Attorney for the Child May File an Article 8 Family Offense Petition on a Child’s Behalf Against a Nonparent Family Member

I. Introduction

Matter of Lockhart v Monica (2026 NY Slip Op 03535 [4th Dept June 5, 2026]) addresses a recurring Family Court problem: when a child is allegedly being harassed by an extended family member who is not a party to an underlying custody case, who can initiate a Family Court Act article 8 (“family offense”) proceeding to obtain protection for the child?

The petitioner was the Attorney for the Child (AFC), assigned in a separate Family Court Act article 6 custody modification proceeding. The respondent-appellant was the child’s maternal grandmother, accused of repeatedly triggering police “welfare checks” and making multiple child abuse referrals. Family Court found harassment in the second degree and issued a stay-away order of protection in favor of the child. On appeal, the grandmother primarily argued (1) Family Court lacked jurisdiction over her as a nonparty to the custody matter, and (2) the AFC, as a “nonparent,” lacked authority/standing to file an article 8 petition on the child’s behalf.

The Fourth Department affirmed and, in doing so, announced the decision’s central rule: an AFC has authority under Family Court Act § 822(a) to file a family offense petition on behalf of a child, including against a nonparent family member.

II. Summary of the Opinion

  • Jurisdiction: Family Court had article 8 jurisdiction because the child and grandmother are “members of the same family or household” as “persons related by consanguinity or affinity” (Family Ct Act § 812[1][a]).
  • AFC authority/standing: A family offense petition may be brought by a qualifying person under Family Ct Act § 822(a), and the child qualifies. The court held that the AFC may file the petition on behalf of the child under § 822(a).
  • Merits: The AFC proved by a preponderance of the evidence that the grandmother committed harassment in the second degree (Penal Law § 240.26[3]) through repeated police calls and reports that alarmed/seriously annoyed the child and served no legitimate purpose.
  • Relief: A stay-away order of protection was warranted to end family disruption and deter further unnecessary police visits (Family Ct Act § 812[2][b]; see generally § 842[a]) and was in the child’s best interests.

III. Analysis

A. Precedents Cited

1. Who may commence proceedings on behalf of children; the AFC’s litigation role

The court began with familiar article 8 practice: parents can commence family offense matters for children. It relied on:

  • Matter of Samantha I. v Luis J., 122 AD3d 1090, 1091 (3d Dept 2014)
  • Matter of Berg v Mantia, 77 AD3d 827, 827 (2d Dept 2010)
  • Matter of Harris v Magee, 77 AD3d 944, 945 (2d Dept 2010)

Those cases support the general proposition that a child’s protection interests may be litigated by a representative. The Fourth Department then extended that logic: if the statute allows the child to bring the petition as a qualifying “member of the same family,” the AFC—whose job is to represent the child’s interests—may file it on the child’s behalf.

On the AFC’s role and the court’s expectation of meaningful participation, the court emphasized:

  • Matter of Figueroa v Lopez, 48 AD3d 906, 907 (3d Dept 2008) (once appointed, the court cannot “relegate” the child’s counsel to a meaningless role)
  • Matter of Barbara T. v Acquinetta M., 164 AD3d 1, 8 (1st Dept 2018) (children’s attorneys are expected to participate fully; recognized standing to file objections not expressly listed)
  • Matter of Sloma v Saya, 210 AD3d 1494, 1494 (4th Dept 2022) and Matter of Payne v Montano, 166 AD3d 1342, 1343 (3d Dept 2018) (AFC must zealously advocate the child’s position)

These authorities functioned as more than background: they supplied the doctrinal bridge from “the statute does not expressly say the AFC may file” to “the AFC must be able to take necessary litigation steps to protect the child’s interests where the child is the real party authorized by § 822(a).”

