Welcome Back,

It’s been a long hiatus for my blog entries due to a series of life events that kept me occupied and unable to make new entries.  However, that’s over and I have exciting information, updates and changes that I want to share with you all and look forward to reconnecting.  There has been a plethora of topics flooding the media, legal issues that have become more rampant and changes that affect the outcome of pending and future legal cases.  My focus is to keep my readers informed by making frequent entries and providing that forum to discuss many of these topics.

Stay tuned and informed by visiting frequently.

Tracey A. Bloodsaw, Esq.

         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.

          I wanted to get the word out about this very important workshop that is being  sponsored by the Real Dads Network.   This program is a comprehensive program focusing on the issues that many unemployed and underemployed dads are facing.  This topic is very important because as many of you know from reading my blogs, non-payment or inconsistent payments of child support can have some very dire consequences.  And given the unfortunate circumstance of not being able to hire an attorney, many pro se fathers wind up being incarcerated for a period, losing their job, their home, etc.  This program will provide some very vital information and resources for fathers, young and old, on where and how to seek help when faced with these tough issues.

                  Here is the information:

                 Dads Embracing Fatherhood (DEF) Fatherhood Initiative program “Where Attitude Counts”!

                        Contact person: Theresa Dobie at 718-302-2057 ext. 202

                        Start date: Thursday, October 16, 2008, 6-9 pm and every  following Thursday for 10 weeks at the same time. Location: 790 Broadway, 2nd floor, Brooklyn, NY.

                        Incentives Provided: intensive case counseling, court advocacy, education on child support & Family Court system, relationship workshops, financial literacy workshop, family mediation and parenting workshops, money stipends totaling $250.00, carfare allowance and dinner provision for each workshop.

                      Requirements: Be unemployed or under-employed at the time of enrollment, have a current child support order, age limit 45 and under, must provide documentation for all requirements, able to commit to 10 week workshop schedule.

  For those of you that attend, please contact me directly to let me know how it helped.

          I am often asked about name changing for children when the biological father abandoned their child, when there is a step-father who takes care of a child, when the wrong father has been named on the child’s birth certificate, among many other situations where there is such an interest.  Although the laws in New York on name changing is pretty lax for an adult, it is a bit more stringent when it comes to a child.   The main reason is because the courts want to ensure that when the parent or guardian is seeking to change the child’s name to the name of someone other than a biological or adoptive parent that it is in the child’s best interest to do so. 

         In New York, a parent or guardian can change the name of a minor by either filing a paternity petition (if paternity has not been established) or a name change petition in Family Court.  Name changes can be filed in Family Court for children up to the age of 18 by the parent or guardian and from 18 years to 21 years old by the individual him or herself.  Anyone older than 21 years must file in either Civil Court or Supreme Court (where filing fees apply and the rules differ a little bit.). 

          Where the parents were not married and the name change request is for the child to have the biological father’s last name, or that of another person, paternity must be established first.  Establishing paternity means either having the biological father sign an Acknowledgement of Paternity or by filing a paternity petition in Family Court.  It is much quicker and easier to have an Acknowledgement of Paternity signed since this is a form provided by the Dept.of Social Services.  If a paternity petition is filed in court, the biological father must consent to paternity to expedite the order of filiation being issued by the court, otherwise the matter will be prolonged by a trial being held to determine paternity before proceeding to the name change.  Once an order of filiation is issued, it will be sent to the Dept. of Health and Mental Hygiene (”DOHMH”), which will approve the order and then send it back to Family Court.  Family Court will then have both parents complete and sign a form consenting to the name change, subsequently the form will be sent to the Dept of Health which will then issue the new birth certificate within 10 weeks (typically).

         Where the parents were not married and one parent is requesting that the child’s name be changed to a step-parent’s last name, or someone other than the biological parent, consent of the biological parent may be necessary, this is the case whether the child had the biological father’s last name or not.  First the step-parent will have to submit an affidavit acknowledging that he understands that this is not equivalent to an adoption and that there are no legal rights of parent-child.  When the petition is filed, the biological father must be put on notice, giving him the opportunity to object.  If he objects he must inform the court of his objections and his reasons.  If the objections are reasonable, the court will deny the name change.   However, the mere fact that the biological father objects does not necessarily mean that the court will not approve the name change.  If the parent or guardian seeking the change has a substantial reason why the name change should be granted, and the court finds that it is in the child’s best interest, the petition may in fact be granted.  In situations where the biological father has abandoned the child, not providing any support, not visiting or making any other contact with the child for a period of at least six (6) months (consecutively), then the court can grant the petition.  Also, in cases where there has been serious domestic violence or repeated child abuse by that parent, the court will more than likely allow the name change. 

