JUDGE DICKERSON'S FAMILY LAW DECISIONS
2000 - 2001JUDGE THOMAS A. DICKERSON
WESTCHESTER COUNTY COURT
NEW YORK STATE
E MAIL: email@example.com
Judge Thomas A. Dickerson is a Member of the New York State Bar Association and Chairman of the Class Action Committee of the Torts, Insurance & Compensation Law Section; Member of The Association of Trial Lawyers of America; Member of the Westchester County Bar Association; Member of the Westchester Womens Bar Association; Member of the Consumer Affairs Committee, 1986-1989, 1997-2000, 2001-2004, Aeronautics Committee, 1994-1997 and Hotels & Tourism Committee 2001-2004 of The Association of the Bar of the City of New York; Member of Board of Directors of The International Forum of Travel & Tourism Advocates, Member of the Editorial Boards of Class Action Reports and The International Travel Law Journal; Education, B.A., Colgate University, 1969; M.B.A., Johnson Graduate School of Management, Cornell University, 1973; J.D., Cornell Law School, Cornell University, 1973; Military: U.S. Army Special Forces, Green Berets, Paratrooper, Service in Vietnam, 1965-1966, Presently a Captain in the New York Guard.
BOOKS, PAPERS AND ARTICLES
Judge Dickerson is the author of Travel Law, Law Journal Press, New York, 1981-2001, updated biannually, Web Site at http://members.aol.com/judgetad/index.html, Class Actions: The Law of 50 States, Law Journal Press, New York, 1988-2001, updated annually, Web Site at http://members.aol.com/class50/index.html and nearly 200 articles and papers on Consumer Law issues, many of which are available at http://www.classactionlitigation.com/library/ca_articles.html .
EXPERIENCE AS A JUDGE
Thomas A. Dickerson served six years, 1994-1999, as a City Court Judge in Yonkers, New York and was then elected to the Westchester County Court for a ten-year term, 2000-2009.Judge Dickerson was selected to serve on the Westchester County Family Court for the years 2000-2001.
EXPERIENCE AS AN ATTORNEY
Thomas A. Dickerson practiced law in New York City from 1975 to 1993 at which time he became a Judge.During his years as a practicing attorney he specialized in litigation, travel law, class actions and consumer law.He was admitted to practice in New York State, First Department, 1975, and before several Federal Courts including the U.S. Supreme Court, 1983; U.S. Court of Appeals, Second Circuit, 1982; Southern District of New York, 1975; Eastern District of New York, 1992.
RECENT LECTURES AND PRESENTATIONS
Submitted A Paper, Consumer Law 2001 Updated , At The 2001 New York State Judicial Seminar, July 2001, Rye Brook, New York.
Made A Presentation At Consumer Law 2001, A Forum For Small Claims Court Arbitrators, New York City Civil Court, May 16, 2001.Topic & Paper: The Consumer's Guide To Small Claims Court And How To Use Federal And New York State Consumer Protection Statutes.
Submitted A Paper, Consumer Law 2001 Updated, At The 2000 New York State Judicial Seminar, July 2000, Rye Brook, New York.
Made A Presentation At Consumer Law 2000, A Forum For Small Claims Court Aribtrators, New York City Civil Court, March 22, 2000.Topic & Paper: Current Developments In The Use of New York State General Business Law 349.
JUDGE DICKERSON'S FAMILY LAW ARTICLES
Dickerson, Threatening Telephone Calls and Aggravated Harassment in the Second Degree, The Need for Legislation, Women's Bar News, Vol. 11, No. 2, February 2001, available at http://www.classactionlitigation.com/library/ca_articles.html.
Dickerson, Harassing & Threatening Telephone Calls: The Need For Legislation To Meet The Needs Of The Victims Of Domestic Violence, Westchester County Bar Association Newsletter, Vol. 25, Issue 1, February 2001.
BIBLIOGRAPHIES OF PUBLISHED ARTICLES & DECISIONS
Bibliographies of Judge Dickerson's nearly 200 published articles are available at http://www.classactionlitigation.com/library/ca_articles.html.
While on the Yonkers City Court, Judge Dickerson published 63 decisions in the New York Law Journal.Many of these consumer law decisions are at http://members.aol.com/judgetad/index.html.
NEW YORK STATE FAMILY COURTS
For an excellent discussion of New York State Family Courts see The Family Court & You, An Informational Guide To Family Court ["the Guide"] prepared by the New York State Bar Association's Committee On Women In The Law and Committee On Children And The Law and other organizations. The following material, which appears between *, has been selected from the Guide.
