New York Family Court Act Article 8: Family Offenses

Family Offense, governed by Family Court Act Article 8, can be brought by one person against another who has an intimate or familial relationship with that person, or is similarly situated. This is entirely distinct from a criminal prosecution for the same kinds of allegations, or even the exact same incident, which is brought by the local District Attorney in the county or by the local police department depending on the jurisdiction. A family offense petition in Family Court must allege one or more of the select crimes specified in the Family Court Act Section 812, not just any crime. The petitioner must also adequately allege that there is an intimate or other familial relationship between the victim and accused person, which serves as the basis for Family Court having jurisdiction over this kind of the case in the first place. Whether you're in Manhattan, Queens, Brooklyn, or upstate in Rockland County or Westchester County, the most typical remedy for a Family Offense is the issuance of an Order of Protection, also called a Restraining Order, against the person who committed the crime.

• Who Can Get a NY Family Court Order of Protection
• NY Order of Protection “Crimes” and Family Offenses
• Potential Duration of a Family Court Order of Protection

Some of the most typical crimes found in Family Offense petitions are:

• Third Degree Assault (NY PL 120.00) and Second Degree Assault (NY PL 120.05)
• Third Degree Menacing (NY PL 120.15) and Second Degree Menacing (NY PL 120.14)
• Second Degree Aggravated Harassment (NY PL 240.30)
• Any Degree of Criminal Mischief including Fourth and Third Degree Criminal Mischief (NY PL 145.00 and NY PL 145.05)
• Criminal Obstruction of Breathing or Blood Circulation (NY PL 121.11)
• Second Degree Harassment (NY PL 240.26) and First Degree Harassment (NY PL 25)
• Reckless Endangerment in the Second Degree (NY PL 120.20)
• Strangulation in the First Degree (NY PL 121.13) and Strangulation in the Second Degree (NY PL 121.12)

The allegations in a Family Offense proceeding are directly related to criminal or violation charges in the New York State Penal Law, such as Harassment, PL 240.26, Aggravated Harassment, PL 240.30, Strangulation, PL 121.12, and Assault, PL 120.00. This means that there is a great degree of crossover between these areas of law, and experience and knowledge from the criminal justice system can be highly beneficial in the context of a family offense petition in Family Court. It also means that there can often be criminal charges in a separate criminal court at the same time as the Family Offense petition, even dealing with the exact same incident and allegations. Handling two related cases simultaneously in Criminal Court and Family Court is something that not every attorney is prepared or willing to do, but having a lawyer who can manage both closely related cases and the interplay between them can be critical. In fact, if the cases are in the same jurisdiction, such as Westchester County, New York County (Manhattan) or Kings County (Brooklyn), then both matters may be funneled to the Integrated Domestic Violence Court, or IDV Part, so that both matters can be handled by the same judge and there will not be as much of a disparity in how they are handled, or as much of an information gap. The cases remain separate, however, and are typically called in the IDV part one after the other, but are still heard and overseen by the same judge.

Defending allegations contained in a Family Offense petition can be very different than negotiating for custody or visitation, and it often is more akin to a criminal trial than a civil case, with cross-examination and issues relating to evidence and technicalities taking more of a front seat. That being said, there are many significant and important differences between a criminal prosecution and Family Offense petition, even where both cases are based on the same criminal charge or conduct. Some of these key differences include the very different standards of proof, beyond a reasonable doubt and preponderance of the evidence, the rules of evidence, the rules that pertain to discovery and motion practice, as well as the identity of the entity that bears those burdens of proof, the Petitioner or the Prosecutor.

All of these complex areas of overlap and difference mean that having an attorney experience and knowledgeable in both arenas can be of great importance. The attorneys at Saland Law are just such attorneys.

Call the New York family law lawyers and former Manhattan prosecutors at (212) 312-7129 or contact us online today.