Matter of Juanita D. v Mario D.

[*1] Matter of Juanita D. v Mario D. 2012 NY Slip Op 22072 Decided on March 21, 2012 Family Court, Queens County Hunt, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on March 21, 2012
Family Court, Queens County

In the Matter of a Family Offense Proceeding under article 8 of the Family Court Act Juanita D., Petitioner,

against

Mario D., Respondent,



O-19028-09/11A

John M. Hunt, J.

By application filed pursuant to Family Court Act §842 on December 2, 2011 the

petitioner, Juanita D., has moved for an order extending an order of protection issued by the

Family Court, Queens County (Terrence C. O'Connnor, J.) on December 2, 2009.

By petition filed pursuant to Family Court Act §821 on August 26, 2009 petitioner,

Juanita D., alleged that her son, Mario D., had committed one or more family offenses, as

defined by Family Court Act §812 (1). The family offense petition alleged, in pertinent part,

that the respondent had assaulted and harassed the petitioner as well as petitioner's daughter

(respondent's sister), who is stated to be "legally blind" and suffer from "mild mental

retardation".

Following preliminary proceedings upon the petition, a fact-finding hearing was

conducted before the Family Court on December 2, 2009. At the conclusion of the hearing,

Judge O'Connor determined that petitioner had established by a preponderance of the evidence [*2]

that the respondent had committed the family offenses of Attempted Assault and Harassment

(Fam. Ct. Act §832). The Family Court proceeded to a dispositional hearing and at the

conclusion thereof, the Court issued a final order of protection for a period of two (2) years

in favor of the petitioner (Fam. Ct. Act §§841 [d]; 842). The order of protection directed that

the respondent commit no further family offenses against his mother or his sister, and the order

further directed that the respondent stay away from his mother and his sister, stay away from the

home of his mother and sister, stay away from the school attended by his sister, stay away from

the business or places of employment of his mother and sister. The final sentence of the Court's

order states that "[i]t is further ordered that this Order of Protection shall remain in effect until

and including December 2, 2011."

On December 2, 2011 the petitioner filed the present application seeking an extension

of the December 2, 2009 final order of protection. In support of this application, Ms. D. states:

"[s]ince the entry of said order, there has been a change of circumstances in that petitioner

states, I would like to extend the court Order of Protection forever. I feel safer for my daughter

. . . Alexandra D. We do not trust Mario and fear for our safety."

Petitioner's application does not allege any violations of the December 2, 2009 final order

of protection, and the court record indicates that there have been no applications to reconsider or

modify the order of protection nor any violation petitions filed since December 2, 2009 (see,

Fam. Ct. Act §§844; 846).

In 2010 the Legislature amended Family Court Act §842 to permit the filing of motions

to extend a final order of protection (Laws 2010, ch 325). The pertinent portion of the statute

reads as follows: [*3]

The court may also, upon motion, extend the order of protection for a reasonable

period of time upon a showing of good cause or consent ofthe parties. 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 an order. The court

must articulate a basis for its decision on the record.

The available legislative history includes a State Assembly Memorandum in support

of the legislation (Legislative Memorandum relating to chapter 325, McKinney's 2010 Session

Laws at 1899-1890). According to the Memorandum, the purpose of the legislation is "to

strengthen current provisions of the law to protect victims of domestic violence. It permits

victims with existing orders of protection who are seeking to prevent a recurrence of domestic

abuse to extend their order upon a showing of good cause" (id. at 1899).[FN1]

Accordingly, Family Court Act §842, as amended, authorizes the Family Court to extend

an order of protection "for a reasonable period of time" where the parties consent to an extension

or where the Court finds that there is "good cause" to extend the order. This portion of the family

offense statute does not mandate that the moving party prove that additional family offenses have

been committed subsequent to the issuance of the final order of protection, nor does the statute

require an evidentiary hearing upon the motion, as that could in a severe case of domestic

violence, essentially force the victim or victims to relive the past abuse they have suffered. Of

course, where "good cause" is not ascertainable from the motion papers, which should be read in

conjunction with the record of the prior proceedings which led to the issuance of the order of [*4]

protection,[FN2] or where the party enjoined by the order of protection can articulate some valid

reason why the motion should be denied, the court can receive testimony as an aid to resolving

disputed issues of fact.

As explained in the Legislative Memorandum, "victims should not have to wait for

another family offense before an order is extended and that protection from further abuse

and prevention of additional violence is a primary goal of the family offense statute" (id. at

1900). It is for these compelling reasons that the Legislature has created this summary-type

motion procedure which applies where a protected party requests that an existing order of

protection be extended. It is also clear that the amendment to the statute was not intended to

permit the perpetrator to relitigate the incident or incidents underlying the initial family offense

petition, or to provide the perpetrator with an opportunity to inflict psychological harm upon the

victim or victims.

In this case, the Family Court conducted a contested fact-finding hearing upon Juanita

D.'s family offense petition which alleged, inter alia, that her son, Mario D., was verbally

abusive and attempted to hit her when she refused to take out a $30,000.00 loan for his use, that

the respondent had been "abusive" in the past, that respondent "has smacked" and been "verbally

abusive" to his sister who "is legally blind and has mild mental retardation". In an earlier

incident, respondent "snatched all the phones" when the petitioner attempted to call the police to

the home, and that when petitioner "tried to open the front door to yell for help" the respondent [*5]"pushed me and pushed the door" and "I was not able to get help." At the conclusion of the fact-

finding hearing, the Court found that petitioner had established that respondent had committed

the family offenses of Attempted Assault and Harassment, and at the conclusion of the

dispositional hearing, the Court issued an order of protection for two years which directed that

the respondent commit no further family offenses against his mother or his sister, and that he stay

away from his mother and sister and their home. There have been no violation petitions filed

since the order was issued on December 2, 2009, and this leads to the conclusion that the order

has achieved its purpose in preventing family violence and family disruption.

Under these circumstances the Court finds that there is good cause to extend the order

of protection for an additional two year period upon the same terms and conditions set forth in

that order.

It is therefore

ORDERED, that the motion of the petitioner, Juanita D., for extension of the order

of protection issued on December 2, 2009 is granted upon the Court's determination that good

cause exists for the extension (Fam. Ct. Act §842); and it is further

ORDERED, that an order of protection containing the same terms and conditions set

forth in the December 2, 2009 order of protection shall be prepared, and that the expiration date

of the new order of protection shall be December 2, 2013. [*6]

This constitutes the decision and order of the Court.[FN3]

E N T E R:

________________________________

JOHN M. HUNT

Judge of the Family Court

Dated: Jamaica, New York

March 21, 2012

Footnotes

Footnote 1:The 2010 amendment to Family Court Act §842 repealed the existing portion of the section which had authorized the Family Court to extend an order of protection for a reasonable period of time "upon a showing of special circumstances" (e.g., Matter of Waldman v. Waldman,

47 AD3d 637, 638, lv denied 11 NY3d 705). However, prior to 2010 the statute provided no specific procedure by which a party could seek to extend an order of protection.

Footnote 2:In this regard, the Legislative Memorandum states that "[a]n applicant's request for an

extension should be viewed in the context of the facts of the case, including present circum-stances, 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 recurrence of the abuse" (Legislative Memorandum, supra at 1900).

Footnote 3:This order supersedes the prior order issued by this Court on March 13, 2012.