New York Criminal Lawyer Blog
Often, questions of law arise in family violence situations that are unique because they are involving a domestic situation that is volatile and fluid in nature. Families are rarely stationary. The question of jurisdiction and venue become relevant when a family primarily resides in one state, but encounters a violent episode while out of state visiting relatives or on vacation. The law is expected to draw a line that determines who is responsible for protecting the victim or victims as the case may be. The law in New York has a long history of struggling with this concept.
In 1962, New York had a family court law that stated that the victim of domestic violence would have to have their case heard in the family court. This decision was designed to decriminalize family violence. However, the effect that it had was far from the one intended. Rather than providing additional options for handling abuse and domestic violence, it created a situation where criminals could elude criminal prosecution. In 1977, the state revised this law. This revision stated that the Family Court and the criminal court would have concurrent jurisdiction. In 1978, the law was revised further to include the three day rule. It stated that the victim had three days following an incident to decide if they wanted to pursue the case in either criminal court or family court. A New York Criminal Lawyer said the complainant’s choice of either criminal or family court became final after the three days. These amendments were an attempt to provide more effective relief to victims of domestic violence. The idea was that they would provide more remedies to the victims of domestic assaults. In 1994, the state legislature created the 1994 Act. It eliminated the three-day choice of venue. The 1994 Act allowed true concurrent jurisdiction to exist. There was no longer the chance that an offender could escape criminal punishment if the victim chose to have the case handled by family court. Since it is a true concurrent jurisdictional provision, a victim can proceed in both criminal and civil court at the same time.
In 1999, amended the Family Court Act 812 and the Criminal Procedure Law § 530.11 to enable a complainant to proceed in family court and have the criminal court continue to hear the criminal offense that was involved. This legal amendment was created to clarify the intent of the 1994 Act. It is generally assumed that the legislative history of domestic violence laws in New York demonstrate a desire to expand the jurisdiction of Family Court and strengthen the remedies available to the victims.
The issue then becomes one of territorial limitation. A Long Island Criminal Lawyer said that criminal law is distinct to the state and geographic boundaries that apply to that particular legislative body. Do those same constraints apply to the reach of Family Court? The state of New York contends that it does not. The jurisdiction of Family Court has been determined to extend beyond the territorial boundaries of the state of New York. The reason is that the intention of Family Court is to ensure that the families that reside within the state are safe from violence. Therefore, if that family is victimized in another state, the victim can still proceed in New York Family Court upon their return to the state. The state is concerned that the protection against future violence is only ensured if the Family Court of New York is allowed to have a longer reach than criminal court. According to the State Constitution and the Family Court Act § 812, or even the Family Court Act article 8, requires that the family violence offense has to occur in any particular county, state, or country in order for the Family Court to exercise subject matter jurisdiction.
An example of this jurisdictional question arose in February of 2009 on the island of Anguilla. A family that resides in New York in an apartment in the Bronx, was vacationing on Anguilla. At some point on February 19, 2009, a family argument broke out between the grandmother and her daughter, the mother. The grandmother pushed the mother to the floor twice causing injury to her back and head. The grandmother was also accused of screaming, yelling, and using profanity at the mother during an assault that extended to the two children that were with them. The mother claims that the grandmother used a glass bowl to strike one of her grandson’s on the head, causing injury. She also allegedly chased her other grandson with a meat cleaver and threw and ashtray at him. The ashtray struck him in the back.
On March 4, 2009, the mother and her two sons filed three separate family offense petitions asking the court to enter orders of protection for them against the grandmother. The mother and sons alleged that the grandmother during the altercation committed the family offenses of assault, harassment, and menacing. They also stated that all of the parties live together in an apartment in Elmont, Nassau County.
On March 6, 2009, the grandmother filed three family offense petitions seeking orders of protection in her favor against the mother and her sons. She alleged that on February 14, 2009, also in Anguilla, the mother and her sons committed the family offenses of aggravated harassment in the second degree, harassment in the first degree, attempted assault, and menacing in the third degree. During the first appearance in Family Court, the grandmother’s family violence attorney objected to the court’s jurisdiction over the offenses because the offenses occurred in Anguilla. The Family Court maintained that the fact that the offenses occurred in the West Indies is no different from it happening in Pennsylvania, Virginia, or Vermont. The judge maintained that they are all residents of Nassau County and are entitled to protection from any future incidents of family violence while at home in Nassau County. The judge stated that Family Orders of Protection are enacted to prevent future hostility and assaults, not just handle those that have already occurred.
On June 24, 2009, following a hearing of the case, the Family Court determined that the mother and her sons had proved their case with clear and convincing evidence. In contrast, the grandmother had not. The court issued three two-year orders of protection against the grandmother. It detailed that the grandmother would not be allowed to go near or interact with the mother or the two sons for a period of two years. The grandmother appealed the decision because it was her home that she was being forced to leave. She stated that she did not believe that the Family Court had jurisdiction over the case because the incidents occurred in the West Indies. The Court of Appeals disagreed. The Justices stated that it did not matter that the incidents occurred in Anguilla, because the family lives permanently in the County of Nassau. The appeals court upheld the protection orders of the mother and two sons. It rejected the protection order requested by the grandmother.
At Stephen Bilkis & Associates, a Domestic Violence Lawyer can protect your rights if you have been injured in another state or country, as long as you and the offender live in the state of New York. Whether you have been involved in a domestic violence dispute, or have been charged with sex crimes,assault or negligence, contact us. We have convenient offices throughout New York and the Metropolitan area. We also have Criminal Attorneys who can protect your rights if you are charged with a crime.