IN RE: MARIA M. (Anonymous) (2026)

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 8, the father appeals from (1) an order of fact-finding and disposition of the Family Court, Kings County (Nisha Menon, J.), dated August 12, 2025, and (2) an order of protection of the same court also dated August 12, 2025.  The order of fact-finding and disposition, after a hearing, found that the father committed the family offenses of stalking in the first degree, menacing in the second degree, criminal obstruction of breathing, assault in the second degree, harassment in the first degree, and reckless endangerment in the second degree, and directed him to comply with the terms set forth in the order of protection.  The order of protection directed the father, inter alia, to stay away from the mother and the parties' child until and including August 11, 2030.

ORDERED that the order of fact-finding and disposition and the order of protection are affirmed, without costs or disbursements.

The parties have a child together, born in 2009.  In December 2023, the mother commenced this family offense proceeding against the father, alleging that he committed various family offenses against her in the presence of the child.  After a hearing, the Family Court found that the father committed the family offenses of stalking in the first degree, menacing in the second degree, criminal obstruction of breathing, assault in the second degree, harassment in the first degree, and reckless endangerment in the second degree.  Upon a finding of aggravating circumstances, the court issued an order of protection directing the father, inter alia, to stay away from the mother and the child for a period of five years, until and including August 11, 2030.  The father appeals.

The allegations in a family offense proceeding must be “supported by a fair preponderance of the evidence” (Family Ct Act § 832;  see Matter of Levay v. Gurrera, 236 AD3d 1032, 1033;  Matter of Mitchell–George v. George, 234 AD3d 969, 969).  “The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and that court's determination regarding the credibility of witnesses is entitled to great weight on appeal and will not be disturbed if supported by the record” (Matter of Richardson v. Richardson, 80 AD3d 32, 43–44;  see Matter of Levay v. Gurrera, 236 AD3d at 1033;  Matter of Mitchell–George v. George, 234 AD3d at 969).

Here, a fair preponderance of the credible evidence adduced at the fact-finding hearing supported a finding that the father committed the family offenses of stalking in the first degree, menacing in the second degree, criminal obstruction of breathing, assault in the second degree, harassment in the first degree, and reckless endangerment in the second degree (see Matter of McGorman v. McGorman, 166 AD3d 883, 884;  Matter of King v. King, 150 AD3d 1116, 1117).  Contrary to the father's contention, there is no requirement that the acts alleged in the petition be relatively contemporaneous with the date of the filing of the petition (see Family Ct Act § 812[1];  Matter of Torres v. Matos, 163 AD3d 583, 584;  Matter of Barbagallo v. Cotto–Donis, 131 AD3d 1237, 1237).  Moreover, that some of the events alleged in the petition may have led to the issuance of an earlier order of protection by a criminal court did not preclude the Family Court from issuing the order of protection, as “the Family Court and criminal courts have concurrent jurisdiction over proceedings involving the alleged commission of certain [family offenses] ․, and a petitioner may pursue relief for the same acts in either or both forums” (Matter of Parker v. Parker, 195 AD3d 620, 621;  see Family Ct Act § 813[3];  Matter of Richardson v. Richardson, 80 AD3d at 36–37).

Finally, the father's contention that the Family Court improvidently exercised its discretion in denying his application for the substitution of counsel during the fact-finding hearing is without merit.  Whether counsel is substituted is within the discretion and responsibility of the hearing court, and a court's duty to consider such a motion is invoked only where a party makes a seemingly serious request (see People v. Porto, 16 NY3d 93, 99–100;  Matter of Wiley v. Musabyemariya, 118 AD3d 898, 900).  Here, the father's complaints about his counsel merely reflected his dissatisfaction with counsel's advice rather than a complete breakdown of communication and trust warranting a minimal inquiry (see People v. Fredericks, 43 NY3d 551, 558–559;  People v. Sides, 75 N.Y.2d 822, 825).  Accordingly, the court properly denied the father's request for the substitution of counsel.

The father's remaining contentions are without merit.

CHAMBERS, J.P., CHRISTOPHER, WAN and LANDICINO, JJ., concur.