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Facts About Domestic Violence
The prevalence of domestic violence in our society is widespread, permeating every facet of society irrespective of age, race, ethnicity, sexual orientation, religion, class, or educational background. The effects of domestic violence reverberate throughout society in that victims of abuse utilize a large portion of our scarce resources such as emergency care, courts, shelters, and the foster care system. An act of domestic violence occurs every fifteen seconds in the United States and battering is the single most frequent cause of injury to women. Over six million women in the United States, approximately one in ten women, are victims of domestic violence. Domestic violence is not limited to actual physical abuse but also includes intimidation, isolation, emotional persecution, economic abuse, sexual exploitation, and threats. Although instances of domestic violence can range from emotional to physical abuse, it is critical for victims of abuse to know that the seriousness of the injury rendered upon them does not correlate to the inappropriateness of the abusers' conduct. Rather, in any relationship where a woman is battered, the abusers' conduct is wrong and the victim's main concern should be to stop the violence and to seek safe shelter.
Commonly Perceived Myths About Domestic Violence
A common misconception concerning domestic violence is that bad relationships either result in or cause domestic violence; such that improving the abusive relationship will end the violence behavior. This viewpoint is very dangerous in that it encourages the victim to focus on improving their relationship with the batterer rather than on stopping the violent behavior. Additionally, improving the relationship will not stop the violence, for violence is a learned behavior, a behavior which the abuser chooses to exhibit. Since violence is a learned behavior, batterers are violent in all relationship, regardless of whether they perceive the relationship as good or bad. The victim of the abuse should know that the batterer is the only source of and the only cause of the violence and that they or the relationship are not to blame for their abusers' conduct.
Another common misconception about domestic violence is that such violence is limited to poor and minority communities. In reality, domestic violence occurs at all levels of society and is not restricted to any particular racial, ethnic, religious, or socio-economic group.
Finally, and perhaps most importantly, a victim of abuse must realize that they do not deserve or provoke the abusive conduct. As previously stated, violence is a learned behavior that the batterer chooses to exhibit. The victim does not make the abuser act violently, it is a choice that the abuser makes and nothing that the victim says or does warrants any form of abuse.
Understanding Why Women Stay In Abusive Relationships
Any discussion about domestic violence ultimately asks why women that are abused continue to stay in these relationships; why they do not simply leave the abuser and provide themselves with a life free from fear and violence. Although it may seem like a rational decision for a victim of abuse to leave her abuser, this decision is affected by a myriad of factors which mitigate against a victim leaving an abusive home/relationship. These factors include, but are not limited to:
Characteristics And Attitudes Common To Abusers
Domestic Violence As It Relates To Custody Determinations
Traditionally, the court, in making determinations of child custody, did not consider instances of domestic violence. However, after a modification in the Domestic Relations Law Section 240 (1) in 1996, the court now considers the effects of domestic violence on the best interests of the child when making decisions about custody and visitation.
Under the current, revised law in order for the court to consider instances of domestic violence, the victim must be able to specifically identify instances of abuse, specifically the date, time, and nature of the incident. In addition, the victims allegations of abuse must be proven by a preponderance of the evidence in order for the court to factor them into their custody and visitation ruling. Thus, those that are victims of abuse should have such instances documented, so that this documentation can be presented to the court at the appropriate time.
Background On Family Offenses and Judicial Proceedings
Women that are victims of domestic should know that they can seek protection and intervention by the courts and various community organizations. It is critical to note that victims of domestic violence are not alone but that the court and various community agencies are available to offer support to them during this difficult period of their life.
Seeking Help From The Court
To obtain an order of protection, the victim of domestic violence may proceed in either Family Court or Criminal Court, and sometimes they may proceed in both. Additionally, in regions with town or village justices, a woman seeking a temporary order of protection may obtain an order from a town or village justice when the courts are closed. This temporary order will last only until court is reopened. Also, if a divorce action has been initiated, one can obtain an order of protection by submitting a motion in the Supreme Court where the divorce case has been commenced. One may proceed in Family Court if:
Additionally, if the victim fits into one of the above categories, they have a choice of whether to proceed in Family Court, Criminal Court, or in both courts simultaneously.
In cases where the victim can proceed in Family Court, Criminal Court, or in both Courts simultaneously, there are a few distinctions between proceeding in one court rather than another. When proceeding in Family Court the victim proceeds with her own case and is a party to the case. Typically, the victim will have more control and discretion in this type of proceeding and she may withdraw her petition at any time. One drawback of proceeding in Family Court is that the respondent will be given the opportunity to see the petitioner in court. In almost all cases, the final order of protection will not be granted until the respondent has appeared in court, meaning that the victim will have to confront her abuser in court. This is particularly troublesome in cases where the victim is in fear for her safety. By compelling both parties to be present for the proceedings, the victim's well being may be jeopardized, for the respondent may use this opportunity to intimidate or threaten the petitioner into withdrawing her petition. Additionally, the burden of proof in Family Court is preponderance of the evidence. This means that the victim only needs to prove to the court that the incident alleged is more likely than not to have occurred. The relief that is available in Family Court is an Order of Protection that may be anywhere from one to three years in duration and may include restitution, domestic violence intervention programs, child custody, supervised visitation, or child support.
When proceeding in Criminal Court, the nature of the proceeding is different. In Criminal Court, the case is brought by the State. This means that the District Attorney prosecutes, and has ultimate control over, the case. The district attorney decides whether to go forward with the case and the victim is only a witness, lacking any power to withdraw the case. Additionally, the burden of proof in Criminal Court is greater, the standard being beyond a reasonable doubt. This means that the State bears a much higher burden of proving the defendant's guilt. The only relief that is granted in Criminal Court is an order of protection. The advantage of proceeding in Criminal Court is that the abuser gets a criminal record, may be compelled to participate in a domestic violence program, may be granted probation, or may be incarcerated.
