Opinion
Docket No. O-01633-21
01-03-2024
In the Matter of an Article 8 Family Offense Proceeding C.K., Petitioner, v. J.D., Respondent.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of the petitioner's motion, by order to show cause, for an order: (1) extending Petitioner's Final Order of Protection, dated May 12, 2021, for an additional two years past its original May 11, 2023 expiration date, upon substantially the same terms; (2) directing the respondent to permanently delete any and all intimate image(s) of petitioner; and (3) granting such other and further relief as the court deems just and proper:
Order to Show Cause
Petitioner's Affidavit in Support of Order to Show Cause to Extend Final Order of Protection
Exhibits A-C
Affirmation in Opposition
Affidavit in Opposition
Reply to Respondent's Opposition to Motion to Extend Final Order of Protection
Sur-Reply in Opposition
Exhibit A
Reply to Respondent's Surreply
Exhibits A-F
Procedural History
On February 26, 2021, the petitioner filed a family offense petition (Docket No. O-01633-21) alleging that the respondent committed various family offenses including harassment and unlawful dissemination or publication of intimate images. Thereafter, the family court (Friederwitzer, J.) issued an ex parte temporary order of protection in favor of the petitioner directing that the respondent stay away from the petitioner, refrain from communicating with her, and refrain from posting about her on social media. On May 12, 2021, the respondent appeared in court and consented to a two-year final order of protection in favor of the petitioner on the same terms as the temporary order.
The petitioner now moves, by order to show cause, for an order: (1) extending the final order of protection for two years past its original May 11, 2023, expiration date, upon substantially the same terms; (2) directing the respondent to permanently delete any and all intimate image(s) of the petitioner in the respondent's possession; and (3) granting such other and further relief as the court deems just and proper.
On May 3, 2023, the family court (Friederwitzer, J.) signed the petitioner's order to show cause and granted her request for interim relief by issuing a temporary order of protection on the same terms as the final order of protection and adjourned the matter to August 10, 2023. On the return date, this Court (Markoff, J.) issued a briefing schedule and set the matter down for oral argument on October 17, 2023. Prior to the date for oral argument, the respondent served opposition papers, the petitioner served reply papers, and the respondent served a sur-reply. On October 17, 2023, this Court accepted the respondent's sur-reply, assigned counsel to represent the petitioner, and granted the petitioner an opportunity to submit a sur-sur-reply. The temporary order of protection was extended through January 17, 2024. Thereafter the petitioner submitted a sur-sur-reply.
Petitioner's Motion
In her affidavit in support of her motion, the petitioner avers that, "the Respondent contacted me by text message, email and social media with defamatory accusations and explicit photos of me, even after I told him to stop. He also shared this upsetting content with my family, my friends and other acquaintances he identified through my social media accounts .... I felt scared, humiliated, and violated." The petitioner argues that the final order of protection allowed her to "maintain some peace of mind and psychological stability" but that she never "stopped fearing the Respondent." The petitioner further alleges, "the existence of the court order and the threat of arrest is the only thing preventing Respondent from engaging in further harassment and from further disseminating intimate images of me." The petitioner submits as exhibits to her motion copies of the text messages, emails, and intimate images that she claims were disseminated by the respondent.
Respondent's Opposition
In opposition, the respondent contends that the "Petitioner fails to make any claims or allegations that the Order of Protection was ever violated by Respondent while it was in effect or in the three (3) months during which Respondent believed it had expired." The respondent further argues that "Petitioner's unsubstantiated claims that ‘she believe[s] that the existence of a court order and the threat of arrest is the only thing preventing Respondent from engaging in further harassment and from further disseminating intimate images of [her]’ is insufficient to warrant the extension of the Order." The respondent acknowledges that Family Court Act § 842 provides that, "the fact that abuse has not occurred during the pendency of the order shall not, in itself, constitute sufficient ground for denying or failing to extend the order." Even so, he argues that the petitioner's motion should be denied because the respondent did not violate the final order of protection and the petitioner does not allege that the respondent has interfered with "[petitioner's] peaceful existence and well-being through other means."
The respondent submits his own affidavit in which he details the ways in which the final order of protection has "disrupted [his] peace." The respondent avers that he has not violated the final order of protection and had believed that it expired on May 11, 2023. The respondent contends that, "living under [the order of protection] made me feel like a criminal." Further, he avers that the final order of protection has impacted his relationships with friends, and that he has "one foot in the trauma of my relationship with the Petitioner unable to move on and put the past behind me given the specter of the original [order of protection]." Notably, the respondent does not oppose the branch of the petitioner's motion directing that he deletes any and all intimate images of her within his possession since he claims that he no longer possesses any such images.
