Generally speaking, domestic violence refers to behavior that one person in an intimate relationship uses to control the other. Examples of such behavior include threats, name-calling, isolation, placing someone in fear of physical harm, stalking and sexual assault. The foregoing list of abusive behaviors is far from exhaustive. Each state has unique procedural and substantive rules to protect family members from domestic abuse.
New York’s substantive domestic violence law is set forth in various sections of the state’s Penal Law, Family Court Act, and Domestic Relations Law. These statutes provide several different procedural options for someone who needs to obtain judicial protection against an abusive family member. The broad and remedial purpose of the foregoing laws is to provide the maximum level of protection for victims of domestic violence. To further this goal, New York is a “mandatory arrest” jurisdiction. This means that the police are required to arrest suspects where there is “probable cause” to believe that the accused has committed, against a spouse, former spouse, family or household member, any felony, misdemeanor family offense, or violation of an order of protection requiring the defendant to stay away from the complainant.
Under New York’s Criminal Procedure Law, members of the same family or household (so as to fall under the protections of the family offense laws) include:
- persons related by consanguinity or affinity;
- persons legally married to one another;
- persons formerly married to one another regardless of whether they still reside in the same household;
- persons who have a child in common, regardless of whether such persons have been married or have lived together at any time; and
- persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time.
In New York, domestic violence cases are most frequently brought in the Family Court under Article 8 of New York’s Family Court Act. Unlike criminal proceedings, Family Court Article 8 proceedings are generally intended to secure practical protections for victims (such as orders of protection directing offenders to stay away from victims), as opposed to criminal convictions. Court-ordered relief frequently includes orders requiring the offender to vacate a marital residence and cease contact with the petitioner. The Family Court may also order someone to participate in an educational program specifically tailored for perpetrators of domestic abuse.
To obtain an order of protection in New York Family Court, a petitioner must establish that a family offense has occurred. Family offenses include acts constituting disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, menacing 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 between spouses and/or members of the same family or household. In the context of family offense proceedings, the definition of “disorderly conduct” is broader than in the criminal context, and may include conduct not in a public space. Under Penal Law 240.20, disorderly conduct includes conduct intended to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof. Examples of such conduct include tumultuous or threatening behavior, abusive or obscene language, unreasonable noise, or making an obscene gesture.
Generally, both the New York Supreme Court and the Family Court have jurisdiction to issue an Order of Protection. However, only the Supreme Court has jurisdiction to issue a divorce. Thus, individuals who do not have a marital relationship must seek judicial relief in either the Family Court or Criminal Court.
Occasionally, a spouse may bring an action seeking an Order of Protection in the Family Court, and then subsequently initiate divorce proceedings in the Supreme Court. In such instances, it may be appropriate to consolidate the existing actions. Section 240(3) of New York’s Domestic Relations Law (DRL) authorizes the Supreme Court to enter an order of protection in a matrimonial action.
Given the overlapping remedies and jurisdiction of New York’s Family and Supreme Courts, and the broad array of procedural options, selection of venue and other strategic decisions should be carefully considered and evaluated at the outset of order of protection proceedings with the advice and assistance of an experienced New York family law attorney. In addition to considerations regarding venue, a family law attorney will be able to guide the complainant about important issues regarding preservation of evidence. Frequently, proof of domestic violence hinges on preservation of key communications, such as text messages, voice mails, and emails. Ultimately, these communications will need to be introduced as evidence at trial. Giving careful consideration to strategic and evidentiary considerations at the earliest possible stage is crucial to obtaining a permanent order of protection against an abusive spouse or household member.