§ 812 — Procedures for family offense proceedings

New York § 812

• Jurisdiction: New York
• Law FCT: Family Court Act
• Part 1: Jurisdiction
• Art. 8: Family Offenses Proceedings

Text

§ 812. Procedures for family offense proceedings. 1. Jurisdiction.\nThe family court and the criminal courts shall have concurrent\njurisdiction over any proceeding concerning acts which would constitute\ndisorderly conduct, unlawful dissemination or publication of an intimate\nimage, harassment in the first degree, harassment in the second degree,\naggravated harassment in the second degree, sexual misconduct, forcible\ntouching, sexual abuse in the third degree, sexual abuse in the second\ndegree as set forth in subdivision one of section 130.60 of the penal\nlaw, stalking in the first degree, stalking in the second degree,\nstalking in the third degree, stalking in the fourth degree, criminal\nmischief, menacing in the second degree, menacing in the third degree,\nreckless endangerment, criminal obstruction of breathing or blood\ncirculation, strangulation in the second degree, strangulation in the\nfirst degree, assault in the second degree, assault in the third degree,\nan attempted assault, identity theft in the first degree, identity theft\nin the second degree, identity theft in the third degree, grand larceny\nin the fourth degree, grand larceny in the third degree, coercion in the\nsecond degree or coercion in the third degree as set forth in\nsubdivisions one, two and three of section 135.60 of the penal law\nbetween spouses or former spouses, or between parent and child or\nbetween members of the same family or household except that if the\nrespondent would not be criminally responsible by reason of age pursuant\nto section 30.00 of the penal law, then the family court shall have\nexclusive jurisdiction over such proceeding. Notwithstanding a\ncomplainant's election to proceed in family court, the criminal court\nshall not be divested of jurisdiction to hear a family offense\nproceeding pursuant to this section. In any proceeding pursuant to this\narticle, a court shall not deny an order of protection, or dismiss a\npetition, solely on the basis that the acts or events alleged are not\nrelatively contemporaneous with the date of the petition, the conclusion\nof the fact-finding or the conclusion of the dispositional hearing. For\npurposes of this article, "disorderly conduct" includes disorderly\nconduct not in a public place. For purposes of this article, "members of\nthe same family or household" shall mean the following:\n (a) persons related by consanguinity or affinity;\n (b) persons legally married to one another;\n (c) persons formerly married to one another regardless of whether they\nstill reside in the same household;\n (d) persons who have a child in common regardless of whether such\npersons have been married or have lived together at any time;\n (e) persons who are not related by consanguinity or affinity and who\nare or have been in an intimate relationship regardless of whether such\npersons have lived together at any time. Factors the court may consider\nin determining whether a relationship is an "intimate relationship"\ninclude but are not limited to: the nature or type of relationship,\nregardless of whether the relationship is sexual in nature; the\nfrequency of interaction between the persons; and the duration of the\nrelationship. Neither a casual acquaintance nor ordinary fraternization\nbetween two individuals in business or social contexts shall be deemed\nto constitute an "intimate relationship"; and\n (f) persons who are related by consanguinity or affinity to parties\nwho are or have been in an intimate relationship as defined in paragraph\n(e) of this subdivision.\n 2. Information to petitioner or complainant. The chief administrator\nof the courts shall designate the appropriate persons, including, but\nnot limited to district attorneys, criminal and family court clerks,\ncorporation counsels, county attorneys, victims assistance unit staff,\nprobation officers, warrant officers, sheriffs, police officers or any\nother law enforcement officials, to inform any petitioner or complainant\nbringing a proceeding under this article, before such proceeding is\ncommenced, of the procedures available for the institution of family\noffense proceedings, including but not limited to the following:\n (a) That there is concurrent jurisdiction with respect to family\noffenses in both family court and the criminal courts;\n (b) That a family court proceeding is a civil proceeding and is for\nthe purpose of attempting to stop the violence, end the family\ndisruption and obtain protection. Referrals for counseling, or\ncounseling services, are available through probation for this purpose;\n (c) That a proceeding in the criminal courts is for the purpose of\nprosecution of the offender and can result in a criminal conviction of\nthe offender;\n (d) That a proceeding or action subject to the provisions of this\nsection is initiated at the time of the filing of an accusatory\ninstrument or family court petition, not at the time of arrest, or\nrequest for arrest, if any;\n (f) That an arrest may precede the commencement of a family court or a\ncriminal court proceeding, but an arrest is not a requirement for\ncommencing either proceeding; provided, however, that the arrest of an\nalleged offender shall be made under the circumstances described in\nsubdivision four of section 140.10 of the criminal procedure law;\n (g) That notwithstanding a complainant's election to proceed in family\ncourt, the criminal court shall not be divested of jurisdiction to hear\na family offense proceeding pursuant to this section.