In observance of October as Domestic Violence Awareness month, I have listed a set of laws that were passed this year specifically aimed at those victimized by domestic abusers.  Although New York’s legislators have made some strides, there is still a very long way to go.  Out of more than a couple dozen bills presented to the legislative body, these are the ones that actually passed both the Assembly and the Senate.  Here is the list:           

          Expanding Family Court Orders of Protection Allows all victims of domestic violence the right to seek a civil order of protection through the state Family Court System. Previously only married parties, parties with a child in common, or those related by blood or marriage were able to go to Family Court for a civil order of protection.  This amendment now avails those who merely had a relationship, whether they lived together or not, to go to Family Court.  (A.11707)          

         Merit Time for Domestic Violence Survivors Allows domestic violence survivors incarcerated for committing crimes against an abuser, as a direct result of the abuse suffered, to earn merit time and participate in temporary and early release programs.  Prior to this new law, only non-violent offenders were able to participate in temporary release programs.  This law serves to enable convicted and incarcerated defendants who suffered from domestic abuse the opportunity to rejoin society a lot sooner than other violent offenders. (A.6150)            

       Crime Victim’s Award This bill would help reduce financial hardships for crime victims by defining “necessary court appearances.” The bill would allow victims to be reimbursed for the transportation costs they incur while appearing in court proceedings related to the prosecution of their attackers. The crime victim compensation was previously narrowed to certain out of pocket expenses, i.e. medical costs, cost of repair or replacement up to $500, cost for residing in a domestic violence shelter, loss of income and cost of attorneys fees before the board up to $1,000.  Now transportation costs to court are included so this is no longer a deterrent for a victim to cooperate with the District Attorney’s office in prosecuting their abuser/attacker.   (A.6675)            

        Banning Plastic Knuckles This law adds plastic knuckles to the list of illegal and dangerous weapons. This broadens the list of weapons that causes serious physical injury. This law makes it possible to charge the abuser with possession of a dangerous weapon in addition to assault, battery, manslaughter or murder.  (A.10522)                  

          Orders of Protection and Gun Ownership Requires a judge, who is presiding over a criminal or family court proceeding, to inquire as to the possession of a firearm by a defendant under an order of protection. Although many judges inquired whether the alleged offender possessed any firearms, all too often many overlooked this important query.  Now this inquisition is mandatory.  (A.1497)    

      Creating a Criminal Penalty For Obstructing A Call for Emergency Assistance This law establishes that an act to intentionally prevent a person from making a call for emergency assistance is a crime. The measure is aimed at preventing domestic violence. This is now a misdemeanor crime, where previously it might have been considered when there were other charges against the abuser.  (A.614)

It is our duty to our family, friends, colleagues, neighbors who suffer at the hands of their abusers, whether it be physical, emotional or economic abuse to become active and remain proactive in affecting change.  This means keeping abreast of the bills being presented and contacting our local and state officials to ensure that all that can be done is in fact done to save these victims.

Feel free to contact my office to discuss your domestic violence case or any other family law issue.

          Last week I discussed jurisdictional issues that come up when a child and/or custodial parent relocates to another state and its impact on child custody and/or visitation with the noncustodial parent.  And although the UCCJEA and the PKPA certainly come into play in domestic relocation cases, the applicability of these federal statutes may be applicable in international custody and visitation cases as well.  The Hague Convention, however, will almost definitely apply in international cases but not domestic ones. This statute does not determine which state has jurisdiction, as do the other two federal statutes, but serves to have the child returned to the home country.

          The Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) is a multilateral treaty (ratified by the U.S. in 1988) that sets forth an expeditious method to return a child taken from one member nation to another (not all countries have adopted the Hague Convention). The Hague Convention was drafted to insure the prompt return of children who have been abducted from their country of “habitual residence” or wrongfully retained in a country other than their country of habitual residence.  The Hague Convention seeks “to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their “habitual residence”, as well as to secure protection for the rights of access.”  The primary intention of the Hague Convention is to maintain the  status quo of a child custody arrangement that existed immediately before the alleged wrongful removal or retention. The Hague Convention, however, only applies to children under the age of 16.
         The Hague Convention provides that the removal or retention of a child is “wrongful” whenever:
                 a).   it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was “habitually resident” immediately before the removal or retention; and
                b). at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.” These rights of custody may arise by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of the country of “habitual residence”.

          Whether there is a court order for child custody or a mere agreement between the parents, or persons legally responsible, the Hague Convention can be invoked where the rights to care for the child are concerned.  “Habitual residence”, although is not defined by the Hague Convention, is typically determined by the court (state court or District court in New York have jurisdiction) on a case by case basis.  Unlike the UCCJEA and the PKPA, “habitual residence” is not determined by the child residing in a particular state for a period of at least six months.  Thus, the “home state” provision in these statutes is not applicable here. “Habitual residence” is usually the place the child resided before the questionable removal period, unless the move was done on consent or with the intention of the new place being the permanent home. Further, the court must look at the shared intentions of the parties, the history of the children’s location and the settled nature of the family prior to the facts giving rise to the request for return to determine “habitual residence”. 

          Additionally, the child must have been wrongfully removed or retained to invoke the Hague Convention, and unlike the UCCJEA and PKPA, the best interests of the child standard does not come into play.  However, there are defenses to the law, where the  parent that wrongfully removed  the child can prove that:
 
               1) the removal or retention occurred more than one year prior to the commencement of child custody proceedings in the “new” country; or
              2) the other parent was not exercising any visitation with the child at the time of removal or retention or acquiesced in the removal or retention; or
              3) a return of the child to the country (not necessarily the parent) would subject the child to a grave risk of harm, either physical or psychological (domestic violence cases are not an automatic bar); or
             4) the “new” country’s courts finds that a child of significant age and maturity to have his or her views considered, does not wish to return; or
            5) a return would not be permitted pursuant to the “new” country’s fundamental principles as it relates to human rights.

