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“Fair Access” to Civil Orders of Protection: A Progress Report One Year Later

Amy Schwartz-Wallace January 16, 2010

To victims of intimate partner violence, civil orders of protection represent one of the most sought after and useful legal remedies available to help provide protection from abuse.

In a 2003 study reported in the Journal of the American Medical Association, individuals with permanent civil orders of protection experienced a significant decrease in the risk of police-reported domestic violence from their partners.1 Many victims indicate a preference for civil protection relief citing, among other things, the desire for basic protection from their abusers, rather than criminal punishment.  Some are reluctant to proceed in the criminal system  because they have a negative history of experiences with police or prosecutors, while others may have concerns about prosecution in cases not involving injury and serious abuse.  Further, many victims rightfully fear ongoing retaliation from their abuser if he or she is arrested and charged with a crime.

In New York, the primary issuer of civil orders of protection is the Family Court under Article Eight.  In this  forum, petitioners have:  access to Probation Departments, court staff or trained court-based victim advocates who can assist with petition-drafting;  the aid of domestic violence or victim advocates who provide support and information as victims navigate the civil system;  their case quickly heard by a decision-maker, often within 24 hours of filing a petition; the right to counsel; a lower burden of proof for non-violation proceedings; no filing fees;  availability of comprehensive order of protection terms and conditions customized to meet the petitioner’s needs; and access to attorneys for the children when warranted.  For many victims, the ability to have significant input in the direction of their civil case is quite meaningful and provides for improved safety planning and, in some cases, more effective outcomes.

Until 2008, the Criminal Procedure Law §530.11 and Family Court Act §821 defined “victim of domestic violence” as a victim of an enumerated family offense alleged to have been committed  between spouses or former spouses, between parent and child, or between “members of the same family or household”.  Members of “family or household” was then further defined as persons related by blood or marriage, persons legally married or formerly to one another, and persons who have a child in common regardless of whether such persons have been married or have lived together at any time.  As a result, abuse victims in current or former dating and co-habiting intimate relationships were specifically denied access to relief. This law impacted all dating couples without children in common, including many teenage victims.

According to data from one State Division of Criminal Justice Services (DCJS) report, at least half of all domestic violence incidents reported involved non-familial victims of dating violence.2  Notably, this also served to exclude most victims from New York’s gay, lesbian, bisexual and transgender (GLBT) communities because of their collective legal relationship recognition impediments and challenges.  Unfortunately, the exclusionary impact of this limited definition extended well-beyond simple access to civil orders of protection. This same class of victims was also denied access to a host of other critical domestic violence laws that specifically referenced this legal definition of “victim of domestic violence” including mandatory arrest requirements, primary aggressor determinations, criminal family offense orders of protection, law enforcement completion of Domestic Incident Reports at the scene, victim’s rights notices, and concurrent jurisdiction for family offenses in Criminal and Family Courts.  Despite the number of cases pending in other courts, these same domestic violence victims were unable to access the more resourced Integrated Domestic Violence Courts. They were also less likely to be identified as appropriate for other specialized criminal domestic violence courts throughout the state.

Further any other law, regulation, or policy that referenced the Family Court Act or Criminal Procedure Law definition would continue to exclude this class of victims from protection.  This issue became increasingly divisive in the state Legislature.  In the mid 2000s, the progress of important domestic violence bills, such as those providing protection against housing or employment-related discrimination for victims of intimate partner abuse, was thwarted over bicameral disputes regarding which definition of “victim of domestic violence” should be used.  In fact, the first passage of the early lease termination law 3 for domestic violence victims in 2007 did not include protections for this class of victims and, ultimately, resulted in a later chapter amendment specifically rectifying this oversight.4

In defining who is or is not a “victim” and who may or may not have access to critical systems, benefits, and rights, this law created other serious collateral consequences for this class of victims. The inability to have one’s victimization “qualify” intensified existing barriers to support and assistance and further marginalized particular communities.  Further, where a law or benefit required proof of an order of protection as a condition for relief, victims relegated to obtaining their order in the more challenging criminal system might be less likely to access those important protections as well. 5

Given our restrictive definition, New York had the unfortunate reputation of being the only state in the nation with such narrow access to a civil order of protection. 6  For 20 years, the domestic violence community continuously lobbied the Legislature to rectify this dangerous gap and provide relief and protection to the true scope of victims experiencing intimate partner violence in New York. The Assembly first introduced the bill in 1988 and it was passed with bi-partisan support every year it was voted on since 1991.  However, the same bill was not even introduced in the Senate until 2001 and, despite its multiple passages in the Assembly, was never placed on the Senate floor for a vote.

