For these reasons, it was clearly error for the Family Court to base its decision, as it intimated it was doing, on the fact that petitioner could theoretically seek exclusive occupancy of the marital home in a divorce action commenced in Supreme Court. The issue before the Family Court was not, as claimed by respondents, a permanent award of exclusive possession of the marital property incident to the divorce (cf., Handa v. Handa, 103 A.D.2d 794, 477 N.Y.S.2d 670, lv. denied 64 N.Y.2d 1040; Roy v. Roy, 109 A.D.2d 150, 491 N.Y.S.2d 202), but, instead, the propriety of an exclusion order to prevent further family disturbance (see, Kilmer v. Kilmer, supra ). Regardless of the fact that the petitioner had already moved out, the Family Court not only has jurisdiction to determine this issue, but it is its very mandate to provide for this type of relief in matters involving family violence. Clearly, recourse to a divorce proceeding was of little or no use to petitioner. Not only would she not be entitled to criminal counsel in a divorce proceeding, but the commencement of a new action would cause further delay, during which time petitioner would remain excluded from her home by the threat of violence.
Further, while we must remain sensitive to the fact that the Family Court must deal with the practical realities of the impact of its decisions on the safety and well-being of the litigants before it, we note that the court should not base its decision solely on the fact that one party has found another place to stay and the other has not. 2 A victim of the outrageous and life-threatening sort of abuse set forth in this matter cannot be held hostage to the potential homelessness of her abuser, who created the intolerable situation in the first instance.
Moreover, in addition to its failure to consider excluding respondents from the home, we find that the Family Court erred in not considering whether the order of protection should extend for three years. Section 842 of the Family Court Act sets out the conditions which may be granted under an order of protection, and it provides that a final order of protection may extend for one year
or for a period not in excess of three years upon a finding by the court on the record of the existence of aggravating circumstances as defined in paragraph (vii) of subdivision (a) of section eight hundred twenty-seven of this act, which provides, in pertinent part, that aggravating circumstances shall mean physical injury or serious physical injury to the petitioner caused by the respondent, the use of a dangerous instrument against the petitioner by the respondent, a history of repeated violations of prior orders of protection by the respondent, prior convictions for sex crimes against the petitioner by the respondent or the exposure of any family or household member to physical injury by the respondent and like incidents, behaviors and occurrences which to the court constitute an immediate and ongoing danger to the petitioner, or any member of the petitioner’s family or household.
We categorically reject respondents’ argument that a petitioner must specifically state in the petition that “aggravating circumstances” exist in order for the court to issue a three-year order of protection upon disposition. There is certainly no such requirement in the statute. Clearly, it is
for the court to determine, on the evidence before it, whether such circumstances exist, and the court is in no way barred from doing so merely because the petitioner did not use certain special language in her petition.
Respondents also argue that, regardless of whether the court erred in determining that it did not have the power to grant petitioner the relief she requested, petitioner has not demonstrated that she was entitled to a dispositional hearing because all of the facts relevant to her claim were presented in the fact-finding hearing and those facts demonstrate that the order issued by the court was the appropriate relief under the circumstances.
To Be Cont…