         Given these exceptions, it is imperative to commence a Hague Convention proceeding as soon as possible, for the longer the child remains in the other country the better the argument the removing parent can make that the child should not be returned. Also, it is crucial to establish and collect proof that this is the child’s “habitual residence” and that it was the intention of both parents to make it permanent.  This may not be as easy where a parent who is a national of another country, comes here,  raises the child here and can make a showing that there was always an intention to have the child relocate to his or her home country.  It is not uncommon for that parent to covertly establish a residence in that other country for themselves and the child, unbeknownst to the left behind parent, while living here and maintaining a life here.  This can certainly make the left behind parent’s evidentiary case quite challenging, unless that parent is diligent in amassing as much proof as possible to prove otherwise.  Also, contacting the U.S. State Department on Children’s Issues, the federal and state prosecutors, as well as other agencies should be put on notice as soon as the removal or retention occurs.

          Although there is no way of knowing for certain if a parent plans on absconding with their child at any point, it is always wise to take every possible precautionary measure to prevent such an act.  Having open and constant contact with the other country’s officials, hiring an attorney both abroad and here and being diligent all help to facilitate a safe and prompt return.

          There are areas of law that are esoteric in that they have very particularized principles, rules and laws that apply to only to that specialty.  It is often said that the area of family law encompasses a myriad of disciplines and therefore requires, at the very least, a basic understanding of many different principles in several areas of law.  One of those disciplines is criminal law, which certainly overlaps, if not collides in many instances, with family law.  Criminal law is one of those practices that require some understanding of its ramifications on the highly sensitive and very volatile area of family law.  I would like to address how the penal law statute, and the criminal procedure laws, apply in Family Court (and in Supreme Court in divorces) and thus impacts the overall outcomes.

          First, family offense proceedings, cases where the party is seeking an order of protection, is certainly one area where the criminal component comes into play. A party related by blood, marriage or consanguinity can get a civil order of protection in Family Court, and in Supreme Court if the parties are spouses in the middle of a divorce.  The order proscribes one from coming within a specified distance of another (including children) and/or from harassing, assauting, menacing, etc. that other party.  In addition, those circumstances, where the accused has caused some physical injury or serious physical injury, may also lead to an arrest of that party and is in fact very likely.  In the event there is an arrest, even though the Criminal Court may issue an order of protection, the Family Court may also issue an order based on the same set of circumstances (although the duration of the respective orders differ).  Although all Family Court cases do not warrant a companion criminal case, the court can certainly direct a litigant to the District Attorney’s office, the police or civilian agency if a criminal investigation is justified.  Conversely, however, a similar case that ends up in an arrest will not necessarily be directed to Family Court for a “civil” order of protection but the victim may certainly go to Family Court, particularly where there are children involved.

          Next, child abuse or neglect cases often have a criminal component, involving one or both of the parents or “persons legally responsible”.  Where a parent causes physical injury, serious physical injury or the threat of either, he or she subjects him or herself to possibility of a criminal charge of assault (physical or sexual), endangering the welfare of a minor or other related criminal charge.  In these cases, the police, as a “mandated reporter” must refer the case to the child protective agency.  If, however, the case gets to the agency first, the agency may refer the case to the District Attorney’s office for criminal investigation and/or prosecution.  Depending on the nature of the facts and circumstances, the case may definitely have both a Family Court and Criminal Court component comcomitantly.  The outcomes of both differ significantly, a criminal case subjects one to incarceration, probation, fines, etc, while a abuse or neglect case in Family Court may result in supervision by the agency, the child being placed in foster care and/or termination of parental rights (in addition to a whole host of services being provided to the family to ameliorate the initial problems).

          In child support cases, there is also the possibility of the application of the criminal statute.  Although there is a penal law section that is applicable to cases for non-payment of child support, these cases are rarely prosecuted.  Nonetheless, there are instances where incarceration may be imposed for a non-custodial parent who has been found to be “willful” in not making child support payments.  The penal law makes it a misdeamor or felony crime for failure to pay child support depending on the amount owed.  Although it is rare that parties are prosecuted on the state level for not paying child support, the law  remain on the book.  On the other hand, there is a provision in the Family Court Act that authorizes a judge to impose a period of incarceration of up to six months for a party’s failure to pay for no justified reason, although this is not considered penal in nature. 
 

          There are advantages and disadvantages to pursuing a case in Family Court as opposed to Criminal Court and vice versa.  These distinctions are based primarily on the different procedures, standards of proof, applicable provisions, etc. that are particular in each court. For example, in criminal cases the burden of proof is on the prosecution and the standard of proof is “beyond a reasonable doubt”.  This means that the prosecutor must prove that the party (defendant) accused of committing the crime did in fact commit the crime, by proving every element of the crime.  They must do this by putting on a case where there is not just a “reasonable” doubt but a doubt beyond what a reasonable person would have.  While in Family Court cases, either the agency ( CPS/ACS or Corporation Counsel) or the other party has the burden of proving that the party petitioned (respondent) did in fact commit the act alleged  The standard of proof in these cases is either a “preponderance of the evidence” or “clear and convincing evidence”, depending on the phase of the case. Additionally, other rules of evidence, i.e. hearsay, differ in their application, as well as the use and application of constitutional provisions. The penal law, criminal procedure law, the civil practice rules, as well as some administrative codes apply to criminal cases, while the Family Court Act, Social Service Law, Mental Hygiene Law, civil practice rules apply to family law cases.  Although some of these principles overlap, their applicability to the different cases determine the manner in which they govern, which ultimately affects the outcome of the case. 

