Opinion
XXXXX
11-09-2018
In the Matter of a Family Offense Proceeding, Jefferson W., Petitioner, v. Latonya P., Respondent.
Attorney for the Petitioner, Colleen Elizabeth Zitman.
Attorney for the Petitioner, Colleen Elizabeth Zitman. John M. Hunt, J.
Latonya P. and Jefferson W. have been litigating in Family Court since as early as 1994. At some point in the early 90s or late 80s, these individuals were involved in a romantic relationship that resulted in the birth of a child who was born in 1992. Over the course of the past three decades the parties have filed numerous petitions against one another in the Family Courts of New York.
Though their relationship has long since ended, the former couple continues to play out their frustrations and issues with one another using the Family Courts as their stage through the "child in common" aspect of New York Family Court Act Section 812. Family Court Act Section 812 specifies that individuals that may file for an order of protection in Family Court are 1) persons related by consanguity or affinity, 2) person legally married to one another, 3) persons formerly married to one another, regardless of whether they still reside in the same household, 4) persons who have a child in common regardless of whether such persons have been married or resided together at any time, or 5) person who have been or are in an "intimate relationship."
By virtue of their child and their now decades concluded relationship, the parties have made a career out of filing family offense petitions against one another and as of the time of this writing have participated in 19 family offense proceedings alone. Of note is that not a single petition filed moved beyond return of process because of the failure of the Petitioner, typically Latonya, to appear and were dismissed without prejudice. Generally, Latonya's allegations since 1994 have been the same: Jefferson has a gun and he threatened to kill her because she did not want to have another baby with him or be with him in general. Jefferson's petitions generally requested the court to intervene and stop Latonya from filing the numerous petitions that over the course of time have allegedly resulted in his arrest, loss of job and difficulty in finding employment. He attributes her excessive behavior to a mental health issues gone untreated.
O—94 (P. v. W., dismissed, 8/25/1994, failure to appear) O—95 ( P. v. W., dismissed, 9/5/1995, failure to appear) O—96 ( P. v. W., dismissed, 6/4/1996, failure to appear) O—96 ( W. v. P., dismissed 6/27/1996, failure to appear) O—04 (M v. P, dismissed, 4/7/2004, failure to appear. Nota Bene, M. is P's Mother and at one time the legal custodian of the parties' child) O—04 ( A. v. P., dismissed 4/7/2004, failure to appear. Nota Bene, A. is the grandmother of P.) O—11 ( P. v. W., dismissed, 5/10/2011, failure to appear. Nota Bene, W. in this petition is actually the child in common of Latonya and Jefferson) O—14 ( P. v. W., dismissed, 9/15/14, failure to appear. Nota Bene, W. in this petition is actually the child in common of Latonya and Jefferson) O—14 ( P. v. W., dismissed, 9/15/14, failure to appear) O—14 ( W. v. P., dismissed, 9/15/14, failure to state a cause of action) O—16 ( W. v. P., dismissed, 3/17/16) O—16 ( P. v. W., dismissed 7/14/16, failure to appear) O—17 ( P. v. M., dismissed, 11/24/17, failure to appear) O—17 ( P. v. W., dismissed 11/24/17, failure to appear. Nota Bene, W in this petition is actually the child in common of Latonya and Jefferson) O—17 ( P v. P, dismissed 11/24/17, failure to appear. Respondent P. is the Father of Petitioner Latonya Paul). O—17 ( P. v. W., dismissed 5/31/17, failure to appear) O—17 ( W. v. P., dismissed 10/23/17, failure to prosecute O—18( P. v. W., dismissed 10/16/18, failure to appear) O—18 ( P. v. W., dismissed 7/17/18, failure to appear. Respondent appeared with private counsel)
The filings of these parties did not constrain themselves to one borough. In 2018 the parties were filing petitions simultaneously in both Kings and Queens County family courts, all without either court seeming to cross reference the other to see what cases had been filed in the past and if there were any active cases open that a newly filed petition could join.
Public policy favors free access to the courts so that individuals may seek redress for perceived wrongs. Sassower v. Signorelli, 99 A.D. 358, 359 N.Y.S.2d 702; Adefunke A. v. Adeniyi A., 36 Misc., 3d 699, 705, 946 N.Y.S.2d 447, 451 (Fam. Ct. 2012). The family court is characterized as a court "of the people" in that any one is able to come through the doors and file a petition to rectify a perceived familial wrong. There are no filing fees and often the court engages the sheriff's department to assist individuals with service of process free of charge.
Family Court Act Section 216-b directs that the clerk provide official court forms to any individual requesting them and section 216-c states that:
a. Whenever a petitioner is not represented by counsel, any person who assists in the preparation of a petition shall include all allegations presented by the petitioner.
b. No clerk of the court or probation officer may prevent any person who wishes to file a petition from having such petition filed with the court immediately.
c. If there is a question regarding whether or not the family court has jurisdiction of the matter, the petition shall be prepared and the clerk shall file the petition and refer the petition to the court for determination of all issues including the jurisdictional questions
d. This section shall not be applicable to juvenile delinquency proceedings.
