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This entry was published on 2020-03-20
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Procedures for family offense proceedings
Family Court Act (FCT) CHAPTER 686, ARTICLE 8, PART 1
§ 812. Procedures for family offense proceedings. 1. Jurisdiction.
The family court and the criminal courts shall have concurrent
jurisdiction over any proceeding concerning acts which would constitute
disorderly conduct, unlawful dissemination or publication of an intimate
image, harassment in the first degree, harassment in the second degree,
aggravated harassment in the second degree, sexual misconduct, forcible
touching, sexual abuse in the third degree, sexual abuse in the second
degree as set forth in subdivision one of section 130.60 of the penal
law, stalking in the first degree, stalking in the second degree,
stalking in the third degree, stalking in the fourth degree, criminal
mischief, menacing in the second degree, menacing in the third degree,
reckless endangerment, criminal obstruction of breathing or blood
circulation, strangulation in the second degree, strangulation in the
first degree, assault in the second degree, assault in the third degree,
an attempted assault, identity theft in the first degree, identity theft
in the second degree, identity theft in the third degree, grand larceny
in the fourth degree, grand larceny in the third degree, coercion in the
second degree or coercion in the third degree as set forth in
subdivisions one, two and three of section 135.60 of the penal law
between spouses or former spouses, or between parent and child or
between members of the same family or household except that if the
respondent would not be criminally responsible by reason of age pursuant
to section 30.00 of the penal law, then the family court shall have
exclusive jurisdiction over such proceeding. Notwithstanding a
complainant's election to proceed in family court, the criminal court
shall not be divested of jurisdiction to hear a family offense
proceeding pursuant to this section. In any proceeding pursuant to this
article, a court shall not deny an order of protection, or dismiss a
petition, solely on the basis that the acts or events alleged are not
relatively contemporaneous with the date of the petition, the conclusion
of the fact-finding or the conclusion of the dispositional hearing. For
purposes of this article, "disorderly conduct" includes disorderly
conduct not in a public place. For purposes of this article, "members of
the same family or household" shall mean the following:

(a) persons related by consanguinity or affinity;

(b) persons legally married to one another;

(c) persons formerly married to one another regardless of whether they
still reside in the same household;

(d) persons who have a child in common regardless of whether such
persons have been married or have lived together at any time; and

(e) persons who are not related by consanguinity or affinity and who
are or have been in an intimate relationship regardless of whether such
persons have lived together at any time. Factors the court may consider
in determining whether a relationship is an "intimate relationship"
include but are not limited to: the nature or type of relationship,
regardless of whether the relationship is sexual in nature; the
frequency of interaction between the persons; and the duration of the
relationship. Neither a casual acquaintance nor ordinary fraternization
between two individuals in business or social contexts shall be deemed
to constitute an "intimate relationship".

2. Information to petitioner or complainant. The chief administrator
of the courts shall designate the appropriate persons, including, but
not limited to district attorneys, criminal and family court clerks,
corporation counsels, county attorneys, victims assistance unit staff,
probation officers, warrant officers, sheriffs, police officers or any
other law enforcement officials, to inform any petitioner or complainant
bringing a proceeding under this article, before such proceeding is
commenced, of the procedures available for the institution of family
offense proceedings, including but not limited to the following:

(a) That there is concurrent jurisdiction with respect to family
offenses in both family court and the criminal courts;

(b) That a family court proceeding is a civil proceeding and is for
the purpose of attempting to stop the violence, end the family
disruption and obtain protection. Referrals for counseling, or
counseling services, are available through probation for this purpose;

(c) That a proceeding in the criminal courts is for the purpose of
prosecution of the offender and can result in a criminal conviction of
the offender;

(d) That a proceeding or action subject to the provisions of this
section is initiated at the time of the filing of an accusatory
instrument or family court petition, not at the time of arrest, or
request for arrest, if any;

(f) That an arrest may precede the commencement of a family court or a
criminal court proceeding, but an arrest is not a requirement for
commencing either proceeding; provided, however, that the arrest of an
alleged offender shall be made under the circumstances described in
subdivision four of section 140.10 of the criminal procedure law;

(g) That notwithstanding a complainant's election to proceed in family
court, the criminal court shall not be divested of jurisdiction to hear
a family offense proceeding pursuant to this section.

