by: Mace H. Greenfield

Family offenses are statutorily enumerated in both the penal law and the Family Court Act, and can be prosecuted either civilly in the family court, or criminally in the criminal court, or both. The offenses listed in each statute are the same: constitute disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, sexual misconduct, forcible touching, sexual abuse in the third degree, sexual abuse in the second degree as set forth in subdivision one of section 130.60 of the penal law, stalking in the first degree, stalking in the second degree, stalking in the third degree, stalking in the fourth degree, criminal mischief, menacing in the second degree, menacing in the third degree, reckless endangerment, criminal obstruction of breathing or blood circulation, strangulation in the second degree, strangulation in the first degree, assault in the second degree, assault in the third degree, an attempted assault, identity theft in the first degree, identity theft in the second degree, identity theft in the third degree, grand larceny in the fourth degree, grand larceny in the third degree or coercion in the second degree as set forth in subdivisions one, two and three of section 135.60 of the penal law between spouses or former spouses, or between parent and child or between members of the same family or household except that if the respondent would not be criminally responsible by reason of age pursuant to section 30.00 of the penal law, then the family court shall have exclusive jurisdiction over such proceeding All of the family offenses are defined within the penal laws. If the Family Offense petition does not allege one of the enumerated offenses as defined in the Penal Law, it must be dismissed.

Depending upon whether one proceeds civilly or criminally, the evidentiary standards and level of proof are different. However, the remedies available for the family court and the criminal courts, which include jail, are very similar, but when proceeding civilly, the remedies financial support, custody, and visitation are also available. Further, according to the statutes, full discovery is not allowed in a family offense proceeding in either family or criminal court. Proceeding in the criminal court may be more favorable for the accused than if the proceeding is brought in family court due to the complainant’s higher burden of proof. A family offense proceeding can be commenced in both family court and criminal court because one provides for criminal remedies and the other provides civil remedies for the same act or acts, and thus, there is no constitutional prohibition.

The requisites to establish standing or order to bring a family offense proceeding are very narrow and limited. First, the petitioner and the respondent must be part of the “same family or household,” or the petition must be dismissed. Second, the petitioner and respondent must be related by affinity or consanguinity, or be legally married to one another, or formerly married to one another, or have a child in common.

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