Wissink v. Wissink

Appellate Division of the Supreme Court of New York, Second Department · 2003 · Family Law

Family Lawfamily offenseorder of protectionmootnessacademic appealharassment in the second degreepreponderance of the evidencecredibility determinations

Facts

The proceeding arose under Family Court Act article 8. After a hearing, the Family Court found that Jane Wissink committed acts alleged in the petition that constituted harassment in the second degree. Based on that finding, the court directed her to observe the conditions of an order of protection for one year. By the time of appeal, the order of protection had expired.

Issue

Whether the appeal was academic because the order of protection had expired, and if not, whether the petitioner proved by a preponderance of the evidence that the appellant committed acts constituting harassment in the second degree so as to warrant an order of protection.

Rule

An appeal from a family offense adjudication is not academic merely because the order of protection has expired where enduring consequences may potentially flow from the adjudication. In a Family Court Act article 8 proceeding, the petitioner must establish the family offense by a preponderance of the evidence, and the Family Court's credibility determinations are entitled to great weight on appeal.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Buffalo, Lena Ortiz filed a Family Court Act article 8 petition against her former spouse, Aaron Pike. After a hearing, the Family Court found that Aaron committed a family offense and entered a one-year order of protection; by the time Aaron's appeal was argued, the order had expired.

Aaron argues the appeal must be dismissed because the order of protection is no longer in effect. How should the appellate court rule?

Explanation. The controlling rule is that expiration of the order of protection does not, by itself, render an appeal academic where enduring consequences may potentially flow from the adjudication that a party committed a family offense. The majority treated potential enduring consequences as sufficient, so automatic dismissal for mootness would be incorrect. (Derived from Wissink v. Wissink (n.d.).)