OF v. << (2026)

At issue is whether good cause exists to modify the dispositional order and issue a five-year order of protection against Respondent E.E. on behalf of his non-biological children under the newly amended Family Court Act § 1056(4-a), and if so, whether such modification would violate the prohibition against retroactive application to a final disposition.

For the reasons that follow, this Court finds good cause exists under Family Court Act § 1061 to justify modification of the dispositional order and that special circumstances do exist in accord with Family Court Act § 1056(4-a) to extend protective relief beyond the period of supervision to H.O. and A.O., based upon the totality of the record. The portion of ACS's application seeking an extended order of protection on behalf of E.E. and L.E. is denied as statutorily prohibited.

THE PROCEDURAL HISTORY

On December 5, 2023, the Administration for Children's Services (ACS) filed a child protective petition under Article 10 of the Family Court Act in Bronx Family Court, alleging that Respondent E.E. sexually abused H.O. and derivatively abused A.O., E.C., and L.E. Respondent E.E. is the biological father of E.C. and L.E., and a person legally responsible (non-biological) for H.O. and A.O.

On March 15, 2024, Respondent E.E. consented to a finding of neglect pursuant to Family Court Act § 1051(a) and agreed to a host of terms and conditions, including: (1) completing a sex offender treatment program, (2) submitting to a comprehensive mental health evaluation, and (3) complying with the terms of a 12-month full stay-away order of protection on behalf of the subject children, with a carve-out for ACS-supervised visits with the subject children E.C. and L.E.

On October 10, 2024, ACS filed petitions alleging, inter alia, that Respondents C. V.-R. and E.E. failed to provide the subject children with adequate guardianship and supervision by failing to enforce and abide by the March 15, 2024 stay-away order of protection issued by the Hon. David J. Kaplan. C.V.-., who had been a non-respondent in the 2023 sex abuse dockets, was included as a respondent in the new filings.

Thereafter, on October 29, 2024, ACS filed an order to show cause for contempt of the final order of protection and order of supervision under Docket Nos. NA-26054-7/23, alleging that Respondent E.E. failed to comply with the terms and conditions of supervision and seeking a final order of protection.

On March 13, 2025, Respondent E.E. knowingly, intelligently and voluntarily consented to a finding of neglect under Family Court Act § 1051(a) and consented to a finding of contempt with a 12-month suspended sentence.

On April 9, 2025, this Court issued an order of disposition requiring Respondent E.E. to:

1. Complete a sex offender treatment program;

2. Cooperate with a comprehensive mental health evaluation (including psychological and psychiatric evaluations) and comply with all recommendations;

3. Submit to a CASAC assessment and comply with all recommendations;

4. Cooperate with random drug and alcohol testing and test negative;

5. Comply with a full stay-away temporary order of protection on behalf of the children;

6. Visit with his biological children in accordance with court orders;

7. Execute HIPAA-compliant releases; and

8. Maintain contact with the agency.

In addition to the findings in the instant proceeding, Respondent E.E. has a long history of prior findings of abuse entered against him: October 5, 2017 (involving other children); May 14, 2019, and March 13, 2020 (involving the subject children).

On June 5, 2025, a permanency hearing was conducted. Case Planner Caroline Richardson, from Graham Windham, testified that Respondent E.E. was engaged in recommended services at Vertex LLC, including individual counseling, parenting classes, and sex offender treatment. Case Planner Richardson further testified that Respondent E.E. had positive and affectionate interactions with his biological sons, E.C. and L.E., during the supervised visits.

On July 30, 2026, the parties appeared before the Court for a scheduled permanency hearing. ACS moved for the final discharge of all four children—H.O., A.O., E.C., and L.E. — to the Respondent Mother, C. V.-R. Simultaneously, without prior written motion practice, ACS orally requested that this Court modify the dispositional order to enter an order of protection against Respondent E.E. for an extended period of five years pursuant to the newly enacted Family Court Act § 1056(4-a). The Attorneys for the Children (AFC) supported the application for an extended order of protection for their respective clients.

THE LAW

Family Court Act § 1056(4) authorizes the Family Court to enter an order of protection against a person who is a former member of the child's household or a person legally responsible for the child's care not in the home “for any period of time up to the child's eighteenth birthday.”

