What Constitutes A Family Offense In New York?

Family offense is a civil proceeding pursued in Family Court when an act of domestic violence has been committed, such as assault, menacing, harassment, stalking, or similar crimes. These acts are not necessarily criminal in nature and the offender is does not always face the prospect of going to jail unless an order of the court has been violated.

Can Family Violence Serve As Material Change To A Standing Order Of The Court?

It may be a material change that could serve as a basis to modify custody or visitation arrangements; however it is usually not a basis to modify a prior order of child or spousal support. One could claim their ex-spouse or the other parent of their child or children assaulted them so badly they are unable to work. In theory, one could file a modification of spousal and/or child support, claiming the other engaged in this conduct and they are now unable to work (indeed that is a statutory factor the court could consider in modifying a prior financial arrangement).

What Orders Of Protections Are Considered In Family Offense Cases In New York?

Basic terms of an order of protection in a family offense case will include directives for the subject of the order to not commit a family offense, or otherwise threaten or intimidate the holder of the order. The terms may also include a stay away provision, stipulating to stay away from the person’s home or their place of business. The order may also include no-contact provisions, no contact via phone, email, video, or social media, or similar means of communication. It can also include terms that restrict one from possessing firearms.

Is It Possible For Someone To Be Removed From Their Home Prior To A Family Offense Case Being Heard In Court?

Yes a person may be removed from the home in family offense cases, especially when the allegations involve violence and the court wants to make sure that the violence does not reoccur. The court has the power to enforce a stay away order that would effectively result in a removal of that person from the residence. If the person has no other place to go, they should immediately file an order to show cause back, before the same judge asking for modification of that order, so that it would allow them to go back into the house if there is a basis to do so.

How Soon After A Family Offense Motion Is Made In Court Will A Hearing Be Held?

Hearings are usually held within two to four months – depending on the court’s backlog (as of this writing in June, 2021, the courts are still very backed-up due to the pandemic), the attorney’s calendar, and pre-trial motion practice. Either side can file a pre-trial motion requesting the judge issue an order, such as a discovery order or a motion to dismiss. These motions may delay the proceedings or, in the case of dismissal, it may prevent the need for a trial in the first place. If there is a basis to dismiss a petition for failure to state the cause of action, one should pursue this with their attorney.

“Family offense” is a term used in the context of family law. It refers to a number of behaviors that would usually be referred to as “domestic violence” outside of this context. These include:

• Disorderly Conduct (public behavior that disturbs others, like fighting or yelling)
• Illegal Distribution or Publication of an Intimate Image (sharing intimate, nude, and/or sexual images of a person without their consent)
• Harassment (repeatedly doing something that causes someone distress or alarm, with no other discernable purpose)
• Aggravated Harassment (harassment online, by phone, or through other electronic means)
• Menacing (threatening to harm someone)
• Sexual Misconduct, Sexual Abuse, and Forcible Touching (i.e., any unwanted sexual contact)
• Coercion (trying to prevent someone from doing something they have the legal right to do)
• Reckless Endangerment (putting someone in a dangerous position that may cause physical injury)
• Strangulation and Criminal Obstruction of Breathing or Blood Circulation
• Assault or Attempted Assault (hitting, punching, kicking, throwing things at, or using a weapon against someone)
• Stalking (following, monitoring, or tracking someone)
• Criminal Mischief (destroying or taking someone’s property, even if it is property that you own together)
• Identity Theft (using someone’s personal information or credit without their permission)
• Grand Larceny (theft of over $1,000)
• Intimidation (using actions or words to prevent someone from doing something they have the legal right to do) and Threats (intimidating someone with words), though these would usually constitute an “offense” if in violation of an established order of protection.

In order to fall under the jurisdiction of family law, these offenses must be perpetrated within a familial relationship or an “intimate partner relationship.” These terms refer to a number of different relationships, including:

• People who are currently married or in any type of romantic and/or sexual relationship
• People who were formerly married or in any type of romantic and/or sexual relationship that has since ended.
• People who share a child (including biological and adoptive children, and in some cases, stepchildren)
• Blood relatives (i.e., siblings, parents, cousins)
• Relatives by marriage (i.e., in-laws, uncles and aunts by marriage)
• Unrelated people who live together, or who lived together at one time (including roommates in some cases), so long as the court is satisfied that the relationship constituted an “intimate relationship” (the Judges take into consideration the frequency and duration of the parties’ interactions, but the definition generally excludes casual or business relationships)

In the context of New York Family Law, a family offense creates the basis to file for an Order of Protection (commonly referred to as a restraining order). To put an order of protection in place, the person seeking the order (sometimes called a petitioner or complainant) must appear at a proceeding in Family Court. During this proceeding, the petitioner-complainant must prove that that a family offense has already been committed against them. In general, there is no risk of an offender being arrested during a hearing to request an order of protection. Offenders usually only risk arrest if they violate a standing order of protection.

