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New York Family Court - Part 1 - § 812 Procedures for Family Offense Proceedings

Legal Research Home > New York Laws > Family Court > New York Family Court - Part 1 - § 812 Procedures for Family Offense Proceedings


Family Court 
 
    §  812.  Procedures  for  family offense proceedings. 1. Jurisdiction.
  The  family  court  and  the  criminal  courts  shall  have   concurrent
  jurisdiction  over any proceeding concerning acts which would constitute
  disorderly conduct, harassment in the first degree,  harassment  in  the
  second  degree,  aggravated  harassment  in  the  second  degree, sexual
  misconduct, forcible touching, sexual abuse in the third degree,  sexual
  abuse  in  the  second degree as set forth in subdivision one of section
  130.60 of the penal law, stalking in the first degree, stalking  in  the
  second  degree,  stalking  in  the  third degree, stalking in the fourth
  degree, criminal mischief, menacing in the second  degree,  menacing  in
  the   third  degree,  reckless  endangerment,  criminal  obstruction  of
  breathing or blood circulation,  strangulation  in  the  second  degree,
  strangulation in the first degree, assault in the second degree, assault
  in  the  third degree, an attempted assault, identity theft in the first
  degree, identity theft in the second degree, identity theft in the third
  degree, grand larceny in the fourth degree, grand larceny in  the  third
  degree  or  coercion  in  the second degree as set forth in subdivisions
  one, two and three of section 135.60 of the penal law between spouses or
  former spouses, or between parent and child or between  members  of  the
  same  family  or  household  except  that if the respondent would not be
  criminally responsible by reason of age pursuant to section 30.00 of the
  penal law, then the family court shall have exclusive jurisdiction  over
  such  proceeding. Notwithstanding a complainant's election to proceed in
  family court, the criminal court shall not be divested  of  jurisdiction
  to  hear  a  family  offense proceeding pursuant to this section. In any
  proceeding pursuant to this article, a court shall not deny an order  of
  protection,  or dismiss a petition, solely on the basis that the acts or
  events alleged are not relatively contemporaneous with the date  of  the
  petition,  the  conclusion  of the fact-finding or the conclusion of the
  dispositional  hearing.  For  purposes  of  this  article,   "disorderly
  conduct" includes disorderly conduct not in a public place. For purposes
  of  this  article,  "members of the same family or household" shall mean
  the following:
    (a) persons related by consanguinity or affinity;
    (b) persons legally married to one another;
    (c) persons formerly married to one another regardless of whether they
  still reside in the same household;
    (d) persons who have a child in  common  regardless  of  whether  such
  persons have been married or have lived together at any time; and
    (e)  persons  who are not related by consanguinity or affinity and who
  are or have been in an intimate relationship regardless of whether  such
  persons  have lived together at any time. Factors the court may consider
  in determining whether a  relationship  is  an  "intimate  relationship"
  include  but  are  not  limited  to: the nature or type of relationship,
  regardless  of  whether  the  relationship  is  sexual  in  nature;  the
  frequency  of  interaction  between the persons; and the duration of the
  relationship. Neither a casual acquaintance nor ordinary  fraternization
  between  two  individuals in business or social contexts shall be deemed
  to constitute an "intimate relationship".
    2. Information to petitioner or complainant. The  chief  administrator
  of  the  courts  shall designate the appropriate persons, including, but
  not limited to district attorneys, criminal  and  family  court  clerks,
  corporation  counsels,  county attorneys, victims assistance unit staff,
  probation officers, warrant officers, sheriffs, police officers  or  any
  other law enforcement officials, to inform any petitioner or complainant
  bringing  a  proceeding  under  this  article, before such proceeding is
  commenced, of the procedures available for  the  institution  of  family
  offense proceedings, including but not limited to the following:

