New York

Published on: April 7, 2012

Court Rules on Domestic Violence and Child Neglect Charges

by Stephen Bilkis

In domestic violence cases, the law states that if an incident of domestic violence occurs in the presence of a child, that the involved parties are charged with the offense of cruelty to children, child neglect, or child abuse. Sometimes, the victim is inadvertently charged with child neglect.

In the heat of the moment when handling domestic violence calls, officers are called upon to make immediate judgments. Sometimes, these judgments are made mistakenly and the wrong party is charged in relationship to the incident. The statute orders officers to charge the primary aggressor of the domestic violence assault. Sometimes, it is not immediately clear which party involved in a domestic dispute is the primary aggressor. A New York Criminal Lawyer said these calls are complicated and emotionally charged. Many times, officers rely on the court system to sort through the involvements because they will see the incident after everyone has cooled off. Unfortunately, the courts are also overburdened and court officers have the same problems sorting out the issues. This was the case in an appeal that was requested on August 10, 2010.

A young mother was assaulted by her boyfriend in her home in front of her child. The altercation was volatile and police were called to the scene. The officer interviewed the child and the child stated that he was scared and nervous during the assault. Both the mother and her boyfriend were charged with child neglect. A Brooklyn Criminal Lawyer said when the case came to court, social services had already determined that the incidence of domestic violence had been isolated. The boyfriend was determined to be the primary aggressor. The mother had broken her relationship with the boyfriend and the incident was established to have been an isolated encounter.

Published on: April 7, 2012

Domestic Violence Escalates into Murder Charges

by Stephen Bilkis

Domestic violence is a popular topic these days. Better and stronger domestic violence laws have gone in to effect. The truth about domestic violence is that it is cyclical. It follows a regular cycle that begins with a honeymoon phase where everything is wonderful. The abuser is loving and attentive. Then the abuser begins to pick at the other party. They begin verbally abusing them. From there the cycle heats up until violence breaks out. After the violent episode is over, the abuser tends to go back to the honeymoon cycle again. They promise that they will never abuse their spouse again. However, they do, the cycle continues to repeat itself. Each time the cycle completes, it becomes shorter. The honeymoon phase doesn’t last as long and the abuse phase lasts longer. That is the normal progression. Experience also tells us that the most dangerous time for the victim is shortly after they decide to leave. As soon as they separate, the victim should begin to take steps to protect themselves and any minor children. Unfortunately, many victims do not know what danger they are in.

According to a New York Criminal Lawyer on early April of 1998, a wife and husband filed separation papers in Spafford, Onondaga County, New York. Apparently, the wife did not recognize the danger that she was in during this separation stage. The couple continued to reside in the same house following the signing of the separation agreement. On April 21, only a couple of weeks after they separated, they had a heated argument. It was early in the morning just before dawn when the argument became physical. The later investigation revealed that the husband beat the wife about the head with an aluminum baseball bat in front of her two small children. Evidence revealed that during the beating, the wife told her children to call the police because their father was trying to kill her.

After the wife collapsed with a visible indent in her temple, he called his parents and not an ambulance or medical help. When his parents arrived they brought the husband’s brother and a family friend who was a doctor. The police were finally notified and when they arrived, they found the wife lying on the kitchen floor writhing around in her own blood and moaning unintelligibly. The husband had some scratches and minor cuts. A Nassau County Criminal Lawyer they were taken to different hospitals for treatment.

Published on: April 6, 2012

Family Court and Criminal Court have Concurrent Jurisdiction over Domestic Violence Charges

by Stephen Bilkis

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.

Published on: April 6, 2012

Domestic Violence Cases are Difficult for Everyone Involved

by Stephen Bilkis

Domestic Violence situations are difficult for everyone who is involved in handling them. Family dynamics can be extremely volatile. When domestic violence occurs, there are many people involved. Family Violence Laws encompass past or current spouses; children or step-children, parents and children, foster parents and foster children, siblings, and anyone who has ever lived or is living in the same residence. This is a broad definition of the relationships that are included in the definition of the domestic violence statutes. Domestic violence laws are created not just to deal with crimes that have already occurred; they are expected to intervene to prevent future assaults from happening. However, whenever a law is created that is expected to prevent future offenses before they have occurred, abuses to that law often follow. Many people are arrested in domestic violence situations who did not need to be arrested. Many are arrested who do need to be arrested, but still deserve a fair hearing in a court of law.