Petitioner's Reply
In her reply, the petitioner points out that the respondent was served via email on May 5, 2023, which undermines the respondent's claim that he was unaware of the motion and temporary order of protection until he was served in person on July 28, 2023. The petitioner further argues that the exhibits attached to her motion evince the nature and severity of respondent's harassment and are sufficient to justify an extension of the final order of protection. She points out that she need not prove a violation of the final order of protection to show her entitlement to an extension of the final order of protection.
Further, the petitioner discusses the psychological impact of cyber sexual abuse otherwise known as "revenge porn," and asserts that the crime is "psychologically devastating, humiliating, and aimed at damaging a person's reputation and sense of privacy." She notes that rather than seeking to punish the respondent by pursuing criminal prosecution against him, she merely seeks protection from further abuse. The petitioner asserts that the final order of protection "promptly halt[ed] all harassment and the unlawful dissemination of intimate images" and contends that an order of protection "stands as the only deterrent against further harassment." The petitioner states that when the order of protection was put in place, "the harassment [ ] not only stop[ped] escalating but stopped completely." The petitioner describes how the respondent was unable to recognize that their relationship had ended. As such, she contends that, given the severity of respondent's conduct, the respondent's claim that he wants to "move on" is not credible. Further, the petitioner notes that the respondent had relapsed from his recovery from drug and alcohol addiction during their relationship. She fears that the respondent's addiction challenges "impact his ability to act rationally" and refrain from harassing her in the future. Finally, the petitioner contends that the final order of protection affords the respondent an opportunity for "continued reflection and self-improvement free of the potential temptation of making contact with me."
Respondent's Sur-Reply
In his sur-reply, the respondent reiterates that he was unaware that the original two-year final order of protection had expired. As to the intimate images that the petitioner alleges that the respondent disseminated in a way intended to harass her, the respondent focuses on the origin of the images (e.g. from the OnlyFans website) rather than the way the images were allegedly used by him. The respondent states, "if the Petitioner willingly sold ... pornographic images by making them readily available on the internet, how would their existence or dissemination have the profoundly negative psychological impact that Petitioner has stated?" The respondent characterizes text messages that the petitioner sent the respondent in January 2021 as "provocation." The respondent explains that the reason he agreed to the final order of protection was that he believed it was "a temporary measure granted to Petitioner solely for the purpose of returning to the state of moving on that I was in prior to Petitioner re-establishing contact with me in January 2021."
Petitioner's Sur-Sur-reply
In her sur-sur reply, the petitioner notes, inter alia, that "the most explicit image of [Petitioner] that [Respondent] circulated was obtained through a private exchange" and not from OnlyFans. The petitioner also details the ways that she believes that the respondent circumvented OnlyFans user policies, including by downloading a privately shared, explicit photograph of the petitioner. The petitioner rejects the claim that she "provoked" the respondent by sending him a "straightforward, polite" text message in January 2021.
Legal Analysis
Family Court Act § 842, as amended in 2010, provides, inter alia, that the court may, upon motion, extend an order of protection for a reasonable period of time upon a showing of good cause, or consent of the parties. The new amendment lowered the standard for obtaining an extension by permitting the Family Court to grant an extension upon a showing of "good cause" rather than "special circumstances" (see Molloy v Molloy 137 AD3d 47, 49 [2d Dept 2016], citing Mem. of Assembly Judiciary Committee, Bill Jacket, L. 2010, ch. 325 at 5). "[T]he legislative history makes plain the Legislature's intent to afford greater protection to victims of domestic violence by permitting them to obtain an extension of an existing order of protection to prevent a reoccurrence of domestic abuse upon a showing of ‘good cause’ " ( Molloy v Molloy, 137 AD3d at 52 [emphasis added], citing Assembly Mem. in Support, Bill Jacket, L. 2010, ch. 325 at 8).
Good cause signifies "a sound basis or legitimate need to take action" ( Malloy v Malloy , 137 AD3d at 52-53 ). In determining whether good cause has been established, "courts should consider, but are not limited by, the following factors: the nature of the relationship between the parties, taking into account their former relationship, the circumstances leading up to the entry of the initial order of protection, and the state of the relationship at the time of the request for an extension; the frequency of interaction between the parties; any subsequent instances of domestic violence or violations of the existing order of protection; and whether the current circumstances are such that concern for the safety and well-being of the petitioner is reasonable" ( Molloy v Molloy, 137 AD3d at 53 ). "A request for an extension should be viewed in the context of facts of the case, including present circumstances, past abuse by the respondent, threats of abuse by the respondent and relevant information concerning the safety and protection of the protected persons with the primary goal to prevent a recurrence of abuse" ( Molloy v Molloy, 137 AD3d at 53, citing Assembly Mem. In Support, Bill Jacket, L. 2010, ch. 325 at 9). The statute specifies that "the fact that abuse has not occurred during the pendency of the order shall not, in itself, constitute sufficient ground for denying or failing to extend the order." Notably, the statutory provision allowing petitioners to seek an extension of the order of protection does not distinguish between orders of protection that are issued after an evidentiary hearing and those, as here, that are entered on consent without a finding that the respondent committed a family offense.
