Lawyers Manual - Unified Court System

Lawyer’s Manual on
Domestic Violence
REPRESENTING THE VICTIM, 5TH EDITION
Edited by
Jill Laurie Goodman and
Dorchen A. Leidholdt
Supreme Court of the State of New York
Appellate Division, First Department

Lawyer’s Manual on Domestic Violence
REPRESENTING THE VICTIM
5TH EDITION
Edited by Jill Laurie Goodman and Dorchen A. Leidholdt
“This introduction to the legal and practical challenges
of representing victims of domestic violence provides
indispensable guidance for attorney and judges alike.”
Honorable Judith S. Kaye
Chief Judge of the State of New York
“ We’re making progress in the struggle against domestic
violence, and books like this are one of the reasons.”
Honorable John T. Buckley
Presiding Justice, Appellate Division, First Department
“A must read for anyone who cares about the most
vulnerable litigants in our court system.”
Honorable Betty Weinberg Ellerin
Associate Justice, Appellate Division, First Department
Chair, NYS Judicial Committee on Women in the Courts
A version of this manual in PDF form is available through the links at:
www.nycourts.gov/ip/womeninthecourts/publications.shtml and
www.probono.net/ny/family/library.cfm

Victim Who Needs Child Support i
Lawyer’s Manual on Domestic Violence
Representing the Victim
5TH EDITION
Edited by Jill Laurie Goodman and Dorchen A. Leidholdt
Supreme Court of the State of New York, Appellate Division, First Department
Hon. John T. Buckley, Presiding Justice

This text is an unofficial publication of the Appellate Division,
First Department, Supreme Court of the State of New York, and does not
necessarily reflect the view of either the Court or any Justice thereof.
© 2006 All rights reserved

Summary of Contents
Part I: Introductory Matters
1. The Evolution of the Justice System’s Response to
Domestic Violence in New York State
by Julie A. Domonkos. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Interviewing Battered Women
by Dorchen A. Leidholdt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3. Thinking About Danger and Safety
by Jill Laurie Goodman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Part II: Family Offense Cases
4. The Practitioner’s Guide to Litigating Family Offense Proceedings
by Elizabeth Murno . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Part III: Battered Women and Children
5. Litigating Custody and Visitation In Domestic Violence Cases
by Kim Susser. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
6. Representing Domestic Violence Victims in Child Welfare Cases
by Jill M. Zuccardy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
7. Moving On: UCCJEA, The Hague Convention, and Relocation
by Liberty Aldrich and Lauren Shapiro. . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
8. The Uniform Child Custody Jurisdiction and Enforcement Act [UCCJEA] and
Domestic Violence: A Case Study
by Mary Rothwell Davis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
9. Representing Abused Mothers in Hague Convention Cases
by Betsy Tsai . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
10. Representing a Victim of Domestic Violence Who Needs Child Support
by Judy Reichler. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
Part IV: Criminal Justice
11. The Family Protection and Domestic Violence Intervention Act of 1994:
Mandatory Arrest Ten Years Later
by Lisa Fischel-Wolovick . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
12. When Domestic Violence Victims Are Sexually Assaulted:
Meeting the Challenges
by Jill Laurie Goodman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181

iv Summary of Contents
13. Taking Stalking Seriously
by Hilary Sunghee Seo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
14. Prosecuting A Domestic Violence Case: Looking Beyond Victims’ Testimony
by Elizabeth Cronin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
Part V: Economics and Collateral Issues
15. Representing Victims of Domestic Violence in Supreme Court
Matrimonial Actions
by Emily Ruben . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
16. Representing Domestic Violence Victims in the Workplace
by Wendy R. Weiser and Deborah A. Widiss. . . . . . . . . . . . . . . . . . . . . . . 237
17. Public Assistance and Housing: Helping Survivors Navigate Difficult Systems
by Amy E. Schwartz and Sharon Stapel. . . . . . . . . . . . . . . . . . . . . . . . . . . 255
18. Domestic Violence and Tort Remedies
by Betty Levinson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297
Part VI: Emerging Communities
19. Representing Immigrant Victims of Domestic Violence
by Lori L. Cohen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309
20. Helping Immigrant Victims of Domestic Violence
Access Federal and State Public Benefits
by Barbara Weiner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355
21. From Sex Trafficking to FGM: Emerging Issues Confronting Advocates
for Immigrant Battered Women
by Dorchen A. Leidholdt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 369
22. Advocating for Youth in Domestic Violence Proceedings
by Stephanie Nilva and Kristine Herman . . . . . . . . . . . . . . . . . . . . . . . . . 385
23. Domestic Violence in the Lesbian, Gay, Bisexual,
and Transgender Communities
by Sharon Stapel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 401
Appendices: Power and Control Wheel Diagrams . . . . . . . . . . . . . . . . . . . . . . . 423
Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 429

Table of Contents
Summary of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
Acknowledgements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii
Part I: Introductory Matters
1. The Evolution of the Justice System’s Response to
Domestic Violence in New York State
by Julie A. Domonkos. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The Progress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Challenges Ahead . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2. Interviewing Battered Women
by Dorchen A. Leidholdt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Meeting Your Client . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Preparing for the First Interview. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Understanding the Dynamics of Domestic Violence . . . . . . . . . . . . . . 12
The First Interview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Obtaining the History of Domestic Violence
and Gathering Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Knowing the Worst . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Problems in the Interview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Some Don’ts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
A Successful Attorney-Client Relationship. . . . . . . . . . . . . . . . . . . . . . 24
Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3. Thinking About Danger and Safety
by Jill Laurie Goodman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Assessing Danger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Moving Towards Safety . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

vi Contents
Part II: Family Offense Cases
4. The Practitioner’s Guide to Litigating Family Offense Proceedings
by Elizabeth Murno . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Preliminary Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Substantive Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Practice Tips and Suggestions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Part III: Battered Women and Children
5. Litigating Custody and Visitation In Domestic Violence Cases
by Kim Susser. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
The Legal Context. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Trial Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
6. Representing Domestic Violence Victims in Child Welfare Cases
by Jill M. Zuccardy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
The Law Regarding Child Welfare and Domestic Violence. . . . . . . . . 81
The Myths Regarding Child Welfare and Domestic Violence . . . . . . . 83
The CPS Investigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Advocacy During a CPS Investigation . . . . . . . . . . . . . . . . . . . . . . . . . 84
Procedural and Substantive Requirements for Removal . . . . . . . . . . . 87
The FCA § 1028 Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Non-Respondent Mothers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Respondent Mothers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Pre-Trial Practice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Settlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Disposition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

Contents vii
7. Moving On: UCCJEA, The Hague Convention, and Relocation
by Liberty Aldrich and Lauren Shapiro. . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
Escaping Violence: What to Consider When Advising Your Client. . 108
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
8. The Uniform Child Custody Jurisdiction and Enforcement Act [UCCJEA] and
Domestic Violence: A Case Study
by Mary Rothwell Davis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
The UCCJEA and Disputes of Foreign Origin . . . . . . . . . . . . . . . . . . 121
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
9. Representing Abused Mothers in Hague Convention Cases
by Betsy Tsai . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
Application of the Hague Convention . . . . . . . . . . . . . . . . . . . . . . . . 132
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
10. Representing a Victim of Domestic Violence Who Needs Child Support
by Judy Reichler. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
Domestic Violence and Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
Is it in Your Client’s Best Interest to Establish Paternity
and/or Seek Child Support? . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
If the Mother Is Receiving Public Assistance. . . . . . . . . . . . . . . . . . . 154
Should Support Be Made Payable through the SCU? . . . . . . . . . . . . 157
In Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
Negotiating an Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
New York’s Child Support Standards Act (CSSA) . . . . . . . . . . . . . . . 164
Sanctions for Failure to Disclose . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
Counsel and Expert Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173

viii Contents
Appendix A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
Appendix B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
Part IV: Criminal Justice
11. The Family Protection and Domestic Violence Intervention Act of 1994:
Mandatory Arrest Ten Years Later
by Lisa Fischel-Wolovick . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
Domestic Violence Intervention Act of 1994 . . . . . . . . . . . . . . . . . . . 172
Primary Aggressor Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
Retaliatory Arrests. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
Practice Implications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
12. When Domestic Violence Victims Are Sexually Assaulted:
Meeting the Challenges
by Jill Laurie Goodman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
Intimate Partner Sexual Violence . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
Representing Victims of Domestic Violence
Who Have Been Sexually Abused . . . . . . . . . . . . . . . . . . . . . . . . 183
Prosecuting Cases of Intimate Partner Sexual Abuse . . . . . . . . . . . . . 187
Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
13. Taking Stalking Seriously
by Hilary Sunghee Seo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
What is Stalking? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
Stalking and Domestic Violence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194
The New York Anti-Stalking Statute. . . . . . . . . . . . . . . . . . . . . . . . . . 194
Assisting Stalking Victims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
14. Prosecuting A Domestic Violence Case: Looking Beyond Victims’ Testimony
by Elizabeth Cronin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
Photographs of the Victim’s Injuries. . . . . . . . . . . . . . . . . . . . . . . . . . 207
Crime Scene Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209

Contents ix
Hearsay Exceptions: Excited Utterances . . . . . . . . . . . . . . . . . . . . . . 210
Evidence of Prior Acts of Violence. . . . . . . . . . . . . . . . . . . . . . . . . . . 214
Expert Testimony. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215
Criminal Contempt and Other Creative Charges . . . . . . . . . . . . . . . . 216
Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
Part V: Economics and Collateral Issues
15. Representing Victims of Domestic Violence in Supreme Court
Matrimonial Actions
by Emily Ruben . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
Grounds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226
Orders of Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
Court Conferences and Referrals . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234
Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235
16. Representing Domestic Violence Victims in the Workplace
by Wendy R. Weiser and Deborah A. Widiss. . . . . . . . . . . . . . . . . . . . . . . 237
How Can You Help Your Client Keep Her Job as
She Deals with the Violence in Her Life? . . . . . . . . . . . . . . . . . . 238
Should Your Client Tell Her Employer About the Violence? . . . . . . . 239
What Workplace Accommodations Can Help Your Client,
and What Are Their Legal Bases? . . . . . . . . . . . . . . . . . . . . . . . . 240
Workplace Accommodations in New York City or
Westchester County . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
How Can Your Client Get Time Off from Work to Take Steps
to Address the Violence in Her Life? . . . . . . . . . . . . . . . . . . . . . . 242
What Cash Benefits May be Available to Your Client
if She Cannot Work for a Period of Time or Leaves Her Job?. . . . 244
What Claims Could Your Client Have if She is Fired or Otherwise
Discriminated Against Because of the Domestic Violence? . . . . 245
Are There Additional Claims that Your Client May Have
if the Violence Occurred at Work? . . . . . . . . . . . . . . . . . . . . . . . . 248
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249
Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 250

x Contents
17. Public Assistance and Housing: Helping Survivors Navigate Difficult Systems
by Amy E. Schwartz and Sharon Stapel. . . . . . . . . . . . . . . . . . . . . . . . . . . 255
Public Assistance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255
Housing Options: Domestic Violence Shelters and Public Housing . . . 268
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279
Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280
18. Domestic Violence and Tort Remedies
by Betty Levinson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297
Identifying Domestic Violence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297
Identifying the Plaintiff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297
Identifying the Tort . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298
Valuing the Tort . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299
Statutes of Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300
Torts Claims and Matrimonial Actions: Chen v. Fisher24 . . . . . . . . . 301
Practice Points Choice of Forum . . . . . . . . . . . . . . . . . . . . . . . . . . . . 301
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303
Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 304
Part VI: Emerging Communities
19. Representing Immigrant Victims of Domestic Violence
by Lori L. Cohen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309
Barriers to Protection Faced by Immigrant Women . . . . . . . . . . . . . . 309
Preliminary Notes on Representing Immigrant
Domestic Violence Victims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312
Factors in Determining Eligibility for Relief . . . . . . . . . . . . . . . . . . . 315
Categories of Relief for Domestic Violence Victims . . . . . . . . . . . . . 320
VAWA Self-Petitions for Victims Married to a USC Or LPR48 . . . . 322
VAWA Cancellation of Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324
Alternative Remedies for Victims of Physical, Psychological
or Sexual Abuse: T Visas and U Visas . . . . . . . . . . . . . . . . . . . . . 327
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333
Appendix A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334
Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343

Contents xi
20. Helping Immigrant Victims of Domestic Violence
Access Federal and State Public Benefits
by Barbara Weiner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355
Immigrant Benefits Eligibility Rules in General . . . . . . . . . . . . . . . . 355
The “Battered Qualified Immigrant” Eligibility Category . . . . . . . . 357
Permanently Residing Under Color of Law (PRUCOL) . . . . . . . . . . 361
The Benefits Rights of Undocumented Immigrants
and Their Families . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 362
Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364
21. From Sex Trafficking to FGM: Emerging Issues Confronting Advocates
for Immigrant Battered Women
by Dorchen A. Leidholdt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 369
Trafficking and Prostitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 370
Internet Marriages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 373
Early Marriage and Forced Marriage . . . . . . . . . . . . . . . . . . . . . . . . . 375
Honor Killing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376
Female Genital Mutilation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379
Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 380
22. Advocating for Youth in Domestic Violence Proceedings
by Stephanie Nilva and Kristine Herman . . . . . . . . . . . . . . . . . . . . . . . . . 385
Impact of Relationship Abuse Among Youth . . . . . . . . . . . . . . . . . . . 386
Challenges to Representing Youth . . . . . . . . . . . . . . . . . . . . . . . . . . . 386
Advocacy Tips. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 388
Justice System Response. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391
Safety Planning with Young Clients . . . . . . . . . . . . . . . . . . . . . . . . . . 396
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 397
Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 399
23. Domestic Violence in the Lesbian, Gay, Bisexual,
and Transgender Communities
by Sharon Stapel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 401
Defining LGBT Domestic and Intimate Partner Violence . . . . . . . . . 402

Overview of Legally Recognized LGBT Relationships
in New York City and New York State . . . . . . . . . . . . . . . . . . . . 406
Domestic Violence Specific Legal Remedies for Same-Sex
and Trans Survivors of Domestic Violence . . . . . . . . . . . . . . . . . 407
Non-Domestic Violence Specific Civil Legal Remedies . . . . . . . . . . 409
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 410
Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 411
Appendices
Appendices: Power and Control Wheel Diagrams . . . . . . . . . . . . . . . . . . . . 423
Appendix A: Power and Control Wheel . . . . . . . . . . . . . . . . . . . . . . 424
Appendix B: Immigrant Power and Control Wheel . . . . . . . . . . . . . 425
Appendix C: Teen Power and Control Wheel . . . . . . . . . . . . . . . . . . 426
Appendix D: Lesbian/Gay Power and Control Wheel . . . . . . . . . . . . 427
Contributors
Contributors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 429

ALEXIS MCNAUGHTON KNOX
1983 - 2006
Acknowledgements
The editors are grateful to the many people who, in different ways, contributed
to this volume. Among them are:
Hon. Judith S. Kaye, Chief Judge of the State of New York, whose creative
vision and passionate commitment to women and families serve as foundations
for projects such as this.
Hon. John T. Buckley, Presiding Justice of the Appellate Division, First Department,
who has graciously lent us the prestige and resources of the Appellate Division.
Hon. Betty Weinberg Ellerin, former Associate Justice and former Presiding
Justice of the Appellate Division, First Department, now special counsel to Alston
& Bird. Judge Ellerin is second to none in her devotion to the community this
volume is designed to serve. She supported us, as always, in her own indomitable
and inimitable way, with affection and wisdom.
Ted Ermansons, graphic artist extraordinaire, who is responsible for the elegant
design of this volume. He understood what we wanted before we did and
created harmony of subject and object. Ted shot the remarkable photographs
that grace this book.
Elizabeth Peters, who worked under considerable pressure and with tremendous
skill to get accurate and attractive camera-ready copy to the printer, all the time
maintaining an aura of calm, assured composure.
Alix Lerner, who cheerfully and expertly proofread this entire volume.
The advocates for domestic violence victims whose faces adorn the cover of this
book, and, in particular, Alexis McNaughton Knox, whose photo also appears
on this page. Alexis, who recently died in a car accident, was a brilliant young
woman with a passionate commitment to women’s rights. Her death was a tragic
loss not just to friends and family but to the community she hoped to serve.
The contributors, one and all, who took the time to write about the work and
people to whom they devote so much of their lives.
Jill Laurie Goodman
Dorchen A. Leidholdt
October 2006

Part I
Introductory Matters

The Evolution of the Justice System’s Response
to Domestic Violence in New York State
The anti-domestic violence movement began in the 1970s as a grass-roots
feminist response focusing on creating emergency shelters for women and
children fleeing violent family members. Immediate safety has been and always
must be the first priority of the movement. However, activists in the field
quickly saw that a short stay in an emergency shelter would not make battered
women and their children safe in the long-run, nor bring their abusers to justice.
Advocates increasingly turned to the civil and criminal justice systems to hold
abusers accountable, create longer-term safety strategies for victims, and
demand economic justice.
Although steps were taken over the years, it was not until the 1990s that
the anti-domestic violence movement produced a sea change in the way police,
prosecutors, lawyers, legislators and the courts responded to cases of domestic
violence. The last decade of the twentieth century produced a mature legal
specialty in the area of domestic violence, the emergence of lawyers specializing
in the field, and a justice system that became responsive to the issues and needs
of these victims and their children.
The progress that has been made in the last decade is impressive. However,
many barriers to safety and justice remain for battered women and their children.
The Progress
by Julie A. Domonkos
For New York State, 1994 was a watershed year. The New York State
Legislature passed the Family Protection and Domestic Violence Intervention
Act, 1 an omnibus bill that revolutionized the New York justice system’s response
to cases of family violence. The Act eliminated an anomaly of New York law
1

2 Julie A. Domonkos
that had long plagued victims and their advocates and that was misleadingly
known as the “right of election.” Far from being a right, this law limited victims
of domestic violence to a choice between pursuing their claim in Family Court
or Criminal Court within 72 hours after an act of domestic violence. No other
state forced victims to choose between civil and criminal remedies. The 1994
Act also imposed a state-wide mandatory arrest law, requiring police officers to
make an arrest for domestic violence felonies, violations of stay-away orders of
protection, and family offenses committed in violation of an order of protection.
For domestic violence misdemeanors, the Act mandated arrest unless the victim
requests otherwise. The Act eliminated the coercive police tactic of asking
victims at the scene of the crime whether they wished to have an arrest made.
The Act also created a statewide registry of orders of protection so that
police and judges could easily determine whether a valid order had been
violated and whether there was a history of domestic violence. A new police
form called a “Domestic Incident Report” was mandated by the Act, so that any
potential domestic violence case could be recorded and tracked as such. Longer
Family Court orders of protection were allowed upon a showing of specified
aggravating circumstances, and training for police, prosecutors and the judiciary
was mandated.
In the same year, the federal Violence Against Women Act2 was passed.
VAWA, as it became known, created a new federal civil rights remedy for
victims of gender-based crimes and instituted new penalties for interstate crimes
of domestic violence. VAWA also created a large funding stream for domestic
violence and sexual assault programs, which led to a rapid growth of antiviolence
programs in non-profit organizations, prosecutors’ offices, and the
courts. Legal programs to help victims of domestic violence and enhance the
arrest and prosecution of batterers were no longer a rarity. VAWA also provided
the statutory framework for states to give full faith and credit to orders of
protection issued by other states. This was an important advance because
domestic violence victims frequently relocate in order to escape their abusers.
Two years later, the New York State Legislature mandated that courts
consider proof of domestic violence in all child custody and visitation cases. 3
Although courts were always free to hear and credit such proof, they often
failed to do so, hampered by the same lack of understanding about the nature
of domestic violence and its serious effects on children that is prevalent in the
general population. Advocates called for this legislative action because courts,
law guardians and forensic evaluators frequently labeled victims hysterical or
dishonest when they would allege domestic violence in their cases, and judges

Evolution of the Justice System’s Response 3
would often fail to protect — or rule against — victims and their children after
they took the risk of revealing the abuse.
In 1997, the Legislature acted to address a problem that arose after the 1994
passage of the mandatory arrest law. Under mandatory arrest, police officers
began arresting both parties in a domestic dispute if both alleged or showed
physical signs of injury. This meant that victims frequently were arrested (or
threatened with arrest if they pursued charges against their abuser) because
either they had fought back to defend themselves or their abuser made a false
allegation against them. In response, the Legislature enacted what is commonly
known as the “primary physical aggressor law.” 4 This law requires police
officers to attempt to determine which of the parties in a misdemeanor-level
domestic dispute is the primary physical aggressor and arrest only that party.
Police are mandated to consider specific factors such as a prior history of
domestic violence, the comparative extent of injuries to the parties, and whether
one of the parties acted defensively. The problem of dual arrest persists but has
been at least somewhat alleviated by the primary physical aggressor law.
In 1999, New York joined all of the other states in enacting anti-stalking
legislation. 5 While hardly progressive — New York was the last state to take
action against this particular type of criminal activity — New York did benefit
from seeing what other states had done and crafted a bill that addressed a broad
range of stalking activities while avoiding Constitutional problems. The New York
anti-stalking law was a big advance because it recognized the lived experiences
of stalking victims, most of whom are women and most of whom are stalked by
current or former intimate partners. The law had long understood the fear and
harm experienced by victims of classic assault cases like barroom brawls. Now
the law had evolved to take into account the unique fear that stalkers invoke and
the subtle and insidious tactics stalkers use against their victims.
Changes in the structure of the court system paralleled substantive law
changes in the arena of domestic violence. The 1990s saw the introduction of
specialized domestic violence courts. Pilot domestic violence courts sprang up
in New York in Criminal Court and in Family Court. Ultimately, the model of
the “integrated domestic violence court” emerged, through which all issues —
criminal and civil — confronting a family impacted by domestic violence would
be heard by one judge. These courts continue to evolve and, under the leadership
of Chief Judge Judith Kaye, are planned for every county in New York.
The development of domestic violence courts signaled an enormous shift
in how the justice system viewed its role in responding to domestic violence.
Previously, there was a pervasive sense that courts were compromising their

4 Julie A. Domonkos
impartiality by learning about domestic violence and applying that knowledge
to the cases before them. It took a conscious effort by the leadership of the court
system to shift that paradigm and point out that courts simply could not do justice
in these cases unless they received training from experts about the nature of
domestic violence, its effects on adult and child victims, and the tactics abusers
commonly use to manipulate the justice system. 6 Far more emphasis was placed
on holding abusers accountable. Excuses for battering such as substance abuse
and anger management problems were exposed as baseless, and courts stopped
sentencing abusers to programs in lieu of true criminal sanctions. Referrals to
batterer intervention programs continue to be made but with an understanding
that they do not “change” the batterers, do not make victims safe, and do not
substitute for penal sanctions.
Progressive developments also occurred in police departments and
prosecutors’ offices. Domestic violence training was mandated for police
officers, and some larger departments, such as those in New York City, formed
specialized domestic violence units. Many of these units work hand-in-hand
with local domestic violence service providers so that victims can receive
confidential supportive services as their criminal cases go forward. Prosecutors
learned that connecting victims to supportive services makes it more likely that
the victim will assist in the prosecution. They developed the idea of “evidencebased
prosecutions” so that cases could be pursued even when the victim was
unavailable to testify.
In the last ten years, the law has recognized a new expertise of domestic
violence. Courses and clinical programs on domestic violence are available at
law schools, continuing legal education programs are offered on the topic, bar
associations have formed domestic violence committees, and specialized legal
services programs hire attorneys to represent abuse victims. Domestic violence
has come into its own as a legal movement. Nevertheless, there is a great deal
more progress to be made.
Challenges Ahead
There are some tough truths that must be bravely faced if the justice system
is to help bring true safety for domestic violence victims and full accountability
for abusers. First, gender inequities corrode our justice system just as they do
the world at large. Everyone with a role in the justice system must be open to
the knowledge that has been accumulated about domestic violence and vigilant

Evolution of the Justice System’s Response 5
in fighting against gender stereotypes. Domestic violence is, at its core, an issue
of gender inequality. The batterer’s goal is to beat the equality out of his victim.
Systemic gender inequities facilitate the batterer in this effort. These inequities
play out in countless ways when victims seek help from the justice system.
Advocates have storehouses of anecdotes, such as when victims are labeled
“hysterical” or “incredible” because they allege abuse, or when police refuse to
enforce orders of protection because they feel sorry for the abuser denied access
to his children, or when courts allow abusers to delay paying child support or
maintenance. In April 2002, the New York State Judicial Committee on Women
in the Courts issued a follow-up report to its groundbreaking 1986 analysis of
gender bias in the courts. 7 The findings and recommendations of the initial
analysis and the follow-up report show clearly how gender bias can — and still
does to some extent — permeate and corrupt the administration of justice in the
court system. In the section on domestic violence, the report notes, for example,
that victims of domestic violence often face a higher standard of credibility than
their abusers, that many judges still need a better understanding of the effects of
domestic violence on victims and the grave danger they face, that some judges
grant abusers access to their children without sufficient regard for the safety of
the children or their mothers, and that law guardians and forensic evaluators
often fail to recognize domestic violence and its effects on children. 8 When
battered women have to fight against gender bias in the courts, they are doubly
abused. Courts simply cannot do justice when they make the blind assumption
that the parties in domestic violence cases come before them equal in status.
Comprehensive and continuous efforts to wipe out gender bias in the justice
system are a top priority.
A related problem is the pervasive presumption that, while domestic
violence may harm the adult victim, it is not necessarily harming the children in
the family. If not for the gender bias that clouds our vision, common sense would
say clearly that a father who hurts the mother of his children is, by definition,
hurting his children. This has been borne out by advocates’ anecdotal experience
and fortified by years of social science research, which shows without question
that children are harmed by domestic violence. From 30 to 60% of children in
homes where a parent is physically abused are also physically abused, and many
of the rest show signs of psychological harm and trauma. 9 Our current system
gives abusers the benefit of the doubt and cuts off access to their children in
only the most egregious of cases. This puts children at risk. A fundamental law
change is needed so that a parent who chooses to use violence in his relationship

6 Julie A. Domonkos
must bear the burden of proving that he presents no risk to his children before
he is granted the privilege of rearing them.
Another tough truth that must be confronted is that money counts when it
comes to access to justice. Poor battered women who cannot afford an attorney
are often left to represent themselves or are provided piecemeal representation by
attorneys without resources or perhaps even background in domestic violence.
Under current law, poor people who cannot afford an attorney are not entitled to
appointed counsel in matrimonial or child support matters. This has a devastating
impact on domestic violence victims who need self-sufficiency in order to stay
free of their abusers. Without the benefit of effective and zealous advocacy,
many women are forced to give up their fair share of the family assets to get
legal custody of their children (and thereby keep them safe from the abuser).
New York State needs a comprehensive plan to provide seamless and effective
legal representation for all battered women and their children. In the meantime,
courts must ensure that battered women are promptly and safely given the child
support to which their children are entitled and that non-monied battered women
spouses in divorce actions receive pendente lite relief from the beginning of the
action so that they can obtain the best possible legal representation and their fair
share of the marital estate.
A final and perhaps most important challenge is to remember that the
justice system alone cannot solve the problem of domestic violence, either for
society as a whole or for individual victims. The work to end domestic violence
is not a criminal justice movement. It is a social change movement that requires
a fundamental shift in every part of our culture. No lawyer, police officer,
prosecutor, judge, or probation officer can guarantee the safety of a victim.
Each can use the law as one tool, in partnership with the victim, to help her
in her quest for safety and self-sufficiency for herself and her children. It is a
critical mistake to think that the justice system has all the answers for battered
women and their children and that we should therefore dictate to them what to
do and reject or punish them if they choose another path. The legal tool must be
used in conjunction with other social service tools in a holistic approach to
helping abused family members make a new life. While the justice system has
made huge advances in the effort to help victims and children over the past
decade, it must never presume to be the cure.

Notes
Evolution of the Justice System’s Response 7
1. Laws of 1994, ch 222, 224.
2. Violence Against Women Act of 1994, Pub L No. 103-322 (1994).
3. Laws of 1996, ch 85.
4. Laws of 1997, ch 4.
5. Laws of 1999, ch 635.
6. For example, abusers frequently make false police complaints, file for
orders of protection, or accuse their victims of child abuse as a means of
deflecting the court’s attention away from their own illegal conduct.
7. Women in the Courts: A Work in Progress; 15 Years After the Report of the
New York Task Force on Women in the Courts, New York State Judicial
Committee on Women in the Courts, April 2002. The New York State
Judicial Committee on Women in the Courts has been long and heroically
chaired by the Honorable Betty Weinberg Ellerin, former Presiding Justice
of the Appellate Division, First Department.
8. Id. at 12-13.
9. See e.g. In Harm’s Way: Domestic Violence and Child Maltreatment, National
Clearinghouse on Child Abuse and Neglect Information; M. McKay, The Link
between Domestic Violence and Child Abuse: Assessment and Treatment
Considerations, Child Welfare, Vol LXXIII, No. 1 (Jan.-Feb. 1994).

Meeting Your Client
2
Interviewing Battered Women
by Dorchen A. Leidholdt
Your first interview with your client is crucial. If she feels that you are
untrustworthy, judgmental, or unable to relate to her experience, she will censor
herself and you will not get the information you need to represent her effectively.
At this first meeting, you will have an opportunity to gather vital information
that may not be available again. Memories dim and bruises fade.
In the course of your relationship, you will give her advice — some that
she may not want to hear. If she trusts you, it is far more likely she will be able
to hear bad news — like the fact that some form of visitation between her
children and her batterer is probably inevitable — without feeling that you are
the enemy. With an attorney-client relationship predicated on trust, she will be
far more likely to make sound decisions and act in a way that is in her, and her
children’s, interest. Such a relationship may not be easy to achieve, however,
particularly since she is emerging from a relationship in which her trust has
been repeatedly betrayed.
It is very important to understand the disparity in power between you and
your client, so that it will not inadvertently be used against her. You will probably
have knowledge, skills, access, and credibility that she will not have. You very
likely will have privileges based on race, class, education, gender, facility with
the English language, or a combination of these factors that she will not have.
You will be able to use these privileges on behalf of your client to help her
become a full participant in her case, to make her situation understandable to
the court, and to enhance her credibility. Don’t let this power differential work
to her disadvantage.

10 Dorchen A. Leidholdt
For all of these reasons and more, it is important that you do everything
possible to make your first interview a success for both you and your client.
There are some concrete steps you can take, and there is some less tangible but
even more important preparation you can do.
Preparing for the First Interview
Your first interview with your client begins with your initial telephone
contact. Try to determine if it is safe to call her at home or leave a message.
If she is still living with her abuser, or if he or his friends or family members
frequent her home, he may intercept or learn about your call and punish her for
seeking help. Find out when and where you can safely call her. Ask her if there
is a friend or relative with whom you can leave messages without endangering
her. If you call her home and someone else answers the phone, do not just hang
up. That could create suspicion and trigger a beating. Instead, ask for someone
else and apologize for dialing a wrong number.
If your client is in shelter, ask her for the telephone number of her counselor
and/or the shelter’s reception desk. With her permission, introduce yourself to
her counselor, who will likely be an important resource.
When you choose the date of the first meeting with your client, explain that
it is important that she be punctual and to call you in advance if she needs to
reschedule. Some domestic violence victims’ lives are in so much flux that it is
difficult for them to keep appointments. This is especially likely if the abuse was
recent or is ongoing or if the victim was forced to flee her home. It is helpful to
let your client know what your expectations are, and it is important that those
expectations be realistic and take into consideration her difficult circumstances.
Isolated by her abuser from family and friends and impoverished by his
economic control or her flight from her abuser, your client may have child-care
problems. If that is the case, see if you can make arrangements with someone in
your office to watch the children. If the children are school age, ask the client to
bring books that they can read in the waiting room under the watchful eye of the
receptionist. If the children are young, child-care presents more of a problem.
See if the client can bring someone to wait outside with the children. Of course,
it is not a good idea to bring children, except newborns or sleeping infants, into
the interview unless it is confined to a discussion of financial information.
I welcome the opportunity to meet my client’s children and to observe her
interaction with them, especially if there is an actual or potential custody or

Interviewing Battered Women 11
visitation case. Seeing her with her children can give you information about her
strengths as a parent that will make you a stronger advocate. Problems in the
way your client relates to her children may become an issue in court. You need
to be alert to any such problems so that you can make swift and appropriate
referrals to parenting groups or therapists.
Remember that, until a law guardian has been appointed, you can interview
your client’s children. Older, verbal children can be a source of valuable and
reliable information, such as which parent they prefer to live with or what they
observed in their home on a particular occasion. Be sure that you have your
client’s permission to interview the children and clear any questions you ask
them with your client in advance. Also be sure that any questions you ask the
children are “open-ended” and that you do not inadvertently lead or insinuate.
Ask your client to bring to the first interview all court papers, police reports,
hospital records and appointment slips relevant to the domestic violence, and
marriage and birth certificates. New York State domestic incident reports, issued
by the police when they arrive on the scene of a domestic dispute, contain
contemporaneous accounts of the incidents by both your client and the responding
police officer and are especially useful. Ask her if she keeps a calendar or journal;
if she does, ask her to bring it to the interview. If she does not keep a journal, tell
her that it is a good idea to begin to keep one so that you will know the exact date
and time on which events occur, like drop-offs and pick-ups for visitation or
harassing phone calls.
Be sure to explain to your client each and every part of the legal process.
Do not ignore her phone calls or blame her for the abuse (e.g., “Why did you
stay with him for ten years if he was so bad to you?”). You can help empower
your client or you can be part of the system that keeps her down.
If your client is from a different ethnic or religious group or if she is an
immigrant, guard against the stereotypes about her or her culture (e.g., that Asian
or Muslim women are submissive). Avoid imposing on her or her culture your
own ethnocentric judgments (e.g., she is a bad parent because her infant sleeps
in her bed, a common practice in many cultures, rather than alone in a crib).
Learn about any religious beliefs and cultural customs that may become an issue
in court. You may have to become your client’s cultural interpreter to the court,
forensic expert, or law guardian. Be alert to religious holidays and avoid
scheduling court dates and trial preparation sessions on those days. Be aware
that violence against women often takes different forms in different cultures.
There are a number of organizations that serve victims of domestic violence
from particular ethnic groups, such as the Korean-American Family Service

12 Dorchen A. Leidholdt
Center, Sakhi for South Asian Women, and the Arab-American Family Support
Center. Advocates from these organizations not only can provide emotional
support for your client but also can provide you with crucial information about
your client’s culture.
Understanding the Dynamics of Domestic Violence
It is also essential, before you interview your client, to have an understanding
of the profile of a batterer and the dynamics of domestic violence. This is important
for a number of reasons.
First, your client needs to understand what she is dealing with at home and
that she is not alone. Many women blame themselves for being in abusive
relationships. Recognizing that the domestic violence is the product of his need
to dominate and control and not her psychology or behavior can lift a burden
from her shoulders. Realizing that there are other women in the same boat can
help end her isolation.
Second, you may need to educate the court, the law guardian, and even the
forensic psychologist about the dynamics of domestic violence and their relevance
to your case. These days many psychologists, lawyers, and judges have received
some domestic violence training. It does not necessarily prepare them, however, to
apply the lecture’s abstract principles to the real human beings before them or rid
them of deeply held biases.
Third, you will need to help her assess her safety needs and what to expect
from her abuser. Will he stalk her? Is he so dangerous that she needs to go into
shelter? Is he so dangerous that she should not initiate a family court action that
will place her in close proximity to him? Will he use the legal system instead of
his fists to continue the abuse once she has left? Information about how batterers
think and behave will help you prepare her for what may be in store.
You probably have heard of the “battered woman syndrome.” This is a
constellation of characteristics ostensibly shared by domestic violence victims
who have been subjected to battering over a period of time. A central feature of
“battered woman syndrome” is “learned helplessness” — the inability of
battered women to seek help or escape even when these options are available. 1
This syndrome, while useful when trying to explain to a criminal jury why a
horribly abused woman was acting in self-defense when she shot her sleeping
husband, has proven detrimental to women in other legal contexts. “Battered

Interviewing Battered Women 13
woman syndrome” has been especially harmful to domestic violence victims
fighting for custody of their children: if battered women suffer from learned
helplessness and cannot protect themselves, then how can they protect their
children? “Battered woman syndrome” also suggests that battered women are not
victims of oppression but rather suffering from psychological pathology.
“Battered woman syndrome” has undermined domestic violence victims in a
variety of legal contexts by becoming a rigid pigeonhole: if the woman was
resourceful, assertive, and a fighter — clearly not suffering from “learned
helplessness” — then her story of victimization must not be true.
“Battered woman syndrome” includes the notion that battering is characterized
by a “cycle of violence”: a stage of tension-building followed by a stage of
acute battering followed by the honeymoon stage when the abuser begs for
forgiveness. 2 The problem with this theory is that, while the cycle of violence
describes some abusive relationships, it does not describe all of them. Some
batterers never apologize. Some battering remains low-level, chronic, and
marked by constant criticism and verbal abuse. Unfortunately, the “cycle of
violence” became as rigid a pigeonhole as “learned helplessness,” calling into
question women’s stories of abuse when they did not fit this pattern.
The psychological understanding of domestic violence has changed. Thanks
to the work of scholars like Evan Stark and Julie Blackman, the focus has
shifted from the victim’s mental state to the abuser’s attitudes and behavior,
which Stark characterizes as “strategies of coercive control.” 3 What is definitive,
Stark argues, is not whether the victim ended up in the hospital, but whether her
abuser was carrying out a campaign of physical and psychological strategies to
bend her to his will.
Psychologists and advocates have identified a set of behaviors and attitudes
common to abusers. They are careful to point out that not all abusers share all
characteristics. I find it very helpful to review this list with my clients. It often
elicits important information that would not surface otherwise. Being able to
understand and identify the characteristics of batterers and their strategies of
control can be very helpful to your client, diminishing her abuser’s authority
and lessening her feelings of self-blame.
Jealousy and Possessiveness
Jealousy and possessiveness are two of the most common characteristics of
abusers. Often they are initially interpreted by the victim as signs of her partner’s
passion and devotion. Soon, however, it becomes apparent that they underlie his
acts of domination and control. Jealousy in the context of an abusive relationship

14 Dorchen A. Leidholdt
can take many different forms, some overtly paranoid. The abuser of one of my
clients hid tape recorders around the apartment in the hope of catching her with
a lover. Another client’s abuser forced her to lower her eyes whenever she
walked outside; he was convinced that she was flirting with every man she
encountered. Abusers often accuse their victim of sleeping with everyone from
her boss to her best friend.
Controlling Behavior
This is often related to the abuser’s jealousy. Since he is convinced that she
wants to sleep with anyone and everyone, he has to monitor her every move to
prevent her infidelity. He will not let her work outside the home, go to the store,
or wear lipstick.
Battered immigrant women must often contend with abusers who attempt to
use their immigration status as a weapon of control. Frequently, their abusers will
seize their passports and other travel documents. If the women are undocumented,
their abusers will threaten to report them to immigration officials and have them
deported. If the women have conditional resident status, their abusers will threaten
not to accompany them to their INS interview for removal of the condition.
Battered women from Islamic countries may return home for a visit with their
families only to discover that they are unable to leave the country because their
abuser has issued a decree preventing them from doing so. One of my clients
was held prisoner by her abuser in Algeria for years until she promised to obey
him in all matters; only then did he permit her to return to the United States.
Quick Involvement and Manipulative Behavior
In abusive relationships, the dating period is often brief and intense. Almost
immediately, the abuser expects his partner to meet all of his needs, build her
world around him, and submerge her identity in his. Again, this behavior is
often initially interpreted by the victim as passion and devotion; eventually she
realizes that it is her prison. During the courtship period, abusers often present a
smooth facade. As one of my clients said, “He was the perfect gentleman.” The
perfect gentleman beat her for years and would have killed her had a neighbor
not intervened.
Batterers are often skilled manipulators, adept at deceiving criminal justice
and child welfare authorities. They often turn their powers of manipulation on
their own children, persuading them that mommy is to blame for the fact that
the family is no longer together.

Isolation
Interviewing Battered Women 15
Abusers frequently attempt to isolate their victims. He hates her family and
tries to persuade her that they are horrible to her. He tells her that she has to
choose between them and him. To maintain the relationship, she moves away
from her parents and cuts off contact with her sister. He wants her to quit her
job and stay home with the kids. He hates her friends and tries to persuade her
that they are just using her. He wants her in the home, where she is totally under
his control. Any social contact becomes a threat.
When a batterer isolates his victim, he is cutting off her exit routes. This is
a strategy that makes a great deal of sense from the batterer’s point of view. She
has no one to help her understand what is happening to her, to bolster her selfesteem,
and to offer assistance when she needs to leave.
Blame and Incessant Criticism
The batterer is never at fault and never accepts responsibility for any of his
actions. She is always to blame. She is fat, stupid, too emotional, a terrible cook,
a terrible mother, bad in bed, looks like a whore or a hag, and is responsible for
his poor work performance, his poor relationships with other people, and above
all, his violence to her. The barrage of constant criticism undermines her selfesteem,
often rendering her even more dependent on him.
Cruelty to Animals or Children
One client told me that, after she left the relationship, her children reported
that during court-ordered visits her abuser would hit and kick the dog exactly
the way he used to hit and kick her. In another case, the batterer became jealous
of my client’s much loved miniature poodle, and, one day in a rage, threw him
against the wall, killing him.
Batterers are disproportionately likely to abuse their children as well as their
partners. Studies show that in approximately half of domestic violence cases,
children are also abused. Child abuse by batterers may take the form of depriving
them of the love and care of their mothers. I have seen many cases in which
batterers have abducted the children to another country after the mothers fled
the abusive relationship. 4
Abusive and Violent Sex
One of the things I found the most surprising when I began to represent
battered women was the pervasiveness of sexual abuse in domestic violence.

16 Dorchen A. Leidholdt
In the course of preparing a petition for an order of protection, I would learn that
she was not only threatened by her abuser — she was raped repeatedly by him.
Often I did not learn this information on the first interview because my client
was ashamed of the sexual abuse and found it so hard to talk about. Although
there has been no marital rape exemption in New York State since the Court of
Appeals rejected it in 1984, 5 and rape is a serious crime — a B Felony — rape
in the context of domestic violence is rarely ever prosecuted, both because
victims are understandably reluctant to come forward and because the system
still sees marital rape as something less than a real crime. 6
Sexual abuse in the context of domestic violence often means the abuser
pressuring or forcing his victim to participate in unwanted, degrading sex:
picking up prostitutes, going to a strip show or sex club, taking pornographic
pictures of her, making her perform sexually for him and his friends, making her
prostitute herself and making her act out what he likes in pornography. In one
custody case, the batterer introduced into evidence at trial pornographic pictures
of his bruised victim. He seemed to think that it was irrelevant that he had taken
the pictures and that they documented his abuse. Fortunately, the judge did not
and rejected his bid for custody. 7
Sexual misconduct, rape, and other sexual offenses are not “family offenses”
as defined by the Family Court Act and the Penal Code. The acts and injuries
involved, however, may make out the elements of a family offense such as
assault (if there is “physical injury”) or harassment.
Verbal Abuse
Batterers usually subject their victims to an unending barrage of verbal
abuse. The epithets “bitch” and “whore” are staples of domestic violence, along
with threats and obscenities.
Threats
Threats go hand in hand with physical abuse. Some batterers control their
partners with threats punctuated by an occasional act of violence. Ask your
client specifically, “Did he ever threaten you?” Some victims do not see threats
as acts of abuse. One of my clients was frequently awakened in the middle of
the night by her husband, who would show her a length of cord or a sash.
During the day, he made frequent, approving references to O. J. Simpson.
Frequently he would push or slap her. She lived in terror that he would kill her
but did not believe that she was a victim of domestic violence.

Rigid Sex Roles
Interviewing Battered Women 17
Batterers often demand that their partners conform to rigid sex roles. She is
supposed to be passive, obedient, solicitous, pretty, a great cook who always has
dinner on the table just when he is ready for it, and sexually available to him
whenever he is in the mood.
The First Interview
At the beginning, review the statement of the client’s rights and responsibilities.
This is a good opportunity to set certain ground rules with your client, and to
assure her that you are aware of and will abide by your obligations to her. Do not
just hand the statement to her to read. Discuss it with her. Explain that she will
make decisions about objectives and settlement, but that it is your job to make
decisions about how best to achieve those goals.
Confidentiality
Explain to your client that her communications to you are protected by
attorney-client privilege. Describe the privilege in simple lay terms: it means that
everything she tells you is in confidence (“between you and me”) and that you
can disclose what she tells you only if you have first secured her permission.
Be careful not to inadvertently disclose client confidences in conversations
with the law guardian, child welfare workers, or forensic experts. If it would be
advantageous to disclose certain information about your client to them and it is
arguably confidential, get her permission first.
Inform your client that these principles of confidentiality will not apply when
she talks with the forensic psychologist, the law guardian and his or her social
worker, the judge’s assistant, the child welfare worker, or anyone other than you
or someone from your office working for you. Anything she communicates to this
list of professionals will very likely be communicated to the judge in a report.
In dealing with them she will have to learn how to be an effective advocate for
herself and walk a fine line: she must be able to convincingly and specifically
describe the history of domestic violence without sounding embittered, angry,
obsessive, or hostile to her abuser’s relationship with their children.

18 Dorchen A. Leidholdt
Legal Issues and Legal Needs
It is very important to go into the first interview understanding the primary
legal issue, the burden of proof, and what your client will probably have to
establish to prevail. For example, if it is a custody case, you will need to establish
by a preponderance of the evidence that it is in the best interest of your client’s
children for her to be the custodial parent. Learn the best interest factors8 and
know that the court must consider proof of domestic violence. Or, if your client
wants a three-year, exclusionary order of protection, she will have to establish
by a preponderance of the evidence that her abuser has committed a family
offense against her and that there are “aggravating circumstances.” Know the
elements of the family offense you will have to prove. Or, if your client has
conditional resident status, in order to obtain permanent residence status she will
need a battered spouse waiver establishing that her marriage was in good faith and
that she was subjected to extreme cruelty. Your interview should be structured
around obtaining the information you will need to meet the evidentiary burden.
In the course of the interview, you may discover that your client has other
legal needs. It is not unusual for a domestic violence victim to have a range of
different legal matters proceeding simultaneously. Typically, your client will
have an order of protection and a custody or visitation matter in family court
and a criminal case pending in criminal or supreme court. She may also be
involved in a matrimonial action and an INS proceeding. You must be alert to
all of these matters, actual or potential, and attempt to determine how you can
comprehensively address her legal needs.
For example, your client says she wants a divorce but her batterer is stalking
and threatening her. Her immediate need is for police action and an order of
protection. You will want to advise her about calling the police. It may be helpful
to intervene with the police on your client’s behalf.
Or your client wants custody but thinks that there is a pending criminal
prosecution against her abuser for beating her up. It has been months since she
has talked with the prosecutor. You may need to serve as a liaison between your
client and the district attorney’s office to make sure they understand that she is
cooperating and wants a conviction. That conviction will be very helpful in the
custody case.
Nonlegal Needs
Also be alert to the fact that your client may have nonlegal needs that must
be addressed.

Interviewing Battered Women 19
For Safety
You may learn that your client is living with her abuser and that the abuse is
ongoing. She may tell you that he will ignore an order of protection and may
seriously hurt or kill her. You will need to find out if she wants to go into a battered
woman’s shelter or if there are family members or friends she can live with. If she
wants to remain in the home with her abuser, you will need to talk with her about
strategies should the abuse resume (alerting a sympathetic neighbor, for example)
and a plan for quick escape. Be sure that she has all of her important documents in
a place the abuser does not have access to. She will need to explore safety
precautions such as having her locks changed and installing window guards.
For Counseling
She may tell you that she feels so alone and isolated that she is thinking
about going back to her abuser. Tell her that there are support groups for domestic
violence victims that can help create a supportive community. Then assist her by
making an appropriate referral.
For Therapy or Psychiatric Help
She may tell you that she feels depressed and sometimes considers suicide;
she has constant nightmares; she is terrified to leave her home even though she
is certain her abuser does not know where she lives. She may describe recurrent
nightmares, attacks of insomnia, or intrusive flashbacks to incidents of abuse,
all symptoms of post traumatic stress disorder. You will want to urge her to get
psychological evaluation and treatment.
You may be thinking, I’m a lawyer, not a social worker. The truth is that this
kind of representation does not just entail grappling with legal issues. However,
no one expects you to be a social worker or a psychologist. There are many
multi-service domestic violence agencies throughout New York State that provide
shelter, counseling, and other services. They can assist you with information and
referrals to meet your client’s needs.
Obtaining the History of Domestic Violence
and Gathering Evidence
Almost all cases require a detailed history of the domestic violence. You
need to know (1) when each incident occurred; (2) in an order of protection
case, whether the occurrences together or separately constitute family offenses;
(3) what kinds of injuries she sustained; (4) what her feelings and reactions
were; and (5) what kind of corroborating evidence exists (hospital records,

20 Dorchen A. Leidholdt
eye-witness accounts, police reports, etc.). Taking her through the elements of
the power and control wheel can be an effective way to elicit the full range of
the abuse she has received.
As mentioned above, be alert to the fact that you may have key evidence in
your office that will not be around for your next interview: bruises, red marks,
scratches, and torn or bloodied clothing. Preserve that evidence by taking
photographs or asking your client to allow you to keep her bloodied, ripped
shirt. Ask her if he damaged her property. If so, she should document it either
by saving the property or photographing it. Such evidence will probably enable
you to meet your burden of proof at trial. It may also give you the edge to obtain
an extremely favorable settlement.
If she has the original receipts for property he damaged, she should send
them to you. They can be introduced into evidence in the dispositional phase of
her family offense case when she is pursuing restitution.
Ask her about witnesses to the abuse. Even if the beatings happened in
private, there may be neighbors who heard her screams or friends who observed
her injuries afterward. She may have made “excited utterances” to friends or
coworkers. Get the names, addresses, and phone numbers of these individuals,
and contact them as soon as possible before their memories fade.
Were the children present? What did they see or hear? How did they react?
What changes in their behavior did you observe? The impact of the domestic
violence on your client’s children will be relevant in almost every kind of
representation — from family offense and custody to matrimonial and immigration.
(You can interview the children if a law guardian has not yet been appointed,
but if you do so proceed with caution.) Find out what steps your client took to
protect the children from the abuse, including by ending the relationship. It may
be important to establish that your client knew the domestic violence was
harmful to the children and tried to prevent them from being exposed to it.
Contested custody cases require that you know everything about your
client’s relationship with the children: her history of care-taking; the children’s
social, psychological, and intellectual development; the children’s relationship
with the batterer; the children’s relationship with extended family members;
even your client’s and her abuser’s life histories. Gathering this extensive
information may require several interviews.
An interview for an uncontested divorce will be much more focused and
less time-consuming. After you learn the history of domestic violence within the

Interviewing Battered Women 21
last five years to establish the ground of cruelty, you will need very straightforward
financial and biographical information.
Evaluate how your client will sound and appear to the judge, law guardian,
and any forensic evaluators, and what kind of witness she will make at trial. How
does she tell her story? Is it consistent and believable or is her account vague,
confused, and contradictory? Is she easily rattled? Is her affect appropriate or is
she blank and numb? Is she so emotional that she cannot stop crying? Does she
dress appropriately?
By considering these issues you are not standing in judgment of your client;
you are identifying the most effective strategy to help her get the legal remedies
she needs. If she would not make a good witness, it might be best to try to settle
the case. Or you might want to call an expert witness to explain her demeanor.
Or you might be able to work with her to help her learn to present herself in a way
that does justice to her case. One of my clients laughed nervously every time she
described the abuse she had suffered — behavior that led the law guardian and
judge to doubt her account. When I pointed it out to her, she was able to control
her nervous reaction and become an effective witness on the stand.
If court-appropriate clothing is a problem, consider referring her to a program
like New York City’s Dress for Success, which offers domestic violence victims
professional-looking clothing for appearances in court.
During the interview, take detailed and accurate notes. Explain to your client
that you are taking notes because what she is saying is very important and that
you do not want to forget the details.
Knowing the Worst
Tell your client that her abuser will probably try to make her look bad in
court. Explain that you need to know what he is likely to say about her in advance
of the court date so that you can quickly respond to his allegations. Ask her,
“What is the worst thing he is going to say about you?” If she responds, “That
I’m crazy or that I’m a drunk,” you will need to ask specific questions. Ask her
if she has had psychiatric hospitalizations or seen a therapist and, if so, when,
where, why, and for what period of time. Ask her if she has ever had a drug or
alcohol problem. If so, find out when, what was the substance, the extent of her
addiction, and whether she was in a program. Ask her if her children have ever
been removed or if there have been any child welfare investigations. Phrase the

22 Dorchen A. Leidholdt
questions in such a way that your client understands that you are not judging her
but are getting information necessary to help her.
Longstanding abuse, especially abuse that follows earlier abuse, often
causes psychological problems and trauma. Battered women may suffer from
depression, post-traumatic stress disorder (hyper-arousal, intrusive thoughts,
disassociation), and fears or paranoia. 9 It is not surprising, for example, that a
domestic violence victim might use alcohol and drugs to numb the pain and
ward off feelings of despair. Zealous representation means understanding the
worst, doing whatever is necessary to help her overcome the worst, and then,
if her problems surface in the proceeding, helping evaluators understand their
source, the steps she is taking to overcome them, and the strengths she displays
in spite of them.
Ask your client how she disciplines the children. Although the law prohibits
only excessive corporal punishment, any corporal punishment that comes to the
law guardian’s or court’s attention will reflect poorly on your client. Tell her that.
And, if she is disciplining the children inappropriately, refer her to a parenting
skills course.
Problems in the Interview
There are certain problems that you may encounter during your representation
of your client. Usually they surface during the first interview.
She Minimizes or Erases the Abuse
This is a very common problem in the representation of battered women
and far more likely to occur than exaggeration or fabrication. In part, this is a
function of denial, a common psychological reaction to abuse. If you realize that
she is minimizing, tell her that it is very common for victims of domestic
violence to understate the abuse, that it is a way of trying to survive something
very painful. Help her understand the severity of the violence she experienced
(e.g., “He forced you to have sex with him even though you said no and tried to
push him away? That is the crime of rape. It is a felony to force sex on anyone,
even if that person is married to you”).