3. Official responsibility. No official or other person designated
pursuant to subdivision two of this section shall discourage or prevent
any person who wishes to file a petition or sign a complaint from having
access to any court for that purpose.

4. Official forms. The chief administrator of the courts shall
prescribe an appropriate form to implement subdivision two of this

5. Notice. Every police officer, peace officer or district attorney
investigating a family offense under this article shall advise the
victim of the availability of a shelter or other services in the
community, and shall immediately give the victim written notice of the
legal rights and remedies available to a victim of a family offense
under the relevant provisions of this act and the criminal procedure
law. Such notice shall be available, at minimum, in plain English,
Spanish, Chinese and Russian and, if necessary, shall be delivered
orally and shall include but not be limited to the information contained
in the following statement:

"Are you the victim of domestic violence? If you need help now, you
can call 911 for the police to come to you. You can also call a domestic
violence hotline. You can have a confidential talk with an advocate at
the hotline about help you can get in your community including: where
you can get treatment for injuries, where you can get shelter, where you
can get support, and what you can do to be safe. The New York State
24-hour Domestic & Sexual Violence Hotline number is (insert the
statewide multilingual 800 number). They can give you information in
many languages. If you are deaf or hard of hearing, call 711. This is
what the police can do:

They can help you and your children find a safe place such as a family
or friend's house or a shelter in your community.

You can ask the officer to take you or help you and your children get
to a safe place in your community.

They can help connect you to a local domestic violence program.

They can help you get to a hospital or clinic for medical care.

They can help you get your personal belongings.

They must complete a report discussing the incident. They will give
you a copy of this police report before they leave the scene. It is

They may, and sometimes must, arrest the person who harmed you if you
are the victim of a crime. The person arrested could be released at any
time, so it is important to plan for your safety.

If you have been abused or threatened, this is what you can ask the
police or district attorney to do:

File a criminal complaint against the person who harmed you.

Ask the criminal court to issue an order of protection for you and
your child if the district attorney files a criminal case with the

Give you information about filing a family offense petition in your
local family court.

You also have the right to ask the family court for an order of
protection for you and your children.

This is what you can ask the family court to do:

To have your family offense petition filed the same day you go to

To have your request heard in court the same day you file or the next
day court is open.

Only a judge can issue an order of protection. The judge does that as
part of a criminal or family court case against the person who harmed
you. An order of protection in family court or in criminal court can

That the other person have no contact or communication with you by
mail, phone, computer or through other people.

That the other person stay away from you and your children, your home,
job or school.

That the other person not assault, harass, threaten, strangle, or
commit another family offense against you or your children.

That the other person turn in their firearms and firearms licenses,
and not get any more firearms.

That you have temporary custody of your children.

That the other person pay temporary child support.

That the other person not harm your pets or service animals.

If the family court is closed because it is night, a weekend, or a
holiday, you can go to a criminal court to ask for an order of

If you do not speak English or cannot speak it well, you can ask the
police, the district attorney, or the criminal or family court to get
you an interpreter who speaks your language. The interpreter can help
you explain what happened.

You can get the forms you need to ask for an order of protection at
your local family court (insert addresses and contact information for
courts). You can also get them online: www.NYCourts.gov/forms.

You do not need a lawyer to ask for an order of protection.

You have a right to get a lawyer in the family court. If the family
court finds that you cannot afford to pay for a lawyer, it must get you
one for free.

If you file a complaint or family court petition, you will be asked to
swear to its truthfulness because it is a crime to file a legal document
that you know is false."

The division of criminal justice services in consultation with the
state office for the prevention of domestic violence shall prepare the
form of such written notice consistent with the provisions of this
section and distribute copies thereof to the appropriate law enforcement
officials pursuant to subdivision nine of section eight hundred
forty-one of the executive law. Additionally, copies of such notice
shall be provided to the chief administrator of the courts to be
distributed to victims of family offenses through the family court at
such time as such persons first come before the court and to the state
department of health for distribution to all hospitals defined under
article twenty-eight of the public health law. No cause of action for
damages shall arise in favor of any person by reason of any failure to
comply with the provisions of this subdivision except upon a showing of
gross negligence or willful misconduct.