Family offenses are statutorily enumerated in both the penal law and the Family Court Act, and can be prosecuted either civilly in the family court, or criminally in the criminal court, or both. The offenses listed in each statute are the same: disorderly conduct; harassment in the 1st and 2nd degrees; aggravated harassment in the 2nd degree; aggravated assault; menacing in the 1st and 2nd degrees; assault in the 2nd and 3rd degrees; reckless endangerment; and attempted assault. All of the family offenses are defined within the penal laws. If the Family Offense petition does not allege one of the enumerated offenses as defined in the Penal Law, it must be dismissed.
Depending upon whether one proceeds civilly or criminally, the evidentiary standards and level of proof are different. However, the remedies available for the family court and the criminal courts, which include jail, are very similar, but when proceeding civilly, the remedies financial support, custody, and visitation are also available. Further, according to the statutes, full discovery is not allowed in a family offense proceeding in either family or criminal court. Proceeding in the criminal court may be more favorable for the accused than if the proceeding is brought in family court due to the complainant’s higher burden of proof. A family offense proceeding can be commenced in both family court and criminal court because one provides for criminal remedies and the other provides civil remedies for the same act or acts, and thus, there is no constitutional prohibition.
The requisites to establish standing or order to bring a family offense proceeding are very narrow and limited. First, the petitioner and the respondent must be part of the “same family or household,” or the petition must be dismissed. Second, the petitioner and respondent must be related by affinity or consanguinity, or be legally married to one another, or formerly married to one another, or have a child in common.