Interviewing Battered Women 23
She Has Difficulty Remembering When the Incidents Occurred
This often is a function of repression, another common psychological
reaction to abuse. It also may be the result of the repetitive nature of the abuse
— it is hard to remember specifics of events that occur daily or weekly.
Ask your client to bring calendars, diaries, and any records she keeps that
will help her place events in time. Clients with children often can remember
when events took place by thinking about how old their children were when they
occurred. Help her hone in on the probable date by asking her what season the
incident occurred in, then help her place it on or around a holiday or birthday
during that season. Reassure her that it is very common not to remember the date
of events that occurred months or years ago.
She Goes off on Tangents
This may be the result of a thought disorder, a sign of a psychological
problem. Or it may occur because your client wants to avoid painful subjects.
It may also be the function of her lack of experience with interviews. If your
client does not respond to your questions, remind her to listen carefully and
confine her answers to what you have asked. If she continues to be unresponsive,
gently cut her off and repeat the question.
She Asserts Herself Inappropriately
Clients who have been controlled by someone for years are often struggling
with issues of assertiveness and control. Now that she is free of her abuser, she
may have vowed never to let anyone bully her again. She may attempt to take
charge of her situation, her legal case, and the courtroom. Clients struggling
with issues of self-assertion may ignore your advice to keep quiet in court, reject
your advice to comply with a court order, insist on strategies that are
counterproductive, and become aggressive and even hostile when you give them
bad news. Do not engage, and do not take such behavior personally.
Determine if there is an unmet need behind behavior that seems inappropriate.
I once assisted a domestic violence victim who, in the middle of her custody
case, wrote a letter to the judge stating that she wanted one of her daughters to
live with her husband. The letter seemed inexplicable, especially since her
husband had battered both her and this daughter’s older sister. During my meeting
with the client, I learned that she had a severely disabled young son and was
overwhelmed by the demands of caring for him. By assisting her with getting

24 Dorchen A. Leidholdt
the help she needed — in this case, a home attendant to help care for her son —
the client was better able to cope with her daughter’s demands.
Some Don’ts
Don’t ask victim-blaming questions that shift the responsibility. They often
start with “why:”
Why did you stay?
Why didn’t you just leave?
Why did he hit you?
Don’t dismiss her fears or concerns. Address them seriously.
Don’t let her go into any court-related situation (e.g., a meeting with a child
welfare caseworker or the law guardian’s social worker) without knowing what
to expect and what will be expected of her. Warn her about possible pitfalls,
such as openly expressing anger toward her abuser. Explain how important her
appearance and demeanor will be in court.
Don’t dismiss her thoughts and suggestions about strategy. Consider them
seriously. If you disagree, just explain that you have learned that does not work
and why.
Don’t ignore her phone calls or get irritated with her for calling you, even if
you think she is calling you too often. Understand that she is going through a
frightening process and needs reassurance. If you feel she is calling you
excessively, try making appointments to talk with her and setting time limits on
calls. Remember that emergencies often happen in domestic violence cases and
there may be urgent reasons for her call.
A Successful Attorney-Client Relationship
The best attorney-client relationships are built on trust and teamwork. When
this becomes the dynamic that informs your relationship with your client, there
are mutual benefits. Not only will your task be easier and more rewarding, but
your client’s encounter with the legal system will be a positive experience —
one that affirms her value and equips her with the tools she needs to build a safe
and independent life.

Notes
Interviewing Battered Women 25
1. The “battered woman syndrome” was first identified by Lenore E. Walker
in The Battered Woman (1979).
2. Id. at 65-70.
3. Evan Stark, Anne Flitcraft, et al., Wife Abuse in the Medical Setting: An
Introduction for Health Personnel, Domestic Violence Monograph Series,
No. 7 (Washington, D.C., Office of Domestic Violence, 1981); Julie
Blackman, Intimate Violence: A Study of Injustice (1989).
4. See Evan Stark and Anne Flitcraft, Women and Children at Risk — A
Feminist Perspective on Child Abuse, International Journal of Health
Services 10, No. 1 (1988); Linda McKibben et al., Victimization of Mothers
of Abused Children: A Controlled Study, Pediatrics 84, No. 3 (1989); Lee H.
Bowker, et al., On the Relationship Between Wife Beating and Child Abuse,
in Feminist Perspectives on Wife Abuse, ed. Kersti Yllo and Michele
Bograd (1988).
5. People v Liberta, 64 NY2d 152 (1984).
6. Susan Estrich, Real Rape, at 72-79 (1987).
7. See Ann Jones, Next Time, She’ll Be Dead: Battering and How to Stop It,
at 106-128 (1994).
8. Eschbach v Eschbach, 56 NY2d 167 (1982).
9. See Judith Lewis Herman, Trauma and Recovery (1992). Herman compares
the trauma of victims of domestic violence to that of combat veterans and
survivors of political torture.

As a lawyer you may find yourself helping a domestic violence victim with
public assistance when something she says makes you realize the depths
of the fears she harbors about the man who should be paying child support.
Or, interviewing a woman about her immigration case, you may become aware
that your client’s biggest challenge is not getting a green card but staying alive.
You may begin to wonder what is going to happen to her when she leaves your
office — and what more you can and should be doing for her.
You can’t guarantee your domestic violence client’s safety, but neither do
you need to stand by helplessly. You can provide information, give advice, and
direct your client to resources, all steps that may better the odds of your client
avoiding harm.
Assessing Danger
3
Thinking About Danger and Safety
by Jill Laurie Goodman
No matter what the overt legal issues for which your domestic violence client
consults you, safety is on the agenda. Lawyers should ask intelligent questions
and keep alert for signs of danger as they counsel victims, even though assessing
the degree of danger in the lives of women who are victims of domestic violence
is difficult and predicting violence with any degree of certainty is impossible.
As you talk with your client in the process of gathering information for her
case, look for signals that suggest danger. Some of these signals have been
identified in research on the risks of lethal attacks on domestic violence victims. 1
At the top of the list of factors researchers have found correlating with femicides
by abusive partners are guns and death threats: women threatened or assaulted
with guns are twenty times more likely to be murdered by their abuser, and

28 Jill Laurie Goodman
women whose abusers have threatened to kill them are fifteen times more
likely to meet their death at their abusers’ hands. 2 Other kinds of violence also
translate into greater risks of murder. Forced sex and abuse during pregnancy
both correlate with lethal attacks. 3 So do incidents of choking; 4 indeed, 25% of
women killed by their abusers are choked or strangled to death. 5 Frequent and
recent violence, even if not particularly severe, also correlates with greater
chances of murder. 6
As domestic violence victim advocates well know, violence often escalates
when a woman separates from her abuser. The violence is more frequent and more
dangerous. It also becomes more lethal. 7 Leaving or trying to leave is particularly
dangerous for women whose abusers are controlling or extremely jealous. 8
Besides the nature of the violence in the relationship, some demographic
and socioeconomic factors correlate to higher risks of murder. When abusers are
unemployed and when they live with a child who is not their biological child
but rather a stepchild, chances of femicide are heightened. 9 Habitual drug use
and drinking to excess correlate with increased risks. 10
All of these correlations are only red flags. Their absence is no assurance of
safety — one fifth of the abused women who are murdered by intimate partners
were never assaulted by their abuser before their deaths. 11 By the same token,
the presence of these factors does not predict with certainty death or further
serious physical injury at the hands of an abuser.
Another source of information — and maybe your best — is your client.
You can ask her if she feels she needs to find a new place to live or if she is
worried about telling her abuser she wants to leave. If she is no longer living
with him, you can ask her if she would feel better if he didn’t know how to find
her or if she needs to keep her address and social security number confidential.
You can ask her whether she would rather avoid seeing her abuser in a courtroom
or during dropping off and picking up children for visitation. And you can ask
her, straight out, if she feels safe.
Moving Towards Safety
Experts can help with safety planning. If you are new to representing
victims of domestic violence or not well-versed in techniques for counseling
abused women, you might want to refer your client to a domestic violence
agency or to someone with expertise in safety planning. Calling on experts,

Danger and Safety 29
however, is not always feasible. A situation may require immediate attention.
You may not have the time to wait for a consultation or your client may not
want or be able to talk to anyone else. As her lawyer, you may be her only
practical source of information.
The first step you can take — after asking her if she feels safe — is to say
that you are worried about her and that you think she may be in some danger.
You may be confirming something she fears or alerting her to something she
may not fully realize. She may deny the danger. In any case, the fact of
communicating your concerns may be helpful.
If she is living with her abuser, you can help her analyze the dangers of
staying and the dangers of leaving. 12 She may have thought through the pros
and cons fairly thoroughly, and undoubtedly she knows a great deal about
staying safe, but you can make suggestions she might not have considered.
You can ask if she has thought about what to do if an argument erupts, and you
can suggest she avoid the kitchen, the bathroom and other places where potential
weapons like knives are readily at hand or where escape would be difficult.
As long as she remains under the same roof as her abuser, she probably should
formulate plans for an emergency escape. You might suggest that she find a
safe place outside of her home for money, extra keys, a spare credit card and
documents, such as birth certificates or immigration papers. If possible, she
should identify a friend or a relative who has a home where she can take refuge.
You can help her acquaint herself with domestic violence hotlines and local
agencies. You should also discuss with her the pros and cons of calling the
police. If she thinks making the call herself will enrage her abuser and put her in
more danger, she may be able to ask a friend, neighbor or relative to call for her.
If your client is thinking about leaving, she should plan carefully, since
separating from an abuser increases the risk of violence. You can talk through
the steps she might make to ease the transition. Opening a bank account, getting
a credit card, keeping lists of important phone numbers, making copies of
documents such as birth certificates, medical records, immigration papers;
talking to friends and family about helping out with a place to stay or money;
and moving a few essentials, such as clothes for herself and her children, into
a temporary home are all the kinds of things she should consider. How to keep
her plans secret might be another topic to discuss. Carefully planning the actual
departure is always important; leaving when her abuser is not around may save
her from a difficult or violent confrontation.
After your client has left her abuser, she has another set of safety concerns.
Getting an order of protection may — or may not — be helpful, and you might

30 Jill Laurie Goodman
talk to her about the possibility of going to Family Court. You might suggest
that she look over her house or apartment to see how safe she would be if her
abuser tried to break in. She should consider buying better locks or stronger
windows and doors. Making herself difficult to find by getting a new job, a new
place to live, or a new social security number, if feasible, may be a good course
of action. An unlisted telephone number, caller ID, or a post office box may be
helpful. If she is being stalked, you might suggest that she alter her appearance
— color her hair or wear a different coat — and change her daily routes to work
or to school. If her abuser knows where she works, she might talk to her
employer about a different job assignment, away from the telephones or the
public or at a different worksite, and she may be able to enlist workplace
security personnel in her safety planning.
Children can both help and complicate safety planning. Sometimes a
client’s children can be taught to make collect calls to friends or relatives, to
dial 911, or to go to a neighbor’s for help. Code words can be arranged to signal
danger and the need to act. But children should be warned not to try to intervene
in an argument because they can get hurt. Also, an abuser may try to use children
as a means of gaining access to your client. Visitation transitions can be violent,
so you might encourage your client to think about arranging pick up and drop
off at a police station or a public place. Teachers and other adults in your
clients’ children’s life should be told about any order of protection and warned
against letting anyone besides designated caregivers pick up the children.
Just as your client is a critical source of information on danger, so too is she
an indispensable source of information on safety. She knows her own life, and,
equally importantly, she knows her abuser — she is probably an expert on his
habits and his ways of thinking. The New York State Office for the Prevention of
Domestic Violence has a good safety checklist (reproduced on the next page) for
victims to fill out themselves that you might suggest to your client, 13 but you also
should encourage her to think creatively and independently about her own safety
because ultimately the decisions about how to protect herself are in her hands.

Appendix
Safety Planning Checklist
Danger and Safety 31
Reprinted from Domestic Violence: Finding Safety and Support, with thanks for
permission from the New York State Office for the Prevention of Domestic
Violence.

32 Jill Laurie Goodman
Safety Planning Checklist continued

Safety Planning Checklist continued
Danger and Safety 33

34 Jill Laurie Goodman
Safety Planning Checklist continued

Notes
Danger and Safety 35
1. Jacquelyn C. Campbell et al., Assessing Risk Factors for Intimate Partner
Homicide, 250 National Institute of Justice Journal 14 (Nov. 2003)
[Campbell, Assessing Risk Factors]; Jacquelyn C. Campbell et al., Risk
Factors for Femicide in Abusive Relationships: Results from a Multisite
Case Control Study, 93 American Journal of Public Health 1089 (July 2003)
[Campbell, Risk Factors for Femicide]; Neil Websdale, Reviewing Domestic
Violence Deaths, 250 National Institute of Justice Journal 27 (Nov. 2003).
2. Campbell, Assessing Risk Factors, supra n 1, at 16.
3. Campbell, Risk Factors for Femicide, supra n 1; Campbell, Assessing Risk
Factors, supra n 1, at 16.
4. Id.
5. Carolyn Rebecca Block, How Can Practitioners Help an Abused Women
Lower Her Risk of Death? 250 National Institute of Justice Journal 3, 6
(Nov. 2003) [Block, How Can Practitioners Help an Abused Women Lower
Her Risk of Death?].
6. Id. at 5.
7. Id. at 6.
8. Block, How Can Practitioners Help an Abused Women Lower Her Risk of
Death?, supra n 5, at 5; Campbell, Assessing Risk Factors, supra n 1, at 16;
Campbell, Risk Factors for Femicide, supra n 1, at 1090-1092.
9. Campbell, Risk Factors for Femicide, supra n 1, at 1090-1092.
10. Id.
11. Block, How Can Practitioners Help an Abused Women Lower Her Risk of
Death?, supra n 5, at 5.
12. The New York State Office for the Prevention of Domestic Violence’s
(OPDV) pamphlet Domestic Violence: Finding Safety and Support has an
excellent section on safety planning, which is a principal source of this
chapter’s advice. Finding Safety and Support is available through the
OPDV’s website, http://www.opdv.state.ny.us. The National Center for
Victims of Crime also has a website with its own Safety Plan Guidelines.
Its website is http://www.ncvc.org.
13. The New York State Office for the Prevention of Domestic Violence
pamphlet Domestic Violence: Finding Safety and Support, Id.

Part II
Family Offense Cases

Victim Who Needs Child Support 39
4
The Practitioner’s Guide to Litigating
Family Offense Proceedings
by Elizabeth Murno
Civil protection orders are one of the most commonly sought legal remedies
available to protect domestic violence victims. In fact, obtaining a final order
of protection has been associated with a significant decrease in future violence. 1
Still, many domestic violence victims do not pursue legal relief. One reason may
be the lack of available civil legal assistance. A recent study underscores the
importance of access to civil legal assistance and found that it is more effective
in protecting victims than hotlines, shelters and counseling programs. 2 Still some
practitioners may be unnecessarily hesitant to represent domestic violence victims
because of their limited trial experience or knowledge of the substantive law.
While mastering the substantive law governing family offense proceedings,
the proceeding in New York State by which certain family or household members
can obtain civil protection orders, can seem challenging to the new practitioner,
it need not be. A good starting point is a thorough review of Article 8 of the
Family Court Act, the primary statutory authority governing these proceedings.
The statute, which is relatively straightforward and concise, comprehensively
addresses many of the legal issues raised in this practice area. After mastering
the statute, the more daunting challenge confronting the first time practitioner is
the actual practice of litigating a family offense proceeding. What happens on
the first court date, when will a case proceed to trial, what if the opposing party
is not served or does not appear are all common questions. Unfortunately, the
answers to these questions cannot be gleaned from studying the Family Court
Act. Rather, only with frequent practice and first-hand experience is a practitioner
able to definitively answer these questions and confidently provide effective
legal representation.
To assist with this learning curve, this guide provides a basic introduction
to the practice of representing domestic violence victims in family offense
proceedings. This guide, together with a comprehensive understanding of the

40 Elizabeth Murno
Family Court Act and the needs and concerns of domestic violence victims,
should prepare the new practitioner to provide critically needed legal
representation, while at the same time gaining practical courtroom experience
and trial skills.
Preliminary Considerations
Deciding Whether to Seek a Family Court Protection Order
A preliminary consideration when counseling a domestic violence victim
is whether she should pursue a family offense case. Too often, victims are
encouraged to seek family court relief without an individualized assessment of
their safety needs or a comprehensive exploration of the potential risks and
benefits of initiating a proceeding. In some instances, pursuing a family offense
case provides essential protection, while in others it significantly jeopardizes
victim safety. Because victim safety is the foremost consideration, a careful
assessment of the safety risks and repercussions is crucial before pursuing any
relief in family court.
Disclosure of Confidential Location
Initiating a family offense case may jeopardize the confidentiality of a
client’s residence. For a victim who has fled an abusive relationship and
relocated to a confidential location, maintaining that confidentiality is often a
pressing concern from a safety and psychological standpoint. To alleviate this
concern, the Family Court Act specifically authorizes a victim to maintain a
confidential address in court papers if disclosing it compromises her safety. 3 For
victims residing in domestic violence shelters this protection is mandatory. 4
However, while the statute prohibits disclosure to the adverse party, the victim’s
confidential address is maintained in the court database for service of process
and is sometimes inadvertently revealed.
Even when a victim’s exact address is not disclosed, her general whereabouts
may be. For example, victims residing in emergency domestic violence shelters
are routinely instructed to seek family court protection orders, which often
results in disclosing the county where the shelter is located and, hence, where
the victim is residing.
To prevent disclosure, several steps can be taken that may provide limited
protection. For example, a victim who has relocated to another county may elect
to file a petition in the county where she initially resided, provided the abuse

Litigating Family Offense Proceedings 41
occurred there, or where the abuser resides. 5 This strategy ensures that a
domestic violence victim does not inadvertently reveal the county where she
resides by the mere act of filing for relief there. Similarly, a victim may
designate another party for service of process to avoid disclosing her address to
the court. 6 If she has legal representation, the attorney may be authorized as the
agent for service. Alternatively, she may seek to designate a responsible relative
or friend for this purpose.
Ongoing Contact with the Batterer
Family court proceedings also provide a batterer with ample opportunities
for ongoing contact with his victim. To obtain a final protection order, a victim
must appear in court with the batterer, oftentimes on multiple occasions. Repeat
court appearances afford a batterer significant contact with his victim both inside
the court in the waiting area, in the conference room and in the courtroom as
well as outside the court before and after the case is heard and during lunch
breaks. Because the initial court appearance is on an ex parte basis without the
batterer present, a victim may not realize this.
To reduce the extent of contact, some counties have court-based victim service
programs that offer separate victim waiting areas and transportation services.
Alternatively, a victim may choose to forgo a family court case entirely and pursue
a protection order in criminal court since New York law provides for concurrent
jurisdiction. 7 Proceeding in criminal court is often preferable to family court, in
part, because it entails considerably less interaction. In a criminal proceeding,
the victim serves as the state’s witness and is generally only required to appear
on trial dates. Also, because the victim does not regularly appear, it is clear that
the state, not the victim, is pursuing the case against the batterer. However, a
criminal court action generally requires an arrest to commence and since not all
family offenses require an arrest, 8 this option may not be readily available.
Potential for Retaliatory and Unwanted Litigation
Another consequence of bringing a family offense case is the risk of
retaliatory or unwanted litigation. Oftentimes the mere filing of a family offense
petition incites batterers and encourages them to initiate cases or claims they may
not have otherwise pursued. For example, a batterer served with a temporary
protection order may retaliate by filing a cross-petition in which he alleges he is
the victim and seeks a protection order. While family court policy discourages
the issuance of mutual, ex parte protection orders, courts occasionally issue
them. In these instances, a victim becomes subject to New York’s mandatory
arrest law requiring the arrest of a suspect alleged to have violated a protection
order. 9 In fact, some batterers intentionally use this statute to have victims

42 Elizabeth Murno
arrested on false charges to intimidate them, control them and discourage them
from pursuing family court relief.
A batterer may also respond by filing a visitation, custody or paternity petition.
Occasionally, as in cases when the batterer has had limited involvement with the
children, the primary motivation for filing a visitation or custody petition may
be to ensure ongoing contact with the victim. Because visitation is routinely
ordered, a victim may wish to avoid such proceedings. A victim may also want
to avoid a paternity proceeding that can result in a batterer obtaining legal rights
that did not previously exist. Such is the case of a non-marital father who must
establish paternity to have standing in a custody or visitation case. 10 While a
batterer may initiate any of these proceedings on his own, a pending family
court action may increase the likelihood.
Defining Goals and Realistic Outcomes
Before initiating a family offense case, attorneys should have candid
discussions about the available legal remedies and the likelihood of obtaining them.
Domestic violence victims have a multitude of pressing needs, the vast majority
of which cannot be resolved with litigation. Too often, victims overestimate the
family court’s remedial power and seek relief in the form of counseling, anger
management or batterers’ education programs to “cure” the batterer. Clients
need to be advised that the likelihood of obtaining court relief that “treats” or
“cures” a batterer is extremely remote and that the main goal is to ensure their
safety and obtain a final protection order.
Clients should also be advised that, while the statute authorizes a broad
range of remedies including probation, 11 restitution, 12 and in cases of violations,
incarceration, 13 these remedies are generally imposed only after a trial and even
then they are not guaranteed. Congested court calendars can delay trials for
months and in some cases up to a year. Even after a trial is complete and a final
order entered, the court has limited resources to monitor and ensure compliance
with its terms and conditions. As a result, the burden of monitoring compliance
with orders is disproportionately borne by the victim, which may raise significant
safety concerns.
Substantive Law
Article 8 of the Family Court Act is the primary statutory authority governing
family offense proceedings. Practitioners should also familiarize themselves
with Family Court Act Articles 1, 2 and 11, outlining the structure and authority

Litigating Family Offense Proceedings 43
of the family court, procedural issues involving protection orders and rules
governing appeals, as well as the Penal Law defining the family offense crimes.
Additionally, there is a substantial body of family and criminal case law
governing family offense proceedings, a significant portion of which is reported
solely in The New York Law Journal. Attorneys researching case law on specific
issues are well advised to routinely consult The New York Law Journal in
addition to officially reported decisions.
Who May Seek Relief in a Family Offense Proceeding?
To determine whether a client is eligible to seek relief in family court, an
inquiry must be made into the nature of her relationship with the abuser. Under
the current statutory scheme, individuals eligible for relief are specifically
limited to “family and household members,” defined as persons who (1) are
related by blood, (2) are legally married to one another, (3) were married to one
another or (4) have a child in common regardless of whether the parties have
been married or lived together. 14 Victims who do not meet this definition may
attempt to pursue relief in criminal court.
What is a Family Offense Proceeding?
A specific list of enumerated crimes constitute family offenses; they are:
1. disorderly conduct; 15
2. harassment in the first16 and second degree; 17
3. aggravated harassment in the second degree; 18
4. stalking in the first, 19 second, 20 third, 21 and fourth degree; 22
5. menacing in the second23 and third degree; 24
6. reckless endangerment in the first25 and second degree; 26
7. assault in the second27 and third degree; 28 and
8. attempted assault. 29
Practitioners should exercise caution when trying to establish any of the
designated family offenses, such as third degree assault, that require proof of
physical injury. Physical injury as defined in the Penal Law requires either an
impairment of physical condition or substantial pain. 30 While the case law
interpreting physical injury clearly states that a victim’s incapacitation is not
required, 31 criminal courts have required proof of scarring, 32 substantial injuries 33
or some limitation of a victim’s capacity 34 to satisfy the threshold definition.
In contrast, family courts may impose a lower threshold and sustain a finding

44 Elizabeth Murno
of physical injury when the victim suffers bruises, swelling or red marks.
Nevertheless, attorneys should be prepared to argue that the injuries sustained
satisfy the threshold applied in criminal court.
How is a Family Offense Proceeding Commenced in Family Court?
A family offense case is initiated by the filing of a petition. Victims can and
usually do initiate family offense cases on their own. A victim planning on filing
a petition should arrive at the courthouse no later than 9:00 a.m. By arriving
early, a victim may avoid the inconvenience of having to appear on repeat court
dates to obtain a temporary protection order and increase the likelihood that her
wait to have the case heard will be shorter.
Where Can a Family Offense Proceeding Be Commenced?
A family offense case can be initiated in the county in which (1) the act or
acts referred to in the petition occurred, (2) the family or household resides or
(3) any party resides. 35 Victims who have fled abuse and relocated to a new
county are permitted to seek relief in the county in which the abuse occurred or
their batterer resides.
What Relief is Available in a Family Offense Proceeding?
The principal form of relief in a family offense case is a protection order
and the family court has broad authority to fashion orders, both temporary and
final, that best serve the purpose of protecting the victim. Among other terms,
the family court can enter an order that directs a respondent to (1) be excluded
from the home, 36 (2) stay away from a party, her school and her job, 37
(3) refrain from committing a family offense or any criminal offense, 38
(4) participate in a batterer’s education program, 39 (5) surrender firearms and
have a firearms license suspended, 40 and (6) pay temporary child support. 41 The
court may also award custody of a child to a parent during the term of a
protection order. 42
Orders can last from a couple days, when a temporary exclusionary order is
entered, to five years in duration. Generally, a temporary order entered on the
initial court date extends until the return date, sometimes several months away
depending upon the relief granted and the county in which the order is issued.
Temporary orders are routinely continued at subsequent court dates until a final
disposition is reached. At disposition, family courts have the authority to enter
final protection orders for up to two years in routine cases and up to five years
when aggravating circumstances are found43 or an order of protection is violated. 44

Litigating Family Offense Proceedings 45
Frequently protection orders will be referred to as full or limited. A full
protection order is one in which a batterer is excluded from the home or directed
to stay away while a limited order is one in which the abuser is prohibited from
committing any crimes against his victim.
Practice Tips and Suggestions
Deciding Whether to Amend a Family Offense Petition
In many instances, domestic violence victims do not have access to advocates
or attorneys on the initial court appearance and, as a result, their petitions may
be inartfully drafted. Either because victims may not realize the significance of
specific incidents of violence or only later recall them, critical information may
be missing from the petition. An attorney retained after the initial court date
must then decide whether to draft and file an amended petition. In making this
decision, a practitioner should consider whether aggravating circumstances have
been pleaded, whether the client is seeking an exclusionary order, whether
incidents for which there is corroborating evidence are included and whether a
custody or visitation petition has been or might be filed.
This assessment should be made promptly and, ideally, before the time to
amend as of right expires. Amendments as of right must be made within twenty
days after service of the initial petition, at any time before the period to respond
to it expires, or within twenty days after service of a responsive pleading. 45 After
this period, permission from the court or stipulation of the parties is required to
amend a petition. 46
What to Plead in a Family Offense Petition
When drafting or amending petitions, a good strategy is to describe the
incidents of violence in reverse chronological order, beginning with the most
recent allegation. The petition should include the most recent incident, the most
severe incident and any incidents in which there has been physical violence or
injury or the use of a weapon or dangerous instrument. Practitioners should also
include incidents for which there exists physical or documentary evidence such
as medical records, photographs, or torn or bloodied clothing that can be used to
encourage a favorable settlement or introduced at trial. Incidents involving
aggravating circumstances should also be included because they may entitle the
victim to a five-year protection order. 47

46 Elizabeth Murno
Attorneys should also consider making creative arguments to enhance the
court’s understanding of domestic violence. For example, classic power and
control dynamics, including efforts to isolate a victim from family and friends or
monitor and control her whereabouts, are behaviors that may not appear to fit
squarely into any of the designated family offenses. Nevertheless, because such
behaviors are the hallmark of domestic violence, it can be valuable to include
them in the petition. One way to accomplish this is to argue that they constitute
the crime of harassment in the second degree, which involves a course of
conduct or repeated acts that alarm or seriously annoy and serve no legitimate
purpose. Clients will then need to be thoroughly prepared to provide testimonial
evidence that counters attempts to show that the acts served a legitimate purpose.
Another tactical decision must be made about older incidents. Often, a
victim will have endured a lengthy history of violence while the incident for
which she seeks a protection order may be considerably less serious. It is often
critical to include these earlier incidents because they may constitute aggravating
circumstances, offer insight into the pattern of abuse throughout the relationship
or influence custody or visitation decisions. While some courts may be reluctant
to consider older incidents, the Family Court Act does not specify any statute of
limitation for family offenses. Even applying the Civil Procedure Law and
Rules, 48 which provides for a six-year statute of limitation, 49 would warrant
permitting testimony about incidents that occurred as long as six years ago.
Finally, petitions should be carefully drafted to ensure that every element of
a family offense has been pleaded, and pleaded in non-conclusory language. For
example, an assault allegation might state that the respondent, with the intent to
cause physical injury, repeatedly punched petitioner in her face and caused her
to sustain physical injury including lacerations to her face, a bloody nose and
ruptured blood vessels. Such specificity will not only ensure that every
allegation is fully described but also that the petition is facially sufficient to
withstand a motion to dismiss.
What Happens on the Initial Application Date?
On the initial court date, the vast majority of domestic violence victims
seeking protection orders are unrepresented. After drafting their petitions with the
assistance of a court clerk or victim advocate, litigants are directed to the intake
part where new cases are heard. The intake judge may ask questions and, if good
cause is shown, 50 enter a temporary order. While a well-drafted petition should
include the specific relief sought, it is a good idea to ask on the record as well.

Litigating Family Offense Proceedings 47
The relatively low threshold for issuing temporary protection orders may
mistakenly lead advocates to assume that courts will automatically issue them.
However, some courts are reluctant to issue orders, especially on an ex parte
basis or when an exclusionary order is sought, so caution should be taken when
advising clients to avoid creating false expectations. Victims seeking exclusionary
orders should be prepared to demonstrate that they have suffered physical harm,
by displaying injuries or producing medical records, or that they are in imminent
danger. If possible, it is advisable to have an attorney or advocate represent a
victim seeking an exclusionary order.
When the family court is closed, the statute grants emergency jurisdiction to
the criminal court to hear initial applications and issue temporary orders. 51
While in theory this provision provides relief to domestic violence victims, it is
rarely used since no formal mechanism exists to navigate the criminal court
system. Rather, clients are frequently advised to return to family court the next
day it is in session.
How is Service Made?
At the conclusion of the initial hearing, a client will be issued a summons,
petition and protection order, if one has been issued, that must be served on the
respondent. Because the protection order is enforceable only after it has been
served, it is important to complete service as soon as possible. Service must be
made personally (hand delivered to the respondent) and can be made on any day
of the week including Sundays and at any hour of the day. 52 To be valid, service
must be made at least 24 hours before the return court date. 53
In no instance should a victim attempt to personally serve a batterer. Not
only is this method of service improper, it exposes the victim to potential harm.
Instead, the statute specifically directs the police to effectuate service. 54 This is
accomplished by delivering copies of the papers to the precinct where the
opposing party can be located. The client can either accompany the police to
serve the respondent or provide them with a photograph to identify him. In
either circumstance, the client must obtain a signed statement of personal
service from the police to verify that service was completed.
If, after reasonable efforts, the papers cannot be served, an application for
substituted service can be made. 55 The request should document all the attempts
that were made to obtain service. Alternatively, an attorney can request a warrant.
Warrants directing a respondent to be brought before the court are authorized in
certain limited circumstances when, for example, aggravating circumstances are
present or the summons cannot be served or is deemed to be ineffective. 56

48 Elizabeth Murno
Litigants unfamiliar with the court process can sometimes be confused by
the rules governing service. They may not understand that they cannot serve the
batterer themselves or that they must return a signed and, in some cases,
notarized affidavit of service to the court. Because defects in service can result
in unnecessary delays and repeat court appearances, it is worthwhile to explain
service fully.
What Happens at an Inquest?
If, after service of the papers, the respondent fails to appear, the court
may issue a default judgment or proceed to an inquest, an uncontested factfinding
hearing. It is preferable to request an inquest because the client will
not be subject to cross-examination and the court will make a finding about
whether a family offense was committed. On occasion, a court may not
immediately proceed to inquest but adjourn the case to allow the respondent
another opportunity to appear. Because of its advantages, it is important to be
proactive and request an inquest in the respondent’s absence. Before making
the application, it is important to ensure that service has been proper and that
the affidavit of service verifying it is completely and accurately filled out
since the court cannot proceed if it is defective.
Because it is impossible to predict whether a respondent will appear, attorneys
should routinely prepare clients to testify at an inquest. At an inquest, a client will
be required to offer direct testimony in support of her case and occasionally
answer questions from the court. Attorneys should also exercise discretion and
appropriately limit the extent of their client’s testimony, possibly reducing the
number of incidents testified to, if the case has been conclusively established
and additional testimony would only serve to further traumatize the client.
Court Conferencing, Negotiation and Settlement
When an opposing party appears on the return court date, the case will often
be conferenced. This entails the judge or the judge’s court attorney meeting with
the parties to ascertain their positions and assess the likelihood of a settlement.
In a typical settlement a respondent consents to a protection order being issued
against him without any admission or finding of wrongdoing. Alternatively, a
respondent can make an admission of wrongdoing and consent to the entry of an
order, a preferable but relatively uncommon settlement. Still another possible
resolution may be that the petitioner withdraws her case because she obtained a
criminal court order providing similar relief or she wishes to reconcile with the
batterer. Rather than agree to an outright withdrawal, it is advisable to counsel a

Litigating Family Offense Proceedings 49
client to pursue a limited protection order. Limited protection orders allow
parties to live together but trigger New York’s mandatory arrest law if violated.
In cases involving cross-petitions, mutual protection orders or mutual
withdrawals are often proposed. Because victims often wish to avoid contact
with their batterers, they may readily agree to mutual protection orders. However,
clients should be strongly cautioned against this option as it exposes them to
severe penalties including arrest and jail for any alleged violation. In most cases,
it is preferable to proceed to trial or withdraw a petition rather than consent to
an order being issued against a victim.
An advantage to settling is that it often results in a speedier disposition of
the case. Congested court calendars severely limit available trial time. Cases that
do proceed to trial often require numerous adjourn dates over a period of months
and sometimes up to a year. On each court date, the petitioner may have to take
time off from work, possibly jeopardizing her employment. Repeated court
dates also present ample opportunities for a batterer to have continued contact
with a victim.
A settlement also relieves a victim of having to testify. Often, victims are
extremely reluctant to testify. They are fearful of publicly confronting their
battterers and ashamed of the abuse they have endured. These fears are
exacerbated in cases in which a batterer is representing himself and entitled to
cross-examine the victim.
On the other hand, a settlement rarely results in a finding of wrongdoing,
which may be important in a custody or visitation proceeding. A 1996 amendment
to the Domestic Relations Law requires courts to consider the effect of domestic
violence on a child in a custody or visitation case, provided the violence is in a
sworn pleading and proven by a preponderance of the evidence. 58 While domestic
violence allegations can be separately litigated in a custody or visitation case, a
better strategy is to establish the violence at the earliest point in the proceeding.
In fact, establishing violence earlier may avoid unfavorable visitation decisions
or forestall a custody battle.
Settling may also preclude a victim from obtaining a protection order in
excess of two years. The Family Court Act clearly authorizes protection orders
for up to five years if there is a finding of aggravating circumstances or that a
protection order has been violated. The statute also permits a batterer to consent
to a protection order provided the consent is knowingly, intelligently and voluntarily
given. 59 Thus, a batterer should clearly be able to consent to protection orders in
excess of two years; however, some courts may not permit it.

50 Elizabeth Murno
Finally, settling may preclude a victim from obtaining certain forms of relief
such as probation, restitution or a batterer’s education program. Because a family
offense petition is civil in nature and not punishable by jail time, batterers are
less inclined to consent to these terms and would rather risk proceeding to trial.
When Will a Case Proceed to Trial?
Courts routinely encourage settlements and it is often only after repeated
attempts fail that a case will be scheduled for trial. On the first return date,
commonly called the return of process date, a court will generally address
preliminary matters such as ensuring that service was made, scheduling
adjournments to obtain counsel or assigning court-appointed counsel if eligible.
That being said, practice varies widely by county and even within a county, so
attorneys should be prepared for trial on the first return date, although in most
instances at least one adjournment will be permitted.
What Happens at a Trial?
The Family Court Act provides that family offense petitions be heard in two
phases, a fact-finding60 and a dispositional phase, 61 although it is not uncommon
for courts to combine them. During the fact-finding stage, the court hears
evidence to determine whether a family offense has been committed. To sustain
a finding of wrongdoing, the allegations must be proven by a fair preponderance
of the evidence. 62
Evidence commonly introduced at the fact-finding stage includes hospital
records and photographs. Photographs are fairly easily admitted through a witness
who can testify to what is depicted in the photographs, to the approximate date
the photographs were taken and that what is depicted in the photographs is a fair
and accurate representation of the subject at the time it was taken.
Hospital records can be admitted provided they are properly certified or
authenticated. 63 Practitioners should note that, while hospital records are
admissible, only statements that are relevant to the diagnosis, prognosis or
treatment of the patient fall within the business records exception to the general
rule prohibiting hearsay. 64 Thus, statements contained in hospital records that
identify the abuser as the perpetrator have been deemed admissible within the
business record exception. 65
A practitioner may also seek to introduce physical evidence such as torn
or bloodied clothing, weapons, broken or destroyed household or personal
items or photographs depicting them. For example, if the batterer damaged or

Litigating Family Offense Proceedings 51
destroyed property in the house, photographs of the damaged items may be
admissible into evidence.
Attorneys should not be discouraged if no physical or documentary evidence
exists. In most domestic violence cases, the only available evidence is the victim’s
testimony. As such, clients must be thoroughly prepared to testify. This often
requires several meetings with a client because the history may be lengthy and
recounting the abuse painful.
To prepare for trial, attorneys should develop a trial brief that sets forth the
theory of the case; the family offenses to be established and the elements of
each; the direct testimony; and any anticipated cross-examination or objections.
It is also a good practice to prepare a straightforward and succinct opening
statement. While opening statements are infrequently used in family offense
cases, there is a tremendous advantage to delivering a brief statement on the
theory of the case and the offenses to be established. Because trials often occur
over a series of court dates with lengthy adjournments in between, delivering an
opening statement provides a unique opportunity to present the entire history of
abuse to the court in narrative form. Since some courts do not require an
opening statement, an attorney may request to make one.
Similarly, attorneys should prepare a closing statement that concisely and
comprehensively summarizes the case. The closing statement should list the
family offenses committed and highlight the testimony and evidence offered in
support. Often, a court will hear the closing statement only after the dispositional
hearing. On rare occasions, a court may request a written summation, in which
case it is necessary to obtain the court transcripts to adequately prepare.
At the conclusion of a fact-finding hearing, the court should proceed to a
dispositional hearing, the purpose of which is to fashion an appropriate remedy.
Because evidence admissible at disposition need only be material and relevant, 66
hearsay is admissible. Commonly introduced evidence can include statements to
friends or witnesses or uncertified medical and police records.
Attorneys should prepare a client to testify explicitly about the terms she is
seeking and why they are necessary for her safety. Frequently victims want
children included on final protection orders. While the practice varies, some
courts are reluctant to enter a final order prohibiting contact between a batterer
and his children. Rather, courts are more receptive to a provision that prohibits
the batterer from committing any crimes against the children. When a court
agrees to order the batterer to stay away from the children, there is often an
exception providing for any court-ordered visitation.

52 Elizabeth Murno
What Happens After a Protection Order Has Expired?
As the expiration date of a final protection order approaches, a victim may
seek to have it extended. A relatively unknown and infrequently used provision
of the Family Court Act states that a protection order may be extended for a
reasonable time if special circumstances exist. 67 The limited case law
interpreting this provision deals exclusively with the issue of whether a hearing
is necessary and fails to expound on the definition of special circumstances, 68 so
practitioners are free to make creative and persuasive arguments to warrant
extending an order.

Notes
Litigating Family Offense Proceedings 53
1. Victoria L. Holdt et al., Civil Protection Orders and Risk of Subsequent
Police-Reported Violence, 288 JAMA 588-594 (2002).
2. Amy Farmer and Jill Tiefenthaler, Explaining the Decline in Domestic
Violence, 21 Contemp. Econ. Policy 158-172 (2003).
3. Family Court Act § 154-b(2)(a).
4. Family Court Act § 154-b(2)(b).
5. Family Court Act § 818 provides that a family offense proceeding may be
commenced in the county in which the act or acts occurred, the family or
household member resides or any party resides.
6. Family Court Act § 154-b(2)(c).
7. Family Court Act § 12(1), Criminal Procedure Law § 530.11(1).
8. Criminal Procedure Law § 140.10(4).
9. Criminal Procedure Law § 140.10(4)(b).
10. Domestic Relations Law § 70.
11. Family Court Act § 841(c).
12. Family Court Act § 841(e).
13. Family Court Act § 846-a.
14. Family Court Act § 812(1).
15. Penal Law § 240.20.
16. Penal Law § 240.25.
17. Penal Law § 240.26.
18. Penal Law § 240.30.
19. Penal Law § 120.60.
20. Penal Law § 120.55.
21. Penal Law § 120.50.
22. Penal Law § 120.45.
23. Penal Law § 120.14.
24. Penal Law § 120.15.

54 Elizabeth Murno
25. Penal Law § 120.25.
26. Penal Law § 120.20.
27. Penal Law § 120.05.
28. Penal Law § 120.00.
29. Penal Law § 110.00/120.00 or 120.05.
30. Penal Law § 10.00(9).
31. People v Tejeda, 78 NY2d 936 (1991).
32. People v Fallen, 194 AD2d 928 (3d Dept 1993) (victim who was struck
with candlestick suffered laceration to finger that bled profusely, required
stitches and resulted in scarring that was visible at the trial).
33. People v Brodus, 307 AD2d 643 (3d Det. 2003) (after being repeatedly
punched in the face, victim suffered swollen eye, ruptured eye vessel,
scrapes, welts and bruising that lasted three weeks); People vs. Azadian,
195 AD2d 565 (2d Dept 1993) (victim was punched in the face, stomach
and head, was bitten on the face, and suffered a bruised throat, abrasions to
the nose and tenderness in the jaw and neck).
34. People v Moise, 199 AD2d 423 (2d Dept 1993) (victim’s thumb was
in a splint and victim could not return to work for four days on treating
doctor’s advice).
35. Family Court Act § 818.
36. Family Court Act § 842(a).
37. Id.
38. Family Court Act § 842(c).
39. Family Court Act § 842(g).
40. Family Court Act § 842(a)
41. Family Court Act § 842(i).
42. Id.
43. Family Court Act § 842.
44. Id.
45. CPLR § 3025(a).
46. CPLR § 3025(b).

Litigating Family Offense Proceedings 55
47. Family Court Act § 842.
48. Family Court Act § 165(a) provides that, where a method of procedure is
not prescribed in the Family Court Act, the provisions of the Civil Practice
Law and Rules shall apply to the extent they are appropriate.
49. CPLR § 213(1).
50. Family Court Act § 828(1)(a).
51. Family Court Act § 154-d(1).
52. Family Court Act § 153-b(a).
53. Family Court Act § 826(a).
54. Family Court Act § 153-b(c).
55. Family Court Act § 826(b).
56. Family Court Act § 827(a).
57. Criminal Procedure Law § 140.10(4)(b).
58. Domestic Relations Law § 240(1)(a).
59. Family Court Act § 154-c(3).
60. Family Court Act § 832.
61. Family Court Act § 833.
62. Family Court Act § 2.
63. CPLR § 4518(c).
64. Williams v Alexander, 309 NY 283 (1955).
65. People v Swinger, 180 Misc 2d 344 (Crim Ct, NY County, 1988).
66. Family Court Act § 834.
67. Family Court Act § 842(i).
68. Matter of J.G. v B.G., NYLJ, Nov. 18, 1999, at 25.

Part III
Battered Women and Children

Custody disputes occur frequently in cases with a history of domestic violence.
For victims, a custody dispute often means a new cycle of abuse by their
batterers. In the course of the legal proceeding, victims may be pathologized or
stigmatized; their parental fitness may even be questioned. Many issues in
contested custody cases can only be understood if considered within the context
of domestic violence. The greater the appreciation attorneys and judges have of
the dynamics and history of domestic violence, the less likely they will be to
misinterpret symptoms of abuse as indicia of parental unfitness or instability
and the more likely they will be to make appropriate custody and visitation
determinations based on the best interest of the child.
The American Psychological Association recognizes that victims of domestic
violence are likely to be at a disadvantage in custody cases if the court does not
consider the history of violence:
. . . behavior that would seem reasonable as protection from
abuse may be misinterpreted as signs of instability. Psychological
evaluators not trained in domestic violence may contribute to
this process by ignoring or minimizing the violence and by
giving pathological labels to women’s responses to chronic
victimization. Terms such as “parental alienation” may be used
to blame the women for the children’s reasonable fear of or anger
toward their violent father. 1
5
Litigating Custody and Visitation
In Domestic Violence Cases
by Kim Susser
This tendency to regard allegations of domestic violence with skepticism and
disbelief, coupled with misinterpretation of victims’ behavior, is the primary reason
that custody cases are so challenging for attorneys representing victims. Battered
women need help to avoid presenting themselves in court or during law guardian
interviews and psychological evaluations in ways that undermine their credibility.

60 Kim Susser
For example, a victim may re-enact her adaptations to living in a hostile environment
when she is in court by “becoming agitated, over-emotional or stupefied into
silence. Attorneys as well as judges frequently react negatively to such behavior,
particularly if the abusive partner appears calm, collected and sure of himself.” 2
For these reasons a custody trial can be arduous and challenging. Attorneys
must carefully consider whether a decision to proceed to trial is in the client’s
interest. Early on, moreover, attorneys for domestic violence victims should
consider carefully whether even initiating a custody case is the best course of
action. If the victim has de facto custody of her children and the abuser is not
likely to disrupt the arrangement, it may not be necessary or a good idea to file for
legal custody. And, of course, be sure that paternity has been legally established
before seeking custody; if the child’s father has no standing to pursue custody,
your client is the legal custodian of the child and need not endure the rigors of a
custody proceeding. Finally, consider whether initiating a family offense case may
prompt the abuser to file a retaliatory petition for custody or visitation. This could
lock your client in a time-consuming and exhausting court battle that drags on for
years and forces her into contact with the very person she wants to escape.
The Legal Context
In New York State, the legal standard for both custody and visitation is
“the best interest of the child.” Therefore, custody and visitation issues will be
addressed together in this article. The broadly interpreted best interest standard
guides the way in which courts consider the issues emerging from domestic violence
in custody and visitation matters. Courts have generated a large body of case law
regarding the factors to be weighed in making best interest determinations. These
factors include the child’s preference; the parent’s stability; primary caretaker;
parental fitness, including abandonment, neglect and substance or alcohol abuse,
and mental illness; willful interference with visitation rights; nature of the
parent-child relationship; religious beliefs; and the parties’ relative financial
positions. Although some consideration of domestic violence is now inevitable,
until 1996, the consideration of domestic violence was left to the discretion of the
court and courts rarely paid much attention to it.
In 1996, the NYS Legislature attempted to afford protection to domestic
violence victims and their children involved in custody disputes by requiring courts
to consider proof of domestic violence in custody and visitation cases. The statute
states, in pertinent part, that where there are allegations of domestic violence in any

Litigating Custody and Visitation 61
action for custody or visitation, “and such allegations are proven by a preponderance
of the evidence, the court must consider the effect of such domestic violence upon
the best interest of the child, together with such other facts and circumstances as
the court deems relevant in making a direction pursuant to this section.” 3
The Legislature made specific findings regarding domestic violence in the
new law:
The legislature finds and declares that there has been a growing
recognition across the country that domestic violence should be
a weighty consideration in custody and visitation cases. . . .
The legislature recognizes the wealth of research
demonstrating the effects of domestic violence upon children, even
when the children have not been physically abused themselves
or witnessed the violence. Studies indicate that children raised
in a violent home experience shock, fear, and guilt and suffer
anxiety, depression, low self-esteem, and developmental and
socialization difficulties. Additionally, children raised by a
violent parent face increased risk of abuse. A high correlation
has been found between spouse abuse and child abuse. . . .
Domestic violence does not terminate upon separation or
divorce. Studies demonstrate that domestic violence frequently
escalates and intensifies upon the separation of the parties.
Therefore. . . great consideration should be given to the
corrosive impact of domestic violence and the increased danger
to the family. . . . 4
Although the Legislature explicitly rejected the rebuttable presumption
against awarding custody to a batterer that many other states have adopted, 5 the
new law is clearly meant to impose restrictions on visitation and custody for the
parent who has been found to have committed violence against the other parent.
The legislative history plainly states that domestic violence “should be a weighty
consideration.” 6 Furthermore, since domestic violence is the only best interest
factor specifically codified, arguably it should be given more weight than factors
identified in the decisional law.
The legislative history is a persuasive body of material that can be used in
several ways during litigation. First, it can be cited during oral argument when
the court is determining temporary orders of custody and visitation. The victim’s
attorney can also ask the court to take judicial notice of the findings at any point
during a hearing, and they can be used in lieu of expert testimony on the effects of

62 Kim Susser
domestic violence on children. The legislative history provides material for crossexamination
of experts: an expert’s credibility could be seriously undermined if he
or she is not familiar with the psycho-social research referenced in the legislative
findings. Finally, they can be cited in any written motion, answer or summation.
Court decisions that have been reported since the 1996 law entered into
effect indicate that judges deciding custody cases are giving considerable weight
to domestic violence. 7 In E.R. v G.S.R., for example, the court declined to accept
either the expert’s recommendation, because he “skims over the many episodes
of domestic violence,” or the Law Guardian’s, because she “discounted the
history of domestic violence.” 8 The Second Department has reversed and
remanded cases to the Family and Supreme Courts when courts failed to
consider the mother’s allegations of domestic violence perpetrated against her
by the father. 9
Appellate courts ruling since the passage of the 1996 domestic violence
custody law have consistently held that domestic violence witnessed by a child
is a significant factor in determining custody and visitation. 10 Courts have
considered acts of domestic violence in determining a parent’s fitness for
custody. 11 Domestic violence has been held to be a factor in relocation cases, 12
has been articulated as a basis for ordering supervised visitation, 13 and constitutes
“extraordinary circumstances” in cases in which a non-biological party seeks
custody. 14 Courts also view violence committed by a parent against a new spouse
as an important concern. 15 Recently, New York adopted the Uniform Child Custody
Jurisdiction Enforcement Act (UCCJEA) 16 elevating the importance of domestic
violence in determining jurisdiction over custody issues.
In 1998, the custody and visitation provisions of the New York State
Domestic Relations Law (DRL) and Family Court Act (FCA) were further
amended to prohibit courts from granting custody or visitation to any person
convicted of murdering the child’s parent. 17 Under this statute, the court is not
even permitted to order temporary visitation pending the final determination of
custody or visitation. 18 Exceptions include situations where a child of suitable
age and maturity consents to such an order and where the person convicted of
the murder can prove that it was causally related to self-defense against acts of
domestic violence perpetrated by the deceased. 19
While the statutory factor of domestic violence is being accorded increasing
weight by judges presiding over custody and visitation cases, it always is
considered in relation to the other “best interest” factors, sometimes in ways that
are helpful to victims and other times in ways that are decidedly problematic. It is
critical for attorneys representing victims of domestic violence to develop litigation

Litigating Custody and Visitation 63
strategies that ensure that the court’s consideration of the traditional “best interest”
factors reflects awareness about the harm of domestic violence on victims and their
children. In the following section, I will identify these factors and suggest ways in
which they can best be dealt with in domestic violence custody litigation.
Moral, Emotional and Intellectual Development
Courts have found that batterers are poor role models for children. The
court in Rohan v Rohan20 accorded significant weight to the father’s history of
perpetrating domestic violence against the mother, stating that the batterer’s
“reprehensible behavior demonstrate[d] his unfitness to be a parent.” 21 His
violent history, the court found, proved that he was “manifestly unsuited for the
difficult task of providing [the child] with moral and intellectual guidance.” 22
In Spencer v Small, 23 the Appellate Division, in affirming the award of custody
to the mother, 24 found that the father’s “failure to acknowledge the traumatic
environment” he created for his children because of his volatile temper revealed
“a character which is manifestly ill-suited to the difficult task of providing
young children with moral and intellectual guidance.” 25
In Farkas v Farkas, a groundbreaking decision that preceded the 1996
legislation, the court recognized that children who witness domestic violence
often emulate such behavior in their own relationships. The court reasoned that
“a man who engages in physical and emotional subjugation of a woman is a
dangerous role model from whom children must be shielded.” 26
These judicial decisions are supported by a growing body of literature by
social scientists and legal experts alike who have concluded that it is impossible
for abusive parents to provide proper moral, emotional, and intellectual guidance
to their children. The consensus is that violence is a learned behavior; it is
“cyclical and self-perpetuating. Children who live in a climate of violence learn
to use physical violence as an outlet for anger and are more likely to use violence
to solve problems while children and later as adults.” 27 Some studies suggest
that girls who have been exposed to or who have experienced violence in their
families may be at greater risk for violence in their own relationships. 28 More
conclusively, it has been demonstrated that boys who are exposed to violence in
their homes are at major risk of becoming batterers. 29
Stability
Generally, courts have held that continuity of care and a stable home
environment is in the child’s best interest. 30 This factor can be problematic for
battered mothers who have had to flee their abusers or move frequently to avoid

