R.C., Petitioner, v. A.C., Respondent.

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Supreme Court, Kings County, New York.

R.C., Petitioner, v. A.C., Respondent.

O-00505-18

Decided: June 28, 2021

MOTION

On March 1, 2021, Petitioner, R.C. (hereinafter "Mother"), moved by Order to Show Cause seeking the following relief:

1. Extending for a period of two years Petitioner's Final Order of Protection, issued on behalf of herself and her children, D.C.R., J.C., K.C.R., M.C.R., issued on March 14, 2019 and expiring March 13, 2021, for good cause pursuant to Family Court Act § 842;

2. Granting Petitioner interim relief in the form of a Temporary Order of Protection on behalf of herself and her children, D.C.R., J.C., K.C.R., M.C.R., pending a hearing and determination on this application; and March 2, 2021 13th April 2pm; and

3. For such other and further relief as this Court deems just and fair.

On April 5, 2021, Respondent, A.C. (hereinafter the "Father"), filed an Affidavit in Opposition to the Petitioner's Order to Show Cause.

On May 3, 2021, the Petitioner filed a Supplemental Affidavit in Support of her Order to Show Cause.

On June 12, 2021, the Father filed an Affidavit in Opposition to the Mother's Supplemental Affidavit.

The Mother is represented by Graig Craver, Esq. of Safe Horizons Domestic Violence Law Project, the Father currently by Philip Groner, Esq., and the children by Laura Diewald, Esq. of the Children's Law Center (Attorney for the Child "AFC").

PROCEDURAL HISTORY

On May 30, 2018, the Mother filed a Family Offense Petition (Family Court Docket No. O-14038-18; IDV Docket # O-00505-18) in Kings County Family Court seeking a Temporary Order of Protection ("TOP") against the Father. On the same day, the Mother appeared before Judicial Hearing Officer Richard N. Ross, who issued a TOP in favor of the Mother and the four children which was in effect until July 5, 2018.

On May 31, 2018, the Mother filed a Petition for Custody of the parties four (4) children (Docket # V-14176-79-18; IDV # V-00501-04/18).

On June 5, 2018, the Father was arrested (Docket # 2018KN026582; IDV # 20205-18) and charged with the following crimes for alleged incidents that occurred between May 27, 2018 and May 31, 2018, in which the Mother was the Complaining Witness (CW):

Endangering The Welfare Of A Child [PL § 260.10(1)];

Harassment in the Second Degree [PL § 240.26(1)];

Aggravated Harassment in the Second Degree [PL § 240.30(1)(A)];

Aggravated Harassment in the Second Degree [PL § 240.30(1)(B)];

Harassment in the Second Degree [PL § 240.26(1)];

Harassment in the Second Degree [PL § 240.26(2)];

Harassment in the Second Degree [PL § 240.26(3)];

Stalking in the Fourth Degree [PL § 120.45(1)]; and

Stalking in the Fourth Degree [PL § 120.45(3)].

On June 6, 2018, the Father represented by Harry Dusenberry, Esq., was arraigned in Part AR-2 before the Hon. Edwin I. Novillo who issued a TOP in favor of the Mother and the children which was in effect until December 28, 2018. The case was adjourned to July 31, 2018, in part DV-2.

On June 7, 2018, the People filed a Superseding Information adding the following charges:

Harassment in the Second Degree [PL § 240.26(1)];

Harassment in the Second Degree [PL § 240.26(2)];

Harassment in the Second Degree [PL § 240.26(3)]; and

Aggravated Harassment in the Second Degree [PL § 240.30(1)(A)].

On June 11, 2018, the Mother's Custody Petition (IDV Docket #s V-00501-4/18), Family Offense Petition (IDV Docket # O-00505-18), and the Father's criminal case (IDV Docket # 20205V-2018) were transferred to IDV2 for an appearance on June 27, 2018.

On June 27, 2018, the parties appeared in IDV2. The Court extended the Criminal Court and the Family Court TOP's in favor of the Mother and adjourned the case to September 5, 2018. The Court issued a Temporary Order of Custody to the Mother.

On July 16, 2018, the Father filed a Petition for Visitation (Docket #s V-20568-11/18) in Family Court which was transferred to IDV2 (Docket #s V-00723-6/18).

On September 5, 2018, the Court extended the Criminal and Family TOP's in favor of the Mother and the children. The Court's Temporary Order of Custody to the Mother; Temporary Order of Visitation to the Father supervised by [Comprehensive Family Services] CFS, Father to pay. The case was adjourned to November 13, 2018.

On September 20, 2018, the Court issued an Amended Order changing the supervisor for the Father's visitation from CFS to The New York Society for the Prevention of Cruelty to Children ("NYSPCC").

