Areas of Practice
Orders of Protection
Who has standing to bring a Family Offense Petition?
by: Mace H. Greenfield
Members of the same family or household” have standing to bring a Family Offense petition, defined by statute as follows:
- persons related by consanguinity or affinity;
- persons legally married to one another;
- persons formerly married to one another regardless of whether they still reside in the same household;
- persons who have a child in common regardless of whether such persons have been married or have lived together at any time; and
- persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time. Factors the court may consider in determining whether a relationship is an “intimate relationship” include but are not limited to: the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an "intimate relationship"
In Nadeau v. Sullivan, the family court held that a stepparent and stepchild are “members of the same family or household,” whether they do or do not reside together. In as much as their relationship is one by affinity of first degree. Further, in Lydia B. v. Pedro G., the family court held that allegations that the parties have a child in common will establish petitioner’s standing to bring a family offense proceeding against the putative father. Similarly, in Gloria C. v. William C., the family court held that an order of protection can be obtained against a father who is also the husband of the mother, on behalf of the mother’s unborn child. Additionally, in People v. Allen, the Court of Appeals held that a petitioner who is the common-law spouse of the respondent, and the common-law marriage was established in a state which recognizes common-law marriage, in compliance with the laws of that state also, has standing to maintain a family offense proceeding against the common-law spouse respondent.
However, in Matter of Gina C. v. Stephen F., the family court held that an Article 8 order of protection cannot be properly obtained against the unwed father of a child not yet born. Moreover, in Orellana v. Escalante, the appellate court held that a child lacks standing to bring a family offense petition against a former step-parent once the natural parent divorces the step parent. Additionally, in Robert F. Z. v. Michelle McG., the family court held that a putative father who denies paternity lacks standing to maintain a family offense proceeding against the mother of his alleged child, since he does not fall within any class of persons entitled to originate family offenses proceedings. Similarly, in Robert R. v. Eve M., the family court held that a natural father lacks standing to maintain a family offense proceeding against his natural daughter, once he has consented to his child’s adoption, which terminates the existence of the parent-child relationship necessary to maintain such an action. Finally, in People v. Allen, the court of appeals held that since New York State does not recognize common-law marriage, a petitioner does not have standing to maintain a family offense proceeding against her live in lover, with whom she has no children in common.
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