In the Matter of Jennifer Molloy, Appellant, v William Molloy, Respondent.
Second Department, New York
January 20, 2016
APPEARANCES OF COUNSEL
Stephanie Taylor, Jamaica (Brian Dworkin of counsel), for appellant.
OPINION OF
CHAMBERS, J.
This case presents an opportunity to consider the meaning of “good cause” to extend an order of protection pursuant to
I.
The petitioner and the respondent were married in May 2002, and are the parents of one child. In February 2010, the petitioner filed a family offense petition against the respondent. Following a hearing, the Family Court found that the respondent committed the family offenses of menacing in the third degree, reсkless endangerment in the second degree, and assault in the third degree, and issued a two-year order of protection in favor of the petitioner and the parties’ child. The order required the respondent to stay away from the petitioner, the child, their home, and the child‘s school, excеpt for agreed-upon or court-ordered visitation. It further directed the respondent to refrain from committing assault, stalking, harassment, menacing, reckless endangerment, and certain other offenses against the petitioner and the child.
As the expiration date of the order of proteсtion approached, the petitioner moved to extend it for five years, arguing that there was “good cause” for the extension, citing
The petitioner also noted that because she and the respondent have a child in common they have to frequently interact regarding the child‘s visitation. The petitioner claimed that the respondent‘s conduct during the course of their interactions
The respondent opposed the petitioner‘s motion. At the request of the Family Court he submitted, inter alia, a certificate of disposition and transcript from the Criminal Cоurt of the City of New York, Queens County, both dated February 24, 2014, which indicated that he had pleaded guilty to a reduced charge of disorderly conduct. As a part of that disposition, a two-year order of protection was granted in favor of the petitioner and against him “subject to any subsequent orders from Family Court regarding visitation and custody.”
The Family Court denied the petitioner‘s motion to extend the Family Court order of protection, holding that because the petitioner had already been granted a two-year order of protection in Criminal Court, the goal behind
II.
Initially, the expiration of the order of protection by its own terms does not render this appeal academic, because the issue on appeal is whether the Family Court erred in deсlining to extend the order of protection beyond that expiration date (see Matter of Leon v Landaverde, 121 AD3d 898, 899 [2014]; Matter of Margary v Martinez, 118 AD3d 1004, 1005-1006 [2014]; Matter of V.C. v H.C., 257 AD2d 27, 32-33 [1999]). The petitioner is seeking to extend the order of protection for five years, to December 1, 2018, which, if granted, would directly affect the parties’ rights going forward (see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]; Matter of Margary v Martinez, 118 AD3d at 1005-1006).
Next, contrary to the Family Court‘s conclusion, the Criminal Court‘s issuance of an order of protection did not negate or otherwise render superfluous the petitioner‘s request for an extension of her Family Court order of protection. A victim of domestic violence may “commence a proceeding in either or both Family Court and [C]riminal [C]ourt” and “[e]ach court has the authority to issue temporary or final orders of protection” (People v Wood, 95 NY2d 509, 512-513 [2000]; see Matter of Alfeo v Alfeo, 306 AD2d 471 [2003]). Therefore, the Criminal Court‘s issuance of an order of protection did not
Section 842 of the Family Court Act provides, in pertinent part, that a court “may . . . , upon motion, extend [an] order of protection for a reasonable period of time upon a showing of good cause or consent of the parties.” The critical issue before us is whether the petitioner established “good cause” to еxtend the duration of the order of protection, as that term is applied in
As a consequence, domestic violence advocacy groups sought relief from the legislature. This was the situation the legislature sought to remedy in 2010 when it amended section 842. The legislature recognized that victims should not have to wait fоr the commission of another family offense before
The legislature did not define “good cause” in the statute, but it declared that “[t]he 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” (
“the existing court order may have worked in preventing domestic abusе, and/or there are circumstances that may cause the parties to interact. Such interaction may be as a result of pending litigation, the initiation of litigation, compliance with the terms of divorce or family court agreements or judgments, meeting the needs of children in common including following visitation orders, or the resurfacing of the respondent for one reason or another, including release from prison to name a few” (id.).
In each case, a
“request for an extension should be viewed in the context of the facts of the case, including present circumstances, past abuse by the respondent, thrеats of abuse by the respondent and relevant information concerning the safety and protection of the protected persons with the primary goal to prevent a recurrence of abuse” (id.).
As such, the legislative history makes plain the legislature‘s intent to afford greater protеction to victims of domestic violence by permitting them to obtain an extension of an existing order of protection to prevent a reoccurrence of domestic abuse upon a showing of “good cause” (see Assembly Mem in Support, Bill Jacket, L 2010, ch 325 at 8). We now take this opportunity to elucidate further the meaning of “good cause.”
Although section 842 of the Family Court Act does not define “good cause,” it is a common legal term. Good cause is “difficult to define in absolute terms, [but] it generally signifies a sound
The trial court, which has the benefit of seeing and hearing the witnesses, and may even be familiar with the parties, is in the best position to make this fact-specific determination. In this instance, sоme of the allegations in the petitioner‘s papers cannot be resolved without an evidentiary hearing. For example, it is not clear if, as recounted in the Domestic Incident Reports, the respondent‘s conduct occurred as alleged or even if it constitutes a violation of thе subject order of protection. Nevertheless, section 842 does not mandate such a hearing, and we find that the petitioner made a facially sufficient application that warrants consideration of the relief requested.
The petitioner stated that, because they have a child in common, the parties continue to interact. They come into
As to the length of the extension,
Accordingly, the order is reversed insofar as appealed from, on the law, the petitioner‘s motion pursuant to
Mastro, J.P., Balkin and Maltese, JJ., concur.
Ordered that the order is reversed insofar as appealed from, on the law, without costs or disbursements, the petitioner‘s motion pursuant to