On November 13, 2018, the Court was made aware that the Father was re-arrested upon the Mother's complaint and extended the Criminal Court and the Family Court TOP's in favor of the Mother and the children to November 28, 2018. The Father's supervised visits were suspended.

The Father was arraigned on the felony complaint (IDV # 20443V-2018) and charged with the following crimes which alleged to have occurred between September 5, 2018 and October 29, 2018:

Criminal Contempt in the Second Degree [PL § 215.50(3)]; two (2) counts.

Harassment in the Second Degree [PL § 240.26(2)];

Tampering with a witness in the Second Degree [PL § 215.12(1);

Tampering with a witness in the Third Degree [PL § 215.11(2)

Intimidating a victim or witness in the third degree [PL § 215.15(1)];

Criminal Contempt in the First Degree [PL § 215.51 (B)(II)];

Criminal Contempt in the First Degree [PL § 215.51 (B)(V)];

Criminal Contempt in the First Degree [PL § 215.51 (B)(VI)];

Assault in the Third Degree [PL § 120.00(1)];

Criminal Contempt in the Second Degree [PL § 215.50 (3)];

Attempted assault in the Third Degree [PL § 110/120.00(1)];

Menacing in the Third Degree [PL § 120.15];

Stalking in the Fourth Degree [PL § 120.45(1)]; and

Harassment in the Second Degree [PL § 240.26(1)].

On November 28, 2018, the Court continued the Mother's TOC and ordered the Father to enroll in therapy. All TOP's were extended to the adjourn date of January 17, 2019.

On January 15, 2019 the Mother commenced a matrimonial action in Kings County Supreme Court by filing a Summons and Complaint (Index # 50211/2019).

On January 17, 2019, the Court extended the Criminal and Family TOP's in favor of the Mother and the children to the adjourn date of March 14, 2019. All prior orders of Custody and Visitation were continued.

On February 15, 2019, the parties' matrimonial action (Index # 50211/2019) was transferred to IDV2.

On March 14, 2019, all parties and counsel appeared, including the AFC Michelle Rottaballi, Esq., and new counsel for the Father, Philp Groner, Esq. The Father consented to a two (2) year Final Order of Protection in favor of the Mother, and the parties' four (4) children, on Docket # O-505-18 which was in effect until March 13, 2021. In addition, the Court consolidated the parties' Custody and Visitation Petitions (IDV Docket #s V-00501-4/18 and V-00723-26/18) into the matrimonial action.

On March 14, 2019, upon the People's application the Criminal Case (Dockets # 20205V-2018 and #20443V-2018) were consolidated for trial purposes. The Court extended the TOP's to May 1, 2019.

The felony counts were reduced on Docket # 20443V-2018:

Tampering with a witness in the Second Degree [PL § 215.12(1)

Tampering with a witness in the Third Degree [PL § 215.11(2)

Intimidating a victim or witness in the third degree [PL § 215.15(1)]

Criminal Contempt in the First Degree [PL § 215.51 (B)(II)]

Criminal Contempt in the First Degree [PL § 215.51 (B)(V)]

Criminal Contempt in the First Degree [PL § 215.51 (B)(VI)]

Assault in the Third Degree [PL § 120.00(1)]

On March 28, 2019, Philip Groner, Esq., appeared 18B representing the Father on the issues of Custody and Visitation. Upon the Mother's application the Court issued the following order on the matrimonial action:

"ORDERED that that the Mother to have Temporary Legal and Physical Custody of the subject children. Mother is authorized to obtain passports for the subject children. Mother shall provide proof of return flights for any overseas travel to counsel and the court."

On May 1, 2019, the Preliminary Conference on the matrimonial case was held, and the criminal court TOP's were extended to June 27, 2019. Additionally, the Court issued the following order on the matrimonial case:

"Ordered that Defendant, AC, shall pay the full balance of the National Grid arrears for account no. 5113/7501 in the amount of $317.82 forthwith; and it is further ordered that Defendant, AC, shall have telephone visits with the subject children in the presence of the subject children's therapists. These visits shall be arranged by the Attorney for the Children and Plaintiff's counsel. Defendant to provide proof of payment of National Grid balance by May 2, 2019."

On June 27, 2019, the criminal case was adjourned for trial and the TOP's were extended to September 11, 2019. All prior orders of Custody and Visitation were continued.

On July 2, 2019, Mother's counsel filed the Note of Issue on the Matrimonial action.

On September 11, 2019, the criminal cases were adjourned to December 2, 2019 for trial and TOP's were extended. All prior orders of Custody and Visitation were continued.

On September 23, 2019, the Court, on consent, amended its June 27, 2019 order as follows:

"Upon the consent of all counsel, the June 27, 2019 order is hereby amended as follows: The Father is to have supervised therapeutic visits with the subject children at NYSPCC. The two (2) elder children have the option to participate in the supervised therapeutic visitation with their father at NYSPCC if they so choose."