New York State Family Courts seek to resolve most disputes affecting families and children. New York State Supreme Courts have concurrent jurisdiction over such matters and are the only courts empowered to "grant a divorce, separation and annulment of a marriage." The types of cases that come before the Family Court include:
A] Family Offenses/Domestic Violence
According to Family Court Act 812(1), a Family Offense includes acts which would constitute disorderly conduct, harassment, aggravated harassment, stalking, menacing, reckless endangerment and assault between spouses or former spouses or between parent and child or between members of the same household.
Selections From The Family Law Guide
* A family offense petition is filed by someone who claims that a family member hurt or threatened him or her or another member of the family or household. Family members include persons related by blood or marriage, formerly married persons, and unrelated persons who have a child in common. Family offense cases may go forward in a Family Court and/or they may be prosecuted in a Criminal Court. Parties to family offense matters can have cases in a Criminal Court and a Family Court at the same time.
* The purpose of a family offense proceeding in Family Court is to stop the violence, end the family disruption and obtain protection. The victim who goes to Family Court to start the action is the petitioner. The alleged abuser is the respondent.
* The petitioner has the right to an immediate appearance before the court on the day the petition is filed or on the next day the court is in session. The judge will ask the petitioner questions about the petition and if the judge finds 'good cause,' a temporary order of protection will be issued. A temporary order of protection does not mean that the judge made a finding of wrongdoing. At the same time that the temporary order of protection is issued, the judge may also issue a temporary order of child support. Temporary orders may be changed after the other party appears in court or after a trial takes place...
B] Scope Of Orders Of Protection
* A temporary or final order of protection may provide for any of the following.
* 1] Require the respondent to move out of the home shared with the petitioner, stay away from the petitioner and his/her home, school and place of employment, and have no contact by telephone or other means with the petitioner and his or her family;
* 2] Require the respondent to refrain from committing family offenses;
* 3] Require a party to pay medical expenses;
* 4] Order temporary custody of any children;
* 5] Permit a parent to visit with a child at stated times;
* 6] Permit one party to enter the home accompanied by a police officer during a specific time to remove personal belongings;
* 7] Require the respondent to turn in weapons, and/or suspend or revoke a gun license;
* 8] Require the respondent to participate in a batterer's education program, designed to help end violent behavior, which may include referral to an alcohol and/or substance abuse evaluation, treatment and counseling; and/or
* 9] Require a party to pay restitution up to $10,000 for damages caused to the victim; and
* 10] Order a period of probation for the respondent.
* Orders of protection are typically issued for one year. The terms of a protective order can only be changed by a judge. A judge may issue an order of protection for up to three years if there are aggravating circumstances (which) include physical injury; use of a weapon; repeated violations of orders of protection; prior criminal convictions for acts against the petitioner; and the exposure of children or other family members to harm... "
* A paternity petition seeks a decision as to whether a man is the father of the child of a woman to whom that man is not married, an out-of-wedlock child. An order of paternity or order of filiation declares that a man is the father of an out-of-wedlock child.
* A paternity petition may be brought by a mother, a person claiming to be a father, a child, a child's next of kin, or the county social services agency... "
* If paternity is established, the judge will issue an order of filiation declaring that the man is the father of the child. This order gives the man parental rights as well as responsibilities. The parties may now seek orders of custody and/or visitation and child support... "
D] Custody & Visitation
* A court order of custody gives an adult the legal responsibility for caring for a child. If the parties are in agreement about custody, the judge will review the agreement and, in most cases, issue an order of custody without a hearing. If the parties do not agree, then the court will schedule a hearing to determine what custody arrangement is in the best interests of the child. In order to assist the Judge in making that determination, the judge may order psychiatric and/or psychological evaluations of the parties and of the child, and may order an investigation by probation or some other agency. The judge may also appoint a lawyer (called a law guardian) to represent the child. In cases in which it has been proven that a person has committed an act(s) of domestic violence, the court must consider this proof in reaching a custody/visitation decision.
* A court order of visitation gives an adult (such as a parent, grandparent or sibling) who does not have custody of a child the right to visit with that child if it is determined that the visitation is in the best interest of the child. If the custodial parent (the parent with whom the child resides) does not consent to visitation, there will be a hearing to assist the judge in determining if visitation is in the best interests of the child. If it is, the judge will set a visitation schedule. An order of "supervised visitation" means that all visits will take place in the presence of another adult, the court‑appointed supervisor...
