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The issue to be resolved in this case is whether the Family Court has subject matter jurisdiction over family offense proceedings.

In this case, appellant filed an appeal, in six related family offense proceedings pursuant to Family Court Act article 8, from (1) three orders of protection of the Family Court, and entered in Nassau County, which, after a hearing, upon finding that she had committed certain family offenses, inter alia, directed her to stay away from the respondents for a period of two years, and (2) three orders of dismissal of the same court, which, after a hearing, dismissed her petitions.

A Nassau County Order of protection Attorney said that in March 2009, respondent and her sons filed three separate family offense petitions seeking the entry of orders of protection in favor of them and against the appellant, respondent’s mother, and her sons’ grandmother. The alleged family offenses included, inter alia, 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. The petitions detailed certain incidents which allegedly occurred on the island of Anguilla. According to the respondents, the appellant pushed the respondent to the floor twice, causing her to hurt her back and hit her head. The appellant allegedly was screaming, yelling, and cursing at Annette during the assault. In addition, the appellant allegedly used a glass bowl to strike the son on the head, causing injuries. Further, the appellant allegedly chased the other son with a meat cleaver and threw an ashtray at him, which hit him in the back.

Thereafter, the appellant filed three of her own family offense petitions seeking orders of protection in her favor and against the respondents. The appellant alleged that, the respondents committed the family criminal offenses of, inter alia, aggravated harassment in the second degree, harassment in the first degree, attempted assault, and menacing in the third degree.

During an initial appearance before the Family Court, the appellant’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 this 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.

After a hearing, the Family Court found that the respondents proved by clear and convincing evidence that the appellant 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 respondents 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 issue to be resolved in this case is whether the Family Court has subject matter jurisdiction over family offense proceedings.

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, Nassau County, the county where the parties resided.

The appellant’s contentions provide this Court with an opportunity to address an issue which does not appear to have been previously addressed by an appellate court in this 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. Article VI of the New York State Constitution establishes “[t]he family court of the state of New York” and “enumerates the powers thereof” 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 domestic 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”. Moreover, each court has the authority to issue temporary or final orders of protection.

As relevant here, Family Court Act § 812(1) provides: “Jurisdiction. The family court and the criminal courts shall have concurrent jurisdiction over any proceeding concerning acts which would constitute disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, sexual misconduct, forcible touching, sexual abuse in the third degree, sexual abuse in the second degree as set forth in subdivision one of section 130.60 of the penal law, stalking in the first degree, stalking in the second degree, stalking in the third degree, stalking in the fourth degree, criminal mischief, 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 except that if the respondent would not be criminally responsible by reason of age pursuant to section 30.00 of the penal law, then the family court shall have exclusive jurisdiction over such proceeding.

Notwithstanding a complainant’s election to proceed in family court, the criminal court shall not be divested of jurisdiction to hear a family offense proceeding pursuant to this section.”

There is no evidence that the Legislature, by enacting concurrent jurisdiction between the Family Court and the criminal court in article 8 proceedings, ever intended to decrease the remedies available to domestic violence victims. 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 s[ought] civil redress”. The 1994 Act further established “a true concurrent jurisdictional provision, enabling the petitioner to proceed simultaneously in both forums.

There is no indication that the Legislature intended to prohibit the Family Court from exercising jurisdiction over family offenses where the alleged acts occurred in another state or country. As discussed above, 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 § 20.40(1)(a) 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:

As noted above, nothing in the state Constitution, Family Court Act § 812, 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, we hold that contention to be 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.

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.

Here, 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.

Moreover, the Family Court did not improvidently exercise its discretion in entering the three orders of protection, to remain in effect up to and including June 23, 2011, directing the appellant to, inter alia, stay away from the respondents (see Family Ct Act § 842). While the orders of protection, in effect, require the appellant to also stay away from her home because the respondents also reside there, those provisions were reasonably necessary to provide meaningful protection and to end the family disruption.

Finally, the appellant maintains that the Family Court’s comments and rulings during the hearing demonstrated its partiality in favor of the respondents and bias against her, as well an adversarial attitude. However, there is no evidence that the Family Court was biased against the appellant and thereby deprived her of a fair hearing. Furthermore, the record does not support the appellant’s contention that the Family Court displayed an adversarial attitude toward her.

Accordingly, the orders of protection and the orders of dismissal are affirmed.

An Order of Protection is issued by a court to protect a person’s rights and body from abuse and harm. Here in Stephen Bilkis and associates, we have our Nassau County Order of Protection Lawyers to protect the rights of persons who were abused violently. Call us now and talk to our lawyers.

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