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Application for Order of Protection Dismissed: Petitioner Failed to Move Forward with Prosecution

application for orderIn a recent case before Judge John Hunt, who sits in the Family Court in Queens County, applications for orders of protection were initiated. Judge John Hunt found the parties had been involved in an intimate relationship. They had one child together. Each of the parties had filed many petitions for orders of protection against each other over a 30 year period.

Many Petitions for Order of Protection Filed

Judge Hunt took note that not one of the petitions that had been filed was moved forward with. The parties failed to appear on the return dates of these petitions. The petitions therefore had been dismissed. Latonya had been making the same allegations in her petitions for orders of protections since 1994. She claimed the defendant, Jefferson, had a gun and he threatened to kill her as she did not want another child with him.

Jefferson’s Requests for Court Intervention

Jefferson also requested court intervention to stop Latonya from filing more petitions for orders of protection. He claimed these petitions resulted in his being arrested and losing jobs. Judge Hunt took note that in the case of such parties as Latonya and Jefferson who were not in a relationship for more than 30 years, there was no guidance as to whether such situations qualify to permit further applications under the “intimate relationship” as defined by the Family Court Act. Judge Hunt noted the legislature could not have intended to allow individuals to air their grievances and continuously file petitions after their personal relationship had failed.

New Orders of Protections Required Judge’s Approval

Judge Hunt dismissed Latonya’s newest petition for failure to prosecute. He also entered a ruling that neither party was permitted to file a new application for an order of protection in the Family Court without his prior approval.

schlissel-headshotElliot S. Schlissel, Esq. has represented clients for over 30 years in the Family Courts in the Metropolitan New York area with regard to neglect and child abuse cases. He can be reached at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Imputing Income in Family Court Cases

Picture of A Sleeping Child

The Family Court Act in New York has a variety of sections that deal with the imputing of the income to a parent. Income can be imputed for non-income producing assets, the use of an automobile, fringe benefits, and goods, services and money provided by relatives and friends.

When an individual’s income is not believable, a court can find that the individual’s income is greater than what is shown on his tax returns, W2 forms, 1099 forms and other financial records.

In the case Harrington v. Harrington, 93 A.D.3d 1092, a husband had brought an appeal from a decision by a judge which imputed $30,000.00 to his annual income. The husband’s tax returns showed income between $14,000.00 and $33,000.00 for years 2005 to 2009. The judge in this case found, after trial, the husband used his business account to pay his personal expenses as well as vacations with his girlfriend and he also paid other personal expenses out of his business funds. The judge in this case imputed income of $60,000.00 to the husband. The husband brought an appeal to the Appellate Division, Third Department. The appeals court held “here evidence was presented that the husband’s claim in this regard was not actually credible and provided a rational basis for the Supreme Court’s decision placing his annual income at $60,000.00″.

Conclusion

Attorney Elliot S. Schlissel

Litigants in Family Court and Supreme Court proceedings regarding child support and spousal maintenance must be aware that if the court feels there is off the books or hidden income it can impute this income to the parent who is hiding it.

Valley Stream, Lynbrook, Baldwin, Malverne, Freeport, Oceanside, Long Beach, Elmont, Lakeview, West Hempstead, Hempstead, Merrick, Bellmore

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