by: Mace H. Greenfield

The criminal behavior which has been “civilized” by Family Court Act Article 8 is defined in the penal laws. This is a crucial aspect to determine whether or not a family offense petition makes out a prima facia case, and is too often overlooked when defending against a family offense petition. Many practitioners look solely to whether or not the alleged actions occurred. More importantly, a judge is supposed to look at whether or not the petitioner can prove all the necessary elements of the family offense alleged and defined in the penal laws. Each of the family offenses requires that the petitioner allege and prove intent or recklessness or a repeated course of conduct. A few of the family offenses require a prior such offense conviction.

The allegations in the family offense petition must be composed of the evidentiary facts that establish each element of the specific family offense being charged. In People v. Dumas, the court of appeals held that mere conclusory allegations in the petition are not sufficient. The petition cannot be based upon heresay either. To be able to determine if the petitioner meets the burden of presenting a prima facia case, the respondent should demand a bill of particulars. In People v. Hall, the court of appeals held that the bill of particulars must also constitute reasonable cause to believe the respondent committed the charged offense, or the petition must be dismissed. In People v. Alejandro, the court of appeals held that together, the petition and the bill of particulars must establish a prima facie case for the offenses charged. If they do not, the petition must be dismissed. It is important to note that in Kunz v. Kunz, the family court held that depositions are not allowed in a family offense proceeding.

In order to best determine whether the allegations of a family offense will establish a prima facie case for the offenses charged, or are defective, is the penal law for that offense: disorderly conduct is defined in penal law ß 240.20; harassment in the first degree is defined in penal law ß 240.25; harassment in the second degree is defined in penal law ß 240.26; aggravated harassment in the second degree is defined in penal law ß 240.30; aggravated assault is defined in penal law ß 120.12. Menacing in the first degree is defined in penal law ß 120.13; menacing in the second degree is defined in penal law ß 120.14; assault in the third degree is defined in penal law ß 120.00; assault in the second degree is defined in penal law ß 120.05; attempted assault is defined in penal law ß 110.00; and reckless endangerment can be either reckless endangerment in the first degree, which is defined in penal law ß 120.25, or reckless endangerment in the second degree, which is defined in penal law ß 120.20.

It is important to note that in People v. Webb, the appellate court held that it was the intent of the state legislature that sex abuse and child neglect are not to be prosecuted under an Article 8, but rather under Article 10. Nowhere are such offenses found within ß 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 issues orders of protection based on such allegations. However, it is the respondent’s responsibility to bring to the Courts attention that they do not have jurisdiction to hear such allegations under Article 8. Article 10 of the Family Court Act is the proper provision for such allegations and the petition must, pursuant to Article 10, be brought by the Department of Social Services and not the child’s other parent.

In Roofeh v. Roofeh, the Supreme Court held that an order of protection cannot be obtained to stop a respondent from smoking near the petitioner or the parties’ child pursuant to Family Court Act Article 8. Smoking is not a family offense as enumerated in the Family Court Act and defined in the Penal Laws. But, the court exercised its inherent power to issue orders safeguarding health and safety of husband and children and issued an order restricting the plaintiff’s smoking to only room of the house. Further, in Garrett v. Garrett, the appellate court held that an Article 8 petition cannot be filed against a respondent for her failure to help her spouse to regularize his immigration status. This too is not a family offense as enumerated in the Family Court Act and defined in the Penal Laws. In addition, in D.O. v. J.O., the family court held that an order of protection cannot be obtained because a respondent is habitually intoxicated, even when in the presence of the children. Again, this is not a family offense as enumerated in the Family Court Act and defined in the Penal Laws. However, such petitions have been filed and litigated in the Courts to date.

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