| Matter of Bibeau v Ackey |
| 2008 NY Slip Op 09127 [56 AD3d 971] |
| November 20, 2008 |
| Appellate Division, Third Department |
| In the Matter of Marcel Bibeau Jr., Appellant, v Edward Ackey,Respondent. (Proceeding No. 1.) (And Another Related Proceeding.) In the Matter of MarcelBibeau Jr., Appellant, v Beth Ackey, Respondent. (Proceeding No. 2.) (And AnotherRelated Proceeding.) |
—[*1] Charles J. Keegan, Law Guardian, Albany.
Kavanagh, J. Appeals from four orders of the Family Court of Essex County (Meyer, J.),entered August 7, 2007 and September 19, 2007, which dismissed petitioner's applications, infour proceedings pursuant to Family Ct Act article 8, for orders of protection.[*2]
Petitioner is the father of a daughter (born in 2002) whoresides with her mother.[FN1]In August 2007, petitioner filed two family offense petitions seeking orders of protection in favorof the child against respondents—one against respondent Beth Ackey, the child's maternalaunt (hereinafter the aunt), and one against respondent Edward Ackey, the aunt's husband(hereinafter the uncle)—alleging that they had both committed acts that constitutedreckless endangerment of the child. Specifically, the petitions alleged that the uncle was sellingand using hallucinogenic mushrooms in the child's presence and that the aunt allowed the drugsto be sold in the child's presence and was using the drugs herself.
Four days after the family offense petitions were filed, Family Court, in two orders,dismissed the petitions for lack of subject matter jurisdiction, concluding that petitioner was not amember of the same family or household as respondents (see Family Ct Act § 812[1] [a]). Petitioner then filed two similar family offense petitions seeking the same relief andFamily Court, citing its prior orders, once again dismissed the petitions. Petitioner now appealsfrom the orders that dismissed the four petitions. Because Family Court should not havedismissed the petitions for lack of subject matter jurisdiction, we now reverse.
Initially, petitioner filed the family offense petitions on behalf of his child, seeking orders ofprotection for her, and clearly he had standing to do so (see Matter of Loriann Q. v Frank R., 53 AD3d 735, 736 [2008]; Matter of Hamm-Jones v Jones, 14AD3d 956, 958 [2005]). Family Ct Act § 812 (1) (a) provides that "family court [has]jurisdiction over any proceeding . . . between members of the same family orhousehold," meaning, among other things, "persons related by consanguinity or affinity." "Arelationship by affinity is based upon marriage and has to do with the relationship one spouse hasto the blood or adopted relatives of the other spouse" (Matter of Anstey v Palmatier, 23 AD3d 780, 780 [2005] [citationsomitted]; see Randolph v Nationwide Mut. Fire Ins. Co., 242 AD2d 889, 890 [1997];see also Black's Law Dictionary 63 [8th ed 2004]). Family Court dismissed the petitionsfor lack of subject matter jurisdiction after concluding that petitioner was not related by blood ormarriage to either the aunt or the uncle and, therefore, no relationship existed between them toqualify the parties as members of the same family or household (see Family Ct Act§ 812 [1]). However, the court's proper inquiry should have been the child's relation torespondents, not petitioner's relation to respondents.
The allegations contained in the first family offense petition against the aunt were basedupon the aunt's relationship to the child (the aunt is the sister of the child's mother). Petitioner'sfirst family offense petition against the uncle was based upon the uncle being married to the aunt.Accordingly, petitioner established in the first two petitions that his daughter is related byconsanguinity to the aunt and by affinity to the uncle (see Family Ct Act § 812 [1][a]; Matter of Anstey v Palmatier, 23 AD3d at 780).
After Family Court dismissed the first two family offense petitions, petitioner attempted[*3]to restate his own relation to respondents to satisfy the court'sjurisdictional concerns. In the second petition against the uncle, petitioner alleged that he and theuncle were first cousins in that their mothers were sisters. The second petition against the auntalleged that she "is wife to [petitioner's first] cousin." Based upon the allegation that petitionerwas a first cousin of the uncle and, as a result, his child would be a cousin to the uncle, petitionerestablished in the second set of proceedings against the aunt and the uncle that his daughter isalso related by consanguinity to the uncle and by affinity to the aunt.[FN2]
Accordingly, based upon the relation of petitioner's daughter to respondents, Family Courterred in dismissing the family offense petitions for lack of subject matter jurisdiction.
Peters, J.P., Rose, Lahtinen and Stein, JJ., concur. Ordered that the orders are reversed, onthe law, without costs, and matter remitted to the Family Court of Essex County for furtherproceedings not inconsistent with this Court's decision.
Footnote 1: In August 2006, the child'smother obtained a two-year order of protection against petitioner, which directed that petitionercould "not contact or communicate, directly or through third parties, with any [g]overnmental[o]fficer, official or agency regarding [her or their daughter,] except to the limited extent that he[could] file petitions in an appropriate Family Court."
Footnote 2: To this extent, the second set ofpetitions against the aunt and the uncle also established that petitioner was related to the uncle byconsanguinity and the aunt by affinity.