FAMILY COURT JURISDICTION - NO FAMILY OFFENSE BUT STILL A VIOLATION OF A TEMPORARY ORDER OF PROTECTION

No. 129, In the Matter of Lisa T., Respondent, v. King E. T., Appellant., Court of Appeals, December 19, 2017:

The facts as noted by the court:

"While the family offense proceeding remained pending, petitioner filed two violation petitions, later consolidated into a single petition, alleging 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 proven 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."

The arguments:

"Upon respondent's appeal, the Appellate Division affirmed, with one justice dissenting (147 AD3d 670 [1st Dept 129 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 AD3d at 675). Thereafter, the Appellate Division certified to this Court the question of whether its order was properly made."

The decision, in which there was also a dissent:

"To be sure, where the court concludes that the allegations of the petition charging respondent with a family offense are not established, it must dismiss the family offense petition (see Family Court Act § 841 [a]). However, this does not compel the conclusion that a pending petition alleging the violation of a [previously issued] temporary order of protection must also be dismissed. As noted, the family offense and violation petitions are authorized by different statutory provisions (see id. §§ 821, 846, 846-a). Once Family Court obtains jurisdiction over the parties by virtue of a petition facially alleging a family offense, the court may issue a temporary order of protection (see Family Court Act §§ 821-a [2] [a]; 828). A violation of that temporary order of protection is a separate matter over which sections 846 and 846-a give Family Court authority to act, including the authority to issue a final order of protection."