Opinion
O-12610-17
08-10-2020
In the Matter of Antoinette V., Petitioner, v. Brian J.P., Respondent.
The Mother was represented by Ira Forman, Esq., Suite 1503, 26 Court St., Brooklyn, NY 11242- 1115, iraforman@yahoo.com; and the Father was represented by Gary Port, Esq. of Port & Sava, 600 Madison Ave # 22, New York, NY 10022, Phone: (212) 742-7999, gary@portandsava.com
The Mother was represented by Ira Forman, Esq., Suite 1503, 26 Court St., Brooklyn, NY 11242- 1115, iraforman@yahoo.com; and the Father was represented by Gary Port, Esq. of Port & Sava, 600 Madison Ave # 22, New York, NY 10022, Phone: (212) 742-7999, gary@portandsava.com
Papers Numbered Summons, Petitions, Affidavit & Exhibits Annexed 1 Notice of Motion, Affirmation & Affidavit Annexed 2 Affirmation in Opposition & Exhibit Annexed 3
Upon the foregoing papers, the Motion by Petitioner Antoinette V. (hereinafter "Mother"), for the extension of a Final Order of Protection against Respondent Brian P. (hereinafter "Father"), is denied in accordance with the following decision.
By Acknowledgement of Paternity dated August 27, 2015, Father legally acknowledged to be the father of the Child, born to the Mother out-of-wedlock in August 2015. The family apparently lived together for a period of time with the Mother's older son from another relationship, C. M. According to her, throughout their relationship, Father has engaged in several acts of domestic violence against her in the presence of the Children.
By Petition dated May 3, 2017, Mother commenced the underlying Family Offense proceeding against Father in Kings County Family Court, fearing that her life was in danger and claiming that Father had threatened to harm her older Child C., had pushed and hit her, thrown a cell phone at her hitting her stomach, threatened to "knock her teeth down her throat and put her in the ground." According to Mother, in 2017, Father screamed in her face and grabbed her fist tightly, causing pain, and in another occasion, he strangled her until she felt dizzy. She also alleged that, in July 2014, Father slapped and beat her so badly around her face that she went to the doctor and was diagnosed with a fractured nose. Based on those allegations, the Family Court (Bourne-Clarke, J.) issued an exclusion and full stay-away Temporary Order of Protection against the Father on that same day.
Although the parties decided to remain in separate residences following the issuance of the Temporary Order of Protection, no settlement was reached on the underlying Family Offense Petition and the matter proceeded to a full evidentiary hearing before Judge Bourne-Clarke, where the parties testified and were cross-examined. After the conclusion of the trial, on February 21, 2018, the Family Court (Bourne-Clarke, J.) issued a Final Order of Protection in favor of Mother and against Father for two years requiring him to stay away from Mother wherever she may be, her home and place of employment; ordering him to refrain from harassing, stalking, assaulting, menacing or committing any criminal offense against her; and prohibiting all communications between the parties, except for issues regarding the Child's custody and visitation. The Court found that the Father committed several family offenses, including assault in the third degree, harassment in the third degree, menacing in the third degree and disorderly conduct all against the Mother. Thus, the Father was to stay away from the Wife and was to have no contact with her until the expiration of the Order of Protection on February 20, 2020.
Prior to its expiration, by Notice of Motion dated February 5, 2020, the Mother now moves for an extension of the Final Order of Protection due to certain actions that Father has allegedly undertaken against her. She alleges that the Father, who is a martial arts expert with a black belt and samurai swords, lives close to her and is using their four-year-old Child to send her "messages of hate and violence." Specifically, the Mother claims that the Child has relayed threatening statements from the Father to her, such as: "Daddy would shoot you with a real bow and arrow and kill you" and "if you see Daddy coming, you have to duck." She notes that he had previously violated the Temporary Order of Protection and was arrested for this shortly after its issuance. The Mother claims that those statements have so terrified her that she carries a camera in her car whenever she leaves her home. Furthermore, in her Affidavit, Mother asks for the payment of reasonable counsel fees of $2,000 for her filing of this motion.
In opposition to the Motion, Father denies all the allegations against him and alleges that Judge Bourne-Clark only reluctantly issued the Order of Protection against him after a full hearing. Father argues that there has not been any direct personal or disrespectful contact with the Mother, who is unable to point to any evidence, such as emails, phone calls or messages, providing documentary proof of his alleged threats. He further argues that no legal or factual basis has been provided for the payment of counsel fees by him. This Court agrees with the Father.
