In re Ellen Z.

• Decision Date: 14 January 2015
• Parties: In the Matter of a FAMILY OFFENSE PROCEEDING UNDER ARTICLE 8 OF THE FAMILY COURT ACT ELLEN Z., Petitioner, Isaac D., Respondent.
• Court: New York County Court

47 Misc.3d 389

1 N.Y.S.3d 766

In the Matter of a FAMILY OFFENSE PROCEEDING UNDER ARTICLE 8 OF THE FAMILY COURT ACT ELLEN Z., Petitioner, Isaac D., Respondent.

Family Court, Queens County, New York.

Jan. 14, 2015.

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.

JOHN M. HUNT, J.

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. A fact-finding hearing upon the family offense petition was commenced but respondent withdrew his denial and consented to the entry of an order of protection in favor of the petitioner without any admission of wrongdoing ( Fam. Ct. Act §§ 841[d] ; 842; e.g., Matter of Rabbani v. Mohammad, 121 A.D.3d 1120, 995 N.Y.S.2d 211 [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 offenses against her, and that the order of protection was subject to the terms of the order of visitation as to the parties' two children issued under other docket numbers.¹ The Court further directed that the parties have no contact except contact incidental to the exchange of the children for visitation, 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 surrender any firearms in his possession and that he be ineligible for issuance of a firearms license during the period of the order of protection ( Fam. Ct. Act § 842–a [2 ]; see, Matter of Blauman v. Blauman, 2 A.D.3d 727, 769 N.Y.S.2d 584 [2003] ; Matter of Engel v. Engel, 24 A.D.3d 548, 549, 807 N.Y.S.2d 383 [2005] ).

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 alleged were committed by respondent in the petition she filed in 2013, and she asserts that based upon the "long history of domestic violence perpetrated by" the respondent against her, she "is fearful for her safety as she continues to have regular contact with [respondent] during court appearances and visitation exchanges." For example, petitioner claims that respondent became verbally aggressive towards her during an exchange of the children at the police precinct in late November 2014 which made her "feel scared and intimidated", and that respondent "continues to harass and intimidate [her] by filing an enforcement petition for visitation" which she asserts is baseless 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 for weekly visits or by producing them late at the precinct. Respondent-father also filed a family offense petition against the mother on December 29, 2014, which was apparently in response to the 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 first issue addressed was the mother's motion for dismissal of the father's family offense petition upon the ground that it was facially defective (see, Fam. Ct. Act § 821[1] ; Matter of Pamela N. v. Neil N., 93 A.D.3d 1107, 1108, 941 N.Y.S.2d 751 [2012] ; Matter of Jeff M. v. Christine N., 101 A.D.3d 1426, 1427, 957 N.Y.S.2d 758 [2012] ; Matter of Jerralynn M.C., 114 A.D.3d 793, 794, 980 N.Y.S.2d 524 [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 the petitioner must be granted the benefit of every favorable inference" (Matter of Arnold v. Arnold, 119 A.D.3d 938, 939, 989 N.Y.S.2d 879 [2014] ; see also, Matter of Clark v. Ormiston, 101 A.D.3d 870, 871, 954 N.Y.S.2d 903 [2012] ; Matter of Jeff M., 101 A.D.3d at 1427, 957 N.Y.S.2d 758 ; Matter of Young v. Fitzpatrick, 106 A.D.3d 830, 831, 964 N.Y.S.2d 623 [2013] ; Matter of Cote v. Berger, 112 A.D.3d 821, 822, 978 N.Y.S.2d 54 [2013] ; Matter of Smith v. Howard, 113 A.D.3d 781, 978 N.Y.S.2d 856 [2014] ; Matter of Craig O. v. Barbara P., 118 A.D.3d 1068, 1070, 987 N.Y.S.2d 642 [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. The father's petition merely alleged that the mother "got aggressive against me in front of a police officer [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 there any claim that the police made an arrest or took any action as a result of the mother's alleged conduct. Such conclusory and unsubstantiated assertions in a family offense petition are insufficient withstand a motion to dismiss the petition ( Civil Practice Law and Rules § 3211 [a][7]; Matter of Davis v. Venditto, 45 A.D.3d 837, 838, 846 N.Y.S.2d 365 [2007] ; Matter of Price v. Jenkins, 92 A.D.3d 787, 938 N.Y.S.2d 452 [2012] ; Matter of Dowgiallo v. Williams, 99 A.D.3d 708, 709, 951 N.Y.S.2d 404 [2012] ; Matter of Ozdemir v. Riley, 101 A.D.3d 884, 885, 958 N.Y.S.2d 596 [2012] ; Matter of Marino v. Marino, 110 A.D.3d 887, 888, 972 N.Y.S.2d 919 [2013] ; Matter of Bustamante v. Largue, 112 A.D.3d 819, 820, 977 N.Y.S.2d 347 [2013] ).

Although Family Courts handle crushing case loads under frequently chaotic conditions and the Legislature created 25 additional Family Court judgeships across the state in 2015 and 2016 (L. 2014, ch. 44 amending Fam. Ct. Act § 121 and § 131 ), Family Court Clerks are not empowered to regulate the filing of family offense petitions. Family offense petitions must be prepared and filed upon demand of an unrepresented litigant, whether or not the 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, 946 N.Y.S.2d 447 [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] ),² and the Family Court may not award costs or impose financial sanctions for the filing of a frivolous family offense petition ( 22 NYCRR § 130–1.1 [a] [this Part shall not apply to proceedings under article 3, 7 or 8 of the Family Court Act] ).³ Thus, the sole available remedy is the extraordinary and sparingly used power to restrict access to the court where it is determined that a party has actually "abus[ed] the judicial process by engaging in meritless litigation motivated by spite or ill will" (Matter of Mueller v. Mueller, 96 A.D.3d 948, 949, 946 N.Y.S.2d 503 [2012], lv. denied 19 N.Y.3d 815, 2012 WL 5258830 [2012] ; see also, Matter of Manwani v. Manwani, 286 A.D.2d 767, 768–769, 730 N.Y.S.2d 520 [2001] ; Matter of Taub v. Taub, 94 A.D.3d 901, 902, 942 N.Y.S.2d 145 [2012], lv. denied 19 N.Y.3d 809, 2012 WL 3659770 [2012] ; Matter of Price v. Jenkins, 99 A.D.3d 915, 951 N.Y.S.2d 914 [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 arguments thereon, 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 or consent of the parties" (L. 2010, ch. 325). The statute specifically provides that "[t]he fact that abuse has not occurred during the pendency of an order shall not, in itself, constitute sufficient ground for denying or failing to extend the order. The court must articulate a basis for its decision 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 Supp Prac Commentaries, McKinney's Cons Laws of N.Y., Family Ct. Act § 842, 2015 Cum Ann Pocket Part at 114), it is clear from the legislative history that the amendment was intended to enhance protection for victims of domestic violence by permitting them to obtain an extension of an existing order of protection to prevent a recurrence of domestic abuse. This relief may be granted whether or not domestic abuse has been perpetrated while the order of protection has been in effect (Matter of Juanita D. v. Mario D., 35 Misc.3d 719, 721, 945 N.Y.S.2d 853 [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 case which led to the issuance of the order of protection, it considered the related custody and visitation proceedings that were adjudicated at the same...