64 Kim Susser
them. The factor of stability can also create difficulties for battered mothers who
gave their abusers or a third party custody of the child while they were attempting
to secure their own safety and locate a new home for their child. In both of
these situations, the attorney representing the victim must elicit testimony about
the reasons behind her decision to move or temporarily surrender custody.
The preference for maintaining a stable environment with custodial continuity
is not absolute. 31 In Rohan v Rohan, the Appellate Division held that, given the
father’s history of domestic violence, the Family Court’s reliance upon the
factor of maintaining stability as the principle ground for granting physical
custody to the father was misplaced. 32 The court concluded that, in light of the
father’s egregious acts of spousal abuse, his claim that the mother consented to
his assumption of custody was “unworthy of belief.” 33 The court also noted that
the family court’s award of custody had the undesirable effect of rewarding the
father’s abusive conduct. 34
Children’s Wishes
Although not controlling, the express wishes of the child should be
accorded considerable weight when the child is of a sufficient age and maturity
to articulate his or her needs and preferences to the court. 35 (See discussion of
Law Guardians.) The wishes of the child, even a child of more than sufficient
age and maturity, are not dispositive, however, when those wishes appear to be
the result of domestic violence.
In Wissink v Wissink, 36 the Appellate Division gave a thorough and important
analysis of the weight courts should give a child’s wishes when there is domestic
violence in the home. In that case, the law guardian supported the father as the
custodial parent, despite ample evidence of his violence against the child’s mother,
because that was what his sixteen-year-old client said she wanted. The Appellate
Division found that, given the findings of domestic violence, the law guardian
had a duty to further examine the underlying reasons for the child’s wishes.
Prior Agreement
Prior agreement of the parties is another factor courts consider in deciding
custody. It is not uncommon for a victim of domestic violence to agree to a
custodial arrangement that is not in the child’s interest, or in her own, in an attempt
to placate the abuser. In this situation, the victim’s attorney must argue that she
ought not be bound to any agreement that occurred without representation, or under
duress, or that is not in the child’s best interest. The parties cannot bind the court to
an agreement that does not comport with the child’s best interest. 37

Primary Caretaker
Litigating Custody and Visitation 65
Courts place considerable emphasis on the stability and continuity a parent
offers her children by virtue of her role as primary caretaker. 38 Since the victim
of domestic violence is often the primary caretaker of the children, if the court
is reluctant to address the issue of domestic violence, it may help to rely on the
primary caretaker factor. Whether or not your client was the primary caretaker,
you should always elicit testimony about this issue. Testimony should either
describe your client’s role as the primary caretaker or explain why she was
prevented from performing this role.
Spousal Abuse and Parental Unfitness
In addition to being a factor in determining the best interest of the child,
spousal abuse must also be considered in assessing parental fitness. In a 1986
report, the New York Task Force on Women in the Courts urged legislators to
enact a law making domestic violence evidence of parental unfitness a basis
for visitation termination or a supervised visitation requirement. Courts have
repeatedly found spousal abuse indicative of parental unfitness. 39
Friendly Parent
Whether the parent encourages the child’s relationship with the other parent is
a weighty factor in custody determinations. A plethora of court decisions have held
that it is inimical to the child’s best interest to interfere with the visitation rights of
the non-custodial parent. 40 The “friendly parent” factor is also applied to the noncustodial
parent. For example, an attorney may try to use this factor to limit the
child’s visitation with a parent who disparages the custodial parent to the child.
More often, however, the “friendly parent” factor is used against domestic violence
victims who want to restrict the other parent’s visitation because they are aware of
that parent’s propensity for violence. (See discussion below of parental alienation.)
Trial Practice
Joint Custody
Courts have long held that an award of joint custody to parents with an
antagonistic and embattled relationship is improper and contrary to the child’s best
interest. 41 Courts often pressure parties to agree to joint custody in an attempt
to resolve the case quickly. Attorneys representing domestic violence victims in

66 Kim Susser
custody cases should cite the case law in response to any proposed settlement
that includes joint custody. Citing case law is an easy way to protect your client
from being blamed for not agreeing to such a “reasonable” disposition.
Orders of Protection
An order of protection issued on consent in a family offense case is not
sufficient to prove domestic violence in a custody case. 42 Attorneys who anticipate
a battle over custody or visitation should resist succumbing to pressure from the
judge and/or court attorney to accept a batterer’s offer to consent to the order.
Instead, as long as your client has sufficient evidence to meet her burden, and as
long as there are no other issues that might prevent her from testifying, especially
issues that go to her credibility such as mental illness or substance abuse, you
probably should request a fact-finding hearing on the family offense case. A
finding of domestic violence can be key to limiting visits and winning custody,
especially when the findings specify that the child was subjected to or witnessed
the batterer’s violence.
In determining whether to file a family offense petition, attorneys need to
consider whether the abuser will retaliate by seeking custody or visitation. Often
the abuser files for custody or visitation within days of having been served with
the family offense petition. If this happens, it may be a good idea to file an
answer to his petition in order to help the court understand the issues and facts
favorable to your client early on in the case. If the abuser obtains a temporary
order of custody, you will have to file an order to show cause or a writ of habeas
corpus for the return of the child. Temporary orders are often in place for up to
a year or more if a custody case is pending. These motions are not only critical
tools for achieving a speedy return of the child during the pendency of the case
but also provide an important opportunity early on in the case to convey to the
court the victim’s experience of the violence and other relevant facts.
Children as Witnesses
The impact of domestic violence on children has been the subject of much
academic and legal discussion in recent years. Often, children are the primary or
sole witnesses to incidents of violence in their homes. As a result, they may be a
valuable resource for information, and/or potential witnesses at a hearing.
While a child’s testimony may be important, most judges do not believe it
appropriate to call the child as a witness and put him or her in the middle of a
custody or visitation dispute. However, it can be valuable in developing your
litigation strategy to understand the child’s position and to learn what the child

Litigating Custody and Visitation 67
witnessed and how the domestic violence affected him or her. Such knowledge
may help you better understand the strengths and weaknesses of your case and
assist in fashioning a settlement. If the child is not represented by counsel or the
law guardian gives you permission to speak with the child, he or she can be
interviewed like any other witness. Once the child has been assigned an
attorney, however, it is unethical to communicate with him or her without the
law guardian’s permission. 43
It is advisable to interview the child individually and separately from your
client in a comfortable environment and to ask open-ended questions. The
attorney should assess the credibility of the child’s recollection of any incidents of
violence or the household environment; determine whether the child remembers
any facts your client may have forgotten or omitted; and try to understand the
nature of the relationship between the child and the abuser, particularly what
type of custodial or visitation arrangement the child wishes. While the child
may tell each parent what he or she thinks that parent wants to hear, the child
may be more inclined to give honest answers to you.
If the child has information that is pertinent and unavailable elsewhere,
consider requesting the appointment of a law guardian in order to articulate the
child’s wishes and provide information to the court. The law guardian will act as
an advocate for the child’s position and can also assist the victim’s case by offering
additional witnesses to the court in the presentation of the child’s case. The law
guardian will also be able to cross examine the witnesses for both the petitioner
and respondent and may be able to elicit further information not obtained through
the direct examination. If the batterer acts or speaks inappropriately during
visitation or custodial periods, the law guardian can monitor and report to the
court and make the appropriate motions to protect the child from any harassment
or badgering. Courts will usually give more weight to these arguments if they
come from the law guardian rather than you. On the other hand, a law guardian
may minimize or ignore allegations of domestic violence. (See discussion of
Law Guardians.) So consider all possibilities before requesting the appointment
of a law guardian.
If the child’s wishes are for your client to have custody or for a visitation
arrangement your client supports and the child is a credible and reasonably
articulate witness, move for the child to be interviewed by the judge in the
judge’s chambers, referred to as an “in camera” interview. This type of testimony
offers the court the child’s perspective without the trauma to the child of having
to confront the violent parent. It also spares the child cross-examination by the
batterer’s counsel. 44 Such a motion to the court should be supported by facts
about the harm the child would sustain should he or she be forced to testify in

68 Kim Susser
open court and any other danger that would result from the child testifying. It is
considered an error to hold the in camera interview off the record and without
the law guardian present. 45
You and your opponent will not be present during the interview but likely
will be given an opportunity to give the court or law guardian a list of questions
for the child.
Section 1046(a) of the Family Court Act establishes that statements made
by children pertaining to possible abuse or neglect are admissible as evidence in
a proceeding under Article Ten. Case law holds that such statements are also
admissible in custody and visitation proceedings. 46 Therefore, children’s statements
pertaining to domestic violence are admissible in custody and visitation cases.
You may elicit from your client any of the child’s reactions and statements
regarding any incident of violence he or she observed or heard.
Law Guardians
Because of the great weight courts give to their positions, it is critical to
understand the duties and role of law guardians in custody and visitation cases
when domestic violence is an issue. The law guardian’s position can be the
determinative factor in your client’s success or failure.
Historically, there have been two approaches taken by law guardians — the
strict advocacy approach and the substituted judgment approach. Strict advocacy
is when the lawyer advocates for the child’s wishes, regardless of whether the
lawyer considers those wishes to be in the child’s best interest. Substituted
judgment is when the lawyer substitutes his or her own judgment for the child’s.
Determining which approach is more appropriate depends on factors such as the
age and maturity of the child, the facts of the case, and the predilection of the
individual law guardian. The Statewide Law Guardian Advisory Committee
(LGAC), established by the Office of Court Administration in 1996, endorses
the strict advocacy approach except in cases in which the law guardian fears that
the child’s position would place the child in harm’s way. It also supports the
notion that, even when the law guardian is substituting his or her own judgment,
the child’s wishes ought to be made known to the court. 47
In 1994, the New York State Bar Association (NYSBA) set forth standards
and commentary for law guardians in custody and visitation cases, which recognize
two critical dimensions of law guardian representation. The first is the inherent
conflict that may emerge between the child’s stated wishes and what the law
guardian believes to be in the child’s best interest. The second is the fact that the
appearance of neutrality gives the law guardian’s position great weight.

Litigating Custody and Visitation 69
NYSBA argues that it is the lawyers’ responsibility to “avoid actions or
positions based on pre-conceived notions about sexual, racial or class roles or
stereotypes and seek to protect the child’s interests without trying to impose the
attorney’s own value system or sociological theories on the child or family.” 48
This statement holds particular significance in domestic violence cases. The
dynamics of domestic violence and its impact on children has been recognized
and codified by the legislature and case law; it is not a sociological theory upon
which law guardians can ruminate. Law guardians, like many people, may have
preconceived notions or stereotypes about domestic violence that should be
overcome. The NYSBA standards thus stand for the proposition that law guardians
must investigate facts, participate fully in the proceedings, and take a position. 49
Referring to them, you may ask that the law guardian be specifically appointed
on any concurrent family offense case so that he or she can participate in, or at
least observe, those proceedings in order to understand the history of domestic
violence and its impact on the child.
Courts have also addressed the role of the law guardian. In Koppenhoefer v
Koppenhoefer, the Appellate Division held that the failure of the law guardian to
take an active role in the proceeding was grounds for vacatur. 50
In Wissink v Wissink, 51 the law guardian supported the father as the custodial
parent because that was what his client said she wanted. This position appears to
comply with the strict advocacy approach defined by the LGAC. However, the
law guardian ignored the history of domestic violence perpetrated by the father
against the mother and did not understand the dynamics. The Appellate Division
made clear that it was the responsibility of the law guardian to understand the
dynamics of domestic violence, to apply that understanding to the adolescent
girl’s denigration of her abused mother and her stated desire to reside with her
abusive father, and to advise the court accordingly.
Lawyers for domestic violence victims have reported that too often law
guardians assigned to represent their client’s children have disregarded the
domestic violence in spite of the statutory mandate and have regarded their
clients’ allegations as suspect even in the face of strong evidence supporting the
victim’s account. When the law guardian’s bias is clear, it may be necessary to
move to recuse him or her. Such an effort may be an uphill battle, however. In
Eli v Eli, 52 the court denied a motion for the recusal of the law guardian based
on bias, holding that disqualification will only be granted upon a showing of
one or more of the following: (1) the law guardian’s violation of the Code of
Professional Responsibility; (2) a violation of the Rules of Judicial Conduct; (3)
a dereliction of the law guardian’s duties to the children or the court; or (4) the

70 Kim Susser
law guardian is unqualified pursuant to the standards imposed by law, the
judiciary, or court administrators.
Many law guardians request an interview with each parent as part of their
investigation. Like any other lawyer wishing to speak with a party who is
represented by counsel, the law guardian must first have the consent of that
party’s attorney. Together with your client, you will need to decide whether to
agree to this interview and whether you need to be present. Your decision will
depend heavily on your client’s ability to tell her story coherently and the extent
to which you believe the law guardian understands the dynamics of domestic
violence. As explained above, many law guardians ignore allegations of domestic
violence or view them as suspect while prioritizing the child’s relationship with
the non-custodial parent even when that parent is an abuser. When deciding
whether to permit the law guardian to interview your client, balance the danger
of appearing to be hiding something against the likelihood of your client
enlightening the law guardian about her history with her abuser and their child.
Generally, it is best to permit your client to meet with the law guardian. If you
are concerned that she will not be a good advocate for herself or that the law
guardian does not understand domestic violence, attend the interview.
Either way, you must prepare your client for her interview with the law
guardian. Domestic violence victims often assume mistakenly that just because
the law guardian represents the child, he or she will support the victim’s position.
What the law guardian views as the child’s best interest, however, may differ
from what the victim perceives as the child’s best interest. Your client must
understand that the purpose of the interview is to help the law guardian decide
what position to take and that any information shared with the law guardian can
be reported to the judge. Tell her that it is probably best that she not volunteer
any negative information, but that she must tell the truth when questioned.
Together with your client, decide which facts the law guardian should know.
Go through her history with her so she can tell her story coherently, highlighting
the most significant aspects, such as the impact the violence had on the children.
Help her understand that her answers should be child-centered rather than selfcentered.
Tell her to bring police or hospital records with her to corroborate the
violence, but remind her that the most important information is her own account
of it. Warn her that overemphasizing the domestic violence can backfire by
making it appear that she is obsessed with the negative aspects of her relationship
with the other parent or hostile to him. Work with your client on her affect and
demeanor so that she can describe the domestic violence she endured without
appearing to be overly emotional, angry, or exaggerating. It is important that she

Litigating Custody and Visitation 71
tells the law guardian that she understands the importance of the relationship
between the other parent and the child.
Forensics
Along with the position taken by the Law Guardian, the conclusions of
forensic reports, also known as psychological evaluations or mental health
studies, are likely to profoundly influence the outcome of the custody or
visitation case. Although judges are encouraged by the Appellate Division to be
independent, 53 they are also encouraged to order, and accord significant weight
to, forensic reports. 54 In most instances, courts tend to rely heavily on experts.
Legal precedent requires forensic evaluators to address domestic violence,
although it is not uncommon for evaluators to minimize its impact on the child.
In Wissink v Wissink, 55 the Appellate Division reversed an order of custody to the
father and held that “the fact of domestic violence should have been considered
more than superficially, particularly in this case where Andrea [the child]
expressed her unequivocal preference for the abuser while denying the very
existence of the domestic violence that the Court found she witnessed.” 56 The
court found that the forensic evaluation failed to adequately address the reasons
the teenager expressed a desire to live with her abusive father and directed the
lower court to order a comprehensive psychological evaluation.
Section 722C of the County Law permits the use of experts paid by the City.
Most experts are chosen from lists provided by the 18b panel, and choices are
generally made by reputation in the community. It is crucial that you investigate
any expert you are considering recommending or suggesting to opposing counsel
or the law guardian, not just by getting a copy of the curriculum vitae or resume,
but by speaking with the expert and specifically asking what his or her experience
has been with domestic violence. For additional information, speak to other
advocates and practitioners to see if they have had experience with the expert.
Prepare your client for her interview with the forensic evaluator much in the
same way that you prepared her for the interview with the law guardian. This
preparation is of critical importance to the outcome of the case so be sure to
spend at least one session with your client on it. Work with your client so that
she is able to recount clearly and without an angry or overwrought affect the
history of the domestic violence and to demonstrate her commitment to her
safety and that of the child. At the same time, unless the batterer was abusing
the child or involved in activities that posed a direct threat to the physical safety
of the child, she must also communicate her awareness of and support for the
child’s relationship with that parent. This is not an easy task to say the least.

72 Kim Susser
Explain to your client that although the expert is a doctor, he or she is not the
client’s therapist — this is not the time to explore her feelings or unburden
herself of her conflicts — and that her discussions with the expert are not
confidential. A good expert will observe each parent interact with the children
separately; prepare your client for this possibility.
You may wish to contact the expert directly and offer to provide court
documents, such as an Administration for Children’s Services report or an
Investigation and Report from Probation. You can offer to provide the expert
with literature about domestic violence. 57 Since many experts do not know
about the law mandating consideration of domestic violence in custody and
visitation cases, consider providing them with a copy of the statute that contains
the legislative intent section. The legislative history written into this law is
extremely valuable, especially because it cites research into the impact of
domestic violence on children even where they are not the direct targets of the
violence. Remember to send your adversary and the law guardian a copy of any
written communication you have had with the expert.
If the forensic report ignores or minimizes the domestic violence, is hostile
to your client, and/or makes inappropriate recommendations, you will need to
prepare to cross-examine the expert. There is a host of psycho-social literature
on the impact of domestic violence on children which you may use as material
for this task. Introduce this literature and the legislative history into evidence,
and then ask the expert whether domestic violence was considered in his or her
recommendation and what weight was it given in light of its established
negative impact on children. When cross-examining an expert who performed
personality tests, be aware that domestic violence victims tend to score higher
on the “paranoia scale” of the Minnesota Multiphasic Personality Inventory
(MMPI) than others because the scale measures not only paranoia but fear in
general. 58 Attorneys representing domestic violence victims who have been
administered such tests by experts have frequently found that the experts
misinterpret the data or fail to understand how experience as a domestic
violence victim can skew the results.
You will also wish to obtain impeachment material for your cross-examination
of the expert. 59 One of the richest sources of such material is likely to be the
expert’s own notes, especially if your client reports that she discussed the history
of violence with the evaluator but there is no mention in the final report. Although
there are some lower court decisions denying pre-trial disclosure of the notes of
forensic experts, 60 there is no appellate ruling on the issue of obtaining such
data and there are strong arguments to be made in favor of such disclosure. 61

Litigating Custody and Visitation 73
The American Psychological Association (APA) has set forth sixteen
guidelines for forensic evaluators in custody case, which can be very valuable
in cross-examination. The guidelines require that the expert gain specialized
competence, that he or she be aware of personal and societal biases, that he or
she use multiple methods of data gathering and maintain written records, and
that the scope of the evaluation be determined by the evaluator based on the
nature of the referral question. 62 Many experts in domestic violence custody cases
do not use multiple methods of gathering data, for example, by interviewing
collaterals. Experts in domestic violence cases often do not limit the scope of their
evaluation to the assigned task but instead attempt to mediate. The guidelines also
require the expert to “gain specialized competence” in conducting child custody
evaluations. This includes an understanding of applicable law, child development,
substance abuse, and domestic violence.
If the attorney concludes that cross-examination will not be sufficient to
undermine the expert’s recommendation, an additional expert may be retained by
the client. However, if the judge will not permit the expert to examine the child a
second time, this may not be particularly helpful. A motion for funds to retain an
additional expert may be made pursuant to Section 722C of the County Law.
Parental Alienation
The issue of parental alienation often arises in domestic violence cases.
Frequently, the batterer or his attorney will accuse the victim of communicating
messages to the child that alienate him or her from the abuser. The victim’s
efforts to protect herself and her children may be misinterpreted by courts,
lawyers, and experts as parental alienation. Neither psychological theory, 63 nor
case law, 64 supports this interpretation, and the attorney for the victim should
vigorously challenge it.
Visitation
The initial temporary order for visitation will likely determine the course of
visitation throughout the case. Visitation is easily expanded but rarely restricted.
Therefore, the schedule of visits between the abusive parent and the child
should start slowly, expanding gradually, if all goes well, from supervised visits,
to several hours of unsupervised visits, to full days, and then to overnight and
weekend visits.
Often in cases involving allegations of domestic violence, the visitation is
initially supervised. This arrangement protects the child and gives the victim
peace of mind. There are many possibilities for supervised visitation: supervision

74 Kim Susser
by staff or volunteers at an agency providing this service, or by friends or
relatives of one or both parents. The decision about which kind of supervised
visitation is best requires an exploration of a variety of factors. For example,
would a report to the court be helpful? If so, supervised visitation at a reputable
agency, where trained staff supervise the visits, is preferable. Such agencies
supervise visits either free of charge or for a small fee; visits are usually held
once a week for one hour; and supervisors usually provide a written report to
the court. If the batterer has abused the child or poses an ongoing danger to the
victim, visitation should be supervised by professionals at an agency. Be sure
that the agency will protect your client’s safety by ensuring that she does not
encounter her abuser when she brings the child and leaves with him or her.
Is supervision necessary for the long term? Agencies that specialize in
supervising visits typically will supervise for a limited period of time, such as
during the pendency of the court case. If long-term supervision is what is
needed, supervision by a mutually agreed upon friend or family member, if
available, may be an alternative. If visitation is unsupervised, the exchange
should be conducted at a safe place, either a police precinct or a public location,
such as a popular fast food restaurant or a library. Some judges and lawyers
believe that an exchange at the police precinct is harmful to a child. If the
visitation exchange should take place at a police precinct in order to protect
your client’s safety, cite the literature and case law demonstrating that exposure
to domestic violence is harmful to children and then point out that it would be
far more damaging to the child to be exposed to domestic violence than to be
exposed to the police.
Although theoretical support exists for the proposition that visitation ought
to be supervised when there has been a finding of domestic violence, 65 obtaining
a final order for supervised visits is difficult and usually requires evidence that
the batterer engaged in conduct that placed the child at the risk of significant
harm or continues to be violent to your client. Obtaining an order suspending
visits between the batterer and the child is even more challenging, usually
requiring such conduct as sexual abuse of the child, repeated physical violence
directed at the child, and severe substance abuse and/or mental health issues.
Expert testimony will probably be needed to obtain an order of permanently
supervised or suspended visits.
Modification of Custody/Visitation Orders
Batterers often attempt to continue their abuse through incessant litigation.
If your client is harassed by her abuser filing new petitions for custody or

Litigating Custody and Visitation 75
visitation after the case has been decided, argue that modification of the custody
or visitation order requires a showing of change of circumstances. In David W. v
Julia W., 66 the court held that to “automatically grant a hearing to a non-custodial
parent would simply facilitate a disgruntled party in harassing his or her spouse
compelling the latter to expend considerable time, money, and emotional
anguish in resisting the loss of custody.”
Conclusion
Although the New York State legislature and appellate courts require
factfinders to give significant weight to domestic violence in custody and
visitation matters, litigating these cases continues to pose challenges to lawyers
representing victims. In spite of this powerful legal precedent and the social
science research that supports it, victims and their advocates still encounter
lawyers, judges, and experts who downplay the significance of domestic
violence, who fail to understand its impact, and who stereotype or blame
victims. Attorneys for domestic violence victims can overcome these challenges
by educating themselves about the new developments in domestic violence law
and social science literature, by understanding how domestic violence implicates
the traditional “best interest” factors in custody law, by developing strategies to
bring information about domestic violence and the law to the key decision
makers, and by helping their clients negotiate a court system that too often is
confusing and insensitive to victims. While the effective representation of
domestic violence victims in custody and visitation cases requires knowledge,
sensitivity, and hard work, such litigation can be uniquely rewarding. Just as the
threatened loss of her child often instills the greatest fear in the battered mother,
preventing such a loss may constitute the greatest gift.

76 Kim Susser
Notes
1. Report of the American Psychological Association Presidential Task Force
on Violence and the Family (1996), at 100 (hereinafter APA Report).
2. Evan Stark, Building a Domestic Violence Case, in Lawyer’s Manual on
Domestic Violence: Representing the Victim (Anne M. Lopatto and James
C. Neely eds, 1st ed 1995).
3. Laws of 1962, ch 85.
4. Id. at 273-74 (emphasis added).
5. Lynne R. Kurtz, Protecting New York’s Children: An Argument for the
Creation of a Rebuttable Presumption Against Awarding a Spouse Abuser
Custody of a Child, 60 Alb L Rev 1345, 1350 (1997); see also Katherine M.
Reihing, Protecting Victims of Domestic Violence and Their Children After
Divorce: The American Law Institute’s Model, 37 Fam & Conciliation Cts
Rev 393, 395 (1999); see e.g. Ala Code 1975 § 30-3-131; Ariz Rev Stat
Ann § 25-403 (West Supp 1999); Ark Code Ann § 9-13-101(c) (Michie
1997); Colo Rev Stat Ann § 14-10-124 (1.5) (West 1999); Del Code Ann
tit 13, § 705A (Supp 1998); Fla Stat Ann § 61.13(2)(b)(2) (West Supp
1999); Haw Rev Stat Ann § 571-46(9) (Michie Supp 1998); Idaho Code §
32-717B(5); La Rev Stat Ann § 9:364 (West Supp. 1999); Minn Stat Ann §
518.17(2)(d) (West Supp 1999); Nev Rev Stat § 125.480(5) ([year]); NJ
Rev Stat Ann § 458:17 (1993); NM Cent Code § 14-09-06.2(1)(j) (1997);
Okla Stat Ann tit 10 § 21.1(D) (West 1995); Tex Fam Code Ann § 153.004
(West 1996); Wash Rev Code Ann § 26.09.191 (2)(a)(iii) (West 1997); Wis
Stat Ann § 767.24(2)(b)(2)(c) (West 1993); Wyo Stat Ann § 20-2-113(a)
(Michie 1999).
6. Laws of 1996, ch 85.
7. See E.R. v G.S.R., 170 Misc 2d 659 (Fam Ct, Westchester County, 1996);
J.D. v N.D., 170 Misc 2d 877 (Fam Ct, Westchester County, 1996).
8. Id. at 262.
9. Finkbeiner v Finkbeiner, 270 AD2d 417 (2d Dept 2000); Samala v Samala,
309 AD2d 798 (2d Dept 2003).
10. See Lee Elkins and Jane Fosbinder, New York Law of Domestic Violence,
591 (1998).
11. See Farkas v Farkas, NYLJ, July 13, 1992, at 31 (Sup Ct, NY County);
Rohan v Rohan, 213 AD2d 804 (3d Dept 1995).

Litigating Custody and Visitation 77
12. See e.g. Mitchell v Mitchell, 209 AD2d 845 (3 Dept 1994); Olmo v Olmo,
140 AD2d 677 (2d Dept 1988).
13. See e.g. Anonymous G. v Anonymous G., 132 AD2d 459 (1st Dept 1987).
14. See e.g. Peters v Blue, NYLJ, June 23, 1997, at 29 (Fam Ct, NY County);
Pratt v Wood, 210 AD2d 741 (3 Dept 1994).
15. See Kaplan v Chamberlain, NYLJ, Sept. 17, 1993, at 27 (Fam Ct, NY
County); TI v PS, NYLJ, June 5, 1995, at 31 (Fam Ct, NY County, 1995).
16. Uniform Child Custody Jurisdiction and Enforcement Act § 207; Domestic
Relations Law § 76.
17. See Laws of 1999, ch 378.
18. Id.
19. Id.
20. 213 AD2d 804 (3d Dept 1995).
21. Id.
22. Id.
23. 263 AD2d 783 (3d Dept 1999),
24. Acevedo v Acevedo, 200 AD2d 567 (2d Dept 1994).
25. Spencer v Small, 263 AD2d 783, 785 (3d Dept 1999).
26. NYLJ, July 13, 1992, at 31, col 1 (Sup Ct, NY County).
27. Laws of 1996, ch 85.
28. Fields, M. D., The Impact of Spouse Abuse on Children and Its Relevance in
Custody and Visitation Decisions in New York State, 240 Cornell J L and
Pub Pol 221 (1994).
29. American Psychological Association Presidential Task Force, Report on
Violence and the Family (1996), at 37.
30. Moorehead v Moorehead, 197 AD2d 517, 519 (2d Dept 1993). The Court
found that the parties were “equally able to care for their children” and
therefore, stability was of central importance. The court also considered the
young ages of the children who were 1.5 and 2 years old.
31. In Moorehead, the court found that a long-term custody arrangement may
be disrupted if it would serve the best interest of the child. Id. at 519-520.

78 Kim Susser
32. 213 AD2d 804, 806 (3d Dept 1995).
33. Id.
34. Id.; see also Labow v Labow, 86 AD2d 336 (1st Dept 1983). In reversing a
trial court’s transfer of custody from the mother to the father, the court cited
the trial court’s failure to consider the father’s manipulative yet apparently
successful technique of bringing about a change in custody by failing to
comply with court orders and the impact that this technique would have on
the child’s thinking. “It hardly seems to be in the best interests of a child for
him to learn the efficacy of such a technique and to observe it practiced by
his father and approved by the court.”
35. Koppenhoefer v Koppenhoefer, 159 AD2d 133 (2d Dept 1990).
36. 310 AD2d 36 (2d Dept 2002).
37. Eschbach v Eschbach, 56 NY2d 167 (1982).
38. Hall v Keats, 184 AD2d 825, 827 (3d Dept 1992); Diane L. v Richard L.,
151 AD2d 760, 761 (2d Dept 1989); Moon v Moon, 120 AD2d 839, 839 (3d
1986).
39. See Farkas v Farkas, NYLJ, July 13, 1992, supra; Rohan v Rohan, supra,
at 806; Acevedo v Acevedo, 200 AD2d 567 (2d Dept 1994).
40. Entwhistle v Entwhistle, 61 AD2d 380 (2d Dept 1978); Bliss v Ach II, 56
NY2d 995 (1982).
41. Braiman v Braiman, 44 NY2d 584, 589-92 (1978); Forsyth v White, 266
Ad2d 743 (3d Dept 1999).
42. Domestic Relations Law § 240, which refers to the Family Court Act,
requires that a finding of domestic violence be made by the preponderance
of the evidence in order for the judge to have to consider the domestic
violence in determining the best interest of the child.
43. Cooperman v Cooperman, NYSBA Opinion 656, DR 7-104(a)(1) of
Professional Responsibility.
44. See Lincoln v Lincoln, 30 AD2d 786 (1st Dept 1968).
45. Family Court Act § 664(b); CPLR Rule 4019; see Fleishman v Walters,
40 AD2d 622 (4th Dept 1973); Matter of Buhrmeister v McFarland, 235
AD2d 846 (3d Dept 1997); Matter of Kathleen OO, 232 AD2d 784 (3d
Dept 1996); Matter of Sellen v Wright, 229 AD2d 680 (3d Dept 1990).

Litigating Custody and Visitation 79
46. LeFavour v Koch, 124 AD2d 903 (3d Dept 1986) (custody); Albert G. v
Denise B., 181 AD2d 732 (2d Dept 1992) (termination of visitation).
47. The Statewide Law Guardian Advisory Committee, Law Guardian Program
Administrative Handbook, at 2-3.
48. NYSBA Standards; see also Appellate Division First Department Law
Guardian Definition and Standards.
49. See Nancy Erickson, The Role of the Law Guardian in a Custody Case
Involving Domestic Violence, 27 Fordham Urb L J 817 (2000), for a
thorough review of the standards and how the consideration of domestic
violence expands the role of the law guardian.
50. Koppenhoefer v Koppenhoefer, 159 AD2d 113 (2d Dept 1990).
51. Wissink, 301 AD2d 36 (2d Dept 2002).
52. Eli, NYLJ, November 12, 1998, at 25.
53. See Alanna M. v Duncan M., 204 AD2d 409 (2d Dept 1994).
54. See In the Matter of Rebecca B., 204 AD2d 57 (1st Dept 1994); Rentschler
v Rentschler, 204 AD2d 60 (1st Dept 1994).
55. 301 AD2d 36 (2d Dept 2002).
56. Id.
57. Some of the relevant literature includes: American Psychological Association
Presidential Task Force, Report on Violence and the Family, 1996;
American Bar Association Commission on Domestic Violence, The Impact
of Domestic Violence on Your Legal Practice, 1996, ch 5; The Impact of
Spousal Abuse on Children, Marjory Fields, 3 Cornell J Law and Public
Policy, No. 2 1994; Ann Jones, Next Time, She’ll Be Dead: Battering and
How to Stop It, 1994, ch 3; Lundy Bancroft and Jay Silverman, The
Batterer as Parent, 2002.
58. Lynne Bravo Rosewater, Clinical and Courtroom Application of Battered
Women’s Personality Assessments, Domestic Violence on Trial:
Psychological And Legal Dimensions of Family Violence, ed Daniel Jay
Sonkin, (1987).
59. CPLR 3120; see also Kessler v Kessler, 10 NY2d 445 (1962).
60. Ochs v Ochs, 193 Misc 2d 502 (Sup Ct, Westchester County,, 2002);
Feuerman v Feuerman 112 Misc 2d 96 (Sup Ct, NY County, 1982);
Nicholson v Nicholson, NYLJ, January 5, 2004, at 19, col 1.

80 Kim Susser
61. Tippins, Custody Evaluations, Part 4: Full Disclosure Critical, NYLJ,
January 15, 2004, at 3.
62. American Psychologist, Vol 49, No 7, at 677-680 (1994).
63. The American Psychological Association determined that, “although there
are no data to support the phenomenon called parental alienation syndrome,
the term is still used by some evaluators and courts to discount children’s
fears in hostile and psychologically abusive situations. Psychological
evaluators not trained in domestic violence may contribute to this process
by ignoring or minimizing the violence and by giving pathological labels to
women’s responses to chronic victimization. Terms such as ‘parental
alienation’ may be used to blame the women for the children’s reasonable
fear of or anger toward their violent father.” Report on Violence and the
Family, at 40, 100.
64. No cases were found in New York allowing for the admission of expert
testimony on parental alienation syndrome. People v Loomis 172 Misc 2d
265 (Crim Ct, NY County, 1997). That court also noted that in Florida, such
testimony was not generally accepted under the Frye rule; see also Darla N.
v Christine N., 289 AD2d 1012 (4th Dept 2001); Zafran v Zafran, 191 Misc
2d 60 (Sup Ct, Nassau County, 2002); JF v LF, 694 NYS2d 592.
65. Some states, though, have a presumption that the abusive parent have only
supervised visits unless he can rebut the presumption by showing he is fit
to have unsupervised visits, for example, by completing a batterer’s
education program.
66. 158 AD2d 1 (1st Dept 1990).

The Law Regarding Child Welfare and Domestic Violence
6
Representing Domestic Violence Victims in
Child Welfare Cases
by Jill M. Zuccardy
For domestic violence victims who face child neglect proceedings, the
Court of Appeals decision in Nicholson v Scoppetta1 changed radically the legal
landscape in which they defend themselves against charges that they have failed
to protect their children from harm. Prior to 2004, the decisions of the different
appellate divisions regarding issues of domestic violence in child welfare cases
could not be harmonized. The confusion traced its origins to the 1998 decision
in In re Lonell J., 2 in which the Appellate Division, First Department, held that
expert testimony is not necessary to establish that exposure to domestic violence
causes harm to children rising to the level of impairment under the statute
governing child neglect. Some, but not all, lower courts seemed to interpret In
re Lonell J. as holding that a child who witnesses domestic violence per se
suffers harm sufficient to support a finding of neglect against the victim-parent
as well the perpetrator-parent. 3
In October, 2004, the New York Court of Appeals issued its landmark
decision in Nicholson v Scoppetta. 4 The Court held that a parent may not be
charged with neglect solely on the grounds that the parent is a victim of domestic
violence and the child has been exposed to the violence. The Court also held
that a presumption of emotional harm is impermissible by law because not every
child exposed to domestic violence suffers harm or even a risk of harm as
defined by the neglect statute. The Court made clear that In re Lonell J. stood
only for the proposition that expert testimony is not required to prove that a
child exposed to domestic violence has suffered harm under the statute but that
it did not dispose with the requirement that emotional harm be proven.
The Court further emphasized that even if emotional harm to a child from
exposure to domestic violence is proven by particularized evidence, a battered

82 Jill M. Zuccardy
mother still may not be found neglectful unless it is shown that she failed to
exercise a minimum degree of care and that there is a causal link between her
actions or inactions and any proven harm to the children. A court must assess
the battered mother’s actions or inactions by an objective standard, considering
what a reasonable parent would have done under the circumstances “then and
there existing.” The inquiry must be detailed, with the court considering risks
attendant to leaving, risks attendant to staying and suffering continued abuse, risks
attendant to seeking assistance through government channels, risks attendant to
criminal prosecution against the abuser, risks attendant to relocation, the
severity and frequency of the violence and resources and options available to the
mother. While the Court noted that its ruling “does not mean that a child can
never be ‘neglected’ when living in a home plagued by domestic violence,” it
recognized that a neglect finding against a battered mother based on domestic
violence would be appropriate only under the most egregious of circumstances.
The Court’s ruling in Nicholson v Scoppetta is consistent with the holding in
the federal class action lawsuit, Nicholson v Williams. 5 In Nicholson, a federal
court found that it is unconstitutional to remove children from battered mothers
solely or primarily on the grounds that there is domestic violence in the home, to
charge those battered mothers with child neglect and to mark cases against them
as “indicated” at the New York State Central Register of Child Abuse and
Maltreatment (SCR). 6 The federal district court issued an injunction against New
York City’s child welfare agency, the Administration for Children’s Services
(ACS), prohibiting it from such behavior in child welfare cases involving
domestic violence. 7 Upon ACS appeal of the federal case, the Second Circuit
Court of Appeals certified questions of state law to the New York Court of
Appeals, resulting in the decision in Nicholson v Scoppetta. Subsequently, the
Second Circuit remanded the case to the district court for consideration in light
of Nicholson v Scoppetta. On December 17, 2004, the parties settled the case
with ACS explicitly recognizing that the New York Court of Appeals decision
accurately sets forth the applicable law that ACS must follow.
In December, 2004, the parties settled the federal case with ACS explicitly
recognizing that the New York Court of Appeals decision accurately sets forth
the applicable law. Since Nicholson, state appellate courts have by and large
declined to uphold findings of neglect against battered mothers where the sole or
primary grounds for the finding is that the mother was a victim of domestic
violence, 8 while at the same time emphasizing that Nicholson does not preclude
findings against perpetrators of domestic violence. 9 It remains imperative that
practitioners representing domestic violence victims in child welfare proceedings

Representing Domestic Violence Victims in Child Welfare Cases 83
hold child welfare agencies, attorneys, and lower courts to the standards
enunciated by the Court of Appeals in Nicholson.
The Myths Regarding Child Welfare and Domestic Violence
Battered mothers have at times been charged with neglecting their children
when they have done little or nothing more than endure abuse by an intimate
partner. The theory underlying a neglect prosecution against a battered mother is
that she “failed to protect” her children from domestic violence. Use of the generic
phrase “failure to protect” in the context of domestic violence is misguided:
The word failure implies circumstances that are controllable,
that is, the opportunity was available not to fail. In the context of
domestic violence, this suggests that the failure was due to the
mother not taking some action that would have protected her
children. However, domestic violence is unlike other acts of
omission, such as failure to provide medical care, because the
probability for a successful outcome — protecting the children
from witnessing further abuse — may be relatively low. 10
Another misconception in many neglect prosecutions against battered
mothers is that all the victim had to do to protect her child was leave the abuser.
Outsiders often conclude that separating from the abuser is a way to end the
violence. Yet, as the New York State Legislature found “studies demonstrate that
domestic violence frequently escalates and intensifies upon the separation of the
parties.” 11 The Court of Appeals too, in its ruling in Nicholson, has recognized
that separation should not be used as a litmus test for assessing a battered
mother’s commitment to her children’s safety and well-being.
A battered mother also may be judged harshly if she did not pursue criminal
action against the abuser although battered mothers often have good reason to
forgo criminal remedies. The Court of Appeals, in People v Alexander, recognized
that, “[a]lthough the abusers’ guilt may be clear and provable, many victims of
domestic violence decide not to pursue charges for a host of reasons, including
fear of retaliation, financial dependence and threats of violence. . . .,” 12 and in
Nicholson added that declining to prosecute may itself be an exercise of care.
The concept of safety planning, which has long been the cornerstone of
domestic violence intervention, is premised on the belief that a battered mother
usually is the best judge of what actions are most likely to keep her and her

84 Jill M. Zuccardy
children safe. The Court in Nicholson recognized the myriad factors that a
battered mother must consider in planning for her safety, dispelling some of the
myths about what a battered mother “should have done.”
The CPS Investigation
There are two ways that a battered mother may come to the attention of a
child protective services agency (CPS). In some jurisdictions, the Family Court
will institute a court-ordered investigation as part of a custody, visitation or
family offense case. The role of the CPS caseworker is to collect information
and issue a report to the court.
More typically, a battered mother comes to CPS attention through a complaint
made to the SCR. Mandated reporting to the SCR is not triggered merely because
a child has witnessed domestic violence13 and, if such a report is made, the SCR
should not accept the complaint. When the complaint is accepted, it is sent to
the local CPS office for investigation. CPS must commence its investigation
within 24 hours and make face-to-face contact with the child, parent and other
household members. 14 The extent of that contact may depend upon the severity
of the allegations and safety information in the complaint. CPS caseworkers must
offer services to the family, but they also must inform parents that they are not
required to participate in services unless they are ordered to do so by a court. 15
CPS has 60 days to complete its investigation. At the conclusion of the
investigation, CPS marks the report “indicated” or “unfounded” and notifies each
subject of the report of the outcome. A finding of indicated means that CPS has
determined that “some credible evidence of the alleged abuse or maltreatment
exists.” 16 The record of an indicated report remains at the SCR until ten years
after the eighteenth birthday of the youngest child named in the report.
If the case is indicated against the battered mother, the attorney should
immediately send a letter to the SCR requesting a copy of the documents on file
with the SCR and administrative review of the determination. The letter also
should request a fair hearing if the determination is not reversed at administrative
review. The attorney also should request a copy of the mother’s file from the local
CPS to obtain the details of the investigation. In both instances, an authorization for
the release of the records must be attached. If the attorney cannot represent the
mother in a fair hearing, the attorney should help the mother file her request pro se.

Representing Domestic Violence Victims in Child Welfare Cases 85
Advocacy During a CPS Investigation
A parent has a legal right to refuse entry into, and inspection of, her home
by a CPS caseworker, but, in most circumstances, asserting that legal right is not
advisable. If access is not granted, the caseworker may summon the police, seek
a warrant or ask the Family Court to authorize removal based solely on the
allegations. Once the CPS investigation goes forward, it is more feasible for a
mother to decline continued home inspections, especially if the abuser and not
the mother is alleged to be placing the child at risk, and she may instead offer to
bring the child to the CPS office for interviews. However, when a mother is
residing in a confidential domestic violence shelter, an attorney should oppose
CPS entry into and inspection of the “home.” A domestic violence shelter is a
government-licensed and inspected facility and is already confirmed to be a safe
and appropriate environment for children. The risks of a breach of confidentiality
are too high to justify revealing the location to CPS caseworkers and supervisors.
The address of the shelter also will appear in CPS records to which the abuser is
entitled, by law, to have access. Revealing the address puts not only the subject
of the investigation at risk but also endangers other residents and their children.
If an attorney knows that CPS intends to interview the mother, the attorney
may attend the interview or identify someone else — preferably a social worker,
but also a paralegal or intern — to attend the interview. The attorney should
develop a contingency plan with the mother should it appear that the children
will be removed without an opportunity for the mother to be heard in court.
The mother should identify relatives or friends who could take the children in the
short term. The attorney should explore whether the mother would be willing to
go into a domestic violence shelter or relocate in the short term if it is a way to
avoid removal of her child. These decisions may need to be made quickly and,
as frightening as it may be for the mother, the attorney should explore them in
the early stages of the investigation.
CPS must interview the mother at a separate location from any interview with
the abuser. The CPS caseworker should not merely ask the abuser to step into the
other room while she queries a mother about his violent tendencies. CPS also
must provide an interpreter if needed; a battered mother cannot be expected to
discuss difficult family issues in a language in which she is not fully conversant or
to use a friend or neighbor to translate. A child should never be used to translate.
During the interview, a battered mother faces a conundrum in determining
what information to share. If she discloses serious abuse in the home, she risks
having her child removed, having a neglect case filed against her or having the

86 Jill M. Zuccardy
CPS caseworker take precipitous action, such as confronting the abuser, which will
increase danger. On the other hand, if the mother minimizes the violence, CPS may
conclude that the mother is unwilling or unable to take steps to protect the child.
A battered mother is best served by simply telling the truth. While she
should not mistake the CPS caseworker for a confidante and should not
volunteer extraneous information, she should be straightforward in response to
specific questions. She should avoid advocating for the abuser or providing
excuses for his behavior. She should not try to protect the abuser or align herself
with him based on the mistaken impression that this will cause CPS to close the
case. In most investigations involving allegations of domestic violence, the
interests of the mother and the alleged abuser are not aligned and presenting a
united front may result in removal of the child from both parents. Further, CPS
caseworkers have access to records of abuse in the home by police, the courts,
the hospital or other service providers. It does not serve the mother to backpeddle
from any prior reports.
The attorney’s focus should be on providing information necessary to
establish that the child is currently safe and that the battered mother has taken,
and will continue to take, steps to keep the child safe. Letters from service
providers or proof of involvement with social services are helpful. A battered
mother is not required to accept CPS mandates. 17 However, if the mother disagrees
with the safety measures suggested by CPS, she should be prepared to articulate
an alternate safety plan. If the CPS agency has a domestic violence specialist,
the attorney should reach out to the specialist — or ask the caseworker to — if
any problems arise.
The attorney and mother should identify CPS tools or resources that could help
the mother. CPS can bring the power of the government to bear against the abuser.
CPS has the authority to apply to the court to exclude the abuser from the home,
advocate with the police to have the abuser arrested or file a neglect case against the
abuser. CPS also serves as a resource for referrals to, for example, counseling, child
care, Head Start programs, housing and culturally and linguistically appropriate
services. It is imperative that dialogue with the victim be the center of any CPS
intervention to avoid the unintended consequence of increasing danger.
The most challenging scenario is one in which the mother wants to reconcile
or remain with the alleged abuser. Whether CPS seeks removal or files a neglect
petition will depend on factors such as the frequency and severity of the abuse,
the abuser’s relationship to the child and the abuser’s willingness to become
involved with services. While it is the attorney’s role to advocate the mother’s
position, a mother who wishes to reconcile or remain with an abuser must

Representing Domestic Violence Victims in Child Welfare Cases 87
understand the pitfalls of this course of action, particularly the potential for
removal of her children should another incident of violence occurs. An attorney
for a mother in that situation should encourage her to develop a well thought-out
safety plan that she can share with the CPS caseworker and to pursue an order
of protection which, while allowing the parties to continue to live together,
restrains the abuser from verbal or physical abuse against her and the child.
An attorney may also provide information to, or advocate directly with,
CPS as long as there is no pending Family Court case. The attorney should ask
whether the caseworker intends to file in court or seek removal, so that the
attorney may be present if such a filing occurs and may request a hearing before
a removal. If the attorney believes that removal or any other legal action is
forthcoming, the attorney may ask the caseworker to provide contact information
for a CPS attorney. The mother’s attorney also may contact the CPS legal services
unit directly. If removal or court action appears imminent, the attorney should
notify the CPS legal services unit in writing that the attorney represents the
mother and must be informed of any court filings.
Procedural and Substantive Requirements for Removal
The removal of a child from a parent is one of the most serious exercises
of government power that our constitution permits. The Court of Appeals
recognizes that “the liberty of a parent to supervise and rear a child” is one of
the “[f]undamental constitutional principles of due process and protected
privacy. . . .” 19 The Court also recognizes that it is in a child’s interest to be
raised by his/her parent, and that relationship should not be interfered with
absent grievous cause or necessity. 20 Thus, exacting procedural safeguards are
applied when the government seeks removal.
The law requires CPS to obtain a court order authorizing removal of a child.
The only exception is when CPS determines that there is an imminent danger of
serious injury to the children’s life or health and the risk of harm is so immediate
that there is no time to obtain a court order. 21 The court must then hold a hearing
prior to continuing the removal made without court order. 22 CPS also may file
ex parte but must give the mother notice of its intention to do so and, again, a
hearing must be held. Upon any application for removal, the court must determine
whether reasonable efforts were made to eliminate the need for removal or, if
such efforts were not made, whether the lack of such efforts was appropriate
under the circumstances and whether an order of protection would ameliorate
the danger. 23 At the conclusion of the hearing, the court may decline to order

88 Jill M. Zuccardy
removal or issue a “remand” order, i.e., an order placing or continuing the child
in CPS custody for a period of a few days until the neglect petition is served.
Children must be placed with relatives if possible. 24
A mother may challenge a removal through what is commonly known as a
“1028 hearing,” named after the section of the Family Court Act which provides
for it. 25 She may file a Demand for Return of Child (which causes the scheduling
of a hearing) even before CPS commences a proceeding. If the attorney has
been retained after the removal but before the next court date, the attorney may
file for a hearing and the court date will be advanced. The hearing takes priority
over all other matters in the Family Court, must occur within three days, and
cannot be adjourned without consent. Because the standard for continued
placement in foster care is “imminent danger,” a mother has a right to seek a
1028 hearing at any point prior to disposition, even during fact-finding, if
imminent danger no longer exists. A parent does not waive the right to a hearing
merely by declining to exercise that right at the commencement of the case.
The FCA § 1028 Hearing
The attorney must weigh whether and when to request to a 1028 hearing.
Although those decisions will depend on the facts of the case, requesting a 1028
hearing while a case is newly before the court is often best. The request emphasizes
the serious nature of removal of a child and causes an immediate conference
about the case. The request itself may result in the return of the child. Further,
even if the child is not returned as a result of a 1028 hearing, the hearing focuses
the parties and the court on what steps CPS and the mother must take so the
child can be returned as soon as possible. Reasonable efforts by CPS virtually
always can eliminate danger, but such efforts can only be ordered by the Family
Court when the case is before it. In challenging removal the attorney must focus
not only on the issues of “imminent danger” but also on “best interests of the
child.” The court is required to weigh any risk to the child against any trauma or
damage to the child from being removed from his/her home. 26
The battered mother’s attorney must assure that this balancing of harms is
explicitly considered. The Court of Appeals has recognized that “the psychological
trauma of removal” is so great that sometimes it may “threaten destruction of
the child” 27 and that “[i]f removed from the home of her primary care giver, a
young child would be expected to have a ‘normal grief reaction,’ including
crying, aggressiveness, eating or sleep disturbances, nightmares or night terrors,
as well as temporary regression in developmental skills.” 28 The attorney also

Representing Domestic Violence Victims in Child Welfare Cases 89
should challenge any attempt to categorize placement in foster care as the “safer
course” or “erring on the side of safety.” The Court of Appeals has rejected this
standard, holding that it “should not be used to mask a dearth of evidence or as
a watered-down impermissible presumption.” 29
Upon seeking a 1028 hearing, the attorney should obtain the case record and
ask whether CPS intends to call any witnesses other than the caseworker. Since
CPS has the burden to prove imminent risk, CPS will present its case first. The
caseworker who investigated the complaint is likely to be the only witness since
hearsay is admissible. Upon the conclusion of the petitioner’s case, the attorney
may make an oral motion to deny the removal petition if CPS does not meet its
three-prong burden of showing imminent danger of harm; that removal is in the
best interests of the child; and, that no reasonable efforts will ameliorate the
danger. If that motion is denied, the attorney must consider what evidence and
witnesses to present on the mother’s case. Documentary evidence of safety and
best interests should be submitted. Witnesses may include a therapist, doctor,
clergy, or others with knowledge of the mother and child’s safety and well-being.
An attorney must consider whether the mother should testify. If the mother
does not testify, CPS is likely to ask that a negative inference be drawn. Whether
the mother testifies will depend on the facts and circumstances, the strength of
the case without her testimony, how the mother will present as a witness and the
judge before whom the application is being heard. The downside of having the
mother testify is that CPS is likely to focus on past violence rather than current
safety. The attorney should object to that line of questioning.
At the conclusion of the hearing, the court will either return the child to the
mother (referred to as a “parole”), continue the child’s remand in foster care or
order the direct placement of the child with a relative or other person. All parties
have the right to an immediate appeal of the decision. If the court orders the child
to be returned, CPS does not have a legal basis for holding the child to complete
its internal protocols such as a discharge medical examination. However, CPS
may assert its right to an automatic stay of the return of the child until 5 p.m.
the next business day after the day on which the order was issued. 30 If the court
orders removal or continued removal, the mother’s attorney also should consider
seeking an immediate stay of the removal order from the Appellate Division.
If the mother does not prevail at the hearing, the attorney should ask CPS,
the court and, where applicable, the Law Guardian, to articulate why they
believe that the child remains in “imminent danger” and how to eliminate the
hurdles to reunification. When services are identified, the attorney should seek a
court order mandating CPS to provide them as well as an order providing for
frequent visitation under the least restrictive circumstances.