With respect to Latonya and Jefferson, on each occasion court personnel assisted the filer in preparing the petition and included all allegations that were desired to be included by the filer. The matters were then filed and heard on the same day as is required by Family Court Act section 153-c. Temporary orders of protection were issued, some of them full "stay aways," others merely "refrain from" type orders. These orders were then sent out to a sheriff to assist with service. Once served, they went into effect. Court attorney referees, clerks, court attorneys, police officers, stenographers, all being paid out of the resources of New York State, were engaged each time one of these parties saw fit to commence litigation that they never sought to see through a single time. The vexatious filings and orders that resulted therefrom entered at the request of the Petitioner, Latonya, also had effects on the Respondent who complained that as a result he was arrested and is continually brought before the family court, resulting in alleged loss of employment.
Due to the mandate set forth in FCA 216-c, clerks are diligently working to prepare family offense petitions on any given day so that individuals may be immediately heard pursuant to FCA 153-c. With the expansion of the categories of who may file to include the vague "intimate relationships" category, the family court and its clerks, continue to be overburdened, making it easier for cases like Latonya's and Jefferson's to move forward without being fully vetted. It is no surprise given the influx of cases that a case such as Latonya and Jefferson managed to be repeatedly filed without notice that the allegations have been nearly identical for 20+ years. The last Petition that was filed and disposed of on October 16, 2018 in Kings County references TWO cases that Latonya filed in the past that requested the same relief, when there have been over a dozen involving the parties directly and more involving Latonya and either the child in common, her parents or her grandmother. Perhaps a change in the interface of the electronic case management system, UCMS, may make it easier for clerks, judges, referees and court attorneys to more easily identify when prior litigation has occurred involving any of the parties so that more appropriate steps can be taken, such as requiring judicial approval prior to the filing of petition.
On October 16, 2018, not surprisingly, the parties did not appear in Court and the matter was dismissed without prejudice.
The Court takes seriously its task of protecting children and parties who have suffered from domestic violence, however, vexatious and frivolous filings take away the Court's attention from serious matters and waste much needed public resources.
It would appear to reasonable minds that the Legislature intended for the "child in common" aspect of the statute to contemplate protecting parties while their children are young and more frequent contact, such as phone calls to arrange visits, school events, exchanges of the child, medical appointments, etc., is likely. It seems that after 18 when the court no longer has jurisdiction over the child for custodial matters, that it should also be an end to using the child in common basis for filing of petitions. At that point, the child is an adult and the possibility of encounters between feuding exes are less frequent. A revision in the statute, which was meant to protect one of the parents from domestic violence, is needed to prevent the statute from being used as a sword long after the child in common has reached the age of majority.
However, merely revisiting and revising the "child in common" aspect of the statute is not enough as the parties would still have standing to file under the vague "intimate relationship" aspect of the statute.As this Court discussed in Maliha A. v. Ono M ., New York State Family Court Article 8 establishes a civil proceeding to protect persons within intimate relationships from violence. The term "intimate relationship" is defined as persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together. NY Fam. Ct. Act Sec. 812(1)(e) (McKinney's 2018); NY Soc. Serv. Law Sec. 459-a(f) (McKinney's 2017); People v. Ortega, 15 NY3d 610, 618-19 (2010). Beyond this vague definition, no further guidance was provided by the legislature to narrow the definition of intimate relationship. As a result, the flood gates have broken down and waves and waves of couples have taken to filing petitions against one another in Family Court for bad breakups that involved name calling and ugly, non-violent behavior.
File # XX, Docket # O—18 (Decision and Order After Family Offense Trial, Hunt, June 19, 2018)
Often the couples filing in Family Court have already gone to the Police who have declined to make an arrest. --------
Moreover, as in the case with Latonya and Jefferson, parties who have not been in a relationship for nearly three decades, there is no guidance as to whether situations such as the instant case even qualify to allow for further filings under the intimate relationship prong of the statute. Surely the Legislature cannot have intended to allow individuals to resurrect their long dead relationships to air grievances and file petitions continuously in Family Court. Yet, without revision of the statute, the law provides an avenue for the filings to take place. Beyond the excessive waste of taxpayer resources involved in these cases, it is these types of filings that distract the Court's attention from far more serious matters of domestic violence that deserve the Court's attention and New York's resources.
Even beyond revision of the statute, changes in UCMS and the way new filings are vetted would allow for easy identification of parties, such as Latonya and Jefferson, and would provide the fact finder with information that could be used as a lens in assessing the credibility of a petition so that more appropriate steps can be taken.
The Family Courts of the State of New York and victims of domestic violence would benefit from the Legislature's revisiting the statute so that the true intent of the statute can take hold. In light of the foregoing, it is hereby
ORDERED that, the petition is dismissed for failure to prosecute; and it is further
ORDERED that, neither Latonya P. or Jefferson W. may file a Family Offense Petition without prior Judicial authorization.
This constitutes the Decision and Order of the Court. Dated this 9th day of November, 2018
E N T E R:
___________________________________ JOHN M. HUNT, J.F.C. FAMILY COURT, QUEENS COUNTY