What is the “good cause” needed to extend a Family Court Order of Protection nearing its expiration? In its January 20, 2016 decision in Molloy v. Molloy, the Second Department, answered that question.

The parties were married in May 2002, and are the parents of one child. In February 2010, the wife filed a family offense petition against the husband and, following a finding that the husband had committed certain family offenses, obtained a two-year stay-away order of protection in favor of the wife and the parties’ child.

As the expiration date of the order of protection approached, the wife moved to extend it for five years, arguing that there was “good cause” for the extension, citing Family Court Act §842.

In her supporting affidavit, the wife alleged that the husband had violated the order of protection by, for example, showing up at her apartment and banging on the door, and driving his vehicle too closely to the wife, a wheelchair user, while she was on her way to a police station for a custody exchange. Fearing for her safety, she reported some of these incidents to the police. She alleged that he had recently been arrested for violating the order of protection, and that the case was pending in the Criminal Court of the City of New York, Queens County. The wife also claimed that the husband’s girlfriend warned her that the husband said that when the wife’s order of protection expired he would return to her residence, and he threatened to kill her.

The wife also noted that because she and the husband have a child in common they have to frequently interact regarding the child’s visitation. The wife claimed that the husband’s conduct during the course of their interactions over the past several years had so terrified her that she carried a panic alarm whenever she left her home. She feared that once the order of protection expired the husband would begin harassing her again and might harm or kill her.

The husband opposed the wife’s motion. At the request of the Family Court he a certificate of disposition and transcript from the Criminal Court of the City of New York, Queens County, both dated February 24, 2014, which indicated that he had pleaded guilty to a reduced charge of disorderly conduct. As a part of that disposition, a two-year order of protection was granted in favor of the wife and against him “subject to any subsequent orders from Family Court regarding visitation and custody.”

Queens County Family Court Judge Dennis Lebwohl denied the wife’s motion to extend the Family Court order of protection, holding that because the wife had already been granted a two-year order of protection in Criminal Court, the goal behind Family Court Act § 842 was accomplished and, thus, the wife had not demonstrated good cause to extend the order of protection.

The Second Department disagreed. Contrary to the Family Court’s conclusion, the Criminal Court’s issuance of an order of protection did not negate or otherwise render superfluous the wife’s request for an extension of her Family Court order of protection. 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.”

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 critical issue before us is whether the wife established “good cause” to extend the duration of the order of protection, as that term is applied in Family Court Act §842.

The appellate court approached this issue by first considering the legislative history of that section. With the 2010 amendments to §842, the Legislature recognized that victims should not have to wait for the commission of another family offense before seeking an extension. The new amendment lowered the standard by permitting the Family Court to extend an order of protection upon a showing of “good cause” rather than “special circumstances.”

The Legislature did not define “good cause” in the statute, but it declared 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.”

In addition, the Legislature intended, as reflected in the bill jacket, that wives might “apply for extensions for various reasons to ensure their safety.” Underscoring this point, the Legislature cited as examples that “the existing court order may have worked in preventing domestic abuse, and/or there are circumstances that may cause the parties to interact. Such interaction may be as a result of pending litigation, the initiation of litigation, compliance with the terms of divorce or family court agreements or judgments, meeting the needs of children in common including following visitation orders, or the resurfacing of the husband for one reason or another, including release from prison to name a few.” 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 husband, threats of abuse by the husband and relevant information concerning the safety and protection of the protected persons with the primary goal to prevent a recurrence of abuse.” As such, the legislative history makes plain the Legislature’s intent to afford greater protection to victims of domestic violence by permitting them to obtain an extension of an existing order of protection to prevent a reoccurrence of domestic abuse upon a showing of “good cause.” We now take this opportunity to elucidate further the meaning of “good cause.”

Although section 842 of the Family Court Act does not define “good cause,” it is a common legal term. Good cause is “difficult to define in absolute terms, [but] it generally signifies a sound basis or legitimate need to take judicial action.”

Thus, in 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 wife is reasonable.

As the lower court does have the benefit of seeing and hearing the witnesses, and may even be familiar with the parties, it is in the best position to make this fact-specific determination. Indeed, in this instance, some of the allegations in the wife’s papers cannot be resolved without an evidentiary hearing. Nevertheless, §842 does not mandate such a hearing, and the Second Department found that the wife made a facially sufficient application that warrants consideration of the relief requested.

There was no evidence in the record to suggest that the wife’s more serious allegations were contrived. It was clear to the appellate court from the record that the wife’s fear that the husband may stalk, harass, or attack her is well-founded, and that the unavoidable interactions between the parties may subject her to a reoccurrence of violence. Accordingly, the Second Department found that there was good cause to extend the order of protection.

As to the length of the extension, §842 grants a court the discretion to extend the order of protection for a “reasonable period of time.” It was evident to the appellate court from the Legislature’s use of the term “reasonable” that it wanted to give the courts flexibility to fashion an appropriate time period for the order of protection based on the particular circumstances of the parties. Consistent with a plain reading of “reasonable,” the legislative history of the 2010 amendment notes that applicants may have “various reasons” for seeking an extension, and it directs courts to view an extension in the context of the facts of the case. In this instance, there has been a prior finding that the husband committed family offenses against the wife that led to the initial order of protection. While the instant request for an extension of that order of protection was pending, the husband pleaded guilty to disorderly conduct and a two-year order of protection was issued in Criminal Court in favor of the wife. The parties will continue to interact when exchanging the child so that the husband may visit with him, and when litigating over custody and visitation issues. Considering these circumstances, the Second Department concluded that five years was a reasonable period of time to extend the order of protection.

Brian Dworkin, Esq., of counsel to Stephanie Taylor, of Jamaica, represented the wife.