R.M.W. v. G.M.M.

23 Misc. 3d 713
CourtNew York City Family Court
DecidedJanuary 30, 2009
StatusPublished
Cited by12 cases

This text of 23 Misc. 3d 713 (R.M.W. v. G.M.M.) is published on Counsel Stack Legal Research, covering New York City Family Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
R.M.W. v. G.M.M., 23 Misc. 3d 713 (N.Y. Super. Ct. 2009).

Opinion

OPINION OF THE COURT

Conrad D. Singer, J.

The matters before the court are two motions to dismiss two family offense petitions, one filed by petitioner W. and one filed by petitioner F. The subject children of both petitions are B.R.W., born in 1997, and B.W, born in 1999.

Background

Though these are separate family offense petitions, the matters are related. Petitioner W. and petitioner F. currently live together and have one child in common. Petitioner W. is the biological father of the subject children and the respondent in both cases is the biological mother of the subject children. Both family offense petitions complain of the same incident that allegedly took place on August 24, 2008, at the home of the petitioners. It is alleged respondent appeared at the petitioners’ residence, tried to force her way in, was yelling and using abusive language, then grabbed one of the subject children, pulled her out of the house and tried to force her into a car. Mr. W.’s petition also alleges incidents from two years ago that are akin to neglect and abuse allegations, while Ms. F. asserts some generalized complaints in her petition about respondent’s behavior.

The motions to dismiss mirror one another for the most part, in that they each assert that the allegations contained in the petitions fail to spell out family offenses as those terms are [715]*715defined by Family Court Act § 812 (1) and the Penal Law. The motion to dismiss petitioner F.’s petition also challenges the court’s jurisdiction to hear the matter based upon the fact that the relationship between petitioner and respondent does not fall within the criteria spelled out in Family Court Act § 812 (1) (a) through (e). Clearly, the focus is on paragraph (e), added to section 812 (1) in July of 2008, and whether petitioner and respondent share an “intimate relationship” as that term is defined in the statute.

Intimate Relationship

Family Court Act § 812 (1) (e) states:

“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, 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. For purposes of this article, ‘disorderly conduct’ includes disorderly conduct not in a public place. For purposes of this article, ‘members of the same family or household’ shall mean the following: . . .
“(e) persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time. Factors the court may consider in determining whether a relationship is an ‘intimate relationship’ include but are not limited to: the nature or type of relationship, regard[716]*716less of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an ‘intimate relationship.’ ”

Unfortunately, neither the statute nor the legislative history which this court has reviewed sheds much light on how to define the term “intimate relationship.” Webster’s Unabridged Collegiate Dictionary on line defines the word “intimate” as follows:

“la: intrinsic, essential b: belonging to or characterizing one’s deepest nature
“2: marked by very close association, contact, or familiarity . . . “3 a: marked by a warm friendship developing through long association . . . b: suggesting informal warmth or privacy . . .
“4: of a very personal or private nature.”

Herein, petitioner F. and respondent share petitioner W. in common in that both have had children with him and petitioner F. lives with him. Further, petitioner W. has custody of his and respondent’s children and therefore respondent’s children live with, and are cared for, by petitioner F. That petitioner F. is placed in the role similar to that of a stepmother to and lives with respondent’s children suggests a close association, contact or familiarity between the two.

In almost every context in the law, the term “intimate relationship” refers to some sort of sexual or emotional pairing. However, the language of paragraph (e) makes it clear that a sexual relationship, current or past, is not necessary to fall under section 812’s widened umbrella. This, together with the Legislature’s lack of guidance in the definition of “intimate relationship,” except for not requiring a sexual relationship, is interpreted by this court as an invitation for the courts to consider relationships of all kinds when invoking Family Court Act § 812 (1) (e). In doing so, this court finds that petitioner F. and respondent herein share an intimate relationship enough to fall within the jurisdiction of the court for a family offense proceeding. Accordingly, that portion of respondent’s motion to dismiss F.’s petition for lack of jurisdiction is denied.

[717]*717Motions to Dismiss for Failure to Allege Family Offenses

Family Court Act § 812 (1) defines a family offense as those acts that would constitute

“disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, 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.”

Pursuant to Family Court Act § 821 (1) (a), a petition alleging that a family offense has occurred must at least allege that the respondent behaved in way that would constitute one of the delineated acts in Family Court Act § 812.

The caption of each family offense petition herein fails to state the petitions are also brought on behalf of the subject children. However, the allegations contained in the petitions are clearly intended to cover the subject children, and the court therefore accepts that the petitions are, indeed, also brought on behalf of the subject children.

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Bluebook (online)
23 Misc. 3d 713, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rmw-v-gmm-nycfamct-2009.