          Of course there are sections of the penal law that apply regardless of which court the parties are in or the type of case.  Perjury, which is lying under oath; filing a false report/claim; forgery; contempt (although civil contempt is more likely); illegal possession of an official document are all criminal charges that may result from a case in Family Court or any other court for that matter. Since Family Court judges have no jurisdiction to proceed on a Criminal Court case and the power to prosecute is within the District Attorney’s office, if there has been a crime committed in a family law case, that court must refer the case for prosecution.  The discretion to prosecute lies with the District Attorney’s office, so merely referring a case to the office does not guarantee a criminal investigation or prosecution.  Family law issues that arise in Criminal Court do not necessarily need to be referred to the child protective agencies but certainly do not go unnoticed.  In other words, criminal cases that raises some issues of abuse or neglect or child support violations will certainly be addressed by the court but more often than not was already brought to the agency’s attention.  Again, since police officers are “mandated reporters”, they will call the agency at the time of an arrest therefore giving the agency the opportunity at the outset to file a petition.

          New York has established a courtroom specifically designed to handle the intersection of criminal and family law, where there is domestic violence.  The Integrated Domestic Violence Part’s main objective is to mainstream the overlapping issues, ensure  consistent rulings & outcomes and to provide trained workers to address the cornucopia of issues involved in these cases.  And although it certainly helps to have one judge hear all of the issues, both criminal and family law, there are times when a different set of issues result in the end.

           Feel free to contact us to discuss your criminal or family law case.

          March has been declared Ethics Awareness Month.  Although it started out as  a weeklong acknowledgement, by professionals in the financial industry back in 1990, it has since evolved.  Today is has been broadened to the entire month of March and to other industries acknowledging it.

          It is very challenging in family law, divorce law and criminal law cases to adhere to some of the ethical obligations attorneys are required to.  In New York, our rules are somewhat are nationwide standards imposed upon attorneys. So in child custody, child visitation, child support, paternity, divorces and domestic violence, sometimes the requirement to follow ethical obligations are often times countered by attorneys’ personal, moral and idealistic beliefs.  Particularly as the attorney for the child, there are too many times when my initial reaction is to do what is “right” as opposed to what is “ethical”.  However, because I took an oath that must be upheld, I always internalize my initial reaction and do what is “ethical”.  Here I want to explore some of the practical instances where both of these principles collide, particularly in representing the parents.

          In child custody cases, as the attorney for either parent, it is inevitable that personal beliefs about which one is the more “fit” parent arises.  In a situation where, for instance, the custodial mother has always been the primary caregiver-prepares meals for the children, dresses the children, tends to them when they are sick, takes them to doctors appointments, encourages practice of religion, encourages and supports social activities/engagements, fosters a relationship with the noncustodial parent but fails to encourage, support or get involved with their academics or school activities, should that custodial parent be provided with representation that supports her maintaining custody?  Or should the noncustodial parent who puts education first prevail in a child custody case?  Well, morally, depending on one’s own personal beliefs, one may say that there is almost nothing else in children’s lives that deserve more emphasis than academics.  However, as the attorney for that custodial parent, advocacy on behalf of that client must be done zealously.  Pursuant to the Disciplinary Rules, an attorney must not fail to carry out the contract of employment, shall not prejudice or damage the client during the professional relationship and shall advocate on behalf of that client zealously.  Furthermore, if the attorney is aware of controlling legal authority that is in the noncustodial parent’s favor in the same or very similar circumstances, he/she is obligated to reveal such information to the court if the other attorney does not, when presenting the case.

          In child visitation cases, conflict typically occurs when the custodial parent refuses the noncustodial child visitation or when the custodial parent insists on supervised visits.  As attorney for the custodial parent, unless there is proven history of domestic violence, child abuse or drug/alcohol abuse, exercising zeal and diligence in advocacy can be quite a struggle.  For attorneys who firmly believe that all parents should have free and unfettered access to their children, the tension in representing custodial parents who do not share in this belief presents a very difficult task.  However, pursuant to the Disciplinary Rules, the attorney must not intentionally fail to seek the client’s objectives through reasonable and available means, despite his/her personal views.  This, however, does not mean the attorney can not express his/her opinion; it just restricts the application of that opinion to the client’s overall objective.  In situations like these it is sometimes very helpful when the attorney for the child reports that the his/her client’s position or the attorney for the child’s position (where he/she substitutes his/her own judgment) actually supports the attorney’s personal view.  Conversely, as the attorney for the noncustodial parent who has been the aggressor in domestic violence incidents, the drug or alcohol abuse or the child abuser, the conflict is just as profound.  What is the attorney to do when the client/drug abuser discloses that he/she is still using drugs but continues to insist on visits.  Well, the ethical rules do not limit its applicability in this particular circumstance.  The attorney still has an obligation to advocate zealously on his/her behalf, not prejudice or damage the client and more importantly, preserve the client’s confidences (except where permitted by another Disciplinary Rule or required by law). 

         The same holds true in child abuse/neglect cases.  As attorney for the noncustodial parent who is the abuser, in domestic violence, child abuse or drug abuse cases, there is typically an overwhelming conflict in ethically representing the noncustodial/abuser parent.  Many times both parents, and/or “persons legally responsible”, may be parties in child abuse/neglect cases.  It is not uncommon for one of the parties to pay for both parties’ counsel fees (since it is a conflict for one attorney to represent both parties).  In a situation like this, it may not seem so odd that the paying party directs a) how the attorney represents his/her client; b) how the attorney advises the client or c) even how the attorney communicates with the client.  This however, clashes with ethical rules.  The attorney must exercise professional judgment solely on the client’s behalf, disregarding the desires of others where it might impair the attorney’s own judgment. 

