Order of Protection

Molloy v. Molloy: What is “Good Cause” for an Extension of an Order of Protection

 

By: Mallory McGee

Earlier this year, the Second Department of the Appellate Division of New York, issued an opinion on the issue of extension of orders of protection for “good cause.” In Molloy v. Molloy, the petitioner/wife was granted a two-year order of protection pursuant to the Family Court Act § 842 against her husband. As the order was about to expire, the petitioner filed for a five-year extension. The Family Court of Queens County denied the motion stating that the goal of the Family Court Act § 842 was to protect victims for two years and that the petitioner failed to demonstrate the requisite standard of “good cause” to grant an extension.

 

What is “good cause” allowing for an extension of an order of protection? In Molloy, the Family Court found that the evidence presented by the petitioner of three domestic incident reports detailing violations of the first order of protection and the respondent’s girlfriend warning the petitioner that the respondent would kill petitioner once the order expired, was insufficient to support “good cause.”

 

The Appellate Division stated that the issuance of the initial order of protection did not render the extension superfluous. It cited legislative history on matters involving domestic violence which demonstrated a long standing history of protections for victims. The Appellate Division noted that lack of any abuse occurring during the term of the order does not necessitate a denial of the extension application. In reversing the Family Court and finding that the petitioner had established the “good cause” necessary to extend the order of protection, the Appellate Division held that:

“Thus, in determining whether good cause has been established, courts should consider, but are not limited by, the following factors: the nature of the relationship between the parties, taking into account their former relationship, the circumstances leading up to the entry of the initial order of protection, and the state of the relationship at the time of the request for an extension; the frequency of interaction between the parties; any subsequent instances of domestic violence or violations of the existing order of protection; and whether the current circumstances are such that concern for the safety and well-being of the petitioner is reasonable.”

 

This decision by the Court is a victory for victims of domestic violence seeking to protect themselves and their family from the effects of domestic violence.… <Read More>

New Laws Protecting Sexual Assault and Domestic Violence Victims

By: Mallory McGee

Last month, Governor Cuomo signed into law two important provisions protecting victims of sexual assault and domestic violence. Cuomo believes that the laws will close a “potentially dangerous loophole and will help ensure that victims receive the protections that they deserve.”

The first law,  Chapter 240 of 2015, applies to defendants convicted of felony sexual assault. In these instances, the new law provides a ten year order of protection. This allows for the victims to receive protection through the term of probation, which is maxed at ten years. If the charge was a misdemeanor, then a mandatory six year order of protection is ordered, which is the maximum period of probation allowed. Previously, according to Criminal Procedure Law §530.12, a domestic violence victim’s order of protection would often expire before the end of the probation period. The law also amends Criminal Procedure Law §530.13 which covers crime victims not in family offenses. This amendment provides the same protections under §530.12. This law goes into effect 30 days from the signing by Cuomo.

The second law,  Chapter 241 of 2015, makes it easier for victims of domestic violence and other crimes who wish to change their name to obtain waivers for the requirement to publish any name changes in a newspaper. The amended Civil Rights Law §64-a now gives courts broad discretion to determine whether a person’s safety would be at risk by publishing a victim’s name change. This discretion is not limited to direct threats against the personal safety of the victim.… <Read More>

Domestic Violence and the Workplace

By Mallory McGee

 

The physical signs of domestic violence are hard to miss: cuts, bruises, and broken bones. However, there are many effects of domestic violence that may be hard to see, including mental and emotional abuse, financial exploitation, and problems in the workplace. Victims of domestic violence report that their abusers often use their place of work to stalk and harass them. The physical abuse may have ended, but the residual abuse and its aftermath can create just as much turmoil in the lives of domestic violence victims.

The National Coalition Against Domestic Violence reports that victims of domestic violence can experience a decrease in job performance because of the abuse. They are also at risk for absenteeism and lateness because of the emotional effects, physical injuries, and court appearances linked to the abuse. Abusers can affect a victim’s workplace environment by calling the office repeatedly or showing up throughout the day. Abusers can also withhold car keys giving the victim no way to get to work, keep the victim from getting sleep, or refuse to provide childcare; thus, forcing the victim to stay home and miss work.

There have been initiatives to help domestic violence victims keep their jobs and for employers to provide resources or assistance, instead of firing or disciplining employees in this situation. In 2009, Governor Paterson signed a law prohibiting an employer from discriminating against an employee who is known to be a victim of domestic violence or stalking. This prohibits an employer from not hiring someone because of his or her victim status, firing the employee, or determining compensation based on the employee’s status as a victim.… <Read More>

The Violence Against Women Act: Twenty Years Later

By: Mallory McGee

On September 13, 1994, the Violence Against Women Act (VAWA) was passed and this past Saturday marked twenty years since the groundbreaking legislation took the first step in acknowledging and combating the epidemic of violence against women. At the time the law was passed, Vice President Joe Biden was a U.S. Senator, and he helped advocate for the legislation and push it along to President Clinton.

The Act recognized the need for stronger stalking laws, provided legal remedies for battered immigrants, and forced states to honor orders of protection issued by other states.  Funds were allocated for shelters, victim counseling, prevention education, and to assist law enforcement in properly handling domestic violence cases to lead to successful prosecutions and convictions. These programs are known as STOP programs – “Services, Training, Officers, and Prosecutors.”

Following VAWA, in 1995, the Office on Violence Against Women was created to work within the Department of Justice to process grants and to handle any legal and policy changes surrounding violence against women. In 1996, the National Domestic Violence Hotline began providing victims of abuse with an outlet to provide support and advice, especially in situations that may be particularly volatile.

VAWA was reauthorized for the first time in 2000 and again in 2005. These legislations reinforced all of the original provisions of 1994 and expanded upon them. For example, the term “dating violence” was included along with “domestic violence” and “sexual assault” to now encompass violence by dating partners. The Sexual Assault Services Program, a federally funded program for services for victims of sexual assault was created.… <Read More>

NYLS Domestic Violence Panel: The Intersection Between Domestic Violence and Family Law

By Emily de la Vega and Gabriel Hisugan

The Domestic Violence Project hosted its annual domestic violence panel on October 23, 2013, during Domestic Violence Awareness Month. The panel was intended to give first year and continuing law students a first-hand look inside the various issues surrounding domestic violence. The panel included four distinguished members from the family law community: Referee Emily Martinez, a Custody, Visitation, and Order of Protection Referee from Brooklyn Family Court; Elizabeth Dank, the Program Director of the Staten Island Domestic Violence Response Team (DVRT) with the Mayor’s Office to Combat Domestic Violence; Shani Adess, a staff attorney with the New York Legal Assistance Group; and Cynthia Domingo-Foraste, the Director of the Domestic Violence Law Project at Safe Horizon. The panel was designed to include members of both the legal and social services communities in order to shed light on the crucial role each field plays in addressing the issue of domestic violence.

The panel responded to and discussed an interactive fact pattern designed to illustrate a situation of domestic violence. Throughout the discussion of the fact pattern, each member of the panel had the opportunity to explain her organization’s role in offering help to a victim. The fact pattern touched on many issues including the effects of unemployment, the lack of resources available to victims, and children being present during the violence. As the discussion developed, new facts were introduced in order to demonstrate the complexity of issues often faced by victims.… <Read More>