* A non‑parent who does not have custody of a minor child may bring a petition for guardianship to obtain legal authority over the child. The probation department may assist the judge in interviewing and investigating the person seeking to become a guardian. A non‑parent may also ask the judge to be appointed as a standby guardian of a child whose natural parent suffers from a progressively chronic or fatal illness. An appointment of guardianship expires when the child reaches the age of 18. The decision whether to grant a guardianship petition is based on the best interests of the child.
* A support petition can be brought by a parent, spouse or certain other relatives to have the court decide who is legally responsible for the support of a child, spouse or relative, and how much support should be paid. A support petition can also be brought by the county social services agency or the Administration for Children's Services in New York City.
* Parents have the legal responsibility to support a child until the child reaches the age of 1 unless the child is married, self‑supporting, in the military or, in certain circumstances, leaves home and refuses to obey parents' reasonable rules.
* A custodial parent (the parent with whom the child resides) may have the right to receive child support from the child's non‑custodial parent and may file a support petition in Family Court asking that the court order the non‑custodial parent to pay child support. However, if a child receives public assistance benefits, the social services agency or the Administration for Children's Services in New York City may file a petition against the non‑custodial parent asking that the court enter an order of support payable to the agency during the time the family receives the public assistance. If the parents are not married, paternity must be established before a child support order is issued (see Paternity).
* Married persons may have a legal responsibility to support their spouse if the spouse cannot support himself or herself. One spouse may file a petition for spousal support in Family Court. The judge will consider the income and circumstances of both spouses and may require one spouse to pay a reasonable amount to the other spouse.
* If a person ordered to pay support fails to obey the court order, a violation petition may be filed by the person who is supposed to receive the support or by the Support Collection Unit of the social services agency or the Administration for Children's Services in New York City. In such cases, the respondent has the right to a hearing.
* If the judge finds that the respondent willfully violated the court order, the judge may sentence the respondent to a maximum sentence of six (6) months in jail. A person who fails to pay child support may also be subject to the suspension of his or her state issued license. The license suspension option applies to drivers, professional, occupational, business, recreational or sporting licenses. In addition, the State Department of Temporary and Disability Assistance can take a lien on personal property (i.e. car). Individuals found to be in violation may also be charged with criminal penalties for non‑support.
* A person who pays or receives support based upon a Family Court order has the right to petition the court to increase or decrease the amount of the payments. The petition must describe the change in circumstances which have occurred since the last order, such as a raise in earnings; an increase in need; a loss of employment; or a decrease in earnings. The court will change the terms of the order if it finds that there has been a sufficient change in circumstances...
G] Child Protective Proceedings
* Child abuse and neglect petitions charge that the parent or guardian of a child has harmed or failed to protect, properly care for, or provide needed medical care or schooling for the child. It may be claimed that the child has been physically, sexually or emotionally abused by the parent or guardian. In these cases, the court must assign a law guardian for the child. A law guardian is an independent attorney who represents the interests of the child.
* Sometimes a child is taken away from his or her home before a child abuse or neglect petition is filed in the Family Court and before a judge hears the case. This may occur if a child appears to be in very serious danger while with a parent or guardian and there is not enough time to get a court order. If so, the police or officials from a child protective agency may take the child from the parental home before going through the court. This is called emergency removal. In addition, a hospital may refuse to release a child to a parent if it believes such a release would place the child in danger.
* If a child is removed on an emergency basis, the parents must be notified immediately of their right to come to court and request a hearing. If a hearing is requested, the child protective agency must come to court within a very short period of time generally, within three days to defend the removal. The court must then decide if the child would be in danger if returned to the parents.
* Sometimes a child is removed from a home with the permission of the parent or guardian. However, whether or not the removal of the child was with the parent's consent, the parent should consult a lawyer. If the parent cannot afford a lawyer, he or she should inform the judge, and in this instance a lawyer must be appointed.
* Allegations of abuse and/or neglect must be proved at a fact‑finding hearing. If the case is not proved, the child must be returned to the parent or guardian. If the court finds that there has been abuse or neglect, the court will then hold a dispositional hearing to determine what should happen to the child. At this hearing, the court will consider the seriousness of the abuse or neglect, the potential danger to the child and the child's best interests. If the court determines that the child should be removed from the home, the court may place the child in foster care with a non‑relative foster family, with a kinship (relative) foster family or with a child care facility for a period of up to one year. The court may also order the child to remain with or be released to the parent/guardian under the supervision of the child protective agency.