2. Analogous recognition of AFC standing in other Family Court contexts

To counter the absence of explicit article 8 language authorizing AFC-filed petitions, the court pointed to established practice in article 6 custody/visitation litigation where AFCs have filed modification petitions despite no express statutory grant:

  • Matter of Richard CC. v Lacey DD., 243 AD3d 1186, 1187 (3d Dept 2025)
  • Matter of William V. v Christine W., 206 AD3d 1478, 1478-1479 (3d Dept 2022)
  • Matter of Nina M.T. v DeSabato, 198 AD3d 791, 792 (2d Dept 2021)
  • Matter of Merkle v Henry, 133 AD3d 1266, 1267 (4th Dept 2015)
  • Matter of Rebecca B., 227 AD2d 315, 315 (1st Dept 1996)

The point was methodological: Family Court practice often recognizes an AFC’s functional standing to litigate for the child where doing so is necessary to make the appointment meaningful and to protect the child’s interests.

3. Prior “passing” recognition that children (and their attorney) may originate family offense proceedings

The court acknowledged the issue had not been decided “directly,” but found persuasive dicta in: Matter of Pamela N. v Neil N., 93 AD3d 1107, 1110 (3d Dept 2012), where the Third Department stated that “as the children could have originated a family offense proceeding against him . . . his claim that they or their attorney ‘lack standing’ . . . is meritless.” The Fourth Department used this to show the proposition is not novel in concept, only now made explicit as a holding.

4. Proof of harassment and appropriateness of stay-away relief

On the evidentiary sufficiency for harassment in the second degree under Penal Law § 240.26(3), the court relied on:

  • Matter of Beck v Butler, 87 AD3d 1410, 1411 (4th Dept 2011), lv denied 18 NY3d 801 (2011)
  • Matter of Keith M. v Tiffany S.S., 177 AD3d 508, 508-509 (1st Dept 2019)
  • Matter of Doris M. v Yarenis P., 161 AD3d 502, 502-503 (1st Dept 2018)

On inferring intent to harass/annoy/alarm from circumstances despite asserted “concern,” it cited:

  • Matter of Carney v Carney, 231 AD3d 1535, 1536 (4th Dept 2024)
  • Matter of Inez A. v David A., 222 AD3d 547, 547 (1st Dept 2023)
  • Matter of Bianca L.C. v Alan H.D., 219 AD3d 1213, 1214 (1st Dept 2023)

Finally, on the propriety of a stay-away order of protection as a child-centered remedy, the court cited: Matter of Harrington v Harrington, 63 AD3d 1618, 1619 (4th Dept 2009), lv denied 13 NY3d 705 (2009).

B. Legal Reasoning

1. Separating “jurisdiction” from “standing/authority”

The grandmother framed her challenge as “jurisdiction” because she was not a party to the article 6 custody case. The court treated that as a category error. Article 8 jurisdiction depends on the relationship between petitioner and respondent and whether the alleged conduct constitutes an enumerated offense. Under Family Ct Act § 812(1)(a), a grandparent and grandchild are “members of the same family” (consanguinity), so Family Court had jurisdiction to adjudicate harassment allegations and, upon a finding, to issue an order of protection.

2. Reading Family Ct Act § 822(a) to allow AFC-filed petitions “on behalf of” the child

The key interpretive move is straightforward: § 822(a) authorizes a petition by “[a]ny person” in the required family relationship. The “person” here is the child. Once that is accepted, the remaining question is procedural: may the child’s appointed lawyer file the initiating paper for that authorized person?

The court answered yes, grounding the result in the statutory purpose of the AFC appointment (Family Ct Act §§ 241, 249[a]) and the regulatory/ethical expectation of zealous advocacy (22 NYCRR 7.2[d]). It reasoned that denying filing authority would undermine the legislature’s due-process-inflected command that counsel for children is “often indispensable” (Family Ct Act § 241) and would risk reducing the AFC to a “meaningless role” (Matter of Figueroa v Lopez, 48 AD3d at 907).

