| Matter of Janet GG. v Robert GG. |
| 2011 NY Slip Op 07548 [88 AD3d 1204] |
| October 27, 2011 |
| Appellate Division, Third Department |
| In the Matter of Janet GG., Appellant, v Robert GG.,Respondent. |
—[*1] Tracy's Law Office, Cherry Valley (Dennis B. Laughlin of counsel), for respondent. Victor Carrascoso, Cooperstown, attorney for the children.
Kavanagh, J. Appeal from an order of the Family Court of Otsego County (Becker, J.),entered November 16, 2010, which dismissed petitioner's application, in a proceeding pursuant toFamily Ct Act article 8, for an order of protection.
In March 2010, petitioner (hereinafter the mother) filed a Family Ct Act article 8 petitionalleging that respondent (hereinafter the father) committed a series of family offenses against herand their two children (born in 1996 and 1998). Specifically, she alleged that on March 2, 2010,the father telephoned the children's school, spoke to a guidance counselor and demanded to seehis children. Because the counselor believed that an order of protection was in place that barredthe father from having such contact with his children,[FN1] the counselor informed the father that he should not come to the school and, in any event, wouldnot be allowed by school authorities to visit with his children. The father, despite thisadmonition, went to the school and, upon entering the premises, confronted the schoolsuperintendent demanding to see his children. After he became loud and boisterous and refusedto leave the premises, the police [*2]were notified and the fatherwas placed under arrest. The mother subsequently filed a petition[FN2] claiming that this conduct qualified as a family offense and, on that basis, sought an order ofprotection for herself and the children.[FN3] The father argued that what had occurred, even if true, did not constitute a family offense and,therefore, Family Court did not have jurisdiction. The court agreed and dismissed the petitionwith prejudice. The mother now appeals.
"Family Court's jurisdiction over family offense proceedings is limited to those acts betweenfamily members that 'would constitute disorderly conduct, harassment in the first degree,harassment in the second degree, aggravated harassment in the second degree, stalking. . . , menacing in the second degree, menacing in the third degree, recklessendangerment, assault in the second degree, assault in the third degree or an attempted assault' "(Matter of Steinhilper v Decker, 35AD3d 1101, 1102 [2006], quoting Family Ct Act § 812 [1]). Here, Family Courtdetermined that while the father's actions may have constituted disorderly conduct,[FN4] they did not amount to a family offense because, when committed, the father was not in contactwith the mother or either of their children. Instead, the father's actions were directed at schoolpersonnel and not any member of his family. We agree and affirm.
The mother and the attorney for the children argue that, because the mother and one of thechildren were in a location on the school premises that allowed them to hear the fatherdemanding that school authorities allow him to see his children, this conduct was sufficient toconstitute a family offense. However, no evidence has been presented that either the mother orthe child were in the immediate area where this confrontation between school authorities and thefather took place or that the father, at the time he was making his demands, was aware of theirpresence. In fact, it is clear that the father's actions were directed not at the mother or thechildren, but at school personnel, and what occurred, while regrettable, did not constitute afamily offense. As such, Family Court was without jurisdiction to entertain this petition(see Family Ct Act § 812; compare Matter of Joan FF. v Ivon GG., 85 AD3d 1219,1219-1220 [2011]; Matter of Amy SS. vJohn SS., 68 AD3d 1262, 1263 [2009], lv denied 14 NY3d 704 [2010]).
Rose, J.P., Malone Jr., Stein and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: An order of protectionregulating the father's contact with the children had been in place, but had expired.
Footnote 2: The mother initially submittedher petition pro se, and later amended the petition.
Footnote 3: A temporary order of protectionwas put in place requiring the father to stay away from the mother and children.
Footnote 4: A person is guilty of disorderlyconduct "when, with intent to cause public inconvenience, annoyance or alarm, or recklesslycreating a risk thereof . . . [he or she] makes unreasonable noise . . .[or i]n a public place . . . uses abusive or obscene language" (Penal Law §240.20).