Opinion
O-14042-13/14A
01-14-2015
In the Matter of a Family Offense Proceeding under article 8 of the Family Court Act Ellen Z., Petitioner, v. Isaac D., Respondent.
Counsel: Yisroel Schulman (Lana Kleiman of counsel), New York Legal Assistance Group, New York City, for petitioner. Isaac D., pro se. Anne Serby, Rockaway Park, attorney for children.
Counsel: Yisroel Schulman (Lana Kleiman of counsel), New York Legal Assistance Group, New York City, for petitioner. Isaac D., pro se. Anne Serby, Rockaway Park, attorney for children.
Petitioner, Ellen Z., has moved pursuant to Family Court Act §842 for an order extending the order of protection issued in her favor on November 7, 2013.
On July 13, 2013 Ellen Z. filed a family offense petition against Isaac D., with whom she has two children in common, a daughter born August 24, 2009 and a son born May 28, 2011. Afact-finding hearing upon the family offense petition was commenced but respondent withdrewhis denial and consented to the entry of an order of protection in favor of the petitioner withoutany admission of wrongdoing (Fam. Ct. Act §§841 [d]; 842; e.g., Matter of Rabbani v. Mohammad, 121 AD3d 1120 [2014]).
The order of protection directed, inter alia, that respondent "stay away" from petitioner, her home, school, place of business or employment, that respondent commit no family offensesagainst her, and that the order of protection was subject to the terms of the order of visitation asto the parties' two children issued under other docket numbers. The Court further directed thatthe parties have no contact except contact incidental to the exchange of the children forvisitation, and further that the parties could communicate about visitation via text messaging.Lastly, in accordance with Family Court Act §842-a, the Court ordered that respondent surrenderany firearms in his possession and that he be ineligible for issuance of a firearms license duringthe period of the order of protection (Fam. Ct. Act §842-a [2]; see, Matter of Blauman v. Blauman, 2 AD3d 727 [2003]; Matter of Engel v. Engel, 24 AD3d 548, 549 [2005]).
At the time that the family offense proceeding was resolved, this Court entered an orderupon the parties' cross-custody petitions directing that the mother have legal and physical custody of the children. The father was granted visitation with the children every Sunday from11:00 A.M. until 6:00 P.M. with the exchange of the children to occur at the 102nd police precinctin Queens County.
On December 17, 2014 counsel for the mother submitted a proposed order to show cause requesting that this Court extend the November 7, 2013 order of protection "until December 31,2015". In support of the motion petitioner refers to the acts of domestic violence she allegedwere committed by respondent in the petition she filed in 2013, and she asserts that based uponthe "long history of domestic violence perpetrated by" the respondent against her, she "is fearfulfor her safety as she continues to have regular contact with [respondent] during court appearancesand visitation exchanges." For example, petitioner claims that respondent became verballyaggressive towards her during an exchange of the children at the police precinct in lateNovember 2014 which made her "feel scared and intimidated", and that respondent "continues toharass and intimidate [her] by filing an enforcement petition for visitation" which she asserts isbaseless as the allegations in that petition are false.
The records of the Family Court confirm that respondent has filed a petition alleging that the mother has violated the order of custody and visitation by failing to produce the children forweekly visits or by producing them late at the precinct. Respondent-father also filed a familyoffense petition against the mother on December 29, 2014, which was apparently in response tothe issuance of the order of show cause seeking extension of the order of protection.
The parties, petitioner's attorney and the attorney for the children appeared upon the order to show cause and upon the father's family offense petition on January 14, 2015. The firstissue addressed was the mother's motion for dismissal of the father's family offense petitionupon the ground that it was facially defective (see, Fam. Ct. Act §821 [1]; Matter of Pamela N. v. Neil N., 93 AD3d 1107, 1108 [2012]; Matter of Jeff M. v. Christine N., 101 AD3d 1426, 1427[2012]; Matter of Jerralynn M.C., 114 AD3d 793, 794 [2014]).
