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In the Matter of Kristina K v. Timothy K

State of New York Supreme Court, Appellate Division Third Judicial Department


January 12, 2012

IN THE MATTER OF KRISTINA K., RESPONDENT,
v.
TIMOTHY K., APPELLANT.

Appeal from an order of the Family Court of Broome County (Charnetsky, J.), entered September 28, 2010, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 8, for an order of protection.

The opinion of the court was delivered by: Rose, J.

MEMORANDUM AND ORDER

Calendar Date: November 21, 2011

Before: Peters, J.P., Rose, McCarthy, Garry and Egan Jr., JJ.

Petitioner (hereinafter the mother) commenced this family offense proceeding alleging that respondent (hereinafter the father) committed the offenses of disorderly conduct, harassment and stalking. After a fact-finding hearing, Family Court credited the mother's testimony and found that the father had engaged in multiple incidents of domestic violence against the mother, some of which had occurred in the presence of Ashley D. (born in 1996) and Katelynn E. (born in 1998), the mother's children from other relationships, and Kylie D. (born in 2010) and Timothy C. (born in 2008), the children of the parties. Family Court then issued a two-year order of protection directing the father to, among other things, stay away from the mother, Ashley and Katelynn, and to refrain from harassing Kylie and Timothy.

The father's sole contention on appeal is that Family Court erred in issuing the order of protection without conducting a dispositional hearing. A dispositional hearing, however, is not always required in Family Ct Act article 8 proceedings (see Family Ct Act § 835; Matter of Hazel P.R. v Paul J.P., 34 AD3d 307, 308 [2006]; Matter of Henderson v Henderson, 9 AD3d 569, 569 [2004]). Here, the father did not request such a hearing, he offers no indication of what prejudice he has suffered or what evidence he would have offered, and no best interests determination was required because the order of protection did not affect the father's visitation with his own children, Kylie and Timothy (see Matter of Hazel P.R. v Paul J.P., 34 AD3d at 308; Matter of Henderson v Henderson, 9 AD3d at 569-570 [2004]; Matter of Annie C. v Marcellus W., 278 AD2d 177, 177-178 [2000]; compare Matter of Crane v Lopez-Arias, 1 AD3d 837, 838-839 [2003]). Thus, Family Court did not err by failing to hold a dispositional hearing.

Peters, J.P., McCarthy, Garry and Egan Jr., JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER: Robert D. Mayberger Clerk of the Court

20120112

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