Matter of Marissa Fournier v Juan Rodriguez Perez
Categories
Attorneys and Parties
Brief Summary
Family offense procedure in Family Court, specifically whether a Court Attorney Referee may dismiss a petition without the parties' consent and without advising the petitioner of the right to assigned counsel.
The Family Court, through a Court Attorney Referee, dismissed the Family Court Act article 8 [family offense proceeding] petition after a single appearance, stating that there was insufficient evidence of a family offense.
The Appellate Division reversed the dismissal order, reinstated the petition, and remitted the matter for further proceedings.
The Referee lacked jurisdiction to dismiss the petition because the parties did not consent to the Referee hearing and determining the matter under CPLR 4317 [consent required for a referee to hear and determine, except in limited circumstances]. The dismissal also occurred without a fact-finding hearing, and petitioner was not advised of her right to assigned counsel under Family Court Act § 262 (a) (ii) [providing a right to assigned counsel in certain Family Court proceedings].
Background
Marissa Fournier filed a family offense petition against her estranged husband, Juan Rodriguez Perez, under Family Court Act article 8 [family offense proceeding]. At the only court appearance, the Court Attorney Referee was addressing whether to issue a temporary order of protection under Family Ct Act § 828 (1) (a) [authorizing consideration of a temporary order of protection]. Fournier refused to consent to the Referee hearing and determining the petition, and Perez was not present and therefore did not consent either.
Lower Court Decision
Despite the lack of consent and without conducting a fact-finding hearing, the Court Attorney Referee dismissed the petition on the ground that there was insufficient evidence of a family offense.
Appellate Division Reversal
The Appellate Division unanimously reversed on the law, reinstated the petition, and remitted the matter to Family Court, Onondaga County, for further proceedings. The court held that, absent the parties' consent or a statutory exception under CPLR 4317 [consent required for a referee to hear and determine, except in limited circumstances], the Referee had no jurisdiction to determine and dismiss the petition. The court also held that the Referee erred by failing to advise petitioner of her right to counsel under Family Ct Act § 262 (a) (ii) [providing a right to assigned counsel in certain Family Court proceedings].
Legal Significance
This decision reinforces that a Court Attorney Referee in Family Court cannot finally decide and dismiss a family offense petition without a proper jurisdictional basis, usually the parties' consent. It also confirms that a petitioner in a family offense case must be informed of the statutory right to assigned counsel, and failure to do so requires reversal when the record does not show a knowing waiver.
A family offense petition cannot be dismissed by a Referee after a preliminary appearance unless the Referee has authority to determine the matter, and the petitioner must be advised of the right to assigned counsel before the case proceeds.