* At the end of the period of placement ordered by the court, the child may be returned to the parent or guardian. However, the child protective agency may file a petition to extend the child's stay in foster care. This is called an extension of placement petition. The child protective agency must explain why it feels the child should not be returned to the parent/guardian at that time and must present a plan for the permanent care of the child. The plan may include a later return of the child to the parent or guardian or the filing of a petition to terminate the rights of the parents and approve the release of the child for adoption. The court must review the plan for the child every year, and may continue the child in placement until the child reaches 18.
H] Voluntary Placement Reviews & Foster Care Reviews
* Sometimes a parent or guardian is unable to care for a child and voluntarily gives temporary custody of the child to a social services agency. The law requires that if a child has been voluntarily placed in foster care for more than 30 days, the social services agency must file a petition requesting that the court approve the child's placement and a long term plan for the child proposed by the agency. The court must hold a hearing and the parent must be given notice of this hearing. The parents or guardian, a social worker, and a member of the agency involved should be at the hearing. The parents or guardian must have a lawyer appointed for them if they cannot afford to hire one. After the hearing, the judge will decide if the placement is voluntary and necessary.
* If a child is in foster care for 18 continuous months or longer, a petition for foster care review will be filed with the Family Court. The Court will then decide what to do with the child who is in foster care. This review could result in a parent losing the right to custody of his or her child, or it could result in a child being returned to his or her parent(s). If a child remains in foster care, there must be another hearing in one year. The parent has a right to a lawyer at a foster care review hearing.
I] Termination of Parental Rights
* Parents of children in foster care, either voluntarily or by court order, who fail to maintain contact with or plan for the future of the child may be subject to a petition to terminate parental rights, also known as a permanent neglect petition. This petition is brought to permanently end the rights of the natural parents and to make the child available (free the child) for adoption. Petitions to terminate parental rights are usually brought by an authorized agency which has responsibility for a child in foster care, although a foster parent can also file a petition to terminate parental rights. The child is assigned an independent attorney called a law guardian. A lawyer may also be assigned to the parent if he or she cannot afford one.
* Proceedings to terminate parental rights may also be brought on grounds of abandonment by the parents, the parents' mental illness or mental retardation, or the parents' severe and repeated abuse of the child.
* In an adoption proceeding, the petitioner seeks to have the court give permanent legal rights and responsibilities to people, other than the child's birth parents. Adoptions are handled by the Family Court, as well as another court called the Surrogate's Court.
* There are two types of adoptions: "private placement" and "agency" adoptions. Although the procedures may be slightly different, the effect of both kinds of adoptions is the same.
* Private placement adoptions are conducted when individuals seek to adopt without the aid of a child care or adoption agency. Persons who wish to adopt a child, under these circumstances (adoptive parents) must be "pre‑certified" (approved) to have temporary custody of the child while the court decides if they can adopt the child.
* Agency adoptions refer to cases where a child is already in the custody of an agency and the rights of the birth parents already have been legally terminated. These adoptions are handled through the foster care agency, which investigates the home of adoptive parents, and prepares and files the necessary papers and reports with the court. In some cases, the court may order other agencies, such as probation, to investigate the home of the adoptive parents.
* When an adoption is approved, the adoptive parents are considered the child's legal parents. If the child is over the age of 14, the child must consent to the adoption.
K] Juvenile Delinquency
* A juvenile delinquent is a child at least seven (7) years of age and under the age of 16 who commits an act that would be a crime if it were done by an adult. In Family Court, the accused child is called a "respondent" and the victim is called a "complainant." The county attorney or corporation counsel (in New York City) is the petitioner and presents the case. In some counties, the Assistant District Attorney will present the case against the juvenile.
* A 13, 14 or 15 year‑old who commits certain serious, violent acts may be treated as an adult in a Criminal Court and is called a "juvenile offender." The Criminal Court may send the case back to Family Court. The most serious cases in Family Court are called designated felonies.
