by: Mace H. Greenfield

The purpose of filing a petition claiming a Family Offense in family court is to seek the opportunity to civilly prosecute a crime. The Court of Appeals, in People v. Allen, stated that the intent of the legislature in enacting Family Court Act Article 8 was to attempt to preserve the family, to provide a remedial remedy for certain crimes between family members which are symptomatic of the turmoil within that family unit, and to facilitate reconciliation or conciliation. The criminal court, in People v. Garcia, explained that a family court proceeding, pursuant to Article 8, allows a petitioner the opportunity to seek help for the offending family member rather than the sanctions and punishment imposed by a criminal proceeding.

More recently, however, the Legislature has voiced much stronger concern and language when enacting the 1994 amendments to Family Court Act Article 8:

The legislature hereby finds and declares that there are few more prevalent or more serious problems confronting the families and households of New York than domestic violence. It is a crime which destroys the household as a place of safety, sanctuary, freedom and nurturing for all household members. We also know that this violence results in tremendous costs to our social services, legal, medical and criminal justice systems, as they are all confronted with its tragic aftermath.

In Hayes v. Hayes, the family court illustrated that case law of New York State has clearly established that family offenses are limited to the enumerated acts listed in Family Court Act § 812:

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 § 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, 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" In D.O. v. J.O., the family court held that when asserting a claim regarding one of the aforementioned offenses, 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 does not have the capacity to make a finding of a family offense

In Montalvo v. Montalvo, the family court held that “[t]ruly criminal conduct” or exceptionally serious or violent acts within the family, must be transferred from the family court to a criminal court and such conduct should not be treated as a less egregious family offense rather than as a crime and go unpunished. Similarly, in People v. Brown, the criminal court held that the family court also 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 exceptionally grievous. However, based on statutory amendments since these two cases, 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 a temporary order of protection or continue a temporary order of protection until the respondent is arraigned in criminal court. The right of the petitioner to proceed in either forum, or both forums is discretionary, and is not limited or restricted by law.

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