Summary
The New York Appellate Division, Fourth Department, affirmed an order of protection issued in a Family Court Act article 8 proceeding. The court held that an attorney for the child may file a family offense petition on behalf of a child against a nonparent who is a member of the same family or household. The court also concluded that the evidence supported a finding of second-degree harassment and that the stay-away order was warranted.
Topics
Practice areas
Questions Presented
- Whether Family Court had jurisdiction to issue an order of protection against a nonparent, nonguardian grandmother who was not a party to the related custody proceeding.
- Whether an attorney for the child has authority under Family Court Act § 822(a) to file a family offense petition on behalf of the child against a nonparent family member.
- Whether the evidence established by a preponderance of the evidence that the grandmother committed harassment in the second degree.
- Whether the stay-away order of protection was warranted.
Holdings
- Family Court had jurisdiction to issue an order of protection against the grandmother because a biological grandparent and child are members of the same family under Family Court Act § 812(1)(a), even though the grandmother was not a party to the related custody proceeding.
- An attorney for the child may file a family offense petition under Family Court Act § 822(a) on behalf of the child against a nonparent family member.
- The evidence established by a preponderance of the evidence that the grandmother committed harassment in the second degree by repeatedly contacting police and child welfare agencies concerning the child without a legitimate purpose.
- The stay-away order of protection was warranted to end family disruption, deter further unnecessary police visits, and protect the child's best interests.
Key quotations
“Once the appointment is made, the court "cannot thereafter relegate the [AFC] to a meaningless role"” ([*2])
“We see no reason why an AFC cannot also file a petition on behalf of the child alleging a family offense.” ([*3])
Factual background
The attorney for the child was appointed in a related custody proceeding involving the child. The child's maternal grandmother, who was not a party to that proceeding, made multiple police calls requesting welfare checks and multiple child-abuse referrals concerning the child. The evidence showed that the repeated police contacts frightened and alarmed the child, including an occasion when the child's father woke the child to speak with police.
Procedural history
An attorney for the child filed a family offense petition against the child's maternal grandmother after repeated police calls and child-abuse referrals concerning the child. Family Court denied the grandmother's motion to dismiss for lack of jurisdiction and lack of standing, adopted a referee's recommendation that she committed harassment in the second degree, and issued an order of protection. The Appellate Division unanimously affirmed without costs.