A New York Criminal Lawyer said that often police officers are called upon to enter a home and restrain one or more of the parties involved in the altercation. When this happens, it can be a dangerous situation for the police officers. In April of 2006, a New York City police officer responded to a domestic violence call in Albany County. During the course of that call, the officer had to struggle with and restrain a male subject. The officer in question and his partner ended up against a table which collapsed under the weight of the three people. The subject had pushed one of the officers onto the table before the officer in question was able to hand cuff him. The officer sustained a debilitating injury to his right shoulder. In July of 2007, he applied to the New York State and Local Police and Fire Retirement System to obtain accidental injury retirement benefits. The Hearing officer determined that this officer was not able to obtain these benefits because the injury could not be considered an accidental injury because it occurred in the normal course of performing his ordinary employment duties.

The officer argued that the collapse of the table was not an expected ordinary course of his employment duties. The state did not agree and refused his petition. The state maintains that responding to domestic violence calls and restraining unruly participants is a normal course of a police officer’s duties. If that officer in catastrophically injured in the course of those duties, the state does not feel that they should be responsible. A Westchester County Criminal Lawyer said the Officer appealed this decision. The State Court of Appeals upheld the verdict.

Published on: April 5, 2012

Domestic Violence Cases are Difficult, Particularly Where Children are Involved

by Stephen Bilkis

In July 1996, after a prior order of protection expired, plaintiff obtained a second order of protection against her former boyfriend in Bronx Criminal Court. She delivered the order to the Domestic Violence Unit at her local police precinct and asked that it be served on her former boyfriend. At that time, plaintiff met two officers, the individuals assigned to the unit. Plaintiff later received a telephone call from one of the officers confirming that her former boyfriend had been served with the court order.

According to plaintiff, about a week later, her former boyfriend telephoned her at around 5:00 PM on a Friday evening and threatened to kill her. The former boyfriend had made various threats in the past — threats that prompted plaintiff to secure an order of protection — but plaintiff viewed this threat as an escalation of his hostility because he had not previously threatened to kill her. A New York Criminal Lawyer said the plaintiff immediately left her apartment with her two young sons, planning to go to her grandmother’s house in the Bronx. On the way to her car, however, she stopped at a payphone and contacted the Domestic Violence Unit to alert the police to the latest threat by her former boyfriend. She contended that she spoke with one of the officers, who told her that she should return to her apartment and that the police would arrest her former boyfriend immediately.

After speaking to one of the officers, plaintiff returned to her apartment with her children where she remained for the rest of the evening. She did not hear from the police that evening, nor did she contact the precinct to inquire whether her former boyfriend had been located or arrested. The night passed without incident. A Queens Criminal Lawyer said the following day, a Saturday, plaintiff and her children remained in their apartment most of the day. At about 10:45 PM that evening, plaintiff stepped out of the apartment and into the hallway of her building intending to take out the garbage when she was confronted by her former boyfriend brandishing a gun. He ushered her back into the apartment doorway and shot her two or three times injuring her face and arm. The two children witnessed the shooting but were not physically harmed. The former boyfriend then turned the gun on himself and committed suicide.

Published on: April 5, 2012

Court Decide Child Neglect Case

by Stephen Bilkis

In domestic violence cases, the law states that if an incident of domestic violence occurs in the presence of a child, that the involved parties are charged with the offense of cruelty to children, child neglect, or child abuse. Sometimes, the victim is inadvertently charged with child neglect. In the heat of the moment when handling domestic violence calls, officers are called upon to make immediate judgments. Sometimes, these judgments are made mistakenly and the wrong party is charged in relationship to the incident. The statute orders officers to charge the primary aggressor of the domestic violence assault. Sometimes, it is not immediately clear which party involved in a domestic dispute is the primary aggressor. These calls are complicated and emotionally charged. Many times, officers rely on the court system to sort through the involvements because they will see the incident after everyone has cooled off. Unfortunately, the courts are also overburdened and court officers have the same problems sorting out the issues. This was the case in an appeal that was requested on August 10, 2010.

A young mother was assaulted by her boyfriend in her home in front of her child. The altercation was volatile and police were called to the scene. The officer interviewed the child and the child stated that he was scared and nervous during the assault. Both the mother and her boyfriend were charged with child neglect. A New York Criminal Lawyer said that when the case came to court, social services had already determined that the incidence of domestic violence had been isolated. The boyfriend was determined to be the primary aggressor. The mother had broken her relationship with the boyfriend and the incident was established to have been an isolated encounter.