          In child support cases, the challenge is not minimized just because the Child Support Standards Act governs.  There are still many situations where ethics are tempted by moral and personal judgments.  Many of us are sympathetic to noncustodial parents who have other legitimate financial obligations that limit their ability to provide for their children as provided by the statutory guidelines.  Noncustodial parents who have not and do not run from their obligation to support their children, are at times unduly burdened by the obligation mandated by the statute.  As the attorney for the custodial parent, it can be unnerving to know that the noncustodial parent may be forced to resort to, what most of us would agree, is somewhat demeaning living arrangement, particularly where that party has child visitation at that home.  However, again, the Disciplinary Rules does not permit personal views to compromise our ethical obligations.  In addition, as the attorney for the noncustodial father, particularly, even questioning paternity or filing a paternity action may pose an ethical problem if that attorney does so solely for the purpose of harassing or maliciously injuring the custodial parent. That attorney could not even advise his/her client to not pay the court ordered child support, even though paying is improbable, unless he/she has a good faith legal basis to challenge the order.

          In divorces, innumerable ethical obligations arise, putting the attorney in compromising positions.  Full disclosure in divorce cases is paramount to providing adequate and competent representation.  However, there are instances where it is tempting to advise a client to omit some information, not necessarily to mislead the other party but to avoid other consequences.  For instance, a client may want to leave out rental income on his/her Net Worth Statement because of possible tax implications.  However, ethically speaking an attorney can in no way participate in the commission of a crime, must try to talk a client out of committing fraud and must report the fraud to the court (as long as the confidences or secrets rules are not violated) if the client refuses to.  How about where the client mentions that after shopping around he/she found a realtor (who will sell the marital residence) that charges a commission a lot less than other realtors.  Can the attorney use this information for his/her personal use, in selling his/her own home?  Maybe not, pursuant to the Disciplinary Rules, not without the client’s permission. 

         Many of these cases involve domestic violence criminal elements that also pose ethical challenges.  Where during an appearance at the divorce proceeding, for instance, the attorney and his/her client are in the hallway and the other party assaults his/her client in front of the attorney.  That attorney may have to withdraw as counsel if he/she may need to be a witness in the domestic violence criminal trial.  Or the attorney may choose not tom put his/her defendant/client on the witness stand, despite the client’s insistence, in a domestic violence criminal trial where that decision is based on their professional judgment.  By far one of the most challenging positions attorneys are put in is in circumstances where their client has disclosed the intention to commit a crime; there are several factors the attorney must take into account before exercising discretion in whether or not to disclose that information to the authorities. 

         Although many of these rules may be excused by another provision of the Disciplinary Rules, there are some that are explicitly prohibited.  Some situations are not as clear cut as others and require that the attorney exercise sound judgment.  Although I discussed several rules here there are many more that may apply in the described scenarios. The bottom line, it is not easy to have to juggle some of the most widely accepted, germane principles in morality with ethical requirements imposed upon us.  However, it gets to the point where we (at least for some of us) rationalize being forced to choose ethics over morality by the good we provide in the end.

Feel free to contact my office to discuss your case.

          There is nothing more fundamental that being able to raise your child as you see fit.  One should conceivably be able to raise their child according to his or her own values, beliefs and ideals, without the overreaching and intrusive interference of the state.  However, if states were to leave this role up to the parents or legal guardians entirely, there would be no voice to protect the rights of the children, putting their physical and emotional well-being in jeopardy.  Each state has taken on the role of safe keeper of children, once the number of parents abusing their right to parent has skyrocketed, which ultimately resulted in an immeasurable number of fatalities.  In New York, Article Ten of the Family Court Act was enacted in 1969, as a result of the public outcry over the death of a young girl.  And although this statute was promulgated to protect children from abuse and neglect, it was the passing of the Child Protective Services Act of 1973 that directly addressed the reporting and investigating of child abuse and neglect cases in New York.  Under the Act, a Child Protective Service (“CPS”) office was established in each county, to encourage more complete reporting of child abuse cases, to investigate and prevent abuse and to provide rehabilitative services to parents, caregivers and children that were involved in such cases.  Allegations of child abuse and neglect cases provided to the State Central Registry by “mandated reporters”, which include medical providers, mental health professionals, law enforcement, daycare providers/workers, teachers and district attorneys, are investigated by the agency as they are reported.

            Although examples of child abuse are pretty obvious , i.e. sexually abusing, physically abusing, or allowing another to abuse the child in this way, child neglect cases can be a lot less identifiable.  For this reason, child neglect cases are more frequently investigated by CPS and brought before the court than child abuse cases, even though both may result in misdemeanor, felony and/or domestic violence criminal cases being brought in addition to the Family Court case.  Child neglect is when a parent or person legally responsible for the child, fails to care for the child and causes physically, mentally or emotionally to the child as a result or when the child is in danger of such harm because of the parent’s failure to care for him/her.   A parent, or person legally responsible, may be charged with neglect for failure to feed a child properly, failure to enroll or send a child to school, failure to seek medical treatment for a child, leaving a child home alone or with another child not old enough to watch the child, amongst many other.  There are many times when a parent, who happens to be faced with other life challenges, may unintentionally fail to act or to do something that is necessary to the child’s well-being.  Many of these situations should not necessarily rise to the level of an child neglect case but they do.  For instance, one of the most litigated child neglect case is when a parent uses corporal punishment to punish the child.  The laws in New York do not prohibit the use of corporal punishment; it prohibits the use of “excessive” corporal punishment or “unreasonable” physical force.  The New York Family Court Act and the Penal Law both address the extent to which parents’ may inflict physical harm on children.  The applicable provisions read as follows:

Neglecting a child includes unreasonably inflicting or allowing the infliction of harm or substantial risk thereof,  including excessive corporal punishment. (Fam. Ct. Act Sec. 1012).

