At The Gilmer Law Firm, PLLC, we regularly defend clients facing petitions for orders of protection in New York Family Court—often based on claims of harassment. While these petitions can have serious consequences, not every allegation meets the legal threshold. In some cases, we’re able to file a motion to dismiss early in the case, saving our clients time, stress, and unnecessary court involvement.
Here’s what you need to know about winning a motion to dismiss in a Family Court harassment case—and how we did it for one of our recent clients.
📜 Understanding Harassment in Family Court
Under New York Family Court Act Article 8, a person may file a Family Offense Petition against a relative or intimate partner for offenses such as harassment, assault, stalking, and menacing. Harassment is one of the most commonly alleged offenses—but also one of the most misunderstood.
To obtain an order of protection, the petitioner must show that the respondent committed a family offense, such as harassment in the second degree (Penal Law § 240.26). This requires conduct that is:
- Intentional,
- Directed at the petitioner, and
- Likely to cause alarm or serious annoyance, with no legitimate purpose.
Mere rudeness, name-calling, or a single unwanted message often does not meet this legal standard.
✅ What Is a Motion to Dismiss—and When Can It Be Filed?
A motion to dismiss is a formal request asking the Family Court to throw out a petition before a full hearing takes place. In harassment cases, we may file this motion if:
- The facts alleged do not rise to the level of a family offense,
- The conduct alleged has no ongoing or recent threat, or
- The petition is based on protected speech or minor disagreements that do not meet the legal threshold.
Winning a motion to dismiss means the case ends before you even have to testify.
🧑⚖️ Case Example: Gilmer Law Firm Wins Motion to Dismiss in Harassment Case
Our firm recently represented a Brooklyn father who was served with a Family Court petition for an order of protection filed by his ex-partner. The petition alleged that he had sent her several texts and made two phone calls, which she claimed were “harassing” and “unwelcome.”
Upon reviewing the allegations, we found:
- No threats were made.
- No obscene or alarming content was alleged.
- The communications were focused on co-parenting their child.
We filed a motion to dismiss, arguing that the alleged conduct—even if true—did not amount to a family offense under New York law. Specifically, we cited People v. Dietze, a case in which the Court of Appeals held that offensive language, without more, is protected speech and not grounds for criminal harassment.
After oral argument, the judge agreed: the petition failed to state a cause of action and was dismissed on the spot. Our client walked out of court free from the threat of a protective order—and without the need for a drawn-out trial.
🔍 Why the Right Legal Strategy Matters
Winning a motion to dismiss requires:
- A sharp understanding of Family Court Act Article 8,
- Knowledge of New York case law,
- Strategic timing, and
- A persuasive written and oral argument.
At The Gilmer Law Firm, we know when to push forward aggressively—and when to move to shut a case down before it gains traction.
💬 Facing a Harassment Petition in Family Court? We Can Help.
If you’ve been served with a Family Court petition alleging harassment, you don’t have to face it alone. Whether you’re in Brooklyn, Queens, or anywhere in NYC, we offer experienced and effective legal defense in order of protection cases.
📍 Contact The Gilmer Law Firm, PLLC at
15 Metrotech Center, 7th Floor, Brooklyn, NY
📞 Call: (718) 864-2011
📧 Email: gilmerlawfirmpllc@gmail.com
Let us help you protect your rights—and put an end to unfounded accusations before they become a bigger problem.