90 Jill M. Zuccardy
Non-Respondent Mothers
CPS may file a neglect petition against the abuser exclusively, without
naming the mother. The non-respondent mother will be notified of the proceeding
against the abuser and has a right to appear as an interested-party intervenor and
to participate in all arguments, fact-finding and dispositional hearings insofar as
they affect the custody and well-being of the child. 31
Participants in a child welfare proceeding involving domestic violence tend
to categorize a non-respondent mother as “cooperative” or “uncooperative,” but
the reality of the non-respondent mother’s involvement in the case is not so
simply defined. An allegedly uncooperative mother is frequently nothing more
than a mother who has her own position on what is necessary for the protection
of herself and her child, a position that is based on the reality of her daily life
and her intimate knowledge of the habits of the abuser. The attorney may need
to remind CPS that the goal is ensuring safety of the child and that a neglect
prosecution against the abuser may undermine that goal.
A battered mother also should be encouraged to take advantage of the
protections offered to her in a neglect proceeding against the abuser. CPS will
take responsibility for arranging safe visitation between the abuser and the child,
thereby relieving her of this difficult task. CPS has the power to obtain an order
of protection on behalf of the mother and child including exclusion of the abuser
from the home, in some instances until the child’s eighteenth birthday. 32 A neglect
finding against the abuser may be used in custody or visitation proceedings that
occur after CPS ceases its involvement with the family.
A non-respondent mother must decide whether she should file separate custody
or family offense petitions. Since the non-respondent mother has the right to
participate in the neglect proceeding, these petitions may complicate and delay the
case procedurally and may offer her no greater relief. On the other hand, the other
proceedings assure that the mother can assert her right to seek independent and
continuing relief beyond what CPS pursues and guarantee that, if a neglect finding is
not entered, the court continues to have jurisdiction over the issues of visitation and
protection. If the mother files her own custody or family offense petitions, she should
seek to have them consolidated with the dispositional phase of the child welfare case.
If the battered mother is a non-respondent in a neglect case against the abuser,
the attorney usually will not put on a case at trial but rather will provide relevant
evidence through cross-examination or at disposition. However, CPS is likely to
call the non-respondent mother to testify. The attorney should prepare her to
testify and may even offer proposed questions to the CPS attorney.

Respondent Mothers
Representing Domestic Violence Victims in Child Welfare Cases 91
A child neglect proceeding may not be maintained against a non-offending
battered mother solely or primarily on the grounds that her child was exposed to
domestic violence. 33 As the law shifts away from holding battered mothers
responsible for the violence perpetrated against them, cases in which a battered
mother is named as a respondent are more likely to include allegations in addition
to, or instead of, domestic violence. An attorney should be alert to whether other
issues are a pretext for an unlawful prosecution based on domestic violence.
When CPS identifies other issues, such as alleged drug use or mental
illness, as the basis for the removal or neglect charges, the attorney must be
vigilant in ensuring that domestic violence is not brought in through the back
door at trial to imply maternal deficiency. Further, throughout any neglect case
involving allegations of domestic violence, the attorney must insist upon
distinguishing between the behavior of the battered parent and that of the abusive
parent. The petitioner bears the burden of proof to show by a preponderance of
the evidence that the parent has neglected her child as defined by law. 34 The
Family Court Act defines a neglected child as, among other things, a child:
whose physical, mental or emotional condition has been impaired
or is in imminent danger of becoming impaired as the result of
the failure of his parent . . . to exercise a minimum degree of care
. . . in providing the child with proper supervision or guardianship,
by unreasonably inflicting or allowing to be inflicted harm, or a
substantial risk thereof, . . . or by any other acts of a similarly
serious nature requiring the aid of the court . . . . 35
With regard to alleged emotional harm, the standard of impairment for a
finding of neglect is “substantially diminished psychological or intellectual
functioning.” 36 There must be proof of serious harm or potential harm, and the
harm must be “near or impending, not merely possible.” 37 Further, any
impairment to a child “must be clearly attributable to the unwillingness or
inability of the respondent to exercise a minimum degree of care toward the
child.” 38 The statutory standard is minimum degree of care, “not maximum, not
best, not ideal.” 39 Thus, in domestic violence cases, as in other neglect cases, a
court must consider both whether the child suffered harm or risk of harm and
whether the domestic violence victim exercised “a minimum degree of care. . .
under the circumstances then and there existing.” The petitioner, usually CPS,
also is bound to show a causal link between the two.

92 Jill M. Zuccardy
Pre-Trial Practice
Aggressive litigation forces all parties and the court to focus on the case
more intently and may result in moving it along more quickly. Immediately upon
being retained, the attorney should serve a Notice to Produce and a Demand for
a Witness List upon CPS. If the case record is provided early in the case, the
attorney must see to it that she receives updated records as the case progresses.
A non-respondent parent also is entitled to discovery and, at minimum, the attorney
should request the case record. If discovery is not provided, the attorney may make
a motion to compel.
The attorney also should consider filing a Demand for a Bill of Particulars.
The mother is entitled to know when and where the incidents are alleged to have
occurred, and under what circumstances. In particular, in cases in which CPS
argues that the battered mother was “offered services” and “failed to cooperate,”
CPS must identify what services were allegedly offered and how they would
have contributed to the safety of the child. 40
If there is a foster care or preventive services agency involved, the attorney
also should subpoena its records and interview the foster care worker. The foster
care agency is not represented by CPS counsel and may be contacted directly,
although the agency may have internal policies that prohibit the caseworker
from speaking to a parent’s attorney.
The attorney also should consider filing a motion to dismiss all or some of
the neglect charges, especially those related to the domestic violence. Although
only the Court of Appeals decision in Nicholson is binding on state courts, the
federal Nicholson decision also contains an excellent discussion of the issues at
hand in child welfare cases involving domestic violence. The attorney also
should consider filing a motion under the Family Court Act on the grounds that
the court’s “aid is not required on the record before it.” 41 Since the intent and
purpose of the Family Court Act is not to punish but rather “to help protect
children,” 42 it follows that if the child is safe there is no need to expend judicial
resources on the family.
The attorney also should consider whether to seek appointment of a social
worker for the mother if she is indigent to assist her in navigating the social
services systems with which she comes in contact and to assist the attorney in
assessing the issues in the case. 43 If appropriate, the social worker also may be a
fact witness at trial.

Representing Domestic Violence Victims in Child Welfare Cases 93
The attorney should be creative in locating expert witnesses: local domestic
violence agencies or shelters frequently employ or have access to dedicated
professionals who will serve as experts at no charge. The expert witness should
not necessarily interview the mother, but should review the pleadings, case record
and other documentary evidence and, when possible, be present for the mother’s
testimony. The expert witness can testify about domestic violence generally and
can assess whether the safety measures employed by the mother were reasonable
and rose to a statutory “minimum degree of care” as defined in Nicholson.
Settlement
A non-respondent mother has an interest in the settlement of a neglect case
against the abuser. The attorney should ensure that no settlement is offered or
agreed upon without input by the non-respondent mother. In particular, any
settlement should include an order of protection for the non-respondent mother
as custodial parent.
With regard to a respondent mother, when a child is safe and the abuser is no
longer in the picture, the attorney should urge CPS to consent to dismissal because
the aid of the court is no longer required44 or to withdraw the petition outright.
Again, the attorney must remind CPS that the purpose of the Family Court Act is
protection, not punishment. More likely, if there is a pre-trial settlement offer it
will take the form of an adjournment in contemplation of dismissal (ACD). With
an ACD, the mother makes no admission of neglect but agrees to submit to certain
terms including a period of supervision by CPS that is likely to range from three
months to the maximum permissible period of a year. During the period of the
ACD, the mother may be required to continue counseling, enforce an order of
protection or cooperate with other services. She may be required to testify against
the abuser. If the mother complies with the supervision, there will be no further
court appearances and, at the end of the ACD period, the petition will be dismissed.
If CPS alleges that she has not complied with the terms of the ACD, CPS may file
a violation petition, prove that the terms of the ACD were violated, and reinstate
the neglect case. While an ACD is not an ideal outcome, it may be a practical way
to avoid protracted litigation. As always, the decision is the mother’s to make.
CPS also may offer to accept what is called an “admission.” 45 With an
admission, the mother does not actually admit to neglect but rather agrees to
submit to the jurisdiction of the court and to the entry of a neglect finding. An
admission is appropriate where the facts alleged constitute neglect under existing

94 Jill M. Zuccardy
case law and the facts are likely to be proven. This settlement may be advisable
if there is a pending criminal case against the mother because she will not be
admitting facts that could be used against her in criminal court or if the attorney
believes that the evidence at trial may lead to a harsher disposition. An admission,
like an Adjournment in Contemplation of Dismissal, will cause the case to
progress to disposition more quickly.
Trial
The attorney should review carefully the rules of evidence in a child
protective proceeding as set forth in the statute. 46 In particular, although most
evidence at a fact-finding hearing must be competent, hearsay statements of a
child are admissible and may form the basis for an abuse or neglect finding if
they are corroborated.
As prosecutor, CPS presents its case first. It is imperative that the attorney
carefully assess each element of the case to ensure that CPS and the court do not
rest on improper presumptions, such as the presumption that the mother failed to
exercise a minimum degree of care merely because she did not separate from
the abuser or that a child suffered emotional harm from exposure to the domestic
violence. With respect to allegations of emotional harm in particular, it is
important to restrict the caseworker’s testimony to her observations unless she
otherwise qualifies as a mental health expert.
If CPS makes out a prima facie case, the burden shifts to the respondent to
defeat the charge of neglect. Usually, the respondent will testify along with any
other fact witnesses. It is imperative that a battered mother testify about her
help-seeking efforts and safety decisions. Where appropriate, the attorney should
present an expert witness to discuss the reasonableness of her behavior under
the circumstances existing at the time. The expert witness also should be used to
disprove impairment and causation, the other statutory requirements for a finding
of neglect. The expert can challenge the notion that all children are affected in
the same way from exposure to domestic violence and that all impairment is
attributable to exposure to the domestic violence. The expert can testify about the
mother’s imperfect options and, if impairment is established, the unlikelihood
that it was she who caused it. An attorney also may challenge assumptions about
impairment through reference to established literature. 47
The Law Guardian typically presents her case last. Oral closing statements are
the norm, although an attorney may request an opportunity to submit a written

Representing Domestic Violence Victims in Child Welfare Cases 95
summation if the issues are complicated or the law unsettled. After summation,
it is common for the court to rule from the bench. If the neglect petition is
dismissed, CPS no longer has the authority to be involved with the family. CPS
may try to continue its involvement in the family’s lives; however, if the neglect
case has been dismissed the mother is justified in refusing further interaction
with CPS. If a finding of neglect is made, the court will either proceed directly
to disposition or adjourn the case for a separate dispositional hearing.
Disposition
There are a range of dispositional options. The child may be returned to the
respondent parent, placed or continued in foster care, or released to the custody
of the non-respondent parent or another person. The court is likely to impose a
period of CPS supervision of up to a year and to set forth terms and conditions,
such as counseling and enforcement of an order of protection against the abuser.
For a non-respondent mother, a finding against the abuser may mean that CPS
remains in her child’s life, for example to arrange visitation. The non-respondent
mother must cooperate with CPS as the agency monitors the child’s relationship
with the abusive parent, but cannot herself be supervised or ordered to participate
in services.
Hearsay is admissible at disposition and evidence that the attorney may not
have been able to authenticate at trial may be offered. In addition, post-petition
developments should be explored when helpful. For an attorney representing a
non-respondent mother, disposition offers an opportunity to obtain custody,
supervised visitation and an order of protection against the abuser.
At every stage of a child protective proceeding involving domestic violence,
as in all child welfare cases, an attorney must consistently emphasize that the
child is, and will be, safe in the mother’s care. At the same time, the attorney
representing the battered mother in a child welfare case also must present
evidence, arguments and expert testimony about the series of complex choices
that a battered mother makes in trying to assure the safety of herself and her
child and about the reality of her life, her resources and her options.

96 Jill M. Zuccardy
Notes
Portions of this article are modified from Lauren Shapiro and Linda Holmes,
Representing Domestic Violence Victims in Neglect Proceedings, Lawyer’s
Manual on Domestic Violence: Representing the Victim, eds Julie A. Domonkos
and Jill Laurie Goodman (3d ed 2000) and the brief filed with the New York
State Court of Appeals in Nicholson v Scoppetta, 3 NY3d 357 (2004), prepared
by Jill Zuccardy, Carolyn Kubitschek and David Lansner.
1. 3 NY3d 357 (2004).
2. In re Lonell J., 242 AD2d 58 (1st Dept 1998).
3. Matter of Tali W., 299 AD2d 413 (2d Dept 2002); In re H/R Children,
302 AD2d 288 (1st Dept 2003); Matter of Dominique A., 307 AD2d 888
(1st Dept 2003). But see e.g. In re Deandre T., 253 AD2d 497 (2d Dept
1998); Matter of Michael G., 300 AD2d 1144 (4th Dept. 2002).
4. 3 NY3d 357 (2004).
5. The New York Court of Appeals chose to denominate the case Nicholson v
Scoppetta while the federal court’s decisions were issued under the names
Nicholson v Williams and In re Nicholson.
6. 203 F Supp 2d 153 (EDNY 2002).
7. In New York City, the preliminary injunction in Nicholson provided, among
other things, that ACS may not remove the child from the battered mother
solely or primarily because of domestic violence except under very limited
circumstances. In re Nicholson, 181 F Supp 2d 182 (EDNY 2002).
Although the injunction expired on December 31, 2004, ACS is bound by
the principles of law underlying the injunction and an attorney who suspects
that ACS has violated the law as set forth in Nicholson should contact class
counsel immediately.
8. E.g. Matter of Rebecca KK, 19 AD 3d 763 (3d Dept 2005); Matter of Eryck
N, 17 AD 3d 723 (3d Dept 2005); Matter of Daniel GG, 17 A.D.2d 722 (3d
Dept 2005); Matter of Ravern H, 15 A.D.2d 991 (4th Dept 2005). But see
Matter of Paul U, 12 AD 3d 969 (3d Dept 2005) (neglect finding upheld
because respondent placed child with father despite orders of protection).
9. E.g. Matter of Richard T, 12 AD 3d 986 (3d Dept 2004); Matter of Karissa
NN, 19 AD 3d 766 (3d Dept 2005); Matter of Michael WW, 20 AD 3d 609
(3d Dept 2005).

Representing Domestic Violence Victims in Child Welfare Cases 97
10. Magen, In the Best Interests of Battered Women: Reconceptualizing
Allegations of Failure to Protect, 4 Child Maltreatment No. 2, at 127
(May 1999).
11. Laws of 1996, ch 85 §§1, 8.
12. People v Alexander, 97 NY2d 482, 487 n 4 (2002).
13. SCR Intake Procedure Manual, § F at 53.
14. Social Services Law § 424(6).
15. See Social Services Law § 424(10).
16. Social Services Law § 412 (12).
17. Social Services Law § 422.
18. See In re H/R Children, 302 AD2d 288 (1st Dept 2003).
19. Matter of Marie B., 62 NY2d 352, 358 (1984).
20. See Ronald FF. v Cindy GG., 70 NY2d 141 (1987); Spence-Chapin
Adoption Service v Polk, 29 NY2d 196, 204 (1971).
21. Family Court Act § 1024; see also Tenenbaum v Williams, 193 F3d 581
(2d Cir 1999).
22. Family Court Act § 1027(a).
23. Family Court Act §§ 1022(a),1027(b)(i).
24. Family Court Act § 1017.
25. If the mother appears on the day that removal is requested rather than after
removal has occurred, the same hearing is held under Family Court Act
§ 1027 and is called a “1027 hearing.” A hearing on a removal application
prior to the filing of the petition is held under Family Court Act § 1022.
26. Nicholson v Scoppetta, 3 NY3d 357 (2004).
27. Bennett v Jeffreys, 40 NY2d 543, 550 (1976).
28. John B. v Niagara County Department of Social Services, 289 AD2d 1090,
1092 (4th Dept 2001).
29. Nicholson v Scoppetta, 3 NY3d 357 (2004).
30. Family Court Act § 1112(b).
31. Family Court Act § 1035 (d).

98 Jill M. Zuccardy
32. Pursuant to Family Court Act § 1056, the Family Court may issue an order
of protection against a person who is not the father of subject child, until
the child’s eighteenth birthday. Some courts also have permitted or upheld
orders of that duration even if the respondent is the biological father. See
Matter of A.G., 253 AD2d 318 (1st Dept 1999); Matter of Victoria H.,
255 AD2d 442 (2d Dept 1998); Matter of CSS o/b/o Kanisha W., 233 AD2d
325 (2d Dept 1996).
33. Nicholson v Scoppetta, 3 NY3d 357 (2004).
34. Family Court Act § 1046(b)(i).
35. Family Court Act § 1012(f)(i)(B).
36. Family Court Act § 1012(h).
37. Nicholson v Scoppetta, 3 NY3d 357 (2004).
38. Family Court Act § 1012(h).
39. Nicholson v Scoppetta, 3 NY3d 357 (2004).
40. See In re H/R Children, 302 AD2d 288 (1st Dept 2003); Nicholson v
Williams, 203 F Supp 2d 153 (EDNY 2003).
41. Family Court Act § 1051(c).
42. Family Court Act § 1011.
43. County Law § 722-c.
44. Family Court Act § 1051(c).
45. Family Court Act § 1051(a).
46. Family Court Act § 1046.
47. The Greenbook, http://www.thegreenbook.info/documents/greenbook.pdf,
and the Minnesota Center Against Violence and Abuse,
http://www.mincava.umn.edu/, are excellent starting points.

This article is a practical guide for attorneys litigating custody cases in New
York State in which the client, typically the mother of the child or children,
is a victim of abuse and has fled either to or from New York. Specifically, this
article addresses several questions commonly asked by clients:
Can I leave New York with my children and, if so, what
happens if the abuser files a custody case in New York?
Can I file for custody in New York even though I recently
moved here from another state?
Could I or my abuser be charged with kidnapping if one of us
leaves with the child without the court’s permission? and
What do I do if he takes the child out of the country?
7
Moving On: UCCJEA, The Hague Convention,
and Relocation
by Liberty Aldrich and Lauren Shapiro
These are complicated areas of practice and each case has to be carefully
analyzed on its own particular facts. To help advocates begin that analysis,
the first part of this article, “Applicable Law,” provides a brief synopsis of
each of the critical applicable laws, including the the Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA), the Hague Convention and the
New York State Penal Code’s kidnapping statue. “Escaping Violence” addresses
some common scenarios and covers critical paternity issues and New York’s
relocation case law.

100 Liberty Aldrich and Lauren Shapiro
Applicable Law
New York State Custody Law/Uniform Child Custody Jurisdiction
and Enforcement Act 1
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
governs interstate custody cases. 2 New York’s Act is based on a model adopted
by the Uniform Commissioners in 1997. As of May 2004, 35 states had adopted
some form of the Act. 3
New York’s UCCJEA explicitly addresses domestic violence issues. While
considerably more complicated in practice, the Act states that its legislative
intent is to improve protections for abused parents and children. It states that the
Act is intended:
to provide an effective mechanism to obtain and enforce orders
of custody and visitation across state lines and to do so in a
manner that ensures that the safety of the children is paramount
and that victims of domestic violence and child abuse are
protected. It is further the intent of the legislature that this article
be construed so as to ensure that custody and visitation by
perpetrators of domestic violence or homicide of a parent, legal
custodian, legal guardian, sibling, half-sibling or step sibling of
a child is restricted. 4
Since the UCCJEA is central to understanding your clients’ options in
interstate custody cases, the most important provisions are outlined here as a
preface to a fuller discussion on legal strategies for victims fleeing domestic
violence. In becoming more familiar with this area of the law, attorneys should
also review the UCCJEA model petitions and orders that were developed by the
New York State Office of Court Administration (OCA) and are posted on the
OCA website. 5 The National Center on Full Faith and Credit of the
Pennsylvania Coalition Against Domestic Violence is an excellent resource on
interstate custody issues. 6
Bases for New York’s Jurisdiction: Initial Custody Proceeding7 The central issue in interstate custody cases is: which court should decide?
The UCCJEA answers that the court in the child’s “home state” has jurisdiction
to decide custody issues. New York’s UCCJEA (and that of the other states that
have adopted the model code’s formulation) defines the term “home state” as the
state where the child lived for six consecutive months before a custody petition

Moving On: UCCJEA, The Hague Convention, and Relocation 101
was filed. There can only be one home state, so if the child moved out of New
York 5.5 months ago, but lived here for six consecutive months before that, then
New York is the home state. The UCCJEA and comments repeatedly emphasize
that in initial custody determinations, i.e., cases in which there has never been a
custody order from a court, the home state determination is controlling.
But what if the child has moved around so much that there is no clear home
state? What if the child had been overseas prior to the court filing? What if the
child had lived in another state until 5.5 months ago but his entire extended
family is in New York and has always been in New York? The UCCJEA
recognizes these possibilities. If no state “claims” this family, then even if New
York cannot technically qualify as the home state, it may still have jurisdiction
to make the initial custody determination. In these cases, the court will consider,
first, whether another state can or is claiming to be the home state. If not, then
the court will ask whether the child and at least one parent have “significant
connections” with New York and substantial evidence is available in this state
concerning the child’s care, protection, training and personal relationships. If
another court clearly has “home state” priority but declines to exercise it
because it determines that New York is more appropriate, then New York can
accept jurisdiction. 8
Continuing Jurisdiction9 The UCCJEA helps clarify not only which court should make the initial
custody determination, but also which state should hear any modifications to an
initial custody determination. Essentially, the UCCJEA states that the court that
issued the initial custody decision gets a right of first refusal over the case
regardless of how long ago the order was entered: if that court, whether it is a
New York Court or another state, decides that it is no longer the appropriate
forum to hear the case because one or both the parents and the child no longer
live there, then another state is free to modify the order, but, in general, courts
will want to retain jurisdiction over their own orders. In Vernon v Vernon, 10 for
example, the Court of Appeals held that New York retained continuing
jurisdiction over modifications of a New York divorce custody judgment even
though the mother and child had been living in Wyoming for ten years. This
heavily-weighted deference to the original court can prove very problematic for
domestic violence victims who are seeking protection in a new jurisdiction.
Temporary Emergency Jurisdiction11 UCCJEA’s provision on temporary emergency jurisdiction is one of the
major innovations of the UCCJEA and key to litigating interstate custody cases
that involve domestic violence. The UCCJEA, as opposed to its predecessor, the

102 Liberty Aldrich and Lauren Shapiro
UCCJA, took a step forward in providing safety for domestic violence victims
by clarifying that judges in New York may assert temporary emergency
jurisdiction not only when there is a risk to the child but also when there is a
risk to the mother. Specifically, it states that the court may take jurisdiction if
the child has been abandoned or jurisdiction is necessary to protect the child, a
sibling or parent of the child.
While this is a big plus for domestic violence victims, the UCCJEA is clear
that while the New York court may assert jurisdiction and issue a custody order,
it is only temporary. The jurisdiction and any order last only until an order is
obtained from the state having appropriate home state jurisdiction. If the New
York court is informed that a custody proceeding has been filed in another state,
as attorneys are required to do, the court must “immediately communicate with
the other court” about which state should take the case. What happens if there is
no other case? If a New York court issues a temporary custody order, that
determination may become final if the temporary custody order so provides
and this state becomes the child’s home state or the other state declines
jurisdiction. 12 The order must specify a period that the court considers adequate
to allow the person to obtain an order from the state having jurisdiction. 13 If a
child is in imminent risk of harm, then the order shall remain in effect until a
court having jurisdiction has taken steps to insure the child’s protection.
Inconvenient Forum14 Even if it has home state jurisdiction, a court in New York may decline to
exercise jurisdiction if it determines that it is an inconvenient forum and that a
court of another state is a more appropriate forum. In making this determination,
the court considers various statutory factors, including:
whether domestic violence or mistreatment or abuse of a child
or sibling has occurred and is likely to continue in the future;
which state could best protect the parties and the child;
the length of time the child has resided outside the state;
the distance between the two courts;
the relative financial circumstances of the parties;
agreements regarding jurisdiction;
the nature and location of evidence and witnesses;
the ability of the court of each state to decide the issue
expeditiously and the procedures necessary to present the
evidence; and

Moving On: UCCJEA, The Hague Convention, and Relocation 103
the familiarity of the court of each state with the facts and
issues in the pending litigation.
If the New York court decides it is an inconvenient forum and another
forum is more appropriate, the court can stay the proceeding on the condition
that a child custody proceeding is started promptly in another state. 15
Communication Between Courts16 The New York court may communicate with a court in another state about
jurisdiction. This is generally done through a telephone conference with the two
judges. The court may allow the parties to participate in the communication. If
not, the parties must be given the opportunity to present facts and arguments
before a decision is made. Most importantly, a record must be made of the
communication, and the parties have a right to the record.
Modification of Custody Orders17 Generally, a court order of custody or visitation from another state may only
be modified by that other state if neither the child nor the parents live there.
New York also may modify a custody order from another state if New York has
either home state or significant connection jurisdiction and the state that issued
the order decides that it no longer has jurisdiction or that New York would be a
more convenient forum.
Unclean Hands18 New York’s UCCJEA directs courts to decline jurisdiction if the parent
trying to invoke jurisdiction has “engaged in unjustifiable conduct,” but it
protects domestic violence victims who flee with a child. The statute says that a
removal of the child from the jurisdiction should not be considered as a factor
weighing against the petitioner, “if there is evidence that the taking or retention
... was to protect the petitioner from domestic violence ...” 19 This is consistent
with the model UCCJEA, which states that “domestic violence victims should
not be charged with unjustifiable conduct for conduct that occurred in the process
of fleeing domestic violence, even if their conduct is technically illegal.” 20
Information to Be Submitted to Court 21
New York law requires each party in a custody proceeding to file, under
oath, certain information, including the child’s present address and the names
and addresses of the persons with whom the child has lived within the past five
years, but domestic violence victims may ask for confidentiality. If the person
seeking custody lives or has lived in a domestic violence shelter, the address
cannot be revealed and the law provides for the designation of an agent for
service of process.

104 Liberty Aldrich and Lauren Shapiro
Parental Kidnapping Prevention Act of 1980
The Parental Kidnapping Prevention Act (PKPA) 22 is a federal law passed
in 1980 in response to the problem of parents who flee a state jurisdiction to
avoid custody disputes. It establishes a national system for locating the parents
and children and national standards for deciding these disputes. One of the
principle reasons for enacting the UCCJEA was to conform New York law more
closely to the PKPA. Specifically, the UCCJEA reinforces the PKPA’s handling
of emergency jurisdiction and continuing jurisdiction. Now that New York has
enacted the UCCJEA, state and federal law are largely consistent.
The PKPA remains useful in interstate custody cases principally to resolve
conflicts with the minority of states that have not yet adopted the UCCJEA. The
PKPA was amended by the Federal Violence Against Women Act (2000), which
explicitly extended full faith and credit of orders of protection, including
custody orders within orders of protection, issued by other states, ensuring that
courts could not relitigate domestic violence findings.
Criminal Charges/Kidnapping and Custodial Interference
Many abusers threaten to bring criminal charges against their victims, and
many victims of domestic violence are concerned about the criminal
consequences of fleeing with their children. While such charges are rare and the
threats on the part of the abuser may be part of a pattern of control, it is
important to know and advise clients of the possible criminal consequences of
leaving the jurisdiction.
It is extremely unlikely that your client would be charged with kidnapping.
A person is guilty of kidnapping in the second degree when he or she abducts
another person, 23 but it is an affirmative defense to kidnapping that “the
defendant was a relative of the person abducted, and his sole purpose was to
assume control of such person.” 24
The charge of custodial interference is designed to fill the gap created by
this affirmative defense. It is possible, therefore, that litigants in a custody case
could face a criminal charge of custodial interference. Custodial interference in
the second degree, a class A misdemeanor, is established by showing that a
relative of a child under 16 acted with intent to hold that child permanently or
for a protracted period and knowingly without right took the child from his or
her lawful custodian. 25 Custodial interference in the first degree, a class E
felony, includes all elements of the second-degree offense plus the added
elements that the perpetrator acted with intent to remove the child from the state
and removed the child from the state or exposed the child to risk of harm. 26

Moving On: UCCJEA, The Hague Convention, and Relocation 105
One issue that arises is whether one can “knowingly without right” take a
child from his or her lawful custodian if there is no custody order and both
parents have rights to the child established through marriage or paternity.
Unfortunately, there is no clear answer to this question. Courts have given a
broad and flexible interpretation of what is sufficient to constitute a custody
order for the purposes of a charge of custodial interference. In People v Morel, 27
the Appellate Division upheld an indictment of custodial interference in the first
degree when the parties had agreed in open court that the mother was to have
exclusive physical custody of the child and that the terms of the stipulation had
made the mother the “lawful custodian.” 28 In People v Lawrow, 29 a trial court
refused to dismiss a charge of custodial interference in the second degree
although the defendant-parent had not been served with a custody order.
However, the court held that the State bears the burden to prove beyond a
reasonable doubt that the defendant had knowledge of the custody order even if
he had not been served.
Statues Governing International Issues
Custody cases frequently cross international borders. When they do, the
same issues that have dogged interstate cases cause substantial controversy in
international law:
When should a particular country take jurisdiction over a
custody case?
What should the court do to protect victims of abuse? and
When may one country modify the decision of another
country’s custody order?
UCCJEA
The UCCJEA explicitly authorizes New York Courts to analyze international
cases in the same way that it treats interstate cases. Section 75-d states that “a court
of this state shall treat a foreign country as if it were a state of the US for the
purpose of applying this article.” Indeed, New York courts have looked first to the
UCCJEA when considering international custody cases. Courts therefore ask the
same questions when determining international jurisdiction as they do in interstate
cases: Where has the child lived in the last six months? Is there an existing court
order? Is there an emergency that justifies asserting temporary jurisdiction?
Although the questions are the same, the application of the home state rule
can be even more problematic in international cases than in interstate cases and
the stakes can be even higher. Should the home state rule apply even if the child

106 Liberty Aldrich and Lauren Shapiro
or children were taken without the parent’s consent? Should New York courts
accept the home state priority for countries that routinely rule against women and
fail to take domestic violence into account? These questions and others frequently
arise where children are taken out of the country by the abusive parent.
There are several arguments that advocates can make in these cases. If the
children have been taken out of the country, advocates first need to persuade the
court that the foreign jurisdiction does not have “home state” priority. Advocates
may be able to argue that the absence is “temporary” and should not be included
within the six month time period necessary to establish home state priority in
the foreign jurisdiction. New York courts have looked to the “totality of the
circumstances” to determine whether or not the absence should be considered
temporary, 30 including the intent of the parties. 31
Additionally, advocates should be prepared to argue that the foreign
jurisdiction should not be deemed the home state because it does not provide
conventional human rights protections for women in litigation. Allowing a
country that simply will not credit women’s testimony to take jurisdiction would
circumvent established public policy. Additionally, if the children are living in
the foreign jurisdiction with someone other than a parent, i.e. the child’s
grandparents or anyone without a custody order, advocates should look to the
definition section of the UCCJEA to argue that that jurisdiction cannot be the
home state because a home state is one in which “the child lived with a parent
or a person acting as a parent for at least six consecutive months.” 32
If the children are in New York but there may be a foreign home state,
advocates should similarly argue that it is not in the children’s interest for New
York to defer to that jurisdiction if that jurisdiction has arguably waived its
claim. In Hector G. v Josefina P., 33 the Bronx Supreme Court based its decision
to assume jurisdiction and modify an existing custody order from the
Dominican Republic on the UCCJEA provisions concerning appropriate forum
and its concern for protecting victims of domestic abuse.
Hague Convention
Although New York courts will generally look to the UCCJEA to determine
jurisdiction, if your client has fled to New York from a country outside the
United States or is considering fleeing to another country with her children,
provisions of the Hague Convention on the Civil Aspects of Child Abduction
(Hague Convention) will also be relevant. 34 Additionally, the Hague Convention
is important if a mother fears the father of her children and will flee the United
States with the children or has fled. Of course, the Convention only applies to
countries that have ratified it, which many have not.

Moving On: UCCJEA, The Hague Convention, and Relocation 107
The Hague Convention was originally adopted by member nations of the
Hague Conference on Private International Law to address the growing problem
of international removal or retention of children by one of their parents. 35 The
United States signed the Convention in 1981 and ratified it in 1988.
Implementing legislation was enacted in the same year. 36
The Hague Convention creates a mechanism for expeditiously locating and
returning children who have been removed to a different country. The central
idea of the Convention is analogous to the UCCJEA. It holds that any child who
has been wrongfully removed from his or her country of habitual residence
should be returned to the habitual residence and to the person petitioning for
return. The concept of country of habitual residence — which is not defined in
the Convention itself but through judicial interpretation — is similar to that of
the home state. Removal or retention is defined as wrongful when it is in breach
of a parent’s custody rights under the law of the country of habitual residence. 37
There does not have to be a court order of custody for removal or retention to
interfere with the other parent’s custody rights and thus to be “wrongful” within
the meaning of the Convention.
All signatories to the Hague Convention must establish a Central Authority
responsible for locating children and assuring their return. The merits of any
custody dispute will then be determined in the country of habitual residence. In
the United States, the Central Authority is the State Department.
The Hague Convention offers some protection to abused mothers by
creating certain exceptions to the requirement that a wrongfully removed child
be returned. Article 13(b) provides that authorities in the state of refuge are not
bound to order the return of the child if “there is a grave risk that his or her
return would expose the child to physical or psychological harm or otherwise
place the child in an intolerable situation.”
Although domestic violence certainly creates a risk of physical or
psychological harm to the child (especially if violence has been directed against
the child as well as against the mother), you will need strong evidence to make
your case. The exception is narrowly construed and is not intended to be used as
a vehicle for litigating the best interests of the child. 38 The person who invokes
it has the burden of establishing the exception by clear and convincing
evidence39 — a higher standard than the usual civil, preponderance-of-theevidence
standard of proof. The risk must be a serious one and the harm must be
“a great deal more than minimal.” 40 Even if the exception applies, the United
States court only has the discretion to order return of the child; it is not required
to do so by the terms of the treaty.

108 Liberty Aldrich and Lauren Shapiro
Courts in New York and other states have applied the “grave risk” exception
based on evidence of domestic violence. In In Re Rodriguez, 41 there was
evidence of physical and psychological abuse of one of the two children and of
the mother by the father; a psychologist testified that both children and the
mother suffered from Post Traumatic Stress Disorder as a result of the father’s
actions. In Blondin v Dubois42 the father frequently hit and threatened to kill the
mother and one of the two children. In this case, too, there was expert testimony
that both children suffered from psychological trauma and would be further
traumatized if returned to France, the country from which the mother had fled.
In Walsh v Walsh43 the First Circuit Court of Appeals went even further and
held that evidence of spousal abuse was enough to trigger Article 13(b)’s grave
risk exception, even without taking into consideration evidence that violence
had been directed at the children, because the father had “demonstrated an
uncontrollably violent temper.” According to the court, the social science
literature indicated that “serial spouse abusers are also likely to be child
abusers,” and the court added that “both state and federal law have recognized
that children are at increased risk of physical and psychological injury
themselves when they are in contact with a spousal abuser.” 44 The court stated
that it was fundamental error for the district court to discount “the grave risk of
physical and psychological harm to children in cases of spousal abuse.” 45
International Parental Kidnaping Act
The rights of a client with children fleeing an abuser or a client fearing
abduction of her children may also be affected by the federal international
Parental Kidnapping Act. This law makes it a crime to remove a child from the
US or retain a child outside the US with the intent to obstruct the lawful exercise
of parental rights. Violators are subject to a fine and imprisonment up to three
years. A parent fleeing an incident or pattern of domestic violence, however,
may use the abuse as an affirmative defense to prosecution under this statute.
Escaping Violence: What to Consider
When Advising Your Client
In New York State, courts assume, absent evidence to the contrary, that it is
in the child’s best interest to have a close relationship with both parents;
therefore, relocating any distance from the other parent is generally discouraged.
Although courts are obligated to consider proven domestic violence, you will
find that this de facto presumption against relocation pervades New York

Moving On: UCCJEA, The Hague Convention, and Relocation 109
practice. This section is intended to help advocates for domestic violence
victims negotiate these realities.
What to Consider if Your Client Wants to Leave New York
To protect your client’s safety, it may be tempting to advise her just to leave
with the children even without a court order. If your client is considering this
option, the first thing you should determine is the father’s legal status and
whether there are any pending cases or prior court orders.
Has Paternity Been Established?
Whether paternity has been established is an important factor for victims to
consider in deciding whether to seek a court order to relocate before leaving the
jurisdiction. If paternity has been established, then the father has a right to seek
custody and visitation of the children and the mother probably should not leave
the jurisdiction without seeking a court order. There is less risk in leaving
without a court order when paternity has not been established, but it is still not
an easy decision. Although staying in the jurisdiction to obtain an order must
always be weighed against dangers, before advising your client that she can
freely leave, you should consider: the severity of the domestic violence, the age
of the child, the nature of the relationship between the father and the child, and
the amount of their contact. The closer and longer the relationship between the
abuser — even if he is not legally the children’s father — with the children, the
greater the risk of leaving without a court order. In such a case, a court would be
more likely to require the victim’s return to New York. Keep in mind that even
an unacknowledged father may file for paternity and custody or visitation. If he
does this, your client still may have to come back to the jurisdiction.
Some clients may want the certainty of a custody order even though the
father has not established paternity. Some clients may believe that the father will
hunt them down and that they will need a custody order in hand. If a client
decides she will not feel safe without the order and paternity has not been
established, she will have to serve paternity and custody papers on the father. In
general, it is advisable to obtain a court order where possible.
How Do I Know if Paternity Has Been Established?
Clients are often not sure whether or not paternity has been legally
established. Paternity can be established in three ways: through marriage, an
order of filiation, or a validly executed acknowledgment of paternity signed
after July 1, 1993.

110 Liberty Aldrich and Lauren Shapiro
Marriage: Children born to a marriage are presumed to be the children of
the marriage. 46 If your client is married to the child’s father, then he has an
equal right to custody of the child and no proof of paternity is required for him
to seek visitation or custody. A child’s birth father establishes paternity if he
marries the mother, even after the birth of the child. If your client was married
to someone other than the father at the time of the child’s birth, the husband at
the time of the birth is presumed to be the father of the child. Only a court order
can overcome this presumption. The husband would have the right to seek
custody, and the mother would have to prove he is not the father. The biological
father would have to file for and prove paternity.
Order of Filiation: Either parent can file a petition in court to determine
paternity. 47 A paternity petition can be filed in New York State if the mother,
child, or putative father resides here, even if the child was not born in New York
State. 48 Once paternity has been established, the court will enter an “order of
filiation.” If your client is or was ever on welfare, an order of filiation may have
been entered without your client’s knowledge because the Department of Social
Services establishes paternity when filing for child support on behalf of the
mother. Also, if your client is receiving child support pursuant to a court order,
paternity has probably been established.
Acknowledgment of Paternity: An Acknowledgment of Paternity is signed
in the hospital after the birth of a child and has the same force and effect as an
order of filiation. 49 Your client may not remember whether an acknowledgment
of paternity was signed. If the child was born after 1995, if the father was at the
hospital during or shortly after the birth, and if his name is on the birth
certificate, he probably signed an acknowledgment of paternity.
Paternity Has Been Established But There is No Court Order
Concerning Custody
Although courts often find that domestic violence is a legitimate reason for
taking children from the jurisdiction, domestic violence victims should be
cautious about leaving New York if paternity has been established even if there
is no custody or visitation order. The father could file a custody or visitation
petition in New York even after a victim leaves the jurisdiction, and if he files
within six months New York will almost certainly have home state jurisdiction.
If she leaves without the father’s consent and New York is the child’s home
state, the father may be able to obtain a writ of habeas corpus directing that she
return the child to New York immediately. He will have a strong case for a writ
if the parties were living together with the children prior to her departure or he
was regularly visiting with the child.

Moving On: UCCJEA, The Hague Convention, and Relocation 111
If the father obtains a writ, even if he is an abuser, your client will be
required to return to New York, but she will have an opportunity to be heard.
You should be prepared to argue that she did not “wrongfully” deny him access
to the child and that her conduct was not “unjustifiable.” 50 You should document
the domestic violence and establish that leaving was important for her and the
child’s safety. Sheridan v Sheridan51 may be a helpful case. Although decided
before the UCCJEA was passed, it held that there were exceptional
circumstances, including domestic violence and economic necessity, warranting
relocation of the mother with her child to Puerto Rico even though it was
undisputed that the move would clearly deprive the father of “regular and
meaningful visitation.” 52
If the father files for custody in New York after she flees but within six
months, the first issue is whether your client wants to respond only in New York
or whether she also wants to file for temporary emergency jurisdiction in her
new location and ask that New York decline to exercise its home state priority.
In most cases, your client would like to litigate in the refuge state for reasons of
safety, travel, and cost considerations, but arguing that New York decline
jurisdiction over the final custody decision will probably be a very tough sell.
Additionally, it may be in your client’s interest to litigate in New York where the
law supports domestic violence victims and where she has an attorney.
In either case, you should ask the New York court to allow your client to
retain temporary custody and to relocate immediately to her new location. Your
success will largely depend on whether the court finds that the allegations of
domestic violence are credible and that it is in the child’s best interest to remain
where he or she is currently living. New York courts have awarded custody to
domestic violence victims in such cases, even if they have relocated without a
court order. 53
Although you may have an uphill battle, you can ask New York to decline
to exercise its home state jurisdiction; the court can do so under the inconvenient
forum provision of the UCCJEA. 54 The UCCJEA specifically delineates
domestic violence as a factor for the court to consider in deciding whether or
not to exercise jurisdiction. 55 Although decided under the UCCJA, the court in
Swain v Vogt56 declined to exercise jurisdiction when the mother was forced to
flee New York due to violence. The Court held that “[i]t is axiomatic that
Family Court, having not yet made a decree concerning custody in this case,
may decline to exercise its jurisdiction if it finds that it is an inconvenient forum
to make a custody determination.” 57

112 Liberty Aldrich and Lauren Shapiro
If, on the other hand, your client has decided to seek a court order allowing
her to relocate before leaving New York, she should file a petition for custody and
permission to relocate. As explained more fully in the discussion of New York’s
relocation case law below, you should include as many supporting affidavits and
exhibits documenting the abuse and reasons for relocation as possible.
If your client already has been served with a custody petition, she is required
to appear in court, and the court could issue a warrant if she does not appear.
You should read the petition carefully along with any court orders to determine
whether the court has directed your client to remain in the jurisdiction until the
court appearance. If not, she may leave until the court date but should be
prepared to return.
Relocation Cases: New York State Order of Custody/
Visitation in Place
Many domestic violence victims feel trapped by the law into staying where
their abusers can harass them. Domestic violence often does not cease once the
parties have separated and an order of custody and visitation has been issued.
In many cases, the violence escalates, and harassment during pick-ups and dropoffs
for visitation is common. Relocation law and the penalties for failing to
follow court orders were not designed to protect women and children at risk of
violence, yet courts expect their orders to be followed and a victim of abuse
who does not follow them risks a finding of contempt, loss of custody, or even
criminal penalties. Additionally, interstate custody laws were designed to
prevent a parent from moving to a new state and relitigating issues even if the
move was intended to escape abuse. 58
If a court order granting your client custody already exists, it is generally
necessary to file a petition to modify the visitation order and to seek permission
to relocate prior to leaving the state. You should review the original order
carefully. Should your client fail to seek the court’s approval, she may be
violating the court order and could be found in contempt. If there is a visitation
order in place, you should strongly advise your client to seek court permission
before relocating.
Relocation cases are governed by case law, which applies to both inter and
intra-state cases. In considering a petition for relocation, the court must determine
whether relocation is in the best interest of the child under the totality of the
circumstances. Tropea v Tropea, 59 the Court of Appeals’ seminal relocation case,
held that the court should consider, among other factors, the existing
relationship between the children and the non-custodial parent, any potential
damage to that relationship if relocation is allowed, the reasons given for

Moving On: UCCJEA, The Hague Convention, and Relocation 113
relocation, and whether a change in custody would be in the child’s best interest.
A history and/or threat of domestic violence has a bearing on all of these factors.
Domestic violence influences the nature and quality of the relationship between
the abuser and the children; it is also a compelling reason for seeking to relocate.
New York courts have allowed a parent to relocate when the parent is a
victim of domestic violence. In Bodrato v Biggs, 60 the father’s physical assault
on the petitioner was a factor in the court’s decision to modify a joint custody
order, grant sole legal and physical custody to petitioner and allow her to
relocate to New Jersey with the parties’ two children. In Spencer v Small, 61 the
lower court’s decision to grant sole custody to the mother, enabling her to move
from New York to Florida, was upheld in light of the father’s history of
domestic violence against the mother. In Hilton v Hilton, 62 a court’s decision to
award custody of the parties’ children to the mother despite her relocation to a
new home 400 miles from the father’s residence was upheld because the father
had a history of acts and threats of violence against the mother. 63
In deciding relocation cases, courts have also acknowledged the negative
impact on the children resulting from continued or exacerbated hostility
between the custodial and non-custodial parent. 64
Because relocation cases involve the best interests of the children, relocation
petitions should include more than information about the domestic violence in
the family. Courts also consider the potential economic benefits to the parent
and children in relocating. 65 Thus, economic factors should be highlighted in the
petition. The more specific your client can be about her plans in the new
jurisdiction, the better; a general intention to move is not sufficient. 66 Moving for
family support is also an important factor in relocation cases, so if your client is
moving to be closer to her family that should be fully presented to the court. 67
Obtaining an order of relocation may be especially challenging if your
client wants the father to have limited or supervised visitation. Courts generally
order longer visitation periods if the custodial parent is allowed to relocate, and
visitation for more than one hour is not generally available from supervised
visitation programs. One solution is to find a family member who is willing to
supervise extended visits. Of course, if the domestic violence is severe, you may
also argue that any visitation is unwarranted until, at least, the abuser completes
a parenting and/or domestic violence course — and maybe never.
Seeking Refuge in New York: Emergency Jurisdiction
If you are representing a domestic violence victim who has moved here
from another state, you will find that the legal issues are similar to those for

114 Liberty Aldrich and Lauren Shapiro
clients who want to leave New York. In particular, you need to know whether
the parties are married or whether paternity has been established to help decide
whether or not to file a custody case in New York immediately or whether you
should wait.
An Existing Custody Order From Another State
The first issue is whether a custody order is already in place from the
original state, the terms of such order, and whether the order was on consent,
after trial, or on default. A New York court may not modify an existing out-ofstate
custody order unless the court that rendered the decree declines to assume
jurisdiction and New York has a significant connection to the case. 68 However,
even if New York does not have jurisdiction (or while a determination is being
made regarding jurisdiction) and there is a custody or visitation order from
another state, New York can assert temporary emergency jurisdiction if
necessary to protect the parent. 69 In Hector G. v Josefina P., 70 the Court
“assume[d] temporary emergency in order to investigate further the domestic
violence allegations.” After asserting temporary jurisdiction, the court found that
it had jurisdiction to modify the final custody order because the original court
declined jurisdiction and the children and the mother had “significant
connections” with New York. Specifically, the court noted that the children had
lived in New York for a year, went to school here, and had a pediatrician here.
In addition, a report had already been completed by the Administration for
Children’s Service, the local child protective agency. The court decided to
exercise jurisdiction since New York was the more convenient forum.
Any court may punish a party who willfully violates an existing court order,
and most courts will punish a parent who removes a child from the jurisdiction
when the parent was specifically prohibited from doing so. Courts can also hold
a party in contempt for failing to respond to other orders of the court, such as a
subpoena, an order to appear in another state’s court, or an order to produce the
child. If the court finds after a hearing that your client willfully violated the
order, she may be held in contempt of court. In more extreme situations, your
client may face criminal sanctions for custodial interference. You must argue
that she fled for her safety and not to relitigate an unfavorable custody or
visitation decision. Fleeing an incident or pattern of domestic violence is an
affirmative defense to international kidnapping; 71 you should argue that while
this defense was enacted for international crimes, it is federal law and the
rationale behind the defense should be applied to interstate crimes as well.

Moving On: UCCJEA, The Hague Convention, and Relocation 115
No Court Order
When no prior court order exists, the non-custodial parent has parental rights
to the child, and your client has fled to New York, she has several different options.
Should she file a custody proceeding?
The first strategic issue facing your client is whether to file a custody case in
New York. In some instances, initiating a proceeding may not be in your client’s
best interest. While a domestic violence victim may be able to keep her
residence confidential, the court papers will necessarily reveal the state in which
your client is located. Also, in order for any court case to proceed, your client
will be required to serve the other party, which can be difficult in another state.
(You can contact the sheriff or marshal in the county where the other parent
lives.) Sometimes a parent who in the past has expressed no interest in the
children, in the face of being served with court papers, may show a new or
renewed interest in the children. He may file for custody in the state your client
fled, forcing her to return to litigate the case there. Therefore, it may be a better
option to wait to file a petition for the requisite six months and allow New York
to become the home state. While filing for an emergency temporary order of
custody may give your client the security of having a custody order in hand,
even if only temporarily, it is unlikely that the final custody order will be
decided in New York and you must therefore be prepared to have the case
litigated in her original jurisdiction.
If you do decide to go to court immediately for a temporary order, you will
need to prove the existence of the domestic violence and show its harmful effect
on the children. From the outset you should assess the seriousness of the abuse,
its duration, and the evidence of the abuse you can introduce in court. Discuss
with your client whether she already has any police reports, medical records,
photos, witnesses, or orders of protection. She may want to file a police report
in New York as soon as possible. You should obtain certified copies of any
orders from the other state.
If the parent who was left behind files for custody in the home state, you
should try to find an attorney in that state to represent your client. Once the
proceeding is filed in that state your client should file a custody proceeding in
New York. You should suggest that the other attorney argue that the court
decline jurisdiction on the grounds that the forum is inconvenient. If there are
two proceedings pending, the courts should communicate and decide which
court should hear the case, but again, it is likely that the ultimate custody
decision will be made by the home state.

116 Liberty Aldrich and Lauren Shapiro
At the hearing, you should ask the court to appoint a law guardian and to
order an investigation. Consider using an expert witness to establish imminent
risk and asking the court to appoint a forensic expert. You can also ask the court
of the state in which the custodial parent resides to prepare a home study for the
hearing. If a case is pending in the home state, the batterer may seek a dismissal
or stay of the action in New York. In response you can argue that the home state
should decline jurisdiction because defending the action in that state would put
the parent and child at risk and that New York is the more convenient forum.
Conclusion
Interstate cases can take a long time to make their way through the courts,
and, in the meantime, hinder your client’s ability to protect herself and her
children from continued abuse. Although the UCCJEA and other statutes
provide advocates with some tools to argue on behalf of domestic violence
victims, overcoming the presumption in favor of home state jurisdiction can be
difficult. If an interstate case is commenced, the jurisdictional argument can end
up being the key to winning. The choice between litigating long-distance or
returning to an unsafe jurisdiction can overwhelm even the most persistent
parent, but continued pressure and the threat of a court order can succeed in
returning improperly removed children. Similarly, careful advocacy and safety
planning can help support your clients’ efforts to find refuge in a new
jurisdiction.

Notes
Moving On: UCCJEA, The Hague Convention, and Relocation 117
1. New York’s law is codified in the Domestic Relations Law, art 5-A,
§ 75 et seq. (amended 2004).
2. The UCCJEA has been interpreted to apply to cases in which the other
jurisdiction is a different country, not just another state; see Hector v Josefina
P., 2 Misc 3d 801 (Sup Ct, Bronx County, 2003).
3. See http://www.nccus1.org for updates.
4. Domestic Relations Law § 75.
5. http://www.courts.state.ny.us/forms/family_court.
6. The National Center on Full Faith and Credit of the Pennsylvania Coalition
Against Domestic Violence can be reached at (800) 256-5883.
7. Domestic Relations Law § 67(1).
8. This is the mirror to Domestic Relations Law § 76-f, which gives New York
courts a basis to waive home state jurisdiction where the court determines
that the home state is inappropriate.
9. Domestic Relations Law §§ 76-a and 76-b.
10. 100 NY2d 960 (2003).
11. Domestic Relations Law § 76-c(1).
12. Domestic Relations Law § 76-c(2). See e.g. Hector G. v Josefina P.,
2 Misc 3d 801 (Sup Ct, Bronx County, 2003).
13. Domestic Relations Law § 76-c(3).
14. Domestic Relations Law § 76-f.
15. Domestic Relations Law § 76-f(3); although not decided by a New York
court, Stoneman v Drollinger, 314 Mont 139 (2003), offers a clear
explanation of the UCCJEA’s application in inconvenient forum cases
involving domestic violence.
16. Domestic Relations Law § 75-i.
17. Domestic Relations Law § 76-b.
18. Domestic Relations Law § 76-g.
19. Domestic Relations Law § 76-g(4).

118 Liberty Aldrich and Lauren Shapiro
20. See Solving the Puzzle: Applying Jurisdictional Statutes in Interstate
Custody Cases to Protect Survivors and her Children, National Center on
Full Faith and Credit, at 11.
21. Domestic Relations Law § 76-h.
22. 28 USC § 1738A (1980).
23. Penal Law § 135.20.
24. Id. § 135.30; But see People v Dianna Brown, 264 AD2d 12, which denied
a biological mother whose parental rights had been terminated the right to
assert this defense.
25. Penal Law § 135.45.
26. Penal Law § 135.50.
27. 164 AD2d 610 (2d Dept 1992).
28. See Penal Law 2d § 134.45(1).
29. 112 Misc 2d 494, 495 (District Ct, Nassau County, 1982).
30. Koons v Koons 161 Misc 2d 842 (1994).
31. In re Marriage of Howard, 291 Ill App3d 675 (1997).
32. See Domestic Relations Law § 75-a(7). For a copy of a model brief outlining
these arguments, contact Sanctuary for Families at (212) 349-6009, ext. 252.
33. 2 Misc 3d 801 (Sup Ct, Bronx County, 2003).
34. Opened for signature Oct. 25, 1980, 19 ILM 1501 (1980).
35. Gloria DeHart and William M. Hilton, International Enforcement of Child
Custody, in Child Custody and Visitation: Law and Practice (Sandra
Morgan Little, ed, LexisNexis (looseleaf), 2003) § 32.02(1)(a).
36. The legislation is codified at 42 USC § 11601 et seq. and known as the
International Child Abduction Remedies Act (ICARA).
37. Hague Convention art 3
38. DeHart and Hilton, supra note 2 at § 32.02(3)(d).
39. 42 USC § 11603(e)(2)(A).
40. Walsh v Walsh, 221 F3d 204, 218 (1st Cir 2000).
41. 33 F Supp 2d 456 (D Md 1999).