Parent/guardian/other person with care and supervision of person under 21, can use non-deadly physical force when and to the extent he reasonably believes necessary to maintain discipline or promote welfare of person force performed upon. (Penal Law Sec. 35:10).

The difficulty for most parents comes into play when trying to discern what is “excessive” and/or what is “unreasonable” according to the law.  For example, in some instances the use of a belt to discipline a child is considered excessive and/or unreasonable, while in others the courts will dismiss a child neglect charge under such circumstances.  There is little uniformity in the definition of “excessive corporal punishment” or “unreasonable physical force” when it comes to the courts.  This is mainly attributed to the fact that bureaucratic and judicial decision-making are largely subjective in Family Court, leaving the consistency and fairness of the implementation of the child abuse and neglect laws up to the agencies.  Nonetheless, the key to determining if the line has been crossed, is first limiting the use of or refraining from the use of physical or corporal punishment altogether.  However, in instances where it is necessary to “maintain discipline or promote the child’s welfare”, some physical discipline may be justified from all perspectives.    

In other circumstances, however, where the child neglect case arose out of a parent’s failure to act, avoiding CPS’ involvement may be impossible.  Even when harm to the child was unforeseeable, not knowing that one should have done something may lend itself to agency involvement.  In a medical neglect case, for instance, where a parent fails to take a child to the doctor to be treated for an ear infection, his or her legitimate belief that an ear infection may eventually heal itself does not prevent CPS from opening an investigation against that parent.  This may not be fair considering the fact that some parents are much more experienced and savvy when dealing with less serious ailments, than the new parent, for instance.  Furthermore, in this day and age where many households are single parent, one wage-earner units, the practicality of acting in every instance is almost non-existent. 

Unfortunately, there is no surefire way to avoid CPS’ involvement in any scenario.  It’s almost as if choosing to become a parent automatically opens one up to the susceptibility of state intrusion to some degree.  A parent’s best bet is to know what not to do, than what not knowing what to do!  Communicating openly with physicians, school administrators, social service workers, etc. may not necessarily avoid agency intervention, but doing so may better prepare one to explain or defend his or her actions if questioned by the players involved.  

If you need to discuss your child abuse or neglect case, please contact my office for a consultation.

           Violence against women is a major cause of poverty and a huge barrier to economic opportunity throughout the world, not just here in the U.S.  It keeps women from getting an education, working, and earning the income they need to lift their families out of poverty. It impedes economic development because it can prevent girls from going to school, or stop women from holding jobs or inheriting property, or shut down access to critical health care for themselves and their children.  Efforts to wipe out AIDS and other diseases are compromised when women are beaten for telling their husbands they are infected.  Girls are less likely to attend school when they fear being raped by their teachers.  And research shows that giving women in poor countries economic opportunity empowers them to escape abusive situations.
            The good news is that violence against women is gaining in worldwide recognition and could be prevented successfully by actions taken by our leaders.  The International Violence Against Women Act (I-VAWA), is a groundbreaking piece of legislations that, if passed, would incorporate these solutions into existing U.S. foreign assistance programs. It would support local women’s organizations overseas that are working to to end violence against women in their countries. By promoting women’s economic opportunity, addressing violence against girls in school, and working to change public attitudes, the I-VAWA could have a huge impact on reducing poverty -  freeing women in poor countries to lift themselves, their families, and their communities out of poverty.   The I-VAWA (S.2279) was introduced in the U.S. Senate on October 31, 2007 by Senator Joseph Biden (D-Delaware) and Senator Richard Lugar (R-Indiana), the authors of the Violence Against Women Act of 1994, 2000 and 2006.  (”VAWA”)

“The International Violence Against Women Act marshals together, for the first time, coordinated American resources and leadership to address this global issue.  I believe the time is now for the United States to get actively engaged in the fight for women’s lives and girls’ futures, and we must begin by preventing and responding to the violence they face,” added Sen. Biden.
 
“We cannot expect to reduce poverty and decrease the spread of diseases such as HIV/AIDS until we have more equitable treatment of women in developing countries.  Empowered and educated women are the key to breaking these cycles,” said Sen. Lugar.
 

           It was developed by the lead sponsors in conjunction with the Women’s Edge Coalition (Edge), Amnesty International USA (AIUSA), the Family Violence Prevention Fund (FVPF), and the help of organizational partners. It is the result of joint efforts from several national women’s organizations, politicians and the United Nations.   Throughout the world, violence against women and girls is perpetrated within marriage and families by husbands, intimate partners and relatives; within communities by strangers and traditional leaders; in the workplace; across international borders as women are trafficked for sex and labor; and as a tool of war by military forces.

          The United States must continue to invest in a world where women feel safe in their homes, on the streets and at their jobs. This will enable them to build better lives for themselves, their families and their communities. Countries can take critical steps in ending violence against women by improving women’s status in society, enforcing laws to protect women and prosecute perpetrators, and offering treatment for women. The United States has the responsibility, has a global leader, to take very critical steps in ending violence against women by:
                     Increasing women’s economic empowerment and education
                     Increasing women’s access to health care
                     Improving security in humanitarian and crisis situations
                     Promoting legal reforms and social norms to address gender-based violence

The bill includes three major provisions to fight violence against women.

1.  It would create a central Office for Women’s Global Initiatives to coordinate US policies, programs, and resources that deal with women’s issues.
2.  It requires a 5-year comprehensive strategy to fight violence against women in targeted countries and provides $172 million a year to support programs that fight violence against women.
3.  It mandates training, reporting mechanisms and a system for dealing with women and girls afflicted by violence during humanitarian, conflict and post-conflict operations.

 

We can fight domestic violence globally and effect change collectiveyly! 

SO TAKE ACTION NOW.  VISIT http://takeaction.amnestyusa.org/ to sign the petition to pass this very important legislation!

