Family Court, Queens County, December 12, 2017

Ivette M. Zelaya for petitioner.

Adewole David Agbayewa for respondent.

Heidi Luna, Attorney for the Children.

The mother, Ijeoma F.A., and the father, Okechukwu D., have two children in common, Ikechukwu D. (age 17) and Nnenna (age 15). The parties are unmarried, but reside together with their two children, and co-parent. On June 1, 2017, the mother filed two petitions against the father, a family offense petition and a custody petition. On July 3, 2017, the father filed two petitions against the mother, a family offense petition and a custody petition. On July 3, 2017, the father's custody petition was dismissed. On September 14, 2017, the remaining matters were transferred to this court.

On October 31, 2017, the father filed a motion to dismiss the mother's petitions. He [*2]argues that her custody petition should be dismissed for lack of jurisdiction and her family offense petition should be dismissed for facial insufficiency. The motion was returnable on November 15, 2017. On November 15, 2017, the court heard argument and reserved decision.

Absent a showing that the children's welfare is in danger or their reasonable needs have not been met, the family court has no jurisdiction to entertain a custody petition where parties reside together and co-parent children. (See People ex rel. Sisson v Sisson, 271 NY 285, 286-288 [1936]; see also Matter of A.K. v A.S., 32 Misc 3d 431, 432-434 [Fam Ct, NY County, May 25, 2011]; compare Harari v Davis, 59 AD3d 182, 182 [1st Dept {**58 Misc 3d at 607}2009] [where parties lived together, child support awarded during litigation due to showing of necessity to maintain child's reasonable needs]; Matter of Darrow v Burlingame, 298 AD2d 651, 651 [3d Dept 2002] [unmarried parties, living together, stipulated to issuance of family court custody order]; Koerner v Koerner, 170 AD2d 297, 297 [1st Dept 1991] [upholding child support award during litigation where necessary to maintain reasonable needs of children].) The Court of Appeals has held quite succinctly that a

"court cannot regulate by its processes the internal affairs of the home. Dispute between parents when it does not involve anything immoral or harmful to the welfare of the child is beyond the reach of the law. The vast majority of matters concerning the upbringing of children must be left to the conscience, patience and self restraint of father and mother. No end of difficulties would arise should judges try to tell parents how to bring up their children. Only when moral, mental and physical conditions are so bad as seriously to affect the health or morals of children should the courts be called upon to act." (People ex rel. Sisson v Sisson, 271 NY 285, 286-288 [1936].)

[1] The mother's petition states that the parties live together and share custody of their children.^[FN1] Although the mother alleges that the environment in which the children live is hostile and unhealthy, she fails to plead her petition with sufficient specificity. Moreover, her assertions of an unsafe environment are not only vague and conclusory, but belied by her acknowledgment in her attendant family offense petition that she left the children alone with their father during the time period that she traveled to Nigeria for a family funeral. Accordingly, the mother's custody petition is dismissed for lack of jurisdiction.^[FN2]

[2] In deciding a motion to dismiss for failure to state a cause of action, pursuant to Civil Practice Law and Rules § 3211,^[FN3] the court must construe the petition liberally to determine whether, within the pleading's four corners, there exists a cognizable cause of action. (See Harris v Barbera, 96 AD3d 904, 905 [2d Dept 2012]; see also Martin v Liberty Mut. Ins. Co., 92 AD3d 729, 730 [2d Dept 2012]; Ruffino v New York City Tr. Auth., 55 AD3d 817, 818 [2d Dept 2008].) To that end, the court must accept all alleged facts within the pleadings to be true. (See Martin, 92 AD3d at 730; see also Young v Campbell, 87 AD3d 692, 693 [2d Dept 2011].) Even affording the mother's family offense petition the most liberal reading, and accepting all facts alleged as true, the petition fails to set forth a conduct or events which constitute a family offense.

The only arguable family offense committed by the father is disorderly conduct. (See Penal Law § 240.20; see also Family Ct Act § 812 [1].) The disorderly conduct statute covers a variety of upsetting and irritating behaviors, including fighting, threatening, "unreasonable noise," cursing, and obscene gestures. (See Penal Law § 240.20.) However, the mens rea associated with disorderly conduct is "intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof." (Id.) Although Family Court Act § 812 extends the scope of the disorderly conduct statute to private places,^[FN4] the Second Department has held that a family offense petitioner is nonetheless required to establish that a respondent's acts were designed to create public harm or a risk of it. (See Matter of Cassie v Cassie, 109 AD3d 337, 342 [2d Dept 2013]; see also Matter of Sharon D. v Dara K., 130 AD3d 1179, 1181 [3d Dept 2015] [no disorderly conduct where incident occurred within confines of great-aunt's home and intent to cause public inconvenience not shown]; cf. Matter of Rebecca M.T. v Trina J.M., 134 AD3d 551, 552 [1st Dept 2015] [disorderly conduct upheld where screaming and yelling during altercation, apartment left in disarray, and petitioner ran from apartment partially naked]; Matter of Martha B. v Julian P., 133 AD3d 418, 418 [1st Dept 2015] [disorderly conduct where husband threatened{**58 Misc 3d at 609} petitioner in superintendent's office of their building].) The mother's allegations of arguments, inter alia, about salt fail to set forth conduct or events that rise to the level of a family offense. Moreover, the mother has failed to proffer allegations that demonstrate that the father was acting with the proper mens rea. (See Matter of Little v Renz, 137 AD3d 916, 916 [2d Dept 2016] [in family offense petition alleging disorderly conduct, father failed to establish necessary intent].) Although the court does not condone the father's alleged behavior, the mother's hurt feelings are not enough to sustain the petition. Further, the mother's allegations that their teenage children were upset and crying does not speak to whether the children were upset at her, the father, or the general discord in the home due to their parents' inability to get along. Even if the mother had been more specific, the court certainly cannot presume that the mother is privy to the operation of the children's minds. Accordingly, the court is constrained to dismiss the mother's family offense petition for failure to state a cause of action. To do otherwise would [*3]stretch the family court's limited authority to permit intrusion upon everyday verbal disagreements occurring in family households.

As an aside, the court's attorney was advised by counsel for both parents that there is a pending partition action in Queens County Supreme Court regarding their residence. It is this court's view that the parties' property dispute has likely been masquerading as a family offense in family court.