Opinion
O-324-07.
Decided May 14, 2007.
Mark Oursler, Esq., Lois Decker, Victor Carrascoso, Esq., Grant Seamon, Richfield Springs, NY.
A Family Offense Petition was filed by Leslie Key on behalf of Lois Decker. Leslie Key holds a Power of Attorney for Lois Decker and a copy of said Power of Attorney was attached to the Petition when filed.
Respondent filed a motion with the court on April 20, 2007, seeking dismissal of the petition on the ground that Family Court lacks jurisdiction pursuant to Family Court Act § 812.
Petitioner filed responding papers on May 4, 2007, opposing the relief sought in the Respondent's motion and, in alternative, seeking a transfer of the petition to criminal court in the event this court finds that Family Court lacks jurisdiction to hear this matter.
The Respondent's motion focuses on FCA § 812 1.(a) which states "[f]or purposes of this article, `members of the same family or household' shall mean the following: (a) persons related by consanguinity or affinity.
The petition states that the Respondent is the cousin of Petitioner's late husband. The Respondent's moving papers state that the Respondent was the cousin of the Petitioner's late husband. The Petitioner's responding papers state that the Petitioner is the Respondent's sister-in-law. Clearly, the Respondent's motion papers and the Petitioner's responding papers are in disagreement as to how these parties are or were related to each other but it is apparent that both agree there was some relation by affinity that may or may not have survived the death of the Petitioner's husband.
Regardless of the relation between the parties, the analysis and result would be identical so it matters not whether the Respondent and Petitioner were/are cousins or in-laws, under Article 8 of the Family Court Act all relations based upon affinity cease upon the death of the party that was the source of the relationship.
While stepchildren and stepparents are considered members of the same family or household for purposes of a family offense proceeding, divorce between the stepparent and stepchild's biological parent divests the family court of jurisdiction over cases filed pursuant to Family Court Act Article 8.
Once a marriage is dissolved, be it by divorce, death, or for any other reason whatsoever, a stepparent relationship ceases. Matter of Rita F. v. Neil F. , 12 Misc 3d 894 (Family Court, New York County 2006).
In the context of cases addressing child support and insurance coverage, the stepparent-stepchild relationship ceases upon the death of the stepchild's biological parent. Matter of Rita F. v. Neil F. , 12 Misc 3d 894 (Family Court, New York County 2006).
The instant case appears to be one of first impression but it follows that in-laws or cousins related by affinity no longer fall under FCA Art. 8 upon death of the spouse. The relationship by affinity is terminated upon the death of the spouse.
It would be illogical and untenable to pick and choose which relationships established by affinity survive death and which do not.
Accordingly, the Family Court lacks subject matter jurisdiction over the instant petition.
As stated earlier, within Petitioner's responding papers is a request to have this matter transferred to a court of competent jurisdiction in the event that this court determines that Family Court lacks jurisdiction.
Article VI § 19(h)of the New York State Constitution directs, in pertinent part, that "As may be provided by law, . . . the family court . . . may transfer any action or proceeding, other than one which has previously been transferred to it, to any other court, except the supreme court, having jurisdiction of the subject matter in any other judicial district or county provided that such other court has jurisdiction over the classes of persons named as parties."
Having found that Family Court lacks jurisdiction to hear this matter it shall be transferred to Richfield Springs Village Court for further proceedings and the petition shall be deemed a criminal complaint for the purposes of prosecution in local criminal court. See, In re Lawrence W., 142 Misc 2d 203 (NY Misc. 1988).