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Plaintiff Claims Order for Protection was Violated


In consolidated proceedings in accordance with the Family Court Act articles 6 and 8, the man appeals, as limited by his brief, from stated portions of an order of the Family Court which, among other things, adjudged him to be in violation of an order of protection and sentenced him to 15 days of incarceration in the Nassau County Correctional Facility, and as limited by his brief, from so much of an order of the same court, as denied his application for sole child custody of the couple, or alternatively, increased visitation.

A New York Family Lawyer said Article 6 of the Family Court Act has the authority to make initial child custody and visitation awards. It also may modify existing orders, unless a judgment of divorce retains sole jurisdiction to the Supreme Court. While Article 6 of the Family Court Act gives Family Court jurisdiction over child custody, the substantive law of child custody remains embodied in case law.

Article 6 further confers the Family Court jurisdiction over guardianship proceedings. The Surrogate’s Court has concurrent jurisdiction for guardianship, and Family Court can grant only guardianship of the person, while Surrogate’s Court can grant guardianship of the person and guardianship of the property.

Article 6 also governs the Parental Rights, in conjunction with the Social Services Law. A Nassau County Family Lawyer said it also confers the Family Court jurisdiction over adoptions and such authority is also shared with the Surrogate’s Court.

The parties were married and had divorced in April 1987. The mother was awarded child custody and the petitioner father had weekend visitation rights.

The mother procured an order of protection to prevent the father, among other things, from engaging in disorderly conduct, harassing and menacing her and their two-year-old child, and ordering him to remain away from her and her parents’ home, except for visits with the child. As a result of an incident alleged to have taken place, the mother brought a proceeding alleging that the father violated the order of protection.

Shortly after the mother filed her petition, the father brought a cross petition alleging that the mother had violated his visitation rights. The father additionally requested that sole child custody be transferred to him, or alternatively, that he be given increased visitation privileges.

A hearing was held as to both parties’ applications, after which the court issued separate orders, both of which the father contests on the appeal.

The father claims that the evidence presented at the hearing did not support the Family Court’s finding that he willfully violated the order of protection. A Nassau Child Support Lawyer said that upon a review of the record the Court conclude that the evidence adduced at the hearing established, by competent proof, that the father willfully violated the order of protection when he went to the mother’s house on a non-visitation day, engaged in disruptive behavior, and kicked over garbage cans in front of her house.

The father also contends that the sentence of 15 days in jail was excessive. Under the circumstances, the sentence was not excessive. Moreover, the sentence was designed to compel the father to comply with certain other provisions of the order, including that he seek therapy. The Family Court temporarily stayed execution of the sentence, and stated that it would entertain an application to vacate the order of commitment if the father obtained therapy and otherwise complied with the terms of the order.

As for the question of child custody and visitation, upon our review of the hearing minutes, the Appellate Court finds that the Family Court’s decision was in the child’s best interests. Thus, the father’s application was properly denied. The Court has reviewed the father’s remaining contentions and finds them to be without merit.

Even if parents separate, their child is still both their responsibility. Divorce should not estrange a child from the parent who is not granted of custody. If you are considering a legal action against your spouse, or need an order for protection, consult a Nassau Divorce Lawyer from Stephen Bilkis and Associates.

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