Family Court Act § 1056(4-a) was enacted by Chapter 572 of the Laws of 2025, signed into law on November 21, 2025, and effective February 19, 2026. The Legislature enacted subdivision (4-a) to address a statutory disparity in child protective proceedings, wherein orders of protection against non-parents were previously limited to a maximum duration of one year. Subdivision (4-a) cures this inequity by authorizing an order of protection of up to two years, or up to five years upon a finding of “special circumstances”: such as serious physical injury, the use of a dangerous instrument, prior order violations, prior criminal convictions, or exposure to sex offenses.

Family Court Act § 1056(4-a) applies explicitly to an individual “who was a member of the child's household or a person legally responsible . . . and who is not a parent of the child.” The provision is remedial and protective in nature, designed to shield child victims from ongoing harm rather than to impose punishment.

Pursuant to Family Court Act § 1061, the Family Court may “set aside, modify or vacate any order issued in the course of a proceeding under this article” for “good cause shown” and upon due notice. Any modified order must reflect a resolution consistent with the best interests of the children upon consideration of all relevant facts and circumstances (Matter of Leenasia C., 154 AD3d 1, 9 (1st Dept. 2017).

Under the Due Process Clause, natural parents possess a fundamental liberty interest in the care, custody, and management of their children (see Troxel v. Granville, 530 U.S. 57 [2000]; Santosky v. Kramer, 455 U.S. 745 [1982]; Pierce v. Society of Sisters, 268 U.S. 510 [1925]). These substantive parental rights protect family autonomy and the parental role in directing a child's upbringing, subject to necessary and narrowly tailored state intervention to protect a child's health, safety, and welfare. By contrast, a person legally responsible who is not a biological or legal parent does not possess fundamental constitutional parental rights to that child.

Respondent contends that applying amended Family Court Act § 1056(4-a) retroactively to modify the April 9, 2025, dispositional order violates statutory canons of construction and substantive due process. Under Jeter v. Poole, 43 NY3d 241, 250 (2024), retroactive operation of statutes is disfavored absent clear legislative intent. Furthermore, legislation affecting substantive rights by increasing liability or imposing new duties regarding completed transactions is subject to a presumption against retroactivity (Matter of Mia S., 212 AD3d 17, 21 [2d Dept. 2022]). Respondent argues that he relied on the statutory framework in effect when he consented to the finding of neglect in March 2025 and agreed to dispositional terms on April 9, 2025, with the expectation that any order of protection would not exceed the period of dispositional supervision.

Respondent also argues that ACS failed to satisfy the procedural requirements of Family Court Act § 1061 because the agency requested an extended order of protection orally on July 30, 2026—the scheduled date of final discharge—without formal written motion practice or advance notice.

Finally, Respondent E.E. maintains that ACS showed no new violations or changed circumstances since April 9, 2025, emphasizing that the Graham Windham case planner confirmed Respondent E.E.'s compliance with services at Vertex LLC and his positive visitation with his biological sons.

In New York Family Court Article 10 proceedings, a matter reaches finality for the purpose of applying new law when the court enters a final judgment concluding the fact-finding and dispositional phases and all motions and appeals are resolved. Where an Article 10 matter remains open, under continuing court supervision, or subject to modification under Family Court Act § 1061 prior to final discharge, the Court retains continuing jurisdiction.

The Court concludes that applying Family Court Act § 1056(4-a) does not impair a vested substantive right or run afoul of due process. Subdivision (4-a) is non-punitive and remedial, designed solely for child protection. Because Respondent E.E. possesses no fundamental parental rights regarding his non-biological stepchildren, applying this remedial statute does not infringe upon any constitutionally protected parental prerogative and does not violate rules against retroactivity.

Under Family Court Act § 1061, motions to stay, modify, set aside, or vacate an order in a proceeding under Article 10 must be made “for good cause shown and after due notice.”

This Court finds that adequate notice was provided. An oral application comports with the statutory notice requirement of Family Court Act § 1061, as there is no statutory requirement that notice be in writing.