As years passed, there was increasingly broad support for expanding this definition including in the 2006 Matrimonial Commission Report, the 2001 Final Report to the Governor and the Legislature on the Family Protection and Domestic    Violence Intervention Act of 1994: Evaluation of the Mandatory Arrest Provisions, the 2000 Probation Domestic Violence Intervention Project, the 1998 Model Domestic Violence Policy for Counties, and the 1997 Commission on Domestic Violence Fatalities Report to the Governor.

Labeling the issue as one of justice, safety, and unequal treatment under the law, the Fair Access Coalition was formed in 2007.  Over 190 individuals and organizations strong, the Coalition embarked upon a singular goal–an intensive, multi-disciplinary and multi-faceted campaign to achieve passage of the bill. After significant direct and grass-roots lobbying efforts, the bill finally passed both the Assembly and Senate in 2008.  Governor Paterson signed “Fair Access” into law7 and it became effective on July 21, 2008.

The so-called “Fair Access” law retains the existing Family Court Act and Criminal Procedure Law definitions, but further expands upon “family and household member” to include “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.” 8  The law further describes an “intimate relationship” as something more than “a casual acquaintance” or “ordinary fraternization between two individuals in business or social contexts.” 9  The Legislature declined to specifically define “intimate relationship” but provided a non-exclusive list of factors a court could consider to help determine whether an “intimate relationship” including:  “the nature or type of the relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship.” 10  The legislative history indicates that the Legislature intended to extend protections to assist co-habiting, same-sex, and dating couples. 11  However, given the fact-based approach to determining an “intimate relationship”, case law is further interpreting this definition. To date, seven (7) cases have been decided in jurisdictions throughout the state and the holdings are surprising and varied.

In K.V. v. K.F, a 2008 case of first impression, the court held that the amendment was remedial in nature and could be applied retroactively to conduct that occurred prior to its enactment.
However, the K.V. court did not specifically determine whether the parties’ relationship—allegedly ex-girlfriend and ex-boyfriend—was “intimate” in nature.

Several months later, two Family Court courts broadly read the statute to find an “intimate relationship” existing between two women who share a current and former boyfriend in common, 12 as well as between a biological mother and the child she gave up for adoption.13

In April 2009, two more courts weighed in on the issue.  In Maria B. v. NDoc S., 14 the New York Family Court held that a former daughter-in-law may be able to establish she is in an “intimate relationship” with her former father-in-law where there is a grandchild in common and her former husband lives with her respondent former father-in-law.  In Madison County, Judge Dennis McDermott issued a highly unusual opinion determining that a married petitioner in an adulterous relationship with her alleged abuser indeed met the statutory jurisdictional definition of “intimate relationship.” 15  Disturbingly, however, the petition was dismissed for reasons of public policy as the court believed that allowing such a married, heterosexual woman access to civil Family Court relief would undermine the sanctity of her marital relationship and further disrupt her family unit.16

In August 2009, two more Family Courts weighed in via Mark W. v. Damion W. (887 N.Y.S.2d 822 [Kings Co. Fam. Ct. 2009]) and Winbrone v. Winn (8/20/2009 N.Y.L.J. 30 [col.1]).  In both cases, fathers petitioned the respective Family Courts for protection from the live-in boyfriends of the mothers of their children.  However, as opposed to the holding in R.M.W, these courts instead determined that regardless of the relationship between the fathers and mothers, no “intimate relationship” existed between fathers and the mothers’ boyfriends.17

As of mid-October, approximately 13% of all Family Court family offense filings statewide were identified as “intimate relationships”.  Troublingly, as of mid-October 2009, 19 counties around the state reported less than 15 total intimate relationship family offense petitions filed since the law’s passage in July 2008.  This indicates that there may be a significant lack of public awareness, advocacy, and system training in quite a few communities.

