Honorable Judith Waksberg Judge
TO SECTION 1113 OF THE FAMILY COURT ACT AN APPEAL FROM THIS
ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY
APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE
ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER
SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON
APPELLANT, WHICHEVER IS EARLIEST.
December 5, 2013, the petitioner B.T. filed a petition for a
finding that her husband, respondent D. M. had violated an
order of protection. That order of protection was entered on
consent for two years on June 7, 2012. The violation petition
alleged that D. M. had violated the order of protection by
having his son C. F. repeatedly call Ms. T., having Mr. F.
show up at Ms. T.'s home and knock and kick at her door
while becoming verbally abusive to her. On June 3, 2014, Ms.
T.'s counsel filed an order to show cause why the final
order of protection granted to Ms. T. in 2012 should not be
extended for another period of two years for good cause. Ms.
T.'s affidavit, which was annexed to the order to show
cause, alleged that Mr. M. had repeatedly telephoned Ms. T.
and that she had seen him around her home. She also referred
to the incidents involving C. F. which were alleged in her
June 2014, Mr. M. filed a petition for visitation with his
child. An order dated June 7, 2012, issued on consent,
granted Ms. T. custody of the child that she and Mr. M. have
in common. Mr. M.'s June 30, 2014, petition noted that
the order of protection granted in 2012 which required him to
stay away from Ms. T. and the child was to expire on June 6,
2014. (Mr. M. had previously filed for visitation in 2013,
but that petition was withdrawn.) At the time of the filing
of Mr. M.'s visitation petition in 2014, his son was
twelve years old. Forensics were ordered and hearings were
held on Ms. T''s violation petition and her motion to
extend the order of protection and on Mr. M.'s visitation
attorney for the child did not present any evidence at the
hearings, however, she supported the mother's request
that the order of protection be extended on behalf of the
child and she also opposed the father's request for an
order of visitation with the child.
reasons stated below, Ms. T's petition for a violation of
the order of protection is denied and the petition is
dismissed. However, her application for an extension of the
final order of protection that was entered in 2012 is
granted.  Mr. M.'s request for visitation is
denied as he did not prove that such visitation would be in
the best interests of the child.
testified that she and Mr. M. began living together in 2001.
She gave birth to the child in 2002 and she and Mr. M. were
married in 2004. They were still married at the time of the
hearing. Ms. T. has another child, a daughter, who was 23
years old at the time of her testimony.
testified that she and Mr. M. separated in 2007 because of
his abuse of her. She said that he would scream and yell at
her and hit her. He would call her "stupid" and a
"bitch." She said the verbal abuse started after
she gave birth to their son and it continued every day. While
they were living together, she said that Mr. M. would hit her
"every other day, " that he would push her until
she fell on the floor, and that he would put her out of the
car and make her walk home. She said that their son was
present when the father acted this way and that the child
would "scream and cry" while observing the domestic
the parents separated in 2007, Ms. T. stated that Mr. M.
would show up unannounced at her home about three times a
week, screaming, yelling, and banging on her door. She said
the child would cry in response to this behavior. Ms. T.
described an incident on Easter in 2011 when Mr. M. hit her
in her face with a closed fist. This incident occurred on the
street and the child was present.She said that the child
started screaming and crying when his mother was hit. Ms. T.
called the police after she was hit and Mr. M. was arrested.
Ms. T. testified that after his arrest, Mr. M. kept calling
her and threatening her not to pursue the charges because he
would lose his job and that if she did not drop the charges,
he would hurt her. She said that Mr. M. physically brought
her to the District Attorney's office and waited outside
in his car while she went in and told the District Attorney
that she wanted to drop the charges.
early 2012, when the child was nine years old, Ms. T.
recounted that she and Mr. M. got into an argument outside
the child's school cafeteria and Mr. M. started grabbing
the child to take him away from Ms. T. The child was scared,
and began screaming. Ms. T. took the child back to her
apartment. Mr. M. then came to her apartment and when she
opened the door, he grabbed her by the neck and started
choking her. She said that she could not breathe, and that
Mr. M. continued to hit her. She said that the child was
there and was watching as his father choked and hit his
mother. Eventually, Mr. M. let go of her and left. She said
that the child was hiding in the apartment and he was shaking
and crying. Ms. T. stated that she observed a change in the
child's behavior after this incident: he seemed scared
and frightened and he would cry and exhibit a sad face. In
2012, Ms. T. filed a petition for an order of protection.
testified that after the final order of protection was
granted, she would nevertheless observe Mr. M. parked in his
car outside her home. She said that in 2014, she saw him
watching her home from his car once a week or every other
day. She said that once, when she and the child were coming
home from school, they both saw Mr. M. parked in his car and
she and the child started running home. On cross-examination,
Ms. T. said that the last time she saw Mr. M. driving around
where she lives was about two months before her testimony.
also testified that Mr. M. would call her from a blocked
number. She said that she knew it was Mr. M. because she
recognized his voice. He would call her a "bitch"
and say that he was going to pick up the child. Ms. T. would
respond that she had an order of protection and told him to
leave her alone. She said that in 2013, Mr. M. was calling
her twice a week.
October 2013, Mr. Malloy's adult child, C. F., came to
Ms. T.'s home. Ms. T. said that he was knocking and
banging on the door, asking to see the child. She said that
prior to ...