Matter of A.K. v. P.C.

Summary

The Appellate Division, First Department affirmed a Family Court order finding that the respondent father committed multiple family offenses, including assault, menacing, harassment, and criminal obstruction of breathing or blood circulation. The court upheld the five-year order of protection benefiting the petitioner mother and the parties’ child, concluding that the mother’s testimony and corroborating evidence supported the findings and that aggravating circumstances justified the order’s duration.

Holdings

1. The mother established by a fair preponderance of the evidence that the father committed the family offenses of assault in the second degree, assault in the third degree, menacing in the third degree, and criminal obstruction of breathing or blood circulation.
2. There was no basis to disturb Family Court's credibility determination crediting the mother's testimony.
3. The father's contention was unpreserved because he did not request a missing-witness charge during the fact-finding hearing; in any event, the record did not support such relief because the mother did not testify that anyone other than the child witnessed the violent acts.
4. Family Court providently exercised its discretion in finding aggravating circumstances warranting a five-year order of protection.
5. Family Court properly included the parties' child in the order of protection because the father committed violent acts and made threats in the child's presence, while expressly preserving the father's parenting-access rights.

Questions Presented

1. Whether the mother established the alleged family offenses by a fair preponderance of the evidence.
2. Whether Family Court properly credited the mother's testimony over the father's conflicting account.
3. Whether the father's unpreserved request for a missing-witness charge or negative inference warranted reversal.
4. Whether aggravating circumstances supported a five-year order of protection.
5. Whether the child was properly included in the order of protection and the father's parenting-access rights were properly preserved.

Disposition

affirmed