Moving On: UCCJEA, The Hague Convention, and Relocation 119
42. 78 F Supp 2d 283 (SDNY 2000), affd 283 F3d 153 (2d Cir 2001).
43. Walsh, supra note 7; see also Elyashiv v Elyashiv, case no 03-CV-1491,
filed Jan. 28, 2005 (EDNY), also finding a “grave-risk” exception for a
battered mother and her children pursuant to Art. 13 of the Hague
Convention.
44. Id. at 220.
45. Id. at 219.
46. Domestic Relations Law § 24.
47. Family Court Act § 522.
48. Family Court Act § 521.
49. Public Health Law § 4135-b.
50. Domestic Relations Law § 76-g.
51. 204 AD2d 777 (3d Dept 1994).
52. Id. at 773.
53. See e.g. Jeanne E.M. v Lindey M.M., 189 Misc 2d 669 (Family Ct, Albany
County, 2001).
54. Domestic Relations Law § 76-g.
55. See e.g. Jacoby v Carter, 167 AD2d786 (3d Dept 1990); Sheridan v
Sheridan, supra.
56. 206 AD2d 703 (3rd Dept 1994).
57. Id. at 781.
58. Whether she can make a successful claim for emergency jurisdiction in her
refuge state will depend on the law in that state.
59. See e.g. Tropea, supra, and F.M. v P.M., NYLJ, Aug. 8, 1998 at 29, col 2
(Sup Ct, Bronx County).
60. 274 AD2d 694 (3d Dept 2000).
61. 263 AD2d 783 (3d Dept 1999).
62. 244 AD2d 902 (4th Dept 1997).
63. Courts have found domestic violence to be a sufficient reason for allowing
relocation even under the more stringent pre-Tropea “extraordinary
circumstances” standard. In McGee v McGee, 180 Misc 2d 575 (Sup Ct,

120 Liberty Aldrich and Lauren Shapiro
Suffolk County, 1999), a mother was permitted to relocate from New York
to Pennsylvania, in part, because of the father’s physically violent and
intimidating behavior toward her. In Sheridan v Sheridan, 204 AD2d 711
(3d Dept 1994), the court affirmed the lower court’s order of custody even
though the mother had relocated to Puerto Rico without permission. In
Desmond v Desmond, 134 Misc 2d 62 (Family Ct, Dutchess County, 1986),
a trial court permitted a mother’s relocation to allow her to create a more
tranquil environment for herself and her children. Due to the father's
emotional, sexual and physical abuse of the mother, there was little hope that
the parties’ relationship could be “an umbrella of security necessary for
these children’s emotional peace.” Id.
64. See Tropea, 87 NY2d at 740; see also Spencer, 263 AD2d at 785; Lazarevic
v Fogelquist, 175 Misc 2d 343, 346 (Sup Ct, NY County, 1997).
65. See e.g. Miller v Pipia, 297 AD2d362 (2d Dept 2002).
66. See e.g. Matter of L.G. v A.H., NYLJ, Nov. 5, 1998, at 25, col 1 (Fam Ct,
Nassau County).
67. See e.g. Tropea, supra, and F.M. v P.M., NYLJ, Aug. 24, 1998, at 29, col 2
(Sup Ct, Bronx County).
68. Domestic Relations Law § 76-b.
69. Domestic Relations Law § 76-c(1).
70. 2 Misc 3d 801 (Sup Ct, Bronx County, 2003).
71. 18 USC § 1204.

The Uniform Child Custody
Jurisdiction and Enforcement Act [UCCJEA]
and Domestic Violence: A Case Study
In April 2002, New York became the 15th of now 48 states to adopt the new
Uniform Child Custody Jurisdiction and Enforcement Act [UCCJEA].
Replacing the prior statutory scheme known as the UCCJA (Uniform Child
Custody Jurisdiction Act), the UCCJEA is now codified at Article 5-A of the
Domestic Relations Law and contains important new provisions for victims of
domestic violence. While intended to discourage interstate kidnapping by a noncustodial
parent, the UCCJA did not distinguish between custodial interference
and instances in which a victim of domestic violence flees with her children in
order to secure safety from a batterer. With this new statutory scheme, the
drafters stated that:
It is the intent of the legislature in enacting this article to provide
an effective mechanism to obtain and enforce orders of custody
and visitation across state lines and to do so in a manner that
ensures that the safety of the children is paramount and that
victims of domestic violence and child abuse are protected. 1
The UCCJEA and Disputes of Foreign Origin
by Mary Rothwell Davis
Just six months after the UCCJEA took effect, the Bronx County Integrated
Domestic Violence (IDV) Court was presented with the first opportunity to
consider whether this statutory scheme permitted it to assume jurisdiction of an
ongoing custody matter involving allegations of domestic violence that had
originated in the Dominican Republic. 2 The IDV Court hears cases with both
criminal and family law matters involving allegations of domestic violence
within a family. In Hector G. v Josefina P., Mr. G. was arrested in the Bronx in
8

122 Mary Rothwell Davis
November 2002 and charged with threatening Ms. P., his ex-wife and the mother
of their twin sons. Because Mr. G. filed, in Bronx Family Court, a writ of habeas
corpus claiming that Ms. P. had interfered with his custodial rights pursuant to
default order of a Dominican court, both the criminal and family law cases were
transferred to the IDV Court to be heard by a single judge. Very shortly
thereafter, Ms. P. filed a petition for custody and a family offense petition, both
alleging that Mr. G. had subjected her to severe domestic violence.
For purposes of analysis, the Dominican Republic was determined to be the
equivalent of any other state. Because the Dominican Republic is not a signatory
to the Hague Convention on the Civil Aspects of International Child Abduction, 3
that law did not come into play. While the drafters spoke of the UCCJEA as
addressing custody disputes “across state lines,” in fact the Act is expressly made
applicable to foreign disputes as well, so long as the determination was made “in
substantial conformity with the jurisdictional standards of this article.” 4 Thus the
principles of the UCCJEA properly governed determination of this dispute —
even though the Dominican Republic was not similarly bound by a reciprocal act. 5
Defining the Home State
Because the overriding purpose of the UCCJEA is to eliminate jurisdictional
competition between courts in matters of child custody, jurisdictional priority is
always conferred to a child’s “home state,” and many of the Act’s provisions are
intended to assist a court in determining which jurisdiction is the “home state.” 6
A jurisdiction does not become a child’s “home state” unless the child has lived
in that state with a parent or “person acting as a parent” for at least six
consecutive months prior to commencement of the action. 7
In the Hector G. case, New York was not the “home state.” A final order of
custody from a court in the Dominican Republic had been affirmed on appeal
just weeks before Mr. G.’s arrest, and Ms. P. and the children had only just
arrived in New York State. The IDV court had to determine whether it could or
should assume jurisdiction of the matter at all or must simply refer the parties
back to the Dominican Republic court.
Temporary Emergency Jurisdiction
Different standards govern cases in which there is no prior custody decree 8
and those in which a court of another jurisdiction has already assumed
jurisdiction of the custody matter. 9 A court has much more latitude in cases
involving initial child custody determinations, as there is no competing
jurisdictional claim. 10 As a general rule, once a court has made a valid child

UCCJEA and Domestic Violence: A Case Study 123
custody determination, that court has “exclusive, continuing jurisdiction” over
any subsequent related matters, unless it decides that another jurisdiction would
be a more appropriate forum or the child and the child’s parents no longer
reside in that state. 11
The Hector G. case thus presented a more complicated scenario because
another jurisdiction had already issued a custody order and, presumably, might
claim “exclusive, continuing jurisdiction.” The question was whether New York
might nevertheless be able to take some constructive action upon the case. Here
the UCCJEA differs significantly from its predecessor, the UCCJA. The statute
permits a court to assume “temporary emergency jurisdiction” of a custody
matter if there are allegations of domestic violence. 12 The order issued remains in
effect until “an order is obtained from the other state within the period specified”
or, “where the child who is the subject of a child custody determination . . . is in
imminent risk of harm, . . . until a court of a state having jurisdiction under
sections seventy-six through seventy-six-b of this title has taken steps to assure
the protection of the child.” 13 If there is no prior or simultaneous custody
proceeding but New York is not the child’s “home state” under DRL §§ 76 –
76-b, the court may make any orders necessary and they may remain in effect
until the home state steps in or until New York becomes the home state. 14 Where,
as in the Bronx IDV case, there is a valid prior child custody order, New York
may issue a temporary order in order to enable the party seeking relief to apply
to the home state court, and the temporary order remains in effect until the home
state has taken sufficient steps to protect the child. 15
Pursuant to these provisions, the Bronx IDV court determined to keep the
case before it in order to resolve questions concerning the safety of the children
and their mother, given the new criminal charges pending against the father.
The court directed official translation of all Dominican Republic court
documents, and ordered the Administration for Children’s Services [ACS] to
interview all the parties. The report from ACS detailed an extensive, severe
history of domestic violence, on occasion requiring the mother’s hospitalization
for treatment of injuries. The children, now enrolled in New York City public
school, were described by their teacher as her “best” students, and had made a
good adjustment.
Contacting the Home Court
With a basis for “temporary emergency jurisdiction” now well established,
the Bronx IDV court was next obligated, by statute, to contact the home state
court in order to “resolve the emergency, protect the safety of the parties and the

124 Mary Rothwell Davis
child, and determine a period for the duration of the temporary order.” 16
Accordingly, the Bronx IDV court held a telephone conversation, which was
transcribed by a court stenographer, with the judge in the Dominican Republic
who had issued the original custody decree. DRL § 75-i requires that such
communications be recorded, and that the parties be given an opportunity to
participate or present facts and argument concerning jurisdiction. The end result
was that the Dominican court declined to reassert jurisdiction, allowing that
New York was the better forum upon the assumption that both parents were now
domiciled in New York. The court also stated that it understood the parties’
custody agreement to allow custody to revert to the mother once she was settled
in the United States.
Determining Residence
Although the father attempted to argue that he was still domiciled in the
Dominican Republic, the IDV court determined — based on the statements
that he had made to probation authorities when seeking release on his own
recognizance in the criminal matter — that the father had claimed in that
proceeding to be a businessman who had resided in New York City for the
previous two years. Demonstrating how an integrated court prevents parties
from presenting different faces to different courts, the IDV court declined to
credit the father’s subsequent contradiction of those assertions as part of his
bid to have jurisdiction remain in the Dominican Republic. Thus, the IDV
court could assume modification jurisdiction because “a court of this state or a
court of the other state determines that the child, [and] the child’s parents . . .
do not presently reside in the other state.” 17
The Bronx Court found additional, independently sufficient reasons why it
was appropriate to assume modification jurisdiction. The UCCJEA permits
assumption of jurisdiction if “the court of the other state determines it no longer
has exclusive, continuing jurisdiction.” 18 The Dominican judge had indicated
that, according to an original custody agreement, the parties intended that
custody revert to the mother once she settled in the United States, as she now
had, and the court gave its express consent to transfer of the matter to New
York. Notably, the determination that a child no longer has a “significant
connection” with the home state can only be made by the original court; another
court cannot determine that issue for it. 19 Thus it was only for the Dominican
court, and not New York, to come to that important conclusion. Either the
original or new court, however, may determine that the child and the child’s
parents do not presently reside in the original home state. 20

Safety Issues
UCCJEA and Domestic Violence: A Case Study 125
Even when the foreign court refuses to relinquish jurisdiction, a concerned
New York court can take significant steps to ensure that domestic violence is
addressed by the foreign court. In Matter of Noel D. v Gladys D., 21 the New
York court, deeply troubled by a default award of custody in Illinois to a parent
with an extensive history of mental instability and violence that was unknown to
the Illinois court, retained temporary emergency jurisdiction until such time as it
could be assured that Illinois would address the significant safety issues, even
though the Illinois court refused to give up continuing, exclusive jurisdiction.
Like the court in Noel D., the Bronx IDV court was presented with a default
order of custody granted without adequate knowledge on the part of the original
court about the history of domestic violence in the home. In both cases, the
courts had concerns about the capacity or willingness of the originating court to
protect the safety of the parties before it. The Noel D. court determined to hold
on to the case until the Illinois court could assure the safety of the mother and
child. The Bronx IDV court, in Hector G., examined whether the court in the
Dominican Republic would ever be in a position to protect this mother and her
children, since the UCCJEA permits a court to assume jurisdiction if foreign
proceedings do not conform to our basic jurisdictional standards. 22
It cited the Department of State Country Report on Human Rights Practices
for the Dominican Republic, 23 noting that the Dominican Republic had no laws
against domestic violence until 1997, that domestic violence was “widespread,”
affecting 40% of the country’s women and children, and that there were no
shelters for battered women there, as of March 2003. 24
Logistical Concerns and Determination of “Convenient Forum”
Whether there are sufficient resources for the family in the other jurisdiction
is a factor to be considered under the analysis of “convenient forum.” 25 Even
where a court can take jurisdiction — as when the originating judge agrees to it
— the new court may nevertheless consider whether it should take jurisdiction,
based on assessment of whether it is an “inconvenient forum” and another
forum may be more appropriate. Here the court must consider multiple factors:
1. whether domestic violence or mistreatment or abuse of a child
or sibling has occurred and is likely to continue in the future
and which state could best protect the parties and the child;
2. the length of time the child has resided outside this state;

126 Mary Rothwell Davis
3. the distance between the court in this state and the state that
would assume jurisdiction;
4. the relative financial circumstances of the parties;
5. any agreement of the parties as to which state should assume
jurisdiction;
6. the nature and location of the evidence required to resolve the
pending litigation, including testimony of the child;
7. the ability of the court of each state to decide the issue
expeditiously and the procedures necessary to present the
evidence; and
8. the familiarity of the court of each state with the facts and
issues in the pending litigation. 26
While the difficulty of taking evidence in a particular jurisdiction is a factor to
be considered, the UCCJEA nevertheless contains multiple provisions intended to
make interstate litigation easier by including measures that can ease or eliminate
logistical concerns. One party may be required to bear the cost of transportation
for the other. 27 More innovatively, the UCCJEA sets forth procedure for “taking
testimony in another state, including testimony and deposition by telephone,
audiovisual means, or other electronic means before a designated court or at
another location in that state.” 28 The UCCJEA also allows courts of different
jurisdictions to cooperate fully in management of a custody matter. A court of one
state may request a court of another state to hold an evidentiary hearing, order a
person to produce evidence, or order an evaluation with respect to a child
involved in a pending proceeding; forward transcripts of proceedings; direct a
party to appear, with or without the child; and enter orders. 29 Thus even when a
jurisdictional ruling is disappointing to one’s client, application can still be made
to conduct significant parts of the litigation in the alternate jurisdiction.
Unjustifiable Conduct Exemption
Lastly, in the case before the Bronx IDV, the father alleged that the mother
had violated a Dominican court order by failing to return with the children after
an authorized visit, instead taking them to, and retaining them in, New York.
While the UCCJEA denies protection to a person who has engaged in
“unjustifiable conduct,” there is an express exemption for “any taking of the
child, or retention of the child after a visit or other temporary relinquishment of
physical custody, from the person who has legal custody, if there is evidence
that the taking or retention of the child was to protect the [party] from domestic

UCCJEA and Domestic Violence: A Case Study 127
violence or the child or sibling from mistreatment or abuse.” 30 Here, Ms. P.
could explain her conduct under this provision.
Conclusion
This brief overview is only that. The UCCJEA is a complicated statutory
scheme, replete with cross-references and multi-layered analyses that demand
careful study. A practitioner would do best to spend some time becoming familiar
with the overall structure of the Act, which is divided into three areas: Title I,
“General Provisions”; Title II, “Jurisdiction”; and Title III, “Enforcement.”
Because of the extensive interplay of the various provisions, it would be a
mistake to go forward with a UCCJEA application based only upon a partial
reading of the statutory scheme. While a particular provision may seem exactly
on point, and even dispositive, it will no doubt be subject to modification by
some other provision, such as “inconvenient forum” analysis. Thus any claim
must be assessed in light of the statutory scheme in its entirety.
Preservation of continuing and exclusive home state jurisdiction remains an
important purpose of the UCCJEA. Where there is no compelling reason to
upend that jurisdiction, and a parent still remains in the original jurisdiction, a
foreign court faced with a request for modification will most probably reject the
application, and a client’s chance of success is low. 31 If, however, both parents
and the child have left the original jurisdiction, a new jurisdiction will be much
more inclined to assert modification jurisdiction. 32
Another overriding goal of the UCCJEA is to prevent forum-shopping.
Forum-shopping is not the same, however, as an effort to find relief in a
jurisdiction that will be sensitive to the safety needs of a parent and child fleeing
a batterer. Both Hector G. and Noel D. show how general jurisdictional
priorities can be set aside when domestic violence is a factor in the parent’s
relocation to the new jurisdiction, even when that relocation is in violation of an
existing court order. If there is something about the original jurisdiction that
makes it a particularly unsafe venue for a client, that should be described in
detail to the new court. Whether the concern is community or judicial
indifference to domestic violence, an inability to protect from threatened harm,
particular support or resources available only in the new jurisdiction, these
factors should all be placed before the court in support of a request for
temporary emergency jurisdiction. 33 Domestic violence advocates in the
alternate jurisdiction, if there are any, can be contacted for insight into how

128 Mary Rothwell Davis
matters are treated in that locale. If there are no organized services for battered
women, that is an important fact to bring before the court’s attention.
Although the UCCJEA does expand to an important degree the power of a
court to assume at least temporary jurisdiction of cases involving domestic
violence, the statutory scheme should not be regarded, where there is already an
order of custody in place, as a means of avoiding a relocation hearing under
Matter of Tropea. 34 Absent real evidence of risk to the parent seeking refuge in a
new jurisdiction, the UCCJEA does not authorize much more than referral back
to the court that made the initial custody determination. Where such risk can be
shown, however, particularly when combined with evidence that the new
jurisdiction is a supportive one to the parent and child, the UCCJEA can now
offer real relief that was not previously available to victims of domestic violence
and their children.

Notes
UCCJEA and Domestic Violence: A Case Study 129
1. Domestic Relations Law § 75.
2. See Hector G. v Josefina P., 2 Misc 3d 801 (Sup Ct, Bronx County, 2003).
3. See 42 USC § 11601 et seq.
4. Domestic Relations Law § 75-d(2).
5. See Sobie, Practice Commentaries, McKinney’s Domestic Relations Law
of New York, Book 14, DRL § 75-d at 48.
6. See Hoff, The Uniform Child Custody Jurisdiction and Enforcement Act,
Office of Juvenile Justice and Delinquency at 4 (US Dept of Justice, Dec.
2001); see also UCCJEA Prefatory Notes and Comments, National
Conference of Commissioners on Uniform State Laws (NCCUSL) at 3-30,
1997.
7. Domestic Relations Law § 75-a(7).
8. Domestic Relations Law § 76, “Initial child custody jurisdiction.”
9. Domestic Relations Law § 76-b, “Jurisdiction to modify determination.”
10. Id.
11. Domestic Relations Law § 76-a(1)-(2), “Exclusive, continuing
jurisdiction.”
The most effective way to ensure that a foreign state will exercise comity
with respect to a client’s custody order is to register that decree pursuant to
the UCCJEA. DRL § 77-d; see also DRL § 75-e. Thus if your client has a
custody order from a New York court but must send her child for courtordered
visitation in, for example, Ohio, she should register her custody
decree in Ohio. Once properly registered, a foreign decree is treated as the
equivalent of a decree of both states and, once registered, any further
contest to the decree is precluded. DRL § 77-d. Even where an order has
been registered, however, a new proceeding relating to domestic violence
— about which the court must be notified — can affect an existing order.
DRL § 77-g(2)(c).
See http://www.courts.state.ny.us/forms/familycourt/uccjea.shtml for forms.
12. Domestic Relations Law § 76-c.
13. Domestic Relations Law § 76-c(3).

130 Mary Rothwell Davis
14. Domestic Relations Law § 76-c(2).
15. Domestic Relations Law § 76-c(3).
16. Domestic Relations Law § 76-c(4).
17. Domestic Relations Law § 76-b(2).
18. Domestic Relations Law § 76-b(1).
19. Domestic Relations Law § 76-b(1)(a).
20. Domestic Relations Law § 76-b(1)(b).
21. Noel D. v Gladys D., 6 Misc 3d 1017A, (Fam Ct, NY County, 2005).
22. Domestic Relations Law § 75-d(2).
23. Such reports are available at the web site of the Department of State,
http://www.state.gov.
24. Hector G. v Josefina P., 2 Misc 3d at 820.
25. Domestic Relations Law § 76-f, “Inconvenient forum.”
26. Domestic Relations Law § 76-f.
27. Domestic Relations Law § 76-i.
28. Domestic Relations Law § 75-j(2).
29. Domestic Relations Law § 75-K(1)(a)-(e).
30. Domestic Relations Law § 76-g(4).
31. See Stocker v Sheehan, 13 AD3d 1 (1st Dept 2004); Karen W. v Roger S., 8
Misc 3d 285 (Fam Ct, Dutchess County, 2004).
32. Diane H. v Bernard H., 2 Misc 3d 1101A, (Fam Ct, Erie County, 2004).
33. See http://www.courts.state.ny.us/forms/familycourt/uccjea.shtml for
pleadings.
34. Matter of Tropea, 87 NY2d 727 (1996).

The Hague Convention on the Civil Aspects of International Child Abduction1 (“Hague Convention”) is an international treaty that was designed to
address child abduction by a parent. It provides parents with a civil remedy —
the prompt return of their children. The underlying purpose of the Hague
Convention is to prevent international abductions and restore the status quo
while the courts of the country from which the child was taken resolve
underlying custody and visitation issues. Once a prima facie case under the
Hague Convention has been established, the Convention, in most instances,
mandates return of the child.
The drafters of the Hague Convention assumed that abducting parents are
most often non-custodial parents, and the treaty does not contemplate instances
in which women flee with their children to escape domestic violence. The
Convention does, however, provide some exceptions to the return remedy, and,
although very narrowly tailored, these exceptions may be useful when litigating
Hague Convention cases on behalf of abused mothers.
Background
9
Representing Abused Mothers
in Hague Convention Cases
by Betsy Tsai
The Hague Convention was drafted in 1980 by the Hague Conference on
Private International Law. Although the United States signed the treaty in 1981,
the Hague Convention did not become law in the United States until 1988
when the International Child Abduction and Recovery Act (ICARA), 2 its
implementing legislation, was passed. The Hague Convention is only
applicable between and among countries that have ratified the Convention,
otherwise known as Contracting States, or countries that have acceded to it. A

132 Betsy Tsai
list of Hague Convention party countries and their effective dates with the US
can be found on the US Department of State’s website, which is a valuable
resource for many Hague Convention issues. 3
Purpose
The primary purpose of the Hague Convention is to effect the prompt return
of abducted children to their countries of habitual residence. The focus of the
Hague Convention is on remedying wrongful removals rather than deciding
custody issues. The Hague Convention does not allow Contracting States to hear
the merits of any underlying custody disputes, thereby creating a disincentive
for parents to abduct their children in search of more favorable jurisdictions.
The objects of the Hague Convention are only “(a) to secure the prompt return
of children wrongfully removed to or retained in any Contracting State; and (b)
to ensure that rights of custody and of access under the law of one Contracting
State are effectively respected in the other Contracting States.” 4
Application of the Hague Convention
What is the Central Authority?
Each Contracting State must establish a Central Authority whose functions
include cooperating with Central Authorities in other Contracting States, attempting
to locate an abducted child, coordinating Hague Convention applications requesting
the return of a child from other countries, initiating legal proceedings, and securing
counsel for foreign litigants. The United States has designated the Department of
State’s Office of Children’s Issues as the Central Authority. The National Center for
Missing and Exploited Children processes applications requesting the return of
children in the United States on behalf of the State Department. 5
When Does the Hague Convention Apply?
The Convention has a number of limitations. First, the Hague Convention
applies only between Contracting States, so if a parent abducts the child to a
country that is not a signatory to the Hague Convention, these provisions do not
apply. Second, the Hague Convention applies only to children under sixteen
years of age. Finally, the child must have been habitually resident in a
Contracting State immediately prior to the removal by the parent.

Civil Aspects of International Child Abduction and Abused Mothers 133
How Does a Party Bring a Hague Convention Claim?
A parent seeking the return of an abducted child may make an application
directly to a court in the Contracting State to which the child has been taken. The
parent may also submit an application to the Central Authority in his or her own
country, which then forwards the application to the Central Authority in the
abducted-to country. These options are not mutually exclusive, so a party seeking
return of a child under the Hague Convention may use both avenues of relief.
What are the Elements of a Hague Convention Claim?
Wrongful Removal
To make out a prima facie case under the Hague Convention in the
United States, the parent seeking return of the child must first establish, by a
preponderance of the evidence, that there was a “wrongful removal.” A
wrongful removal occurs if the child was taken from his or her habitual
residence in breach of the other parent’s custodial rights that were being
exercised at the time of removal.
Habitual Residence
The Hague Convention does not define what constitutes “habitual
residence,” and courts have developed this concept through caselaw. Habitual
residence, unlike domicile, does not necessarily depend on the long-term
intentions of the parties but is a concept used to identify where the children and
family are settled. As one court stated, habitual residence depends on “a ‘degree
of settled purpose,’ as evidenced by the child’s circumstances in that place and
the shared intentions of the parents regarding their child’s presence there. The
focus is on the child rather than the parents.” 6 Another court, explaining the
concept of habitual residence, stated that “technically, habitual residence can be
established after only one day as long as there is some evidence that the child
has become ‘settled’ into the location in question.” 7
Rights of Custody
Wrongful removal occurs only if the child was taken from his or her
habitual residence in breach of the other parent’s custodial rights, which were
being exercised at the time of removal. The Hague Convention defines rights
of custody as “rights relating to the care of the person of the child and, in
particular, the right to determine the child’s place of residence.” 8 This term was
intended by the Convention drafters to be interpreted broadly. For more
specificity on what constitutes custody rights, it is important to look to the laws
of the child’s country of habitual residence.

134 Betsy Tsai
To establish that custody rights were actually being exercised at the time of
removal requires very little evidence on the part of the party with the custody
rights. In fact, the Convention assumes that the person with rights of custody was
exercising them, and places the burden of proof on the alleged abductor to show
that custody rights were not actually being exercised at the time of removal.
Defenses and Exceptions to the Return Remedy
The Hague Convention provides various defenses and exceptions to the
requirement that an abducted child be returned. First, if more than one year has
passed since the allegedly wrongful removal and the child is well settled in the
new environment, the court may decline to return the child. 9 Second, if the party
requesting that the child be returned was not actually exercising rights of
custody at the time of removal or had consented to the removal, return of the
child is not mandated. 10 Third, a court may not return an abducted child if there
is a “grave risk” that such a return “would expose the child to physical or
psychological harm or otherwise place the child in an intolerable situation.” 11
Fourth, if the child objects to returning to the country of habitual residence and
the child is of sufficient age and maturity, the child’s views may be taken into
account to oppose return. 12 Finally, courts may refuse to return a child if doing
so would not comport with “the fundamental principles of the requested State
relating to the protection of human rights and fundamental freedoms.” 13 These
exceptions are intended to be narrowly construed.
Using the Hague Convention Exceptions on Behalf of
Battered Women
The Hague Convention can pose serious problems for abused women who flee
to the United States seeking safety. Because the various exceptions are designed to
be narrowly construed and may be difficult to establish, lawyers representing
abused women should first explore other avenues of relief, such as arguing that the
child was not wrongfully taken from the country of origin. If necessary, however,
exceptions to the Hague Convention may be successfully litigated.
The Article 13(b) grave risk of harm exception is the most commonly
litigated exception in Hague Convention cases and potentially useful for women
fleeing abusive partners, although it has traditionally been a difficult exception
to establish. The 13(b) exception allows courts to circumvent their obligation to
return the child to the country of habitual residence if the opposing party can
demonstrate that “there is a grave risk that [the child’s] return would expose the
child to physical or psychological harm or otherwise place the child in an

Civil Aspects of International Child Abduction and Abused Mothers 135
intolerable situation.” The party opposing the return has the burden of proof and
must demonstrate the applicability of the 13(b) exception by clear and
convincing evidence. Because the Hague Convention does not provide a
definition for what constitutes “grave risk,” it is important to examine judicial
interpretation of the 13(b) exception.
Traditionally, US courts have interpreted the 13(b) exception very narrowly.
The Second Circuit has stated:
A “grave risk” exists in only two situations: (1) where returning
the child means sending him to “a zone of war, famine, or
disease”; or (2) “in cases of serious abuse or neglect, or
extraordinary emotional dependence, when the court in the
country of habitual residence, for whatever reason, may be
incapable or unwilling to give the child adequate protection.” 14
Recently, however, despite the traditionally narrow interpretation of the
13(b) exception, the Second Circuit, has found grave risk in a number of cases
in which mothers have fled abusive partners.
In Blondin v. Dubois, a leading case that resulted in four published
decisions, 15 Marthe Dubois fled from France to the United States with her two
children, Marie-Eline (age eight) and Francois (age four), to escape her abusive
husband, Felix Blondin. The district court found that Blondin had repeatedly
abused Dubois throughout the course of their relationship and had also beat
Marie-Eline, twisted an electrical cord around her neck, and threatened to kill her.
On two other occasions, Dubois had attempted to leave Blondin, fleeing to a
battered women’s shelter for a total of approximately nine months. The district
court held that the 13(b) grave risk exception applied and denied return of the
children because return “would present a ‘grave risk’ that they would be exposed
to ‘physical or psychological harm’ or that they would otherwise be placed in an
‘intolerable situation.’ ” 16 On appeal, the Second Circuit, although in agreement
with the district court’s finding of grave risk, remanded for consideration of
“whether other options are indeed available under French law — options that may
allow the courts of the United States to comply both with the Convention’s
mandate to deliver abducted children to the jurisdiction of the courts of their home
countries and with the Convention’s command that children be protected from the
‘grave risk’ of harm.” 17 On remand, the district court not only considered and
rejected other options by which the children could be safely returned to France,
but also relied on uncontroverted expert testimony from a child psychologist that
returning the children to France would likely trigger severe symptoms of post-

136 Betsy Tsai
traumatic stress disorder. The court declined to order the return of the children. 18
As part of its grave risk analysis, the district court also considered that the
children were well settled in their new environment and that Marie-Eline objected
to return. On further appeal, the Second Circuit affirmed. 19
In another important case, Elyashiv v. Elyashiv, 20 Iris Elyashiv fled from
Israel to the United States with her three children to escape, in the words of the
court, “severe domestic violence.” Mr. Elyashiv, a martial arts instructor who
kept three swords and a gun in the house, verbally and physically abused Ms.
Elyashiv throughout the course of their marriage, beating her, attempting to
strangle her, and threatening to kill her if she left him. The court also found that
Mr. Elyashiv physically abused the two older children, hitting them with a belt,
shoes, or his hand approximately once or twice a week. As in Blondin, the court
relied on the uncontroverted expert testimony of a child psychiatrist who said
that returning the children would result in “a full-blown relapse of their [posttraumatic
stress disorder] symptoms.” After also finding that the children were
well settled in the United States and that “there are no alternative arrangements
that could effectively mitigate the grave risk” to the children if they were
returned to Israel, the court concluded that the 13(b) grave risk exception
applied, and the father’s petition for return of the children under the Hague
Convention was denied.
Finally, in Reyes Olguin v. Cruz Santana, Maria del Carmen Cruz Santana
fled from Mexico with her two children to escape her abusive husband, Noel
Stalin Reyes Olguin. Throughout the course of their relationship, Reyes Olguin
would beat Cruz Santana, sometimes in front of the children; he attempted to
throw her down the stairs and insisted on two occasions that she get an abortion,
beating her when she refused to comply. After first arguing unsuccessfully that
the court had no jurisdiction to hear the case because the father did not have
custody of the children, Cruz Santana established that the 13(b) grave risk
exception applied, and the court declined to return the children to their father’s
abusive household in Mexico. 21 As part of its grave risk analysis, the court not
only considered the expert testimony of a child psychiatrist, but also looked at
whether the children were well settled into their new environment and whether
the children objected to returning to their country of habitual residence. Then, in
keeping with Blondin IV, the court here also looked at “whether any
ameliorative measures might mitigate the risk of harm to the child and allow
him to return safely pending a final adjudication of custody.” Finding no
sufficient measures existed in Mexico to mitigate the grave risk of harm to the
children, the court denied the petition and declined to return the children.

Conclusion
Civil Aspects of International Child Abduction and Abused Mothers 137
Litigating Hague Convention cases on behalf of abused mothers is
challenging in light of the Convention’s primary purpose of ensuring prompt
return of abducted children to their country of habitual residence. In the Second
Circuit, however, the Article 13(b) grave risk exception has been successfully
used on behalf of battered women who have fled abusive households with their
children. Expert testimony from a child psychiatrist, as well as an exploration of
alternative arrangements in the country of habitual residence that would protect
the child from “grave risk” are of critical importance in the court’s analysis.
Whether the children are well settled in their new environment and whether they
object to the return are also important factors to consider.
Despite the Hague Convention’s primary purpose to maintain the status
quo and return children to their countries of habitual residence, the 13(b)
grave risk exception provides a potential avenue by which mothers and
children may flee to another country, escape their abusers, and avoid returning
to an abusive household.

138 Betsy Tsai
Notes
1. Hague Convention on the Civil Aspects of International Child Abduction,
Oct. 24, 1980, 19 ILM 1501 (1980).
2. International Child Abduction Remedies Act, 42 USC § 11601 et seq.
3. See
http://travel.state.gov/family/abduction/hague_issues/hague_issues_1487.html.
4. Hague Convention, Article 1.
5. See
http://travel.state.gov/family/abduction/hague_issues/hague_issues_578.html.
6. Brennan v Cibault, 227 A2d 965, 966 (NY App Div 1996) (citing Feder v
Evans-Feder, 63 F3d 217, 224 (3d Cir 1995)).
7. Brooke v Willis, 907 F Supp 57, 61 (SDNY 1995).
8. Hague Convention, Article 5(a).
9. Id. at Article 12.
10. Id. at Article 13(a).
11. Id. at Article 13(b).
12. Id. at Article 13.
13. Id. at Article 20.
14. Blondin v Dubois, 238 F3d 153, 162 (2d Cir 2001) (Blondin IV) (quoting
Friedrich v Friedrich, 78 F3d 1060, 1069).
15. Blondin v Dubois, 19 F Supp 2d 123 (SDNY 1998) (Blondin I); Blondin v
Dubois, 189 F3d 240 (2d Cir 1999) (Blondin II); Blondin v Dubois, 78 F
Supp 2d 283 (SDNY 2000) (Blondin III); Blondin v Dubois, 238 F3d 153
(2d Cir 2001) (Blondin IV).
16. Blondin I, 19 F Supp 2d at 127.
17. Blondin II, 189 F3d at 242.
18. Blondin III, 78 F Supp 2d at 294.
19. Blondin IV, 238 F3d at 168.
20. 353 F Supp 2d 394 (EDNY 2005).
21. Reyes Olguin v Cruz Santana, 2004 WL 1752444 (EDNY Aug. 5, 2004);
Reyes Olguin v Cruz Santana, 2005 WL 67094 (EDNY Jan. 13, 2005).

Domestic Violence and Money
10
Representing a Victim of Domestic Violence
Who Needs Child Support
by Judy Reichler
Domestic violence is strongly linked to family economic issues, and money
is often used to gain power and control. An abuser may withhold money or take
money, to possess, humiliate, intimidate, intrude upon, and isolate his partner.
So that you can provide the best assistance to your client, explore with her how
she and her partner handled their money.
While the couple is living together, an abuser may exercise complete control
over the money in the household. He may insist on doing all the shopping or
accompanying her to every store, including the laundromat. He may hold all the
money, distributing it only on an “as needed” basis. He may provide his partner
with an allowance, from which she is expected to make all, or certain, household
expenditures. He may not have had a problem with her doing the shopping, but
insist on reviewing all receipts. He does this not just to keep track of the money,
but to make certain she went where she said she was going and that she has not
made any “unauthorized” purchases or bought something that will reveal another
lover or plans to leave him.
Some abusers bring in no income themselves, yet, through the use of threats
and intimidation, are able to gain complete control of the money that enters the
house. Sometimes the only income in the family comes from public benefits
received by his partner, yet the abuser is able to come and go, insisting that
these benefits be used to meet his shelter, food, and entertainment needs.
Even after the parties have separated, money may continue to be used to
keep control. An abuser who seemed generous while the parties were together
may suddenly become stingy with money. He may be unwilling to provide any
support for a child who does not live with him. He may question the need for

140 Judy Reichler
things that he had happily provided when the family lived together, thus requiring
constant requests for money, with each request giving rise to further arguments.
If his partner was supplying him with money while they were together, he may
continue to drop by and insist that she give him some of her money.
Many of the same problems exist even if the couple never lived together.
An abuser may believe he should be able to spend all of his money on himself,
except for certain expenses he deems necessary, such as diapers, baby formula,
and an occasional toy.
An abuser may react badly to the initiation of a divorce action or a court
proceeding for child support. He could become violent in court, or outside the
court. He may refuse to comply with an order and cause your client to remain
entangled with him while she seeks compliance. Or, if he pays, he may insist
on handing over the support money personally and use the occasion for
continued abuse.
Because of these concerns, dealing with an abuser and child support is a bit like
stepping into a mine field. It can be done, but no one should rush into it blindly.
Is it in Your Client’s Best Interest to Establish Paternity
and/or Seek Child Support?
Explore Possible Repercussions
If you have a client who has been a victim of domestic violence, take
special care to assure that an effort to obtain child support will not place her in
additional danger. It is never a good idea to simply jump at the chance to help
your client seek child support without an exploration of the potential for success
and possible repercussions.
Victims of domestic violence — sometimes the ones in greatest need — are
often afraid to seek support from the father of their children. This fear is not to be
taken lightly. It is, unfortunately, quite justified in many cases. In addition to
physical danger, there are other unwanted repercussions that should be explored.
For example, the mother of a non-marital child must prove paternity before she
can seek child support. 1 If she does this, it will give the father certain rights, such
as the right to seek custody and/or visitation. He can, of course, obtain a paternity
determination on his own, but might not do so if left alone. You and your client
should consider the possibility that the father will seek custody as a weapon or use

Victim Who Needs Child Support 141
visitation as an opportunity for continued contact with her. Be certain the potential
difficulties don’t overwhelm the advantages of receiving support.
Ways to Provide Safety
Obtain an Order of Protection
Consider seeking an order of protection. The best way is to file a separate
petition at the same time the child support petition, or the divorce complaint, is
filed, with a request for a temporary order of protection that can be served along
with the child support petition. It is also possible to request an order of protection
after the child support proceedings have commenced, if the need arises.
Provide an Alternative Address
If the abuser is likely to pay, but your client doesn’t want contact with him,
the order can require payments to be mailed to a post office address. If payments
are made by check, however, the cancelled check that gets returned to the abuser
will contain information about your client’s bank and general area of residence,
possibly even her bank account. This can be avoided by having someone else
pick up the check, deposit it in a different bank, and write a check, or give cash,
to your client. The client needs to be alert so that location information is not
inadvertently revealed to the batterer.
Have the Order Made Payable through the Support Collection Unit
The court can order that payments be made to New York State’s Support
Collection Unit (SCU), for forwarding to your client. Through this mechanism,
all payments are made to a central account, from which a separate check is
drawn and mailed to the intended recipients. The SCU will also deduct the
money from the abuser’s income so that he doesn’t have any active part in the
payment. This procedure helps put distance between the parties and ensure that
no address information is exchanged. It also eliminates any excuse the abuser
might make for coming to your client’s house.
Assess the Likelihood of Success
Ask your client some questions to determine whether or not it is worth the
effort to seek a child support order. What kind of work does he do? Does he
work for someone, or is he self employed? Does he work “off the books”? Will
she be able to help the court determine how much he earns? Will you be able to
enforce an order after it is made? If he does not work, does he receive social
security, unemployment, disability, or worker’s compensation benefits? Did he
have cash around the house when they were together? If so, does she know how
much was there? Does he receive public assistance or SSI benefits? If so, only a

142 Judy Reichler
very low order will be entered. Did they eat out a lot when they were together?
Take expensive vacations? Have expensive clothes or furnishings for the house?
Can she prove it? Does he have any other children? If so, is he providing child
support for them?
This information will alert you to the possibility that the father has a marginal
income and really can’t even take care of himself. You may have a client who
cannot prove her figures or is up against someone who has hidden or shielded his
income and assets so that it would be prohibitively costly to pursue enforcement.
When You Decide Not to Seek Child Support
Even when child support may be of immense assistance, it will sometimes
be better to forego it — at least until the possibility of danger has been reduced.
Whenever a decision is made not to pursue child support, however, every attempt
should be made to assure that the reasons are valid, and not the result of the
client’s — or the attorney’s — timidity or unfounded fear.
First, determine if it is possible to overcome any obstacles so that support
can safely be obtained for the child. If not, make sure nothing is done that would
eliminate the possibility of seeking support later, if circumstances change. For
example, don’t let your client enter into an agreement foregoing child support.
Even though this may not be strictly enforceable, it will require a showing of a
change of circumstances to get support at a later date. If an agreement is signed,
a better practice would be to provide that child support is not requested “at this
time,” but that it may be sought later “without the necessity of showing a change
of circumstances.”
If the Mother Is Receiving Public Assistance
Benefits
If your client is receiving, or applying for, public benefits, there will be some
overlap with child support. A custodial parent applying for public assistance is
required to assign support rights to the state, 2 which will pursue the “absent
parent” for child support to recoup some, or all, of the cost. This will be true
even if the mother or the child receives only Medicaid.
There are several benefits to this arrangement. The first is that she will
receive consistent payments of public assistance whether or not the agency is
able to obtain child support from the father. Another is that she will receive the

Victim Who Needs Child Support 143
first $50 per month that he pays in current child support — in addition to the full
amount of public assistance benefits she receives. 3 A third benefit is that the
agency may be able to succeed in obtaining, and enforcing, a child support order
that is much higher than the amount she receives in public assistance, and she will
be able to leave that system. Although the agency’s initial incentive for obtaining
a child support order is to recoup benefits it provides, the court is not permitted to
limit the amount of the order to the amount of benefits received by the family. 4
Another benefit is that, if she states that she is a victim of domestic abuse,
she will be referred to a domestic violence liaison, who is supposed to provide
her with additional services. 5
Drawbacks
In addition to the difficulties of relying on public assistance, with its
insufficient funds, there are particular requirements regarding child support that
could place a victim in danger.
Sanctions for Failing to Cooperate in Obtaining Child Support
A custodial parent applying for public assistance is required to assign
support rights to the state, and the state takes steps to obtain child support. In
addition, she is required to provide any information she has that would help in
locating the father, establishing paternity, discovering any income or assets he
may have, and obtaining an order for child support. 6 She must also appear as a
witness in court, if requested by the agency.
Once started, however, she may have difficulty stopping a proceeding, even
if she believes it would be dangerous for her or for the child. If she refuses to
cooperate, she could be sanctioned by having her portion of the public assistance
budget removed from the grant, although the agency may not delay or deny the
child’s benefits because of the parent’s failure to cooperate. The grant for the
children can be made in the form of a protective payment — either to the
sanctioned parent or to a substitute caretaker.
Waiver of Cooperation Requirement
In recognition of the special needs of victims of domestic violence, the state
has put in place some exceptions to the requirement to cooperate in obtaining
child support. 7 Each public assistance agency is required to have a domestic
violence liaison, who can determine whether it is appropriate for a particular
parent to receive a waiver from the cooperation requirement.
A waiver is available if the parent can show she has “good cause” for refusing
to cooperate. No sanctions will be applied if it can be shown that cooperation

144 Judy Reichler
would not be in the best interests of the child for any one of these reasons — and
the agency believes that proceeding to establish paternity or secure support would
be detrimental to the child:
1. cooperation is reasonably anticipated to result in serious
physical or emotional harm to the child;
2. cooperation is reasonably expected to result in serious physical
or emotional harm to the custodial parent (or caretaker
relative), which will reduce the caretaker’s ability to
adequately care for the child;
3. the child was conceived as a result of incest or rape (other
than statutory rape), or adoption proceedings for the child are
pending, or the parent is attempting, with the help of a social
services agency, to decide whether to keep the child or
relinquish it for adoption.
Before imposing sanctions, the agency must comply with due process
requirements. The agency must inform the applicant or recipient, in writing, of
her obligations and rights with regard to child support and the consequences of
refusing to meet the obligations. The agency must allow the applicant or recipient
to make a claim of good cause for refusal to cooperate, and it must make a
written determination as to the validity of the claim. Although the applicant or
recipient has the burden of establishing good cause, and she must provide any
evidence she has to corroborate her claim of good cause, the agency must assist
her in obtaining documents and other evidence, if she requests it. The agency
can even conduct its own investigation. The agency must pay benefits to the
family while it considers the good cause claim, and, as in any other fair hearing
situation, benefits must be paid pending a determination if her claim is denied
by the agency.
Care must be taken in reading these rules because buried in them are certain
restrictions on the occasions when “good cause” may be found. For example, in
regard to “physical or emotional harm,” the harm must be “serious,” and a
finding of good cause for emotional harm [to the child or to the caregiver] may
be based only upon a demonstration of an emotional impairment that
substantially affects the individual’s functioning. It would be helpful to show, for
example, detriment from past contacts, and from even the prospect of having
him enter their lives. The harm may be poor school performance or other indicia
of physical or emotional stress, such as frequent trips to doctors. If the child has
developed a relationship with another man who she thinks of as her father, it

Victim Who Needs Child Support 145
could be detrimental to the child to begin proceedings against a person the child
views as a stranger.
3. Agency Can Proceed with Case without Imposing Sanctions
Even if the agency does not sanction the mother for refusing to cooperate and
does not require her to provide information, it can still proceed on its own without
her cooperation if it determines it can do so without risk of harm to her or the
child. 8 To do so, the agency must put the risk of harm determination in writing,
including its findings and basis for determination, and enter it into the case record.
The parent (or caretaker relative) has a right to be notified that the agency intends
to proceed and, presumably, a right to a hearing on the risk of harm issue.
If your client is convinced that harm will result from attempts to obtain
child support, and she is unsuccessful at getting the agency to agree with her,
she will have no option but to withdraw her application for assistance and rely
on some other method of support. This is a decision you can help her make,
after weighing all the benefits and possible repercussions.
Should Support Be Made Payable through the SCU?
Assuming your client has decided to seek a child support order, you should
next discuss whether payments should come directly to your client or be sent to
the Support Collection Unit (SCU), for forwarding to her.
If your client has applied for, or is receiving, public assistance benefits for
the family, she will have no choice, because she has assigned her support rights
to the state. As long as the family continues to receive public assistance, support
orders must be made payable to SCU.
If your client is not receiving public assistance, she has a choice. She can
have the order payable through SCU, or it can be payable to her — either
directly or through payroll deduction, if the father has a regular income. If your
client wants the order made payable through SCU, she must indicate this choice
in her petition.
Advantages and Disadvantages
Among the advantages is that SCU maintains records of payments. This can
be very useful later if it is necessary to return to court for enforcement. However,
because the agency does make mistakes, your client should keep her own
records of payments. She should also avoid taking payments directly from the
noncustodial parent because the SCU will have no record of it.

146 Judy Reichler
SCU also may provide the necessary distance between the noncustodial
parent and a family who is afraid of his violent or threatening behavior. If the
noncustodial parent resists paying support to her, he may not be so resistant to
making payments to the SCU. Payment of child support may then come to be
seen like any other obligation — not money he advances when he’s feeling
generous and retracts when things are a little tight or don’t go his way.
If support payments are made payable through the SCU, enforcement of the
order will be handled by the agency. Although some of the enforcement
methods used by the agency are also available through the court (e.g. salary
deduction), there are several methods of collection that are only available when
the order is payable through the SCU (e.g. interception of tax refunds and
lottery winnings). These methods may be particularly effective in collecting
from persons who change jobs frequently or who are self employed.
However, your client will have no control over the enforcement method used.
Most of the enforcement methods are computer-generated and automatically
triggered. This means that, even if your client knows that a particular method of
enforcing an order will be likely to inspire violence from the payor (e.g., the
suspension of a driving license), she cannot request that it not be used. She can, of
course, terminate the SCU services, but she will have to return to court to request
that the order be modified so the money can be payable directly to her.
Some of the Services Provided by the SCU 9
Statewide Register of Child Support Orders
All orders for child support — including orders entered by the Supreme
Court — must be forwarded to the statewide register of child support orders in
Albany. This makes it easier to determine which of several orders is valid and to
track payments.
Access to Private and Governmental Information
The SCU has authority to obtain information from certain private and
governmental agencies. The information includes such things as marriage and
birth information from the Bureau of Vital Statistics, state and local income tax
returns, and vehicle and registration information from the Department of Motor
Vehicles. This cannot be obtained through the court.
Data Matches with Financial Institutions
The SCU can find out information about an obligor’s bank accounts through
a direct matching program. This is not available through the court.

Victim Who Needs Child Support 147
Employment Information
The SCU receives daily reports of new hires and can quickly track an obligor
who changes jobs. This is not available through the court.
Immediate Income Withholding
Whenever a new or modified order for child support (or combined spousal
and child support) is made on behalf of a person who has requested the services
of the SCU, an income execution for support enforcement will immediately be
issued against the wages or other income of the noncustodial parent — unless
the court finds, and sets forth in writing, the reasons there is “good cause” not to
require immediate income withholding. 10 “Good cause” for not directing the
immediate issuance of an income execution for support enforcement is defined
as “substantial harm to the debtor.” The absence of an arrearage or the mere
issuance of an income execution cannot constitute good cause. The court can
also issue an order11 requiring an employer or other income payor to make
deductions from the noncustodial parent’s income and send it directly to your
client. If this is the only enforcement method your client will need, it may not
be necessary to have the order payable to the SCU.
Automatic Cost-of-Living Reviews
The SCU has conducted a review of all orders of support issued on behalf of
persons in receipt of family assistance prior to September 15, 1989, to determine
if they are eligible for a one-time cost-of-living adjustment. Anyone else who has
an order made payable through the SCU may request a determination of eligibility
for such an adjustment.
In addition to the procedures for adjustment, either party may petition the
court for a modification of the amount if circumstances have changed since the
order was entered.
Federal and State Income Tax Refund Interception
If there are arrears, the SCU can intercept any federal or state income tax
refunds due the non-custodial parent and direct it to your client (unless she is
receiving public assistance, in which case the payment goes to the agency). This
is not available through the court.
Suspension of Professional and Driver’s Licenses
Where a sufficient amount of arrears has accumulated, the SCU can take steps
to suspend a non-custodial parent’s driver’s licence. The SCU can also suspend
professional licenses (e.g. teachers, doctors, dentists, lawyers, real estate brokers),
as well as sporting licenses (e.g. hunting and fishing) and business licenses (e.g.
liquor). This is useful if the noncustodial parent works off the books or is

148 Judy Reichler
otherwise out of range of most regular enforcement methods. The court can do
much of this, as well, but often the judge is not as familiar with these methods.
Liens and Seizure of Property
If there are arrears, the SCU can intercept or seize periodic or lump sums
due the obligor from state or local agencies, attach and seize bank accounts as
well as public and private retirement funds, and impose liens against real
and personal property and force the sale of such property. Although certain
procedural protections apply, there is no requirement to return to court for a
money judgment.
Provide Information on Arrears to Credit Reporting Agencies
Whenever child support arrears exceed $500, this information is reported to
credit reporting agencies. This is especially useful where the obligor is self
employed. The information will show up on credit reports, which will affect the
obligor’s ability to obtain a credit card, borrow money or obtain a mortgage to
purchase property. This is not available through the court.
In Court
Support Magistrates
All child and spousal support cases in the Family Court are heard by support
magistrates, who are specially trained in establishing and enforcing support
orders. Support magistrates have the same authority as a family court judge with
regard to support, except that they cannot order a parent jailed for nonpayment.
Appeals from a support magistrate’s order are made by the filing of an “objection”
within 30 days after receipt of the order. The decision is then reviewed by a
family court judge. Support magistrates have no authority over custody, visitation
(including allegations of visitation interference as a defense to nonpayment of
support), orders of protection, or exclusive possession of the home.
Order of Protection
If it will help keep the petitioner or the children safe, an order of protection
can be obtained in the context of a support proceeding, without the need to file a
separate petition alleging a family offense. 12 Upon receiving a request, the
support magistrate will refer the matter to a judge.

Address Confidentiality
Victim Who Needs Child Support 149
You may file a motion requesting that your client keep her address
confidential, if it is necessary to keep your client and her children safe. 13 By
demonstrating that the disclosure of address or other identifying information
would pose an unreasonable risk to the health or safety of your client or the
children, the court may authorize your client not to disclose any identifying
information in any papers submitted to the court.
The statute provides that, pending a finding on the request for confidentiality,
any address or other identifying information of the child or the party seeking
confidentiality must be safeguarded and sealed in order to prevent its inadvertent
or unauthorized use or disclosure. If you are contemplating making a motion for
confidentiality and you believe it would be unsafe to disclose the information, the
best practice would be to withhold the information from the beginning, since the
safeguards presently in place in the court are unreliable. You should designate a
disinterested person to be served with process, or request that the court designate
the clerk of the court to do so.
Address confidentiality is particularly troubling in child support matters
because the respondent has a right to discover financial information about your
client. All paychecks and other financial documents must be redacted, and it
may be necessary to request in camera inspections of the documents before the
case can proceed. Because of all the extra work required to keep the information
out of the hands of the respondent, it will be important to have a frank discussion
with your client to determine if the confidentiality is absolutely necessary. If the
abuser already knows where she lives or works, an order of protection may
provide sufficient protection.
Telephonic Testimony
If you believe it would be too traumatic, or unsafe, for your client to be in
the same room with her abuser, consider requesting the court to permit your
client to testify by telephone. The Family Court Act authorizes a court to permit a
party to testify by telephone or other electronic means where it determines that it
would be an undue hardship to testify at the court where the case is being heard. 14
As with confidentiality, this request should only be made when it is absolutely
necessary, both because it causes a lot of disruption in court and because it means
your client will not be in front of the support magistrate and her credibility cannot
be compared with that of her abuser.