Applying the foregoing, the petitioner fails to show good cause for an extension of the final order of protection. Through submission of her affidavit and exhibits, the petitioner shows that the respondent had harassed her by, among other things, sharing explicit photos of her to her friends, family, and acquaintances. Such evidence was never presented to the Family Court before issuance of the final order of protection since the respondent voluntarily entered into the two-year final order of protection without a finding that he committed a family offense. It is undisputed that since issuance of the final order of protection, the respondent has ceased engaging in harassing conduct and has had no contact with the respondent. As of the petitioner's filing of her motion, the state of the relationship between the parties is nonexistent. The petitioner resides in New York, and the respondent resides in California. The parties do not work together and have no reason to expect to encounter one another. The parties do not have children together.
Courts have recognized that an extension for good cause may be granted when, although there has been no contact since the issuance of the order of protection, the respondent "continued to interfere with the [petitioner's] peaceful existence and well-being through other means", such as contacting the petitioner's place of employment and sending the police to her house (see Lashlee v Lashlee, 169 AD3d 683, 684 [2d Dept 2019] ). The petitioner makes no such allegations in support of her motion.
The petitioner's continued fears, based on incidents that occurred in 2020 and have since ceased, cannot alone be the basis for an extension of an order of protection. In the absence of any articulable sound basis or legitimate need to take action, it would be an abuse of this Court's discretion to extend a final order of protection for the sole purpose of enhancing a petitioner's psychological wellbeing or providing the petitioner with peace of mind (see e.g. Matter of Ironelys A. v. Jose A. , 140 AD3d 473 [1st Dept 2016] [extension denied where respondent complied with initial order of protection, petitioner did not claim any additional incidents, and there were no specific claims of fear of continued violence]; Antoinette V v Brian J.P. 68 Misc 3d 1210(A) [Fam Ct, Kings County 2020] ["[extension denied where respondent complied with initial order of protection, there were no negative interactions despite close proximity of the parties’ residences and ongoing child visitation, and no offensive conduct or events since issuance of order of protection]; c.f. Jacobs v Jacobs 167 AD3d 890 [2d Dept 2018] [extension warranted where respondent made statements to the petitioner's then-employer which needlessly caused significant police response at petitioner's home and where respondent commenced multiple meritless lawsuits against petitioner]).
While this Court is troubled by the respondent's affidavit which includes repeated references to his own psychological wellbeing, and descriptions of the impact that the court proceedings have had on him, the evidence does not suggest that respondent's lack of insight regarding the nature and severity of his conduct continues to pose a risk of harm to the petitioner.
Accordingly, the branch of the petitioner's motion seeking an extension of the final order of protection for an additional two years is denied.
In her motion, the petitioner also seeks an order, pursuant to Family Court Act § 842(k) compelling the respondent to permanently delete any and all intimate images of the petitioner that he has in his possession. Family Court Act § 842(k) permits the inclusion in an order of protection a provision directing a respondent "to observe such other conditions as are necessary to further the purposes of protection." Here, through submission of exhibits showing, inter alia, how the respondent disseminated intimate images of her, the petitioner has shown that a deletion provision would have been properly included in the final order of protection. Given the petitioner's allegations and the proof supporting them, the petitioner has established that she is entitled to a deletion provision in this Court's temporary order of protection. Given that the current temporary order of protection expires on its own terms on January 17, 2024, the branch of the petitioner's motion seeking to compel respondent to immediately delete any and all intimate images of her in his possession is granted, and the temporary order of protection issued by this Court is amended to reflect that determination. The amended temporary order of protection will be served upon the respondent via email by the court on the date of this order. Any violation of the deletion provision may be punishable as a criminal contempt.
Even though the petitioner has not shown good cause for an extension of the final order of protection, the petitioner's affidavit and her filing for an extension make clear that the petitioner does not want any contact with the respondent. Should the respondent attempt to make unwanted contact with the petitioner in the future, such conduct may be the basis for a new family offense proceeding, and a new order of protection.
In sum, the temporary order of protection remains in effect until January 17, 2024. The branch of the petitioner's motion seeking to extend the final order of protection beyond January 17, 2024, is DENIED, and the branch of the petitioner's motion seeking to compel the respondent to immediately delete any and all intimate images of her in his possession is GRANTED.
PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.