New York Criminal Lawyer Blog
On March 4, 2009, a woman and her sons (hereinafter collectively the respondents) filed three separate family offense petitions seeking the entry of orders of protection in favor of them and against the appellant, the woman’s mother and her sons’ grandmother. The alleged family offenses included assault, harassment, and menacing. In their respective petitions, the respondents described how they were related to the appellant and asserted that the parties all resided together in a home in Nassau County. The petitions detailed certain incidents which allegedly occurred on February 19, 2009, on the island of Anguilla. According to the respondent children, their grandmother pushed their mother to the floor twice, causing her to hurt her back and hit her head. The grandmother allegedly was screaming, yelling, and cursing at the woman during the criminal assault. In addition, the grandmother allegedly used a glass bowl to strike a child on the head, causing injuries. Further, the grandmother allegedly chased the younger son with a meat cleaver and threw an ashtray at him, which hit him in the back.
Thereafter, on March 6, 2009, the appellant grandmother filed three of her own family offense petitions seeking orders of protection in her favor and against the respondents. She alleged that on or about February 14, 2009, also in Anguilla, her daughter and her grandsons committed the family offenses of aggravated harassment in the second degree, harassment in the first degree, attempted assault, and menacing in the third degree. Domestic violence all.
During an initial appearance before the Family Court, the grandmother’s counsel objected to the court’s exercise of subject matter jurisdiction because the alleged offenses occurred in Anguilla. The Family Court held that the fact that the event took place in the West Indies is no different from it taking place in Pennsylvania, Virginia, or Vermont. They’re all residents of Nassau County and they’re entitled to protection from future occurrences. Family Orders of Protection are to prevent further hostility and further assault, attempted assault, etc.
On June 24, 2009, after a hearing, the Family Court found that the respondents proved by clear and convincing evidence that the appellant grandmother had committed certain family offenses against them and granted the respondents’ respective petitions. The Family Court also entered three two-year orders of protection on behalf of the woman and her sons and against the appellant. The orders of protection directed the appellant to stay away from each of the respondents and to refrain from assaulting, stalking, and similar conduct. In addition, the Family Court issued three orders of dismissal which dismissed the appellant’s three petitions.
The appeals are from the three orders of protection and from the three orders dismissing the appellant’s petitions. As a threshold matter, it is evident that the Family Court acquired personal jurisdiction over the appellant, as she appeared before the Family Court without challenging personal jurisdiction. Additionally, the appellant affirmatively sought the entry of orders of protection against the respondents. Further, venue was appropriate inasmuch as the petitions were filed in the Family Court where the parties resided.
The appellant’s contentions provide the Court with an opportunity to address an issue which does not appear to have been previously addressed by an appellate court in New York State: the limits of the subject matter jurisdiction of the Family Court with respect to family offenses which occurred outside of the state, and even outside of the country.
The Family Court is a court of limited jurisdiction constrained to exercise only those powers conferred upon it by the state Constitution or by statute. Included within the actions and proceedings over which the Family Court has been given subject matter jurisdiction are family offense proceedings. Pursuant to the New York State Constitution, family offense proceedings are to determine as may be provided by law crimes and offenses by or against minors or between spouses or between parent and child or between members of the same family or household. In light of the provision stating as may be provided by law, the grant of jurisdiction to the Family Court over family offense proceedings is permissive and requires legislative action to be implemented.
In that regard, Family Court Act article 8 delineates the parameters of the Family Court’s subject matter jurisdiction. The Family Court Act and the Criminal Procedure Law provide the criminal court and the Family Court with concurrent jurisdiction over certain enumerated criminal offenses when allegedly committed by one family member against another. Thus, while a family member may choose to seek redress for a family offense in the Family Court, a parallel criminal proceeding also is available. Indeed, the Legislature has specifically authorized a petitioner to commence a family offense proceeding in either or both Family Court and criminal court.
Generally, in order to properly interpret a statute, a court should first consider the statute’s plain language, which is the most compelling evidence of the Legislature’s intent. The plain language of Family Court Act provides that the Family Court has jurisdiction over family offense proceedings where the petitions allege the commission of certain proscribed acts that occur between spouses or former spouses, or between parent and child or between members of the same family or household. There is no geographic limitation in Family Court Act section 812, or elsewhere in the Family Court Act, as to where a family offense is to have occurred in order to confer subject matter jurisdiction upon the Family Court. Since Family Court Act is clear on its face, it is arguably unnecessary to consider the legislative history of the statute. However, a historical review of the amendments is instructive with respect to the issue presented here, and nothing contained therein negates the jurisdiction of the Family Court over family offenses as provided in the Family Court Act.
