Order of Protection Case or Family Offense Petition on Behalf of a Child?

A family offense petition, or order of protection, can be filed in New York on the behalf of a child when a parentsuspects, or has evidence of an act of abuse or neglect initiated by another family member. To act within a child’s best interests, the New York courts must consider who should be permitted to file a family offense petition on the behalf of that child. The court inherently recognizes that a parent will always have the standing to commence a proceeding of family offense on the behalf of his or her child, under New York Family Court Act Article 8. However, grandparents and other individuals who share the same family home do not always have the same rights.

When dealing with cases that ask the court to re-consider issues of child custody and visitation, it’s important to remember that, in an effort to act in the best interests of the child, the court will not make changes to pre-existing custody orders unless there is evidence of a substantial change in circumstances that requires a need to look at whether modification is in the best interests of the child. As such, when it comes to family offense petitions made on the behalf of the child, the court must also be equally stringent about who it believes to be an appropriate individual to launch a complaint on the behalf of that child.

Usually, only a parent of the child, as recognized by the law, will be able to act on the behalf of that child when presenting an issue in court. For instance, in a case entitled Hitchcock v. Kilts, 772 N.Y.S.2d 386 (N.Y. App. Div. 3d Dep’t 2004), the family court awarded sole custody of two children to the mother during the divorce, but gave the father visitation rights. During the visitation, the oldest child told his father that his mother had slapped him, dragged him by the hair, and poured Tabasco sauce into his mouth. Those allegations led the father to file a family offense petition which was heard by the court because the father was recognized as an appropriate person to act on the behalf of the child. Though a temporary order awarded custody to the father for a short time, the order was reversed and the original order was reinstated after evidence from both parties had been presented.

Similarly, in the case of Mary Ellen v John “R”, 718 N.Y.S.2d 442 (N.Y. App. Div. 3d Dep’t 2000) the mother of the child filed a family offense petition, seeking to get an order of protection, on behalf of her son, which alleged that the respondent had slapped the child in the face. The mother’s testimony and surrounding evidence supported the trial court’s finding of neglect, though the record only identified a single instance of abuse. The case was once again heard by the court because it was brought by the child’s mother, but the evidence could not support a finding that the child in question had suffered any physical injury, even under a reduced standard of proof typically used for family offense proceedings (preponderance of evidence, which means more probably true than not.)  Even though the family offense in that case was not found to be proven, a finding of neglect was affirmed per the evidence provided.

In Hamm-Jones v Jones, 788 N.Y.S.2d 690 (N.Y. App. Div. 3d Dep’t 2005) a joint custody order was in @@place, with primary physical custody awarded to the mother. However, the mother proceeded with a family offense petition in the courts of New York to limit the father’s contact with the child after allegations were made that the father had slapped the son three times. However, the mother failed to prove that the father had struck the child, and no evidence was provided to show that the father had mistreated either of his children. However, the family court originally dismissed the petition based on the mother’s lack of standing, and the court found that this was in error, as all parents have the right to commence family offense proceedings on the behalf of their child.

On the other hand, I believe that it can be argued that a grandparent, that is not a custodial parent, should not have standing to petition for an order of protection against a custodial parent. A stay away order of protection would cause the child to be removed from the custodial parent. Though grandparents are considered to be important parts of the family group, for the purpose of a filing a family offense petition on the behalf of a child, they are arguably not an appropriate person to have standing to bring the petition, unless they have a custody order in their favor. Though a parent of the child in this example I am giving would have the right to file a family offense petition on behalf of their child, a grandparent, in my opinion should not have standing.  But, that opinion could be open to legal debate.

Similarly, in the case of Rader v Rader, 701 N.Y.S.2d (N.Y. Fam. Ct. 1999) the petitioner alleged that the respondent in the case had assaulted her child, and therefore wanted an order of protection. The petitioner in this case was the stepfather of the child, and the court referred the matter to a child protection agency, and dismissed the matter on the grounds that the step father was not considered to be a proper party to originate a family offense proceeding on the behalf a child against his mother. Although the petitioner filed a motion to re-argue claiming that N.Y. Family Ct. Act 812(1) which includes “members of the same family or household”, the court dismissed the petition and stated that the Department of Social Services would be a more appropriate entity to bring a petition to remove a child from their custodial parent, than a step-parent, and it should be an Article 10 petition (Neglect case), instead of Article 8 (Family Offense Orders of Protection).

Obviously, the argument of who should be allowed to bring a family petition into court on the behalf of a child is a complex one, but I often recommend that the parents of the child are the best people to act on the behalf of their children. For more information about family law, orders of protection and child custody, please contact me, Mr. Darren Shapiro, either via our online form, or over the phone at 516-333-6555 to schedule your first free half-hour consultation.

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