* When a child is arrested, he or she may be brought directly to Family Court, may be held overnight or may be released to a parent and told to come to court on a particular day. Probation intake workers interview the person who made the complaint, the police officer and the accused child. In certain juvenile delinquency cases that do not involve serious violent actions, the probation workers decide if the matter can be adjusted (settled) without going through the court. No one can be forced to talk to the probation worker at this time. However, what is said in the interview will not be disclosed unless and until there is a finding of delinquency by the court. The probation workers may also refer the parties in the case to other services or agencies, including mental health or specialized counseling.
* If a case is not adjusted, the county attorney, corporation counsel, police department or probation department will prepare and file a juvenile delinquency petition. If the charges are very serious, the Assistant District Attorney may prepare and file the petition.
* If the case is heard in Family Court, a date and a time will be set for a first (intake) hearing. The child must have a lawyer or a law guardian approved by the court to represent him or her. Also, if the parent/guardian cannot afford to hire a lawyer for themselves, the court will appoint one.
* At the first hearing, the court will decide if the child can go home with the parent or if the child will be detained (held) until the trial or fact‑finding hearing. The probation officer recommends to the court either that the child be sent home or be temporarily detained in a secure or non‑secure facility. The child can be held if the court decides that he or she is unlikely to return to court or might commit a crime before the hearing date.
* If the child is detained, a hearing must be held to determine if there is probable cause to hold the child. The case may then proceed to trial (fact finding) and, if the charges are proven beyond a reasonable doubt, to a dispositional hearing. At the dispositional hearing the judge may make a variety of orders including an order that the child remain at home under the supervision of a probation officer or that he or she be placed away from the home. The judge may also order the child to pay restitution for any damages.
* Even if the judge decides that the child is a juvenile delinquent, the finding is not the same as a criminal conviction and there is no criminal record against the child. However, the most serious charges, known as designated felonies, do become part of the juvenile's criminal record."
L] Persons in Need of Supervision (PINS)
* A person in need of supervision (PINS) is a person under the age of 16 [ 18 effective November 2001 ] who does any or all of the following:
a. Fails to attend school;
b. behaves in a way that is out of control;
c. often disobeys parents, guardians, or other authorities;
d. is in possession of marijuana;
e. runs away or stays out late.
* Before a PINS petition is filed in court, the child and his/her family must meet with a probation officer or a representative of another social service agency, who attempts to resolve the problems and keep the case out of court. This process (called "diversion") can last for up to 90 days. If "diversion" fails, a PINS petition may be filed to ask the court to order treatment or supervision of the child.
* A PINS petition may be filed by a parent/guardian, school district or social service agency with whom or with which a child is placed. If a petition is filed, the child is entitled to an attorney (law guardian) appointed by the court. The court also may assign a lawyer to represent the complaining party if he or she cannot afford one. If a child has run away, the court may issue a warrant for his/her arrest. If the court finds that a child should not be released to a parent or guardian, the child might be sent to a relative or to a non‑secure facility.
* A trial or fact‑finding hearing is then held to determine if the statements in the petition are true. If the court finds that the statements in the petition are true, a dispositional hearing is held to determine if the child needs supervision or treatment. If a child is placed by the court in foster care, the Department of Social Services may file a petition for child support against the parent as a result of a PINS proceeding.
ADDITIONAL FAMILY LAW WEB SITES
Additional Family Law web sites include
1] The New York State Family Court home page at http://www.courts.state.ny.us/fcindex.htm;
2] Introductory Guide To The NYC Family Court at http://www.courts.state.ny.us/famhome.htm;
3] Family Court Information at http://www.courts.state.ny.us/kiosk/kiosk.htm.
MY SISTER'S PLACE
My Sister's Place, Ending Violence and Abuse in the Family, has provided shelter and support to battered women and their children from Westchester County and environs since 1978. According to an information sheet dated June 2000 My Sister's Place has "answered more than 19,772 hotline calls, sheltered more than 1,732 women and 2,263 children, and turned away more than 7,914 women due to a lack of space." My Sister's Place provides domestic violence education and prevention programs to students in middle and high schools, community adult education programs to adults, community-based support groups, life skills programs and legal services for battered women. My Sister's Place 24 hour hotline is 800-298-SAFE. My Sister's Place web site is http://www.mysistersplacedc.org/
THE COALITION FOR FAMILY JUSTICE, INC.