There has been no published case law directly interpreting the definition’s applicability to either GLBT or teen couples thus far.  This is not entirely surprising.  As of mid-October, same-sex relationships made up a very small percentage of total    intimate relationship filings in Family Court–approximately 4% since the Fair Access legislation took effect.  It is also not clear whether teen dating relationship statistics are being formally monitored and tracked by Office of Court Administration, so there is little known about number of cases commenced and their outcomes.  Anecdotally, domestic violence attorneys and advocates from service provider communities consistently report that more public awareness is necessary to help GLBT and youthful citizens understand their rights under the new law.

Given the Fair Access law’s expansion of protection beyond civil orders of protection, the law also provided for the New York State Office for the Prevention of Domestic Violence (OPDV) to develop a curriculum and make training available for Criminal and Family Court judges, local justice and district courts, prosecutors, and veteran police officers. While this provision was intended to support implementation, the law’s passage in the midst of New York’s fiscal budget crisis has made statewide and comprehensive trainings for the civil and criminal justice system extremely difficult. There is definite concern among advocates that, absent long-overdue police refresher trainings around mandatory arrest and primary aggressor determinations, victims with abusive intimate relationships may be increasingly subject to wrongful or dual arrest by police. Additionally, numerous probation departments in the state are responsible for drafting the lion share of family offense petitions in their respective communities and it is not clear that these important system players also have access to staff training.

Alarmingly, this change in the law also coincided with significant funding insecurities for civil legal services offices who would otherwise be poised to handle a larger percentage of these cases in civil court. Access to competent and sensitive counsel for this new population of clients is critical to ensuring an effective and appropriate outcome, so timing of this funding crisis is particularly unsettling.

Expanding access to the courts and providing other critical domestic violence protections was a long time coming in New York. The law further directed OPDV and DCJS to complete a report to the Legislature and the Governor within 3 years  regarding the law’s implementation. Surely the formal results of such a report will help our state to identify and, ideally, rectify gaps in justice and service provision. As the next two years unfold, we look forward to learning more.

Footnotes

1  Holt, Kernic, et al, “Civil Protection Orders and Risk of Subsequent Police-Reported Violence”, JAMA, Vol. 26, No. 5, 589 (August 7, 2002)
2  Introducer’s Memorandum of Support, Senate Bill S.8665
3  L.2007, c. 73, §  1, eff. Oct. 1, 2007
4  L.2007, c. 616, §  1, eff. Oct. 1, 2007
5  See, for example, Real Property Law §227-c (early lease termination), Insurance Law §2612 (confidentiality of insurance information) 42 USCA §13951, 39 CFR §265.6(D)(1) (confidentiality of address with US Postal Service)
6  In 2008, 40 other states offered civil orders to dating or intimate partners and 49 other states offered civil orders to co-habitants. For a detailed list of all states, see  http://www.abanet.org/domviol/pdfs/dv_cpo_chart.pdf (last visited December 21, 2009)
7  L.2008, c. 326, eff. Jul. 21, 2008
8  FCA §812(1)(e)
 Id.
10  Id.
11  Winbrone v. Winn, 8/20/2009 N.Y.L.J. 30 (col.1)
12  R.M.W. v. G.M.M., 23 Misc.3d 713 (Nassau Co. Fam. Ct. 2009)
13  K.J. v. K.K., 23 Misc.3d 754 (Orange Co. Fam. Ct .2009)
14  4/10/2009 N.Y.L.J. 27 (col. 1)
15  Jessica D. v. Jeremy H., 24 Misc.3d 664, 666 (Madison Co. Fam. Ct. 2009)
16  Id. at 666-667
17  Mark W. supra at 824; Winbrone, supra.