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ORDERS OF PROTECTION AND CANDY
HOW THEY DIFFER AND HOW THEY ARE ALIKE

by: Mace H. Greenfield, Esq.

So many orders of protection are given out daily, as though it was candy on Halloween. 
On Halloween you must wear a costume and say "trick or treat;" for an order of protection,
you must make evidentiary allegations that set forth each and every element of the family
offense asserted as is defined in the penal laws.  On Halloween if you do not wear a costume
nor say "trick or treat," you get candy anyway; when most allegations in a petition for an
order of protection do not set forth allegations that meet the requirements of law, you still
get an order of protection.  On Halloween, the worst that usually occurs is an egg being
tossed at your home; and if an order of protection is not given, nothing happens that
otherwise would not have happened.  A piece of paper does not and cannot stop a fist, a
knife or a bullet; it does stop that which would not have happen without it.

Family offenses are statutorily enumerated in both the penal law and the Family Court Act.  
Candy is not.  Family offenses can be prosecuted either civilly in the Family Court, or
criminally in the Criminal Court, or both.   Candy cannot.  The offenses listed in each statute
are the same: disorderly conduct ; harassment in the 1st and 2nd degrees ; aggravated
harassment in the 2nd degree ; aggravated assault ; menacing in the 1st and 2nd degrees ;
assault in the 2nd and 3rd degrees ; reckless endangerment in the 1st and 2nd degrees ; and
attempted assault .  These family offenses are defined within the penal laws.   Candy is not. 
If the petition does not allege one of the enumerated offenses as defined in the Penal Law, it
must be dismissed.   You can always eat candy.  Yet, too often like candy, it is granted on an
ex-parte basis, devoid of any statutory basis to the allegations in the petition.

Filing a Family Offense in Family Court is to provide the opportunity to civilly prosecute a
crime.  The intent of the legislature in enacting Family Court Act Article 8 was to attempt to
preserve the family unit, to provide a remedial remedy for certain crimes between family
members which may be but symptoms of the turmoil of that family, and to allow for
reconciliation or conciliation.   A Family Court Act Article 8 proceeding allows a petitioner the
opportunity to seek help for the offending family member rather than criminal prosecution.  
Thus, it would seem to be a contradiction of legislative intent to entertain a family offense in
Family Court rather than Criminal Court during the course of a divorce action.

Case law has clearly established that family offenses are limited to the enumerated acts
listed in Family Court Act section 812.   The Court has stated that:

If an act alleged in an Article 8 proceeding would not constitute a violation of one or more of
the Penal Law sections referred to above, it may not, as a matter of law, constitute a family
offense.  (See, e.g., People v. Webb, 52 A.D.2d 8 [3d Dept. 1976]; Matter of Whiting v.
Shepard, 35 A.D.2d 11 [3d Dept. 1970]; Di Donna v. Di Donna, 72 Misc. 2d 231 [Fam Ct,
Ulster County 1972]; Matter of Seymour v. Seymour, 56 Misc. 2d 546 [Fam Ct, Tioga County
1968]; People v. Coady, 79 Misc.2d 929, 930 [Sup Ct. Queens County 1974] ["Not all acts
committed by one spouse against the other constitute part of that class of actions or
proceedings which the Legislature designated to be a family offense.  Even though the Family
Court is authorized to entertain family offense proceedings, the act or acts must come within
the meaning of section 812 of the Family Court Act"].)

Family Court Act section 812 gives to the Family Court jurisdiction over proceedings
concerning acts which constitute "disorderly conduct, harassment in the first degree,
harassment in the second degree, aggravated harassment in the second degree, menacing in
the second degree, menacing in the third degree, reckless endangerment, assault in the
second degree, assault in the third degree or an attempted assault . . ."  (Same as Criminal
Procedure Law section 530.11)  If the proof presented does not establish by a fair
preponderance of the evidence that the respondent has committed one of the previously
described acts, then the Court is unable to make a finding of a family offense and the
proceeding must be dismissed.   Yet too often because a respondent did what was alleged in
the petition, even though it does not constitute one of the crimes, the order of protection is
granted.  It is most problematic when this is done on an ex-parte basis.

