When someone is accused of a family offense in New York, one of the first strategic questions is where the case will be heard: Family Court, Criminal Court, or both. New York law allows overlap, and the forum can change the burden of proof, procedures, and consequences. For the court’s overview, see NYCourts: Family Offense.
Related reading on GilmerLegal.com: Legal Help for Family Offense Cases in New York.
1) Concurrent jurisdiction: why both courts can be involved
Family Court Act § 812 provides that the Family Court and criminal courts have concurrent jurisdiction over certain acts when they occur between qualifying family or household members. See Family Court Act § 812.
NYCourts explains that a petitioner can pursue a family offense case in Family Court, Criminal Court, or both. See NYCourts: Family Offense.
2) Practical differences that matter for respondents
Burden of proof
In Family Court, fact-finding uses a fair preponderance standard. See Family Court Act § 832. Criminal cases generally require proof beyond a reasonable doubt.
Who prosecutes the case
Family Court is a civil proceeding and is typically driven by a private petitioner. Criminal Court is prosecuted by the state (District Attorney), which can change leverage and control over the case.
Relief and consequences
Both courts can issue orders of protection. For a plain-language breakdown, see NY OPDV: Orders of Protection and NYCourts FAQ: Obtaining an Order of Protection.
3) Orders of protection in either court: “stay away” vs “refrain from”
Orders of protection often include either “stay away” terms (no contact / physical distance requirements) or “refrain from” terms (do not threaten, harass, stalk, etc.). The wording can have major practical impact for parents, housing, and day-to-day logistics. See NY OPDV: Orders of Protection.
Internal deeper dive: Understanding Temporary Orders of Protection in NY Family Court.
4) Transfer to Criminal Court (Family Court Act § 813)
Family Court Act § 813 provides a transfer mechanism: before a finding, Family Court may transfer a matter to Criminal Court with the petitioner’s consent, after notice to the district attorney, if the court determines that the interests of justice so require. See Family Court Act § 813.
Transfer is not an automatic “upgrade” or “downgrade.” It is a legal and strategic decision that depends on facts, risk, and parallel exposure.
5) Parallel proceedings: why coordination matters
- Statements in one court can affect the other (especially if there is a related criminal investigation).
- A TOP may restrict contact while parenting exchanges still need to happen, which can require court-ordered logistics.
- Settlement choices in Family Court can have collateral consequences in employment, immigration, or custody disputes.
For a plain-language overview of choosing courts, also see: Legal Aid NY (LawNY): Order of Protection in New York.
6) Custody spillover risk (Domestic Relations Law § 240)
Even though a family offense case is a separate proceeding, custody and visitation issues often overlap. New York law requires courts to consider domestic violence in best-interests determinations. See Domestic Relations Law § 240.
7) Who can file: standing has expanded (including “Melanie’s Law” discussions)
Many people still assume only spouses or people with children in common can file. In reality, the Family Court Act includes broader categories (including certain intimate relationships), and recent reforms have expanded access further. See Family Court Act § 812 (definition section) and our internal explainer: Expanding Access to Family Offense Petitions (Melanie’s Law).
Call to Action
If you’re dealing with a family offense allegation and you’re unsure whether it will remain in Family Court, spill into Criminal Court, or both, early legal guidance can prevent mistakes that are hard to undo. Learn more: Order of Protection Defense (Gilmer Law Firm).Contact: Gilmer Law Firm, PLLC.
