IN RE: an Article 8 Family Offense Proceeding KAR (Petitioner) (2026)

Petitioner commenced this family offense proceeding pro se against Respondent, her ex-boyfriend and father of her child, by petition filed on April 7, 2026.¹ In her petition, Petitioner alleges Respondent committed certain family offenses against her, including menacing in the second or third degree and stalking in the first, second, third, or fourth degree. Specifically, Petitioner alleges that "years ago" Respondent would go into her car and take pictures of her empty car. The petition further alleges that when their now eighteen-year-old son was nine months old, Respondent spit in Petitioner's face and blocked Petitioner from trying to stop their child from crawling which resulted in their child falling down the stairs. Respondent then punched the wall next to Petitioner's head.

Respondent now moves, pursuant to CPLR 3211 (a)(7), seeking dismissal of the petition for failure to state a cause of action. Respondent contends that Petitioner's allegations do not establish a pattern of ongoing behavior warranting an order of protection because the incidents are alleged to have occurred years ago, one occurring approximately eighteen years ago. In the alternative, Respondent moves to disqualify Petitioner's counsel from continuing to represent Petitioner in these proceedings. Respondent alleges that when Petitioner's counsel was a [ ] Judge in [ ] Family Court, he presided over matters involving these parties and, therefore, should be disqualified from acting as Petitioner's counsel. No opposition has been received by the Court.

Family Court Act § 812 (1) provides that

"[t]he family court and the criminal courts shall have concurrent jurisdiction over any proceeding concerning acts which would constitute disorderly conduct, unlawful dissemination or publication of an intimate image, 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, coercion in the second degree or coercion in the third degree as set forth in subdivisions one, two and three of section 135.60 of the penal law."

A family offense petition may be dismissed without a hearing where the petition fails to set forth factual allegations which, if proven, would establish that the respondent has committed a qualifying family offense. In determining whether a petition alleges an enumerated family offense, the petition must be liberally construed, the facts alleged in the petition must be accepted as true, and the petitioner must be granted the benefit of every favorable inference (see Matter of Bodurin v Bodurin, 221 AD3d 811, 812 [2d Dept 2023]). The issue in family offense matters 'is the imminence of the danger and not the age of the threat' (Matter of Boltz v Geraci, 230 AD3d 1450, 1452 [3d Dept 2024] quoting Matter of Pamela N. v Neil N., 93 AD3d 1107, 1109 n [3d Dept 2012]). "Nevertheless, the frequency and age of the alleged conduct remains relevant in assessing whether there is a 'pattern of imminent and ongoing danger to the' petitioner that would warrant relief" (Matter of Boltz v Geraci, 230 AD3d at 1452, quoting Matter of Latava P. v Charles W., 141 AD3d 525, 525 [1st Dept 2019]; see Matter of Opray v Fitzharris, 84 AD3d 1092, 1093 [2d Dept 2011]).

Based on the allegations set forth in the petition, in reviewing the elements associated with each alleged offense and, in liberally construing the petition as this Court is obligated to do, the Court finds that Petitioner has failed to state a cause of action for the offenses of menacing in the second degree (see Penal Law § 120.14) and stalking in the first, second, third, or fourth degrees (see Penal Law §§ 120.60, 120.55, 120.50, 120.45). To the extent that the petition includes allegations that Respondent spit at Petitioner, yelled at her, and punched the wall next to her head, thereby satisfying the elements of menacing in the third degree (see Penal Law § 120.15), these allegations do not establish an imminence of danger as they are alleged to have occurred approximately eighteen years ago (see Matter of Boltz v Geraci, 230 AD3d at 1452). Moreover, Petitioner included these allegations, among others, in a family offense petition filed against Respondent on May 5, 2015 which resulted in a final order of protection that remained in effect until June 29, 2016 directing Respondent to refrain from committing family offenses against Petitioner. Petitioner then filed a family offense petition against Respondent on October 23, 2018 which resulted in a final order of protection that remained in effect until December 3, 2019 directing that Respondent stay at least five hundred feet away from Petitioner and their son, Petitioner's home, Petitioner's and their son's school or place of employment, and that Respondent refrain from communication with Petitioner and their son, and refrain from committing any family offenses against them. While there is no statute of limitations for family offenses, these allegations, without the inclusion of more recent concerns, "[do] not bear on upon the existence of an immediate and ongoing danger to the [Petitioner]" (Matter of Opray v Fitzharris, 84 AD3d at 1093). Accordingly, Respondent's motion, made pursuant to CPLR 3211 (a)(7), is granted.

Accordingly, it is hereby

ORDERED that Respondent's motion, made pursuant to CPLR 3211 (a)(7), is granted; and it is further

ORDERED that the petition is dismissed with prejudice.²

Dated: August 7, 2026

Hon. Jessica R. Wilcox

FOOTNOTES

1.   On April 7, 2026, Petitioner also filed a Petition for Violation of a Court Order of Custody (V-03712-14/26F) which was withdrawn by Petitioner on June 25, 2026 as the subject child is now eighteen years old.

2.   As the Court is granting Respondent's motion to dismiss, the Court will not render a decision on the motion to disqualify [ ] as Petitioner's Counsel. However, the Court notes that, in his capacity as a[ ] Family Court Judge, he presided over a number of petitions involving the parties including a de novo custody petition resulting in a final order of custody on September 10, 2014, a family offense petition resulting in a final order of protection on June 30, 2015, and a modification of custody petition resulting in a modified order of custody on November 29, 2017.

Jessica R. Wilcox, J.