It is well established that "Family Court is a court of limited jurisdiction, constrained to exercise only those powers granted to it by the State Constitution or by statute" (Matter of Lisa T. v King E.T., 30 NY3d 548, 551 [2017]; H.M. v E.T., 14 NY3d 521, 526 [2010]). Family Court Act § 842 provides that upon motion, the Family Court may "extend the order of protection for a reasonable period of time upon a showing of good cause or consent of the 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 the order" (see Matter of Mejia v Stubbs, 161 AD3d 1162 [2nd Dept. 2018]). "Good cause" generally signifies a sound basis or legitimate need to take judicial action, and "in 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" (Matter of Jacobs v Jacobs, 167 AD3d 890, 891 [2nd Dept. 2018], quoting Matter of Molloy v Molloy, 137 AD3d 47, 53 [2nd Dept. 2016]).
"Genuine threats of physical harm," stalking of the victim, unsolicited communications and reported incidents to the police during the term of an order, easily support an extension of an Order of Protection (see id. at 49-50; Matter of Richardson v Brown, 173 AD3d 875 [2nd Dept. 2019]). Even without any direct contact between the parties since the issuance of an original Order of Protection, its extension may be warranted upon a finding after a hearing that the offender has continuously interfered with the other's peaceful existence and well-being through different means (Matter of Lashlee v Lashlee, 169 AD3d 683 [2nd Dept. 2019]; Matter of Naftali v Naftali, 160 AD3d 745 [2nd Dept. 2018]). However, unsupported threats and intimidations or unspecific aggressive behavior by an offender without police intervention fail to warrant an extension (see Matter of Dorene v Dhaneswar R., 89 AD3d 428 (1st Dept. 2011) [victim offered testimony about her conversation with an alleged hired assassin]; Matter of Simone W. v Deborah W., 57 Misc 3d 926, 930 [Fam. Ct. 2017] [no communications, no offensive conduct or events subsequent to the initial trial]).
Applying the foregoing legal principles to the matter at hand, the Mother does not appear entitled to an extension of the Order of Protection against Father. Although the nature of the relationship between the two parties was a violent one due to the Father's history of threats, attacks and abuse committed against Mother, the Family Court already found after a hearing that Father had, in fact, assaulted, harassed and menaced her, leading to the initial two-year Order of Protection. It is undisputed that during that period the parties have not interacted negatively despite the close proximity of their residences and the ongoing visitation. There has been no offensive conduct or events subsequent to the initial trial. Even if this Court were to credit the statements attributed to the Child, they could have been merely empty threats uttered by Father or could have been created by the vivid imagination of a Child. In any event, those statements do not raise to the level of a family offense requiring an Order of Protection (see id.; Matter of Ellen Z. v Isaac D., 47 Misc 3d 389, 392 [Queens Fam. Ct. (Hunt, J.), 2015]).
Nor does the precedent relied upon by Mother compel a different conclusion. Unlike the above cited cases, there has been no actual event or current violation by Father of the existing Order of Protection. Nor has the Mother provided any documentary or other evidence to support her allegations or to mandate the convening of an evidentiary hearing, such as was provided in Matter of Jacobs (supra at 895 [offender made statements to victim's employer, commenced frivolous actions and contacted the Department of Correction against her]), Matter of Molloy (137 AD3d at 54 [interim Criminal Court Order of Protection against offender]) and Matter of Lashlee (169 AD3d at 684 [offender followed family to South Carolina, mailed them unwelcomed postcards, summoned the police to their home and requested victim's employer's records]). As such, no sufficient "good cause" or "legitimate need to take judicial action" has been shown to extend the Order of Protection (Matter of Molloy, 137 AD3d at 53; see Matter of Simone W. v Deborah W., 57 Misc 3d at 930), especially during these times of social distancing due to the Covid-19 Pandemic. In accordance with the foregoing, the Mother's Motion for the extension of the Order of Protection is denied. The August 20, 2020 court appearance is hereby canceled. The foregoing constitutes the Decision and Order of the Court, concluding this case.
E N T E R:
Dated: August 10, 2020 Brooklyn, New York J.F.C.