| Matter of Winston v Edwards-Clarke |
| 2015 NY Slip Op 02774 [127 AD3d 771] |
| April 1, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Siana Winston,Respondent, v Karen Edwards-Clarke, Appellant. |
Jill M. Zuccardy, New York, N.Y., for appellant.
Mark Brandys, New York, N.Y., for respondent.
Appeal from an order of protection of the Family Court, Queens County(Anne-Marie Jolly, J.), dated April 28, 2014. The order of protection, upon an order ofthat court dated April 28, 2014, as amended May 23, 2014, finding, after a hearing, thatthe appellant committed the family offense of disorderly conduct, directed the appellant,inter alia, to stay away from the petitioner and the petitioner's daughter.
Ordered that the order of protection is affirmed, without costs or disbursements.
At a fact-finding hearing on the subject family offense petition, the petitionerdescribed herself as the fiancée of the appellant's ex-husband (hereinafter theex-husband). The ex-husband is the father of one of the petitioner's children and hascustody of the appellant's children. The ex-husband and his children live in the samehousehold as the petitioner and her children.
The petitioner functioned as stepmother to the appellant's children, and helped toarrange for the appellant's visitation with her children. The hearing evidence establishedthat the appellant engaged in a public disturbance regarding the conditions of hervisitation with her children outside of the home shared by the petitioner and theex-husband.
At the hearing, the petitioner acknowledged that she and the appellant did not livetogether, and that they did not spend time together as a family. However, when theappellant made an application, in effect, to dismiss the proceeding for lack of subjectmatter jurisdiction, the Family Court concluded that it had jurisdiction over thecontroversy since the parties "have an ongoing relationship by virtue of the children" andthe appellant's children were residing with the petitioner. At the conclusion of thefact-finding hearing, the Family Court found that the appellant had committed the familyoffense of disorderly conduct.
The Family Court properly concluded that it had subject matter jurisdiction over thisproceeding. Family Court Act § 812 (1) gives the Family Court jurisdictionover family offenses committed "between spouses or former spouses, or between parentand child or between members of the same family or household." Persons in the samefamily are defined as persons related by consanguinity or affinity, persons legally marriedto one another, persons formerly married to each other even if they no longer live in thesame household, and persons with a child in common, "regardless of whether suchpersons have been married or have lived together at any time" (Family [*2]Ct Act § 812 [1] [d]; see Family CtAct § 812 [1] [a], [b], [c]). The petitioner and the appellant did not live inthe same household, were not related by consanguinity or affinity, were never married toeach other, and did not have any children in common.
In 2008, the legislature expanded the definition of "members of the same family orhousehold" as set forth in Family Court Act § 812 (1) to include: "personswho are not related by consanguinity or affinity and who are or have been in an intimaterelationship regardless of whether such persons have lived together at any time. Factorsthe 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 therelationship is sexual in nature; the frequency of interaction between the persons; and theduration of the relationship. Neither a casual acquaintance nor ordinary fraternizationbetween two individuals in business or social contexts shall be deemed to constitute an'intimate relationship' " (Family Ct Act § 812 [1] [e]). In Matter of Jose M. v Angel V.(99 AD3d 243, 249 [2012]), this Court held that a determination as to whetherpersons are or have been in an intimate relationship within the meaning of Family CourtAct § 812 (1) (e) is "a fact-specific determination."
Generally, the "relationship should be direct, not one based upon a connection with athird party," such as a child or a common boyfriend or girlfriend (Matter of Jose M. vAngel V., 99 AD3d at 247). Here, however, an intimate relationship was establishedby the fact that the petitioner was living with the appellant's children and their father,who had custody of them, and was acting as a stepmother to the appellant's children (see Matter of R.M.W. vG.M.M., 23 Misc 3d 713 [2009]; see also Matter of Jose M. v Angel V.,99 AD3d at 247; cf. Matter ofRiedel v Vasquez, 88 AD3d 725, 727 [2011]).
Frequency of contact is a significant factor in determining whether there is an"intimate relationship" within the meaning of Family Court Act § 812 (1)(e) (see Matter of Johnson vCarter, 122 AD3d 853, 854 [2014]; Matter of Seye v Lamar, 72 AD3d 975, 977 [2010]), and itappears from this record that there is frequent contact between the appellant and thepetitioner in order to arrange for the appellant's visitation with her children. Permittingthe petitioner to proceed with this matter in Family Court is consistent with the purposeof a family offense proceeding, which is to end family disruption and obtain protection(see Family Ct Act § 812 [2] [b]; Matter of Jose M. v AngelV., 99 AD3d at 247). Accordingly, the Family Court properly concluded that it hadsubject matter jurisdiction over this proceeding.
The appellant's remaining contentions are without merit (see Family Ct Act§ 842 [k]; Matterof Goldring v Sprei, 121 AD3d 894, 895 [2014]; Matter of Banks v Opoku, 109AD3d 470 [2013]; Matterof Cassie v Cassie, 109 AD3d 337, 344 [2013]; Matter of Wan-Su Li v Feng,45 AD3d 775 [2007]). Skelos, J.P., Austin, Miller and Hinds-Radix, JJ., concur.