Doing so in its February 3, 2016 decision in Clovis v. Clovis, the Second Department reversed the order of Orange County Family Court Judge
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.
In its February 14, 2013 decision in Melody M. v Robert M., the Third Department affirmed an order of now-retired St. Lawrence County Family Court Judge Barbara R. Potter which modified a prior joint custody order to award the father sole custody of the parties’ three children (ages 8, 9 and 12). The Third Department also affirmed Judge Potter’s imposition of an order of protection against the mother that prohibited her from, among other things, posting any communications to or about the children on any social network site.
The parties had entered into a separation agreement in 2006 providing for joint custody of their children with alternating physical placement. In February 2009, they stipulated to continue joint custody, but with the father having primary physical custody. In July 2010, the mother commenced the first of the four proceedings determined by Judge Potter’s order, seeking to alter her parenting time so that she would have the two youngest children from Wednesday to Sunday of each week and the oldest child from Sunday to Tuesday of each week. The father opposed the proposed schedule change, filed violation petitions and filed a modification petition seeking, among other things, sole legal custody of the children.
After a hearing, Judge Potter found a change in circumstances sufficient to conclude that the joint custody arrangement was no longer viable and that an award of sole legal custody to the father would be in the best interests of the children.
Last month, recognizing Domestic Violence Month, we reviewed the Second Department decision in Costigan v. Renner which affirmed the granting of custody to a father because of domestic violence by the mother. Indeed, since 1996, consideration of domestic violence has been mandated in custody and visitation cases. Section 240(1) of the Domestic Relations Law provides…