New York Family Law Blog
The case involves an appeal questioning whether the Family Court, having found that a victim of domestic violence who has fled the marital home for her safety is entitled to an order of protection, should also have provided a remedy that could restore the victim to her home and exclude her abusers instead of leaving the home in the sole possession of the abusers.
A New York Criminal Lawyer said that according to the records of the case, a middle-aged deaf woman filed petitions for protection orders alleging that she had fled her home because of escalating violence and abuse by her husband and their adult son and asking that the orders provide that respondents be excluded from their common residence. She said her husband physically and verbally abused and threatened her, changed the locks on the marital home and refused to give her a key, and forced her to take drugs against her will, and that their son was verbally and physically abusive. The woman said that she fled to her daughter’s home after two incidents in which her husband, who is confined to a wheelchair, pointed a loaded gun at her and threatened to kill her while he was high on cocaine.
As to her younger adult son, the woman said he punched and slapped her when she refused his demands to cook meals or do other errands for him, made at all hours of the day and night. On numerous occasions, father and son acted together to abuse her. In one instance, they changed the locks on the home and refused to give her a key. It was only after she had left home, retained counsel, and obtained an ex parte protection order that they eventually provided her with a key.
A Nassau County Family Lawyer said that the Family Court initially denied the request that respondents be excluded from the home and issued temporary protection orders prohibiting the husband and the son from assaulting, menacing, harassing or recklessly endangering the woman and not to exclude the woman from the marital residence.
The husband and the son argued that the appeal is academic because the one-year protection order has expired and has not been renewed. The appellate court rejected this argument and held that the woman has shown that she remains unable to return to her home based upon the court’s failure to address the issue of whether the husband and the son should be excluded is clearly continuing to suffer harm. Moreover, by removing herself from the family home for her own safety, the woman obviated the need for a further protection order, so her failure to seek one does not render academic her argument that the order was inadequate, the appellate court held.
A Queens Family Lawyer said that the appellate court also found that the Family Court erred in failing to hold a dispositional hearing to consider the issues of whether the protection order should have included a provision excluding respondents from the marital apartment and whether it should have extended for three years. There is no basis for Family Court’s action in refusing to even consider whether respondents should be excluded from the apartment as a condition of the protection order, which it had found to be clearly warranted by respondents’ behavior, the appellate court pointed out.
The appellate court noted that there is no logical rationale to limit the power of the court by prohibiting it from excluding a resident abusive spouse merely because the victim of the abuse has been forced by her abuser to flee their common home. That holding would reward the worst of abusers with automatic possession of the home, and would obviously frustrate the intent of the statutory scheme, which seeks to protect, not punish, the victims of domestic violence, the appellate court further noted.
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