The Coalition For Family Justice, Inc. ["the Coalition"] was founded in 1988 and seeks to help lawyers, judges and legislators become more responsive to the reality of the needs of women, children and all family members entangled in divorce, separation, domestic violence, child support and custody, sexual abuse and other domestic problems. Monthly group support meetings, a helpline, court monitoring and trial escorting, as well as professional legal advice given by volunteer lawyers are the core services provided by the Coalition. The Coalition addresses problems of women, men and children from all ethnic and socio-economic backgrounds who live in the New York metropolitan area, Connecticut and New Jersey. Ms. Monica Getz is the founder of the Coalition. Persons in need of the Coalition's services may visit the web site at http://www.ncfj.org or call at 914-591-5753 or fax to 914-591-5998.
JUDGE DICKERSON'S FAMILY LAW DECISIONS
PRINCIPAL LAW CLERK: BRENDA V. MECHMANN
During the period 2000-2001 Judge Dickerson served as a Westchester County Acting Family Court Judge in Yonkers, New York. During that period he published 9 decisions in the New York Law Journal. These decisions are categorized by concept and subject matter below.
FAMILY COURTS SHOULD BE "USER FRIENDLY"
In B.L. v. M.L., New York Law Journal, June 23, 2000, p. 33, col. 5, West. Family Court, the Petitioner filed a family offense petition claiming that respondent, her ex-husband, committed second-degree assault and first-degree harassment. Respondent moved to dismiss the petition for failure to state a cause of action. Reviewing the alleged conduct of respondent, the court agreed that neither cause of action was sustainable. However, the court sought to encourage a "user friendly" Family Court.
"Family Court is a civil court and much like Small Claims Court, persons in need of our services are assisted by the staff of the Clerk of the Court or the Probation Department in preparing their Family Offense Petitions. It is the policy of Family Court to encourage persons subjected to abuse within "the family milieu" to come to court, file a Family Offense Petition and obtain a Temporary Order of Protection, if needed. The typical consumer of Family Court services is frightened, humiliated and, possibly, intimidated by the Court itself. To expect such a person to carefully and calmly set forth the elements of each and every Family Offense to which he or she has been subjected is unfair, unreasonable and counterproductive..."
Judge Dickerson held that the pleadings must be liberally construed and that the standard was whether the allegations sustained any recognized family offense. Petitioner alleged that respondent repeatedly made anonymous phone calls to her home and office and had sent a copy of the divorce papers to a friend. The court found that these allegations supported causes of action for aggravated harassment in the second degree and harassment in the second degree.
THREATENING TELEPHONE CALL
Abusers may use the telephone or other forms of electronic communication to harass and threaten the recipient of the phone call. Telephone threats may lead to serious physical injury or death. As noted by Judge Dickerson in A.M. v. M.I., New York Law Journal, December 28, 2000, p. 28, col. 4, West. Family Court,
"There is a positive correlation between the threat of physical violence and making that threat a reality, particularly, within the context of domestic violence. See Klein & Orloff, Symposium On Domestic Violence: Providing Legal Protection For Battered Women: An Analysis Of State Statutes And Case Law, 21 Hofstra L. Rev. 801, 857-864, Summer 1993..' Threats are acts of
domestic violence because they seek to intimidate and control the victim. Social science research reveals that threats and harassment, left unchecked, frequently escalate to greater violence...Many battered women's lives are threatened. Of all women killed by their abusers, 41 percent to 50 percent previously had been threatened with death...'
The recipients of threatening phone calls should not hesitate to file a Family Offense Petition alleging Aggravated Harassment in the Second Degree and seek a Temporary Order of Protection. Judge Dickerson addressed the sufficiency of Family Offense Petitions involving threatening phone calls in P.I. v.C.D., New York Law Journal, November 22, 2000, p. 32, col. 2, West. Family Court (petition dismissed) and in A.M. v. M.I., supra (petition sustained after trial).
Judge Dickerson discussed these two cases in his article, Threatening Telephone Calls and Aggravated Harassment in the Second Degree: The Need for Legislation, Women's Bar News, Vol. 11, No. 2, February 2001.
A Tale Of Two Threats
In two cases, P.I. v. C.D. and A.M. v. M.I., recently before me, I became aware of the need to expand the scope of the Family Offense, [FCA § 812(1)] of Aggravated Harassment in the Second Degree [ PL § 240.30(1) ], particularly within the context of domestic violence, to provide protection for the recipients of threatening telephone calls. In both cases women were the recipients of death threats, delivered over the telephone, from men. In P.I. the woman initiated the telephone call while in A.M. the man "paged" the woman who then initiated the telephone call. In P.I. I dismissed the Family Offense of PL § 240.30(1) on a motion to dismiss while I sustained the same Family Offense after trial in A.M. The rationale for these two decisions explains why it is necessary for legislation to broaden the scope of PL § 240.30(1).
