N.Y. Family Court Act § 812: Procedures for family offense proceedings

§ 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;

(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"; and

(f) persons who are related by consanguinity or affinity to parties

who are or have been in an intimate relationship as defined in paragraph

(e) of this subdivision.

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

section.

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

free.

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

court.

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

court.

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

say:

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

protection.

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.