A family offense proceeding in New York is a special kind of proceeding, codified under Article 8 of the Family Court Act, wherein the New York family court tries to keep the family together rather than have a family member end up convicted of a serious crime and face prison time. Family court petitions address what would be considered criminal acts without having the criminal justice system involved, arrests being made, or other punitive harms done members of the family. In fact, the entire purpose of family courts is to withdraw from the criminal courts the kinds of crimes that occur within the family.
If you have been accused of a family offense call our New York family court lawyers today. We may be able to help relieve your order of protection or reduce the harmful consequences of the family offense petition filed against you. Call us today for a free consultation.
The Family Court Act (FCA) allows a person who has been the victim of a proscribed crime called a “family offense” to decide whether charges should be filed in criminal court, where the outcome is prosecution and punishment for the offender, or family court, where remediation and improvement in the family situation are sought. The Family Court Act has withstood constitutional challenges based on the due process clause of the Fifth and Fourteenth Amendments, the equal protection clause, and challenges for a lack of definiteness.
The list of family offense crimes can be found at FCA 812. Only crimes listed in FCA 812 are included in the category of family offenses.
The family court proceeding is initiated by filing a Petition with the New York State Family Court which has jurisdiction of the incident. See Family Court form 8-2 available at the New York family court website. The petition needs to contain the facts comprising what exactly happened with respect to the accused family offense, how the offender is related to the petitioner, the basis for possible criminal court jurisdiction and the name of children in the household that are related to the petitioner and the respondent. The petition does not need to be verified. Verification means, essentially that the accuser swears that the petition is true to the best of their knowledge. The petition must outline specific facts and must make the facial case for the offense. If the petition lacks these critical elements it cannot withstand a motion to dismiss. The petition must also plead for a remedy that family court may give. This remedy is usually either an order of protection or conciliation procedures.
Family offense proceedings can only be brought by a limited number of people. FCA 812 and FCA 822 limit those authorized to bring family offense petitions to members of the same family, authorized agencies, associations, societies and institutions, the police, and in some limited circumstances, other peace officers. Parents may file petitions against the other parent, formerly wed couples can file against each other with reference to their child, even parents of children who have been born out of wedlock have the right to file.
Unfortunately, frivolous family offense petitions are not directly prohibited by the FCA. FCA 812(3) explains that officials should not discourage the filing of family offense petitions. Abuse at the hands of manipulative, spiteful, and vindictive family members, who wish to see their former lovers disgraced and saddled with expensive and stressful court proceedings, is unfortunately common in family court. Until legislative change corrects this terrible oversight in the law, the best chance one has to protect themselves from frivolous family court proceedings is to have and experienced New York family court attorney.
If you have been accused of a family offense call our experienced New York family offense proceeding attorneys today. We may be able to help relieve your order of protection or reduce the harmful consequences of the family offense petition filed against you. Call us today for a free consultation.