Malicious Telephone Calls
The victims of domestic violence are often threatened by their abusers with physical harm or death during a telephone conversation. Penal Law § 240.30(1) [Aggravated Harassment In The Second Degree] makes it a misdemeanor to communicate or cause a communication to be initiated by mechanical or other electronic means in a manner likely to cause annoyance or alarm to the recipient of the phone call. PL § 240.30(1) and its predecessor PL §§ 551 and 555 were enacted to protect the recipients of "malicious" telephone calls.
The Initiating Phone Call
Several recent decisions [P.I. v. C.D., supra; People v. Monroe, 183 Misc. 2d 374 (2000); People v. Amalfi, 141 Misc. 2d 940 (1988); People v. Rusciano, 171 Misc. 2d 908 (1987)] interpreting PL § 240.30(1) have reviewed the statute's legislative history and concluded that a necessary requirement is that the defendant must "initiate" the threatening telephone call. At least, one court [People v. McDermott, 160 Misc. 2d 769 (1994)] has disagreed with this view finding that "a person need not initiate a telephone call in order to violate (PL § 240.30(1))"
The Precipitating Event
Some Courts [A.M. v. M.I., supra; People v. Diralmondo, 174 Misc. 2d 937 (1997); People v. Monroe, supra; People v. McDermott, supra] have recognized an exception to the initiation rule, i.e., "where a defendant intentionally precipitates telephone contact from the complainant in order to use the instrumentality of the phone for the purpose of communicating threats or abuse" [People v. Monroe, supra]. Precipitating events would include placing a help wanted ad in a local newspaper which induces the victim to call the abuser [People v. McDermott], posting signs at a train station which induce strangers to call and harass the victim [People v. Diralmondo] and "paging" the victim who responds by phoning the abuser who then threatens the victim [A.M. v. M.I.].
The Paradox Of The Initiation Rule
Notwithstanding support for the requirement that the abuser initiate the phone call or otherwise induce the victim to make the call first, such an analysis creates a paradox which may be inexplicable to the victims of domestic violence ['Call me on the phone and, if I threaten to kill you, there's not much you or the law can do about (it) because, well, you called me' [Editorial, Calling for new language, The Journal News, Dec. 1, 2000, p. 10B]
The Need For Legislation
Because of the strong correlation between threats of physical violence and making that threat a reality, particularly, within the context of domestic violence [" Threats are acts of domestic violence because they seek to intimidate and control the (victim). Social science research reveals that threats and harassment, left unchecked, frequently escalate to greater violence...Many battered women's lives are threatened. Of all women killed by their abusers, 41% to 50% previously had been threatened with death " [Klein v. Orloff, supra], there is a need, within the context of a Family Offense [FCA § 812(1)], to modify PL § 240.30(1) to make it, unambiguously, applicable to respondents who harass and threaten their victims regardless of whether they initiate or precipitate the telephone call."
For further discussion of these two cases see Riccardi, Judge Modifies Views on Telephone Harassment, New York Law Journal, December 26, 2000, p. 1.
On April 5, 2001 both houses of the New York State Legislature passed a bill amending the penal law in relation to the crime of aggravated harassment in the second degree to provide coverage for those persons who initiate a phone call and are then threatened.
JURISDICTION: FEDERAL PARENTAL KIDNAPING PREVENTION ACT
In D.S. v. C.S., New York Law Journal, April 20, 2000, p. 34, col. 2, West. Family Court, the petitioner mother, having moved from Virginia two months ago, sought sole custody of the parties' two children. The father challenged the Family Court's jurisdiction, claiming that the custody petition should be brought in Virginia since Virginia was the "home state". Judge Dickerson held that although Virginia was the home state, the federal Parental Kidnapping Prevention Act pre-empted state law considerations by requiring that one of the contestants reside in Virginia at the time of the filing. Jurisdiction in New York was upheld since neither mother nor father resided in Virginia and the "location of substantial evidence" and "significant contacts" supported accepting jurisdiction for the best interests of the children.