150 Judy Reichler
Safety in the Courtroom
Few people — even in the court — realize the risks a victim of domestic
violence takes when she seeks child support. Because your client may be
attempting, for the first time, to take control over an area over which her partner
has always had control, you must always prepare for the worst.
Inform the court personnel, especially the security officer, so they will be
alert and can let the judge or support magistrate know there is a possible
problem. Arrange for the parties to wait separately, if possible. In the courtroom,
be sure they are seated far away from each other — with as many obstacles
between them as possible. Make certain the security officer keeps an eye on
them during the hearing. Don’t hesitate to ask for a recess if it looks like the
abuser is getting restless or has a mood change.
Leaving the courthouse can create an opportunity for additional danger, if it
is not handled properly. While it is tempting to ask to have the abuser escorted
out while you and your client remain safely in the arms of the court, this is a
mistake. Always ask to have your client escorted from the courthouse first. If
possible, ask the officer to delay the abuser (maybe to go over papers) while
your client leaves the courtroom. It is important that your client leave first, not
the other way around. The reason is this: if he leaves the building first, he can
wait for her and stalk her. If she leaves the building first, she can be long gone
before he comes out.
Integrated Domestic Violence (IDV) Courts
Integrated domestic violence courts are available in several counties. These
courts are designed to handle multiple related cases pertaining to a single family,
where the underlying issue is domestic violence. Typically, a case in an IDV
court will involve a criminal matter, such as violation and misdemeanor family
offense cases and violations of orders of protection, and a family court case,
such as family offenses or custody and visitation disputes. As the model is
developing, support proceedings will be included, and the support portion of the
case will be heard by support magistrates.
If your case is being handled by an IDV court, the support case will be
flagged as involving domestic violence, and the support magistrate will be
specially trained to deal with the safety and control issues that will be present
in your case.

Negotiating an Agreement
When an Agreement May Be Desirable
Victim Who Needs Child Support 151
Reaching an agreement allows the parties to include terms that might not be
ordered by a court — even provisions that cannot be ordered by a court. Some
examples follow:
1. Extending child support obligation to the obligor’s estate or
beyond the child’s twenty-first birthday (in order to finish
college or because of a handicapping condition).
2. Penalties for failure of visitation. An agreement might include
a requirement that the custodial parent can be compensated by
payment of a stipulated amount if the obligor parent fails to
comply with the visitation set out in the agreement.
3. Income tax provisions, such as who may take the dependency
exemption, which belongs to the custodial parent; 15 who may
have head of household filing status; 16 what portion of the
payment will represent tax-deductible spousal support; 17 and
who may take the child care credit.
Pitfalls of Negotiation
Vigilantly guard your client’s right not to compromise simply because she
has agreed to discuss settlement. Remember that the end product of a negotiation
or mediation session need not be an agreement. Fight the myths that work
against the custodial parent seeking adequate child support. For example, the
custodial parent is sometimes cast as the litigious one if she refuses to accept
offers made during negotiation, while the abuser is seen as not willing to meet
her unreasonable demands. A victim of abuse may be particularly susceptible to
such insinuations, and her attorney should dispel them. The non-custodial parent
who will not agree to the presumptive amount of child support is the one who is
refusing to settle and is causing your case to go before the court.
Be particularly wary of requests by the abuser — or the court — to enter
into mediation. If your client did not fare well in negotiations with her abuser
while they were together, if he has withheld financial information from her, or if
she has any fear of him, they are not good candidates for mediation. Many
mediators are aware of this imbalance of power and will decline to serve once it
becomes clear that domestic violence is involved, but you cannot count on this
and may have to be insistent. Mediation is not appropriate for a victim of abuse.

152 Judy Reichler
Pro Se Non-Custodial Parent
It is highly likely that you will find yourself negotiating the issue of child
support with a person who is not represented by counsel. This is always more
difficult because the pro se litigant may not know the law and what is legally
permissible. In addition, he may be so emotionally involved that agreement is
not possible. Combine this with a history of belligerence, abuse, and control,
and productive communication is unlikely. Avoid being alone in a room with
your client and her abusive partner. If this happens, you should cease
negotiations immediately and rely on the court to make the decisions.
Public Assistance Recipients
When entering into an agreement with a client who is receiving, or who
plans to apply for, public assistance or other public benefits (such as food
stamps or public housing), care must be taken to assure that the agreement
doesn’t inadvertently make her ineligible for assistance. Similarly, if receipt of
child support payments would remove the family from public assistance, but not
enough to make up for the loss of the $50 pass-through and other public
benefits, some other arrangement might be preferable.
If the client is receiving family assistance, she has assigned to the state her
rights to child support and alimony. All payments must be made to the SCU and
not to her for so long as she continues to receive public assistance. If she leaves
public assistance and there are arrears that accumulated before she left, that
money must also go to SCU, although she can receive current support payments.
New York’s Child Support Standards Act (CSSA)
Both the Family Court and the Supreme Court are required to use the CSSA
in setting child support orders. 18
How the CSSA Works
Passed in 1989 to comply with a federal mandate, the CSSA provides a
step-by-step method of determining the level of child support to be ordered. The
CSSA rests on the principles that children are entitled to share in the income and
standard of living of both parents, whether or not they are living together, and
that child support should be the first obligation to be met, not the last. Briefly,
the CSSA defines the level of support as a percent of parental income,

Victim Who Needs Child Support 153
depending on the number of children to be supported. Rules for deviating upward
or downward from this amount are also provided.
After the court determines the income of each parent and applies certain
deductions, the incomes are combined and multiplied by the percentages set
forth in the CSSA. This amount is then divided between the parents in the same
proportion as each parent’s income is to the combined parental income. In
addition to this amount, the court must pro-rate the cost of reasonable medical
and child care expenses, and can order payment of a portion of educational
expenses and certain other child care expenses provided they meet the criteria
provided in the statute. The amount indicated by the formula, increased by any
medical, child care and education expenses, is the “basic child support obligation.”
This amount must be ordered unless the court finds that the noncustodial
parent’s share is unjust or inappropriate and increases or decreases the amount
based upon consideration of the ten factors enumerated in the statute. The
factors considered by the court and the reasons for the level of support ordered
must be set forth in a written order — a requirement that may not be waived by
either party or by counsel.
No distinction is made between orders made on behalf of marital children
and those made on behalf of non-marital children. The law applies to children
who receive public assistance. It applies to parents with little or no income,
although provisions are made to limit the amount under certain circumstances.
It applies to parents with high incomes. It applies to orders entered pursuant to
agreements or stipulations.
How Parental Income Is Determined
All Income from All Sources
Although the definition of income in the CSSA is lengthy and appears
complicated, it can be stated very simply: all income from all sources, whether
actual or imputed. The last income tax form that was filed is only a starting
point — it isn’t the end of the trail. Pension deductions and income that is
voluntarily deferred — such as credit union savings accounts and any type of
tax-deferred annuity — are included in income. If the noncustodial parent is
self-employed or works in a partnership, look for deferred compensation, i.e.,
compensation that may be paid in a later year for work performed this year, and
request the court to impute the income to the current year.
Income from Public and Private Benefits
Income derived from the following public benefits is included in income:
workers’ compensation, private and governmental disability benefits, unemployment

154 Judy Reichler
insurance benefits, social security benefits, veteran’s benefits, pension and
retirement benefits, fellowships and stipends, and annuity payments. Income
from public assistance and supplemental security income (SSI) are excluded
from income because they are given to meet the parent’s own subsistence needs
and are not sufficient to support an additional person.
Business Deductions that Reduce Personal Expenditures
Certain expenses deducted from business income really represent personal
expenditures. There are countless ways in which a person who is self-employed
— especially if he is the sole owner of a business — may deduct things from
business income which really represent personal expenditures. This practice has
the effect of artificially reducing the amount of income that will be declared and
could have a significant impact on the amount of child support to be ordered.
It will be important to question each expense as to its relevance to the
business. For example, a person may attempt to deduct all expenses related to a
car when, in fact, it is the only car in the family. Naturally, the family runs
errands, shops for food and household items, goes on trips, etc. If you can
determine what portion of the car’s time is used for non-business purposes, that
amount of the deduction can be added back to income. A similar exploration can
be done with telephone, electricity, heat and repair bills — even meals and
entertainment expenses.
Also, look at such things as paying a relative (or a mate) as an employee of
the business. You will need to explore exactly what that person does in order to
determine whether it is a valid business expense or just a way to give an allowance
and have a business deduction at the same time.
Imputed Income
The court may attribute or impute income to resources that are available to
the parent, such as non-income-producing assets. This is nothing more than
examining the parent’s priorities to make sure he is not cash poor simply
because he has invested in things at the expense of his children — even if not
intentionally. For example, the parent may collect classic cars or invest in
expensive paintings or other collections.
Another area in which the CSSA suggests the imputation of income is when
meals, lodging, membership, automobiles and other perquisites are provided as part
of compensation for employment that really substitute for personal expenditures or
confer personal economic benefits. Typical examples of these are a house or
apartment that is supplied along with the employment. A superintendent or
doorman in a building, a gardener at an estate or a businessman who lives part of
the year in one area of the country and part of the year in another might be likely

Victim Who Needs Child Support 155
candidates for this type of benefit. Another example would be a truck or car that
was supplied by the employer, which the employee was allowed to take home for
personal use. A similar analysis can be made of fringe benefits that are provided as
part of compensation for employment.
Still another area fertile for imputation of income arises when a noncustodial
parent claims he has little, or no, income. The court can base an order on ability
to earn, rather than the claimed economic situation. Or you may find that the
parent meets certain expenses somehow (especially such things as car payments
and mortgage payments, repairs to a house, rent or meals eaten at restaurants), or
owns something of value that requires upkeep (e.g., an expensive house or boat).
You can then ask the court to impute at least that amount of income.
Money, Goods or Services Furnished by Others
Income can also be imputed to money, goods or services furnished by
relatives and friends. Frequently, a parent comes to court professing to have no
income and to be living off the charity of friends and/or relatives. This is the
person who is living with his mother or whose girlfriend is supporting him,
while he, himself, makes “absolutely no income.” In such a case, it will be
useful to find out exactly how much income the friend or relative has, not so
much in order to impute any of it to the noncustodial parent, but to show that
this couldn’t be possible, given the expenses the friend or relative must have,
even without supporting him. The court may then be persuaded to attribute the
money, goods or services as income.
Income Based on Prior Earnings
The court can impute an amount of income based upon the parent’s former
resources or income if it determines that the parent has reduced resources or
income in order to reduce or avoid the parent’s obligation for child support.
You will need to show that the unfortunate business failure, for instance, or the
sudden inability to get overtime work was connected to an upcoming child
support obligation and not to an economic downturn.
What May be Deducted from Parental Income
The CSSA requires the court to deduct certain expenses before arriving at
the income available for child support.
Unreimbursed Employee Business Expenses
Unreimbursed employee business expenses may be deducted from income
only if the money was not spent for personal purposes. Union dues are not
included as deductions from income because the employee usually receives
benefits from these payments, such as dental, vision or legal services.

156 Judy Reichler
Alimony Paid to Another Spouse
Income may be reduced for maintenance, or spousal support, actually paid,
pursuant to a court order or written agreement, to a spouse who is not a party to
the action. There must be proof that the payments are actually being paid. Mere
allegations, or even several receipts, will not suffice.
Alimony Paid to Spouse in the Current Action
The third deduction is somewhat more complicated. It instructs the court to
deduct maintenance, or spousal support, actually paid or to be paid to a spouse
who is a party to the action, but only if the order or agreement provides for a
specific adjustment in the amount of child support that will be paid when
maintenance payments terminate.
Child Support Paid to Another Child
The court must deduct from a parent’s income child support actually paid,
pursuant to court order or written agreement, on behalf of a child whom the
parent has a legal duty to support and who is not subject to the action.
Care also must be taken to assure that the obligor has not colluded with the
mother of another child for the purpose of getting an amount deducted from his
income in your case. Look to see when the agreement or order was made. If the
amount was established after your client obtained a temporary order or already
had an order in place, it may be assumed that the deduction was already obtained
in that case and a double deduction should not be allowed.
FICA and Municipal Income Taxes
The last two permissible deductions are somewhat self-explanatory, but also
have pitfalls: New York City or Yonkers income or earnings taxes actually paid
and FICA (Social Security and Medicare) taxes actually paid.
The Child Support Percentages
Once combined parental income is determined, it is multiplied by the
following percentages:
17% for one child
25% for two children
29% for three children
31% for four children
no less than 35% for five or more children
While all income is available for a determination of child support, the law
treats combined income in excess of $80,000 differently from income below

Victim Who Needs Child Support 157
that amount. The court must use the percentages to determine the amount for the
combined income below $80,000. This amount is then pro-rated between the
parents based on each parent’s proportion of the total income, and the court will
order the noncustodial parent to pay his or her pro rata share to the custodial
parent. In determining the child support amount based on the income over
$80,000, the court may use the percentages or may find that a greater or lesser
amount is appropriate based on the ten factors for variation.
In a simple case, with each parent earning $40,000 per year, their combined
income is $80,000. If they have two children, the preliminary combined child
support obligation is 25% of $80,000, or $20,000. Since the noncustodial
parent’s income is 50% of the combined income, his share of the obligation is
$10,000 per year, or $833 per month. This is the amount the noncustodial parent
will be ordered to pay to the custodial parent, plus any additional amounts that
might be appropriate.
Mandatory Additional Amounts
After a preliminary amount is established through use of the percentages,
the court is instructed to examine the need for additional amounts of support for
certain designated expenses.
Health Care Expenses
The court is required to order the parents to extend health insurance
coverage to the children if it is available through an employer or organization.
In addition to the order for support, the court must issue a separate “qualified
medical support order” to effectuate its order for medical coverage.
The CSSA also requires the court to order the non-custodial parent to pay
his or her pro rata share of the child’s future reasonable health care expenses not
covered by insurance. Where appropriate, the court may order the payment to be
made directly to the health care provider.
If there is an opportunity for agreement, it would be a good idea to include
some of the standard expenses that will be considered “reasonable,” such as
check-ups, prescription and non-prescription medication, doctor’s visits for any
medical purpose, emergency treatment (including crutches, etc.), optometrist,
glasses, dental work, orthodontist.
In the absence of an agreement, the decision on reasonableness will be left
to the custodial parent. If the noncustodial parent feels a particular expense is
not reasonable, he is free to return to court for a ruling. If possible, obtain a
provision in the order requiring the noncustodial parent to make the pro rata

158 Judy Reichler
payment pending a determination of reasonableness. This way the custodial
parent — who must, in most instances, pay the doctor’s bill at the time of
treatment — will not always be the one who is without the money while the
court makes its decision.
Child Care Costs
The CSSA also requires the court to order the noncustodial parent to pay a
pro rata share of the reasonable child care expenses incurred by the custodial
parent while she is working or in school. This amount must be added to the
child support amount determined through the percentages and must be paid to
the custodial parent.
Optional Additional Amounts
After determining if there are any mandatory additions, the court has
discretion to make additional orders.
Child Care Costs
The court may apportion reasonable child care expenses between the
parents where it is determined that the custodial parent is seeking work and
incurs such expenses as a result.
Education of the Children
The CSSA directs the court to determine whether or not it would be
appropriate for the child to receive — presently or in the future — post-secondary,
private, special or enriched education. This section leaves a determination of
appropriateness to the discretion of the court, which will look at several factors,
including (a) the educational background of the parents, (b) the child’s academic
ability, and (c) the parent’s financial ability to provide the necessary funds.
Life Insurance
The court may order a party to purchase, maintain, or assign a policy of
accident or life insurance on the life of either party and, in the case of life
insurance, to designate the persons on whose behalf the petition is brought as
irrevocable beneficiaries.
Additional Support from Non-Recurring Payments
In addition to the basic child support amount, the court may allocate a
portion of any non-recurring payments from extraordinary sources a parent is
receiving, or may be entitled to receive. Since payment from these sources isn’t
made on a regular basis, they are easy to overlook. The sources can include such

Victim Who Needs Child Support 159
things as money received from life insurance policies, gifts, inheritances, lottery
winnings, and personal injury recoveries.
Reduction for Non-Custodial Parent with Little Income
In enacting the CSSA, the legislature provided for a significant reduction of
the child support required of a low-income noncustodial parent. While it may seem
complicated at first, the basic premise is that, where the annual amount of the
basic child support obligation would reduce a noncustodial parent’s income below
the poverty level for one person, no more than $25 per month may be ordered.
A similar protection, in the form of a maximum order, is provided to other
noncustodial parents with slightly higher incomes. The statute provides that,
where the annual amount of the basic child support obligation would reduce the
noncustodial parent’s income below something called the “self-support reserve”
(135% of the poverty level), the obligation will be $50 per month, or the
difference between the noncustodial parent’s income and the self-support
reserve, whichever is greater.
Since these figures change each year, you are cautioned to keep up to date
on the yearly changes in the poverty level.
Factors for Rebutting the Presumption
The amount established according to the formula creates a rebuttable
presumption as to the appropriate amount of child support, and this amount
must be ordered unless the court finds this amount to be unjust or inappropriate
based upon consideration of certain factors. 19
The argument most often raised by a custodial parent for deviating from the
formula amount is contained in factor three: “the standard of living the child
would have enjoyed had the marriage or household not been dissolved.” Under
this factor, counsel may be able to increase child support by demonstrating that
the obligor parent has the ability to provide support beyond the amount that
could be ordered by straight application of the percentage to acknowledged
income. Another factor, “the educational needs of either parent,” provides an
opportunity for counsel to argue for a temporary increase in the amount if the
client needs certain education to be able to adequately support the children. This
may be particularly important for a client who is not married to the other parent
and, for that reason, not eligible for spousal support to increase the amount of
support available from the other parent.

160 Judy Reichler
Counsel should prepare for the two most popular arguments noncustodial
parents raise for reducing the amount derived from application of the percentages:
the costs of visitation and the needs of other children.
A noncustodial parent may be able to receive a reduction in support for
extraordinary expenses incurred in exercising visitation or for the increased
expenses of extended visitation — but only if the child is not receiving public
assistance and only if the increased expenses substantially reduce the custodial
parent’s expenses. Even if the parties have joint custody, or the parents equally
share their time with the child, the court must first establish the amount of child
support by utilizing the percentages before reviewing the expenses and other
circumstances of the parents to determine if a reduction in support is warranted,
keeping in mind the duplication of costs that is often required when custody is
shared by the parents.
The noncustodial parent may also receive a reduction in support if he has
other children he is obligated to support, but not pursuant to a court order. This
reduction is only available if the court reviews the resources of the other parent
of those children and determines that resources available to support the other
children are less than the resources available to support the child under
consideration.
Whenever the court varies from the formula, the court is required to include
in the order the factors it considered and the reasons for the level of support
ordered. Except in the case of temporary orders, this requirement may not be
waived by either party or counsel. 20
Sanctions for Failure to Disclose
Even though complete financial disclosure is compulsory, resistance is
common. Noncompliance with compulsory financial disclosure is punishable by
granting the custodial parent the relief requested or by precluding the obligor
parent from offering evidence about his ability to pay. 21
It will be your job to see that the other parent is not rewarded by refusal to
disclose financial information.

Counsel and Expert Fees
Victim Who Needs Child Support 161
Both the Supreme Court and the Family Court are authorized to order one
party to pay counsel fees in order to enable the other to carry on or defend an
action or proceeding. 22 In addition, the court is required to order counsel fees in
any action or proceeding for failure to obey a support order if the court finds
that the failure was willful. 23
Conclusion
In summary, the most important things you will need to know before
rushing into court to get an order of support are the following:
1. Will your client be safe during the process and can she safely
receive the money?
2. Does the father have sufficient income to make a difference to
your client, and will she be able to prove it?
3. Will she be able to enforce an order once it is made?
Helping victims of domestic violence obtain child support has its many
rewards. As long as you remember that you are dealing with a potentially
volatile situation and conduct the case accordingly, you will have the satisfaction
of knowing that you have helped your client in an essential area that will allow
her to gain the ability to function on her own.

162 Judy Reichler
Appendix A
Child Support Statutes and Regulations
State Laws
Civil Practice Law and Rules - §§ 211, 213, 2301-2304, 2308, 4518,
5101, 5205, 5222, 5230, 5232, 5234, 5241, 5242 and 5252
Domestic Relations Law - §§ 236B, 240, 240-b, 240-c, 241, 244-b, 244-c
and 244-d
Family Court Act - Articles 4, 5, 5-A and 5-B; and §§ 115, 153, 154 and
154-b
Social Services Law - Titles 6-A and 6-B; and §§ 23, 111, 131, 143, 153
and 366
Alcohol Beverage Control Law - § 119
Banking Law - § 4
Education Law - §§ 441, 6501, 6502, 6509-b and 6509-c
Estates, Powers and Trusts Law - § 4-1.2
General Obligations Law - § 3-503
Insurance Law - § 320
Judiciary Law - § 90
Labor Law - §§ 21-d, 512, 537 and 596
Lien Law - §§ 65 and 211
Public Health Law - §§ 4135, 4135-b and 4138
Real Property Law - §§ 440-a, 441 and 441-c
Tax Law - §§ 171-a, 171-c, 171-d, 171-g, 171-h, 658, 686, 697 and 1613-a

Victim Who Needs Child Support 163
Vehicle and Traffic Law - §§ 502, 510, 511, 530, 2101, 2103, 2105-a, 2116,
2118 and 2122
Workers’ Compensation Law - § 141
State Regulations
New York Code of Rules and Regulations - Part 18, §§ 345-347
[18 NYCRR 345-347]
Federal Law and Regulations
Social Security Act - Title IV-D, §§ 651-669 [42 U.S.C. 651-669]
Code of Federal Regulations, Title 45, §§ 300-307 [45 C.F.R. 300-307]

164 Judy Reichler
Appendix B
Child Support Blockbuster Cases
Tompkins County Support Collection Unit o/b/o Chamberlin v Chamberlin,
99 NY2d 328 (2003).
Held that, when a cost-of-living adjustment is sought by the SCU and
challenged by one of the parents, Family Court Act § 413-a directs the court
to review the order to determine if an adjustment was warranted based on the
child support guidelines, and not merely whether a cost of living adjustment
should be applied. This adjustment was distinct from a modification based
on a change in circumstances, so the parties’ right to seek modification was
not impermissibly expanded.
Gravlin v Ruppert, 98 NY2d 1 (2002).
Reiterated the standards for modification of a child support order based on
a written agreement, previously established in Brescia (based purely on the
needs of the child) and Boden (an unforeseen change in circumstances and
a concomitant showing of need), and held that a complete breakdown in
the visitation arrangement, which effectively extinguished respondents’
support obligation and had been the reason for deviating from the CSSA,
constituted an unanticipated change in circumstances that created the need
for modification of the child support obligations.
Clara C. v William L., 96 NY2d 244 (2001).
Established that a family court’s perfunctory approval of a “516 paternity
compromise agreement,” without any determination as to its adequacy, fails
to satisfy the requirements of the statute so that the putative father may not
invoke the statute to bar a proceeding for a declaration of paternity and an
increased support order. The court specifically did not consider the
constitutionality of this statute or pass upon the continuing viability of
Bacon v Bacon (46 N.Y.2d 477), decided nearly a quarter-century ago.
Dutchess County Department of Social Services o/b/o Day v Day,
96 NY2d 149 (2001).
Established that CSSA must be used to determine support from parents even
when child is in foster care and it is a govenmental unit that is seeking

Victim Who Needs Child Support 165
reimbursement for expenditures made to secure that care. Agreed that it
might be appropriate to deviate from the statutory amount based on the
parent’s need to maintain a home for the child and the child’s periodic visits
to the parent’s home.
Bast v Rossoff, 91 NY2d 723 (1998).
Reiterates that the court must apply the CSSA in all cases, regardless of the
custodial arrangements. After determining the amount in accordance with
the formula, the court may then deviate from this amount if it is found to be
unjust or inappropriate.
Dox v Tyson, 90 NY2d 166 (1997).
Establishes that the mere delay in enforcement of a child support order does
not amount to an implied waiver of child support.
Graby v Graby, 87 NY2d 605 (1996).
Sets forth the method for considering Social Security Disability benefits
received by a child. Since this money is for the benefit of the child and does
not affect the income of the paying parent, it is impermissible to use the
amount of these benefits to offset the noncustodial parent’s child support
obligation. The child support amount must be established the ordinary way,
through use of the formula, and can be changed only if the court finds it
would be unjust or unreasonable.
Powers v Powers, 86 NY2d 63 (1995).
Sets the standard for finding that a failure to pay child support is willful.
Proof of arrears constitutes a prima facie case. The burden is then on the
respondent to show that nonpayment was not willful.
Cassano v Cassano, 85 NY2d 649 (1995).
Established that the Child Support Standards Act shifts the emphasis from
“a balancing of the expressed needs of the child and the income available to
the parents after expenses” to “the total income available to the parents and
the standard of living that should be shared with the child.” Whether the
court uses the formula or the variation factors, it must articulate its reasons.

166 Judy Reichler
Rose v Moody, 83 NY2d 65 (1993).
It is constitutionally impermissible for the statute (CSSA) to require an
order of $25 per month for a person with little or no income. Presumption
must be rebuttable.
Commissioner of Social Services o/b/o Wandel v Segarra, 78 NY2d 220 (1992).
Established that a parent’s duty to support is not abrogated by a child’s
receipt of public assistance.

Notes
Victim Who Needs Child Support 167
1. In the interest of keeping this article a manageable length, detailed citations
are omitted. For additional case law and an elaboration of the material
discussed, you are referred to New York Civil Practice: Matrimonial
Actions, Lansner & Reichler, eds, ch 43.
2. 42 USC § 602(a)(26)(A); 45 CFR § 232.11(a)(1); Social Service Law
§ 349-(a)(b); 18 NYCRR § 369.2(b).
3. 18 NYCRR §§ 347.13(b) and 352.15.
4. Wandell v Segarra, 165 AD2d 655 (1st Dept 1990).
5. 18 NYCRR § 351.2.
6. 18 NYCRR § 369.2(b).
7. 18 NYCRR §§ 347.5 and 369.2(b)(4).
8. 18 NYCRR §§ 347.6(i) and 351.2(l).
9. See generally Social Service Law § 111 and 18 NYCRR § 346. Additional
statutory references are provided in Appendix A.
10. 18 NYCRR § 347.9.
11. Pursuant to CPLR § 5241 or CPLR § 5242.
12. Family Court Act § 446.
13. Family Court Act § 154-b(2).
14. Family Court Act § 433(c)
15. 26 USC § 152(a).
16. See 26 USC §§ 2(b) and 7703(b).
17. 26 USC §§ 71 and 215.
18. The major provisions are found in Domestic Relations Law §§ 236(B)(7)
and 240(1-b) and Family Court Act §§ 413(1) and 513.
19. Family Court Act § 413(1)(f); Domestic Relations Law § 240(1-b)(f).
20. For further information on the way the factors can be used or rebutted, you
are referred to New York Civil Practice: Matrimonial Actions, Lansner &
Reichler, eds, ch 43.

168 Judy Reichler
21. See Family Court Act § 424-a and the penalties described in CPLR § 3126.
22. Domestic Relations Law § 237; Family Court Act § 438; “Expenses”
include accountant fees, appraisal fees, actuarial fees, and investigative fees.
23. Domestic Relations Law § 237(c); Family Court Act § 438(b).

Part IV
Criminal Justice

11
The Family Protection and Domestic Violence
Intervention Act of 1994:
Mandatory Arrest Ten Years Later
by Lisa Fischel-Wolovick
New York State’s Family Protection and Domestic Violence Intervention Act
of 1994 (DVIA) made radical revisions to law enforcement’s approach to
domestic violence incidents. 1 The DVIA, which established mandatory arrests in
domestic violence cases, requires the police to make warrantless arrests when a
duly served order of protection has been violated or when probable cause exists to
believe that either a felony or misdemeanor has been committed. 2 Other provisions,
developed after extensive hearings held throughout New York State, provided
for training, domestic incident reporting, and a centralized state-wide registry of
protective orders to assist police in enforcing violations of protective orders.
The use of mandatory arrest generated concern as dual arrests and even
retaliatory arrests emerged as an unintended consequence of the DVIA. Further
questions arose as to the efficacy of mandatory arrest as a response to domestic
violence. One critic of mandatory arrests has argued “. . .that such policies as
mandatory arrest, prosecution, and reporting, which have become standard legal
fare in the fight against domestic violence. . . categorically ignore the battered
woman’s perspective.” 3 This same critic has further contended that “. . . these
policies fail to provide battered women with choices about their remedies.” 4
Before deciding whether or not mandatory arrest is an essential and
appropriate response to domestic violence, it would be wise to consider the
historical failure to address this serious public health and safety issue. As a result
of law enforcement’s failure to arrest and prosecute perpetrators of domestic
violence in the past, criminal behavior appeared to be condoned or ignored by the
community. This discussion will address how mandatory arrest and the related
provisions of the DVIA provide an informed response to the concerns of battered
women, law enforcement, and the courts. This discussion will also address how
mandatory arrest has made significant inroads in reducing incidents of domestic
violence by specifically reducing recidivism, when arrest is combined with the use

172 Lisa Fischel-Wolovick
of an order of protection. The Primary Aggressor Amendment as well as the
resulting training for law enforcement has reduced the risk that battered women
would be revictimized by the criminal justice system.
Domestic Violence Intervention Act of 1994
Combating domestic violence requires a collaborative effort among law
enforcement, domestic violence advocates, and the courts, as well as public
education and training of law enforcement personnel. The DVIA represents a
comprehensive approach on the part of the Legislature, law enforcement and
domestic violence advocates to criminalize domestic violence and provide for
the safety of battered women. The DVIA also provides concurrent jurisdiction
over family offenses, by providing battered women with access to the remedies
from both Family and Criminal Courts. A battered woman may now elect to
have her case heard in Family Court, which hears not only orders of protection
but also issues of custody, visitation, child support, and violations of orders of
protection, at the same time a criminal prosecution is being pursued. The new
domestic violence legislation also provides Family Court judges with the
discretion to transfer cases to the district attorney for prosecution. 5 Both
provisions, while not foolproof, increase options for battered women.
In New York, Bruno v Codd paved the way for the current reform domestic
violence legislation. 6 This case was brought in part as a response to “. . . [the]
frequent failure of officers of the New York City Police Department to respond
to requests for safeguarding made by . . . a battered or threatened wife, . . .
because of reluctance on the part of police to intervene in what they reflexively
characterized as ‘domestic disputes’ rather than criminal offenses.” 7
The argument that a mandated criminal response fails to empower battered
women does not consider the conditions that existed prior to mandatory arrest and
to a certain extent continue into the present, as well as the inclusive remedies in the
DVIA. The remedies include not only mandatory arrest, but also concurrent
jurisdiction over family offenses, training, collaboration and institutionalized
tracking of domestic violence incidents in the form of the Domestic Incident Report.
Following the enactment of the DVIA, the New York State Office of
Domestic Violence Prevention conducted an extensive state-wide study of
recidivism and the effectiveness of mandatory arrest over an eighteen month
period. 8 This study reviewed over 13,000 incident reports from a total of eight
sites across New York State, from communities ranging in size from 35,000 to

The Family Protection and Domestic Violence Intervention Act of 1994 173
222,000, as well as two precincts from New York City. They identified 8,700
suspects from these 13,000 incidents, who were followed for a period of
eighteen months. The primary source of information was domestic incident
reports; however, the study also included a survey of police, prosecutors and
battered women.
Despite the phrase “mandatory arrest,” in fact, not all of the incidents
surveyed led to arrest. In instances where no visible bruising was apparent or
where the suspect had fled the scene suspects were often not arrested. Incidents
where only hitting and kicking took place had a relatively low rate of arrest,
raising questions about the New York State definition of physical injury in
misdemeanor assault cases. For the purposes of this study, these cases were
classified as “quasi-mandatory arrest,” 9 however erroneously that term may be
used. Where there were more visible injuries and aggressive behavior, researchers
termed these incidents as “aggressive mandatory arrest incidents.” 10 Not
surprisingly, the research concluded that police were more likely to arrest the
suspect in “aggressive mandatory arrest incidents.” However, despite the fact
that the suspects in “aggressive mandatory arrest incidents” were more likely to
be arrested, research revealed that the criminal penalties were relatively light.
However, the researchers were surprised to find that aggressive mandatory
arrest incidents that resulted in arrests had a lower rate of recidivism. This was
true even though arrest rates differed in the sites studied. Finding that the initial
arrest rate ranged from 24 to 57%, the rate of recidivism was considerably lower
at 12 to 27%. In the more aggressive initial incidents, the recidivism rate was as
low as 11 to 20%. The report concluded “. . .that mandatory arrest along with the
issuance of an order of protection dramatically affected the rate of recidivism.” 11
These findings were “. . .notable, especially given the relatively mild
punishment [meted out] to those arrested and the infrequent use of probation. The
impact of arrest on recidivism might be even greater if a conviction was routinely
followed by strict supervision and incarceration upon recidivism.” 12 The study
went on to recommend the extension of the mandatory arrest provisions. This was
subsequently enacted by the Legislature, extending mandatory arrest until 2005. 13
It is important to see mandatory arrest not as an isolated phenomenon but as a tool
that triggers the involvement of the criminal justice system. While mandatory
arrest is not without problems, it can also be an important safety measure when
combined with appropriate access to the criminal and family court systems.

174 Lisa Fischel-Wolovick
Primary Aggressor Amendment
An increase in incidents in which the victim of domestic violence is arrested
emerged as an unintended consequence of the New York State Legislature’s
passage of the Family Protection and Domestic Violence Act of 1994. 14
The real possibility that the victim will be arrested is disturbing for a number
of reasons. A wrongful arrest helps create a climate in which victims become
reluctant to call the police again. 15 In terms of community safety, the arrest of the
wrong party means that the violence will continue, creating an atmosphere in
which entire families become at risk for greater and greater injury.
As more and more states passed mandatory arrest laws in an effort to
combat domestic violence, many found it essential to adopt primary aggressor
laws. Among those states were Washington, Rhode Island, Wisconsin, South
Dakota, Iowa, Arizona, Nevada, Oregon, Tennessee, Florida and New York. 16
The Primary Physical Aggressor Law, which modified Section 140.10 (c) of
the Criminal Procedure Law, provided essential guidelines that helped arresting
officers and prosecutors determine who was the individual primarily responsible
for the violence. 17 The Amendment states in pertinent part:
An officer shall attempt to identify and arrest the primary
physical aggressor after considering: (i) the comparative extent
of any injuries inflicted (ii) whether any such person is
threatening or has threatened future harm against another party
or another family or household member; (iii) whether any such
person has a prior history of domestic violence that the officer
can reasonably ascertain; and (iv) whether any such person acted
defensively to protect himself or herself from injury. The officer
shall evaluate each complaint separately to determine who is the
primary physical aggressor and shall not base the decision to
arrest on the willingness of a person to testify.” 18
Law enforcement can utilize a number of methods to determine whether
there is a history of domestic violence. One relatively easy way is to check the
central registry of existing orders of protection. Also, the victim may have in her
possession domestic incident reports documenting prior incidents of abuse or
orders of protection - even expired ones. Of course, a few simple questions
directed at the victim, her children, or her neighbors when the batterer is not
present may elicit a detailed account of past violence.
Law enforcement training has been cited as a key factor in reducing victim

The Family Protection and Domestic Violence Intervention Act of 1994 175
arrest and reducing officer bias. 19 Training for law enforcement should emphasize
the importance of utilizing all police reports, including past domestic incident
reports and protective orders. Diversity training to promote communication
between officers and complainants is an essential component of both effective
police investigation and response.
Preliminary research into the effects of the primary physical aggressor
legislation on dual arrests has been encouraging. Domestic violence advocates
believe that training of law enforcement on the primary physical aggressor
legislation has helped reduce the rate of dual arrests. 20 Application of the primary
aggressor laws were found to have a dramatic effect in Washington, where the
number of arrested victims of domestic violence dropped significantly as a result
of increased police training on domestic violence related issues. In 1985, “six
years after the passage of must-arrest laws, Washington’s dual arrest rate — the
factor used most often to determine whether victims are being wrongfully
arrested — was only 1.5%.” 21 Research conducted by the New York State Office
of Domestic Violence Prevention concerning dual arrests was inconclusive as it
took place prior to the enactment of the primary physical aggressor legislation.
Retaliatory Arrests
Unfortunately, the primary physical aggressor legislation did little to deter
retaliatory arrests, or “. . .exaggerated [and] false complaint[s] by an abuser
usually in retaliation for measures taken by the victim to protect herself or her
children.” 22 These retaliatory arrests appeared to be “partnered with potentially
dangerous and manipulative batterers who are learning how to use the law to
their own advantage.” 23 However, application of the primary physical aggressor
analysis was found to decrease the likelihood of retaliatory arrest. 24
The following recent case from a New York court illustrates the problems
that occur when law enforcement personnel do not apply the primary aggressor
analysis in a retaliatory arrest scenario: 25
Ms. C. was a twenty-six-year-old, Spanish-speaking immigrant.
She had three children ranging in age from three months to eight
years of age. She separated from her spouse who became
increasingly abusive after the baby was born and petitioned for
an order of protection from Family Court. Several weeks later,
her batterer contacted her to see the baby. When Ms. C. arrived
at his home to allow him visitation, she was terrified when he

176 Lisa Fischel-Wolovick
called the police. When the police arrived Ms. C could not speak
English and was helpless as her boyfriend alleged that she had
thrown the baby down the stairs. The baby was immediately
taken to the hospital emergency room where he was found to be
unharmed. The Administration for Children’s Services (ACS)
was contacted and after a thorough investigation they
determined that the boyfriend’s allegations were without merit.
However, ACS did believe that Ms. C and her children were in
danger and referred her to a domestic violence shelter.
Unfortunately, the police immediately arrested her and the
Criminal Court judge issued the abuser an order of protection
against Ms. C for himself and their five-week-old baby.
Although Ms. C entered a domestic violence shelter after
arraignment, with her older children from a previous marriage,
she was unable to have any contact with her infant.
An investigation by her attorney, a domestic violence
advocate, revealed that the boyfriend had been convicted of
assaulting his previous girlfriend in the presence of her children,
just three months before Ms. C was arrested. In fact, the father
of Ms. C’s youngest child was currently on probation for this
assault and had been ordered to stay away from both his former
wife and her children. Upon learning this information, the
Criminal Court judge amended the batterer’s existing order of
protection “to be subject to any Family Court orders of custody
or visitation.” Subsequently, this same attorney brought the
father’s criminal record to the attention of the Bronx Family
Court judge presiding over Ms. C’s petition for custody. The
Family Court judge immediately issued both a protective order
as well as a temporary order of custody of the baby on behalf of
Ms. C.
It took many more months before prosecutors agreed to
dismiss the criminal case against Ms. C.
Application of the primary aggressor standards, by taking note of a
complainant’s criminal history and record of protective orders against him, would
have reduced the risk of Ms. C being arrested. Diversity training, an understanding
of cross-cultural and language issues, would also have decreased the likelihood
of her arrest. New developments such as the Integrated Domestic Violence Part
would also have increased the communication between the two court systems.

The Family Protection and Domestic Violence Intervention Act of 1994 177
Practice Implications
Domestic violence advocates who encounter situations in which their clients
have been arrested need to determine if they have been subjected to retaliatory
arrests. It is critical to ascertain whether your client recently filed for child
support, an order of protection, or custody and if your client recently separated
from a very controlling batterer who seeks to force her to return to him. These
factors are all indications of a retaliatory arrest.
Advocates in Family Court who represent battered women who are the
target of a retaliatory criminal arrest should collaborate with the criminal defense
attorneys. This communication is critical as the Civil Practice Laws and Rules
utilized in Family Court allow for more extensive pre-trial discovery than the
Criminal Procedure Laws. Further, any statements made in a Family Court
proceeding may be introduced into evidence in the related criminal case.
Therefore, discovery obtained in a civil proceeding that would normally not be
admissible may inadvertently be made available in related criminal proceedings.
To avoid unnecessary disclosure it may be preferable to wait until the criminal
matter is resolved before initiating or proceeding with a Family Court custody
or order of protection hearing.
With the consent of the defense attorney it may be advisable to have your
client speak directly with the assigned Assistant District Attorney while her
attorney is present. However, careful thought should be given to the risks
involved in waiving your client’s Fifth Amendment rights by allowing this
meeting to take place. 26
It is clear that the DVIA has required amendments, continued collaboration,
and involvement on the part of the legislature, community, and domestic
violence advocates. It is not a perfect solution. However, it can be argued that
the existence of such laws has increased the public’s perception that domestic
violence is a criminal matter and is unacceptable. Such provisions as concurrent
jurisdiction have given battered women greater access to the remedies they
need. Further evidence suggests that, mandatory arrest, when combined with an
existing order of protection, reduces recidivism. This apparent reduction in
recidivism, combined with DVIA’s provisions fostering collaborative partnerships
between law enforcement and victim advocates, training, and tracking of domestic
violence incidents, have been instrumental in the protection of battered women
and their children. Skilled domestic violence advocacy requires careful history
taking, use of pre-trial discovery as well as timely collaboration with counselors
and the criminal bar.

178 Lisa Fischel-Wolovick
Notes
1. Laws of 1994, ch 222.
2. See Criminal Procedure Law § 140.10.
3. Linda Mills, Commentary: Killing Her Softly: Intimate Abuse and the
Violence of State Intervention, 113 Harv L Rev 550, 555 (1999).
4. Id. at 556.
5. Family Court Act § 813 (c).
6. Bruno v Codd, 47 NY2d 582 (1979).
7. Id. at 589; see also Thurman v City of Torrington, 595 F Supp 1521 (1984).
8. New York State Office of Domestic Violence Prevention, Evaluation of
DVIA Mandatory Arrest Provisions: Final Report,
http://www.opdv.state.ny.us/criminal_justice/police/finalreport/evaluation.html
(2001).
9. Id. at 13.
10. Id. at 24.
11. Id. at 24.
12. Id. at 24.
13. Laws of 2003, ch 303.
14. Laws of 2003, ch 222 (Legislative Memoranda).
15. Daniel G. Saunders, The Tendency to Arrest Victims of Domestic Violence:
A Preliminary Analysis of Officer Characteristics, 10 J of Interpersonal
Violence, at 147, 148 (June 1995).
16. Steven D. Epstein, The Problem of Dual Arrest in Family Violence Cases,
Connecticut Coalition Against Domestic Violence, October 21, 1987, at 1.
17. Criminal Procedure Law § 140.10(c).
18. McKinney’s Session Laws 2001.
19. D.A. Ford, The Impact of Police Officers’ Attitudes Towards Victims on the
Disinclination to Arrest Wife Batterers, Paper presented at the Third National
Conference for Family Violence Researchers, University of New Hampshire,
Durham, New Hampshire. See also Daniel G. Saunders, The Tendency to
Arrest Victims of Domestic Violence: A Preliminary Analysis of Officer
Characteristics, 10 J of Interpersonal Violence, at 147, 148 (June 1995).

The Family Protection and Domestic Violence Intervention Act of 1994 179
20. Mary Haviland, et al., The Family Protection and Domestic Violence
Intervention Act of 1995: A Report by the Family Violence Project of the
Urban Justice Center, 2001, at 68.
21. S. Crane, Washington’s Domestic Violence Prevention Act: Mandatory
Arrest Two Years Later, The Women’s Advocate, (Newsletter of the
National Center on Women and Family Law), May 1987, at 4.
22. Mary Haviland, et al., The Family Protection and Domestic Violence
Intervention Act of 1995: A Report by the Family Violence Project of the
Urban Justice Center, 2001, at 5.
23. Id. at 5.
24. Id. at 68.
25. Case before Hon. Alma Cordoya, Bronx Family Court, Part 8.
26. Where serious allegations are involved, it may be appropriate for the
criminal defense attorney to negotiate temporary immunity status to avoid
further charges being filed against your client.

Intimate Partner Sexual Violence
12
When Domestic Violence Victims Are Sexually
Assaulted: Meeting the Challenges
by Jill Laurie Goodman
Sexual assault is often woven into the fabric of the abuse batterers visit on
their wives and ex-wives, their lovers and ex-lovers, and the mothers of their
children. Batterers use rape and sexual abuse to maintain power and control
through the humiliation and fear it instills in their victims. They also rape
because they can — because the power and control they have achieved allows
them to act on their sexual impulses and proclivities without reference to their
partners’ willingness to participate or in the face of active resistance. Just as
rape is a potent weapon in war, so it is a powerful tool in intimate relations.
Ambivalence about rape in general, and intimate partner rape in particular,
stymies efforts to help victims. While our legal system has had no trouble
treating rape as a serious crime — rapists were executed in this country well
into the second half of the twentieth century1 — victims have been, and often
still are, treated with suspicion and contempt. Until recently, that ambivalence
was written into statutes themselves. In New York, within recent memory —
certainly during the lifetimes and even the legal careers of senior prosecutors
and judges — victims’ accounts were considered so inherently untrustworthy
that every single element of the crime of rape, including identification,
penetration, and resistance, had to be corroborated by some evidence besides the
victim’s word. 2 Not until 1974 did the New York legislature eliminate the bulk
of these onerous corroboration requirements. 3 So crippling was the evidentiary
burden in rape cases that in the early 1970’s New York courts typically
convicted only eighteen defendants of rape a year. 4
Another decade passed before inroads were made in the statutory exemption
that allowed men who raped their wives to escape criminal penalties, and then

182 Jill Laurie Goodman
it was the courts, not the legislature, that acted. In 1984, the Court of Appeals
decided People v Liberta5 holding New York’s marital rape exemption
unconstitutional. Rationales for the marital exemption were, the Court said,
“either based upon archaic notions about the consent and property rights incident
to marriage or are simply unable to withstand even the slightest scrutiny.” 6 At
the time Liberta was decided, 40 states still protected men who raped their
wives from criminal sanctions. 7 Many still do. Even in New York, vestiges of
the marital rape exemption remain on the books. 8
Although the most serious statutory obstacles to rape prosecutions have
been removed, ambivalence still underlies the response to rapists and rape
victims, and that ambivalence permeates the treatment of women, such as
victims of domestic violence, who are raped by men they know. They are not
considered, to use University of Southern California professor Susan Estrich’s
words, victims of “real” rape, a concept, she argues, that applies in popular
imagination only to women raped by strangers. 9 According to Professor Estrich,
“What the law seems to say and what it has been in practice are two different
things. In fact, the law’s abhorrence of the rapist in stranger cases . . . has been
matched only by its distrust of the victim who claims to be raped by a friend or
neighbor or acquaintance.” 10
Sexual violence in marriage and other intimate partner relations is pervasive,
if often denied. Diana H. Russell, in her ground-breaking work on marital rape,
interviewed over 800 married or formerly married women and found that 14%
of her respondents said they had been raped by their husbands, a figure that she
believes grossly underestimates the incidence of marital rape. 11 Other researchers
put the figure as high as 25%. 12 The proportion of domestic violence victims in
Russell’s study who were also rape victims, not surprisingly, is far greater. Nearly
half of the married women who were physically abused reported that rape was a
problem at least of equal dimension as other kinds of physical abuse. 13 Another
researcher has suggested that sexual assault may be the most common form of
intimate partner violence. 14
The trauma of intimate partner and marital rape is generally underestimated
as well. Yet, according to the women in Russell’s study, rape by a husband is
every bit as damaging as rape by a stranger. The lasting impact of wife rape is
even greater than that of stranger rape. Rape by a husband had “great” long-term
effects on the lives of 52% of wives, but on only 39% of victims of stranger
rape. 15 Post traumatic stress disorder is a common aftermath of sexual assault by
an intimate partner, 16 and, indeed, two of the women in Russell’s study
attempted suicide in response to marital rapes. 17

When Domestic Violence Victims Are Sexually Assaulted 183
For many reasons, rape by an intimate partner, particularly a husband, is
deeply traumatic. A woman who has been raped by her husband is unlikely to
tell anyone; if she does report the rape to authorities or confide in friends and
family, her word may well be doubted or the impact of her experience minimized.
She may be blamed, and she may blame herself. She is often cut off from the
natural sources of sympathy, support, and affirmation available to victims of
other serious crimes by her silence and by the responses her experiences elicit.
Betrayed by someone she has loved, she is left unsure about whether she can
trust anyone. She may feel unsafe in her own home. She is probably afraid of
her rapist and with good reason. She faces the very real possibility of another
rape, and maybe repeated rapes. In Diana Russell’s survey, 69% of the women
who were raped by their husbands were raped more than once and 31% were
raped more than twenty times. 18
One domestic violence victim described her perceptions of the impact of
marital rape compared to stranger rape saying:
He raped me — he ripped off my pajamas, he beat me up. I mean
some scumbag down the street would do that to me. ... It
emotionally hurt worse [than stranger rape]. I mean you can
compartmentalize it as stranger rape — you were at the wrong
place at the wrong time — you can manage to get over it
differently. But here you’re at home with your husband and you
don’t it expect that. I was under constant terror [from then on]. 19
The damage suffered by victims of intimate partner rape may be physical as
well as emotional. The rape is often accompanied by other physical violence, to
effectuate the rape or as part of a more general attack, or it may follow other
kinds of physical abuse. Victims of intimate partner rape, like victims of stranger
rape, may experience internal injuries; they may be left with sexually transmitted
diseases and scarring; and they may find themselves with unwanted pregnancies.
Representing Victims of Domestic Violence
Who Have Been Sexually Abused
Importance of Sexual Abuse to Your Client’s Case
If you are an attorney representing a woman who has been abused by a
male partner, you need to know if she has been sexually assaulted. The abuser
may still be raping her, and she may need help stopping him. You may want to

184 Jill Laurie Goodman
assist her in contacting the police and District Attorney’s Office, and she may
need an immediate referral to a rape crisis center. Stopping the sexual violence
is important not only because it is a form of abuse to which no one should be
subjected, but also because as long as it continues your client may be too fragile
to cope with any of the complex legal, emotional, and practical problems
encountered by domestic violence victims.
The sexual assault also may be important because legally it may be the most
serious offense her abuser has committed. Raising the sexual assault in
pleadings, motion papers, or oral arguments may be your most effective means
of getting the relief she needs, be it an order of protection, custody of her
children, permission to proceed confidentially in a lawsuit, or the immigration
remedies available to battered women.
Knowing about the sexual violence also may be critical to understanding the
nature of the abuse. It may be fundamental to the methods her abuser uses to
maintain power and control and the fear in which she lives. As a lawyer, you need
to do more than present a series of discrete facts, however believable each may be
in itself. The success of any legal proceeding depends on a theory or narrative that
makes the actions of the parties plausible. If the abuser has raped your client or
has forced her to engage in sexual acts that she finds repulsive or painful, if sexual
abuse is part of his arsenal of abuse, his actions are likely to have a profound
effect on how your client behaves. Explaining how much your client fears her
abuser — and many proceedings on behalf of abused women come down to the
issue of fear — is difficult without presenting the facts of the sexual abuse.
Interviewing
Important as sexual assault may be to your client’s experiences of abuse, she
probably will not volunteer information about sexual violence. The abuse may have
been intensely painful and humiliating and, for that reason, difficult to discuss. She
may be ashamed to talk about sexual matters with a stranger, particularly someone
who may be from a different culture, ethnicity, or class. Most likely she has
internalized to some extent the cultural message that rape by a husband or
intimate partner is not real rape. Particularly if she is married, she may believe
that her abuser has a right to use her sexually, no matter how much she hates it
or how much it hurts, and that she herself is to blame. Perhaps she does not
know that rape by her husband is a crime. If she is an immigrant, language
barriers and traditional cultural notions may exacerbate all of these difficulties.
If you are going to hear about sexual abuse, you will need to call on your
most sharply-honed interviewing skills. You should approach the topic gently,

When Domestic Violence Victims Are Sexually Assaulted 185
after you have established rapport with your client and demonstrated that you are
not going to judge or second-guess her. You should pose factual, non-conclusory,
open-ended questions. Rather than asking if her abuser raped her, a question that
hinges on how she defines rape, you should ask if her abuser has ever hurt her
during sex, if she has ever had sex when she didn’t want to, if the abuser used
threats or force to get her to have sex, or if sex was part of one of the incidents
of abuse she has already described. You might show her the Power and Control
Wheel, 20 a device domestic violence advocates often use in interviewing clients,
and ask your questions following the spokes of the wheel so that the client can
see the sexual abuse in relation to the other kinds of abuse. The Power and
Control Wheel will also help her understand that sexual abuse is a common
manifestation of domestic violence and that she is not alone. You also should be
prepared to assist her in processing the experience of sexual abuse, not by
taking an active counseling role yourself, but by making a referral to a trained
social worker or a rape crisis center.
As part of your interview, you should ask whether your client’s abuser used
pornography and whether he made her perform acts depicted in pornographic
pictures or videos. The use of pornography in intimate partner rapes is fairly
common, and it is often associated with the most brutal and sadistic intimate
partner sexual violence. 21 You should find out whether her abuser took pictures
or videos of her in sexual poses or involved in sexual acts, since these may be
used against her. You should also ask if he made her have sex with other people
— friends or paying customers.
Sexual Abuse in Civil Litigation
Although you may want, or feel you need, to use information about sexual
abuse in the course of representing your client, your client may disagree with
you. To help her understand and perhaps endorse the litigation strategy you think
best, you should explain how and why the incidents of sexual abuse are important
to her case and assure her that you know that she was not to blame for wrongs
that were done to her. You cannot, however, promise that everyone will share
your views, and you should prepare her for challenges to her credibility. In the
end, the choice about using the sexual abuse in the litigation has to be hers.
If your client is willing to address acts of sexual violence in litigation, they
can become part of the narrative you tell to explain the injuries to your client,
her actions, and her need for protection. You should consider including facts of
the sexual abuse in a Family Court petition for an order of protection, even
though rape is not one of the enumerated crimes that constitute a family offense.