"In determining whether a petition alleges an enumerated family offense, the petition must be liberally construed, the facts alleged in the petition must be accepted as true, and thepetitioner must be granted the benefit of every favorable inference" (Matter of Arnold v. Arnold,119 AD3d 938, 939 [2014]; see also, Matter of Clark v. Ormiston, 101 AD3d 870, 871 [2012];Matter of Jeff M., 101 AD3d at 1427; Matter of Young v. Fitzpatrick, 106 AD3d 830, 831[2013]; Matter of Cote v. Berger, 112 AD3d 821, 822 [2013]; Matter of Smith v. Howard, 113AD3d 781 [2014]; Matter of Craig O. v. Barbara P., 118 AD3d 1068, 1070 [2014]).
Upon review of the petition and the argument upon the motion this Court finds that the father's petition fails to allege any acts which, if true, would constitute a family offense. Thefather's petition merely alleged that the mother "got aggressive against me in front of a policeofficer [and] [s]he was yelling at me that she has an OP against me and she can do anything she wants." The petition fails to specify what conduct by the mother was "aggressive" nor is thereany claim that the police made an arrest or took any action as a result of the mother's allegedconduct. Such conclusory and unsubstantiated assertions in a family offense petition areinsufficient withstand a motion to dismiss the petition (Civil Practice Law and Rules §3211[a] [7]; Matter of Davis v. Venditto, 45 AD3d 837, 838 [2007]; Matter of Price v. Jenkins, 92AD3d 787 [2012]; Matter of Dowgiallo v. Williams, 99 AD3d 708, 709 [2012]; Matter of Ozdemir v. Riley, 101 AD3d 884, 885 [2012]; Matter of Marino v. Marino, 110 AD3d 887,888 [2013]; Matter of Bustamante v. Largue, 112 AD3d 819, 820 [2013]).
Although Family Courts handle crushing case loads under frequently chaotic conditions and the Legislature created 25 additional Family Court judgeships across the statein 2015 and 2016 (L 2014, ch 44 amending Fam. Ct. Act §121 and §131), Family CourtClerks are not empowered to regulate the filing of family offense petitions. Family offensepetitions must be prepared and filed upon demand of an unrepresented litigant, whether or notthe allegations have any basis in fact or reality (Fam. Ct. Act §216-c; Matter of Adefunke A. v. Adeniyi A., 36 Misc 3d 699, 706-707 [2012]).
Indeed, there is no requirement that family offense petitions be verified by the petitioner (see, Fam. Ct. Act §821 [1]; Civil Practice Law and Rules §3020 [a]), and theFamily Court may not award costs or impose financial sanctions for the filing of a frivolousfamily offense petition (22 NYCRR §130-1.1 [a] [this Part shall not apply to proceedingsunder article 3, 7 or 8 of the Family Court Act]). Thus, the sole available remedy is theextraordinary and sparingly used power to restrict access to the court where it is determinedthat a party has actually "abus[ed] the judicial process by engaging in meritless litigationmotivated by spite or ill will" (Matter of Mueller v. Mueller, 96 AD3d 948, 949 [2012], lv denied 19 NY3d 815 [2012]; see also, Matter of Manwani v. Manwani, 286 AD2d 767, 768-769 [2001]; Matter of Taub v. Taub, 94 AD3d 901, 902 [2012], lv denied 19 NY3d 809[2012]; Matter of Price v. Jenkins, 99 AD3d 915 [2012]).
"A verification is a statement under oath that the pleading is true to the knowledge of thedeponent, except as to matters alleged on information and belief, and that as to those matters [s]he believes it to be true" (Civil Practice Law and Rules §3030 [a]).
The rule defines "frivolous conduct" as action that "is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal ofexisting law" or "undertaken primarily to delay or prolong the resolution of litigation, or to harass or maliciously injure another" or "asserts material facts that are false" (22 NYCRR§130-1.1 [c] [1-3]; see, Matter of Miller v. Miller, 96 AD3d 943, 944 [2012]).
Having summarily dispensed with father's family offense petition, and having considered the papers submitted upon the mother's order to show cause and the argumentsthereon, this Court finds good cause to grant the mother's motion to extend the November 7,2013 order of protection.
