Family Court, Kings County

Decided on May 6, 2026

File No. 329472

Robert A. Markoff, J.

[*1]

I. Introduction

Before the court is the issue of whether the durational limits set forth in Family Court Act § 842 apply to orders of protection that are issued on consent. For the reasons set forth below, this Court finds that Family Court Act § 842 only applies to orders of protection issued after fact-finding and dispositional hearings. As such, the court may issue an order of protection on consent for a period of more than two years without a judicial finding of aggravated circumstances, or without a judicial finding that the respondent violated a valid order of protection.

II. Background

The petitioner and the respondent are married and share four children in common. In November 2024, the petitioner filed, inter alia, a family offense petition against the respondent alleging that the respondent committed various family offenses against her. At that time, the court issued an ex parte temporary order of protection directing, inter alia, the respondent to observe conditions of behavior, including refraining from committing family offenses against the [*2]petitioner. In May 2025, the petitioner filed another family offense petition against the respondent. The court issued an ex parte temporary order of protection directing the respondent to observe additional conditions of behavior, including staying away from the petitioner's home and restricting communications with the petitioner. In July 2025, the petitioner filed a violation petition seeking to punish the respondent for allegedly violating a temporary order of protection. Prior to the commencement of the scheduled fact-finding hearing on April 17, 2026, counsel for the parties advised that they had reached a tentative settlement of the petitioner's family offense and violation petitions.

On April 17, 2026, counsel for the parties represented that they were willing to resolve the proceedings with an agreement for the respondent to enter a three-year final order of protection. The petitioner's counsel stated that it was his understanding that Family Court Act § 842 only authorizes the court to issue a maximum two-year final order of protection unless the court finds either the existence of aggravated circumstances or that a respondent violated a valid order of protection. He argued that, given the restriction of the court's authority under Family Court Act § 842, the court may issue a three-year final order of protection if the respondent both consented to the order of protection and admitted that he violated the temporary order of protection.

Addressing the petitioner's concerns about how the applicability of Family Court Act § 842 may affect the validity of the proposed three-year order of protection on consent, the respondent's counsel indicated that her client was willing to admit to having violated a temporary order of protection. Even so, the respondent's counsel argued, in effect, that the court may issue a three-year final order of protection on consent of the respondent without any such admission or judicial finding of wrongdoing.

This Court then discussed Family Court Act § 842 in the context of the other provisions in the Family Court Act including sections 154-c, 833, 835, 841. Ultimately, this Court agreed with the respondent's position that in an article 8 family offense proceeding, the duration of a final order protection on consent is not limited by Family Court § 842. Indeed, this Court determined that there is no provision in the Family Court Act fixing the duration of an order of protection on consent.

Given this Court's stated jurisprudence, the parties then agreed that the proceedings would resolve with the issuance of the three-year final order of protection on the respondent's consent without an admission of wrongdoing. The Court thereafter conducted an allocution of the respondent, and expressly found that he knowingly, intelligently, and voluntarily consented to the issuance of the final order protection. Given the common practice of resolving family offense proceedings on consent, the differing views on the applicability of Family Court Act § 842, and that consent orders are generally not subject to appellate review (see CPLR 5511; Matter of Zaria P.[Sage G.], 240 AD3d 699, 700 [2d Dept 2025]; Matter of Charles v Lewis, 224 AD2d 687 [2d Dept 1996]), this Court herewith sets forth its reasoning for issuing a three-year order of protection on consent.

III. Analysis

"When interpreting a statute, [the] primary consideration is to discern and give effect to the Legislature's intention" (Matter of Avella v City of New York, 29 NY3d 425, 434 [2017]). "The text of a statute is the 'clearest indicator' of such legislative intent" (id., see Matter of [*3]Daimler Chrysler Corp. v Spitzer, 7 NY3d 653, 660 [2006]). Thus, "the starting point in any case of [statutory] interpretation must always be the language itself, giving effect to the plain meaning thereof" (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583; Matter of Estate of Youngjohn v Berry Plastics Corp., 36 NY3d 595). "It is a well-settled principle of statutory construction that a statute or ordinance must be construed as a whole and that its various sections must be considered together and with reference to each other" (People v Mobil Oil Corp., 48 NY2d 192, 199; see Colon v Martin, 35 NY3d 75, 78; Matter of Walsh v New York State Comptroller, 34 NY3d 520, 524). "When the statutory language at issue is but one component in a larger statutory scheme, it must be analyzed in context and in a manner that harmonizes the related provisions and renders them compatible" (Matter of Mestecky v City of New York, 30 NY3d 239, 243 [2017]).

Family Court Act § 154-c(3), which applies to orders of protection issued under all articles of the Family Court Act, recognizes that orders of protection may result from "a judicial finding of fact, judicial acceptance of an admission by the party against whom the order was issued or judicial finding that the party against whom the order is issued has given knowing, intelligent and voluntary consent to its issuance."

Family Court Act § 842, which applies only to family offense proceedings under article 8, provides, in pertinent part, "An order of protection under section [841] of this part shall set forth reasonable conditions of behavior to be observed for a period not in excess of two years . . . or for a period not in excess of five years upon (i) a finding by the court on the record of the existence of aggravating circumstances as defined in [Family Court Act § 827(a)(vii)]; or (ii) a finding by the court on the record that the conduct alleged in the petition is in violation of a valid order of protection." Thus, Family Court Act § 842 applies only to orders of protection that are issued under Family Court Act § 841.