         Filing a petition for a name change is not to be confused with correcting a name or adding a first or middle name to a child’s birth certificate.  If all that is needed in a correction, this can be done by contacting the DOHMH directly.  However, if there is a problem with locating the hospital records, if the child was not born in New York or for some other reason birth records cannot be located, a court order may be necessary, which requires that a name change petition be filed.    
          In situations where the biological father agrees to a surrender, a termination of his parental rights or consents to a name change, this certainly speeds up the process.  Proof of either must be provided along with proof of paternity, in the methods mentioned, unless the parents were married at the time of the birth.  Randomly changing your child’s name is not a matter of making the request, biological parents have rights unless those rights were terminated or surrendered and the court is aware of this.  I often recommend that the party seeking the change approach the other parent with their intention beforehand in an effort to obtain consent.  Assurances may have to be made that some obligations of that parent may be waived in exchange for the name change.

         Changing the child’s name does not absolve the other parent of his/her obligation to pay child support nor does it abrogate their right to seek custody or visitation.  Conversely, the step-parent may be held responsible for child support for the child that has legally assumed his name but may be denied custody or visitation of that child in the event of a divorce or separation from the child’s biological parent.

          Feel free to contact my office to discuss your family law matters.

         As of December 2007, the Chief Judge Judith Kaye promulgated a new rule with regards to the ethical standards of law guardians in New York. Law guardian are now referred to as the “attorney for the child”.  Under the new rule, section 7.2 of the Rules of the Chile Judge, the attorney for the child must “zealously advocate the child’s position”.  This means that the attorney for the child must consult with the child and advise the child, gaining a full understanding of the child’s circumstances.  If the child is capable of “knowing, voluntary and considered judgment”, the attorney must follow the wishes of the child, even if the attorney believes those wishes are not in the child’s best interests.  If the child is incapable of such judgment, or the child’s wishes would create a imminent risk of serious harm or injury, the attorney is justified in advocating a position contrary to the child’s wishes.  This in essence means that a “law guardian” in parental alienation cases does not have to consider what is in the best interest of the child/client.  Since that is the case if a child tells his attorney that he does not wish to see is alienated parent, unless the attorney is convinced that the child is unable to make sound judgments or is in imminent risk of serious harm by his/her not seeing the alienated parent, the attorney must advocate that child’s position in court.

SEE FEBRUARY 10, 2008 BLOG ENTRY:  PARENTAL ALIENATION: A LAW GUARDIAN’S PERSPECTIVE

          Historically legal marriage was defined as “a contract between man and woman who consent to marriage”.  Even though that is how marriage has been defined, limitations of marriage were placed on residents by individual states.  For instance, many states made interracial marriage illegal until the U.S. Supreme Court found that it was unconstitutional in Loving v. Virginia in 1967.  And although the states have the authority to determine its own marriage requirements, there are times when Congress has enacted laws that addressed marriage.  In 1996, Congress passed the Defense of Marriage Act (“DOMA”), which states that marriage is defined as “a legal union between one man and one woman”.  This legislation gives states the authority not to recognize same sex relationships that would be recognized as marriage in another state. (40 states have adopted their own version of DOMA, New York has not.)  There are other instances where either Congress or the U.S. Supreme Court has forbidden certain types of marriage. Polygamous and close relative marriages, for example, are not permitted in any state.  States, consequently, do have some basic requirements that are common amongst each of them.  These basic requirements include the capacity to marry, consent to marry and age to marry.  Where states differ are on the procedural requirements, the types of marriage and more recently, whether same sex can legally marry. 

