In Matter of Rubackin v Rubackin, --- N.Y.S.2d ----, 2009 WL 486027 (N.Y.A.D. 2 Dept.) the Appellate Division, Second Department concluded that the standard of proof which must be met when the court commits an individual to a jail term is proof beyond a reasonable doubt that he or she willfully failed to obey a lawful order of the court. That same high standard is not applicable if one or more of the other available remedies under Family Court Act 846-a is utilized and a jail term is not imposed. The failure to obey a lawful order of a court is a species of contempt. A contempt of court ultimately may constitute a criminal contempt, a civil contempt, or both a criminal and a civil contempt. A period of incarceration may be imposed upon a finding of either a criminal or civil contempt. It noted that in Dalessio v. Kressler (6 AD3d 57), the distinction between civil and criminal contempt was discussed: "Civil contempt (see Judiciary Law 753) 'has as its aim the vindication of a private party to litigation' and includes as its elements knowledge of the order and prejudice to the rights of a party to the litigation [citations omitted] ... The purpose of criminal contempt (see Judiciary Law 750) is to vindicate the authority of the court [citations omitted]. No showing of prejudice to the
rights of a party to the litigation is needed 'since the right of the private parties to the litigation is not the controlling factor' [citations omitted]. An essential element of criminal contempt is willful disobedience (see Judiciary Law s 750 )" (Dalessio v. Kressler, 6 AD3d at 65-66). It noted that its holding changed the standard of proof previously found to be applicable under Family Court Act 846-a by it and by other departments of the Appellate Division. The Second Department held that when an individual is incarcerated as a punitive remedy for violating an order of protection issued under Family Court Act article 8, the imprisonment is for a definite term and the proceeding is one involving criminal contempt. The standard of proof that must be met to establish that the individual willfully violated the court's order is beyond a reasonable doubt. That higher standard, as opposed to the clear and convincing standard, is the requisite standard. The prior decisions of the Court, in cases where the respondent had been committed to a term in jail pursuant to Family Court Act 846-a, holding that the standard of proof is one of the lesser standards, should no longer be followed. A commitment to jail for a term not to exceed six months is only one of the five alternative, or cumulative, remedies the Family Court may impose pursuant to Family Court Act 846-a when it is satisfied that a party has willfully failed to obey the court's order or orders. When an order committing a respondent to a jail term is issued, either alone or in combination with another remedy, the commitment is punitive, to punish the individual for his or her disobedience, and the standard of proof is beyond a reasonable doubt. As a petition alleging that a respondent has failed to obey a lawful order of the court may result in a finding of criminal contempt, civil contempt, or both criminal and civil contempt, the parties should be informed of the potential findings and the applicable standards of proof.