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FAMILY COURT SHOULD NOT HAVE DENIED INCARCERATED FATHER’S PRO SE PETITION SEEKING VISITATION BASED UPON THE EXISTENCE OF TWO ORDERS OF PROTECTION, THE FAMILY COURT ORDER OF PROTECTION, BY LAW, EXPIRED AFTER ONE YEAR, NOT WITHSTANDING A 2022 EXPIRATION DATE IN THE ORDER, AND THE ORDER OF PROTECTION IN THE CRIMINAL MATTER DID NOT PERTAIN TO THE CHILDREN (THIRD DEPT).

The Third Department, reversing Family Court, determined the incarcerated father’s petition seeking visitation with his children should not have been dismissed based upon two orders of protection. Although the Family Court order of protection, on its face, was to expire in 2022, it could not, under the law, exceed one year. The Family Court order of protection therefore expired in 2016. As for the order of protection issued in a criminal proceeding, it did not specifically pertain to the children and Family Court does not have the authority to change it:

Family Court, among other things, issued an order of protection that prohibited the father from having contact with the children … and such order expires on January 22, 2022. This expiration date, however, was not permissible. In this regard, because of the biological relationship between the father and the children, the duration of this order of protection could not exceed one year from the disposition of the matter, subject to any further extensions … . … We therefore modify the order of protection to reflect an expiration date of March 2, 2016. …

The order of protection issued in connection with petitioner’s criminal matter is likewise inapplicable. We note that Family Court generally does not have the authority to countermand the dictates of a criminal court order of protection … . That said, the order of protection issued against the father in his criminal matter did not specifically pertain to the subject children. Matter of Pedro A. v Gloria A., 2019 NY Slip Op 00010, Third Dept 1-3-19

 

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