In the Matter of A Proceeding Under Article 8 of The Family Court Act Alesia Marie Rollerson v. New

• Decision Date: 21 May 2010
• Parties: In the Matter of a Proceeding Under Article 8 of the Family Court Act Alesia Marie ROLLERSON, Petitioner,v.Russell NEW, Respondent.
• Court: New York Family Court

28 Misc.3d 663
901 N.Y.S.2d 515
2010 N.Y. Slip Op. 20189

In the Matter of a Proceeding Under Article 8 of the Family Court Act Alesia Marie ROLLERSON, Petitioner,
v.
Russell NEW, Respondent.

Family Court, Kings County, New York.

May 21, 2010.

[901 N.Y.S.2d 516]

The petitioner appeared pro se.Joel Borenstein, Esq., Brooklyn, for Respondent.LEE HAND ELKINS, J.

[28 Misc.3d 663] Respondent is the tenant of the Petitioner. They reside in the same house. Respondent, by counsel, moves to dismiss the petition asserting that the Family Court Act lacks subject matter jurisdiction under Article 8.

[28 Misc.3d 664] The Family Court's jurisdiction over crimes and offenses is limited by the state constitution to those committed “by ¹ or against minors or between spouses or between parent and child or between members of the same family or household.” ( N.Y. Const. art. VI § 13[b] ). Under the state constitution, the legislature is empowered to grant “to the family court * * * jurisdiction over crimes and offenses” between the designated categories of litigants. ( N.Y. Const. art. VI § 7). Family Court Act § 115 provides that the Family Court has concurrent jurisdiction with the criminal courts over family offenses as defined in article 8 of the Act. Section 812 of the Family Court Act sets forth nineteen Penal Law sections over which the Family Court may exercise jurisdiction, provided the offense is committed by persons in the relationship required by the state constitutional provision delimiting the Family Court's jurisdiction. In addition to jurisdiction over the designated offenses committed “between spouses or between parent and child,” the statute grants to the court jurisdiction in such offenses committed between “members of the same family or household.”

In section 812 subd. 1, the legislature listed the relationships it deemed to constitute members of the same family or household over which the Family Court could exercise “family offense” jurisdiction. These categories were expanded periodically to include previously excluded relationships, such as persons formerly married, and persons with a child in common. See, e.g., People v. Allen, 27 N.Y.2d 108, 313 N.Y.S.2d 719, 261 N.E.2d 637 [1970]. Until 2008 these relationships were defined categorically, to include:

(a) persons related by consanguinity or affinity;

(b) persons legally married to one another;

(c) persons formerly married to one another, regardless of whether they live in the same household;

(d) persons who have a child in common regardless of whether such persons have been married or have lived together at any time.

In 2008, the legislature again amended section 812 to extend the jurisdiction of the Family Court to “persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship.” The legislature rejected a categorical definition of an “intimate relationship,”[28 Misc.3d 665] choosing instead to provide guidelines to the court in assessing the nature or type of relationship over which the court might exercise subject matter jurisdiction in family offense proceedings. The legislature specified that to be in an intimate relationship, the parties need not have lived together at any time and their relationship need not be sexual in...