Whenever an incident of domestic violence occurs, the courts and law enforcement officers are required to file reports and take other actions without discretion. One of the prescribed actions that is required of officers is that they must make an arrest if the domestic violence occurred in the presence of a child under the age of 18. If the child is a witness to the domestic violence, the parents are charged with either child abuse or child neglect depending on the situation. While this appears to be a good idea on paper, it can lead to long-term issues that may not be appropriate in some situations.
Sometimes, isolated incidents of domestic violence occur in situations where it will never happen again. A New York Criminal Lawyer said the concept of creating a law requiring the parents be charged for an argument in the presence of a child is wrought with problems. Usually, police and prosecutors use good judgment in cases. However, sometimes it appears that only poor judgment is present. In many cases, criminal charges of child neglect are placed on parents who do not deserve to be charged. When a victim of domestic violence is charged with child neglect, it only creates a situation where that victim may not report additional incidents of domestic violence for fear of losing their child. The court tends to recognize that the intent of the law is to protect the children in homes where violence and fighting is the norm rather than the exception. Still, cases where the incident was isolated manage to get through the cracks. When that happens, it is usually family court that notices it.
Family court handles most of the domestic violence actions, but they have concurrent jurisdiction if a criminal offense occurred during the incident. In some cases, the criminal case is charged, but later dismissed because it was not supported by facts in the court. A Suffolk Criminal Lawyer said the problem is that Family Court may have another case pending that the criminal charge affects. In one case, which occurred in Suffolk County, New York on March 26, 2010, a father requested an appeal to overturn an action of family court.
On April 3, 2009, he was arraigned following an isolated incident of domestic violence involving his two preteen sons. At the arraignment, the judge issued a temporary stay away order of protection. The temporary stay away order of protection had an end date of April 8, 2010. Unfortunately, the victim of the domestic violence and the husband who was arraigned, were unaware that they were to return to the court for a hearing in regards to this order. When they did not appear, the presiding judge made the temporary order permanent. The man now addresses the court with his desire to have the Order of Protection that was finalized, overturned. He claims that he was denied due process in that he did not have a hearing of facts. The court reviewed the transcript of the April 3rd hearing and discovered that the man had been present in the court room when asked if he wished to attend the April 8th hearing and he stated that he would waive his appearance at the hearing.
The man also claimed that since a temporary order of protection is required to obtain bond or recognizance until trial, which he was not allowed to reject the offer if he did not want to stay in jail pending the trial. The court stated that in situations where the evidence demonstrates that it is in the best interest of the victim or the children to deny access to them, the court’s first responsibility is to them. It is the charge of the court to ensure the continued safety of the children. The court refused to overturn the order and it remains in effect. In this example, it is clear that even though the criminal case was dismissed, the family court decided that in the best interests of the victim and children, the father would have to stay away.
Stephen Bilkis & Associates recognizes that the domestic violence laws that balance between concurrent jurisdictions are confusing at best. No one should attempt to navigate its depths without a Domestic Violence Lawyer. Whether you have been charged with domestic violence, sex crimes or a theft crime, Stephen Bilkis & Associates have convenient offices throughout New York and Metropolitan area, we are always available to assist you. Do not lose Child Custody. Our criminal lawyers can provide you with advice to guide you through difficult situations. Without an Order of Protection Lawyer, you could lose the precious relationship that you have with your family.