NY Family Court Order of Protection Dismissed: Court Finds Client’s Speech Protected and Lacking Clear Threat of Genuine Harm

While a Domestic Violence arrest is far more troubling than being served with a non-criminal Order of Protection issued by a New York Family Court Judge, when the foundation of either claim is fraudulent, fictitious, exaggerated or intentionally misleading, it is both debilitating and demoralizing.  Simply, whether at the legal sufficiency stage or at a fact-finding hearing or trial, fighting back and taking it to your accuser within the four corners of the law is your best recourse for full exoneration. Fortunately, for a client subject to a complete Stay Away Order after a sibling filed an Article 8 Family Offense Petition, Saland Law PC’s Family Court attorneys and Order of Protection lawyers secured a complete dismissal of the action in its entirety upon the filing of a motion to dismiss.

Without going into the weeds of the petition, the complainant, or petitioner in this context, alleged that our client had harassed her for years during their youth and now, decades later, made verbal threats over the phone. Somehow trying to link the past alleged conduct with the claimed threats, the petitioner asserted she was afraid for her safety. Whether the petitioner was in fact concerned for her well-being or merely used a Restraining Order to further some other objective was an issue, but not one that could necessarily be argued in furtherance of a dismissal based on legal sufficiency. Instead, our attorneys examined the allegations within the four corners of the instrument and first argued they were conclusory statements, opinions and irrelevant assertions that had no factual relationship to the petition. As such, they should be removed or wiped away. Second, that which was relevant was not actionable because it fell into the class of speech protected by the First Amendment.

Examining our arguments, the Court dismissed certain portions of the petition as it failed to allege conduct that constituted violations of the Family Court Act. Easy enough, the second analysis, however, was a bit more complicated. Recognizing that the First Amendment was not absolute, the Court reviewed the petition in the context of Aggravated Harassment, Penal Law 240.30(2), as that was all that remained after agreeing with our first challenge. As such, the Court determined there was no evidence of a clear and present harm to petitioner and the “threats” were more akin to name-calling and blaming petitioner for certain behavior. Without a clear and present danger (no, not of the 1994 Jack Ryan variety), even if the history of abuse was accepted as true, the communications did not reach the threshold of a genuine threat of physical harm.

Beyond satisfied and grateful that a bogus and non-case was resolved in our client’s favor, the importance of this resolution to our client was no doubt the dismissal itself and the vacating of the Order of Protection. The bigger issue, however, is the fact that ex-parte Orders of Protection in Family Court are routinely granted based on the flimsiest of claims. Whether they ultimately prove true or not, the legal threshold – preponderance of the evidence – is far less than the criminal proof beyond a reasonable doubt standard. Therefore, not only must you draft a petition with clarity and substance to ensure the viability of your case, but if you are subject to a Family Court Order of Protection it is incumbent upon your counsel to move to dismiss that petition if it fails to sufficiently set forth an actionable Family Offense, aka, Penal Law crime.

To learn more about Stay Away Orders, Article 8 proceedings and related Domestic Violence crimes, follow the highlighted links.

Founded by two former Manhattan prosecutors, Saland Law PC is a New York Criminal and Family Court firm representing clients as both petitioners and respondents in Article 8 Family Offense matters.

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