The mother requested that her case be dismissed since the Family Court had already determined that she was no threat to the child. In fact, they determined that there was no reason to exercise any sanctions. They found that the child was healthy and that his mental and emotional condition was not impaired or in imminent danger of being impaired as a result of what they described as an isolated incident. The court established that the mother exercised good parenting skills and had an excellent relationship with the child. The child demonstrated a desire to continue residing with his mother. They found that the child and mother shared a positive relationship. When this situation was brought to the court’s attention, it was expected that the victim’s request to vacate the neglect case against her would be accepted. However, inexplicably the court refused to vacate her charge and found her guilty. The mother filed an appeal under the Family Court Act §105(c) stating that the agency’s evidence at the hearing failed to establish that any neglect had occurred in relation to this mother and her child. In essence, the state had failed to make their case by a preponderance of the evidence against the mother. The appellate court determined that the judgment in this case was flawed and that the case should have been vacated.

Published on: April 3, 2012

Court Rules on Domestic Violence

by Stephen Bilkis

A wife and her husband filed their individual action for the child custody of their twin son. The twins were in the Dominican Republic and it is undisputed that the father obtained a default order of custody there in 2002.

A New York Criminal Lawyer said a review of the documents of the Dominican proceedings confirms that the mother and father separated. At that time, in accordance to an agreement signed before the assistant to the prosecutor, the father consented to the terms of an order of protection, agreeing to refrain from assaulting the mother verbally or physically, and to vacate the family home until the mother was able to find other housing. He agreed to pay child support, and was given regular visitations as long as he behaves appropriately.

The mother left the Dominican Republic in December 1999, leaving the children with her mother and remarrying in June 2000. Five weeks later, while the mother was still in the United States, the father filed a claim for custody of the two children in the Court of the First Instance for Children and Adolescents. The maternal grandmother, who had physical custody of the children at the time, was named as offender in the matter.

Published on: April 2, 2012

Court Decides Jurisdiction Issue in Domestic Violence Case

by Stephen Bilkis

The parties met through the Internet in 2003, when the mother was studying veterinary medicine and the father was a teacher studying for a Master of Education degree. The parties married on 5 June 2004, in Kentucky. Six months later, the mother became pregnant, but continued her veterinary studies and graduated in May 2005. Upon graduation, the mother moved to New York, where the father joined her soon thereafter.

A New York Criminal Lawyer said that in September 2005, the mother gave birth, in New York, to twin daughters. On 31 October 2005, both parties and the children moved to Kentucky. In August 2006 the parties purchased a house in Kentucky.

In January 2007 the father commenced an action for divorce in Kentucky Family Court.

Published on: April 2, 2012

Court Decides if Removal of a Child is Necessary in a Domestic Violence Case

by Stephen Bilkis

Three different women were physically abused by their intimate partners or husbands. These three different women all had children who were then living with them at the time that the domestic violence against the women occurred.

These three different women all asked the help of the police and the family court to stop the domestic violence. In all the three cases, the family court issued orders of protection.

In the same family court where these cases for domestic violence were pending, the Administration for Child Services (ACS) all intervened. ACS had a standing policy that all children were removed from the mothers who were victims of domestic violence because even as victims, they are also deemed to have engaged in domestic violence. The ACS contends that the battered woman is negligent when she allowed her children to witness the domestic violence committed against her. The ACS put all the children of these battered women in foster care.

Published on: February 20, 2012

Court Rules on Extending Order For Protection

by Stephen Bilkis

Sex crimes according involves a lot of complications on how you can offer utmost protection to the victims. Victims of such kinds of crimes can be truly traumatized and even find themselves restless and threatened all the time. In this sex crime case of Wesley Foster, the amendment is asked to be modified for the further protection of the victims of the suspect’s alleged domestic violence acts. It was in July 5, 2004 when Foster attacked his ex girlfriend by breaking into her apartment and harassing her extremely.

He did this despite his orders of staying away from the victim. He was charged with several more cases of burglary and also criminal contempt amongst many others. It even involved stalking and extreme harassment. Everything was consolidated and the court advised him to go through treatment alternatives program. If he would go through such, then his degrees of conviction would be lessened and may even be dismissed. But if he would not give in to drug treatment, then the orders of the court would remain the same. He would be sent to prison for seven years.

Not only that according to a New York child pornography lawyer who was part of the team, his post release provision will be supervised up until five years. Besides the two chances that he was given, he still failed to finish the program. It was in 2006 when the appeal for added protection for the victims was amended that the maximum duration of the protection was even increased up to around eight years.This is just right especially with such an erratic behavioral problem shown by the accused.