\n 3. Official responsibility. No official or other person designated\npursuant to subdivision two of this section shall discourage or prevent\nany person who wishes to file a petition or sign a complaint from having\naccess to any court for that purpose.\n 4. Official forms. The chief administrator of the courts shall\nprescribe an appropriate form to implement subdivision two of this\nsection.\n 5. Notice. Every police officer, peace officer or district attorney\ninvestigating a family offense under this article shall advise the\nvictim of the availability of a shelter or other services in the\ncommunity, and shall immediately give the victim written notice of the\nlegal rights and remedies available to a victim of a family offense\nunder the relevant provisions of this act and the criminal procedure\nlaw. Such notice shall be available, at minimum, in plain English,\nSpanish, Chinese and Russian and, if necessary, shall be delivered\norally and shall include but not be limited to the information contained\nin the following statement:\n "Are you the victim of domestic violence? If you need help now, you\ncan call 911 for the police to come to you. You can also call a domestic\nviolence hotline. You can have a confidential talk with an advocate at\nthe hotline about help you can get in your community including: where\nyou can get treatment for injuries, where you can get shelter, where you\ncan get support, and what you can do to be safe. The New York State\n24-hour Domestic & Sexual Violence Hotline number is (insert the\nstatewide multilingual 800 number). They can give you information in\nmany languages. If you are deaf or hard of hearing, call 711. This is\nwhat the police can do:\n They can help you and your children find a safe place such as a family\nor friend's house or a shelter in your community.\n You can ask the officer to take you or help you and your children get\nto a safe place in your community.\n They can help connect you to a local domestic violence program.\n They can help you get to a hospital or clinic for medical care.\n They can help you get your personal belongings.\n They must complete a report discussing the incident. They will give\nyou a copy of this police report before they leave the scene. It is\nfree.\n They may, and sometimes must, arrest the person who harmed you if you\nare the victim of a crime. The person arrested could be released at any\ntime, so it is important to plan for your safety.\n If you have been abused or threatened, this is what you can ask the\npolice or district attorney to do:\n File a criminal complaint against the person who harmed you.\n Ask the criminal court to issue an order of protection for you and\nyour child if the district attorney files a criminal case with the\ncourt.\n Give you information about filing a family offense petition in your\nlocal family court.\n You also have the right to ask the family court for an order of\nprotection for you and your children.\n This is what you can ask the family court to do:\n To have your family offense petition filed the same day you go to\ncourt.\n To have your request heard in court the same day you file or the next\nday court is open.\n Only a judge can issue an order of protection. The judge does that as\npart of a criminal or family court case against the person who harmed\nyou. An order of protection in family court or in criminal court can\nsay:\n That the other person have no contact or communication with you by\nmail, phone, computer or through other people.\n That the other person stay away from you and your children, your home,\njob or school.\n That the other person not assault, harass, threaten, strangle, or\ncommit another family offense against you or your children.\n That the other person turn in their firearms and firearms licenses,\nand not get any more firearms.\n That you have temporary custody of your children.\n That the other person pay temporary child support.\n That the other person not harm your pets or service animals.\n If the family court is closed because it is night, a weekend, or a\nholiday, you can go to a criminal court to ask for an order of\nprotection.\n If you do not speak English or cannot speak it well, you can ask the\npolice, the district attorney, or the criminal or family court to get\nyou an interpreter who speaks your language. The interpreter can help\nyou explain what happened.\n You can get the forms you need to ask for an order of protection at\nyour local family court (insert addresses and contact information for\ncourts). You can also get them online: www.NYCourts.gov/forms.\n You do not need a lawyer to ask for an order of protection.\n You have a right to get a lawyer in the family court. If the family\ncourt finds that you cannot afford to pay for a lawyer, it must get you\none for free.\n If you file a complaint or family court petition, you will be asked to\nswear to its truthfulness because it is a crime to file a legal document\nthat you know is false."\n The division of criminal justice services in consultation with the\nstate office for the prevention of domestic violence shall prepare the\nform of such written notice consistent with the provisions of this\nsection and distribute copies thereof to the appropriate law enforcement\nofficials pursuant to subdivision nine of section eight hundred\nforty-one of the executive law. Additionally, copies of such notice\nshall be provided to the chief administrator of the courts to be\ndistributed to victims of family offenses through the family court at\nsuch time as such persons first come before the court and to the state\ndepartment of health for distribution to all hospitals defined under\narticle twenty-eight of the public health law. No cause of action for\ndamages shall arise in favor of any person by reason of any failure to\ncomply with the provisions of this subdivision except upon a showing of\ngross negligence or willful misconduct.\n