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Family Court denied the request…cont

Petitioner’s adult daughter corroborated her mother’s account of her stepfather’s abuse, providing details as to other incidents, including one in which he attempted to stab petitioner with a machete, and confirming that her stepfather always kept a gun near him. She also testified that when her mother arrived at her home in December 1994, she noticed that her mother, who said she was frightened, was severely bruised. Although petitioner’s daughter’s testimony was cut short, she also testified briefly to certain incidents during her childhood, including her stepfather’s use of herself and her brothers and cousins to assist him in selling drugs until, as a teenager, she was placed in foster care.

Petitioner’s oldest son also corroborated the abuse against his mother, stating that it was often precipitated by drinking. He recounted witnessing the 1975 shooting, and he also testified that his stepfather had sexually abused him from the time he was seven or eight until he was in ninth
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grade, at which time he left home to live on the streets to escape the abuse.
On August 18, 1995, the court informed counsel that it was terminating the fact-finding hearing because sufficient evidence had already been presented to show that respondents had committed the family offense of harassment. Petitioner’s counsel objected, arguing that the remainder of the evidence would establish far graver offenses. The court overruled the objection and instead offered respondents the option of admitting to harassment, in which case they could remain in the marital residence pending disposition. In the alternative, it informed them that it would make a finding of harassment and would exclude them from the apartment pending disposition. Respondents admitted to harassment. The criminal court thereupon extended the ex parte order of protection requiring them not to harass petitioner and ordered Mental Health Services [“MHS”] to evaluate the parties and render a recommendation as to disposition.

Although that report was prepared, it failed to make a recommendation as to disposition. The matter was set down for disposition, but was transferred several times to different Judges for various reasons, including the failure of the court to provide an appropriate interpreter for petitioner, and the transfer to another county of an assigned Judge. Ultimately, on July 17, 1996, 18 months after petitioner had fled her home to escape from the abuse and filed petitions, the matter appeared before Judge Cohen for a dispositional hearing. However, rather than hearing testimony, the court issued a ruling summarily denying a three-year order of protection and denying the request that the order of protection exclude the respondents from the marital home, and instead issued a one-year order of protection merely requiring respondents to stay away from petitioner. The criminal court stated:

It is my understanding that the main issue at this dispositional hearing is the apartment. I want it clear I am not ruling on who gets the apartment. I won’t even consider it. At this point my understanding is that the mother moved out and is living somewhere else and she wants the apartment back…. If the petitioner wants the apartment she will have to take appropriate action in the appropriate court. This is not the court for this. You can have a hearing for 20 months and I will never rule on who gets this apartment. It’s not before me.
We reverse.

Among the purposes of a family offenses proceeding under Article 8 of the Family Court Act is to protect victims of domestic violence by providing “a civil, non-criminal alternative to a criminal prosecution” (Besharov, Practice Commentaries, McKinney’s Cons. Laws of N.Y., Book 29A, Family Ct. Act § 812, at 181) when family members commit certain designated criminal offenses. 1

When the allegations in a petition set forth that a respondent has committed one or more of these offenses, the Family Court will hold a fact-finding hearing to determine whether the allegations are established by a fair preponderance of the evidence (Family Ct. Act § 832). In seeking to establish the allegations, the petitioner must set forth “[o]nly competent, material and relevant evidence” (Family Ct. Act § 834).

If the petitioner is able to establish the allegations in the petition and demonstrate that the respondent has committed a family offense, the court will generally hold a dispositional hearing (Family Ct.
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Act § 835). A broader standard of admissibility of evidence is available on the dispositional hearing than at the fact-finding hearing, and evidence may be admitted as long as it is “material and relevant”, including hearsay and other evidence otherwise incompetent (Besharov, Practice Commentaries, McKinney’s Cons. Laws of N.Y., Book 29A, Family Ct. Act § 834, at 240).

Following the dispositional hearing, the Family Court may dismiss the petition if the allegations in the petition are not established, suspend judgment for up to six months, place respondents on probation for up to one year and require them to participate in an educational program, issue an order of protection, or order restitution (Family Ct. Act § 841). The order of protection may set forth “reasonable conditions of behavior to be observed … by the petitioner or respondent”, including, but not limited to, requiring them “to stay away from the home … of the other spouse” (Family Ct. Act § 842). Such a condition may be imposed not only where the parties are already living apart at the time the order is issued but, where necessary, it may also be imposed where it will require a party to stay away from what has heretofore been his or her own home (see, Merola v. Merola, 146 A.D.2d 611, 536 N.Y.S.2d 842; Kilmer v. Kilmer, 109 A.D.2d 1004, 486 N.Y.S.2d 483; Leffingwell v. Leffingwell, 86 A.D.2d 929, 448 N.Y.S.2d 799).
Initially, we reject respondents’ argument that petitioner’s appeal is academic because the one-year order of protection has expired and has not been renewed. Petitioner’s argument that the court improperly failed to exclude respondents from the marital home as a condition of the order of protection is obviously not academic. Petitioner, who has shown that she remains unable to return to her home based upon the court’s failure to address the issue of whether respondents should be excluded is clearly continuing to suffer harm. Moreover, by removing herself from the family home for her own safety, petitioner obviated the need for a further order of protection, so her failure to seek one does not render academic her argument that the order was inadequate (cf., Matter of Alice C. v. Joseph C., 212 A.D.2d 698, 623 N.Y.S.2d 152 [issue of whether court improperly refused to issue order of probation as part of order of protection without holding dispositional hearing is academic, since order of protection has expired] ).

Moreover, we find that Family Court erred in failing to hold a dispositional hearing to consider the issues of whether the order of protection should have included a provision excluding respondents from the marital apartment and whether it should have extended for three years.
We find no basis in law for the Family Court’s action in refusing to even consider whether respondents should be excluded from the apartment as a condition of the order of protection, which it had found to be clearly warranted by respondents’ behavior. As noted above, the Family Court is unquestionably permitted to order a non-resident party to stay away from the home of the other spouse or to exclude a resident party from the common home (Ross v. Ross, 152 A.D.2d 580, 543 N.Y.S.2d 162; Quintana v. Quintana, 237 A.D.2d 130, 654 N.Y.S.2d 27; Merola v Merola, supra; Kilmer v Kilmer, supra; Leffingwell v Leffingwell, supra ). There is no logical rationale to limit the power of the court by prohibiting it from excluding a resident abusive spouse merely because the victim of the abuse has been forced by her abuser to flee their common home. Such a holding would reward the worst of abusers, i.e., those whose behavior was so violent or threatening that it forced their family members to leave home, with automatic possession of the home, and would obviously frustrate the intent of the statutory scheme, which seeks to protect, not punish, the victims of domestic violence.
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To Be Cont….

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