Legislation was signed into law by Governor Pataki. According to the Governor, it is designed to strengthen Orders of Protection" from a piece of paper providing little comfort or protection, into a tough law enforcement tool that will subject abusers to state prison sentences".

Since penalties for a violation of an Order of Protection can be a felony charge with a possible state prison sentence, it is more important than ever to monitor your own behavior. Although such orders are frequently sought, not for protection, but for leverage in a divorce, custody, or visitation case, it remains a very serious matter.

Family Court, a Court of Limited Jurisdiction, Limited Authority

Family Court is only allowed to hear and decide on issues authorized by the State Legislature. The Family Court Act, section 812, allows the Court to hear the following specific charges or allegations:

• Disorderly conduct
• First degree harassment
• Second degree harassment, menacing and assault
• Third degree harassment, assault and reckless endangerment
• Attempted assault between parents, or between parent and child (except if the respondent would not be criminally responsible because of age)

These listed offenses are defined in the Family Courts in the same manner in which they would be defined in Criminal Court. This means that an act must fall within the meaning of one of the listed offenses above and that a particular state of mind must have existed when the act occurred. For example, to harass someone, you must have done something that is recognized by law as harassment, and you must have furthermore intended to harass, annoy, threaten or alarm the person. If a private investigator follows your spouse under contract with you, the intent, obviously, was to follow her for pay, not harassment. However, if you followed her yourself, lack of intent would be very difficult to prove.

Note: An Article 8 petition seeking an Order of Protection can only be brought against members of the same family or household. This includes persons related by blood or marriage, persons formerly married to one another, and persons who have a child in common regardless of whether they have been married or have lived together at any time. An Article 8 Order of Protection cannot be obtained against an unwed father of a child not yet born. But it can be obtained against a father of an unborn child if he is married to the mother.

Where Family Court Does Not Have Jurisdiction

• Charges of telephone harassment. Despite its lack of jurisdiction in this area, the Court usually does hear such cases and acts upon them. Telephone harassment is an offense for which a criminal order of protection may be sought and issued. Did you intend, with these phone calls, to harass, annoy, threaten or alarm the spouse, or were you merely trying to fulfill your telephone visitation rights? Your defense here is not to deny the number of calls made "clearly they were made" but to show the difficulty of exercising your telephone visitation rights. However, don't be surprised if the judge says that no reasonable person would call someone's home, say ten times in one hour, unless the intention was harassment.

If, instead of phoning, you go to the house and ring the doorbell ten times in two hours, the custodial parent may seek an Order of Protection based on that behavior.

• Sex Abuse or Child Neglect: Sometimes the Court will issue an Order of Protection based on charges of sex abuse or child neglect. It is up to you and your lawyer to remind the Court that they do not have jurisdiction to hear such allegations.
• Petty complaints such as smoking near your child, or even your failure to help spouse on immigration status, cannot be used to gain an Order of Protection.

Conclusion

Allegations in an Article 8 petition need only the preponderance of evidence for proof. A 51% probability of proof is sufficient. The allegations must be based on fact not simply allegations. Therefore, take precautions.

• Should the holder of such an order invite you to his or her home, don't go! Be wary and avoid that person if at all possible.
• Should you need to call that person and an answering machine responds, leave a short, calm message with the reason for your call. You don't want hangups registered on a caller ID box.
• If you need to see that person for pick up or drop off of the children, do it in a public place or curbside. If possible, have someone else present.

With the new law, it is in the Court's discretion whether to charge the defendant with a misdemeanor or a felony where the penalty can be imprisonment. Most often they still prefer to treat these cases as misdemeanors just as they were before the new legislation. Of course, if the defendant has a record of violence or previous arrests, he or she is more likely to face a felony charge. But there is really no way to tell in advance. It would be foolish to take chances.