Family Court Act §842 was amended in 2010 to authorize the extension of an order of protection "upon motion . . . for a reasonable period of time upon a showing of good cause orconsent of the parties" (L 2010, ch 325). The statute specifically provides that "[t]he fact thatabuse has not occurred during the pendency of an order shall not, in itself, constitute sufficientground for denying or failing to extend the order. The court must articulate a basis for itsdecision on the record" (Fam. Ct. Act §842).
While the statute does not define the terms "reasonable period of time" or "good cause" relative to the Court's authority to extend an order of protection (Sobie, 2010 SuppPrac Commentaries, McKinney's Cons Laws of NY, Family Ct Act §842, 2015 Cum AnnPocket Part at 114), it is clear from the legislative history that the amendment was intended toenhance protection for victims of domestic violence by permitting them to obtain an extensionof an existing order of protection to prevent a recurrence of domestic abuse. This relief may begranted whether or not domestic abuse has been perpetrated while the order of protection hasbeen in effect (Matter of Juanita D. v. Mario D., 35 Misc 3d 719, 721 [2012]).
While a formal evidentiary hearing is not mandated in connection with a motion requesting extension of an order of protection (id.), the Court reviewed the history of the casewhich led to the issuance of the order of protection, it considered the related custody andvisitation proceedings that were adjudicated at the same time as the family offense petition,and it reviewed the affirmation of the mother's attorney and the affidavit of the mother whichwere submitted in support of the motion. Additionally, the Court heard argument from counselfor the mother, the attorney for the children, and the father prior to reaching a decision uponthe motion.
The record demonstrates that the parties continue to have disputes over the father's visitation with the children pursuant to the order which directs that the children be exchangedby the parents inside of a police precinct for reasons of safety. These disputes have led to thefather's filing of an enforcement petition alleging that the mother has violated the order ofvisitation, as well as his filing of the family offense petition which this Court has dismissed.Based upon the prior incidents of domestic violence as alleged in the underlying familyoffense petition filed by the mother, the continuing friction surrounding the father's visitationwith the parties' children as set forth in counsel's affirmation, the mother's affidavit, and thefather's family offense petition, this Court credits the mother's claim that she continues tohave a fear that the father may commit additional acts of domestic violence against her shouldthe order of protection not be extended. The Court also credits the mother's claim that herrecent interactions with the father have caused her to "feel scared and intimidated."
Family Court Act §842 permits extension of an order of protection for a "reasonable period of time" for the purpose of preventing a recurrence of domestic violence, whether ornot violence has occurred during the existence of the order (Juanita D., 35 Misc 3d at 721-722; 1 NY Law of Domestic Violence §3:53 [3d ed. 2014]). Here the mother has articulatedher continued fear of the father based upon his past conduct and the ongoing frictionoccasioned by his visitation with the children which brings the parents into contact with eachother on a weekly basis.
Based upon the record, the Court finds good cause to grant the motion for extension of the order of protection as requested by the mother. The fact that there have been no physicalconfrontations or assaults between the parties during the existence of the order of protectionverifies that the order is serving its intended purpose of preventing violence and familydisruption (Fam. Ct. Act §812 [2] [b]).
In light of the age of the parties' children and the fact that the parties will continue to have face-to-face contact when they exchange the children, the Court concludes that it isreasonable to extend the order of protection for an additional two years, as that is themaximum duration of an order of protection in a case such as this which does not involvea finding that aggravating circumstances exist (Fam. Ct. Act §§827 [a] [vii]; 842).
Accordingly, it is hereby
ORDERED, that the mother's motion for an order extending the order of protection dated November 7, 2013 is granted; and it is therefore
ORDERED, that the order of protection dated November 7, 2013 is hereby extended upon the same terms and conditions until January 13, 2017 (Fam. Ct. Act §842).
This constitutes the decision and order of the Court.
E N T E R:
________________________________
JOHN M. HUNT
Judge of the Family Court
Dated: Jamaica, New York January 14, 2015