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Family Court Deals With Orders of Protection

family court attorney for chlid's best interestsIn a recent decision, Justice John Leventhal of the Second Department of the Appellate Division (Appeals Judge) wrote a unanimous decision in the Matter of Briannal, 2012-05594. This decision reversed a lower court order. In this case, Justice Leventhal stated “the Family Court has the unique resources to effectuate and determine the best interests of children, and its authority to do so should not be circumscribed by a Criminal Court order of protection which expressly contemplates future amendments of its terms by a subsequent Family Court order pertaining to custody and visitation.”

This case involved an individual, Mary A., who had plead guilty in Queens Criminal Court to endangering the welfare of a child. The guilty plea was in response to her use of physical force to beat her six year old son. As part of her conviction, Mary had to take a parenting skills course. She also had to attend an anger management course. The Criminal Court issued an order of protection which prevented her from any contact with her son, Elijah, for five years.

Administration for Children’s Services

The initial complaint was filed by the Administration for Children’s Services (ACS). Thereafter, the agency brought the neglect proceeding against Mary in the Queens County Family Court. However, the agency also submitted a report relating to Mary attending court ordered programs. The reports stated Mary was capable of caring for her son, Elijah.

The order of protection from the Criminal Court, which prevented Mary from having contact with her son, Elijah, stated in a clause “subject to family court.” Family Court Judge, Marybeth Richroath, held the wording of the Criminal Court order of protection was “shorthand” for “subject to subsequent Family Court orders of protection and visitation.” However, the Judge also stated she did not have jurisdiction to overrule the Criminal Court and return custody to the mother. Although it was in the child’s best interest to return custody to the mother, Judge Richroath felt the order of protection precluded that possibility. Instead, she gave custody of the child to the father. She also entered a ruling which prevented Elijah from having unsupervised visits or overnight stays with the mother. The mother appealed.

Appeals Court Explains Jurisdiction Regarding Modifying The Order Of Protection

In overruling the Family Court, Judge Leventhal (the Appellate division judge), stated the Family Court is uniquely situated to make rulings in children’s best interests in connection with orders of protection. The court noted, in the Family Court, attorneys for the children are appointed by the court to protect the children’s interests. The Judge stated in his decision, “in contrast, Elijah was unrepresented in the criminal proceeding.” The Judge went on to state “for these reasons it is clear that it is the Family Court, not the Criminal Court, which is both empowered and best suited, following a dispositional hearing in child protective proceedings to select the dispositional alternative which is the most consistent with the best interests of the children before it .”

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