On December 2, 2019, the Court was ready to commence a jury trial which had been marked final for the People to proceed on the Father's consolidated criminal cases. The People stated on the record that they were NOT in fact ready for trial, despite asserting their readiness on numerous prior appearances. Given the People's prior illusory statements of readiness, the Court sua sponte dismissed and sealed the Father's two (2) criminal cases (Docket #s 20205V-2018 and 20443V-2018) pursuant to CPL § 30.30.

On December 2, 2019, on the matrimonial case, the Court issued a Temporary Order of Visitation to the Father, to be supervised by CFS.

On January 8, 2020, the Court issued the following order:

"Parties are to telephone CFS to schedule appointments and cooperate in all respects with the evaluation.

Observation and evaluation visits to be conducted between the Father and subject children J.C. and D.C. Subject children M.C. and K.C. may also participate at their discretion."

On January 28, 2020, the Court issued a supplemental order to the Father for observation and evaluation supervised by CFS.

On March 3, 2020, all prior orders of Custody and Visitation were continued.

On March 17, 2020 the IDV Court began operating virtually in response to the Covid-19 pandemic and the matrimonial case was administratively adjourned to July 7, 2020.

On July 27, 2020, the Court resumed in-court operations, although the attorneys and litigants appeared virtually. The AFC reported that the Father did not reach out to speak with her and that the children maintained that they did not want to visit with the Father. The Court continued the Mother's Temporary Order of Custody and adjourned to November 18, 2020.

On November 18, 2020, the Court issued the following order:

"Mother's Temporary Order of Custody of the children continues.

All visitation for the Father is suspended pending further order of the Court.

The Father shall enroll in therapy and meet with the Attorney for the Children and Social Worker from CLC prior to the next Court appearance.

The matter is adjourned to February 4, 2021."

On February 4, 2021, the case was adjourned on consent to February 25, 2021.

On February 25, 2021, all parties and counsel appeared in IDV2. All prior orders of Custody and Visitation were continued, and the case was adjourned to April 13, 2021.

On March 1, 2021, the Mother filed the underlying Order to Show Cause seeking to extend the Final Order of Protection on Docket # O-00505-18 an additional two years and in the interim to extend the TOP to the adjourn date of April 13, 2021 as the current FOP was due to expire on March 13, 2021.

On March 2, 2021 this Court signed the Order to Show Cause and granted the interim relief requested by extending a TOP in favor of the Mother and the children on Docket # O-00505-18, in effect until April 14, 2021.

On April 14, 2021, the Court continued all prior orders of Custody and Visitation, extended the TOP on Docket # O-00505-18 and adjourned the matters to June 17, 2021 for a decision on the Mother's Order to Show Cause.

On June 12, 2021, the Father filed an Affidavit in Opposition to Mother's Order to Show Cause for an extension of an Order of Protection.

DISCUSSION

A victim of domestic violence may "commence a proceeding in either or both Family Court and Criminal Court" and "[e]ach court has the authority to issue temporary or final orders of protection" (People v. Wood, 95 NY2d 509, 512-513 [2000]). Furthermore, Section 842 of the Family Court Act provides in pertinent part, that a court "may , upon motion, extend [an] order of protection for a reasonable period of time upon a showing of good cause or consent of the parties."

The statute fails to define "good cause", but does state that "[t]he fact that abuse has not occurred during the pendency of an order shall not, in itself constitute sufficient ground for denying or failing to extend the order" (Family Ct. Act § 842). In 2003, the amendment to § 842 lowered the standard by permitting the Family Court to extend the Order of Protection upon a showing of good cause rather than aggravating circumstances for up to five (5) years.

In each case, a "request for an extension should be viewed in the context of the facts of the case, including present circumstances, past abuse by the respondent, threats of abuse by the respondent and relevant information concerning the safety and protection of the protected persons with the primary goal to prevent a recurrence of abuse." (Assembly Mem. In Support, Bill Jacket, L. 2010, ch. 325 at 9).

"[I]n determining whether good cause has been established, courts should consider, but are not limited by, the following factors: the nature of the relationship between the parties, taking into account their former relationship, the circumstances leading up to the entry of the initial order of protection, and the state of the relationship at the time of the request for an extension; the frequency of interaction between the parties; any subsequent instances of domestic violence or violations of the existing order of protection; and whether the current circumstances are such that concern for the safety and well-being of the petitioner is reasonable" (See Matter of Molloy v Molloy, 137 AD3d 47 [2d Dept. 2016]).