3. The “court’s own motion” alternative (Family Ct Act § 822[d])

The opinion notes that § 822(d) permits petitions “on the court’s own motion,” and the record suggested the initial Referee invited the AFC to file. But the court did not rest its holding on § 822(d). This is significant: the Fourth Department made the AFC’s authority an affirmative rule under § 822(a), not a case-specific workaround dependent on a judicial invitation.

4. Application of Penal Law § 240.26(3) to repeated police/welfare-check conduct

The court treated repeated, unjustified resort to police and child welfare reporting as potentially harassing conduct when it forms a “course of conduct” that alarms/seriously annoys and serves “no legitimate purpose.” It held that the AFC proved this by a preponderance of the evidence, crediting testimony that the child was frightened by police questioning and awakened to speak with officers.

C. Impact

  • Clear Fourth Department rule: This decision squarely recognizes AFC authority to commence article 8 proceedings on a child’s behalf against a nonparent family member, filling a practical gap where parents may be unwilling, conflicted, or constrained by temporary orders (as here, where the custody order discouraged police “intervention” absent emergency).
  • Expanded protective toolbox in custody-linked harassment scenarios: When harassment arises during custody litigation (e.g., repeated welfare-check calls), the AFC may now pursue direct protective relief rather than relying solely on custody-order enforcement or contempt mechanisms.
  • Likely statewide persuasive effect: Although binding only in the Fourth Department, the opinion’s reasoning aligns with cross-department expectations of robust AFC participation (e.g., Matter of Barbara T. v Acquinetta M.) and may be adopted elsewhere.
  • Foreseeable litigation questions: Future cases may test boundaries—e.g., AFC-filed petitions against non-relatives (jurisdictional limits), the interaction with parental decision-making, and when an AFC’s protective filing might conflict with a child’s expressed wishes (requiring careful application of AFC role rules and confidentiality/advocacy standards).

IV. Complex Concepts Simplified

Family Court Act article 8 (“family offense”)
A civil proceeding in Family Court for certain conduct that would be a crime (like harassment), allowing the court to issue civil orders of protection.
Jurisdiction (Family Ct Act § 812)
The court’s legal power to hear the case. Here, it exists because the parties are related (grandparent/grandchild) and the alleged conduct matches an enumerated offense.
Standing/authority to file (Family Ct Act § 822)
Who is allowed to start the case by filing a petition. The court held the child qualifies under § 822(a), and the AFC can file on the child’s behalf.
Attorney for the Child (AFC) (Family Ct Act §§ 241, 249; 22 NYCRR 7.2)
A lawyer appointed to represent the child’s interests in Family Court matters; expected to participate fully and zealously advocate the child’s position as required by law and rule.
Harassment in the second degree (Penal Law § 240.26[3])
A “course of conduct” (repeated acts) done with intent to harass/annoy/alarm that seriously annoys/alarm another person and serves no legitimate purpose.
Preponderance of the evidence
The civil burden of proof: more likely than not.
Stay-away order of protection (Family Ct Act § 842)
A court order requiring the respondent to stay away from the protected person, designed to prevent further harm or disruption.

V. Conclusion

Matter of Lockhart v Monica establishes an important procedural protection for children in the Fourth Department: an Attorney for the Child may commence a Family Court Act article 8 family offense proceeding on behalf of a child under Family Ct Act § 822(a), including against a nonparent family member. The court anchored this rule in the text of § 822(a) (the child is an authorized “person”), the jurisdictional reach of § 812 (grandparent/grandchild are “members of the same family”), and the legislature’s insistence that appointed child’s counsel be meaningful, participatory, and protective (Family Ct Act § 241; Matter of Figueroa v Lopez; Matter of Barbara T. v Acquinetta M.).

On the merits, the decision confirms that repeated, unjustified police and child welfare referrals can constitute harassment in the second degree when they frighten a child and serve no legitimate purpose, and that a stay-away order may be an appropriate remedy to end the disruption and deter recurrence.