by: Mace H. Greenfield

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 associated 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 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. Analogy of this property right can be drawn when the excluded person’s name is on a lease and is a signatory to the lease for the property that he or she has been excluded from.

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?

Obviously, constitutionally it appears that it cannot, but yet it does anyway.