Order of Protection Case or Family Offense Petition on Behalf of a Child?
If a parent has any kind of evidence or even suspects that a family member or the other parent has committed an act of child abuse, then an order of protection can be filed on behalf of the child in New York. This is also called a family offense petition. This is an order of protection that is filed in the best interests of the child. The court will examine the information that is presented to determine who should be allowed to file the order and who should be investigated regarding the evidence or suspicions that are submitted. Parents always have the option and privilege of filing a protective order if one suspects that there is any kind of abuse taking place. If there are grandparents or other family members in the same home as the child, they usually don’t have the same rights to file a protective order as the parents.
When there is a visitation or custody order in place from the court, there is little that can be done to change the order unless there is evidence that there is abuse taking place or if there are other issues that have arisen that would impact the safety of the child or the child’s best interests staying at home or spending time with family members. If there is evidence or suspicions of abuse or other issues that could result in harm to the child, then the court will begin an investigation before any changes are made to custody or visitation orders. The court will also look into any filing of an order of protection and whether the person who filed the order has substantial claims for a complaint.
In most situations, the only person who can act on behalf of the child regarding any kind of protective order or family offense petition would be the legal parents or guardians of the child. An example would be as follows. A mother is awarded custody of her children during divorce proceedings. However, the father received visitation rights that were scheduled and filed through the court. When the children visit the father, one of the children tells the father that the mother slaps them and commits other acts that are harmful to the children. After hearing these claims, the father files a family offense petition with the court and is granted the filing because he is seen as one of the legal parents of the children. Temporary custody is given to the father for a short time while the investigation takes place to determine if the mother has committed the acts that are in the petition. The evidence is then presented in court by the mother and the father, and custody is awarded back to the mother, and visitation rights are given back to the father because the allegations were not substantiated.
Another situation involves a mother who filed a petition for her son after the child told her that he had been slapped. After examining evidence, the court found that there was only one instance where the child was slapped instead of multiple occasions as reported by the child. Even though there was information to show that the incident likely happened, the evidence did not show that the child suffered any kind of injury as a result of the incident reported. The family offense was not proven. However, an incident of neglect was proven in the court and dealt with according to New York laws.
When there is a joint custody order in place, then both parents have the opportunity to file an order of protection or a family offense petition if there is enough evidence or if there are suspicions about one parent. However, in one instance, the mother has primary physical custody of the child instead of the father. When the mother heard that the father slapped the child on at least three different occasions, the mother filed an order of protection to keep the children from visiting the father. Even though the order was filed, there was no evidence presented to the court. The court dismissed the original claim, but then found that the decision was wrong because the mother had a right to file the order since all parents have these right.
Grandparents, although looking out for the best interests of their grandchildren, often don’t have the right to file an order of protection simply because they think that abuse is taking place. Any kind of stay away protection order would usually result in the children being taken from the parents for at least a short time while an investigation takes place, especially if there have been multiple claims filed against the parent or parents. Grandparents are usually not seen as people who have a right to file a family offense petition because they might not see the children all the time or might not know about everything that goes on in the life of the children. If the grandparents have custody of the children, then that presents a different circumstance where the grandparents could file for an order of protection if they suspect that the parents or another family member is harming the children. Another instance that would need to be examined further would be if a step-parent files a claim that abuse has occurred. After a referral to child protective services, the court could find that the step-parent is not eligible to file the order because of not being the proper filing party. However, the step-parent could file a claim with child protective services to launch an investigation.