Sharon W. v. Charles L.
| Decision Date | 20 August 1976 |
| Citation | 88 Misc.2d 244,387 N.Y.S.2d 359 |
| Parties | SHARON W., Petitioner, v. CHARLES L., Respondent. |
| Court | New York Family Court |
The Petitioner has before the Court, three Petitions for Modification of a support order dated June 17, 1974 pursuant to Sec. 171 of the Family Court Act, there having been made an order of filiation declaring the Respondent as the father of the subject child on June 29, 1964.
During the course of the proceedings, the Respondent has been granted a preliminary order of protection issued against the Petitioner, pursuant to Sec. 550 of the Family Court Act. Respondent's petition alleges that Petitioner has made numerous telephone calls to his family and business associates at their places of business and homes in order to secure direct personal contact with the Respondent, who is recovering from two recent medical procedures involving open heart surgery. Respondent, through his attorney, advised the court that neither members of his family nor his business associates to whom Petitioner has spoken had knowledge that Respondent has a child born out of wedlock or of the present proceedings until Petitioner informed them of these facts. The Respondent has submitted affidavits of persons whom Petitioner contacted which state that Petitioner has made frequent telephone calls to them, has ignored their requests to refrain from communicating with them, and has made harassing and threatening statements in order to make these people accede to her wishes. During the trial of the petitions to modify, at the request of Respondent, the court made a preliminary order of protection on May 20, 1976. (Sec. 550 of the Family Court Act.) The matter is now before the court to make a permanent order of protection, pursuant to Sec. 551 of the Family Court Act.
The question that this matter places before the court is what criteria need be shown before the court can issue an order of protection under Sec. 551 of the Family Court Act.
Petitioner contends that the Respondent must show facts which would be consistent with the necessary allegations of Article 8 of the Family Court Act, that is, the facts alleged would constitute disorderly conduct, harassment, menacing, reckless endangerment, an assault or an attempted assault, Sec. 812 F.C.A., before the court can have jurisdiction to issue an order of protection under Article 5 of the Family Court Act. The court holds such an interpretation of Article 5 of the Family Court Act unwarranted and that the court can grant an order of protection pursuant to Sec. 551 F.C.A. without first finding the jurisdictional facts needed to grant an order of protection under Article 8 of the Family Court Act.
The addition of Sec. 551 to the Family Court Act in 1972 was intended to give Article 5 a provision for an order of pprotection equivalent to the provision for one in Article 4, Association of Judges of the Family Court, New York Legislative Annual 1972, pp. 24 25, citing Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968). Therefore, the powers and limitations of Sec. 551 F.C.A. are analogous to those of Sec. 446 F.C.A., not Sec. 812 F.C.A.
The jurisdictional basis that is required for the court to issue an order of protection pursuant to Sec. 446 F.C.A. is that it must be 'in assistance or as a condition of any other order made under this part' Id. This is substantially the same basis on which the predecessor court to the Family Court could issue an order of protection pursuant to a support action under Sec. 92, subd. (7) of the Domestic Relations Court Act. Under the Sec. 92, subd. (7) D.R.C.A., the Family Division of the Domestic Relations Court could have issued an order of protection as long as an order of support would have been justified, Raffone v. Raffone, 20 Misc.2d 733, 193...
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