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DOMSTIC VIOLENCE AND FAMILY COURT
July 4, 2022
As a New York divorce lawyer and Manhattan Family Law lawyer I run into domestic violence cases more than I would like.
This is an article about domestic violence in New York and how it impacts you and what your legal rights are to ensure protection against domestic violence in matrimonial and Family Court cases.
When you are seeking protection the first place to look is the law in New York. You start with New York CPL section 530. 11 and 530. 12. You may also look at the family court act section article 8.
The relief sought is based on penal law but usually does not end up in criminal court unless you file in criminal court or unless you violate an order of protection. Violating an order of protection is a serious offense and a Court can refer the case for prosecution.
There are certain people that can utilize an article 8 proceeding for protection or be subject to the rules of an article 8proceeding. If you are married, formally married, have a child in common, or you are not related by blood or marriage but have an intimate relation in the past, you can seek in order of protection.
Most people do not know this, but you can speak relief in both New York family court and criminal court. You can and should do this and both courts at the same time especially if the offense is serious.
If you allege a violation of an order of protection or if the offender commits a new offense there is a mandatory arrest of the perpetrator if it is a felony. If it is a misdemeanor, you can only escape arrest if the victim requests no arrest. In that case You can still pursue your petition and family court.
If the police officer ascertains that there was no family offense or that one or more of the parties committed one misdemeanor, then the police might not make an arrest, but they are required to give you a domestic incident report. You can then attach the domestic incident report to your petition and Family Court under article 8 of the family court at.
If the perpetrator of a crime continues to regularly violate the law, then you can ask the criminal court Judge to revoke bail if you can show clear and convincing evidence of this.
If the perpetrator of the crime against you has a weapon in plain view, then police are allowed to seize it and you should ask them to do so as this lessens the likelihood of further harm against your person.
Both civil and criminal Orders of Protection can have different provisions contained in them and so it is important to ask the Judge for these protections to ensure they are included in your Order of Protection,
The Court, for instance, can ask that the perpetrator stay away from you person, your residence, your place of work, or your child’s person, school or camp.
After a family Offense petition is filed you will generally get an Order of Protection immediately. Thereafter, the court will have you return, and you must prove that a Family Offense has occurred, as the perpetrator has the right to a Fact Finding to determine whether you are entitled to a Final Order of Protection. In this instance, you would call witnesses, put on evidence and testify.
Sometimes there are aggravating circumstances which you should tell the Court about, such as having an ongoing or immediate risk that the behavior of the perpetrator might make hurt you. If there are weapons involved or the perpetrator poses an immediate risk of danger the Court takes these cases more seriously and may even order an Order of Protection that is longer in duration.
You may also file in Supreme Court if you are going through a divorce action as the same rules are applied in a divorce in New York. There are also victim services available.
I hope this article helps you get the protection you need.
By: Lisa Beth Older, Esq.
Your Manhattan divorce lawyer