186 Jill Laurie Goodman
The rape may come within the definition of one of the crimes, such as menacing
and assault, that is a family offense, and, even if it does not, raising it may
convince a judge that your client needs a strong order of protection, with
provisions that keep the abuser out of her home and far away from her. Sexual
abuse also may be pleaded in a matrimonial action as a form of cruel and
inhuman treatment, and it may be a cause of action in a tort case. Immigrants
who are not lawful permament residents may find that providing information
about sexual violence helps establish entitlement to immigration relief, such as
a VAWA self-petition, a battered spouse waiver, a U Visa, or asylum.
Your Role in Criminal Prosecutions
The sexual abuse to which your client has been subjected may be a crime.
In New York, rape in the first degree is sexual intercourse accomplished by
forcible compulsion, which is defined as the use of either physical force or
threats, express or implied, that put the victim in fear of death, kidnaping, or
physical injury to herself or another person. 22 Like attempted murder and first
degree robbery, it is a Class B felony, punishable by 5-25 years in prison. 23
New York courts have taken a sufficiently expansive view of forcible
compulsion to permit victims of intimate partner sexual violence to present
evidence that conveys the kind of fear and physical force that their abuser may
have used against them. Courts agree that the nature of the force must be analyzed
from the point of view of the victim or, as one court said, “The proper focus is on
the state of mind produced in the victim by the defendant’s conduct.” 24 Evidence
of previous violent acts or forced sexual intercourse removed in time from the
rape has been used to establish ongoing fear demonstrating forcible compulsion. 25
In one case in which an appellate court found sufficient forcible compulsion to
support a conviction, evidence was admitted showing that the defendant had
attacked the victim a few days before the rape and, on the night of the rape,
confined her in a bedroom, sliced her clothes, sheets and mattress with a box
cutter and threatened to “drop” the victim and her daughter, a threat the victim
understood to mean he would kill her and her child. 26 In another case, evidence
was admitted showing that the defendant had made threats to the victim’s mother
and sister and had sexually molested the victim both before and after the rape for
which he was being tried. 27 Stalking, by contacting the victim repeatedly at work
and at home for several days prior to the sexual attack, has also been allowed to
show forcible compulsion. 28
If you think the sexual abuse qualifies as a crime, you should consider
encouraging your client to contact a district attorney’s office and to assist in the

When Domestic Violence Victims Are Sexually Assaulted 187
prosecution of the rape. Prosecuting her abuser may be one way to keep her
safe. She may be granted an exclusionary order of protection at the time of his
arraignment. A conviction may effectively convey the message that he cannot
get away with harming her or forcing her to live in fear. Ultimately, putting him
behind bars may be the best means of keeping her abuser away from her.
If your client does want to proceed with the prosecution, you should prepare
her for the difficulties that may lie ahead. As the complaining witness in a rape
case, her credibility will be at issue. You should warn her that if the case goes to
trial, her word will be questioned, her character will be attacked, she may be
called a liar, and the defense may label her crazy, hysterical, vengeful, or mentally
disturbed. You should also tell her that what she is doing is important and that
you will support her.
If your client’s case is prosecuted, you and she will no longer be in control
of the proceedings. Choices about strategy and the ultimate resolution of the case
will be in the hands of the prosecutor, whose perspective and responsibilities are
different from yours. However, you can and should stay involved as an advocate
for your client. You should be in touch with the assistant district attorney, keep
abreast of the status of the case, and let the prosecutor know what you and your
client think about possible plea bargains and sentences. You should keep track
of any orders of protection issued by the criminal court, and you should know if
your client’s abuser is in jail or likely to be released. You should make sure that
the strategies in civil proceedings complement those of the prosecution and that
allegations used in different forums are consistent. Since you probably know the
victim well, you may be able to provide details about non-sexual abuse and help
the prosecutor understand the danger the defendant poses to your client.
Prosecuting Cases of Intimate Partner Sexual Abuse
When the defendant in a sexual assault case is an intimate partner, prosecutors
face all of the difficulties of prosecuting domestic violence and all of the difficulties
of prosecuting non-stranger rape. Each alone is substantial, and together they
make for formidable challenges.
Reluctance of Victims to Testify
The first challenge prosecutors confront is the reluctance of most victims to
proceed with a criminal case. Like other domestic violence victims, a victim of
intimate partner sexual assault may be bound to the defendant by feelings of

188 Jill Laurie Goodman
affection or guilt, and, while she may want to stop the abuse, she still may seek
to avoid causing her abuser harm. She, like other domestic violence victims,
may be economically dependent on her abuser and therefore loathe to see him
incarcerated. She may simply be terrified by his threats to harm her if she
participates in the case against him. The prosecution may move forward while
she is trying to rebuild her life, looking for a job and housing, or still recovering
from psychic and physical trauma. Even more than other rape victims, a victim
of intimate partner rape faces questions about her credibility, and, like other
victims of non-stranger rapes, these questions may go directly to her character.
She may find that friends and family share societal prejudices against women
who are victims of rape. The closer and more intimate the victim and defendant,
the greater the victim’s reluctance to proceed with the prosecution may be, and
if the victim and perpetrator are married, the difficulties may be great indeed.
As a prosecutor, you can try to overcome a victim’s reluctance by providing
support. You can listen to her, make clear you believe her, and let her know that
you understand the courage it takes to go forward with this kind of case. You
should make sure she has access to resources in her community, both domestic
violence agencies and rape crisis centers. Consulting with her about strategy,
among other things, confirms your commitment to her.
You should also tell the victim why you think this prosecution is important.
If you believe the defendant is a serious threat to the community and should be
in prison to protect the public from his violence, you can explain that her
participation is important not just for herself but for others. If her own safety is
a major issue and you think other charges against him, for example, assault or
burglary, will not result in the kind of sentence that will keep him from harming
her again, you should let her know your concerns. If you see a pattern of attacks
increasing in frequency and severity that make you fear for her life, you should
tell her.
Credibility
Like civil practitioners, you will have to confront sharp attacks on the
victim’s credibility. Stranger rape prosecutions are likely to hinge on questions
of identification, and the victim will probably be portrayed as mistaken, rather
than lying, and the attacks on her may be muted. Intimate partner sexual rape
cases are likely to pit the victim’s word against the perpetrator’s, so demolishing
the victim’s character commonly is the defense strategy of choice.
As prosecutor, you should look for supporting and corroborating evidence
that will enhance the victim’s credibility. You may be fortunate enough to have

When Domestic Violence Victims Are Sexually Assaulted 189
physical evidence, such as torn or bloody clothing. You may be able to locate
family or neighbors who heard screams or saw her soon after the attack. The
victim may immediately have told someone she was raped so that her statement
is admissible as “outcry” evidence, an ancient exception to the hearsay rule. You
should also seek out evidence, such as telephone or credit card records, that may
corroborate her word on collateral issues and establish her as a credible witness
so that her testimony on uncorroborated points also will be believed.
Ultimately, situating the sexual assault in the context of a pattern of abuse
may be the best approach to making the victim’s account believable. Just as
information about the sexual assault may be necessary to complete and make
credible the narrative of the victim’s abuse, so the non-sexual abuse may be
essential to understanding the rape. How her abuser managed to evoke terror
sufficient to accomplish the rape may not be obvious otherwise. Once abusers
have established their dominance by violence, they may need little to evoke the
fear that will make their victims comply with their demands. Threats that were
once overt become oblique and, to outsiders, obscure. If the abuser’s birthday
was the occasion of a particularly brutal attack, he may produce fear just by
telling her to remember June 16th. If he excuses his violence by saying that his
victim made him angry, all he may need to do is say, “You don’t want to make
me mad” to have her do as he demands. The threat need not be verbal. Walking
into her apartment, dead-bolting the door, and unplugging the phone may be
enough to terrify her. If he has hurt her badly in the course of raping her in the
past, she may know that if he wants sex the surest way to avoid injury is to offer
no resistance.
As a prosecutor you are free to introduce evidence that puts apparently
harmless gestures and actions into a context in which they can be seen as forcible
compulsion. New York courts have carved out exceptions to the general rule
against admitting evidence of previous violent acts that provide prosecutors with
considerable latitude. According to a line of New York cases reaching back at
least a hundred years, evidence of other bad acts is admissible as long as the
probative value of the evidence outweighs its prejudicial effects. 29 As one court
said recently, uncharged crimes or bad acts may be admitted whenever they are
“inextricably interwoven with the charged crimes, provide necessary background
or complete a witness’s narrative.” 30 Testimony describing the defendant’s
physical abuse of his wife has been permitted in murder cases31 and evidence of
physical abuse of a third party — the mother of a victim of sodomy — has been
allowed to show the fear that constituted forcible compulsion in a rape case. 32
In one recent case suggesting the leeway prosecutors may have to present a

190 Jill Laurie Goodman
nuanced story of the victim’s life, an appellate court, affirming convictions for
rape and sodomy, found no error in the trial judge’s allowing evidence “of
previous acts of domestic violence, which like the charged crimes, were spawned
of defendant’s jealousy concerning what he perceived to be the victim’s
relations with other men.” 33
Bias Against Victims of Non-Stranger and Particularly Marital Rape
Prosecutions for intimate partner sexual assault and particularly wife rape
must navigate the prejudices against victims of anything short of “real” rape.
Law can change literally overnight, as it did when the Court of Appeals decided
People v Liberta and declared the marital rape exemption unconstitutional, 34 but
attitudes take longer to transform, and jurors bring their cultural biases with
them to the jury box.
You can use jury selection to begin to educate jurors, and you can ask
prospective jurors to make a commitment to upholding the law. Opening
statements and summations are times to remind jurors of their sworn obligations
to enforce the law as it is, not as it was or as they would like it to be. In the end,
presenting the narrative of the victim’s life, her fears, her suffering, and her
methods of coping with violence, may be the best, although necessarily
imperfect, means of overcoming biases against believing the victim of intimate
partner or marital rape, getting a conviction that holds the rapist accountable,
and protecting the victim and the public.

Notes
When Domestic Violence Victims Are Sexually Assaulted 191
Jane Manning, former Queens County District Attorney, was the prime source
of inspiration and wisdom for this chapter.
1. The death penalty for rape was constitutional until the Supreme Court
decided Coker v Georgia, 433 US 587 (1974).
3. Report of the New York Task Force on Women in the Courts, 15 Fordham
Urban L Journal 1, 50, n 112 (1986-1987) [New York Task Force on Women
in the Courts]. For a full discussion of corroboration requirements, see
Susan Estrich, Real Rape: How the Legal System Vicitimizes Women Who
Say No, 42-47 (1987) [Real Rape].
4. New York Task Force on Women in the Courts, supra note 3, at 50, n 112.
5. Id. at n 110.
6. 64 NY2d 151 (1984).
7. Id.
8. Id.
9. See e.g. Penal Law §§ 130.00(3), 130.10(4).
10. Real Rape, supra note 4. Ms. Estrich, who was raped by a stranger, says, “I
am lucky because I was ‘really’ raped. When I tell my story, no one doubts
my status as a victim. No one suggests that I was ‘asking for it.’ No one
wonders, at least out loud, if it really was my fault. No one identifies with
the rapist.” Id. at 3.
11. Id. at 4.
12. Diana H. Russell, Rape in Marriage, 57-59 (1982) [Rape in Marriage].
13. Raquel Kennedy Bergen, Surviving Wife Rape: How Women Define and
Cope With the Violence, 1 Violence Against Women 117 (1995) [Surviving
Wife Rape].
14. Rape in Marriage, supra note 12, at 91.
15. Surviving Wife Rape, supra note 13, at 117.
16. Rape in Marriage, supra note 12, at 192-93.
17. Id. at 199-205; Robin Warshaw, I Never Called It Rape, at 68 (1994).
18. Rape in Marriage, supra note 12, at 198.

192 Jill Laurie Goodman
19. Id. at 111.
20. Surviving Wife Rape, supra note 13, at 132.
21. Various versions of the Power and Control Wheel are reproduced as an
Appendix to this volume.
22. Surviving Wife Rape, supra note 13, at 157.
23. Penal Law §§ 130.35(1), 130.00(7).
24. Penal Law § 70.02(3)(d).
25. People v Hill, 163 AD2d 852 (4th Dept 1990); see also People v Jackson,
290 AD2d 644, 646 (3d Dept 2002); People v Jenkins, 282 AD2d 926, 928
(3d Dept 2001).
26. People v Greene, 306 AD2d 639 (3d Dept 2003); People v Peraza,
288 AD2d 689 (3d Dept 2001); People v Jenkins, 282 AD2d 926 (3d
Dept 2001); People v Thompson, 158 AD2d 563 (2d Dept 1990).
27. People v Jenkins, 282 AD2d 926 (3d Dept 2001).
28. People v Greene, 306 AD2d 639, 642 (3d Dept 2003).
29. People v Sturdivant, 277 AD2d 607 (3d Dept 2000).
30. People v Rojas, 97 NY2d 32 (2001); People v Molineux, 168 NY 264 (1901).
31. People v Tarver, 2 AD3d 968 (3d Dept 2003).
32. People v Vega, 3 AD3d 239 (1st Dept 2004); People v Biernbaum,
301 AD2d 119 (1st Dept 2002).
33. People v Rogner, 265 AD2d 688 (3d Dept 1999).
34. People v Poquee, 9 AD3d 781 (3d Dept 2004).
35. 64 NY2d 151 (1984).

Although stalking is a crime under the laws of all 50 states, the District of
Columbia and the federal government, police, prosecutors, judges, victims’
advocates and, indeed, the victims themselves often fail to perceive it as a
specific crime. Yet stalking behavior is surprisingly prevalent. The National
Center for Victims of Crime estimates that over one million women and nearly
375,000 men are stalked annually in the United States. 1 Stalking demands early
attention and intervention because it is highly correlated with, and often is a
precursor to, other forms of violent crimes. Estimates vary, but stalkers are
believed to commit violent acts against their targets in 25 to 35% of cases. 2
Intimate partners who stalk their victims are four times more likely than
intimate partners in the general population to physically assault their partners
and six times as likely to sexually assault their partners. 3 According to national
crime statistics, 76% of femicide victims had been stalked by the person who
killed them. 4
What is Stalking?
13
Taking Stalking Seriously
by Hilary Sunghee Seo
Stalking behavior may manifest itself in a variety of ways, but all stalking
has two common features. First, stalking involves repeated victimization of a
targeted person. Therefore, to understand stalking, a series of acts directed at the
victim must be examined together in the context of each other. Second, stalking
is a crime that is defined, at least in part, by the fear it instills in the victim.
Typical examples of stalking behavior include following a person, lying-in-wait,
sending unsolicited letters and gifts, vandalizing the victim’s property, or
threatening to harm the victim’s family members or friends. Stalking may begin
with acts which, taken in isolation, appear insignificant or coincidental, but as

194 Hilary Sunghee Seo
the stalker increases the number and types of contacts, the stalker’s actions begin
to form a pattern of behavior that is objectively threatening and frightening to the
victim. Stalking victims often suffer profound psychological and emotional
harm as a result of the stalking experience.
Stalking and Domestic Violence
Despite the misimpression created by a few, highly publicized cases
involving strangers stalking celebrities, the majority of stalking victims know
their stalkers in some way. There is a close connection between domestic
violence and stalking. In fact, domestic violence often includes some form of
stalking. In the context of intimate relationships, stalking, and the fear, anxiety
and uncertainty it causes in the targeted person, become one more tool used by
the abuser to exert power and control over the victim.
A recent national survey by the National Institute of Justice bore out the
links between abusive and controlling behavior and intimate partner stalking.
Women with ex-husbands who stalked them were more than twice as likely as
women with ex-husbands who did not stalk them to report that their ex-husbands
had tried to limit their contact with family and friends (77.1% versus 32.3%),
had frightened them (92.2% versus 33.1%), made them feel inadequate (85.5%
versus 44.5%), prevented them from knowing about or having access to family
income (59.6% versus 20.8%) or prevented them from working outside the
home (30.7% versus 13%). 5
The New York Anti-Stalking Statute
The New York State Anti-Stalking Act became law in 1999 and created four
new crimes of stalking. 6 In passing this legislation, the New York State legislature
noted that stalking victims in New York “have been intolerably forced to live in
fear of their stalkers, . . . [that] stalkers who repeatedly follow, phone, write,
confront, threaten or otherwise unacceptably intrude upon their victims, often
inflict immeasurable emotional and physical harm upon them . . . [and that New
York’s] law must be strengthened to provide clear recognition of the dangerousness
of stalking.” 7

Crimes of Stalking
Taking Stalking Seriously 195
The basic elements of each can be summarized as follows:
Stalking in the Fourth Degree
Stalking in the Fourth Degree (Penal Law § 120.45) is divided into three
subsections and describes three separate crimes. All of the subsections prohibit
a person from (a) intentionally engaging in (b) a course of conduct (c) for no
legitimate purpose (d) directed at a specific person when he or she knows — or
reasonably should know — that the conduct is likely to cause the targeted
person to fear harm. 8
The first subsection of stalking in the fourth degree has the most general
language and defines and prohibits stalking without enumerating individual
types of actionable stalking behavior. In addition, unlike the other two subsections,
this subsection does not specifically require that the defendant previously be
warned to cease his or her conduct. 9 Subsection two covers conduct such as
“telephoning or initiating contact with victim, victim’s immediate family or
victim’s acquaintances” when the defendant knows or reasonably should know
that the conduct would cause material harm to the mental or emotional health of
the targeted person. 10 Subsection three focuses on stalking in the workplace. 11
Stalking in the Fourth Degree is a Class B Misdemeanor.
Stalking in the Third Degree
Stalking in the Third Degree (Penal Law § 120.50) makes it a crime to,
among other things, engage in an intentional course of conduct directed at a
victim with the intent to harass, annoy, or alarm the victim, when the conduct
is likely to cause the victim to fear physical injury or other serious harms, either
to herself or to the members of her immediate family. 12 Stalking in the Third
Degree is a Class A Misdemeanor.
Stalking in the Second Degree
Stalking in the Second Degree (Penal Law § 120.55) is a Class E felony and
covers, among other things, stalkers of children and stalkers who display,
possess and threaten the use of dangerous weapons. 13
Stalking in the First Degree
Stalking in the First Degree (Penal Law § 120.60) is a Class D felony and
covers stalkers who, in the commission of Stalking in the Second Degree or
Stalking in the Third Degree, intentionally or recklessly cause physical injury to
the victim or commit a specified sex offense. 14

196 Hilary Sunghee Seo
Overview of Noteworthy Features
There are several features of New York’s anti-stalking statute worth
highlighting. First, the course of conduct requirement does not specify a time
frame. The series of proscribed conduct can take place over a few hours, the
course of a day or over a few months. Second, subsection one of Stalking in the
Fourth Degree — which not only is an independent crime, but may be a crucial
building block to making out the elements of the more serious stalking crimes
— does not limit stalking behavior to a pre-selected list of actions. This reflects
acknowledgement by the legislatures that stalking behavior may manifest itself
in novel and, indeed, ingenious ways. Third, the statute shifts the focus from the
stalker’s specific intent to annoy, harass, threaten or alarm, to the impact of the
stalker’s actions on a reasonable person. The stalker’s specific intent may be
difficult to prove in cases in which the stalker claims that he was acting out of
love, concern or some other motive. Fourth, only some of the least serious
charges of stalking require that the stalker be “clearly informed to stop.”
Typically in stalking cases, even if the victim does not verbally tell the stalker to
stop, her behavior and the context taken as a whole would make it eminently
clear to a reasonable person that the stalker’s attentions are unwelcome and his
behavior intimidating and threatening. Fifth, the statute covers not only the
victim but his or her immediate family and acquaintances. It defines immediate
family as spouse, former spouse, parent, child, sibling or any other person who
regularly resides or has regularly resided in the household of the victim, a much
broader definition than the definition of family used for family offenses. 15
Moreover, the resulting harm is inclusive. For example, the proscribed conduct
includes acts likely to cause a reasonable person to fear (i) material harm to his
or her “physical health, safety or property” or (ii) that his or her job, business or
career is threatened. 16 This is a much broader set of harms than the “fear of
physical injury” or “fear of serious physical injury” required by the menacing
and harassment statutes. In sum, the comprehensive approach of the stalking
statutes makes it possible to sanction stalking at its earlier stages, before it
escalates into more violent behavior.
The facts of People v Stuart, a recent New York Court of Appeals case,
demonstrate this point well. 17 In Stuart, the defendant stalked a young woman
named Tracy DiNunzio, a stranger to him, by repeatedly coming into her visual
and physical presence. 18 He did this by following her at a close distance, lying
in wait for her and suddenly appearing at a close distance when she emerged
from stores and buildings, standing close to her and making his presence felt at
cafes and stores, and standing outside the window of her gym and her bank and

Taking Stalking Seriously 197
staring at her. 19 During one of their first encounters at a coffee shop, Stuart asked
DiNunzio to sit down and have a cup of coffee with him. When she declined, he
asked her out to dinner, and when she refused that offer, he presented her with a
heart-shaped box of chocolates and a hand-drawn picture of her with her name
handwritten at the bottom. DiNunzio testified that she “made it clear” to the
defendant that she did not want any further contact with him, but when he
insisted, she took his gifts and left the shop. 20 As would be expected of a
reasonable person, DiNunzio felt “uncomfortable” and “creeped out” in the
beginning, but increasingly felt “very scared,” “very unsafe in her neighborhood”
and generally, very threatened. 21 DiNunzio significantly altered her daily
routines to avoid Stuart by, for example, not going out by herself or by staying
over at a friend’s house more frequently. 22
It appears from the record that the defendant never overtly threatened
DiNunzio verbally or physically. Moreover, although she communicated through
her body language that the Defendant’s gestures were unwelcome, it is unclear
whether she told him explicitly to stop. Under New York’s harassment and
menacing statutes, with the exception of Harassment in the Second Degree, which
is only a violation, DiNunzio would have had to show that the stalker intentionally
placed or attempted to place her in reasonable fear of physical injury, serious
physical injury or death. Given the facts, she probably would not have been
successful. She would have had to wait until her stalker escalated his behavior.
Finally, it should be noted that family court and criminal court have
concurrent jurisdiction over all domestic violence stalking cases. Courts must
consider prior stalking convictions as a factor when deciding whether or not
firearms should be ordered surrendered and licenses revoked or suspended. 23
Moreover, certain “bump-ups” in charging may be applied to repeat offenders.
For example, a person is guilty of Stalking in the Third Degree if he or she has
committed the crime of Stalking in the Fourth Degree against three or more
persons for which the stalker previously has not been convicted, or commits the
crime of Stalking in the Fourth Degree within ten years of another Stalking in
the Fourth Degree conviction. 24
Assisting Stalking Victims
Because stalking behaviors are varied, unpredictable and may involve a
combination of criminal and (on their face) non-criminal acts, stalking victims
may find it difficult to recognize that they are victims of crimes and effectively

198 Hilary Sunghee Seo
communicate to those around them the level of danger and risk they face.
Immigrant victims who are not proficient in English may have an especially
difficult time communicating the significance of the stalker’s contextualized
actions and the fear they engender. Compounding the difficulty is the fact that
stalking is difficult to investigate and, in the context of domestic abuse, often
eclipsed by more obvious forms of violence, such as physical or sexual assault.
In addition, because of the relative paucity of stalking arrests and convictions,
police, prosecutors and even judges may lack sufficient training and expertise
to recognize stalking behavior.
When you encounter a client whom you believe may be a victim of
stalking, you should ask questions, help gather more information, assess the
risk, devise a safety plan, and develop a supportive network of trusted friends
and family that can help protect her. Here are some points to keep in mind: 25
Assess the Stalker’s Characteristics
Stalking victims may not realize that they are being stalked, especially if the
stalker is an intimate partner. Perform a simple stalking offender characteristics
assessment. Ask whether your client would describe the stalker as jealous or
extremely possessive, obsessive or manipulative; as someone who has fallen
instantly in love with her or someone who needs to have control over other
people; as someone who is unable to take “no” for an answer or someone who
quickly and frequently swings from rage to “love;” or as someone who has
difficulty distinguishing between fantasy and reality and has a sense of
entitlement about the client.
Let the Client’s Perception of Fear Guide You
Why do the stalker’s actions cause her fear? Remember, context is everything,
and she will know best the significance of the stalker’s words and actions. If
possible, also talk to her friends and family members who are familiar with the
situation. Their levels of fear and concern should also be taken into account.
If she is an immigrant and you are not familiar with the cultural norms and
practices of her community, try to mobilize the assistance of someone who may
be able to help you in deciphering the cultural clues and red flags. A phrase or
gesture that does not translate well into English may be widely understood in
that culture as a death threat, for example.

Taking Stalking Seriously 199
Assist Your Client in Identifying Other Types of Past Stalking
Behavior to Help Establish a Course of Conduct
Ask whether the stalker has engaged in any of the following behaviors in
the past: gathering information about her from her family, friends, the post
office, internet, employer, school or other sources; persistently approaching her
and asking for dates, meetings or other contact; leaving her notes or unwanted
gifts; sitting or standing outside her home or work place; driving by her home or
work place, or waiting next to her car in the parking lot; taking photographs of
her without her permission; sending threatening mail, email or notes; calling her
incessantly to “check up on her;” threatening her family or friends; breaking
into or entering her home; or physically or sexually assaulting her.
Ask your client whether she has done any of the following in the past in
response to the stalker’s behavior: moved to a new residence; changed jobs or
requested a transfer; obtained a new phone number; asked a friend to escort her
to her car or her home; put extra locks on her home; altered her work schedule
or travel routines; sought refuge in a shelter; or bought a personal protection
device such as mace or pepper spray.
Map out the client’s life (home, job, school, friends’ homes, etc.) to predict
where the stalker will strike next. This will help both with safety planning and
monitoring the stalker.
Develop a Log
Ask your client to use a calendar and, whenever possible, a camera to document
the “when, where and how” of the stalker’s modus operandi. Of course, any such
action should only be taken after carefully considering the risks to her safety.
Help Gather Evidence
Collect recorded phone messages, email messages, letters, notes, cards, gifts,
domestic incidence reports or police reports, orders of protection, and relevant
photos, videos and recordings that will help document the stalker’s pursuit of
your client.
Mobilize Support for Your Client
Encourage your client to contact and confide in trusted friends, family
members, neighbors and co-workers who can help her monitor the stalker, gather
evidence, assess the evolving risk situation, alter her daily routines and keep safe.

200 Hilary Sunghee Seo
Advocate for Your Client with the Police
Advise your client to report each incident of stalking to the police and to
keep copies of all the reports; remind the police to cross reference and let them
know of other reports in other locations. If you feel that the police are not taking
your client’s concerns seriously and are reluctant to arrest the stalker, you may
wish to, with the prior consent of your client, advocate with them directly, either
by accompanying your client to the precinct or discussing her case with them
over the telephone.
Discuss Ongoing Safety Planning
Advise your client to: change her home telephone number and locks; travel
with others whenever possible; tell others where she is going and when she
expects to return; keep a list of important phone numbers and the location of
nearest police stations handy; vary work routes and schedules; keep money, a
suitcase of clothes, backup keys and copies of important papers in a safe place;
and keep her home address and phone number confidential.
Assist Your Client in Filing a Family Offense Petition
If your client is the victim of intimate partner stalking such that a family
court will have subject matter jurisdiction of her case, you should discuss with
your client the pros and cons of obtaining a family court order of protection. In
family court, your client would be in control of her own case and would not
have to rely on the criminal justice system to prosecute the case on her behalf.
In most cases, on the same day she files a family offense petition, the family
court judge will hear her case and grant her a temporary order of protection.
Based on the facts of the case, the judge may grant her a “stay away” order of
protection prohibiting the stalker from her home, her work place and from coming
within a specified distance from her. Depending on the stalker’s personality and
characteristics, such an order of protection, even while temporary, may afford
your client with a strong degree of protection. On the other hand, initiating a case
in family court would mean that your client has to have her stalker served and see
him repeatedly in court. This may provoke the stalker and have the perverse effect
of further compromising her safety. If your client decides to file a family offense
petition in family court, you should accompany her to court and assist her in
preparing the family offense petition whenever possible and try to find qualified
legal counsel who can help her.

Conclusion
Taking Stalking Seriously 201
The enactment into law of New York’s Anti-Stalking legislation was an
important step in providing essential protection to a category of crime victims at
grave risk of serious psychological harm, physical injury, and even death.
However, stalking laws must be enforced to be effective. Crucial at this point is
educating law enforcement officers, prosecutors, judges, health care professionals
and the general public. Your role as victim advocate can be crucial in mobilizing
a coordinated, effective and victim-centered response to stalking that can help
secure her safety and bring her stalker to justice.

202 Hilary Sunghee Seo
Notes
1. See Stalking Fact Sheet, Stalking Resource Center, The National Center For
Victims of Crime, http://www.ncvc.org/src (hereinafter Stalking Fact Sheet).
2. Meloy, J. Reid, ed, The Psychology of Stalking: Clinical and Forensic
Perspectives (1988), quoted in Creating an Effective Stalking Protocol, Office
of Community Oriented Policing Services, US Department of Justice, FN 7.
3. Stalking in America: Findings From the National Violence Against Women
Survey, National Institute of Justice Centers for Disease Control and
Prevention, April 1998 at 8 (hereinafter NIJ Stalking Survey).
4. See Stalking Fact Sheet.
5. See NIJ Stalking Survey at 9.
6. Clinic Access and Anti-Stalking Act of 1999, codified in Penal Law §§
120.45, 120.50, 120.55 and 120.60.
7. See McKinney’s 1999 Session Laws, ch 635 § 2.
8. Penal Law § 20.45.
9. Penal Law § 20.45(1).
10. Penal Law § 20.45(2).
11. Penal Law § 20.45(3).
12. Penal Law § 20.50.
13. Penal Law § 20.55.
14. Penal Law § 20.60.
15. Penal Law § 20.40(4).
16. Penal Law § 20.45(1) and (2).
17. People v Stuart, 765 NY2d 1 (2003).
18. See trial transcript of DiNunzio’s testimony.
19. Id.
20. Stuart, 765 NY2d at 3, 4.
21. Trial transcript of DiNunzio’s testimony at 63-64, 93, 100-01.
22. Id. at 99.

Taking Stalking Seriously 203
23. Family Court Act § 42-a; Criminal Procedure Law § 30.14; and Domestic
Relations Law § 40.3.e. and 52.9.
24. Penal Law §§ 20.50(1) and (4).
25. Derived from the Stalking Offender Characteristics Assessment developed
by the Unity House of Troy, Inc. and Understanding Stalking Laws,
presented by Lisa A. Frisch, Executive Director, The Legal Project, Victim
Assistance Academy, Center for Women and Government & Civil Society.

Her ex-boyfriend lured her to a rooftop telling her he wanted
to talk about getting back together. They needed a quiet
place to talk. She wanted to believe him although she had left the
relationship because he had beaten her once too many times and
she was seeing someone else. She knew in her heart he loved her,
but she finally felt strong enough to tell him it was really over
and that they both needed to move on. She entered the building,
passing a boy on the staircase, and went up the stairs to the roof.
He was there waiting for her and closed the door behind her.
He told her that it would never be over — that if he couldn’t
have her, nobody could. He took out a hammer and began
striking her on the head, fracturing her skull, splattering her
blood and brain matter on the roof. As she fell to the ground, he
ran, leaving her alone and critically injured. She was able to
crawl down the fire escape. A neighbor heard her screams and
called the police, who found her near death. Through sheer will
and quick medical intervention, she lived to see him arrested.
However, she really wanted no part of the prosecution of the man
who attempted to end her life. Prosecutors intended to try him
for attempted murder and assault in the first degree. 1
14
Prosecuting A Domestic Violence Case:
Looking Beyond Victims’ Testimony
by Elizabeth Cronin
The prosecution of domestic violence cases has always been difficult. For
many years, intra-familial violence was seen as a private issue, not something
for the courts and law enforcement to address. Women were not encouraged to
report domestic violence. They risked being ostracized if they came forward,
and, when they did, they often found an unsympathetic criminal justice system.

206 Elizabeth Cronin
Moreover, victims faced a real risk of retaliation by offenders for leaving the
relationship, especially if the offender was arrested or if there were children.
Victims were rightly concerned that the orders of protection they were offered
were nothing more than pieces of paper.
Each year more than 1700 women are murdered by their partners. 2 The
American Medical Association estimates that up to four million women per year
are battered by their husbands or partners. 3 These figures are both staggering
and numbing. Traditionally, police responded by making an arrest only as a last
resort; they preferred to allow the individuals to work it out with or without social
service intervention. 4 Even the American Bar Association had recommended that
police attempt to quell domestic disputes without resorting to arrest. 5 Victims were
not encouraged or even allowed to pursue criminal charges against their abusers.
Those who did often faced a hostile system filled with untrained professionals.
Police, medical responders, prosecutors and judges were often uneducated in the
social and psychological dynamics of abuse and grew easily frustrated at victims
who were uncertain about pursuing charges after arrest.
As a deputy bureau chief of the Domestic Violence Bureau in the Westchester
County District Attorney’s Office, I saw innumerable cases of women who
changed their minds after arrest and did everything they could to thwart
prosecution efforts to convict the offender. The reasons were varied. Some had
real financial concerns, others were afraid for their safety and that of their
children. Many were so entrenched in the cycle of violence that they went back
out of habit. Even women who had orders of protection issued would take the
men back once the offenders apologized and promised never to hurt them again;
they would act out of pity, guilt, lingering affection or misplaced hope. Many
victims expressed the belief that even with a successful prosecution, nothing
would change, and, when he got out of jail, he would come back to get her.
Consequently, there seemed to be light at the end of the tunnel when, in
1994, Congress passed the Violence Against Women Act (VAWA), 6 which
allocated $1.6 billion to fight violence against women by, among other things,
providing funds to educate police, prosecutors and judges, supporting battered
women’s shelters and, perhaps most critically, mandating arrests for domestic
violence crimes. That same year, the New York State Legislature passed the
Family Protection and Domestic Violence Intervention Act of 1994, which
amended Criminal Procedure Law § 140.10 to include mandatory arrests for
particular domestic violence crimes. 7 The mandatory arrest policy was unique:
for all other crimes in the State of New York, police officers “may” arrest a
person, but the new statute obligated the officer to make the arrest. 8 Now,

Beyond Victims’ Testimony 207
prosecutors no longer had to convince police to make an arrest nor would they
need the victim to file charges. In 2000, VAWA was extended by Congress to
include teenage victims of domestic violence.
Obviously, working in tandem with the victim is the best scenario and
prosecutors must always balance the needs of the victim against the need of the
community to prosecute offenders. There is a delicate balance that prosecutors
must strike in making a decision about whether to proceed with a case without
the victim’s consent. Without negating the real feelings of fear and the very real
sources of danger, the prosecutor can stress how empowering it can be to take a
stand against the abuse. It is essential to ensure that social and psychological
services are available to assist the victim.
There are some tools in the prosecutor’s belt that allow for a prosecution
without depending on the victim’s cooperation. These tools are part of building
a strong case whether or not the victim is likely to testify. Indeed, a strong
enough case may encourage the abuser to take a plea without going to trial and
thus eliminate the need for the victim to testify.
While murder and serious assault charges are often associated with domestic
violence cases, prosecutors are more likely to see misdemeanor assault, harassment
and criminal contempt. Prosecutors need to be flexible and creative in considering
what charges to bring. If a victim is uncooperative and there are no physical
injuries making an assault or harassment more difficult to prove, other crimes
should be considered, such as criminal mischief for destroying property, which
may even rise to the level of a felony. 9
The first step in successfully prosecuting a case without victim cooperation
is to enlist the help of the police agencies and medical community that are the
first-line responders. It is not enough for the police to know they must make an
arrest. They need to be aware of often subtle pieces of evidence that may become
particularly significant if the victim refuses to cooperate. Much physical evidence
that might otherwise be ignored or lost can be saved and utilized. This can be
accomplished by in-service training by prosecutors for experienced police and
medical personnel as well as teaching at police academies and medical schools.
Photographs of the Victim’s Injuries
Pictures of a victim’s injuries can, in and of themselves, speak volumes.
Even with a cooperative victim, photographs may be the best demonstrative
evidence of the extent of the injuries. This is especially true in misdemeanor

208 Elizabeth Cronin
assault cases where, by the time the case comes to trial, the injuries have healed.
It is essential that the photographs be taken as soon as possible after the injuries
are inflicted. This means that police or medical personnel should have the
means to take the pictures as soon as the victim is safe and comfortable. Some
police departments provide their officers with cameras that they take on patrol.
Photographs can be taken of the injuries from various angles and at different
time periods. 10 Victims of domestic violence are beneficiaries of advancing
technology such as high intensity Polaroid cameras or, more recently, digital
cameras, which can be used by law enforcement and emergency rooms. 11
Under New York law, photographs of injuries are admissible as long as
they are offered to prove a material issue in the case or illustrate other relevant
evidence. 12 Even large color photographs of a homicide victim, including
autopsy pictures, have been held to be admissible despite claims by the defense
that they were inflammatory. 13 As long as the photographs are not offered to
“arouse the emotions of the jury and to prejudice the defendant,” they should be
admitted. 14 Photographs of the victim’s injuries must be offered after a proper
foundation is laid by a witness who viewed the item photographed, like a police
officer, and can say that the photograph accurately reflects how the item or
scene or person appeared when it was taken. 15
Photographs can be offered to prove an element of the crime charged, to
help an expert witness and even to disprove a possible defense. For example,
photographs of a victim’s injuries taken at the outset and then at different times
during the healing process can be relevant in a felony assault charge to show the
victim has suffered a permanent disfigurement such as scarring. 16 Photographs,
by showing the nature of the injuries, can be used to prove the intent of the
defendant to cause physical injury or to counter a defense of consent. 17 They
may also be relevant to the severity of the injuries. 18 In addition, photographs
of the victim showing significant injuries to her face, head and shoulder may
negate any colorable justification defense. 19
Also, photographs may be helpful for expert witnesses, especially medical
witnesses. The expert can rely on the photograph to formulate an opinion. 20 It
may become very important to have the medical witness testify about the colors
of bruising in the photo to narrow the time frame of the occurrence of the injury
and perhaps eliminate a possible defense. If a wound is in a particular stage of
healing, the medical expert can discuss how long the wound was there, perhaps
what instrument would have caused it and the prognosis. Such medical testimony
is especially relevant where the victim has suffered broken bones and the expert
is reviewing past x-rays. An expert may also be able to describe the pain a person

Beyond Victims’ Testimony 209
would necessarily suffer from a particular injury in an attempt to satisfy the
element of physical injury in an assault charge. In addition, an expert witness
may be able to say that bruises form a particular pattern such as thumb and
fingerprints on the victim’s neck. 21
Aside from their utility as evidence at trial, photographs depicting a victim’s
injuries can be essential to obtaining a plea. In one case I prosecuted, a husband
stabbed his estranged wife to death in her bathroom. His defense was that she
came at him with a knife and he wrestled it from her and stabbed her accidentally.
During jury selection, his attorney asked me for a few of the 8 x 10 color
photographs that depicted the bloody crime scene and his wife’s body and took
them into his client in the lock-up. The defendant pleaded guilty to murder in
the second degree about twenty minutes later.
Crime Scene Investigation
Proper crime scene investigation and collection of evidence can be critical
to a successful prosecution of a domestic violence crime. Evidence collection
may include taking photographs, collecting physical evidence and recording
testimonial and documentary evidence. 22
If the victim calls the police and allows officers into the home where the
abuse occurred, she can consent to a search and officers can collect evidence.
Photographs should be taken of the victim and the scene where the abuse
occurred. For example, if there is blood present or evidence of an altercation
such as smashed glass or broken furniture, that should be memorialized by
entries in police reports and photographs. This can be used to establish the
elements of burglary, criminal mischief, assault or criminal contempt. Damage
or destruction of property leaves tangible evidence that can be seen by police or
other witnesses and can be instructive on the level of the rage of the offender. 23
Any witnesses who heard or saw the abuse should be interviewed as soon as
possible. Officers should seize any weapons that may have been used in the
attack, items that may contain the fingerprints if the offender entered the
premises unlawfully (i.e., in violation of an order of protection), or bedsheets
or clothing if there was a sexual assault. Evidence of unlawful entry may also
support a burglary charge. 24
Police must ordinarily obtain a search warrant if there is no consent to search
the premises. However, exigent circumstances may exist that would be an exception
to the warrant requirement. 25 If a neighbor calls to report screaming and what

210 Elizabeth Cronin
sounds like someone being injured, the police may be able to enter the home
without a warrant, but would not have the right to a full search.
Statements by the abuser can be used by prosecutors in their direct case. As
the US Supreme Court has noted, “The defendant’s own confession is probably
the most probative and damaging evidence that can be admitted against him.” 26
A detailed written statement by law enforcement signed by the abuser is optimal
and should include as much information as possible concerning the immediate
incident as well as any prior incidents. Police should also document any injuries
the defendant exhibits that would be consistent with the abuse of his partner. These
injuries may also be photographed and other evidence, such as swabs, fingernail
scrapings and clothing may be seized either with his consent or with a warrant.
A victim or other person can obtain a statement from a suspect as well. If this
procedure is undertaken, any conversation between the suspect and the third party
should be tape recorded. There is no prohibition in New York from making and
using such statements as long as one of the parties to the conversation knows it is
being recorded. However, if the victim becomes uncooperative after getting the
statement from the suspect, it may be difficult to introduce the tape into evidence.
Sometimes an abuser may leave messages on voice mail or an answering
machine on which he either threatens the victim or admits some portion of the
crime. These statements can be admissible if the police seize the evidence legally.
Hearsay Exceptions: Excited Utterances
Ordinarily, hearsay is not admissible into evidence unless it fits within an
exception to the hearsay rule. Hearsay evidence can be critical in a domestic
violence case, particularly where the victim is unwilling or unable to cooperate.
Often hearsay is offered through a tape of a 911 call by the victim or a third
party. Generally, because a 911 call is made contemporaneously with developing
events, it may be admissible as an exception to the hearsay rule because it is
less likely that the caller had time to fabricate the story. A “spontaneous
declaration” is made while the speaker is “under the stress or influence of the
excitement caused by the event, so that his reflective capacity was stilled.” 27
The trial court will consider the sudden and violent nature of the crime, the
extent of any injuries inflicted including pain and any emotional trauma which
might suggest a lack of “studied reflection.” 28 In the 1991 assault case, People v
Norton, where the victim refused to testify, the Court of Appeals held that a
hearsay statement should be admitted after considering all of the facts. 29

Beyond Victims’ Testimony 211
New York courts scrupulously review the offer of proof. The Court of
Appeals, in People v Vasquez, acknowledged that a 911 call may be permitted
into evidence under the “present sense impression” exception to the hearsay
rule30 or “excited utterance” exception31 but the statement must be made
contemporaneously to the event. In the offer of proof, prosecutors should
stress the facts that would support a finding of reliability, particularly
contemporaneousness. Some facts might be the violent nature of the crime, the
extent of any injuries inflicted including pain, evidence of emotional trauma, 32
the time has passed since the occurrence, 33 what the speaker was doing, where
he or she was before the statement was made, and whether the statement was
made in response to questioning. 34 The time interval will depend entirely on the
particular situation and the seriousness of the crime. While five minutes can be
too long, two and one half hours may not be. 35
In 2004, the Supreme Court issued a decision throwing the well-settled
issue of the exceptions to the hearsay rule into question. In Crawford v
Washington, 36 the Court ruled that the Confrontation Clause under the 6th
Amendment bars the use of out-of-court “testimonial” statements made by an
unavailable witness unless the defendant had a prior opportunity to crossexamine
the declarant, even if the statements are deemed to be reliable under a
hearsay exception. The Court declined, however, to define “testimonial.” 37 In
Crawford, the trial court had admitted statements made by the defendant’s wife
to police implicating her husband in a crime. She was prevented from testifying
by the marital privilege. Examples that the Supreme Court had used in Crawford
that would clearly qualify as testimonial were statements made at preliminary
hearings, before a grand jury, at a former trial, or to police investigators. 38
Some courts, such as the US Court of Appeals for the Second Circuit,
reviewed Crawford and found that “testimonial” is, at the very least, knowing
responses made by the declarant during questioning either in an investigative or
courtroom setting, where the speaker should “reasonably expect” that the
responses may be used by law enforcement at some later time. 39 But the
question remained what statements, if any, outside of those specifically
mentioned in Crawford would be considered testimonial.
Without further guidance on what specifically constituted testimonial
statements, some courts found that when the statements are not clearly
testimonial statements made to law enforcement or under oath, traditional
hearsay rules apply. The Second Circuit ruled in US v Saget that statements
made by co-conspirators to a confidential informant should be admissible as
statements against penal interest. 40 At least one district court determined that
“where non-testimonial hearsay is at issue, the application of traditional state

212 Elizabeth Cronin
hearsay rules can continue to exempt such statements from Confrontation
Clause scrutiny.” 41 Indeed, the Supreme Court in Crawford even questioned
whether the Confrontation Clause applies at all to non-testimonial statements. 42
In a decision issued on June 19, 2006, which should clear up some of the
confusion, the Supreme Court dealt with that question in two cases heard
together involving domestic violence prosecutions. Ruling in two cases, Davis v
Washington and Hammon v Indiana, 43 the Court addressed whether the
admission of a 911 tape and a statement taken by the police from a victim were
properly admitted under Crawford. The Court found that portions of the 911
tape were not testimonial and thus admissible, but that the statements taken by
the police were testimonial and barred.
In Davis, the victim called 911 and described to the 911 operator an ongoing
assault by her ex-boyfriend. Before the police arrived and after the
perpetrator fled the scene, the operator kept the victim on the line and continued
to ask her questions about the assault. When police officers arrived, they were
able to observe physical injuries to the victim. She did not testify at trial, but the
trial court admitted the 911 tape of her initial report to the operator as an excited
utterance. In the Hammon case, police responded to a report of a domestic
disturbance and found Mrs. Hammon on the front porch appearing frightened but
claiming nothing was wrong. Police found Mr. Hammon inside, observed broken
glass, took Mrs. Hammon into a separate room, interviewed her about the
incident, and took a written statement from her. She also did not testify at trial,
and the court admitted her statements as present sense impressions.
In finding that the ruling on the 911 tape was correct, but that allowing Mrs.
Hammon’s statements into evidence was not, the Court was careful to
differentiate between the conduct of the police and the victims in the two cases.
The Court held that testimonial statements are those that “circumstances
objectively indicate there is no . . . ongoing emergency, and that the primary
purpose of the interrogation is to establish or prove past events potentially
relevant to later criminal prosecution.” 44 Conversely, non-testimonial statements
are those that enable the police to “meet an ongoing emergency.” 45
The Court determined that the initial part of the 911 call was properly
admitted because the statements elicited by the operator were used to resolve
the present emergency and not for investigatory purposes. The Court
compared the interview with Mrs. Crawford at the police station hours after
the assault with the immediacy of the situation in Davis. The Court found that
the victim in Davis was not acting as a witness and was not “testifying” for
purposes of Crawford.

Beyond Victims’ Testimony 213
The Court did warn, however, that not everything in a 911 call is
necessarily non-testimonial. Once the purpose of dealing with the emergency
subsides, statements can evolve into testimonial statements depending on the
circumstances. The Court suggested that in those situations, the trial court can
redact or exclude those portions of the 911 call that are not admissible under
Crawford. The Supreme Court said that “trial courts will recognize the point at
which, for Sixth Amendment purposes, statements in response to interrogations
become testimonial.” 46 In Davis, the Supreme Court was not asked to
specifically address whether the victim’s later statements on the 911 tape in
response to questioning by the operator were testimonial. The Court said that
the only claim before it was the victim’s early statements to the operator
identifying Davis. The Court pointed out that Davis did not challenge a finding
by the trial court that, even if later parts of the 911 call were testimonial, their
admission was harmless beyond a reasonable doubt. Since Davis did not
challenge that ruling, the Court assumed the trial court ruling to be correct.
Conversely, the Court found that the statements taken by police in Hammon
were testimonial. The victim’s narrative, delivered when she was not in an
immediate position of danger, was a description of past events. In addition, the
Court rejected the finding of the Indiana Supreme Court that any initial inquiries
at the crime scene cannot be testimonial, although the Court acknowledged that
exigencies may exist such that initial inquiries produce non-testimonial
statements while later statements are testimonial. The Court considered that
Mrs. Hammon was physically removed from her husband’s presence, her
statement was in response to police questions regarding past events, and they
were taken “some time” after the events described had ended. As the statements
were taken “under official interrogation [and] are an obvious substitute for live
testimony,” the Court considered them inherently testimonial. 47
The Court also rejected the argument that domestic violence cases require
greater flexibility. While the Court acknowledged that “[t]his particular type of
crime is notoriously susceptible to intimidation and coercion of the victim to
ensure that she does not testify at trial,” the Court nonetheless refused to “vitiate
constitutional guarantees” under the Confrontation Clause. 48 However, the Court
also pointed out that the 6th Amendment does not render the courts without a
remedy when defendants “act in ways that destroy the integrity of the criminaltrial
system.” When it can be shown that the victim was coerced into silence by
the offender, the trial court can determine whether the defendant has forfeited
his right to exclusion of otherwise inadmissible hearsay evidence.

214 Elizabeth Cronin
Davis does not establish a “bright line” rule for what constitutes testimonial
statements, but the Court has at least provided some guidance. The Court made
it clear that police have no real control over whether statements are testimonial
or not: “Their saying that an emergency exists cannot make it be so.” 49 It is the
use of the evidence, not its collection, which implicates the 6th Amendment.
The Court appeared to issue a warning to law enforcement not to try to make
statements and facts conform to the dictates of Crawford when they otherwise
would not. Prosecutors, not police, have the responsibility for avoiding
Crawford pitfalls. Obviously, when police arrive at the scene of a domestic
violence dispute, their first concern is the safety of the victim. However, it will
be important for them to be mindful in later reporting the statements what was
occurring at the time the statements were made. And, of course, prosecutors
must be aware of the need to obtain 911 tapes as soon as possible after they are
recorded to avoid the loss of the evidence.
One New York State appellate court that addressed 911 and exceptions to
the hearsay rule such as excited utterance and present sense impression since
Crawford seems to have anticipated at least some of the outcome in Davis. In
People v Coleman the First Department found a 911 call by an unidentified
person admissible in that the caller described an attack in progress and the
purpose of the call was to seek urgent police assistance. There was no structured
questioning and the information was fairly limited to describing the attack and
the assailant. 50
Evidence of Prior Acts of Violence
Domestic violence cases often involve prior “bad acts” committed by the
offender against the victim. Courts are very cautious in allowing evidence in the
prosecution’s direct case of prior charged and uncharged crimes because such
evidence is inherently prejudicial and may cause the jury to convict the abuser
because he “possesses a bad character or criminal propensity.” 51 If the evidence
is offered simply to discredit the defendant, it will not be admitted even if it has
probative value. 52
The New York Court of Appeals has carved out exceptions for what is known
as “Ventimiglia” or “Molineux” evidence to allow the introduction of evidence of
prior bad acts if the prosecution can demonstrate that the evidence is being offered
(1) to establish an element of the particular crime charged; (2) to prove motive,
identity, intent, to negate mistake or accident; (3) to assist in the narrative of the

Beyond Victims’ Testimony 215
case; or (4) to provide necessary background information. 53 It can also be
introduced to negate a defense of not responsible by reason of mental disease or
defect54 or justification or intoxication. 55 An application should be made to the
trial court prior to trial through a motion in limine and an offer of proof made. It is
also helpful to file a pre-trial memorandum explaining why the evidence is critical
to the case and what facts and law support the application. 56
Since the enactment of the Family Protection and Domestic Violence
Intervention Act of 1994, police must prepare written reports that document any
incidents of domestic violence and the report must stay on file for at least four
years. 57 Consequently, prior acts of domestic violence that are reported to or
known by the police will be available and they can be crucial in a domestic
violence prosecution.
Expert Testimony
Expert testimony in domestic violence cases is important to counter ignorance
and misconceptions about battering. Unlike “ordinary” or “fact” witnesses, who
testify to particular facts relevant to a case, an expert witness may be permitted
to testify when the conclusions to be drawn by a jury depend upon facts which
are not within the knowledge or “ken” of the jury. 58 Generally, the expert cannot
give an opinion on the ultimate issue of the defendant’s guilt because that would
usurp the function of the jury. 59
The qualification of a witness to testify as an expert is in the sound discretion
of the trial court. 60 The prosecutor may be required to make an offer of proof
regarding the expert’s qualifications and the crux of the testimony. Trial courts
often restrict the testimony to a general description of the issue (i.e., battered
woman’s syndrome) and the prosecutor can then weave the testimony into the
facts during summation.
The Psychological Expert
Although we often think of the use of expert testimony in domestic violence
cases where the woman is charged with a crime against the abuser, 61 it can also
be important in a case where the victim will not testify. An expert can explain
why the victim might recant and refuse to come forward. Experts can educate
the jury on battering including demographics, the implications of ethnicity,
dynamics of abusive relationships, and control by batterers leading to their
partners denying, minimizing or blaming themselves for the abuse. 62

216 Elizabeth Cronin
Medical Experts
In the prosecution of an assault, the prosecutor must prove physical injury, 63
which means either impairment of physical condition or substantial pain. 64 Even
without a victim to testify, a prosecutor may be able to prove the element of
injury through photographs, the medical records of the victim and an expert to
describe the injuries and give an opinion about what the injuries signify. A
physician can also read the victim’s description of the cause of the injuries from
the medical report if it is established that the history is relevant to the diagnosis
and treatment of her injuries. 65 A medical expert can be called to testify, for
example, about bite marks on the victim66 or to give an opinion that a hair found
in the victim’s teeth was consistent with the defendant’s hair. 67
Some courts have allowed the introduction of medical records, including the
history, under CPLR § 4518(a), which allows business records to be entered into
evidence as proof of an act, transaction, occurrence or event. The hospital record
can be important corroboration of the victim’s testimony that she had to seek
medical treatment. The medical witness can testify as to what the victim stated at
the hospital as long as the statements were relevant to the treatment of the victim.
In People v Swinger, a New York City Criminal Court found that statements made
by a domestic violence victim to an emergency room physician were admissible
as a business record. 68 The business record exception to the hearsay rule applies to
criminal cases. 69 Unredacted hospital records that indicate, for example, that the
victim was “hit in the face,” may also be admitted, provided the statement was
germane to the medical diagnosis and treatment. 70
Criminal Contempt and Other Creative Charges
When a victim refuses to cooperate, prosecutors may need to be creative in
considering what charges to bring. Many victims of domestic violence obtain
orders of protection either through the Family or Criminal Courts. Violations of
these orders constitute separate crimes. The police may be able to arrest the
batterer for violating the order of protection even if the victim refuses to cooperate.
Witnesses who see the offender where he is not permitted to be or who overhear
when he calls the victim’s job, for example, can be called to testify. Other crimes
that may be considered are stalking, tampering with a witness, 71 resisting arrest, 72
obstructing governmental administration, 73 criminal possession of a weapon, 74
criminal trespass 75 or criminal mischief. 76

Beyond Victims’ Testimony 217
Because of what we know about the dynamics of battering, the safety of the
victim must be paramount. Prosecutors must carefully weigh proceeding with a
prosecution against the often very real fear by the victim that such action will
endanger her or her children. Victims may be at their most vulnerable when they
leave an abusive situation or relationship and that must be taken into consideration
by law enforcement. The victim may want assistance in considering all of her
options including seeking help in Family Court rather than Criminal Court,
obtaining an order of protection without formal criminal charges, and getting the
offender help. Ultimately, a prosecutor must decide whether the State’s interest in
punishing domestic violence outweighs her reluctance.
She recovered from her devastating head injuries, but as time
passed, she became less cooperative with the prosecutor. By the
time of trial, she was becoming more hostile to the prosecutor.
When called to testify, she tried to protect him and claimed it was
self-defense. The prosecutor had to have her declared a hostile
witness and cross examine her with prior inconsistent statements.
The prosecutor was able to use the defendant’s statements to
police that she had attacked him, her excited utterance to police
when they found her near death, medical testimony and expert
testimony regarding battered woman syndrome. He was convicted
of attempted murder in the second degree and remains
incarcerated.

