The Appellate Division, Second Department, at 41 Monroe Place, Brooklyn (NYLJ/Rick Kopstein)
A family court judge should have extended an order of protection for a woman whose husband was arrested for allegedly violating the order and threatening to kill her after it expired, a Brooklyn appeals court ruled.
The decision by a panel of the Appellate Division, Second Department, in Matter of Molloy v. Molloy, 2014-07966, also clarified a 2010 change to New York’s Family Court Act allowing petitioners to seek extensions to orders of protection upon a showing of “good cause.”
Jennifer and William Molloy were married in 2002 and had one child together. In 2010, Jennifer Molloy filed a family offense petition against her husband in Family Court. The court, finding he committed third-degree menacing, second-degree reckless endangerment and third-degree assault, issued a two-year order of protection for Jennifer and the child that required William Molloy to stay away from them except during agreed-upon or court-ordered visitation periods.
Prior to the protection order’s expiration date, Jennifer Molloy filed for an extension, arguing that there was “good cause” as it is defined Family Court Act §842 to extend her order to Dec. 1, 2018.
She alleged that her husband violated the order showing up at her apartment, banging on the door or driving his vehicle too closely to her while she was on her way to a police station for a custody exchange.
In addition, William Molloy’s girlfriend allegedly warned Jennifer Molloy that he threatened to kill her once the order expired.
Jennifer Molloy reported some of these incidents to the police. William Molloy pleaded guilty to disorderly conduct in Queens Criminal Court, which granted Jennifer a two-year order of protection.
On July 21, 2014, Queens Family Court Judge Dennis Lebwohl denied her request for an extension on the Family Court order of protection, ruling that since the Criminal Court had already provided her with a protection order, the goal of Family Court Act §842 had been accomplished. Thus, Lebwohl said, she did not show good cause to extend the order.
Jennifer Molloy appealed and, in a decision handed down on Jan. 20 reversing Lebwohl’s ruling, Justice Cheryl Chambers, writing for the court, said Criminal Court’s decision to grant an order of protection did not negate or “otherwise render superfluous” the request to extend the Family Court order.
Moreover, Chambers wrote, had William Molloy successfully appealed the criminal matter, the Criminal Court’s order of protection could have been vacated.
“Thus, it was entirely proper for the petitioner to seek an extension of the Family Court order of protection,” she said.
But the critical issue before the court, Chambers said, is whether Jennifer Molloy met the good cause standard under the Family Court Act §842 to extend the court’s order.
When enacted in 1962, the Family Court Act gave Family Courts the authority to grant orders of protection, but did not empower them to grant extensions.
Ten years later, the law was changed to grant courts the authority to extend the orders “upon the showing of special circumstances,” though “special circumstances” was not defined, nor was the term elucidated through case law, Chambers wrote.
Under these circumstances, the judge said, victims were discouraged from applying for an extension and waited until abuse occurred again to apply for a new order. (see Mem of Assembly Judiciary Committee, Bill Jacket, L 2010, ch 325 at 5).
Domestic violence groups sought a remedy from the Legislature, which “recognized that victims should not have to wait for the commission of another family offense before seeking an extension” and, in 2010, approved an amendment to lower the standard from “special circumstances” to “good cause.”
“Good cause,” though not defined in the act, is a common legal term, Chambers said.
The New Hampshire Supreme Court ruled in a 2008 decision that “good cause” should be read in the context of the statute as a whole, a principle that is consistent with New York law, the judge said.
Legislative intent also should be considered, she said, and the legislative history shows that the amendment to the Family Court Act was intended to prevent reoccurrences of domestic violence (see Matter of Sutka v. Conners, 73 NY2d 395, 403; and Matter of Luis C., 124 AD3d 109, 112).
To determine if “good cause” has been established, Chambers said courts should consider the nature of the relationship between the parties, the circumstances leading up to the entry of the order of protection, the state of the relationship between the parties when an extension is requested, how frequently the parties interact, instances of domestic violence or violations of the original order and whether there is a reasonable concern for the safety and well-being of the petitioner.
In Molloy, she said, the parties continue to interact because they have a child together, William Molloy has a history of assaulting his wife, the “ongoing discord” between the parties persists and the Criminal Court granted a subsequent order of protection following William Molloy’s disorderly conduct conviction.
“Therefore, it is clear from the record that the petitioner’s fear that the respondent may stalk, harass, or attack her is well-founded, and that the unavoidable interactions between the parties may subject her to a reoccurrence of violence.” Chambers said, which establishes good cause for an extension of the order.
Brian Dworkin of Queens Legal Services’ Domestic Violence and Family Law Advocacy Project represented Jennifer Molloy. Dworkin said in an interview that the ruling would allow victims to seek extensions “without waiting to have something inflicted upon them” while guide courts to look at the “overall context of family life” when determining if an order should be extended.
William Molloy appeared pro se on appeal.