Lawyers Manual - Unified Court System

Matrimonial Actions 229
simultaneously in both forums, seeking an order of protection in Family Court
and a divorce in Supreme Court. Domestic Relations Law § 252 explicitly
authorizes either the Supreme Court or the Family Court to entertain a request
for a temporary order of protection or an order of protection when a divorce
action is pending in Supreme Court. However, the legislature did not intend to
give an advantage to one side by allowing the same issues to be litigated in two
forums. This is especially true when the grounds in the matrimonial action are
cruel and inhuman treatment containing allegations that overlap with the
allegations in the Family Court petition.
A likely outcome of an order of protection petition filed in Family Court
after the commencement of a matrimonial action is that the Family Court judge
will adjourn its hearing, continuing any temporary order of protection, to allow
the parties time to make a motion in Supreme Court for the relief. 13 A similar
result is likely even if the order of protection proceeding in Family Court was
commenced before the divorce action if the Family Court proceeding is not
resolved or close to resolution when the divorce action is commenced.
Unfortunately, the perception of some judges is that domestic violence victims
are manipulating the system and trying to get an unfair advantage when they
seek an order of protection in Family Court after commencement of a divorce
case. This is especially true if the party is represented by counsel in both forums
and initiated both proceedings.
So, which forum should you choose for obtaining an order of protection
when representing a married victim of domestic violence? The answer to this
question will depend on the specific circumstances of each case, and most of
the remainder of this article will be devoted to examining the pros and cons of
seeking an order of protection in Family Court and in Supreme Court.
As stated earlier, Article 8 of the Family Court Act provides the standard for
granting orders of protection in both forums. 14 Nevertheless, at least in New
York City, a litigant is more likely to obtain a temporary order of protection
from the Family Court. This may be because of the higher volume of cases in
Family Court and the fact that the procedure for obtaining orders of protection is
more routinized and does not require the drafting of lengthy papers or the
services of an attorney. Family Court is far more litigant-friendly. An intake
judge will usually hear the victim plead her case directly within hours of her
filing her petition. In Supreme Court, a compelling affidavit from the party
seeking the relief is often not enough. The court will require corroborating
affidavits and/or documentary evidence (e.g., prior orders of protection, police
reports, medical records, photographs of injuries). 15