The opinion of the court was delivered by: Douglas E. Hoffman, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
This matter comes before the court upon motion by respondent Piliganor Parker for an order vacating a four-year Final Order of Protection entered upon default in Family Court, Queens County.*fn1 The Order of Protection, inter alia, required Mr. Parker to stay away from Petitioner Rosita Ram-Parker and the parties' three children. In the alternative, Mr. Parker seeks modification of the Order of Protection to permit him to visit with the children. For the reasons set forth below, the court denies the motion in its entirety, except to the extent of directing periodic review of the need for continuation of the Order of Protection and of Mr. Parker's request to visit with the subject children under a best interest of the children standard.
Petitioner Rosita Ram-Parker filed the instant Family Offense petition in Family Court, Queens County on August 1, 2006. Petitioner alleged in pertinent part that Respondent Piliganor Parker physically assaulted her on numerous occasions and threatened to shoot her. Although served with a copy of the summons and petition, Mr. Parker did not appear on the return date of the petition, September 7, 2006. The Presiding Judge in the Part conducted an inquest on that date. Finding aggravated circumstances, the Judge entered a Final Order of Protection on the same date for a term of four years, requiring respondent to stay away from petitioner and her children, and to refrain from communicating with or committing any acts constituting a family offense against Petitioner mother and the children.
On September 8, 2006, Respondent father filed a petition in Queens County Family Court (dockets V-18276-78/06) seeking visitation with the children. The court dismissed the petition without prejudice on October 17, 2006 as neither party appeared. There is no indication that the father ever served the mother with the petition.
This is how matters remained until November 27, 2007, when ACS filed neglect petitions against the mother in Family Court, Bronx County, alleging in pertinent part that the mother had engaged in sexual intercourse with a 12-year-old minor and that the home and the children were malodorous. Through that date the father had no contact with the children at least since the mother had filed the 2006 family offense petition.
On April 8, 2008, the mother withdrew her previous denial to the allegations of the neglect petition and submitted to the jurisdiction of the Family Court pursuant to F.C.A. sec. 1051(a). Based upon the allegations set forth in the verified petition, the court found that the mother neglected the subject children based upon failure to exercise a minimum degree of care in providing the subject children with adequate guardianship and supervision. As part of the dispositional order, Petitioner mother was ordered to refrain from making disparaging comments against Mr. Parker, who was not a respondent in the neglect proceedings.
During the pendency of the neglect proceedings, the father filed the instant motion in Family Court, Queens County in the Family Offense proceeding seeking vacatur, or in the alternative modification, of the four-year Final Order of Protection. The motion was transferred to Bronx County Family Court on or about January 15, 2008 without a decision on the motion. This court received the motion on March 10, 2008, and a letter was sent to all counsel seeking submission of response papers, particularly concerning the potential impact of a Court of Appeals decision discussed below.
In support of his motion, the father submitted an affidavit stating that he mistakenly appeared in Family Court, Queens County one day late, on September 8, 2006, and that he took immediate action by filing a custody petition. He contends that he was not able to effectuate service of the custody petition, and therefore that matter was dismissed. With respect to that branch of his motion seeking to establish a meritorious defense, the father contends that the mother's allegations in the 2006 family offense petition are false and that the mother brainwashed the subject children in a manner that caused them to fear him.
In response, both Petitioner and the Law Guardian submitted Affirmations in Opposition, claiming that Respondent failed timely to file his motion to vacate within the statutory one-year period, and furthermore, that the interests of justice require finality herein. The Law Guardian also submits, from a factual standpoint, that the subject children fear respondent and have no desire to visit with him as a result of observing acts of violence by the father perpetrated against the mother.
During oral argument, the court asked the parties to address the possible impact upon the motion of the Court of Appeals decision in Matter of Sheena D., 8 NY3d 136, 863 NE2d 96, 831 NYS2d 92 (2007). In Sheena D., the Court held, inter alia, that in the context of a Family Court Act Article 10 proceeding, the trial court must conduct periodic review of an order of protection to determine whether or not continuance of the order of protection is in the best interest of a subject child. In the instant case, this court expressed the concern that a four-year order of protection against a natural parent, which order required that parent to stay away from his children for that entire period of time without periodic review of the order, could have a significant impact upon the parent-child relationship sufficient to invoke the same concerns expressed by the Court of Appeals in Sheena D. The parties submitted supplemental affirmations which have been reviewed by the Court. The Administration for Children's Services and Respondent supported application of Matter of Sheena D. to the instant case while Petitioner and the Law Guardian opposed such an application. Upon reflection, this Court finds that, although the Court of Appeals holding in Matter of Sheena D. is specific to an Article 10 proceeding and is not automatically applicable to the instant Article 8 proceeding, the reasoning employed by the Court of Appeals in Sheena D. in limiting the duration and expanding the required review of an order of protection in Article 10 proceedings is instructive for a court in determining the length and level of review of an order of protection issued pursuant to a Family Offense petition. The reasons for this conclusion are set forth, infra.
The court denies that branch of the instant motion seeking an order pursuant to CPLR sec. 5015 vacating the order of protection based upon excusable default and a meritorious defense. As a threshold matter, petitioner contends that the motion must be denied because of the more than one year delay in filing the motion. This argument is unavailing, however, as the motion must be made within one year after service of a copy of the order with written notice of its entry upon the moving party. CPLR sec. 5015(a)(1). Petitioner has not submitted any proof of service of a copy of the order with notice of entry. While as a practical matter the Clerk's office of Family Court usually mails a copy of the order, the file does ...