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B.T. v. D.M.

Family Court, Kings County

February 10, 2017

B.T., Petitioner,
v.
D.M., Respondent. D.M., Petitioner, B.T., Respondent.

          Honorable Judith Waksberg Judge

         PURSUANT 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.

         On 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 violation petition.

         Also in 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 M. had previously filed for visitation in 2013, but that petition was withdrawn.)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 petition.

         The 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.

         For the 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. [1] 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.

          Evidence [2]

          B.T.'s Testimony

         Ms. T. 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.

         Ms. T. 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 violence.

         After 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.

         In 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.

         Ms. T. 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.

         Ms. T. 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.

         In 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 ...


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