The petitioner mother seeks an order from this court granting the mother supervised visitation with the parties' daughter, A. The mother attaches a copy of a divorce judgment, dated September 17, 2006, which grants the respondent father custody of A. without provision for visitation by the mother. The divorce judgment does not provide that the Supreme Court retains exclusive jurisdiction over the issue of custody, Therefore, this court has power to entertain an application for modification of the divorce judgment with respect to visitation (FCA 652[b][ii]; Renzulli v. McElrath, 286 AD2d 335; Metzger v. Metzger, 133 AD2d 524). The petition attaches a copy of a Supreme Court order, dated March 20, 2008, upon a post-divorce judgment motion which states the mother pled guilty to Attempted Coercion in the First Degree, a class E felony, arising from an incident on December 9, 2006 in which the mother while brandishing a weapon attempted to abduct the parties' child from the father. The petition also sets forth, and attaches a copy, of a criminal temporary order of protection, dated April 27, 2007 (and amended August 23, 2007), issued by the Orange County Court, against the mother as a defendant in a criminal proceeding which orders her to remain away from A. and to refrain from any communication with the child. By its terms the temporary order of protection is to remain in effect through June 19, 2008 when, it appears, the mother is due back in the Orange County Court. The instant petition by the mother alleges that prior to the issuance of the temporary order of protection the petitioner and A. allegedly enjoyed a very close relationship but that the mother has been prevented for two years from seeing or communicating with the child. In her petition the mother states:

"There is currently in the temporary order of protection issued by Orange County Court that prohibits me from seeing or communicating with A. By this Petition, Petitioner urges the court to permit her to have visitation notwithstanding that a temporary order of protection [exists] because that case is not scheduled to be [*2]heard until June 19, 2008."

An order of protection issued by a criminal court may provide for visitation allowed by Family or Supreme Court order (CPL 530.12[1][b]). This one does not. The petitioner is turning to the Family Court by means of this proceeding to modify the County Court temporary order of protection to allow visitation. The Family Court, of course, does not have jurisdiction to review and modify County Court orders. The issuance of a Family Court order granting visitation would establish two conflicting orders by two different courts of coordinate jurisdiction. There is a duty upon police officers to enforce by mandatory arrest orders of protection which contain stay away provisions such as the temporary order of protection issued by the County Court in this case (see, CPL 140.10[4][b][i]). The issuance of a conflicting order by this court allowing visitation would create confusion and uncertainty in the police and the parties. Several cases have been reported where a criminal court order of protection has been issued prohibiting visitation and subsequent orders addressing visitation were issued by Family Court. In those cases, two of which reached appellate review, the proceedings were child protective proceedings pursuant to Family Court Act, Article 10. In the two cases which reached appellate review the Family Court issued orders which were consistent with the criminal court orders of protection prohibiting visitation (see, In Matter of Suffolk County Depart. of Social Servs. v. James M., 83 NY2d 178; In Matter of Curtis "N", 288 AD2d 774, lv denied 97 NY2d 610). In another case, also a Family Court Act, Article 10 proceeding, the Family Court issued a conflicting visitation order allowing the biological children of the incarcerated mother to have supervised visitation with the mother contrary to the total prohibition of visitation by the criminal court order of protection. The Family Court determined in the dispositional hearing that it would be contrary to the best interests of the children to have all contact with their mother prohibited for more than 13 years (see, In re M.N., 14 Misc 3d 1238[A]). Nevertheless, the Family Court stated its decision "does not in anyway affect the criminal sentence-including the orders of protection imposed by County Court. It is [the mother's burden] to petition that court for modification." This was recognition that the Family Court did not have jurisdiction to modify the order of the County Court. It was also an admonition to the mother to petition the County Court for appropriate relief rather than simply violating that court's orders of protection. Such cases, where domestic violence is the issue highlight the advantage of having them heard in the Integrated Domestic Violence Parts of the Supreme Court which have been established by order of the Hon. Judith Kaye, Chief Judge (22 NYCRR 41.1 et seq.). Such IDV Parts are devoted to the hearing and determination, in a single forum, of cases that are simultaneously pending in the courts if one of them is a domestic violence case in a criminal court and the other is a case in Supreme or Family Court (22 NYCRR 41.1). Under the circumstances, it is the more orderly and preferred procedure for the mother to first apply to the County Court to modify the temporary order of protection to permit visitation as another court of competent jurisdiction may direct (CPL 530.12[1][b]).

Accordingly, it is hereby

ORDERED that In the exercise of discretion, to avoid the waste of judicial resources, as well as the private resources of the parties, and to effect the orderly administration of justice in seeking to avoid the issuance of conflicting orders, this court declines to sign the order to show cause at this time and dismisses the mother's petition without prejudice to the mother bringing [*3]such application in a court of competent jurisdiction after first applying to the County Court to modify its temporary order of protection to permit visitation as court order may permit.

Dated: Goshen, New YorkE N T E R

May 19, 2008

HON. DEBRA J. KIEDAISCH, J.F.C.

Pursuant to section 1113 of the family court act, an appeal must be taken within thirty days of receipt of the order by appellant in court, thirty-five days from the mailing of the order to the appellant by the clerk of the court, or thirty days after service by a party or law guardian upon the appellant, whichever is earliest.