While Respondent E.E. has engaged in court-ordered services, the overarching standard under Family Court Act § 1061 is the best interests of the children (Matter of Leenasia C., 154 AD3d at 9). The totality of the record—specifically the underlying findings of sexual abuse of H.O. and derivative abuse of the remaining children, combined with Respondent E.E.'s extensive history of prior abuse findings (October 5, 2017; May 14, 2019; and March 13, 2020)—constitutes compelling good cause to extend protective relief beyond the period of supervision. The primary focus of the requested relief is the non-biological children who require ongoing protection, and the imposition of an extended order of protection is fully justified in their best interests.

Under Family Court Act § 1056(4-a), the Court is empowered to enter an order of protection for up to five years against a person legally responsible who is not the child's parent upon a finding of “special circumstances.” The Court finds that special circumstances exist here, established by Respondent E.E.'s multiple prior abuse findings (October 5, 2017; May 14, 2019; and March 13, 2020) and the severe nature of the underlying sexual abuse allegations and subsequent findings. Because Respondent E.E. is not the biological or legal parent of H.O. or A.O., he possesses no substantive parental rights with respect to them. An extended order of protection on behalf of H.O. and A.O. is necessary and in their best interests (see generally Matter of L.R. [J.T.], 248 AD3d 598 (1st Dept. 2026).

By its express statutory terms, Family Court Act § 1056(4-a) applies exclusively to an individual “who is not a parent of the child.” Because Respondent E.E. is the biological father of E.C. and L.E., this Court lacks statutory authority to enter an extended non-parent order of protection on their behalf (see generally, Matter of L.T. [J.T.], 248 AD3d 598 (1st Dept. 2026). Accordingly, ACS's application for an extended order of protection under subdivision (4-a) as to E.C. and L.E. is denied.

The Court acknowledges that E.C. and L.E. (ages six and four) reside in the same household as their half-siblings, H.O. and A.O. While the issuance of a full stay-away order of protection protecting H.O. and A.O. requires Respondent E.E. to arrange visits with E.C. and L.E. outside the maternal residence and prohibit H.O. and A.O. from being present during drop-offs or pick-ups, these logistics do not preclude meaningful contact. To the extent Respondent E.E. attends school events or public celebrations for E.C. and L.E. where H.O. or A.O. are present, he must strictly limit and avoid any incidental contact.

Family Court Act § 1056(4-a) operates in conjunction with Family Court Act § 1056(4), which establishes that orders of protection against persons legally responsible may not extend beyond a child's eighteenth birthday. H.O. was born on July 12, 2009, and will reach her eighteenth birthday on July XX, 20XX. Consequently, the Court's jurisdiction to maintain an Article 10 order of protection on H.O.'s behalf terminates on July XX, 20XX. With respect to A.O., the order of protection shall be issued beyond the period of disposition for up to five (5) years or until his eighteenth birthday, whichever occurs first pursuant to Family Court Act § 1056(4).

WHEREFORE, it is hereby:

ORDERED, that the application of the Administration for Children's Services pursuant to Family Court Act §§ 1061 and 1056(4-a) is GRANTED IN PART; and it is further

ORDERED, that a final order of protection shall issue against Respondent E.E., on behalf of H.O., requiring Respondent E.E. to stay away from the child, her school, and her residence, and to refrain from any contact directly or indirectly, effective immediately for a period of up to five (5) years, and terminating on July XX, 20XX, the date of H.O.'s eighteenth birthday; and it is further

ORDERED, that a final order of protection shall be issued against Respondent E.E., on behalf of A.O., for a period of up to five (5) years, not to extend beyond A.O.'s eighteenth birthday, terminating on November XX, 20XX; and it is further

ORDERED, that the application of the Administration for Children's Services for an extended order of protection pursuant to Family Court Act § 1056(4-a) on behalf of Respondent's E.E. biological children, E.C. and L.E., is DENIED; and it is further

ORDERED, that Respondent's visitation with E.C. and L.E. shall occur outside the home shared with H.O. and A.O., and without H.O. or A.O. present; and in the event of school events or celebrations for E.C. or L.E. where H.O. or A.O. are in attendance, Respondent E.E. shall strictly limit and avoid incidental contact.

Angel Cruz, J.