New Access To Orders of Protection by Cohabiting And Dating Partners

In 2008, The New York legislature amended Section 812 of the Family Court Act to include classes of persons previously excluded from its protection. For the past 10 years or so, the family court and criminal court have enjoyed concurrent jurisdiction over proceedings concerning acts which the penal law identifies as disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, stalking in the first, second, third and fourth degree, menacing in the second degree, menacing in the third degree, reckless endangerment, assault in the second degree, assault in the third degree or an attempted assault between spouses or former spouses, or between parent and child or between members of the “same family or household.” In 2007, criminal mischief was added to the list of enumerated crimes that could constitute a family offense. The phrase “members of the same family or household,” for purposes of this section meant the following:

a) persons related by consanguinity or affinity;
b) persons legally married to one another;
c) person formally married to one another; and
d) persons who have a child in common regardless of whether such persons have been committed or have lived together at any time.¹

Persons not related by blood or marriage or by virtue of having a child in common were not a protected group and could not avail themselves of the protection afforded under this section. In a bold move the legislature has enlarged this protected group dramatically.² The new law effective now, amends Section 812.1 to include: persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at the time. What constitutes “an intimate relationship”? Not what you think! While the new law is careful to advise that a casual acquaintance or ordinary’ fraternization between individuals in business or social contexts shall not be deemed “an intimate relationship,” it does not require such relationship to be sexual in nature. The new law allows the court to determine whether or not a relationship is an intimate one by considering the nature of the relationship; the frequency of interaction between the persons; and the duration of the relationship. A jilted lover? A roommate? An annoying neighbor? Apparently so. This amendment may well be the most sweeping change to Article 8 of the Family Court Act to date. Good intentions aside, has our legislature opened Pandora’s box? Remember, by including this expanded group of protected persons within its definition, the new law subject’s respondents who fall into this category to arrest and possible incarceration. It appears that individual judges will have considerable discretion in finding that “an intimate relationship” exists. Will ex parte temporary orders of protection be granted under the new definition with the san1e ease with which such orders were granted previously? Time will tell, but the potential for abuse by a new class of aggrieved petitioners is a valid concern. Perhaps our legislature’s next amendment will be to the term “frivolous.” Before you breathe a sigh of relief that you broke up with the crazy girl or guy 3 years ago, remember the statute includes those persons who are or were in an intimate relationship; and, by the way, Section 812 contains no statute of limitations. Sleep tight.

1 FCA § 812.1
2 Laws of2008, ch. 326; S8665.

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