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Criminal Court and the Family Offense Petition

Family Court and Criminal Court actions involving Family Members

In New York State a domestic violence case can be brought in Family Court, Criminal Court or sometimes both. It depends on the nature of the offense and the goal of the complainant/victim.

In Westchester County New York it is common to see a family offense petition follow a criminal matter based upon the same facts and circumstances usually because a child is involved and a custody dispute becomes part of the case. The Family Court is a civil court with a lower burden of proof as opposed to the criminal court. For example, a person may be arrested in White Plains and ordered to appear in the White Plains City Court but the complainant may also file a family offense petition and the accused will be required to appear in the Family Court in White Plains. Courts in Westchetser County, Rockland, Putnam, Dutchess and the Bronx are doing is sending both the criminal matter and the Family Court matter to one judge in the Integrated Domestic Violence part (IDV). This court is used to handle all issues.

It is very important to have an attorney who is knowledgeable in the criminal and family courts to represent the best interest of either parent. It is a complex area of law and usually involves artfully working with the Court, District Attorney, Complainant, and perhaps a court ordered domestic violence program. The top family court attorneys are always prepared for the various issues this presents.

Recent Family Court Decisions

In Matter of Taub v Taub, 94 AD3d 901, the Family Court properly granted the husband's request to confirm a judicial hearing officer's recommendation that the wife be prevented from seeking additional temporary orders of protection ex parte (without the husband present) where she had abused the judicial process by repeatedly obtaining ex parte temporary orders of protection based upon unsubstantiated allegations of abuse and could still go to the police to get an order of protection where the husband would have notice of the orders of protection.

This case is an example of how the two systems of family court and criminal court intersect. The court can also deal with issues of custody in a domestic violence situation.

In the Matter of Austin M., 97 AD3d 1168, the family court erred in allowing the respondent father to have unsupervised visits with his son because the record , which contained evidence that the respondent repeatedly lost his temper and struck his son established that he is unable to care for the child in a safe manner and a threat of future harm existed.

This is an example of a case that crossed into both criminal a family court but also had an issue of custody and visitation. In this instance the family court and/or the IDV Court is the proper forum for litigation.

The top criminal defense attorneys can guide a person through the criminal proceeding but a firm knowledge of the family court would best serve a client as these areas almost always overlap.

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