FAMILY OFFENSE PETITIONS

Contrary to a popular belief that orders of protection for family offenses are always granted in Family Court, this case is instructive. Matter of Diaz v Rodriguez, 2018 NY Slip Op 06091, Decided on September 19, 2018, Appellate Division, Second Department:

"The petitioner filed a family offense petition alleging, inter alia, that her uncle, the respondent, had committed the family offenses of harassment in the second degree, menacing in the third degree, and disorderly conduct. After a hearing, the Family Court denied the petition and dismissed the proceeding. The petitioner appeals.

The allegations in a family offense proceeding must be "supported by a fair preponderance of the evidence" (Family Ct Act § 832; see Matter of Tulshi v Tulshi, 118 AD3d 716; Matter of Jarrett v Jarrett, 102 AD3d 695; Matter of Scanziani v Hairston, 100 AD3d 1007). The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and that court's findings regarding the credibility of witnesses are entitled to great weight on appeal unless clearly unsupported by the record (see Matter of Tulshi v Tulshi, 118 AD3d at 716; Matter of Pearlman v Pearlman, 78 AD3d 711, 712; Matter of Gray v Gray, 55 AD3d 909).

The Family Court's determination that the petitioner failed to establish, by a fair preponderance of the evidence, that the respondent committed the family offenses alleged in the petition hinged on issues of credibility and is supported by the record (see Matter of Giresi-Palazzolo v Palazzolo, 127 AD3d 752). Accordingly, we find no basis to disturb the court's determination."