Matter of Heather L. Reader v. Jeffrey S. Reader
Attorneys and Parties
Brief Summary
Family offense proceeding under Family Court Act article 8 [governs family offense proceedings and orders of protection] involving alleged harassment via social media (public Facebook posts) and an alleged violation of a temporary order of protection (TOP).
Family Court found that respondent committed harassment in the second degree under Penal Law § 240.26(3) [harassment in the second degree when, with intent to harass, annoy, or alarm, a person engages in a course of conduct that seriously annoys another and serves no legitimate purpose], violated the TOP, and ordered respondent to pay petitioner’s attorneys' fees.
The Appellate Division unanimously reversed the order, dismissed the petitions, and vacated the findings of harassment and TOP violation, along with the award of attorneys' fees.
Petitioner failed to prove by a preponderance of the evidence that respondent’s public Facebook posts constituted harassment in the second degree; without a family offense finding, there was no TOP violation and no basis for attorneys' fees under Family Ct Act § 842(f) [permits an award of attorneys' fees in certain family offense contexts, including upon a violation of an order of protection].
Background
Petitioner commenced a Family Court Act article 8 proceeding alleging that respondent’s public Facebook posts constituted harassment and that he violated a temporary order of protection. The attorney for the children participated. The case centered on whether the social media posts, made publicly rather than directly to petitioner, met the statutory elements of harassment in the second degree and supported a violation of the TOP.
Lower Court Decision
Family Court found respondent committed the family offense of harassment in the second degree, determined he violated the TOP, and ordered him to pay petitioner’s attorneys' fees.
Appellate Division Reversal
The Appellate Division unanimously reversed on the law, holding that petitioner did not meet the preponderance standard to show harassment in the second degree based on the Facebook posts, dismissed the petitions, and, consequently, found no TOP violation and no entitlement to attorneys' fees.
Legal Significance
Reaffirms that, in Family Court Act article 8 proceedings, public social media postings do not automatically satisfy the elements of Penal Law § 240.26(3); a petitioner must prove intent, a course of conduct that seriously annoys, and lack of legitimate purpose by a preponderance of the evidence. Absent such proof, ancillary findings (e.g., TOP violations) and fee awards under Family Ct Act § 842(f) cannot stand.
Public social media posts, without sufficient proof of intent, a qualifying course of conduct, and lack of legitimate purpose, will not support a family offense finding of harassment in the second degree; when that predicate fails, alleged TOP violations and fee awards fall as well.