A Summary of The Proceeding In Family Court
A victim seeking to obtain an order of protection in Family Court, and who fits into one of the above enumerated categories, may seek an order of protection from Family Court in the borough:
After the victim selects the appropriate borough to proceed in, the victim will file a petition for an order of protection in the appropriate court. In this petition the victim must allege at least one family offense. A family offense is "an act which would constitute disorderly conduct, harassment in the first degree, harassment in the second degree, menacing in the third degree, reckless endangerment, assault in the second degree, assault in the third degree, or an attempted assault." N.Y. Fam. Ct. Act Section 812 (1) (Consol. Supp. 1999). In alleging this family offense, the victim must include as much detail as possible in the petition and should allege aggravating circumstances if they are present. An aggravating circumstance includes physical injury or serious physical injury to the victim caused by the respondent, the use of a dangerous instrument against the victim, a history of repeated violations of prior orders of protection, prior convictions for crime against the victim, exposure of any family of household member to physical injury by the accessed, or any other similar instances, behaviors, or occurrences which, in the court's opinion, constitute an immediate and ongoing danger to the victim or to any other member of the victim's household. N.Y. Fam. Ct. Act Section 827 (a) (vii) (Consol. 1999).
After the victim completes the petition, she will go before the judge to make her formal request for a temporary order of protection. At this stage of the proceeding, the judge will make a very brief inquiry and will ask the petitioner to affirm that her allegations in the petition are true. Typically, the judge will grant the temporary order of protection that day. The order can include temporary child support, and the issuance of a warrant for the abuser, in addition to a statement that prohibits certain acts and/or conduct by the abuser towards the victim.
If the victim does obtain a temporary order of protection, it does not become valid until the abuser, the respondent, has been served with the order. This means that the petition the victim files and the summons issued by the court must be delivered to the respondent. The service must be made at least twenty-four hours before the next scheduled hearing. The respondent must be served personally within the State but may not be served by the petitioner. The victim can have service performed by: having the court arrange service; making her own arrangements for service directly with the police; or arranging for someone that the petitioner knows to serve the respondent.
If the victim opts for the court to arrange service, they must be sure to obtain documentation from the police that service has been made. This is done by calling the main police number in your state.
If the victim chooses to go to the police herself, she must bring copies of the summons and the petition to the precinct. The petitioner should go the precinct in an area where the respondent is believed to be residing. After the police serve the respondent, the petitioner must obtain a copy of the police documentation that shows that service was made.
Finally, if the petitioner decides to arrange for service herself, the person that serves the respondent must be over the age of eighteen. The petitioner may not serve the respondent and service may not be made on a Sunday. The individual that does serve the respondent must complete an affidavit of service and have this form notarized.
In all of these cases, if service is attempted but unsuccessful, the petitioner may return to court to either request more time to make service or to get an extension on her previously granted temporary order of protection. However, she must give reasons as to why service has not been made. If the respondent ignores or avoids service, the court may issue a warrant to have him brought before the court. Alternatively, the court may enter a default judgement. This means that the final order of protection is granted even though the respondent has not appeared in court.
After service has been made the court will conduct a hearing for a final order of protection. This hearing will involve the judge asking questions of the petitioner concerning the allegations in her petition. The petitioner has a right to an attorney in these proceedings and if she cannot afford one, the court may appoint one to her for no charge. If the petitioner requests an attorney, the proceedings will be postponed and continued at a later date, so that the petitioner can discuss the case with her attorney. Once the hearing does occur, the petitioner will be able to present any evidence she has concerning the instances of abuse they have alleged in their petition. After hearing the evidence, the judge may issue a final order of protection. If this order is issued, it will be valid for anywhere between one and three years, depending on the circumstances of the particular case. The order of protection may include: an order to stay away from the petitioner and/or her children; an order to leave the home; an order excluding the respondent from the home; an order that he pay expenses such as medical treatment or housing costs arising from the incident; an award of temporary child custody and visitation; and\or an award for child support.
If the court does grant a final order of protection and the respondent violates this order, the petitioner must go back to the court where they obtained the order and file a violation petition. The respondent will be summoned by the court to appear on a particular day, and if they fail to appear, a warrant may be issued for his arrest. When the respondent does appear, the court will determine if the respondent has in fact violated the of protection. If the court finds that a violation was made, it can modify the final order of protection, enter a new order, order the respondent to pay attorney fees, and/or place him in jail for a period no longer than six months.
However, if the victim does not fit into one of the above enumerated categories, so that she cannot proceed in Family Court, she may proceed only in Criminal Court. When proceeding in Criminal Court unless the abuser has been arrested, the victim must go to the borough where the incident of abuse occurred. The victim should go to the Court Dispute Referral Center, which is a branch of the D.A.'s office, to institute their petition. If the abuser has been arrested, the case will automatically proceed through the criminal justice system.
Community Resources For Victims Of Domestic Violence
Ways To Maintain Safety When One Is Involved In an Abusive Relationship:
In order to qualify for a New York uncontested, "no-fault" divorce, both parties must agree to the divorce, division of all marital assets, debts, property, custody of the minor children, support for the minor children and spousal maintenance. In an uncontested divorce, the defendant can be served but if he or she does not answer the complaint in divorce then the plaintiff can seek a default judgment in divorce. The defendant can also waive his or her right to answer the complaint.
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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