Areas of Practice

Orders of Protection

What Remedies Are Available In A Family Offense Proceeding?

by: Mace H. Greenfield

The remedial method available to the Courts in a Family Offense proceeding is the issuing of an order of protection. Prior to issuing an order of protection, the court must conduct a dispositional hearing “to determine what order of disposition should be made.” In Alice C. v. Joseph C., the appellate court found that the dispositional hearing may be “commenced immediately after the required findings are made.” Although reports prepared by the Probation Department may not be furnished to the court prior to the fact finding hearing being completed, they may be disclosed to the court for use in the dispositional hearing.

These reports may only be disclosed to either party, their attorneys or the law guardian at the discretion of the court.

An order of protection can require the respondent to “stay away” from the petitioner, or to refrain from the behavior which constituted the family offense, to participate in counseling or an educational program, to surrender weapons or any other behavior the court feels would be in the best interests of the family. More specifically, orders of protection can require that the respondent:

“stay away from the home, school, business or place of employment of any other party, the other spouse, the other parent, or the child, and to stay away from any other specific location designated by the court…”

Thus, for a court to issue a general stay away from a party would be without statutory authorization. If a general “stay away” had been contemplated by the state legislature at the time of the bill’s passing, this section would not enumerate such specific locations and require the inclusion of “any other specific location designated by the court.” When the court does issue such an order of protection containing a “stay away provision,” it is not enough for the court to solely conduct a fact finding hearing, but a dispositional hearing must also be held prior to issuance of such an order.

When issuing a stay away, the court is to consider such circumstances as whether the order of protection is “likely to achieve its purpose in the absence of such a condition, …” Considering that the purpose of the availability of family court in a family offense proceeding is to preserve the family unit and conciliation of the family problem, how on earth can a stay away fulfill the purpose of an order of protection absent such a condition? It appears on its face to be a contradiction, a paradox. To preserve the family unit by placing a legal brick wall in the middle of the unit, separating the family with arrest looming to attempt to be a family unit. This paradox may easily be resolved with the realization that family members often seek redress to the problems they suffer without seeking to have the other parent of their child arrested, jailed and branded with a criminal record. Often, preservation of the family unit is nothing more than allowing people’s lives to go forward and continue to be parents to the children they have in common, but away from each other.

Other provisions are available to the court for the order of protection which embody the original purpose of Article 8, to preserve the family unit, conciliation:

  • [t]o permit a parent, or a person entitled to visitation by a court order or a separation agreement, to visit the child at stated periods;
  • [t]o refrain from committing a family offense, as defined in subdivision one of section eight hundred twelve of this act, or any criminal offense against the child or against the other parent or against any person to whom custody of the child is awarded, or from harassing, intimidating or threatening such persons;
  • [t]o permit a designated party to enter the residence during a specified period of time in order to remove personal belongings not in issue in this proceeding or in any other proceeding or action under this act or the domestic relations law;
  • [t]o refrain from acts of commission or omission that create an unreasonable risk to the health, safety or welfare of a child;
  • [t]o pay the reasonable counsel fees and disbursements involved in obtaining or enforcing the order of the person who is protected by such order if such order is issued or enforced;
  • [t]o require the respondent to participate in a batterer’s education program designed to help end violent behavior, which may include referral to drug and alcohol counseling, and to pay the costs thereof if the person has the means to do so, provided however that nothing contained herein shall be deemed to require payment of the costs of any such program by the petitioner, the state or any political subdivision thereof; and
  • [t]o provide, either directly or by means of medical and health insurance, for expenses incurred for medical care and treatment arising from the incident or incidents forming the basis for the issuance of the order.
  • [t]o observe such other conditions as are necessary to further the purposes of protection.

In both Matter of Thomas “S” v. Kathleen Z., and Matter of Nathaniel T., the appellate courts held that to permit visitation, absent proof that it will be harmful, is in the child’s best interests. Many often argue that if the respondent is violent toward the other parent or spouse, the respondent will be violent toward the child. This claim is often based upon studies that show that “children raised by a violent parent face increased risk of abuse. A high correlation has been found between spouse abuse and child abuse.” However, in Fuentes v. Caney, Michael S. v. Juanita H., and Anonymous v. Anonymous, the appellate courts held that such a nexus needs to be shown in the specific case, and if such nexus does exist, supervised visitation should be and usually is available.

It is necessary to note that about one half of all domestic violence is actually mutual battering, either spouse hitting first on any given day. The incidents of men being abused by women is grossly under reported. Further, most child abuse is committed by women. Yet, the focus of attention to domestic violence is based upon abuse of women by men, the “politically correct” as opposed to reality.

To order someone to refrain from committing a family offense may seem pointless to some. One may postulate that if someone who commits a family offense was willing to obey a piece of paper, he or she never would have committed such an act in the first place. To the contrary, although ignorance is not a defense in the law, it is an explanation to understand why someone did something they should not have. Should a respondent have grown up in a family where the offensive conduct complained of was common place, he or she may not know any better and simply be ignorant to the unacceptability of his or her behavior. In such a case, an order to abstain from such conduct may be all that is necessary to preserve that family unit, allow for conciliation or protect the victim from such further behavior.

To order that someone not participate in activities related to drugs or alcohol can be invaluable to preserving the family unit, especially if this provision is accompanied by a mandate to participate in a drug or alcohol program. Too often drugs and alcohol are at the heart of domestic discord. Further, to order an abuser to participate in a batterer’s education program designed to help end violent behavior goes to the heart of the remedial nature of Family Court Act Article 8.

To order the respondent to pay the petitioner’s costs in obtaining or enforcing an order of protection helps to preclude the tax payer from the added burden of the petitioner’s legal costs in cases where the respondent has the funds available to cover costs. Too often the victim may not have the funds to obtain private counsel and may prefer such an alternative. This provision can help facilitate retention of private counsel and therefore is analogized to Domestic Relations Law § 237. This can also act as a deterrent to the potential offender to not commit such an offense or not to violate an order of protection, but only in the cases where the respondent has the money to pay. In other cases, this provision is meaningless. The same logic obviously applies to subsection (h), which allows the court to require the respondent to pay the medical bills for, or provide insurance for, the damages he or she has caused, or may cause, should the order of protection be violated.

The Courts can also order the removal of any firearms which the accused abuser may have and suspend her “license to carry, possess, repair or dispose of firearms.” This provision allows the Courts to remove the deadliest potential from the family in crisis and reduce the risk of threat to, and the worst fears of, the abused. In Jane Y. v. Jose Y., the family court held that it can even order the removal of an animal from the residence to ensure the peace and end the disruption that animal has caused.

If, however, the order appears overboard, i.e., a “stay away,” the respondent can ask the court to limit the provisions of the order. This is most often successful where there is no history of violence between parties, and there are legitimate reasons for future contact between the parties, i.e., the respondent works in the same building that the petitioner resides in.

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