EXTENDING AN ORDER OF PROTECTION

RC v. AC, 2021 NY Slip Op 21175 - Kings Co. Supreme Court 2021:

"A victim of domestic violence may "commence a proceeding in either or both Family Court and Criminal Court" and "[e]ach court has the authority to issue temporary or final orders of protection" (People v. Wood, 95 NY2d 509, 512-513 [2000]). Furthermore, Section 842 of the Family Court Act provides in pertinent part, that a court "may, upon motion, extend [an] order of protection for a reasonable period of time upon a showing of good cause or consent of the parties."

The statute fails to define "good cause", but does state that "[t]he fact that abuse has not occurred during the pendency of an order shall not, in itself constitute sufficient ground for denying or failing to extend the order" (Family Ct. Act § 842). In 2003, the amendment to § 842 lowered the standard by permitting the Family Court to extend the Order of Protection upon a showing of good cause rather than aggravating circumstances for up to five (5) years.

In each case, a "request for an extension should be viewed in the context of the facts of the case, including present circumstances, past abuse by the respondent, threats of abuse by the respondent and relevant information concerning the safety and protection of the protected persons with the primary goal to prevent a recurrence of abuse." (Assembly Mem. In Support, Bill Jacket, L. 2010, ch. 325 at 9).

"[I]n determining whether good cause has been established, courts should consider, but are not limited by, the following factors: the nature of the relationship between the parties, taking into account their former relationship, the circumstances leading up to the entry of the initial order of protection, and the state of the relationship at the time of the request for an extension; the frequency of interaction between the parties; any subsequent instances of domestic violence or violations of the existing order of protection; and whether the current circumstances are such that concern for the safety and well-being of the petitioner is reasonable" (See Matter of Molloy v Molloy, 137 AD3d 47 [2d Dept. 2016]).

The Mother argues that since the issuance of the Final Order of Protection on the Family Offense Petition, the matrimonial case has stalled due to the Father's behavior and partially due to the Covid-19 crisis. She maintains that if the Order of Protection is not extended, she will be exposed to further Domestic Violence at the hands of the Father. She argues that throughout the IDV proceedings, the Father has continuously disregarded the Court's directions and orders, citing the Father's re-arrest for violating the Temporary Orders of Protection in 2018 during the pendency of the IDV matter.

The Mother argues that the criminal court proceedings against the Father were dismissed erroneously and on a technicality on speedy trial grounds and that she was not able to testify at trial regarding the many allegations of domestic violence perpetrated by the Father against her. The Mother contends that she continues to fear for her safety and the safety of their children.

In his Affidavit in Opposition, the Father contends that the Mother does not make a showing of "good cause" since her Order to Show Cause is devoid of any factual showing that the Father committed or threatened to commit any family offenses against the Mother. He argues that the Mother "makes a showing of her feelings of annoyance and disdain" for the Father, but does not provide any proof of violations of the final Order of Protection.

The Father contends that there is no prior record of a domestic violence history between the parties and that before he was "falsely accused by the Mother of various crimes after he indicated he wanted a divorce," he had never been arrested.

The Father argues that, pursuant to Molloy "good cause" must be proven despite "the fact that abuse has not occurred during the pendency of an order shall not, in itself, constitute sufficient ground for denying or failing to extend the order."

The Father distinguishes the facts of this case from those in Molloy, arguing that in Molloy the petitioner received a two-year Order of Protection after a fact-finding whereas in the case at bar, the Father consented to a two-year Order of Protection. Further, the Father contends that in Molloy the petitioner, in requesting an extension of the Final Order of Protection, alleged a host of serious allegations including blatant violations of the Order of Protection, whereas here the Mother only alleges fear of the Father based upon past alleged behavior and criminal cases that were dismissed and sealed.

On May 4, 2021, the Mother filed an Affidavit in Further Support of her Order to Show Cause, in which she maintains that the Father subjected the Mother and the children to many forms of domestic violence including physical, verbal, emotional, and financial abuse during the marriage. The Mother contends that in early 2018, the Father locked two of the parties' children in a room by drilling the door shut from the outside, which forced the Mother and the children to flee the marital home and travel to the Maternal Grandmother's home for their safety.

The Mother further alleges that on or about May 26, 2018, the Father came to her place of employment, stood by the cash register where she was working, and questioned her to ascertain where she and the children were residing. Thereafter, the Mother claims that the Father followed her to the subway station before she was able to escape.

The Father further alleges in his June 12, 2021 Answer, that the Mother's allegations are mere allegations, not supported by any evidence. The Father further maintains that there is reason to doubt the veracity and credibility of the Mother's allegations based upon "many misrepresentations, inconsistencies, and embellishments."

In the case at bar, the Court observed the demeanor of the Father and Mother and their behavior throughout the three (3) years the case has been pending. The Court is also intimately familiar with all of the Criminal Court, Family Court, and Matrimonial cases as well as the allegations made by both parties regarding the domestic violence. While the Court is aware that the criminal cases against the Father were dismissed and sealed pursuant to CPL §30.30, the Court holds that the Mother's contentions and fears relating to the Father are facially sufficient and credible. The Father has had numerous opportunities to rehabilitate his relationship with the children and has failed at every step. The Father feels emboldened by the dismissal of his criminal cases and refuses to take advice from his attorneys and the AFC who are seeking to assist him to rehabilitate his relationship with his children.

The Court holds that the Father's behavior throughout this proceeding bely his current arguments. He contends that he wants a divorce from the Mother, but has stalled at every opportunity to move the matrimonial case forward, insisting that everyone is to blame other than himself. The Mother and the children have been consistent throughout this case in expressing their fear of the Father and now, the Court holds that the Mother has provided sufficient evidence that "good cause" exists to extend the Final Order of Protection in her favor and in favor of the children.

Based upon the credible evidence provided by the Mother, the lengthy history of this case, the delays caused by the Father and the Covid-19 pandemic and the troublesome denial by the Father to the children of the alleged domestic violence and the behavior displayed by the Father throughout these proceedings, this Court is extending the Final Order of Protection."