The Legislature made its most recent major amendments to Family Court Act article 8 when it enacted the Family Protection and Domestic Violence Intervention Act of 1994, the purpose of which was to establish stronger and more aggressive court intervention in family offense cases. The 1994 Act eliminated the three-day choice of forum provision which had caused victims of family offenses to be barred from initiating simultaneous proceedings in the family court and in the criminal court, and had consequently allowed perpetrators of domestic violence to escape criminal prosecution whenever the victim sought civil redress. The 1994 Act further established a true concurrent jurisdictional provision, enabling the petitioner to proceed simultaneously in both forums.
The Family Court and the criminal court have concurrent jurisdiction over family offenses. However, a question that arises is whether the geographic or territorial limitation on the jurisdiction of the criminal court also limits the jurisdiction of the Family Court. Criminal Procedure Law provides, in pertinent part, that a person may be convicted in an appropriate criminal court of a particular county, of an offense when conduct occurred within such county sufficient to establish an element of such offense.
The Family Court is not a criminal court. Whereas the criminal court’s subject matter jurisdiction over family offenses is limited by geography, there is no statutory provision which states that such a geographic limitation also applies to the Family Court. Although the phrase concurrent jurisdiction is left undefined in the Family Court Act, the Criminal Procedure Law, and the CPLR, that phrase has been defined as:
Jurisdiction that might be exercised simultaneously by more than one court over the same subject matter and within the same territory, a litigant having the right to choose the court in which to file the action. Neither Family Court Act section 812 nor the aforementioned ordinary definition of concurrent jurisdiction indicates that concurrent jurisdiction means identical jurisdiction. As noted above, nothing in the state Constitution, Family Court Act, or the legislative history of Family Court Act article 8 requires the predicate acts of a family offense to have occurred in a particular county, state, or country in order for the Family Court to possess subject matter jurisdiction. Thus, to the extent that the appellant contends that the geographic limitation on the jurisdiction of the criminal court also applies to limit the jurisdiction of the Family Court over family offense proceedings, the contention is without merit. This holding is in accord with the functions of article 8, which include attempting to stop the violence, ending the family disruption, and obtaining an order of protection.
Accordingly, considering the plain meaning of Family Court Act, and the legislative history of that statute, the Family Court properly exercised jurisdiction over the parties’ respective petitions, despite the fact that the family offenses were alleged to have occurred in Anguilla.
In the alternative, the appellant argues that if the Court were to find that the Family Court had jurisdiction over the proceedings, the Family Court was only permitted to enforce an order of protection if one had been entered. Further, the appellant argues that the relevant law of Anguilla should have been considered and applied under the choice of laws doctrine. However, as the appellant concedes, there was no order of protection entered in Anguilla, and therefore there was no need as a matter of comity to apply the laws of Anguilla.
The appellant further argues that the Family Court erred in dismissing her petitions and that the orders of protection which, in effect, excluded her from her home for a period of two years, were unreasonable and punitive. She argues that a limited order of protection would have restored the status quo and returned her to her home.
The Family Court properly dismissed the appellant’s petitions. Although the three orders which dismissed the appellant’s petitions stated the dismissals were due to the appellant’s failure to state a cause of action, those orders also provided that the Family Court dismissed the appellant’s petitions following an examination and inquiry into the facts and circumstances of the case, and after hearing the proofs and testimony offered in relation thereto. Therefore, contrary to the appellant’s contentions, the Family Court was not required, inter alia, to accept the appellant’s allegations as true and determine whether the facts, as alleged, fit into a cognizable cause of action.
The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and that court’s determination regarding the credibility of witnesses is entitled to great weight on appeal and will not be disturbed if supported by the record. The Family Court was presented with conflicting testimony as to whether the respondents, among other things, assaulted or attempted to assault the appellant during the course of the subject incident. The Family Court’s determination that the appellant failed to establish that a family offense was committed against her was based upon its assessment of the credibility of the parties, and is supported by the record. Accordingly, the Family Court properly dismissed the appellant’s petitions.
Family problems can oftentimes go out of control and professional help may sometimes be necessary to assist the family members. A Nassau County Domestic Violence Lawyer together with the Nassau Family Attorney can provide you with sound legal advice in dealing with your family dispute. Stephen Bilkis and Associates also have a Nassau County Order of Protection Lawyer in case you need to hire one.