What Counts as a Family Offense in New York

Two Courts, One Incident

The criminal courts and the Family Court have concurrent jurisdiction over family offenses. A complainant may proceed in criminal court, in Family Court, or in both at once. Choosing one does not close off the other.

The two proceedings are different in kind. The criminal case is brought by the District Attorney, requires proof beyond a reasonable doubt, and can end in a criminal record and jail. The Family Court case is a civil proceeding that the complainant starts personally by filing a petition. Its purpose is an order of protection, and the petitioner must prove the offense only by a fair preponderance of the evidence. We discuss how the two cases affect each other in Family Court Petitions and ACS Investigations.

The List of Family Offenses

The list has grown over the years and now reaches well beyond physical violence.

Two points about the list are worth noting. First, disorderly conduct ordinarily requires a public setting. For family-offense purposes, the statute provides that it includes disorderly conduct not in a public place, which allows Family Court to act on an argument inside an apartment. Second, the financial offenses were added so that the court could address economic control, such as opening credit in a partner's name or taking their funds.

Offenses That Are Not on the List

Some serious charges are absent. Assault in the first degree, rape and other felony sex offenses, burglary, kidnapping, and criminal contempt are not family offenses. That does not mean they are treated leniently when they arise between family members. They are prosecuted in criminal court by the same domestic violence bureaus and heard in the same specialized court parts. The list only defines what Family Court can hear by petition and which criminal cases fall under the specific procedures of CPL § 530.11 and § 530.12. When a charge is off the list, the criminal court still issues an order of protection, under CPL § 530.13 instead.

Members of the Same Family or Household

The statutes define the covered relationships as:

• persons related by consanguinity (blood) or affinity (marriage), which includes parents, children, siblings, and in-laws;
• persons legally married to one another;
• persons formerly married to one another, regardless of whether they still live in the same household;
• persons who have a child in common, regardless of whether they have ever been married or lived together; and
• persons who are not related by blood or marriage and who are or have been in an intimate relationship, regardless of whether they have ever lived together.

The last category is the one that gets litigated. An intimate relationship does not have to be sexual. The statute directs the court to consider the nature or type of the relationship, the frequency of interaction between the two people, and the duration of the relationship. It also sets a floor: a casual acquaintance, or ordinary fraternization between two people in business or social contexts, is not an intimate relationship.

Dating partners and former dating partners are covered. Co-workers, neighbors, and ordinary roommates generally are not. Between those poles the answer depends on the facts, and courts have applied the term generously. Where the relationship is doubtful, we challenge it, because if the relationship element fails, the Family Court petition must be dismissed, and in criminal court the case loses its family-offense treatment.

Why the Label Matters

The underlying charge and its maximum sentence are the same whether or not the case is labeled a family offense. What changes is nearly everything else.

• Arrest. Police lose most of their discretion under the mandatory arrest rule in CPL § 140.10(4), and a desk appearance ticket is unlikely.
• Orders of protection. The court issues a temporary order of protection under CPL § 530.12 at arraignment, which can exclude the accused from a shared home.
• Specialized courts and prosecutors. Cases are assigned to domestic violence parts and to prosecutors whose offices have policies against dismissing a case merely because the complainant asks.
• Bail. Certain charges that would not otherwise qualify for bail do qualify when the complainant is a family or household member, including criminal obstruction of breathing and contempt of an order of protection.
• A longer ACD. An adjournment in contemplation of dismissal under CPL § 170.55 normally runs six months. In a family-offense case it runs one year, usually with an order of protection in place for the whole period.
• Firearms. The court may order surrender of firearms and suspension of a license, and a misdemeanor conviction can trigger a federal firearms ban.
• Immigration. Federal law has a deportation ground specific to crimes of domestic violence and violations of protection orders. See immigration consequences.

Aggravated Family Offense

A prior conviction raises the stakes. Under PL § 240.75, a person commits an aggravated family offense, a class E felony, by committing a "specified offense" against a member of the same family or household after having been convicted of a specified offense against a family or household member within the preceding five years. The list of specified offenses in that statute is long and includes common misdemeanors such as assault in the third degree, menacing, criminal obstruction of breathing, and criminal contempt.

The effect is that a second misdemeanor-level incident can be charged as a felony. This is one more reason the disposition of a first case matters. A plea to a violation such as harassment in the second degree or disorderly conduct, or an adjournment in contemplation of dismissal, does not produce a misdemeanor conviction that can later serve as the predicate for this charge.

Charged With a Family Offense?

If you have been arrested for a family offense in New York or served with a Family Court petition, call us at 212-233-1233 or email [email protected].