On August 15, 2008 a Bronx family was in Bronx Family Court on a delinquency action against their son. The parents were in highly emotional states. The family started to leave. The wife, who is divorced from the husband, threatened him. She stated that she would do him bodily harm. The court officers escorted the wife out of the court house but she was not arrested. All parties were scheduled to appear on August 18, 2008 in the delinquency situation with the son. Because the wife had threatened him, the husband requested that the court issue a temporary protection order under domestic violence statutes. The hearing on the protection order was set for three days later on the same day as the delinquency hearing.
When the wife arrived at the court house on August 18, 2008 for the delinquency hearing involving her son, she was approached by her husband’s daughter from a previous marriage. The daughter had a copy of the temporary protective order and attempted to serve the wife with it. The wife ignored her and proceeded into the building. Inside the building, the daughter approached the wife again. They were in the lobby of the court house. The daughter went up to the wife and dropped the service papers on the floor in front of her feet and told her that she had been served. The date of inquest on those papers was for later that same day of August 18, 2008. The wife did not appear at the inquest.
At the inquest, the husband testified that the wife had been present earlier in the courthouse for the son’s delinquency hearing even though she was not present at the inquest. The daughter testified and presented the notarized affidavit of service stating that she had served the wife with notice of the petition and temporary order of protection that morning. In light of the fact that the wife had been served, the inquest went forward without her presence relying solely on the testimony of the husband. A final order of protection was ordered under domestic violence based on the testimony of the husband, which the court found to be credible.
On October 23, 2008, the wife filed a motion to eliminate the final order of protection that was ordered at that inquest. She stated that under CPLR 5015, it may be vacated if she could show an excusable default. She prepared a notarized affidavit. In the affidavit, she stated that she had never been served with the temporary protection order papers and that she had not even been in the Bronx on August 18, 2008. She stated that the date on the affidavit of service was incorrect. The wife further denied having any contact with the husband for the past twelve years. A hearing was scheduled for December 12, 2008.
On December 12, 2008, during this domestic violence hearing, the wife denied that she was ever served or that she was in the Bronx in August. However, she admitted that she had attended all of her son’s delinquency hearings. The Court presented the dates of the delinquency hearings showing that the wife had in fact, been at the courthouse on the 18th of August. Further, since the courthouse is in the Bronx, she had been in the Bronx in the month of August. Since her ex-husband was also at the delinquency hearings, she was shown to have seen him there as well, which was certainly not 12 years ago. The wife’s testimony was shown to have no credibility. The only issue remaining before the court is one of legality in regards to the service of the temporary protective order that was served on August 18th.
The order was served at approximately nine o’clock in the morning the day of the 18th of August. The hearing on the protective order was held that afternoon. The question of legality is based on the issue of whether or not the protective order was void because it was served and heard on the same day.
According to FCA 826, a family violence offence petition “shall be served at least twenty-four hours before the time stated therein for appearance. If so requested, the Court shall not proceed with the hearing or proceeding earlier than 3 days after such service.” This can be interpreted two different ways.
The first way is that a family violence temporary order of protection has to be served twenty-four hours before the hearing on the order, or it is not valid. Additionally, the recipient of a family violence order of protection is entitled to three days or more to prepare for the hearing on the protective order.
If the court was to take this view, then the protective order that was served on the wife on the 18th was not valid because the service of the papers and the hearing of the case provided the wife less than twenty-four hours to prepare and hire a domestic violence lawyer. Additionally, since the hearing was already scheduled for that same date, the protective order would be void because the wife was entitled to a postponement of the case for three days or more to prepare. If the court takes this view, then the protective order is not in effect at all because it is void. The wife has made a motion to void the permanent protective order taking this stand.
Alternatively, FCA 826 can be interpreted as a temporary order of protection should be served within twenty-four hours. After service, the wife could then request a postponement of the hearing for three or more days. In fact, it has been this interpretation that makes the service by law enforcement officers of protective orders, more expedient. Most legal orders are not served on Sundays in historical observance of the Sabbath. Under FCA 826, because of the importance of immediate service of domestic violence protective orders, they must be served within 24 hours of the court being notified of the threat of violence. That includes serving them on a Sunday, if so required to fall within the 24 hour threshold. Studies have shown that there is a critical time period following the notification of a person involved in domestic violence. The first 24 hours after the notification that the victim is taking action back, is the time period when the assailant is most likely to accelerate their violence to possibly taking the life of the other person. It is this critical time period that the law is aimed at. In order to protect the victim of domestic violence from this most lethal time span, the order of protection must be served and be valid during that time period. Thus, the court is more inclined to accept the second interpretation of the law.
If the Court was to accept the first interpretation of the law, the only way to protect a victim of domestic violence during that critical 24 hour period, would be to incarcerate the potential offender. The court holds that the United States court system is not set up to incarcerate persons for acts that they might commit before they have actually committed them. Therefore, the court rejects the option to incarcerate a person because statistics show that they are most likely to kill their domestic partner during this 24 hour period. Rather, the court prefers to interpret the law using the second interpretation. This interpretation allows that although the primary aggressor of domestic violence has been notified that the victim is proffering charges, they are also notified that if they come in contact with the victim that the charges will be much more severe. The severity is because the protection order is in effect.
It is therefore, the position of this court that the first viewpoint which would render the protection order useless during the critical 24 hours is not the legislative intent of the law. It is critical to protect the victims of domestic abuse during this sensitive time period.
So, in this case, the court finds that the wife was properly served on August 18, 2008. However, because she was served with the order of protection within 24 hours of the hearing, she is entitled to a three day postponement of the hearing. She was not offered that adjournment. It is so ordered that since the wife was not provided the three day adjournment of the hearing that the final order of protection that was enacted on August 18th is void for thirty days. The temporary order of protection is re-instated. The wife has thirty days from the date of this order to show cause with notice to the husband to set a date for trial on the husband’s family violence petition. If she does not file a motion to review the husband’s petition, the final order of protection shall be re-instated as valid. Thus the wife has thirty days to appeal the order granting the husband the final order of protection. If she does not appeal, then the order will stand.
In this case, the wife and husband reached a mutual decision in regards to a final order of visitation with their son. The wife filed a motion to vacate the order of visitation and set a date for the return on her motion. However, the document was not complete on that date and both parties returned on November 13th 2008 and agreed to a visitation schedule. The wife withdrew her motion regarding the visitation schedule leaving the Court only addressing the family violence petition put forth by the husband.
Issues of law are constantly changing. A person who is not specifically trained in the law cannot begin to know what all of their rights are without the assistance of a professional. Here at Steven Bilkis and Associates, we provide New York Order of Protection Attorneys, New York Domestic Violence Lawyers, New York Assault Attorneys, and New York Criminal lawyers. New York Family Lawyers will stand by you and ensure that your rights are protected. New York Personal Injury Attorneys can argue your side and make sure that you and your loved ones are considered. We make sure that you are rightfully awarded compensation for your suffering.
Stephen Bilkis & Associates with its Domestic Violence Lawyers has convenient offices throughout the New York Metropolitan area including Corona, New York. Our Personal Injury Attorneys can provide you with advice to guide you through difficult situations. Without a Domestic Violence Lawyer you could lose precious compensation to help with your medical bills and the trauma to you and your loved ones following such a frightening experience. This is true even if the Attorney for the assailant has not adequately made their case. In addition to Personal Injury Law, Stephen Bilkis and Associates can recommend Criminal Lawyers who will protect your rights if you are ever arrested.