    (a)  That  there  is  concurrent  jurisdiction  with respect to family
  offenses in both family court and the criminal courts;
    (b)  That  a  family court proceeding is a civil proceeding and is for
  the  purpose  of  attempting  to  stop  the  violence,  end  the  family
  disruption   and   obtain   protection.  Referrals  for  counseling,  or
  counseling services, are available through probation for this purpose;
    (c) That a proceeding in the criminal courts is  for  the  purpose  of
  prosecution  of  the offender and can result in a criminal conviction of
  the offender;
    (d) That a proceeding or action subject  to  the  provisions  of  this
  section  is  initiated  at  the  time  of  the  filing  of an accusatory
  instrument or family court petition, not  at  the  time  of  arrest,  or
  request for arrest, if any;
    (f) That an arrest may precede the commencement of a family court or a
  criminal  court  proceeding,  but  an  arrest  is  not a requirement for
  commencing either proceeding; provided, however, that the arrest  of  an
  alleged  offender  shall  be  made  under the circumstances described in
  subdivision four of section 140.10 of the criminal procedure law;
    (g) That notwithstanding a complainant's election to proceed in family
  court, the criminal court shall not be divested of jurisdiction to  hear
  a family offense proceeding pursuant to this section.
    3.  Official  responsibility.  No  official or other person designated
  pursuant to subdivision two of this section shall discourage or  prevent
  any person who wishes to file a petition or sign a complaint from having
  access to any court for that purpose.
    4.  Official  forms.  The  chief  administrator  of  the  courts shall
  prescribe an appropriate form  to  implement  subdivision  two  of  this
  section.
    5.  Notice.  Every  police officer, peace officer or district attorney
  investigating a family offense  under  this  article  shall  advise  the
  victim  of  the  availability  of  a  shelter  or  other services in the
  community, and shall immediately give the victim written notice  of  the
  legal  rights  and  remedies  available  to a victim of a family offense
  under the relevant provisions of the criminal procedure law, the  family
  court act and the domestic relations law. Such notice shall be available
  in  English and Spanish and, if necessary, shall be delivered orally and
  shall include but not be limited to the following statement:
    "If you are the victim of domestic violence, you may request that  the
  officer  assist  in providing for your safety and that of your children,
  including providing information on how to obtain a  temporary  order  of
  protection.  You  may  also  request  that  the  officer  assist  you in
  obtaining your essential personal effects and locating and  taking  you,
  or assist in making arrangement to take you, and your children to a safe
  place within such officer's jurisdiction, including but not limited to a
  domestic violence program, a family member's or a friend's residence, or
  a  similar place of safety. When the officer's jurisdiction is more than
  a  single  county,  you  may  ask  the  officer  to  take  you  or  make
  arrangements  to  take you and your children to a place of safety in the
  county where the incident occurred. If you or your children are in  need
  of  medical  treatment,  you  have the right to request that the officer
  assist you in obtaining such medical treatment. You may request  a  copy
  of  any incident reports at no cost from the law enforcement agency. You
  have the right to seek legal counsel of your own  choosing  and  if  you
  proceed  in  family court and if it is determined that you cannot afford
  an attorney, one must be appointed to represent you without cost to you.
    You may ask the district attorney or a law enforcement officer to file
  a criminal complaint. You also have the right to file a petition in  the
  family  court  when a family offense has been committed against you. You

  have the right to have  your  petition  and  request  for  an  order  of
  protection  filed  on the same day you appear in court, and such request
  must be heard that same day or the next day court is in session.  Either
  court  may  issue  an  order  of  protection from conduct constituting a
  family offense which could include, among other provisions, an order for
  the respondent or defendant to stay away from you and your children. The
  family court may also order the payment of temporary child  support  and
  award  temporary custody of your children. If the family court is not in
  session, you may seek immediate assistance from the  criminal  court  in
  obtaining an order of protection.
    The forms you need to obtain an order of protection are available from
  the  family  court  and  the  local  criminal  court  (the addresses and
  telephone numbers shall be listed).  The  resources  available  in  this
  community  for  information  relating to domestic violence, treatment of
  injuries, and places of safety and shelters can be accessed  by  calling
  the  following  800  numbers (the statewide English and Spanish language
  800 numbers shall be listed  and  space  shall  be  provided  for  local
  domestic violence hotline telephone numbers).
    Filing  a  criminal  complaint  or  a family court petition containing
  allegations that are knowingly false is a crime."
    The division of criminal justice services  in  consultation  with  the
  state  office  for the prevention of domestic violence shall prepare the
  form of such written notice  consistent  with  the  provisions  of  this
  section and distribute copies thereof to the appropriate law enforcement
  officials   pursuant  to  subdivision  nine  of  section  eight  hundred
  forty-one of the executive law.  Additionally,  copies  of  such  notice
  shall  be  provided  to  the  chief  administrator  of  the courts to be
  distributed to victims of family offenses through the  family  court  at
  such  time  as such persons first come before the court and to the state
  department of health for distribution to  all  hospitals  defined  under
  article  twenty-eight  of  the public health law. No cause of action for
  damages shall arise in favor of any person by reason of any  failure  to
  comply  with the provisions of this subdivision except upon a showing of
  gross negligence or willful misconduct.
Section:  Previous  Part 1  812  813  814  814-A  815  817  818  Next

Last modified: February 16, 2014