A state appeals panel has ruled that a Brooklyn Family Court judge was wrong to dismiss for lack of jurisdiction a petition filed by a father on behalf of his daughter for an order of protection against the boyfriend of the girl’s mother.

The opinion in Jose M. v. Angel V., 05388/11, written by Justice John Leventhal of the Appellate Division, Second Department, reversed a May 23 order by Judge Terrence McElrath (See Profile).

Leventhal (See Profile) was joined by Justices Ruth Balkin (See Profile), Ariel Belen (See Profile) and Sheri Roman (See Profile).

The father, Jose M., filed the underlying petition in October 2010. He said that Angel V., the boyfriend of the child’s mother, had tied up the girl with a belt as punishment and threatened to put her on a fire escape, and only released her several minutes after the child’s mother told him to. The father said the child, identified as K.M., was now afraid of the boyfriend and did not want to see the mother. He requested that the Family Court enter an order of protection against the boyfriend in favor of the child.

The father and mother had a joint custody arrangement where the father had custody during the week and one weekend each month, and the mother had visitation the other three weekends.

In April 2011, counsel was appointed for K.M. The next month, McElrath dismissed the case for lack of subject matter jurisdiction, ruling that the girl and the boyfriend did not have an “intimate relationship” as required by Section 8 of the Family Court Act because the term was not meant to cover a “quasi stepchild” relationship.

K.M. appealed.

Leventhal ruled that the lack of a legal relationship between K.M. and the boyfriend did not mean there was no intimate relationship. He noted that in 2008, the Legislature amended the Family Court Act to include “persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time” under the term “intimate relationship.”

He said that “persons who have dated or were engaged in a sexual relationship are covered” under the law, meaning that there was clearly an intimate relationship between the mother and the boyfriend.

While that did not in itself create an intimate relationship between the boyfriend and K.M., he said, the specific facts of the case did.

“Here, the relationship between the child and the boyfriend is direct and is akin to the relationship between a stepparent and a stepchild,” Leventhal wrote. “The following factors, which are alleged in this case, support the existence of this ‘quasi-stepparent-stepchild’ relationship: the boyfriend has dated the child’s mother for more than three years, he resides with the child’s mother, and the child spends substantial time visiting with the mother in the home the mother shares with the boyfriend.”

Leventhal continued, “The allegation that the boyfriend exercises parental authority over the child while she visits with the mother is particularly significant. Moreover, the interaction between the child and the boyfriend reportedly occurs on a regular basis (three weekends per month, from Friday afternoon until Monday morning) and is likely to continue in the future.”

Quoting the Family Court Act, the judge added that the panel’s decision “is consistent with the goals of a family offense proceeding, which are to ‘stop the violence, end the family disruption and obtain protection.’”

Janet Neustaetter, supervising attorney in the appellate unit of the Children’s Law Center, represents K.M. She said the decision “has a lot of impact.”

“There are so many kids in that situation, who visit parents on weekends and there’s a quasi stepparent in the home, someone to whom the parent isn’t married but who is there on a regular basis and with whom the child interacts on a regular basis,” she said. “What this makes clear is the fact that they’re not married doesn’t mean that you can’t use the statute. It’s important because it means you don’t have to prosecute [the quasi stepparent] criminally, you can do it through the Family Court.”

The mother and boyfriend are not represented by counsel.