LEGAL CORNER: Victims Of Domestic Violence Have Many Options

by Nick Pelosino

The State of New York defines domestic violence (DV) as:

A pattern of coercive tactics, which can include physical, psychological, sexual, economic and emotional abuse, perpetrated by one person against an adult intimate partner, with the goal of establishing and maintaining power and control over the victim.

DV impacts the lives of thousands of New Yorkers each and every day with tragic and sometimes fatal results. This type of violence is a crime. Moreover, DV affects the lives of men and women from all backgrounds and circumstances, regardless of race, ethnicity, age, sexual orientation, religious affiliation, socioeconomic status, education, occupation, etc.

If someone has been a victim of abuse, or has been threatened with abuse, they can ask the court for an order of protection – an order to limit the behavior of the person who threatened the harm, or actually committed the harm. This can be accomplished by using our local family courts and filing what is typically called a “Family Offense” petition or by using our criminal courts and having the perpetrator arrested for his criminal conduct.

The State of New York defines “family offenses” as the commission of certain violent and threatening crimes when committed between people who share an intimate relationship.

In determining whether two people are in an intimate relationship, the court may consider the following factors: the type of the relationship, the frequency of the couple’s interaction, and the duration of the relationship. The court may consider additional factors, and the relationship does not have to be sexual in order to be considered intimate.

When a person is charged in Criminal Court with committing a DV crime, or in Family Court for committing a family offense, the court will determine whether a temporary Order of Protection is required. After reviewing allegations of the victim and in some cases, asking the victim questions, the Judge may issue a temporary order of protection upon determining that the victim is in need of protection from the alleged abuser. A temporary order of protection may be issued “ex parte”, which is Latin for “on one side only” and means without notifying the offender prior to the judge issuing the order.

A temporary order of protection may, among other forms of relief, contain provisions that:

a. Require the alleged abuser to stay away from the victim’s home, workplace, or school, stay away from family members or any witness designated in the order;

b. Set a child visitation schedule for a parent;

c. Prohibit the abuser from committing any type of criminal offenses against the victim or his or her family or household member or child;

d. Prohibit the abuser from committing acts that create an unreasonable risk to the health, safety, and welfare of a child or a family or household member;

e. Require the abuser to allow a designated person the right to enter the residence at a specific time to remove personal belongings; and

f. Prohibit the abuser from harming any pet kept by the victim or a child residing in the household.

One of the most important points to remember is that a victim of domestic violence can file a family offense petition in Family Court against the abuser even if the abuser has not been arrested OR the victim can attempt to file a criminal complaint against the alleged abuser in Criminal Court while at the same time filing a family offense petition against the abuser in Family Court.

The reason for having two options available to the victim is because each Court has different burdens of proof and different forms of penalties. Therefore, there are often situations where there may not be sufficient evidence to arrest or convict the alleged abuser of a crime in criminal court, yet there is sufficient evidence to find that the abuser has committed a family offense against the victim in family court.  Therefore, this unique system often allows victims of domestic violence to be protected from the alleged abuser even though there is insufficient proof that the abuser has actually committed a criminal offense.

Finally, if a Family Court or Criminal Court finds that there is sufficient evidence to conclude that the alleged abuser committed a “family offense(s)” or “crime(s)” as the case may be, in addition to various other remedies, the Court can issue a final Order of Protection in favor of the victim which may last for a substantial period of time depending upon the seriousness of the offense committed and whether the order of protection is issued out of Criminal Court or Family Court.

Written by attorney, Nicholas A. Pelosino, Jr., Esq.

Serving our community for over 26 years

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