Family Court Act § 841 describes the available "orders of disposition" that may be issued after a dispositional hearing. It provides, in pertinent part, "At the conclusion of a dispositional hearing under this article, the court may enter an order . . . (d) making an order of protection in accord with [Family Court Act § 842]."

Family Court Act §§ 841 and 842, which are contained in part 4 of article 8, delineate the orders that may be issued after hearings. Part 3 of article 8 sets forth statutory provisions about hearings. Family Court Act § 832, which is contained in part 3, defines a "fact-finding hearing" as a hearing to determine whether the allegations of a petition under [Family Court Act § 821] are supported by a fair preponderance of the evidence. Family Court Act § 833 defines a "dispositional hearing" as a "hearing to determine what order of disposition should be made." Family Court Act § 835(a) directs that "[u]pon completion of the fact-finding hearing, the dispositional hearing may commence immediately after the required findings are made." Thus, the provisions in parts 3 and 4 relate to the process of resolving family offense proceedings through fact-finding and dispositional hearings, and the orders that may be issued upon completion of those hearings.

Reading Family Court Act § 842 in relation to Family Court Act § 154-c, an order of protection issued under Family Court § 842 constitutes the type of order of protection that results from a "judicial finding of fact" (Family Court Act § 154-c[3]; see generally Matter of Acker v Teneyck, 228 AD3d 653 [2d Dept 2024]). Such an order of protection is, by definition, different than one that results from the consent of the respondent.

Family Court Act § 842 does not address orders of protection on consent and cannot [*4]reasonably be interpreted to apply to them. Indeed, to apply the durational limitations contained in Family Court Act § 842 to orders of protection on consent would violate a fundamental rule of statutory construction by rendering superfluous the introductory phrase "An order of protection under section [841] of this part . . . " (Branford House, Inc. v Michetti, 81 NY2d 681, 688 [1993]["A construction rendering statutory language superfluous is to be avoided"]).

The only provision in article 8 implicating orders of protection on consent is Family Court Act § 823, which sets forth "rules of court for preliminary procedure." Sections (a) through (d) contained therein focus on authorizing the probation department to, inter alia, engage in conciliation and adjustment of family offense proceedings. Family Court Act § 823(e) provides, in pertinent part, "If agreement to cease offensive conduct is reached, it must be reduced to writing and submitted to the family court for approval. If the court approves it, the court without further hearing may thereupon enter an order of protection in accordance with the agreement, which shall be binding upon the respondent and shall in all respects be a valid order." Assuming this section is applicable to cases that do not involve the probation department, the statute does not refer to Family Court Act § 842 or otherwise fix the duration of any consent order of protection. Indeed, it expressly states that the court may approve the agreement and issue the order of protection on consent without "further hearing." A court may not "amend a statute by inserting words that are not there, nor will a court read into a statute a provision which the Legislature did not see fit to enact" (Matter of Chemical Specialties Mfrs. Assn. v Jorling, 85 NY2d 382, 394 [1995]). Thus, in construing Family Court Act § 823(e), the court must assume that the Legislature intentionally set no durational limitations for orders of protection on consent (id.).

Notably, the durational limitations in Family Court Act § 842 are not applied to orders of protections that are issued under any of the other articles of the Family Court Act. For example, appellate caselaw evinces that orders of protection issued in custody proceedings under Family Court Act § 656 are not subject to the durational limitations set forth in Family Court Act § 842 (see Anderson v Harris, 73 AD3d 456, 457 [1st Dept 2010]; Anson v Anson, 20 AD3d 603, 604 [3d Dept 2005]; see also Mikell v Bermejo, 139 AD3d 954, 955-956 [2d Dept 2016]; Kristian J.P. v Jeannette I.C., 87 AD3d 1337 [4th Dept 2011]).

The purpose of article 8 family offense proceedings is to stop the violence, end the family disruption and obtain protection (see Family Court Act §812[2][b]; see Richardson v Richardson, 80 AD3d 32, 37 [2d Dept 2010]). Applying the durational limitations of Family Court Act § 842 to orders of protection on consent would, in effect, compel a petitioner seeking an order of protection lasting more than two years to engage in costly, adversarial and often emotionally difficult fact-finding and dispositional hearings where the respondent is willing to consent to the ultimate relief sought by the petitioner. Such litigation is not only statutorily unnecessary but undermines the express purpose of family offense proceedings to expeditiously obtain protection and end the family disruption.

Even though Family Court Act § 842 does not directly apply to orders of protection on consent, the durational limitations set forth therein should still inform the negotiation and settlement process in family offense proceedings. As part of its role to approve the parties' resolution and to ensure that a respondent's consent is knowing, intelligent, and voluntary, the family court may be required, as part of its on-the-record colloquy, to ascertain whether the respondent understands that if the case proceeded to fact-finding or dispositional hearings, he or she would be subject to either a maximum two-year order of protection, or where there are [*5]aggravating circumstances or a violation of an order of protection, a maximum five-year order of protection.

In sum, for the reasons set forth above, in family offense proceedings, the family court may issue an order of protection on consent for a period more than two years without a judicial finding of aggravated circumstances or a judicial finding that the respondent violated a valid order of protection.

Dated: May 6, 2026

ENTER

Hon. Robert A. Markoff

Family Court Judge