New York Family Law Blog
Mr. NK, respondent in a Family Court proceeding, petitions for a judgment under Article 78 of the CPLR prohibiting the Judges of the Family Court, of Nassau County, or any of them, from proceeding with a hearing on a complaint under Article 8 of the Family Court Act made by JK against the petitioner.
Petitioner states that JK, the complainant in the Family Court, and he were formerly husband and wife but that the marriage was dissolved by a divorce in favor of JK, that JK resides with their two children in the City of Long Beach, that JK instituted the proceeding in the Family Court, Nassau County, under Article 8 of the Family Court Act, and that the provision of the Act under which he proceeds reads in part as follows:
“A proceeding under this article is originated by the filing of a petition: ‘(a) alleging that the respondent assaulted his spouse, parent, child, or other member of the same family or household, or engaged in disorderly conduct toward any such person.”
Petitioner goes on to say that he is not a member of the JK family and does not and did not reside in the same household with her at the time of the alleged assault and disorderly conduct, that a hearing on the complaint of JK came on to be heard before a judge of the Family Court and that petitioner then moved to dismiss the proceeding on the ground of lack of jurisdiction of the Court, but that the motion was denied.
Petitioner claims that under the law he is a complete stranger to JK, that the Family Court is without jurisdiction to try the matter, and that he has no other complete and adequate remedy at law.
Petitioner argues that the consequences of the section under attack are penal in nature and must, therefore, be strictly construed. Under the circumstances, says he, it is legally improper to theorize and philosophize what the legislature intended by the enactment. However, even if the statutes involved were penal in nature, the rule of strict construction does not apply to penal statutes in New York.
Petitioner also claims that he has not other complete and adequate remedy at law. In this he is also mistaken because Family Court decisions are appealable to the Appellate Division of the Supreme Court. Under the circumstances, he is barred from petitioning for a writ of prohibition by Section 7801 of the CPLR, which states that “A proceeding under this article shall not be used to challenge a determination: (1) which is not final or can be adequately reviewed by appeal to a court or to some other body or officer.”
The petitioner goes on to argue that the former family relationship which existed between him and his ex-wife was created by law by virtue of their marriage and was thereafter destroyed by law as a consequence of their voluntary divorce. He would have us believe that his present relationship with his former wife is as if they were never married. Therefore, says he, the Family Court has no jurisdiction over any dispute arising between them. If only it were so simple. Divorce does not cause a complete severance between the spouses and a complete return to status quo as if their marriage had never existed. Where two human beings have joined together in physical marital union and have brought forth children into the world, many obligations and contacts arising out of the prior union must remain and do exist.
The usual problems of child support and visitation of the children, as in this case, of necessity result in a continuation of contact between persons who are no longer legally husband and wife. The very physical contact between the parties involved in this case shows that divorce has not caused a complete severance and eradication of the former marital union. The acts charged in this case arose only because of their prior marital union. In other words, were it not for the prior marital relationship between the parties, the conditions which gave rise to these occurrences would never have existed.
Also, where we have a divorced husband who is the father of the children of the marriage, and the former wife is their mother, both spouses are still related by reason of their being parents of the same children. Family has been defined as a group of persons consisting of parents and their children, father, mother and their children and a group comprising immediate kindred, especially the group formed of parents and children, constituting the fundamental social unit in a civilized society.
This Court holds, therefore, that the petitioner is still a ‘member of the same family’ and is subject to the jurisdiction of the Family Court. The petition is dismissed and the matter is remanded to the Family Court, Nassau County, for disposition.
One of the problems among spouses who obtained a divorced decree are the issues of child custody, support and visitation rights of the spouses. This is due to many circumstances that arise after the decree of divorce has been granted.
To help you with these issues call the Stephen Bilkis & Associates to assist you at 1-800-NYNYLAW