          Since the enactment of federal and state laws, creation of national and local organizations and media attention to domestic violence a plethora of research, data, statistics, resources has been publicized.  There is extensive information about the impact of domesic violence, the preventioin of domestic violence and the treatment for domestic violence victims.  And although there are several channels by which this information is brought to the attention of the public, there are still many misconceptions about issues involving domestic violence.  We will disspell some of the most common myths about the effects of domestic violence, the approach to its treatment and measures for prevention.

Here are a list of some myths:

Myth:  Only a small fraction of domestic violence victims are men, the majority is women.
Fact:  While approximately 1.3 million nationwide victims are women   yearly,  approximately  835,000 are men. According to the Center for Diseased Control and Prevention.

Myth:  Domestic violence only affects women of color or immigrant women.
Fact:  Women of all races are equally vulnerable to domestic violence.

Myth:  New York has the highest per capita rate of domestic violence related fatalities in the U.S.
Fact:  As of 2005, the last year research is available, New York came in fifth.  Data provided by the NY Office for the Prevention of Domestic Violence.

Myth:  Most of the New York victims of domestic violence had an Order of Protection in effect when their abuser murdered them.
Fact:  For the past five years, 80-90% of the murdered victims had no current Order of Protection in place.  Data provided by the NYC Office to Combat Domestic Violence.

Myth:  Most of the men who abuse their spouses/paramours do not abuse their children.
Fact:  More than 50% of the men who abuse their spouses/paramours also abuse their children.

Myth:  Most abusers who petition for child custody do not prevail.
Fact:  70% of the abusers are awarded custody of their children.  Data provided by Stop Family Violence.

Myth:  Women have nothing to worry about when alleging domestic violence to a Family Court judge, their stories are always believed.
Fact:  Many judges are more likely to not believe women, thinking that they are just making these allegations as a strategy to gain custody.

Myth:  As long as children do not see the actual acts of domestic violence, they are safe from its effects.
Fact:  80-90% of children in domestic violence households are aware that it exists even if they do not witness it firsthand. Data provided by ACADV.org

Myth:  Fathers are more likely to abuse their children than mothers are.
Fact:  Mothers who were victims of domestic violence are twice as likely to abuse their children.  According to AAETS.org

Myth:  There is no effective treatment for batterers.
Fact:  Although Batterers’ Intervention Programs  have a small effect on treatment, the impact of treatment is significant especially when treatment is continuous.

            Although milestones have been made in getting the word out, providing help to the victims and getting treatment for abusers there is still much to be done.    Getting involved, staying informed and spreading the word only helps in the effort. 

 IF YOU OR ANYONE YOU KNOW IS A VICTIM OF DOMESTIC VIOLENCE, PLEASE DO NOT HESITATE TO CONTACT THE NEW YORK STATE HOTLINE AT 800-942-6906.
 

          Each year domestic violence advocates are making more and more strides in getting out the message “domestic violence can be fatal”.  Getting attention, taking action and seeing results has been the efforts of many of New York’s social service agencies, resource centers, professionals, polititicians, etc.  As a result, this year alone, there has been a considerable number of bills passed by both Houses and signed into law by the Governor.  Although there were more than triple the number of bills introduced than than the total actually passed, New York still made some strides in addressing some major issues that arise in domestic violence situations. Here is a list of the laws (and amendments) of 2007 that affect domestic violence cases, both victim and batterer:
               1.   Domestic violence survivors leaving their apartments to avoid further violence or the threat of violence, may do so without facing the possibility of civil penalties for breaking their lease.  The amendment to Real Property Law § 227-c authorizes the same court that issued the order of protection to also terminate the residential lease before the lease term ends.  Before making a request in court for lease termination, the victim must have attempted to negotiate a termination with the landlord, and gotten nowhere. The petition for relief itself, must provide notice of the proceeding to the landlord and any co-tenants, including the batterer if he is a co-tenant. The victim must also show that there is substantial risk of physical or emotional harm to him/her or his/her child (even with the order of protection), that relocation will substantially reduce the risk, that attempts for a voluntary termination from the lease were denied, and he/she is acting in good faith. If a lease termination order is granted, the victim must timely pay (or have paid) all sums due and must return the property free of occupants. If, however, there is(are) co-tenants, the victim is not responsible for removing the co-tenant from the premises after an order is issued. This law empowers the court to sever the joint tenancy, allowing the co-tenant to assume the lease a alone, unless all tenants agree to a complete termination. The law also outlines procedures for adjustments in rent and for the setting the termination date. This law took effect October 1, 2007.
               2.   Sex traffickers are now subject to criminal prosecution in New York, and not just federal prosecution.  This new law, Penal Law §§230.34 and 135.35, Penal Law §§230.36 and 135.36 provides that victims of sex and labor trafficking will not be held accountable as accomplices to their traffickers. Sex trafficking and labor trafficking are now included under Penal Law §460.10 and Criminal Procedure Law §700.05 as criminal acts that may be the basis of an enterprise corruption charge and prosecutors are authorized to employ wiretaps on trafficker’s telephones. Also, Executive Law §621(5) is amended to reflect the criminalization of labor and sex trafficking; Penal Law §230.03 is repealed, and Penal Law §230.04 elevates the crime of patronizing a prostitute from a B misdemeanor to an A misdemeanor. A person who knowingly sells travel-related services for prostitution tourism in another jurisdiction is guilty of a felony under Penal Law §230.25(1).  Defendants convicted of sex trafficking must also register as a sex offender pursuant to Correction Law §168-d(1)(b); Social Services Law was also amended to add a new Article 10-D, which sets forth the definition of human trafficking victims and provides for services available to human trafficking victims as soon as practicable, which included non-citizens.   An Inter-Agency Task Force was created to oversee sex and labor trafficking, whose responsibilities include assessing the state’s progress in preventing human trafficking, prosecuting traffickers and providing services victims of human trafficking.  This law will take effect on November 1, 2007, but the Inter-Agency Task Force law is effective immediately.

