the petitioner’s property towed from that property with false representations by respondent that he was the owner of the property, that the car was unlawfully parked, all to harass and annoy the petitioner.

At the dispositional phase of the supplemental proceeding brought pursuant to Family Court Act 846, the court based on the prior history of family offense activity perpetrated upon the petitioner by the respondent; the fact that the respondent had been committed previously by a County court to incarceration for one hundred and eighty days; that the respondent apart from that commitment, had been civilly committed by the court for willful violation of the order of protection to incarceration for six months; that the respondent upon release from his most recent commitment had almost simultaneously violated the order of protection again; that the respondent’s behavior indicated an intractable design to continue to annoy and harass the petitioner; and considering the welfare not only of the petitioner, but of the two children, the court determined to civilly commit the respondent for each of the two willful violation to a term of incarceration of six months for the finding of violation and of four months for the finding of violation occurring on March 11, 1994, to run consecutively.

A Queens Family Lawyer said the respondent filed a motion seeking re-argument of the dispositional order. In his motion, the respondent relies on recent appellate authority which holds that Family Court Act Article 8 does not authorize imposition of consecutive commitments. The Third Department stated that in its view this statute, on its face, prohibits such commitments. As there is no other reported appellate decision on this issue, this holding would normally be of persuasive authority. This holding is remarkable and has significant and broad impact on the public especially that element of the public at risk of domestic violence. Because of this over-riding public concern, the holding must be scrutinized. Family Court Act 846-a provides, in relevant part, that if a respondent is brought before the court for failure to obey any lawful order issued under Family Court Act article 8 and if, after hearing, the court is satisfied by competent proof that the respondent has willfully failed to obey any such order, the court may commit the respondent to jail for a term not to exceed six months. The petitioner has failed to point to any provision in Family Court Act article 8 that would authorize imposition of consecutive sentences, and Family Court Act 846-a, on its face, prohibits such sentences.

This holding in a practical sense constitutes a judicial fiat that regardless of the number of separate willful violations committed by a respondent under an extant order of protection, the respondent risks civil commitment under Family Court auspices for only up to six months. A Queens Custody Lawyer said the potential absurdity may be illustrated in numerous ways. Upon leaving the courthouse, the respondent hits the petitioner. The respondent returns before the court on this violation upon a new supplemental petition within a day or two of the prior order of commitment. The petitioner has elected to proceed before the Family Court. Having been found guilty of this new violation beyond a reasonable doubt, the court imposes a further six month term of civil commitment, lifts the suspension on the prior commitment and directs they run consecutively.

Family Court Act 846 and 846-a, were enacted to establish a formal procedure (and specific remedies) for the willful violation of a lawful court order. The Legislative history of Act 846 discloses that it came into being as part of an act to amend the family court act, the domestic relations law, the judiciary law, the criminal procedure law and the penal law, in relation to family offenses and to repeal certain provisions of the family court act relating thereto. The bill jacket and preamble show that the legislature was aware that the activity embraced within a family offense could occur on one occasion (family offense) or be displayed on separate, distinct and repeated occasions (family offenses). The executive memorandum filed with the assembly and senate bills clearly shows intent to clarify and expand provisions for preliminary relief and enforcement of orders of protection and recognized that violence in the home is as serious a breach of public order and safety as violence in the streets. Family violence is learned by children who take the violent response into the schools and streets, and later transmit it to their children. Strengthening of legal sanctions against violence in the home is a step toward stopping it in individual cases. Documentation supporting the bills noted that authority is granted to Family Court to entertain petitions for violations of protective orders and complainant is given the option of which court to proceed in, either Family or Criminal Court; the enactment clarifies and expands upon existing provisions of law regarding relief and enforcement procedures for victims of family offenses and domestic violence and would result in a general improvement in the ability of such victims to obtain protection from further family violence; the major thrust of this bill is to indicate a process for enforcement of orders of protection in family offense proceedings issued by a family or a criminal court; the bill will also make it easier for victims of domestic violence to file petitions for orders of protection, and to have them enforced.