Will A Family Offense Case Be Heard In New York Family Court Or New York Supreme Court?

A family offense case can be filed in either New York Family Court or New York Supreme Court.

If a family offense proceeding is filed in the context of a divorce, it is usually heard as part of the divorce case in the Supreme Court. If a family offense proceeding is not filed in the context of a divorce, it will usually be heard in Family Court.

In other words, you can file a family offense case and/or seek an order of protection as a part of a Supreme Court case, and if the offense occurred in the context of a divorce, it will be filed alongside the divorce case in the Supreme Court. Otherwise, family offense cases will generally be heard in Family Court.

Does Jurisdiction For Family Offense Proceedings Overlap With Criminal Courts In New York?

To some degree, yes, jurisdiction for family offense proceedings overlaps with the New York Criminal Court System. However, if there are proceedings in Criminal Court and proceedings in Family Court on the same offense, they are technically considered independent cases (though oftentimes they “result together”, or have outcomes at around the same time).

There is a good deal of coordination that can occur between the prosecutor of a criminal case (often the District Attorney’s Office) and the attorney representing the victim of a family offense. Usually, the District Attorney’s Office will not independently proceed with criminal prosecution if the victim wants to resolve it as a family offense case instead. The two offices will often work together to respect the wishes of the victim.

That said, the District Attorney’s Office is technically independent, and they are always free to make their own decisions as to whether to continue with any criminal prosecution. In some cases, they may decide to pursue criminal charges even if the victim does not want to continue with criminal prosecution.

However, in my experience, it is quite rare for the District Attorney’s Office to proceed with criminal charges when the victim clearly expressed a desire to keep the matter in Family Court.

What Actually Happens In Court During Family Offense Proceedings?

Family offense proceedings usually begin with an initial court appearance. This first appearance usually only lasts around 5-10 minutes, possibly branching out to 15-30 minutes if there are delays or complications.

During the initial appearance, the Judge asks about several matters related to the case and to future proceedings. Specifically, the Judge will ask if the respondent (the term used in lieu of “defendant” in Family Court) was served with a petition, and whether or not they have legal representation. The Judge will then move on to questions about the case more generally, asking if there is any reasonable chance of resolving the case quickly or in negotiation outside of court, and also asking whether there is a need to file related petitions (such as a custody petition, a visitation petition, or a support petition). If filed, each of these petitions technically constitute independent cases.

At the end of the initial appearance, the court usually adjourns for a set pre-trial date. If it is exceedingly clear there is no possibility of resolving the case in pre-trial, the court may also just skip that part of the process and select a trial date.

Trials in family offense proceedings will usually last anywhere from one to three court appearances. They tend to be on the shorter side because there are usually not many witnesses in a domestic violence situation. Rather, the offender and the victim are usually the only two people testifying, which can generally be done within one or two court appearances. If there are any third-party witnesses, those would usually be brought up in a third appearance.

How Are Family Offense Orders Of Protection Enforced By The New York Family Court?

Generally, family offense orders of protection can be enforced in one of two ways.

• Call the Police. If you are granted an order of protection against someone and they violate it, you always have the option of calling the police. Reporting the violation of one or more terms of your Order of Protection can result in the immediate arrest of the respondent.
• File an Enforcement Petition. Another way to enforce an order of protection is to file an enforcement petition in Family Court. An enforcement petition essentially accuses the respondent of violating your Order of Protection.

Once an enforcement petition is filed, the court schedules a trial deciding whether the respondent actually violated the order of protection. During that trial, the petitioner has the burden of proving that the respondent violated the Order against them. The standard of proof they must meet depends on what sort of a case is being pursued.

In a Family Court case, as in many civil cases, the petitioner must prove their case according to a standard known as a “preponderance of evidence”. This means that the evidence they bring must convince the court it is “more likely than not” that the violation occurred.

In a case where there are criminal-like consequences (i.e., probation, fine, etc.), the petitioner needs to prove their case by the stricter standard of “clear and convincing evidence”. This requires that the evidence must convince the court that it is “substantially” more provable that the violation occurred. However, if the Court is looking to incarcerate the alleged offender, then the petitioner must prove his/her case by the same standard used in criminal court – “beyond a reasonable doubt.”

In these cases, if the plaintiff is able to provide sufficient proof, the offender can be jailed for up to 6 months for each individual violation of the plaintiff’s Order of Protection. So, if a petitioner alleges that the defendant violated the Order of Protection in question multiple times, the court could theoretically sentence the defendant to 6 months in jail for each and every violation.

For more information on Family Offense Cases In New York State, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (347) 797-1188 | (914) 362-3080 today.