               3.   Batterers applying for firearms license now face stricter requirements where a court finds that there was a willful violation of orders of protection, which caused physical injury.  Criminal Procedure Law §§530.14(1)(a)(ii)(A) and 530.14(3)(a)(i) were amended and requires a court to order the revocation of or defendant’s ineligibility for firearms licenses and/or to order the immediate surrender of all firearms owned or possessed by the defendant upon determination that the defendant willfully violated a temporary or permanent order of protection by inflicting physical injury upon another person. This amendment now lessens the degree of injury from “serious physical” to “physical injury”.  This law took effect August 2, 2007.

               4.   Domestic violence victims may now have a court issue a temporary or permanent order of protection in a broader range of cases than just criminal and family offense cases.  Criminal Procedure Law currently authorizes orders of protection to be issued in criminal family offense case or non-family offense cases as a condition of any order of release on own recognizance (ROR), adjournment on contemplation of dismissal (ACD), pre-trial release (non-family offenses only) or bail. However, neither CPL §§530.12 or 530.13 expressly permit the issuance of a temporary order of protection where the defendant was committed to the custody of the sheriff, rather than released. Although a defendant may not be released s/he may continue to pose a threat to the victim or have contact with her from the confines of jail. By amending CPL §§530.12(1) and 530.13(1), this new remedial law provides the courts with express permission to issue a temporary order of protection “in conjunction with any securing order committing the defendant to the custody of the sheriff.” This law took effect July 3, 2007.

               5.   Batterers on probation may face violation of probation for family offenses.  The amendment to the Criminal Procedure Law and the new section (§410.92), allowed the Division of Probation to establish pilot projects in four New York State counties outside of NYC. Additionally, the law also amends Correction Law §500-a(1)(c) to permit temporary detention of individuals in violation of their probation for family offense, sex offense or youthful offender convictions.   Under the new law, a person on probation may be taken into custody for a violation of a condition of a sentence of probation when the Director or Deputy Director of the local Probation Department determines that the probationer is a public safety risk and the probationer may be detained for up to 48 hours to permit the sentencing court to determine whether the he/she violated a condition of his or her sentence. If the sentencing court finds reasonable cause that a condition of the sentence was violated, the court may commit the probationer into the sheriff’s custody, set bail or release the person on their own recognizance. If there is no probable cause, the probationer will be released. Further, the law requires the Office of court Administration to ensure that judges in pilot program communities are available to review the status of persons in custody pursuant to the detainer. The law took effect July 18, 2007.

               6.   The Office of Court Administration was authorized to create rules for selected Family Courts (in Erie, Onondaga, Monroe, Nassau, New York, Westchester, Richmond, Kings, and Albany counties) to institute experimental programs that will allow temporary or permanent orders of protection to be transmitted to the police or sheriff, by fax or electronic means, for service on the batterer.   However, participation in this pilot program is voluntary.  This law took effect July 18, 2007.
               7.   Domestic violence victims no longer have to pay the sheriff’s departments in New york, for serving orders of protection or any other documents attached to orders of protections. This includes fees for mileage associated with service and/or fees where an order cannot be served in one attempt. This law adheres to the STOP Formula Grant Program’s requirements under the federal Violence Against Women Act, which states that survivors of domestic violence, sexual assault and stalking who obtain civil orders of protection from their offenders should not have to bear financial expenses related to obtain these orders.  This law took effect August 8, 2007.  
               8.   Destruction of property or vandalism (”criminal mischief” crimes) are now “family offenses” . An amendment to §812(1) of the Family Court Act and §530.11 of the Criminal Procedure Law adds the crime of criminal mischief (PL §145.00-145.12) to the list of enumerated family offenses under which both the Family and the Criminal courts have concurrent jurisdiction. Additionally, criminal mischief constitutes four different crimes with four different degrees under the Penal Law and this new law does not specify which crime elements must be met to be considered a “family offense”.  This law will take effect November 13, 2007.

IF YOU ARE A VICTIM OF DOMESTIC VIOLENCE  OR KNOW SOMEONE WHO IS, PLEASE SEEK HELP FROM THE NUMEROUS AGENCIES THAT PROVIDE EVERYTHING FROM HOUSING TO FINANCIAL ASSISTANCE.  CONTACT THE HOTLINE AT 800-942-6906.

          Although New York has broadened the services made available to victims of Domestic Violence since 1996, many victims are not taking full advantage of them.   The New York State Office of Prevention of Domestic Violence and New York City Office to Combat Domestic Violence has been instrumental in implementing some very vital services to assist domestic violence victims and their families with everything from shelter to counselling to financial assistance.  These services have revised the way the police respond to domestic violence victims, the locations where referrals services are offered and even broadened eligibility of services.  Of course these improvements could not have been done if it were not for the legislature, the judiciary and law enforcement, but the states’ agencies on domestic violence has been critical in actually getting the services the victims. 

          Although there have been milestones in implementation there are some very important things that many do not know exist.   Here is a list of some of the most important:

1.     The police are encouraged to make follow up visits to the victim and their family, ensuring that there are no further incidents of harm, threat or injury; that service referrals were made and to reassure the family.

2.     Victims are entitled to police protection regardless of immigration status, they are prohibited from inquiring about immigration status when responding to a domestic violence call.

3.     Same sex couples and New York City domestic partners are included in NYPD’s definition of “family” or “household” and therefore, are entitled to the same treatment & services under domestic violence.

4.     Victims can monitor their abuser’s release from jail by registering with the Victim Information & Notification Everyday (”VINE”) by calling 888-VINE4NY and setting up a password to receive automated notifications.