          New York law on marriage is governed by the Domestic Relations Law (“DRL”).  Under New York’s DRL, marriage is legal when:

                   -The parties are 18 years old or 16 years old but with judicial or parental consent;
                  -The parties are not parent-child; siblings; ancestor to descendant; aunt/uncle to nephew/niece;
                  -The parties consent and are capable in law, of making a contract;
                  -The marriage takes place after 24 hours but no later than 60 days of receiving the marriage license;
                  -Not bigamous or polygamous marriage; and
                  -Performed by clergyman, minister or leader of Society of Ethical Culture; Mayor; County executive or police  magistrate; a judge (within their territorial jurisdiction); or entered into by written contract between the parties and two witnesses (and acknowledged by a judge). 

         If these requirements are not met then the marriage is considered “void” in New York, or not legal.  On the other hand, there are instances when marriages are “voidable”, where a court must “declare” the marriage void.  Voidable marriages in New York, are marriages that occur when either party is under 18 years old; is incapable of consent or lacks understanding; is incapable of being married because of physical limitations; or acquired consent by fraud, duress or force or has an incurable mental illness for a period of five years or more.

          Although not explicit in the statute, New York forbids common law marriages, same sex marriages and proxy marriages.  The statute, however, implicitly permits first cousin marriages, religious marriages and marriages performed outside of the U.S. (as long as the legal marriage requirements of that country are met).  Further, New York criminalizes bigamous or polygamous marriages, Penal Law § 255.15 states:

                A person is guilty of bigamy when he contracts or purports to contract a marriage with another person at a time when he has a living spouse, or   the other person has a living spouse. Bigamy is a class E felony.

         Even where New York does not permit specific types of marriages (common law, same sex and proxy marriages), marriages legally established in other states pursuant to those states’ laws will more than likely, be recognized in New York.  (Although this is still a debatable issue regarding same sex marriages, see my blog entry “Will New York Recognize Same-Sex Foreign Marriage and/or Divorce”).  Common law marriages, particularly, are the most common “untraditional” type of marriage (at least 15 states permit them).  These marriages are marriages that were not solemnized by clergy or judge and the parties did not have a marriage certificate.  Proxy marriages, on the other hand, are not automatically recognized.  These marriages occur when either party is not present during the actual ceremony, but appear by a power of attorney, proxy or other legal stand in (these are only permitted in four states).

     Feel free to contact my office to discuss your legal rights under your “nontraditional marriage”.

           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.
 

          Domestic Violence affects every aspect of victims and their families’ lives.  Not only are families’ emotional, psychological and physical well being tremendously impacted by domestic violence, but the most basic needs, i.e. housing, employment, immigration are also subject to the negative effects of such circumstances.  Since the ubiquity of publiic awareness campaigns, which promulgated federal and state laws addressing these vital concerns, issues of housing, immigration, employment and public benefits should no longer serve as preventive measures for seeking assistance.  Although most states, including New York, have enacted important legislation to address some of the most basic needs of domestic violence victims there is much more that needs to be done.  In addition, sometimes implementing and facilitating programs, resources, etc. that adhere to these laws raises other challenges.  New York has enacted specific legislation to address some of the most important basic needs of its residents.   Some of the most important concerns are:

Domestic Violence & Immigration:
           Many domestic violence victims are foreign-born, oftentimes outnumbering U.S. citizens.  This particular group frequently do not report domestic violence for cultural reasons (domestic violence is accepted in many cultures), fear of deportation, language barriers or mere lack of awareness. Illegal immigrants are protected by state laws and local procedures, and are therefore entitled to the same treatment as U.S. citizens. 

          Police-Illegal immigrants can call the police to report domestic violence and are not subject to being questioned about immigration status.  In fact, under the Equal Protection laws, illegal immigrants are entitled to a language interpreter when they call the police and the police respond to their home. 

          Order of Protection-Illegal immigrants are also permitted to go to Family or Criminal Court to seek an Order of Protection regardless of immigration status. 

