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FATHER’S PETITION FOR CUSTODY OR PARENTING TIME SHOULD NOT HAVE DISMISSED BASED UPON AN ORDER OF PROTECTION ISSUED IN A CRIMINAL MATTER BEFORE THE CHILD WAS BORN (THIRD DEPT).

The Third Department, reversing Family Court, determined an order of protective issue in a criminal proceeding before the child was born did not prohibit contact between the child and father. Father’s petition seeking custody and/or parenting time should not have been dismissed on that ground:

At the initial appearance on the petition, Family Court stated that the order of protection had been issued in a criminal matter and that it barred the putative father from having any direct or indirect contact with the mother. The mother then moved to dismiss the petition, arguing that the order of protection rendered the petition moot. Family Court agreed and granted the motion. The putative father appeals.

The order of protection at issue — a copy of which is not in the record but the terms of which we take judicial notice — was issued prior to the child’s birth and does not bar the putative father from having contact with the child. It is not, as a result, fatal to the putative father’s petition … . Remittal is therefore required for Family Court to consider whether an order of filiation should be issued (see Family Ct Act § 564) and, if so, whether contact with the putative father would be in the best interests of the child and could be accomplished without contravening the terms of the order of protection … . Matter of Justin M. v Valencia N., 2019 NY Slip Op 07453, Third Dept 10-17-19

 

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