Lisa T. v. King E. T.

91 N.E.3d 1215, 69 N.Y.S.3d 236, 30 N.Y.3d 548
CourtCourt for the Trial of Impeachments and Correction of Errors
DecidedDecember 19, 2017
DocketNo. 129
StatusPublished
Cited by31 cases

This text of 91 N.E.3d 1215 (Lisa T. v. King E. T.) is published on Counsel Stack Legal Research, covering Court for the Trial of Impeachments and Correction of Errors primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lisa T. v. King E. T., 91 N.E.3d 1215, 69 N.Y.S.3d 236, 30 N.Y.3d 548 (N.Y. Super. Ct. 2017).

Opinion

STEIN, J.:

Petitioner Lisa T. filed a family offense petition against respondent King E.T., who is her husband and the father of her child. Petitioner requested and received a temporary order of protection, ex parte, at her first appearance in Family Court. The temporary order of protection directed respondent to refrain from all communications with petitioner except those relating to visitation arrangements and emergencies *1217**238regarding the child. It is undisputed that respondent was served with, and had knowledge of, this order. Throughout a series of subsequent court appearances concerning the family offense petition-at which respondent was present with one exception-the temporary order of protection was extended. While the family offense proceeding remained pending, petitioner filed two violation petitions, later consolidated into a single petition, ***551alleging that respondent had contacted her in contravention of the temporary orders of protection.

Family Court held a combined hearing on the family offense and consolidated violation petitions. As relevant here, Family Court determined that petitioner had presented insufficient evidence to sustain the family offense petition, but that she had proved respondent's willful violations of two temporary orders through email communications unrelated to the child's visitation or any emergency. Accordingly, Family Court dismissed the family offense petition, but sustained the violation petition and issued a one-year final order of protection precluding respondent from, among other things, communicating with petitioner except as necessary to make arrangements for respondent's visitation with the child.

Upon respondent's appeal, the Appellate Division affirmed, with one justice dissenting ( 147 A.D.3d 670, 48 N.Y.S.3d 119 [1st Dept. 2017] ). The dissenting justice would have held that Family Court lacked jurisdiction to issue a final order of protection because the family offense petition had been dismissed ( 147 A.D.3d at 675, 48 N.Y.S.3d 119 ). Thereafter, the Appellate Division certified to this Court the question of whether its order was properly made.

Respondent first argues that Family Court lacked jurisdiction to enter a final order of protection upon its finding that he violated the temporary orders of protection, absent a determination that either the conduct alleged in the original family offense petition or the conduct that comprised the violation of the temporary orders of protection constituted the commission of a family offense. We reject respondent's proposed limitation on Family Court's jurisdiction, inasmuch as it contradicts the plain language of the relevant Family Court Act provisions.

It is well established that "Family Court is a court of limited jurisdiction, constrained to exercise only those powers granted to it by the State Constitution or by statute" ( Matter of H.M. v. E.T., 14 N.Y.3d 521, 526, 904 N.Y.S.2d 285, 930 N.E.2d 206 [2010] ; see Matter of Johna M.S. v. Russell E.S., 10 N.Y.3d 364, 366, 859 N.Y.S.2d 594, 889 N.E.2d 471 [2008] ). In accordance with the Constitution ( N.Y. Const art VI, § 13 ), the Family Court Act provides that court with concurrent jurisdiction (shared with the criminal courts) over "family offenses" ( Family Court Act § 812[1] ). The statutory procedures concerning family offenses are set forth in article 8 of the Family Court Act, and section 812 enumerates the crimes which, if committed between persons in specified relationships, constitute family offenses (see id. ). A family offense proceeding is commenced by the filing of a petition ***552alleging the commission of a family offense between parties with the requisite familial relationship, and the petition typically seeks an order of protection (see id. § 821). We have explained that "[t]he purpose of [article 8 is] to remove in the first instance from the criminal courts a limited class of offenses arising in the family milieu, in order to permit a more ameliorative and mediative role by the Family Court" ( *1218**239People v. Williams, 24 N.Y.2d 274, 278, 300 N.Y.S.2d 89, 248 N.E.2d 8 [1969] ).

Upon the filing of a family offense petition, the court may, for good cause shown, issue a temporary order of protection in favor of the petitioner and against the respondent (see Family Court Act §§ 821-a [2 ][b]; 828). A temporary order of protection "is not a finding of wrongdoing" (id. § 828 [2] ). Nevertheless, it is an order of the court and, pursuant to Family Court Act § 846, in the event of a violation, a new petition may be filed alleging "that the respondent has failed to obey a lawful order" of the court. Family Court may hear the violation petition itself and either "take such action as is authorized under this article; or ... [or] determine whether such violation constitutes contempt of court, and transfer the allegations of criminal conduct constituting such violation to the district attorney for prosecution ...; or ... transfer the entire proceeding to the criminal court" ( id. § 846[b][ii][A]-[C] ).

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Bluebook (online)
91 N.E.3d 1215, 69 N.Y.S.3d 236, 30 N.Y.3d 548, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lisa-t-v-king-e-t-nycterr-2017.