| Matter of Brito v Vasquez |
| 2012 NY Slip Op 02301 [93 AD3d 842] |
| March 27, 2012 |
| Appellate Division, Second Department |
| In the Matter of Erica Brito, Respondent, v Diego Vasquez,Appellant. |
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In a family offense proceeding pursuant to Family Court Act article 8, the father appeals froman order of protection of the Family Court, Queens County (Lebwohl, J.), dated July 18, 2011,which, after a fact-finding hearing, and upon a finding that he had committed a family offensewithin the meaning of Family Court Act § 812, inter alia, directed that he "shall not leavethe [parties'] child supervised by his wife and shall be with the child at all times," and directedthat the order shall remain in effect for a period of three years until and including July 18, 2014.
Ordered that the order of protection is modified, on the law and the facts, (1) by deleting theprovision thereof directing that the father "shall not leave the [parties'] child supervised by hiswife and shall be with the child at all times," and (2) by deleting the provision thereof directingthat the order of protection shall remain in effect until and including July 18, 2014, andsubstituting therefor a provision directing that the order of protection shall remain in effect untiland including July 18, 2013; as so modified, the order of protection is affirmed, without costs ordisbursements.
"The determination of whether a family offense was committed is a factual issue to beresolved by the hearing court" (Matter ofKaur v Singh, 73 AD3d 1178, 1178 [2010] [internal quotation marks omitted];see Family Ct Act §§ 812, 832; Matter of Harry v Harry, 85 AD3d 790 [2011]), "whosedetermination regarding the credibility of witnesses is entitled to great weight on appeal unlessclearly unsupported by the record" (Matter of Kaur v Singh, 73 AD3d at 1178 [internalquotation marks omitted]; see Matter of Harry v Harry, 85 AD3d at 791). Here, a fairpreponderance of the credible evidence supports a determination that the appellant fathercommitted acts constituting a family offense, warranting the issuance of an order of protection(see Family Ct Act § 812; Penal Law § 120.00; Matter of Jeannie B. v Roger D., 33AD3d 994 [2006]).
While the Family Court is permitted, upon sufficient proof that a family offense has beencommitted, to issue an order of protection (see Family Ct Act § 841 [d]) and mayrequire a petitioner or a respondent, inter alia, to "observe such other conditions as are necessaryto further the purposes of protection" (Family Ct Act § 842 [j]), here, the Family Courterred in prohibiting the father, in the order of protection, from leaving the parties' child under thesupervision of his wife without him being present and in requiring him to be with the child at alltimes. There was no evidence that such a restriction was necessary to further the purposes ofprotection and, in fact, there [*2]was no testimony adduced, nordid the Family Court find, that the provision prohibiting supervision of the child by the wife was" 'reasonably necessary to protect' " the child from future family offenses (Matter of Jodi S. v Jason T., 85 AD3d1239, 1242 [2011], quoting Matterof Gil v Gil, 55 AD3d 1024, 1025 [2008]; see Family Ct Act § 827 [a][vii]).
Moreover, the Family Court failed to set forth, as required by Family Court Act § 842,the required finding of aggravating circumstances and, thus, the duration of the order ofprotection may not exceed a period of two years. Accordingly, the order of protection must bemodified to remain in effect until and including July 18, 2013 (see Family Ct Act§§ 842, 827 [a] [vii]; Matter of Drury v Drury, 90 AD3d 754, 755 [2011]; Matter of Gelardi v Gelardi, 62 AD3d701, 702 [2009]).
Accordingly, the order of protection must be modified by deleting the provision thereofdirecting that the father "shall not leave [parties'] the child supervised by his wife and shall bewith the child at all times," and by deleting the provision thereof directing that the order ofprotection shall remain in effect until and including July 18, 2014, and substituting therefor aprovision directing that the order of protection shall remain in effect until and including July 18,2013. Rivera, J.P., Leventhal, Roman and Cohen, JJ., concur.