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Family Court Deals with Firearm Issue

 

At the hearing, the Deputy Sheriff testified on behalf of the Sheriff’s Department. He testified that the Sheriff’s Department’s general rule in returning firearms is that the return is made when an order from the court is provided to the Sheriff’s Department. According to him, in the past six years that he worked with the department, there were only two orders given by the Supreme Court for the return of firearms, the remainder were considered by the Family Court.

The former wife of the petitioner chose not to appear, although the Law Guardian had spoken to her, and she indicated that she had no objection to the return of the firearms provided they were safely stored. As previously stated, she had also consented to the vacating of the Order of Protection. At the conclusion of the hearing, the court reserved decision pending a background check of the petitioner to ensure that there was no activity or history that would preclude the return of the firearms.

Section 842-a of the Family Court Act provides the Family Court with the authority to revoke or suspend a firearms license and order immediate possession. However, the section does not specifically provide authority to the Family Court judge to return the firearms ordered to be seized. In a case, the Appellate Division held that the Family Court did not have jurisdiction to issue an order directing the return of firearms which movant had surrendered pursuant to previous court orders. The Appellate Division held that the movant’s remedy was instead to make an application to the officer that had custody of the firearms.

Since there is no law and no enabling legislation directing the Family Court judge to order the return of the firearms, once Family Court jurisdiction is lost, the burden is put on this court, which does not have the comparable knowledge or background on cases litigated in the Family Court.

Since a Family Court judge has the authority to issue orders of protection and vacate said orders of protection, it appears to be a legislative oversight in not providing the Family Court judge with continued jurisdiction to determine whether the firearms seized pursuant to that judge’s Order of Protection can be returned to the offending party. Once Family Court jurisdiction is lost, the decision to determine the return of said firearms is now left to a judge who is not familiar with the history of the family, the parties, and any alleged violence that may have transpired resulting in the issuance of the Order of Protection and seizure of said firearms.

Presently, the Integrated Domestic Violence Court has been instituted in New York State by the Chief Judge in order to have one judge handle not only the parties’ divorce proceeding and/or Family Court proceeding but also any alleged criminal actions arising from domestic violence in conjunction with those proceedings in order to avoid the past situations where different judges were handling different aspects of the case and were unaware of the family history of violence.

Similarly, the Family Court judge who issues an Order of Protection with seizure of firearms should be given the authority to decide whether to allow the return of said firearms rather than the bifurcation of the two issues of the Order of Protection and the return of firearms between two judges.

Accordingly, the court strongly urges legislation to amend section 842-a of the Family Court Act to provide Family Court judges with not only the authority to seize firearms pursuant to an Order of Protection but also the discretion to determine when or if said firearms should be returned.

If you have a similar legal problem, call Stephen Bilkis for guidance. They have offices to serve you in Manhattan, Queens, Staten Island, the Bronx, Brooklyn, Nassau County, Suffolk County and Westchester County.

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