"Truly criminal conduct" must be transferred from the Family Court to a Criminal Court
and such conduct should not be treated as a family offense rather than a crime and go
unpunished.   The Family Court has the discretion to transfer the matter to Criminal Court
where there is no reasonable opportunity for reconciliation between the parties or for the
preservation of the family unit, and the nature of the family offense is so grievous.   However,
the Family Court can only transfer the proceeding to Criminal Court, prior to a finding on the
petition, and with the consent of both the petitioner and the district attorney.   When such a
transfer is made, the Court can issue or continue a temporary order of protection until the
respondent is arraigned in Criminal Court.    I have yet to see this done, but luckily we now
have the Integrated Domestic Violence part, which at least to a minimal extent does resolve
some of the problems and contradictions.

The allegations in the family offense petition must be the evidentiary facts that establish
each element of the specific family offense being charged,  not mere conclusory allegations, 
and not heresay,  otherwise the petition must be dismissed.  The bill of particulars, which
should always be demanded, must also provide reasonable cause to believe the respondent
committed the charged offense, or the petition must be dismissed.   The petition and the bill
of particulars must establish a prima facie case for the offenses charged otherwise the
petition must be dismissed.   Yet rarely do I ever see the petition being reviewed for legal
sufficiency based on the law, especially at the initial ex-parte application, or even after a
motion to dismiss.

It is important to note that sex abuse and child neglect cannot be prosecuted under an
Article 8 petition.   Nowhere is such an offense found within section 812 of the Family Court
Act.  Often, though, Article 8 petitions have been filed for allegations of sex abuse and child
neglect.   Sometimes, the Court does issue orders of protection based on such allegations.  It
should not be the respondent's responsibility to bring to the Courts attention that they do
not have the jurisdiction to hear such allegations under Article 8.  Article 10 of the Family
Court Act is the proper provision for such allegations and then the petition can only filed by
Social Services and not the child's other parent. 

  An order of protection cannot be obtained to stop a respondent from smoking near
the petitioner or the parties' child.   An Article 8 petition cannot be filed against a respondent
for her failure to help her spouse to regularize his immigration status.  An order of
protection cannot be obtained because a respondent is habitually intoxicated, even when in
the presence of the children.   Yes, such petitions have been filed and litigated in the Courts
to date, and regularly ex-parte orders of protection are granted without allegations in the
petition setting forth an enumerated family offense as set forth in the Family Court Act and
as defined by the penal law as required by the law of this state.

When an Order of Protection is issued with a stay away order, putting a party out of his or her
home, that person is entitled to a prompt evidentiary hearing.   This is because the excluded
person's property and liberty rights are directly and adversely affected by the stay away
provision.   Thus, the excluded person does have an injury to protected rights of property
and association (to wit: cannot associate with his or her own children and or spouse) and
thereby giving that person standing to make a constitutional challenge.   The standing is also
based on the excluded person having been aggrieved by the feature of the Family Court Act
that permitted the stay away provision to be issued, in that he or she cannot go home and
cannot see his or her children and or spouse.   The major adverse affects and effects of
candy are: cavities, calories, diabetic risk, and not being able to eat your diner.

The excluded person cannot go home, thereby not being able to enjoy his or her
associational liberties as regards his or her children.   If the excluded person owns, in part or
whole, the home from which he or she was excluded, then the stay away provision also
excludes him or her from real property in which he or she otherwise shares an ownership
interest and has a right to possession of. 

The State is mandated to these due process considerations when seeking to restrict such
liberties and rights .  Whenever State action deprives a citizen of his or her liberty or
property, due process requires that he or she be afforded the opportunity to be heard in a
timely manner.   The hearing must be provided at a meaningful time and in a meaningful
manner.   Only in extraordinary situations may the hearing be postponed until after the
deprivation has occurred.   The requirements of due process and fair procedure are flexible
as to the timing and formality of the hearing, as maybe called for by the particular situation.

Thus, the questions begging to be asked, are:

1. When no eminent threat of violence or harm exists and no actual harm has occurred, on
what right or basis can Family Court exclude a respondent by issuing a stay away order prior
to holding a hearing without violating the respondent's due process rights as set forth
above?
2. When a hearing has not been had nor waived by a respondent, on what right or basis can
Family Court continue to exclude a respondent by continuing a stay away order without
violating the respondent's due process rights as set forth above?
3. Can I have some candy too, please?

Obviously, constitutionally it appears that it cannot be done, but yet it is done regularly by
the Courts anyway.