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Orders of Protection

by / 0 Comments / 59 View / September 18, 2007

In cases of Domestic Violence, often the first place people go is the Family Court.

The New York Family Court is the prime dispenser of these orders within families; although, the criminal, county and supreme courts also have the authority to issue them.

To obtain a Family Court order of protection, the petitioner must allege that their spouse has engaged in a family offense. Family offenses are defined in section 812 of the New York Family Court act. A family offense is an act:

which would constitute disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, stalking in the first degree, stalking in the second degree, stalking in the third degree, stalking in the fourth degree, menacing in the second degree, menacing in the third degree, reckless endangerment, assault in the second degree, assault in the third degree or an attempted assault between spouses or former spouses, or between parent and child or between members of the same family or household

Reference must also be made to New York Penal Law section 240.26 which defines harassment:

1. He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same; or

2. He or she follows a person in or about a public place or places; or

3. He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.

Judge Conrad Singer, Family Court, Nassau County, rendered a decision in Lizbeth M v. Stephen M., where he was asked to determine what conduct constituted a family offense. The wife had obtained an order of protection against the husband and the husband obtained an order of protection against the wife. Both parties asked Judge Singer to dismiss the other’ss order of protection.

Both parties accused the other of using offensive and foul language. The wife claimed that the husband called her a “f***ing whi***e pig, bitch and f***ing c**” and then approached her in a manner leading her to think that he would hit her.

The husband claimed that the wife called him an “a**hole and loser” and would “give him the finger.”

The court found that the husband’s alleged conduct constituted a family offense but not the wife’s. But, why?

Judge Singer found that the husband’s alleged behavior “was meant to harass, annoy or alarm the wife and approaching her in a threatening manner was a threat to subject her to physical contact.” Further, the name calling, he found, fit into the statutory definition found in New York Penal Law section 240.26. On the other hand, he found that the wife’s alleged conduct did not arise to the level of a family offense.

At first blush, this result may seem contradictory. However, I believe that the Judge was concerned about the element of threat. This is shown by his refusal to find a family offense where the husband was also accused of “whispering unpleasant things to her, alleging that no one would believe her and his job was to make her life a living hell.” Judge Singer found that these statements were merely unpleasant and crude but “for it to be a family offense or meet the definition of a criminal act, statements must be more than that.”

These result appears to be consistent with my experience. The courts are not so much interested in whether people are being rude and impolite. The concern of the court involves the safety, whether mental or physical of the petitioner.

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