JURISDICTION: UNIFORM CHILD CUSTODY JURISDICTION ACT
In F.H. v. M.L., New York Law Journal, September 14, 2000, p. 25. col. 4, West. Family Court, the Family Court was involved for six years in the contentious and abusive relationship between the petitioner father and respondent mother. After the mother moved to Connecticut, she was charged with neglecting their two children. Connecticut's Department of Children and Families removed the children for six and a half months to its care and custody. Consequently, the father filed a petition in Westchester seeking sole custody. Mother moved to dismiss on the ground of lack of jurisdiction or to transfer the petition to the Connecticut court before which a neglect petition was pending. Judge Dickerson reviewed New York's Uniform Child Custody Jurisdiction Act, Connecticut's Uniform Child Custody Jurisdiction And Enforcement Act and the Parental Kidnapping Prevention Act. In deciding to retain jurisdiction, the Court stressed: the Court's nine prior visitation orders, the six-year relationship between the law guardian and children, that the children lived most of their lives in New York, and that the father had continuously resided in New York.
NO JURISDICTION OVER FAMILY OFFENSE OCCURRING IN MASSACHUSETTS
In J.V. V. J.C., New York Law Journal, June 25, 2001, p. 32, col. 6, West. Family Court, petitioner's son, a resident of Westchester County, visited his aunt in Waltham, Mass., and during a disagreement, she threatened to 'shoot him'. A family offense petition was filed in Westchester County and respondent aunt moved to dismiss. Judge Dickerson sua sponte addressed the issue of subject matter jurisdiction. It said that Family Court and Criminal Court had concurrent jurisdiction over Article 8 proceedings and as a consequence, the subject matter jurisdiction of Family Court was the same as that of Criminal Court. Therefore, subject matter jurisdiction was limited to events occurring within New York State. Accordingly, Judge Dickerson dismissed the matter, finding no subject matter jurisdiction and no "compelling" reason to find subject matter jurisdiction since the family offense occurred entirely in Waltham, Mass., and had no direct or residual impact in New York State.
NO PREJUDICE IN DELAYED FILING OF JUVENILE DELINQUENCY PETITION
In Matter of J.M., New York Law Journal, October 3, 2000, p. 31, col. 2, West. Family Court, in a juvenile delinquency petition, it was alleged that the 12‑year‑old respondent had sexual intercourse with his 11‑year‑old cousin. The petition charged respondent with rape (later withdrawn), sexual abuse and consensual sodomy, all of which were denied. The alleged act occurred in July 1999. The matter was referred by the Probation Department to the Westchester County Attorney's Office in October 1999. Nine months later, the county attorney filed this petition. Respondent moved to dismiss the petition on the ground of due process and violation of his right to a speedy trial. Judge Dickerson found that pre‑indictment/pre‑petition delays are subject to due process and speedy trial analysis but that the 9‑month delay did not prejudice respondent in any way. Also, the delay was reasonable, given obstacles in obtaining the victim's needed statement.
MATERNAL GREAT-AUNT DENIED VISITATION WITH CHILD IN FOSTER CAR
In H.G. v. COMMISSIONER OF SOCIAL SERVICES, New York Law Journal, April 6, 2001, p. 22, col. 2, West. Family Court, the maternal great-aunt petitioned for overnight visitation with her great-niece, a child placed in foster care at the time of her birth nearly four years ago. Although there was statutory authority giving parents, grandparents and siblings the standing to seek visitation there was no such authority for others, such as great-grandparents, aunts, uncles and former foster parents, to seek visitation. Under the doctrine of equitable estoppel, persons who are neither biological nor adoptive parents can seek visitation if they can show an actual and substantial relationship. Here, although the child went into foster care nearly four years ago, petitioner had no contact with her other than a monthly one-hour supervised visit held at DSS offices commencing in June 2000. Judge Dickerson dismissed the Petition.
JUVENILE DELINQUENT PROPERLY NOTIFIED OF RIGHT
In MATTER OF J.V, New York Law Journal, May 3, 2001, p. 26, col. 4, West. Family Court, a Petition was filed alleging that respondent while acting in concert with others set a blue U.S. postal mailbox on fire causing damage to the mailbox and the mail within. Respondent had admitted, orally and in writing, to a Youth Division Investigator of the Yonkers Police Department that he was involved in the incident. Respondent is now seeking to suppress those statements. Respondent raised two issues. One was whether or not the written statement was made voluntarily, knowingly and intelligently. The other was whether or not respondent was questioned in an appropriately designated juvenile room. Judge Dickerson found that respondent was properly informed of his rights and that he freely waived them.