          Legal Residency-Under the federal legislation, Violence Against Women Act (”VAWA”), a woman married to a U.S. citizen or legal permanent resident may be eligible for permanenct lawful residency or legal status.  Under VAWA a waamn no longer has to rely on her husband for “family sponsorship” to become a permanent lawful resident.  She may “self petition” for permanent residency by applying with INS and showing that she was “phsyically battered” or subject to “extreme cruelty” by the hands of her spouse.  Or if is she is in deportation proceeding or can be placed in such proceedings, the court can waive deportation and grant residency upon a showing of either.  Alternatively, the domestic violence victim can apply for a special visa, called the U-visa, which was created by Congress in 2000.  This visa permits victims of “serious crimes” to work in the United States and after three years, apply for permanent residency if they can show “hardship”.
Domestic Violence & Child Custody/Visitation:
           Child custody is not presumed to be with either parent.  Although one parent may have physical custody, legal custody must be determined by the court.  The courts use “the best interests of the child” standard to determine whether sole custody or joint custody should be awarded.  One factor the courts routinely consider is whether there is domestic violence or was a history of domestic violence between the parties.  Domestic violence in the home or between the parties prohibits the court from awarding joint custody since the parties have to communicate and interact regularly in such situations.  Sole custody is awarded with child visitation to the non-custodial parent.  The court can award unsupervised visits with third party transfer, supervised visits (where the visits are supervised by a relative, close family friend or licensed agency) or therapeutic visits ( where  a licensed professional interacts with the parent and child during the visit to improve the parent-child bond).   Only in extreme cases will visitations be suspended altogether.

Domestic Violence & Public (Government) Benefits:
           Most domestic violence victims wind up being recipients of public benefits since many of them depended on their abusers for financial support.  Financial assistance, food stamps, Medicaid and housing benefits are the most common programs domestic violence victims seek. 
          Housing-Domestic violence victims may be referred to shelters based on family size/structure.  The shelters are comprised of three groups: families, pregnant families (where a single or married victim is pregnant or parents of a pregnant person over 21 years) and single adults.  other government housing programs include Section 8 Housing, New York City Housing Authority (”NYCHA”) housing and rental assistance programs.  Section 8 and NYCHA requires the victim meet “emergency” criteria.  While rental assistance programs are designed for shelter occupants who work individuals and meet income requirements. 
          Food Stamps-Domestic violence victims may be eligible for Expedited Processing, if you are eligible for Food Stamp Benefits and Your household has less than $100 in cash and other available resources and will have less than $150 in gross income during the month that you apply or your income and available resources are less than your rent or mortgage plus heat, utilities and phone.
          Financial Assistance-The Family Violence Option (passed in 1997 to address the safety needs of domestic violence victims and their children) protects victims from being sanctioned for their failure to meet the Temporary Assistance to Needy Families (”TANF”) requirement, specifically regarding workk and child support.  The requirements may be waived if meeting these requirements may pose a risk of harm to the victim and their children.

Domestic Violence & Employment:
           Incidents of domestic violence costs employers millions of dollars as a result of unproductivity.  Many employers are directly affected by incidents of domestic violence by absenteeism, work performance and/or implementing safey measures.  However, employees who are victims of domestic violence are protected by state ( and federal) laws that address employment related issues. 
          Discrimination-Domestic violence victims may not be discrimated against, refused hiring or discharged based on history or presence of domestic violence.
          Job security-An employee may not be penalized for taking time off to appear in court, to speak with the District Attorney’s office or otherwise pursuing legal actions or legal rights related to domestic violence.
          Unemployment Benefits-If an employee voluntarily quits a job because of domestic violence related incidents or is discharged because of “misconduct” resulting from absenteeism or lateness as a result of domestic violence, he/she can not be denied unemployment benefits based on either.
          Job Benefits-An employee who is a victim of domestic violence may make reasonable changes to employment benefits at any time during the calendar year if they are separated from their domestic partner/spouse as a result of domestic violence.
          Order of Protection-Employers must enforce and adhere to restrictions directed in an Order of Protection, where those restrictions relate to the victim’s place of employment.

           Domestic violence can adversely affect every aspect of the victim’s life, from what they eat to where they live.  More often than not, victims are forced to face these issues with no guidance. Although a few are mentioned here, there is a plethora of day to day activities that are impacted, directly and indirectly.  There are many resources on the state and local level, geared toward addressing the extensive number of issues and therefore, should never serve as a deterrent to leaving a volatile situation.

IF YOU OR SOMEONE YOU KNOW IS A VICTIM OF DOMESTIC VIOLENCE, 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.