5.     The Human Resources Administration has a program called Alternative to Shelter (”ATS”) which allows victims, who have a valid Order of Protection, to safely stay in their homes with a state-of-the-art security system that is directly linked to the NYPD.

6.     Although the Section 8 and public housing priorities are no longer available for homeless victims, there is a new rental assistance program called Housing Stability Plus, offered by the Department of Homeless Services.   The program offers market rate rental supplements to homeless families who leave the homeless shelter and are ready for permanent housing. 

7.     New York State’s Crime Victims Board may compensate victims for lost wages, moving expenses, essential personal property and medical/counselling services.   All police stations are encouraged to keep the applications on hand.

8.     Family Court and Supreme Court (including the new IDV courts) may make an Order of Protection as part of a child custody and child support order.  Conversely, the judge can make an order of child support as part of an Order of Protection.

9.     A valid out-of-state Order of Protection, even a temporary Order of Protection, is enforceable in New York Criminal Court and Supreme Court, as part of a divorce, legal separation or annulment.  Although registering the Order of Protection is not required, it should be registered in the NYS registry to ensure widespread alert.

10.     A victim may apply to the Social Security Administration for a new social security number as long as they can prove that they are in danger if their identity and/or location are obtainable.  The SSA requires proof of domestic violence, proof of immigration status and the old social security number.

IF YOU ARE A VICTIM, YOU SHOULD BE PERSISTENT IN SEEKING SERVICES FROM POLICE, THE COURTS, HOSPITAL/MEDICAL PROVIDERS, CLERGY, AGENCIES, ETC. DO NOT GET DISCOURAGED.  THERE MAY BE SOME CHALLENGES BUT THERE ARE AN ABUNDANT OF PROVIDERS WILLING TO HELP.

          “As we observe National Domestic Violence Awareness Month, I call on all Americans to commit to preventing domestic violence and to assist those who suffer from it. These collective efforts will contribute to peace in our homes, schools, places of work, and communities and will help ensure the future safety of countless children and adults.

NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim October 2001, as National Domestic Violence Awareness Month. I urge all Americans to learn more about this terrible problem and to take positive action in protecting communities and families from its devastating effects.

IN WITNESS WHEREOF, I have hereunto set my hand this first day of October, in the year of our Lord two thousand one, and of the Independence of the United States of America the two hundred and twenty-sixth.”

                                                                                   GEORGE W. BUSH
           For the month of October my blogs will focus on the very serious topic of Domestic Violence.  I will explore the issues of policy, resources, data/statistics and future developments in the area.  Domestic violence is still one of New York’s (and the nation’s) most fatal and injurious plights that affects our society in several ways.  Albeit, the spotlight on the topic has promulgated advancements in law, resources, training, etc. there is still much work to be done. Since 1970 when domestic violence awareness has been on the forefront of evolution,  there has been tremendous advancements.  New York, particularly, has devoted and committed significant time, money and efforts to awareness, prevention and treatment of all of the tangential issues that arise as a result of domestic violence. 
What is Domestic Violence?

         It is defined as a pattern of abusive behavior in any relationship that is used by one partner to gain or maintain power and control over another intimate partner.  Domestic violence can be physical, sexual, emotional, economic, or psychological actions or threats of actions that influence another person. This includes any behaviors that intimidate, manipulate, humiliate, isolate, frighten, terrorize, coerce, threaten, blame, hurt, injure, or wound someone.  Domestic violence includes teen relationship abuse, lesbian/gay/transgender abuse, elder law issues, i.e. elder abuse and child abuse/neglect.
Domestice Violence Data & Statistics:

          -National data on domestic violence indicate that estimates range from 960,000                   incidents of violence against a current or former spouse, boyfriend,  or per  year to three million women who are physically abused by their husband or boyfriend per year.

             -Nearly one-third of American women (31 percent) report being physically or        sexually abused by a husband or boyfriend at some point in their lives, according to a 1998 Commonwealth Fund survey.

             -Nearly 25 percent of American women report being raped and/or physically            assaulted by a current or former spouse, cohabiting partner, or date at some time in their lifetime, according to the National Violence Against Women Survey, conducted from November 1995 to May 1996.
 
             -Thirty percent of Americans say they know a woman who has been physically abused by her husband or boyfriend in the past year.
 
             -In the year 2001, more than half a million American women (588,490 women) were victims of nonfatal violence committed by an intimate partner.
 
             -In 2001, women accounted for 85 percent of the victims of intimate partner violence (588,490 total) and men accounted for approximately 15 percent of the victims (103,220 total).
 
             -While women are less likely than men to be victims of violent crimes overall, women are five to eight times more likely than men to be victimized by an intimate partner.
 
Although there is no up to date data on New York State’s domestic violence incidences, current information implies that it may be higher than the national average.
Domestic Violence and Its Impact:

          Domestic violence affects families, employers, medical ahd health professionals, social service providers, mental health professionals, politicians and government funding.  Criminal law, child support, child custody/visitation, spousal support, divorce, immigration, landlord-tenant, debt & collection, civil law and government beneftis all interrelate in domestic violence cases.  In addition, Domestic Violence has a direct and/or indirect correlation to teen violence, teen pregnancies, infant mortality, just to name a few. 
 
          In fact, New York has implemented several changes, in legislation, court intervention, funding, etc. to address the impact domestic violence has on socio-economic conditions.  From the most recent development of the Family Justice Center (which is currently in only a few counties) to the ubiquitous Integrated Domestic Violence courts now up and running in most of the state.  More and more developments are constantly being instituted and implemented to address the ever-changing paradigm of domestic violence. 

           Look for the upcominig discussions where we will explore related topics on the issue of domestic violence.