The State Legislature in liberalizing the statutes to effect greater protection to the victims of domestic violence is deemed cognizant that Family Court is a non-jury institution wherein the court sits as both finders of fact and of law. At the time of this statutory enactment, Family Court Act 847 provided and still provides an assault, attempted assault or other family offense as described in section eight hundred twelve of this article which occurs subsequent to the issuance of an order of protection shall be deemed a new offense for which the petitioner may elect to file a violation of order of protection petition, or a new petition or initiate a proceeding in a criminal court. The section gives to the petitioner a choice of remedies for a family offense committed after the issuance of an order of protection. The most important option it gives the petitioner is, of course, the right to reconsider the original election of a civil remedy and to initiate a criminal prosecution. Accordingly it is clear that the legislature has created a sui generis civil remedy for violation of a Family Court Order of Protection in Family Court, to wit a supplemental petition alleging such violation or violations, if more than one, under Family Court Act 846, 846-a and 847. The specific authority granted by the legislature to Family Court under 846-a reflects a spectrum of powers much broader than that embraced within civil or criminal contempt as envisioned by the Judiciary Law. This is a unique grant of power and, as already elucidated above, is intended to bolster, not defeat nor impair, enforcement of orders of protection.

The respondent’s argument that Family Court has no power to impose two consecutive commitments of six months and four months each is not sustainable if predicated on the ground that the Family Court has no power to impose consecutive commitments regardless of the terms of such commitments. Rather, the respondent’s argument is viewed as articulate in the sense of urging that violation of a civil order of protection is criminal, not civil, contempt and imposition of consecutive commitments in excess of a total period of six months invokes his right to jury trial. Article VI of the U.S. Constitution provides that the accused in all criminal prosecutions shall enjoy the right to trial by an impartial jury. It appears that the United States Supreme Court views supplemental proceedings alleging violation of a civil order of protection as a species of criminal contempt. Accordingly, the Supreme Court held that the possibility of imprisonment for one year sentence following conviction before the New York City Criminal Court of jostling was, of itself, sufficient to require that the defendant be afforded the opportunity for a jury trial.

In Family Court, a court of limited jurisdiction, the court sits as both finder of fact and law. The court has no power to impanel a jury. The legislature in enacting Article 8–Family Offense Proceedings–established a civil proceeding designed to protect family members from domestic violence, a major social problem. In authorizing Family Court to extend this protection, the legislature apprehended that jury trials are not institutionalized within Family Court. Justices correctly observed the uniqueness of such grant of power. To reiterate, the issue raised on this motion is not excessiveness of commitment, but whether Family Court has the power to impose consecutive civil commitments for distinct separate acts of willful violations of a civil final order of protection, even though the cumulative term of those consecutive commitments exceeds six months. Recognizing the major social problem of Domestic Violence and the legislative response to this problem, Family Court would be remiss if it did not utilize the authority granted in that response in an appropriate fashion to protect the family and its individual members as warranted. The circumstances herein are quite different and embrace a specific grant of power to a civil (non-criminal) court to enjoin violation of criminal law as specifically enumerated in a civil final order of protection. For violation of such court order an election is given, not to the state, not to the court, not to the respondent [the alleged perpetrator of the violation], but solely to the petitioner (the alleged victim of the violation) as to which remedy to invoke. There is after all, a difference between civil commitment for criminal contempt and a criminal sentence for the crime of criminal contempt.

Accordingly, the court denies the respondent’s motion seeking re-argument of the dispositional order concluding that under the circumstances herein the court does have the authority to issue consecutive civil commitments for willful distinct and separate violations of the order of protection, albeit the total term of such consecutive commitments exceeds six months.

Courts give orders to be followed and observed accordingly. If you are being disturbed by someone not following the court’s order of protection, speak with the Nassau County Order of Protection Attorney or the Nassau County Domestic Violence Lawyer. Stephen Bilkis and Associates can also recommend a Nassau County Family Attorney for your family related disputes.

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