The Mother argues that since the issuance of the Final Order of Protection on the Family Offense Petition, the matrimonial case has stalled due to the Father's behavior and partially due to the Covid-19 crisis. She maintains that if the Order of Protection is not extended, she will be exposed to further Domestic Violence at the hands of the Father. She argues that throughout the IDV proceedings, the Father has continuously disregarded the Court's directions and orders, citing the Father's re-arrest for violating the Temporary Orders of Protection in 2018 during the pendency of the IDV matter.

The Mother argues that the criminal court proceedings against the Father were dismissed erroneously and on a technicality on speedy trial grounds and that she was not able to testify at trial regarding the many allegations of domestic violence perpetrated by the Father against her. The Mother contends that she continues to fear for her safety and the safety of their children.

In his Affidavit in Opposition, the Father contends that the Mother does not make a showing of "good cause" since her Order to Show Cause is devoid of any factual showing that the Father committed or threatened to commit any family offenses against the Mother. He argues that the Mother "makes a showing of her feelings of annoyance and disdain" for the Father, but does not provide any proof of violations of the final Order of Protection.

The Father contends that there is no prior record of a domestic violence history between the parties and that before he was "falsely accused by the Mother of various crimes after he indicated he wanted a divorce," he had never been arrested.

The Father argues that, pursuant to Molloy "good cause" must be proven despite "the fact that abuse has not occurred during the pendency of an order shall not, in itself, constitute sufficient ground for denying or failing to extend the order."

The Father distinguishes the facts of this case from those in Molloy, arguing that in Molloy the petitioner received a two-year Order of Protection after a fact-finding whereas in the case at bar, the Father consented to a two-year Order of Protection. Further, the Father contends that in Molloy the petitioner, in requesting an extension of the Final Order of Protection, alleged a host of serious allegations including blatant violations of the Order of Protection, whereas here the Mother only alleges fear of the Father based upon past alleged behavior and criminal cases that were dismissed and sealed.

On May 4, 2021, the Mother filed an Affidavit in Further Support of her Order to Show Cause, in which she maintains that the Father subjected the Mother and the children to many forms of domestic violence including physical, verbal, emotional, and financial abuse during the marriage. The Mother contends that in early 2018, the Father locked two of the parties' children in a room by drilling the door shut from the outside, which forced the Mother and the children to flee the marital home and travel to the Maternal Grandmother's home for their safety.

The Mother further alleges that on or about May 26, 2018, the Father came to her place of employment, stood by the cash register where she was working, and questioned her to ascertain where she and the children were residing. Thereafter, the Mother claims that the Father followed her to the subway station before she was able to escape.

The Father further alleges in his June 12, 2021 Answer, that the Mother's allegations are mere allegations, not supported by any evidence. The Father further maintains that there is reason to doubt the veracity and credibility of the Mother's allegations based upon "many misrepresentations, inconsistencies, and embellishments."

In the case at bar, the Court observed the demeanor of the Father and Mother and their behavior throughout the three (3) years the case has been pending. The Court is also intimately familiar with all of the Criminal Court, Family Court, and Matrimonial cases as well as the allegations made by both parties regarding the domestic violence. While the Court is aware that the criminal cases against the Father were dismissed and sealed pursuant to CPL § 30.30, the Court holds that the Mother's contentions and fears relating to the Father are facially sufficient and credible. The Father has had numerous opportunities to rehabilitate his relationship with the children and has failed at every step. The Father feels emboldened by the dismissal of his criminal cases and refuses to take advice from his attorneys and the AFC who are seeking to assist him to rehabilitate his relationship with his children.

The Court holds that the Father's behavior throughout this proceeding bely his current arguments. He contends that he wants a divorce from the Mother, but has stalled at every opportunity to move the matrimonial case forward, insisting that everyone is to blame other than himself. The Mother and the children have been consistent throughout this case in expressing their fear of the Father and now, the Court holds that the Mother has provided sufficient evidence that "good cause" exists to extend the Final Order of Protection in her favor and in favor of the children.

Based upon the credible evidence provided by the Mother, the lengthy history of this case, the delays caused by the Father and the Covid-19 pandemic and the troublesome denial by the Father to the children of the alleged domestic violence and the behavior displayed by the Father throughout these proceedings, this Court is extending the Final Order of Protection.

Conclusion

Since the parties have children in common, they will have to continue to interact. The Mother has demonstrated "good cause" to extend the Final Order of Protection, issued on March 14, 2019.

In the exercise of the Court's discretion, holding that the Mother demonstrated good cause, the Court hereby grants the extension of the Order of Protection in favor of the Mother and the children until the trial on the matrimonial action.

This shall constitute the Decision and Order of this Court.

Dated: June 28, 2021

ESTHER M. MORGENSTERN, J.S.C.

Esther M. Morgenstern, J.

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