218 Elizabeth Cronin
Notes
1. People v Robert Snyder, prosecuted by the Westchester District Attorney’s
Office in 1990.
2. FBI, Uniform Crime Reports (2002).
3. American Medical Association, Diagnostic and Treatment Guidelines on
Domestic Violence (1992).
4. See e.g. International Association of Chiefs of Police, Training Key 16:
Handling Disturbance Calls (1967).
5. American Bar Association, Project on Standards for Criminal Justice,
Standards Relating to the Urban Police Function (1973).
6. Pub L No. 103-322, codified in various sections of the USC (Title IV of
VAWA encouraged states to adopt mandatory arrest policies and criminalized
interstate domestic violence; the VAWA of 2000 improved the tools available
to law enforcement and reauthorized grants and strengthened federal statutes).
7. NY Laws 786 ch 222 (1994) (McKinney) revised at ch 224 § 1 (1994),
NY Laws 808.
8. K. Walsh, The Mandatory Arrest Law: Police Reaction, 16 Pace L Rev,
at 97, 98 (1996).
9. See Klein & Orloff, Providing Legal Protection for Battered Women: An
Analysis of State Statutes and Case Law, 21 Hofstra L Rev, at 801 (1993);
but see People v Pearson, 230 AD2d 612 (2d Dept 1997) (criminal mischief
does not lie where a spouse damages marital property since both have an
equitable interest in that property).
10. People v Nieves, 279 AD2d 388 (1st Dept 2001).
11. A. Roberts, B. Roberts, A Comprehensive Model for Crisis Intervention
with Battered Women and Their Children, Handbook of Domestic Violence
Intervention Strategies (2002).
12. People v Pobliner, 32 NY2d 356, 359 (1973) cert denied 416 US 905; see
also People v McGlothin, 773 6 AD3d 462 (2d Dept 2004).
13. See People v Alvarez, 3 AD3d 456 (1st Dept 2004) (admission of bloody
clothes and crime scene photographs depicting the victim’s blood not
inflammatory and is probative); People v Alvarez-Hernandez, 2002 WL
31065426 (Westchester Co Ct 2002) (J. Lange).

14. People v Wood, 79 NY2d 958 (1992).
15. People v Carranza, 306 AD2d 351 (2d Dept 2003) (mem).
16. People v Nieves, 279 AD2d 351 (1st Dept 2001).
17. People v Wright, 192 AD2d 875 (3d Dept 1993) (rape and sodomy
prosecution).
Beyond Victims’ Testimony 219
18. People v Webb, 184 AD2d 920 (3d Dept 1992) (photographs showing tears
and cuts to victim’s face and head relevant to defendant’s intent and severity
of victim’s injuries); People v Thompson, 2004 WL 314635 (Sup Ct App
Term, 1st Dept 2004) (photographs of bloody note, “busted lip,” bruises,
and lacerations to face).
19. People v Reid, 2 Misc 3d 1012 (Sup Ct, Monroe Co, April 15, 2004).
20. People v Secore, 187 NYS2d 1008 (4th Dept 1992).
21. See D. Gosselin, Heavy Hands: An Introduction to the Crimes of Domestic
Violence, 2d ed. (2003).
22. See Heavy Hands at 330.
23. See generally Penal Law § 145.
24. See generally Penal Law § 165.
25. See Heavy Hands at 332.
26. Bruton v United States, 391 US 123 (1968).
27. People v Nieves, 67 NY2d 125 (1986).
28. People v Brown, 70 NY2d 513 (1987).
29. People v Norton, 79 NY2d 808 (1991).
30. People v Vasquez, 88 NY2d 561 (1995); see also People v Agosto,
248 AD2d 301 (1st Dept 1998).
31. See generally People v Clark, 135 AD2d 1097 (4th Dept 1987); People v
Del Vermo, 192 NY 470 (1908).
32. Brown, supra.
33. But see People v Sostre, 51 NY2d 958 (1980) (court properly refused to
admit exculpatory statements of defendant made at scene even though he
had made it five minutes after the incident and had had time to reflect on
his situation).

220 Elizabeth Cronin
34. Nieves, supra.
35. People v Brooks, 71 NY2d 877 (1988) (statements of critically injured
victim in response to questions from emergency room nurse two hours after
shooting were admissible as excited utterances because of the physical and
emotional suffering and fading in and out of consciousness).
36. 541 US 36 (2004).
37. Id. (add page no.)
38. Id. (add page no.)
39. US v Goldstein, 442 F3d 777, 785 (2d Cir 2006) (statements not testimonial
where record contains no indication declarant had any expectation or
awareness that the statements might be used later at trial).
40. US v Saget, 377 F3d 233 (2d Cir 2004) (cert denied 543 US 1079) (2005)
(co-conspirator’s statements may not be testimonial under Crawford where it
was made to a confidential informant and under circumstances “conferring
particularized” confrontation rights); see also US v McClain, 377 F3d 219
(2d Cir 2004) (admission of co-defendant’s plea allocution against defendant
violated Confrontation Clause but considered harmless error).
41. Diaz v Herbert, 317 F Supp 462 (SDNY 2004).
42. Crawford 541 US at 68.
43. Davis v Washington, 126 S Ct 2266 (2006).
44. Id. at 2273-74.
45. Id. at 2273.
46. Id. at 2278.
47. Id. at 2277.
48. Id. at 2278.
49. Id. at 2279-80.
50. People v Coleman, 16 AD3d 254 (1st Dept 2005).
51. L. Linsky, Use of Domestic Violence History Evidence in the Criminal
Prosecution: A Common Sense Approach, 16 Pace L Rev 73, 75-76 (1995).
52. People v Hudy, 73 NY2d 40 (1988).
53. People v Molineux, 168 NY 264 (1901); People v Ventimiglia, 52 NY2d
350 (1981).

Beyond Victims’ Testimony 221
54. People v Santorelli, 49 NY2d 241 (1980) (evidence of uncharged conduct
by defendant may be admitted if it has a tendency to disprove his claim that
he was insane when he committed the crime).
55. People v Hawker, 215 AD2d 499 (2d Dep’t 1995) (murder charge for
killing his wife; claimed intoxication and justification; judge allowed in
testimony by children of prior assaults on mother on issue of motive, intent
and to negate self-defense and intoxication).
56. L. Linsky, 16 Pace L Rev 88-89.
57. Penal Law § 140.10 (McKinney 2002).
58. Doughtery v Milliken, 163 NY 527 (1900).
59. People v Abreu, 114 AD2d 853 (2d Dep’t 1985).
60. Kwasny v Feinberg, 157 AD2d 396 (2d Dep’t 1990).
61. See E. Stark, Preparing for Expert Testimony in Domestic Violence Cases,
Handbook of Domestic Violence Intervention Strategies (Oxford Press
2002), at 218-219.
62. Id. at 217.
63. Penal Law § 120.00(1).
64. Penal Law § 10.00 (9).
65. Williams v Alexander, 309 NY 283 (1955).
66. People v Bethune, 105 AD2d 262 (2d Dep’t 1984).
67. People v Allweiss, 48 NY2d 40 (1979).
68. People v Swinger, 180 Misc 2d 344 (N.Y.Crim.Ct., 1998).
69. People v Howard, 79 AD2d 1064 (3d Dep’t 1981).
70. People v Singleton, 140 AD2d 388 (2d Dep’t 1988).
71. Penal Law § 215.
72. Penal Law § 205.30.
73. Penal Law § 195.07.
74. Penal Law § 265.
75. Penal Law § 140.
76. Penal Law § 145.

Part V
Economics and Collateral Issues

15
Representing Victims of Domestic Violence
in Supreme Court Matrimonial Actions
by Emily Ruben
One of the most valuable services an attorney can provide a married victim of
domestic violence is a divorce. Psychologically, after a divorce she is no
longer her batterer’s property, no longer under his control. A divorce provides
closure, a chance for a new start, a chance to get on with her life. Pragmatically,
a divorce often resolves the economic issues of the marriage, such as the
distribution of marital property and debt, child support and maintenance. It will
allow a woman to take stock of what she has and to go forward. When the
parties have minor children, final orders of custody and visitation are also
included in the divorce judgment. 1 The court will also include final orders of
protection in a divorce judgment or a decision denying a divorce. 2
Divorce law in New York State is different from most other states for two
reasons. First, family law issues are adjudicated in two different courts, which
creates a uniquely bifurcated system. The Family Court is a court of limited
jurisdiction, and the judges of that court do not have the power to determine the
status of a marriage. A divorce proceeding can only be brought in Supreme Court.
Both courts have jurisdiction to determine the ancillary issues of a marriage
(support, custody, etc.). Second, New York is one of the few remaining states
that still requires fault grounds for a divorce. A divorce based on irreconcilable
differences does not exist in New York, and the only way to obtain a “no-fault”
divorce is if both parties enter into a written, properly-authenticated agreement
and abide by the agreement for at least a year. For victims of domestic violence,
a separation agreement is often not a viable option.

226 Emily Ruben
Grounds
When a battered woman comes to an attorney’s office seeking a divorce, one
of the first decisions that needs to be made is what ground to use. The choices
include: cruel and inhuman treatment, abandonment of at least a year’s duration,
confinement of the defendant in prison for three or more years, adultery, or living
apart pursuant to a valid separation agreement or judgment of separation for a
year or more. 3
To obtain a divorce on the ground of cruel and inhuman treatment, the client
must prove that her husband’s treatment of her so endangers her physical and
mental well-being that cohabitation with him is “unsafe or improper.” 4 Generally,
the complaint should clearly allege a course of conduct over a period of time
and, where possible, recite the specific times, dates and places of the conduct.
It should detail physical or psychological harm suffered that required medical
treatment or caused emotional or physical pain and suffering. It should describe
any history of police intervention and list any orders of protection obtained with
the date, court and docket number. Finally, when the conduct complained of
occurred in the presence of others, especially the parties’ children, that should
be described as well. 5
The verified complaint will have to include more than one “serious” instance
of cruelty. 6 Also, the Court of Appeals has mandated that a distinction be made
between long and short term marriages, requiring a substantially higher standard
of misconduct in marriages of long duration. 7
Although cruel and inhuman treatment seems the most obvious ground to
use in a complaint for a victim of domestic violence, it is not always the right
one or the only one to use. It is not at all uncommon for such a client to prefer a
more innocuous ground (abandonment or constructive abandonment) 8 because
she fears that allegations of cruel and inhuman treatment might incite further
violence. On the other hand, a cruel and inhuman treatment cause of action could
positively affect a custody battle and could make the plaintiff more sympathetic
in the eyes of the court. Accordingly, the implications of each ground should be
carefully reviewed with the client. If a decision is made not to allege cruel and
inhuman treatment, the client is not precluded from later moving for an order of
protection in the divorce proceeding or from amending her complaint to include
this cause of action if the situation changes. On the other hand, if an attorney
plans to move for an order of protection for the client in Supreme Court, a welldeveloped
and detailed cruel and inhuman treatment cause of action in a
complaint can certainly buttress such a motion.

Matrimonial Actions 227
On its face, Domestic Relations Law § 210 seems to prohibit actions for
divorce based on cruel and inhuman treatment that occurred more than five
years before the action was commenced. This often poses a real problem for a
victim of domestic violence who fled her batterer more than five years ago and
has had no contact with him since then. Fortunately, the courts have interpreted
the five year provision of Domestic Relations Law § 210 to be a statute of
limitations and not a condition precedent to bringing an action. 9 Because a
statute of limitations is an affirmative defense that the defendant must plead
and prove, if the defendant defaults, or appears and fails to plead the statute of
limitations affirmative defense, that defense is waived. 10
Accordingly, even if all instances of cruel and inhuman treatment occurred
more than five years ago, it is not frivolous to commence a divorce based on a
cruel and inhuman treatment cause of action. If the defendant defaults or appears
and fails to plead the statute of limitations affirmative defense, as is fairly
common in many cases where there has been a long separation and issues of
finances and custody have previously been resolved, the divorce will be granted.
The court or a clerk cannot reject a set of uncontested divorce papers because
the instances of cruelty alleged occurred more than five years prior to the
commencement of the action.
Interestingly, fleeing a marital residence because of violence can be used as
an affirmative defense to a batterer’s abandonment cause of action, even if it
occurred more than five years prior to the commencement of the action and
could not serve as the basis for a cause of action because the opposing side
raised the statute of limitations affirmative defense. 11
Once a decision has been made to commence a divorce action and a cause
or causes of action have been selected, an additional strategic decision must be
made. Should the defendant be served with a summons with notice or with a
summons and verified complaint? Because a summons with notice states only
the cause(s) of action and the ancillary relief requested, it is far less likely to
incite further violence or opposition than service of a fully developed complaint.
On the other hand, if the plan is to commence the divorce action simultaneously
with or shortly before moving by order to show cause for an order of protection,
it might be advisable to commence the action with a detailed complaint, which
would be an exhibit to the order to show cause.

228 Emily Ruben
Orders of Protection
An order of protection is an injunction that prohibits a person from
engaging in certain offensive and illegal behavior and/or directs that person to
stay away from specific people and places. In the context of a divorce case, an
order of protection in either Family Court or Supreme Court can contain the
same terms and conditions and will be issued when a “family offense” has been
committed. In New York, a battered spouse can obtain an order of protection in
three different forums — Criminal Court, Family Court and Supreme Court.
Domestic Relations Law §§ 240 and 252 are the statutes that authorize the
Supreme Court in any matrimonial action to issue an order of protection.
Because neither of these statutes provides any standards or criteria for
determining whether to grant an order of protection, courts have consistently
held that the standard to be used is that provided in Article 8 of the Family
Court Act. 12 However, the procedure for requesting an order of protection in
Supreme Court is governed by the Civil Practice Law and Rules and not the
Family Court Act. Accordingly, in Supreme Court a request for an order of
protection is made in a summons with notice, a complaint or by motion, not by
petition. Domestic Relations Law § 240(3) authorizes the court to grant an order
of protection even if the other relief demanded in the divorce action is denied,
as long as the other relief was not denied because of lack of jurisdiction.
In the Supreme Court, a party to a matrimonial action can seek an order of
protection in several different ways. A plaintiff can include an order of protection
as part of the ancillary relief she requests in her summons with notice or her
verified complaint. A defendant can request one in her answer. Putting the
request for an order of protection in the initial pleading assures that this issue
will be adjudicated at the trial of the case. If more expeditious relief is needed, as
will usually be the case, the party seeking an order of protection may also move
for pendente lite relief by either notice of motion or order to show cause. For
obvious reasons, this relief is most frequently sought by order to show cause.
When a client who needs an order of protection and a divorce first consults
with an attorney, a strategic and pragmatic decision must be made regarding
the best forum to obtain the needed relief. An order to show cause from the
Supreme Court, with a temporary restraining order granting an order of
protection, could be served on the defendant simultaneously with the summons
and complaint or summons with notice commencing the divorce. Alternatively,
the commencement of the matrimonial action could be put on hold while an
order of protection is sought in Family Court. A third option is to proceed

Matrimonial Actions 229
simultaneously in both forums, seeking an order of protection in Family Court
and a divorce in Supreme Court. Domestic Relations Law § 252 explicitly
authorizes either the Supreme Court or the Family Court to entertain a request
for a temporary order of protection or an order of protection when a divorce
action is pending in Supreme Court. However, the legislature did not intend to
give an advantage to one side by allowing the same issues to be litigated in two
forums. This is especially true when the grounds in the matrimonial action are
cruel and inhuman treatment containing allegations that overlap with the
allegations in the Family Court petition.
A likely outcome of an order of protection petition filed in Family Court
after the commencement of a matrimonial action is that the Family Court judge
will adjourn its hearing, continuing any temporary order of protection, to allow
the parties time to make a motion in Supreme Court for the relief. 13 A similar
result is likely even if the order of protection proceeding in Family Court was
commenced before the divorce action if the Family Court proceeding is not
resolved or close to resolution when the divorce action is commenced.
Unfortunately, the perception of some judges is that domestic violence victims
are manipulating the system and trying to get an unfair advantage when they
seek an order of protection in Family Court after commencement of a divorce
case. This is especially true if the party is represented by counsel in both forums
and initiated both proceedings.
So, which forum should you choose for obtaining an order of protection
when representing a married victim of domestic violence? The answer to this
question will depend on the specific circumstances of each case, and most of
the remainder of this article will be devoted to examining the pros and cons of
seeking an order of protection in Family Court and in Supreme Court.
As stated earlier, Article 8 of the Family Court Act provides the standard for
granting orders of protection in both forums. 14 Nevertheless, at least in New
York City, a litigant is more likely to obtain a temporary order of protection
from the Family Court. This may be because of the higher volume of cases in
Family Court and the fact that the procedure for obtaining orders of protection is
more routinized and does not require the drafting of lengthy papers or the
services of an attorney. Family Court is far more litigant-friendly. An intake
judge will usually hear the victim plead her case directly within hours of her
filing her petition. In Supreme Court, a compelling affidavit from the party
seeking the relief is often not enough. The court will require corroborating
affidavits and/or documentary evidence (e.g., prior orders of protection, police
reports, medical records, photographs of injuries). 15

230 Emily Ruben
Effective November 1, 2000, the New York State Legislature eliminated a
major distinction between Family Court and Supreme Court order of protection
practice. It amended Domestic Relations Law §§ 240(3) and 252 to mandate
that a party moving for an order of protection in Supreme Court, as in Family
Court, shall be entitled to file her motion or pleading on the same day she first
appears in court. Furthermore, the Supreme Court, like the Family Court, is now
required to hold a hearing on the motion for a temporary order of protection on
the same day or the next day that the court is in session.
The duration of a temporary order of protection, which is generally granted
ex parte, also differs, at least in New York City. Because of the Family Court’s
overwhelming case load and the fact the Family Court judge who issues a
temporary order of protection may not be the judge before whom the case will
be returnable, the return date for a hearing on the order of protection petition is
generally several weeks or even months in the future. If the petitioner has been
granted a temporary order, this is a positive factor, and in Family Court it is
likely to be granted if the allegations in the petition support a family offense.
If she is denied temporary relief, the long return date may work to her detriment.
In Supreme Court, the judge who signs the order to show cause and decides
whether or not to grant a temporary ex parte order of protection is generally the
judge who will hear the case. Supreme Court judges have greater control over
their calendars and are likely to make the motion returnable within a week.
A party who has been excluded from the marital residence by a Supreme Court
justice on an ex parte basis can expect a far more expeditious hearing than one
ordered ex parte to stay away from the home of his spouse by the Family Court.
Similarly, a party who has been denied temporary ex parte relief can expect her
motion to be returnable in a relatively short period of time.
Perhaps more significantly, the duration of a final order of protection differs
in each court and the Supreme Court is the more friendly forum on this count.
The duration of a final order of protection is very limited in Family Court.
As of October 22, 2003, the term of a final order of protection in Family Court
is generally two years. The term can be extended to five years only if the conduct
alleged in the petition is in violation of a valid order of protection or the court
makes a finding of aggravating circumstances. 16 On the other hand, Domestic
Relations Law §§ 240(3) and 252 both provide: “The order of protection may
remain in effect after entry of a final matrimonial judgment and during the
minority of any child whose custody or visitation is the subject of a provision
of a final judgment or any order.” Thus, at least when the parties have minor
children, an order of protection in Supreme Court can clearly last as long as

Matrimonial Actions 231
eighteen years. Because the Domestic Relations Law is silent on the duration of
an order of protection when there no longer are or never were any minor children,
the duration of a final order of protection is entirely within the discretion of the
Supreme Court justice. In cases of severe violence, Supreme Court justices can,
and do, issue lifetime orders of protection or orders that will be in effect far
longer than the five-year maximum obtainable in Family Court.
The November 1, 2000 amendment of the Domestic Relations Law eliminated
another distinction that used to make Family Court a more desirable forum by
adding provisions to both Domestic Relations Law §§ 240(3) and 252 authorizing
the inclusion of language prohibiting or suspending firearms licenses and ordering
restitution in orders of protection issued pursuant to those statutes. This amendment
made the terms available in a Supreme Court order of protection consistent with
those available in a Family Court order of protection. 17
Another distinction between the two courts is that only a Supreme Court
justice can issue an order of exclusive occupancy. 18 An order of exclusive
occupancy is an order that awards possession of the marital residence to one
party. It is a form of property distribution over which the Family Court has no
jurisdiction unless the issue is directly referred to it by the Supreme Court.
However, the Family Court can obtain virtually the same result by issuing an
order of protection directing the respondent to stay away from the home of the
petitioner. The Supreme Court can also issue an order of protection with a stay
away provision. When possession of a leased residence or ownership of real
property may be an issue, it is important to seek both an order of protection and
exclusive occupancy in the Supreme Court. The police cannot enforce an order
of exclusive occupancy as they can an order of protection, and an order of
exclusive occupancy will preclude partition of marital real property.
When a married client with minor children has been the victim of serious
domestic violence and there is some basis to fear she might be charged with
neglect for failing to protect the child(ren) from the batterer or for their exposure
to the violence, it might be prudent to move for an order of protection in Supreme
Court rather than in Family Court. Because Family Court judges regularly use
the Administration for Children’s Services (ACS) to investigate the parties and
their home environments in Article 10 abuse/neglect proceedings and in Article
6 custody, guardianship and adoption proceedings, they are far more likely to
call upon ACS to investigate domestic violence and a possible failure to protect
charge than are Supreme Court justices, who do not have ACS caseworkers and
attorneys at their immediate disposal.

232 Emily Ruben
Also, since domestic violence is a factor to be considered in custody
determinations, it may be in the interest of the battered spouse to have the same
judge adjudicate all orders of protection and custody issues. Unlike a request for
an order of protection, which technically can be made in either Family Court or
Supreme Court even after the commencement of a divorce action, a custody
petition brought in Family Court after the commencement of a divorce action
will be dismissed. 19 Some Family Court judges will routinely dismiss custody
proceedings even if they were commenced in Family Court before the
commencement of a divorce action. Accordingly, when a divorce action has
been commenced in Supreme Court and custody is disputed, an order of
protection should be pursued in that forum as well.
Historically, practitioners have preferred Family Court orders of protection
over Supreme Court orders because Family Court orders were more easily
recognized by the police and were routinely submitted to the statewide registry
while Supreme Court orders were not. This should no longer be the case.
Pursuant to Domestic Relations Law § 240(3)(d), the chief administrator of the
court has promulgated uniform temporary order of protection and final order of
protection forms to be used in Supreme Court. 20 These forms were designed to
be compatible with the computerized statewide registry, and Supreme Court
participation in the registry program is mandatory. When a Supreme Court
justice grants a temporary or final order of protection, the attorney representing
the victim of domestic violence should provide the court with a completed form
for signature to ensure that the proper form is used and to make it more likely
that the order will find its way to the state registry.
Another reason that Family Court orders of protection seemed more
desirable was that police officers could serve them and the police officer’s
affirmed certification regarding the service was sufficient proof of service.
However, since 1996, Domestic Relations Law § 240(3-a) has authorized the
same type of service of Supreme Court orders of protection that have been
issued “on default.” Domestic Relations Law § 240(3-a) also allows “any
associated papers . . . including the summons and petition or complaint” to be
served by the police at the same time. The officer’s affirmed certification of
service is sufficient proof of service. When preparing an order to show cause for
an order of protection in Supreme Court, an attorney should request that the
court order service pursuant to Domestic Relations Law § 240(3-a). This should
allow for the same simplified and safe service and notice as provided by the
Family Court Act.

Matrimonial Actions 233
Finally, only an order of protection requested pursuant to Domestic
Relations Law § 252 can require that the party who is the object of the order
pay reasonable counsel fees and disbursements incurred by a person protected
by the order to obtain or enforce it. While this provision can be invoked by
either the Family Court or the Supreme Court if a matrimonial action is
pending, a Supreme Court justice will probably give a more generous award
than a Family Court judge. In the same way that Family Court judges might be
more liberal about issuing temporary orders of protection because they are more
accustomed to them, a Supreme Court justice is likely to award more generous
fees because counsel fee applications are more routine in that forum.
Court Conferences and Referrals
Parties in contested matrimonial actions are required to appear in court for
preliminary conferences, compliance conferences, and pre-trial conferences.
These conferences are often conducted outside of the formal courtroom in
smaller rooms. This means that a victim of domestic violence may well be put
in the position of sitting in very close proximity to her batterer. However,
Supreme Court justices are becoming more sensitive to issues of domestic
violence and may be amenable to an attorney’s request to waive the requirement
of a victim’s presence during all conferences or, at a minimum, agree to conduct
the conference in the courtroom with court officers present.
When custody and visitation are disputed issues, the Supreme Court is relying
more and more on court-employed social workers who meet simultaneously with
both parties, court-sponsored parental education programs, parenting plans and
mediation to assist in the resolution of these conflicts. Attorneys representing
victims of domestic violence in custody and visitation disputes in Supreme
Court should, with their client’s permission, promptly inform the court that their
client is a victim of domestic violence. The court system acknowledges that
mediation, parental education programs, parenting plans and meetings between
both parties and a social worker are generally inappropriate and potentially
dangerous where domestic violence has been present. The Office of the
Statewide Administrative Judge for Matrimonial Matters provides regular
training for matrimonial Supreme Court justices, which counsels judges not to
make referrals to such programs when the existence of domestic violence is
brought to their attention.

234 Emily Ruben
Conclusion
There are no simple answers to the question of how best to represent
married victims of domestic violence. This article has touched on only a few of
the many factors that should be taken into consideration in trying to answer that
question. These decisions cannot be made in a vacuum. It is extremely
important that an attorney representing such a client fully explain to her the
possible ramifications of different strategies and carefully listen to her concerns
and the specific facts of her situation.

Notes
Matrimonial Actions 235
1. Domestic Relations Law § 236(b); § 240.
2. Domestic Relations Law § 240(3); § 252.
3. Domestic Relations Law § 170.
4. Domestic Relations Law § 170(1).
5. Care should be taken when alleging that the abuse occurred in the presence
of minor children. While such an allegation strengthens the cause of action
and will be a consideration in a custody dispute, it could also prompt the
judge to instigate a child welfare investigation that could end in a finding of
neglect based on her failure to protect her children within the meaning of
child protection laws. However, as will be discussed in more detail later in
this article, Supreme Court justices are far less likely than Family Court
judges to instigate such an investigation.
6. Meier v Meier, 156 AD2d 348 (2d Dept 1989), appeal dismissed, 75 NY2d
946 (1990).
7. Brady v Brady, 64 NY2d 339 (1985).
8. Domestic Relations Law § 170(2).
9. Figueroa v Figueroa, 66 Misc 2d 257 (Sup Ct, Queens County, 1971).
10. See also Maryon v Maryon, 60 AD2d 623 (2d Dept 1977) (“In an undefended
matrimonial action there is no requirement that the plaintiff must negate any
defense which might possibly have been raised by the defendant”).
11. Jeffrey v Jeffrey, 172 AD2d 719 (2d Dept 1991).
12. Ahmed v Ahmed, 180 Misc 2d 394 (Sup Ct, Nassau County, 1999); Roofeh v
Roofeh, 138 Misc 2d 889 (Sup Ct, Nassau County, 1988).
13. Arlyn T. v Harold T., 107 Misc 2d 672 (Fam Ct, NY County, 1981).
14. Ahmed, 180 Misc 2d 394; Roofeh, 138 Misc 2d 889.
15. Peters v Peters, 100 AD2d 900 (2d Dept 1984).
16. Family Court Act § 842.
17. Family Court Act §§ 841 and 842.
18. Domestic Relations Law § 234.

236 Emily Ruben
19. Harley v Harley, 129 AD2d 843 (3d Dept 1987); Poliandro v Poliandro,
119 AD2d 577, 578 (2d Dept), appeal dismissed 68 NY2d 908 (1986).
20. These forms are available from New York State’s Unified Court System,
http://www.courts.state.ny.us/forms/.

16
Representing Domestic Violence
Victims in the Workplace
by Wendy R. Weiser and Deborah A. Widiss
As an advocate for a victim of domestic violence, you can play a central role
in helping her maintain her job. 1 A job can provide a victim with the
economic independence she needs to leave an abuser, but, all too often,
domestic violence follows its victims into the workplace and interferes with
their ability to keep their jobs. The workplace effects of domestic violence are
often direct: an abuser may call incessantly, come to the workplace, or take
other steps to disrupt a victim’s work life as a means of exerting control. Studies
confirm the prevalence of such experiences. 2 Between 35 and 56% of battered
women in three separate studies reported that they were harassed at work by
their batterers. 3 Half of all female victims of violent workplace crimes know
their attackers, 4 and nearly one out of every ten violent workplace incidents is
committed by partners or spouses. 5
More frequently, the effects of violence are indirect. For example, a victim’s
job performance may suffer because she is frequently absent or distracted, or
she may need to take time off during business hours to address the effects of
violence in her life. She may even be fired or penalized at work when her
employer learns she is a victim of domestic violence. More than half of
domestic violence victims surveyed in New York City in 1995 reported that
abuse caused them to be late or miss days at work. 6 According to a 1998 report
of the US General Accounting Office, between 25 and 50% of domestic
violence victims surveyed reported that they lost a job due, at least in part, to
domestic violence. 7
Victims of domestic violence who are employed often feel that they are trapped
in a catch-22. They need accommodations at work (such as time off) to take
essential steps to address the violence, but they are afraid to tell their employers
for fear of retaliation or losing their jobs. A victim who loses her job may no
longer have the economic means to make the other necessary changes in her life.

238 Wendy R. Weiser and Deborah A. Widiss
Fortunately, a variety of generally-applicable employment laws and specific
protections for domestic violence survivors provides important rights that can
protect a victim from discrimination and provide her time off from work and
other reasonable accommodations, as well as cash benefits for a period when
she cannot work. Victims in New York City and Westchester county in particular
can benefit from recent laws that specifically prohibit discrimination against
domestic violence victims and require employers to reasonably accommodate
their needs. 8
This chapter offers an overview of employment laws that may be useful to
your clients. Any time you are assisting a victim of domestic violence in any
capacity you should ask some basic questions about her work situation so that
you can offer her assistance or referrals as appropriate — and thus help promote
her financial independence. 9
How Can You Help Your Client Keep Her Job as She Deals
with the Violence in Her Life?
The first step in helping your client is to determine what she would like
from her employer. Does she want her employer to stop discriminating against
her or to reinstate her to a position she lost because of discrimination? Does she
want her employer to grant her some time off to deal with the abuse? Does she
want other accommodations to help her stay safe, such as a modified work
schedule or location?
Once you have determined your client’s workplace needs, the next step is to
consider how best to realize them. In many cases, informal advocacy may be
sufficient. The client may advocate on her own behalf, or with the assistance of
a union representative, attorney, or any other advocate. Any advocacy is more
likely to succeed when the client or her advocate has an understanding of her
legal rights and what she is legally entitled to expect from her employer.
In helping your client determine the most effective way to approach her
employer, you should ask her: Are there accommodations that she feels she
needs at work? Has she disclosed her situation to her employer? If so, has she
requested time off or accommodations, and what has been the reaction? Does
her employer have a workplace violence or domestic violence policy? Does she
have accrued leave of any kind? Has the domestic violence been affecting her
work performance? Is she suffering from specific physical or mental health
conditions? Is she a member of a union? How many people does her employer

Victims in the Workplace 239
employ? The answers to these questions will help you determine her legal rights
and her specific needs.
It is also helpful to recognize that an employer’s primary interest is to keep all
of its employees safe and able to do their jobs well. A proposed plan that furthers
those interests is more likely to be received well. Also, generally speaking, the
more a plan or request sounds like something the employer routinely grants, the
easier it may be for the request to be granted.
If independent advocacy fails, a letter from you or another attorney simply
setting forth the situation and applicable law may well be sufficient to secure the
requested accommodation or otherwise induce the employer to do the right thing.
If a lawyer’s letter fails to yield results, litigation may be necessary. Because
some claims have strict (and short) time limits, you should make the relevant
employment inquiries as soon as possible.
Should Your Client Tell Her Employer About the Violence?
Often, an initial step in addressing employment-related needs of a domestic
violence victim is helping her decide whether she should tell her employer about
the violence. There are some important advantages to disclosure. First, it can
allow your client to work with her employer to take steps to address the violence
and to help keep the workplace safe for her and for co-workers. It may also be
necessary to disclose the violence to take advantage of certain kinds of leave or
other policies. Disclosing the violence may also explain a period of poor
performance; this may be especially helpful if she has taken steps to address the
violence so that her employer will have reason to believe that problems affecting
her performance will abate.
There are, however, some very real downsides to disclosing. Some employers
may fire a victim simply because she is a victim of domestic violence, even if it is
unlawful. Laws in New York City and in Westchester county specifically prohibit
discrimination on the basis of being a victim of domestic violence, and federal and
state laws prohibiting sex discrimination in employment may also bar such
discrimination. But the fact that your client might have a good legal claim in the
future against an employer who fires her may be less significant to her than
ensuring that she has a regular pay check at present. Also, if she discloses the
violence, her employer may pressure her to obtain a protective order or take other
steps to leave an abuser. These steps may or may not be right for your client, but
she may have a hard time explaining the situation to her employer. Even if her

240 Wendy R. Weiser and Deborah A. Widiss
employer has a duty to keep her situation confidential or if she asks her employer
to be discreet, once she has talked about the violence at work, the story may begin
to circulate at the office and expose her to prying questions.
Deciding whether to disclose can be a very difficult decision, and,
unfortunately, it can be impossible to know in advance how an employer will
react. Employment policies may offer a clue. Certainly, where an employer has
affirmatively committed to a proactive domestic violence policy, there is
considerably less risk in disclosing. If your client does decide to disclose the
violence to her employer, she should ask her employer to keep her situation
confidential. In New York City and Westchester county, employers are legally
obligated to maintain the confidentiality of most information relating to
domestic violence. 10
What Workplace Accommodations Can Help Your Client,
and What Are Their Legal Bases?
There are several changes that can be made at work to keep a victim of
abuse and her coworkers safe and to reduce the likelihood of disruptions by an
abuser. It may be easier to convince an employer to make these changes if your
client has disclosed her situation, but some changes could be made even without
disclosure. Examples of common accommodations include:
Allowing time off to obtain a protective order, seek medical or
legal assistance, find safe housing, or take other steps to deal
with the abuse.
Changing a telephone number or extension or routing calls
through the office receptionist to curtail phone harassment.
Keeping the employee’s home address and telephone
information confidential.
Transferring the employee to a different desk, department,
shift, or work site.
Having a security guard escort her to her car or the nearest
public transportation stop.
Registering a protective order with security or office reception
staff, or posting a photograph of the abuser at the front desk or
with security personnel and informing the guards or
receptionist not to let the person enter the building.

Victims in the Workplace 241
If your client is working with you or other professionals to develop a safety
plan, you should remind her to consider workplace accommodations. You may be
able to help her strategize about how to best present her case for such changes.
There are a variety of legal bases for requesting accommodations. First, if
the employer has a domestic violence policy in place, it generally will explicitly
provide that the employer will make reasonable accommodations to address the
violence. Many employees of New York State and County governments are
covered by domestic violence policies; an increasing number of private
businesses have also adopted policies. 11 For victims who work in New York
City and Westchester county, recent local laws specifically require that
employers make reasonable accommodations for victims of domestic violence,
sex offenses and stalking. 12 For employees who need time off, several laws give
employees the right to take leave to deal with medical needs or go to court. 13
Certain victims of domestic violence may have disabilities that qualify for
reasonable accommodations under the Americans with Disabilities Act or under
New York’s antidiscrimination law. 14 Finally, failure to take reasonable steps to
address potential hazards in the workplace, including danger resulting from
domestic violence, may also open an employer up to claims of tort-based
negligence, discrimination, or violation of OSHA regulations. 15
Developing some familiarity with these laws will improve your advocacy
on behalf of your client. An employer who does not immediately agree to
provide an accommodation to your client because it is the right and wise thing
to do may be convinced when it learns that it is legally obligated to do so.
Further, understanding your client’s workplace rights will help you advise her
about her legal options and remedies.
Workplace Accommodations in New York City or
Westchester County
If your client works in New York City or Westchester county, she is probably
eligible for workplace accommodations under recent local laws specifically
aimed at helping victims of domestic violence, sex offenses and stalking in the
workplace. 16 Under New York City’s law, employers are required to make
reasonable accommodations for employees the employers knew or should have
known were victims, so long as those accommodations would enable the victims
to satisfy the essential requisites of their jobs. While there is not yet much case
law interpreting this provision, the legislative history makes clear that the law

242 Wendy R. Weiser and Deborah A. Widiss
was intended to cover requests for leave, security measures, scheduling or
worksite changes, as well as other accommodations. 17 Accommodations must be
“reasonable” and not present an undue hardship to her employer. 18 An employee
may be required to provide her employer with certification that she is a victim
of domestic violence, sex offenses, or stalking. The certification requirement
may be satisfied by “documentation from an employee, agent, or volunteer of a
victim services organization, an attorney, a member of the clergy, or a medical
or other professional service provider . . . ; a police or court record; or other
corroborating evidence.” 19 The employer is required to keep all such
information “in the strictest confidence.” 20 The Westchester county law includes
very similar provisions. 21
How Can Your Client Get Time Off from Work to Take Steps
to Address the Violence in Her Life?
Almost any victim of domestic violence needs at least a little time away
from her job. She may need time to obtain a protective order, to participate in
other civil or criminal proceedings against her abuser, to address her physical
injuries or mental stress from the violence, to find safe housing, or to care for
injuries to abused family members. She may need full-time leave, or she may
simply require a reduced schedule, intermittent leave, or some flexibility in her
hours. Currently, a patchwork of existing laws and policies, in addition to the
recently-enacted New York City and Westchester statutes discussed above, 22 can
provide victims with the time that they need to address some of the issues.
Time Off Under Employment Policies
To determine the extent to which your client is eligible for time off, the first
place to look is personnel policies, employment contracts, and collective bargaining
agreements. Does your client’s employer have a policy specifically addressing
domestic violence? Does she have vacation days, personal days, sick days,
discretionary days, family and medical leave or other paid or unpaid leave that
she can use? Are there flex-time provisions that can help her arrange a schedule
to provide time for counseling or rearrange her schedule so that her abuser will
not know when she will be going to or from work? Is there any accommodation
for “special circumstances” that could provide her the flexibility she needs?
Many employee benefit programs and collective bargaining agreements provide
generous leave rights and cover employers that may not be covered under other

Victims in the Workplace 243
laws. If your client is in a union, a union representative may be a helpful advocate
in reviewing the possibilities for time off and in negotiating with an employer for
necessary accommodations.
Time Off to Go to Court
If your client needs time off to obtain a protective order or to participate in
criminal proceedings, New York State Penal Law may be helpful. It prohibits an
employer from firing or penalizing a victim of a crime who takes time off to
appear in court as a witness, to consult with a district attorney, or to obtain an
order of protection in either family court or criminal court. 23 The employee must
give her employer notice at least a day ahead of the absence, and her employer
may withhold wages. Her employer may also ask for documentation, which a
prosecutor or court clerk can supply.
Time Off to Address Medical Needs or Accommodations
for a Disability
The Family and Medical Leave Act
If your client needs time off to address the health consequences of violence
against herself or a family member, she may also be able to rely on the federal
Family and Medical Leave Act (FMLA). 24 The FMLA requires employers to
grant up to twelve weeks of leave to care for “serious health conditions” of
employees or their family members. A “serious health condition” is an illness,
injury, impairment, physical or mental condition that (a) causes a period of
incapacity (including an inability to work, attend school, or perform other
regular daily activities), and (b) requires an overnight stay in a medical facility
or continuing treatment by a health care provider. Under certain circumstances,
FMLA leave may be taken “intermittently,” allowing, for example, an employee
to take an afternoon off every week for ongoing counseling or therapy. The
FMLA, however, only covers employers with 50 or more employees within a
75-mile radius and employees who have worked at least 1,250 hours during the
twelve months before taking leave (about twenty hours per week).
If your client might be able to use the FMLA, she should notify her employer
of her health or medical condition. Although a victim need not disclose that her
condition is a result of domestic violence, she must provide sufficient information
so that her employer can understand that she has a serious health condition.
Either the employee or the employer may choose to apply any accrued paid
leave (e.g., vacation or sick time) to the FMLA leave. Under the FMLA, an
employer may not fire an employee for taking up to twelve weeks of leave,

244 Wendy R. Weiser and Deborah A. Widiss
must continue to provide the same level of health plan coverage during the
leave, and must give the employee the same or an equivalent job upon her
return.
Accommodations (Including Altered Schedule) for a Disability
Employment laws that protect employees with disabilities may also help
certain domestic violence victims at work. These include the federal Americans
with Disabilities Act (ADA), 25 the New York State Human Rights Law, 26 and
comparable local laws. These laws prohibit employers from discriminating
against employees who have qualifying disabilities or who are perceived as
having disabilities, provided that the employees can perform the essential
functions of their jobs. In addition, disabled employees are entitled to reasonable
accommodations.
To qualify for protection under the ADA, a person must have a physical or
mental impairment that “substantially limits a major life activity.” 27 The definition
of disability under the New York State Human Rights Law (and many local
laws, including New York City’s) is considerably broader than that under the
ADA. 28 Accordingly, some individuals who may not have qualifying disabilities
under the ADA may nonetheless have disabilities that must be accommodated
under state or local law. 29
The disabilities laws can be useful for domestic violence victims who suffer
long-term physical or mental injuries, including post-traumatic stress disorder or
depression. Common accommodations under disabilities laws include time off,
changes of facilities, job restructuring, reassignment, and modification of
equipment. Relevant accommodations for domestic violence victims may also
include changed work schedules to enable them to seek counseling or treatment
for injuries.
What Cash Benefits May be Available to Your Client if
She Cannot Work for a Period of Time or Leaves Her Job?
Short-Term Disability Benefits
A domestic violence victim may be able to receive short-term disability
payments. Short-term disability insurance provides partial wage replacement to
individuals who cannot work because of an off-the-job illness or injury.
Disability insurance provides cash benefits to offset lost wages. A qualified
claimant will receive 50% of her average weekly wage or the maximum benefit

Victims in the Workplace 245
allowed (currently $170), whichever is lower. Benefits are paid for a maximum
of 26 weeks of disability during a period of 52 consecutive weeks. Both
employed and unemployed persons can receive benefits, but benefits cannot be
claimed for any day on which the claimant receives a salary or on which an
unemployed claimant receives unemployment insurance benefits. The short-term
disability benefits program is administered by the state Workers’ Compensation
Board, which provides forms that may be used for claiming benefits.
Unemployment Insurance Benefits
A domestic violence victim who is fired or who chooses to leave her job
may be eligible for unemployment insurance benefits. To qualify for
unemployment insurance in New York, a claimant must demonstrate that (a) if
she was terminated, it was not because of her misconduct, or (b) if she left her
job voluntarily, she had good cause to do so. Under New York law, if a claimant
chooses to leave her job as “a consequence of circumstances directly resulting
from the claimant being a victim of domestic violence,” she may be found to have
“good cause” for a voluntary separation and thus be able to receive unemployment
benefits. 30 In addition, if your client lost her job because of alleged “misconduct”
that itself was related to domestic violence (such as unexcused absences), she may
be able to establish that such consequences of domestic violence are not actually
“misconduct” under New York law. 31 To qualify for benefits, a claimant must also
certify that she is ready and able to accept work. 32 Some domestic violence
victims may not be able to meet this standard.
To obtain unemployment insurance benefits, your client must file a claim with
the New York State Department of Labor. Although New York law does not require
a claimant to provide any specific documents to verify that domestic violence
occurred, providing relevant documents may be helpful to establish coverage
under the domestic violence provision. Be aware, however, that documents
submitted to the unemployment insurance office may not be kept confidential.
What Claims Could Your Client Have if She is Fired or Otherwise
Discriminated Against Because of the Domestic Violence?
Domestic Violence Discrimination Laws
If your client was fired, demoted, or otherwise treated badly at work
because she was a victim of domestic violence or because of the misconduct of

246 Wendy R. Weiser and Deborah A. Widiss
her abuser, she may have a claim under domestic violence discrimination laws.
New York City and Westchester county laws specifically prohibit all forms of
employment discrimination against domestic violence victims. 33 These laws
make it illegal for an employer to discriminate against an actual or perceived
victim of domestic violence in hiring, firing, compensation or other privileges
and conditions of employment. In other words, they include domestic violence
victims as a protected class. A recent amendment to the New York City law
makes clear that, under this law, an employer also may not discriminate against
an employee because of the acts of her abuser.
Claims under the New York City law can be filed with the New York City
Human Rights Commission or brought directly in court. Remedies for a
violation of the law can include reinstatement, back pay, and damages, including
punitive damages. Claims under the Westchester law may be pursued by filing a
complaint with the Westchester Human Rights Commission.
Sex Discrimination Laws
For jurisdictions that do not have domestic violence discrimination laws,
sex discrimination laws, including Title VII of the Civil Rights Act of 1964, 34
the New York State Human Rights Law, 35 and local laws, may also prohibit
discrimination against domestic violence survivors. Various theories of liability
may apply.
Disparate Treatment
First, in certain circumstances, an employer may be said to have engaged
in disparate treatment sex discrimination if the employer treats battered women
differently from other employees. The classic prima facie case of disparate
treatment sex discrimination is stated in terms of hiring, requiring that an
employee establish that (1) she is a woman; (2) she applied for and was
qualified for the position in question; (3) she was rejected; and (4) the position
remained available. 36 Courts consider comparable factors in assessing other
sex discrimination claims (e.g., termination or demotion) in the employment
context. If a prima facie case is established, the burden of production then
shifts to the employer to show a legitimate non-discriminatory reason for the
employment action. The employee must then prove that the employer’s reason
is merely a pretext for discrimination.
If your client is penalized at work because her employer finds out she is the
victim of domestic violence or sexual assault, you may be able to argue that her
employer is treating her differently because she is a woman and hence violating
sex discrimination laws. It is generally easier to make a disparate treatment case

Victims in the Workplace 247
if a similarly situated male employee was not fired or otherwise penalized by the
employer. Such a situation may exist when the employee’s batterer is also her coworker.
If the employer fires the victim but takes no action against the batterer,
there is a clear comparison between male and female workers. 37 Another example
of a situation where such a comparison is possible is when an employer fires a
domestic violence victim for taking time off to secure safe housing but allows a
male employee to take time off to move or take similar actions.
Disparate Impact
A second theory of liability, perhaps more broadly applicable in the domestic
violence context, is disparate impact discrimination. The disparate impact theory
is generally used to challenge policies or practices that are gender-neutral on their
face but in fact fall more harshly on women than men. 38 An employer who applies
a policy or practice in such a way as to negatively affect domestic violence
victims may be said to have engaged in disparate impact sex discrimination. For
example, if an employer has a policy of firing employees who obtain or seek to
enforce protective orders, that policy would have a disparate impact on women
because the majority of people obtaining or enforcing protective orders are
women. While we do not know of any reported cases addressing this theory in the
employment context, there have been successful cases based on a similar theory
under federal and state fair housing laws. 39 In those cases, landlords evicted or
otherwise discriminated against tenants because they were victims of domestic
violence. The adjudicators found that the landlords’ policies constituted illegal sex
discrimination under the fair housing laws because they had a disparate impact on
women. Since housing discrimination laws are interpreted in a manner consistent
with employment discrimination laws, those cases could be relevant precedents in
the employment context.
Sexual Harassment
A third way sex discrimination laws can help your clients at work is under a
sexual harassment theory. For domestic violence victims, a sexual harassment
theory may be available when the batterer is a co-worker who creates a hostile
work environment for the victim. There have been several cases in which
domestic violence victims have successfully brought sexual harassment claims
against their employers when their abusers were co-workers. 40 The sexual
harassment theory may be extended to apply to a situation where a victim of
domestic violence obtains a protective order against her co-worker. If her
employer knew that the batterer was creating a hostile environment, the
employer may arguably be obligated to enforce the protective order under a

248 Wendy R. Weiser and Deborah A. Widiss
theory that the employer has a duty to take prompt and effective remedial action
to stop the sexual harassment.
Are There Additional Claims that Your Client May Have
if the Violence Occurred at Work?
If violence occurred in the workplace or if your client fears violence at
work, additional laws may apply or provide your client with a claim. These laws
may, under certain circumstances, establish a duty for employers to provide a
workplace safe from domestic violence.
Workers’ Compensation and Negligence Claims
Accidents or injuries that occur at work may give rise to either workers’
compensation or negligence claims. Workers’ compensation is an administrative
system, often faster than a lawsuit, that provides an opportunity for an individual
injured at work to recover medical costs but generally not any other damages. If
an accident or injury on the job is covered by workers’ compensation, then it is
generally the exclusive negligence-based remedy against the employer, precluding
the employee from also recovering under a tort theory. New York’s Workers’
Compensation Law generally bars common law negligence claims against the
employer based on a co-worker assault; it will not, however, preclude a claim
based on an “intentional act committed by an employer” directed at “causing
harm to a particular employee.” 41 A domestic violence victim who seeks to avoid
the workers’ compensation system — and thus retain the possibility of pursuing
negligence tort-based claims — may argue that the workers’ compensation law
should not apply if her abuser is a high-level supervisor (and hence his acts may
be imputed to the employer) or if there is evidence that her assault was motivated
to cause harm to her specifically. 42
Possible negligence claims that may apply if the incident is not covered
by workers’ compensation include negligent hiring and retention, negligent
supervision, failure to warn and respond, and negligent infliction of emotional
distress. Domestic and other violence victims have successfully brought
negligence claims against their employers in a number of cases. For example,
in one case, a victim was permitted to bring a negligent retention claim against
her abuser’s employer where she alleged that the abuser had used his position
as a corrections officer repeatedly to access her unlisted telephone number and
to hold off police officers when confronting the victim in public. 43 Another case

Victims in the Workplace 249
held that an employer could be liable under a negligence theory where the
plaintiff was shot at work by a co-worker who had previously attacked her and
another former girlfriend at the work site. 44
Occupational Safety and Health Act
The federal Occupational Safety and Health Act (OSHA) has a “general
duty clause” that requires every employer to provide a workplace free from
recognized safety hazards. 45 To invoke that clause, an employee must show that
the danger was reasonably foreseeable. That clause may be interpreted to
require employers to take reasonable steps to protect workers from violent
attacks, including domestic violence attacks, in the workplace. Although we
know of no precedent to that effect yet, the OSHA rules require employers to
consider all injuries caused, in whole or in part, by “an event or an exposure in
the work environment” to be “work-related,” and do not list domestic violence
incidents among the exceptions. 46
Conclusion
For many women, the ability to maintain employment or economic security
may be the deciding factor in whether they can leave a violent relationship, but
advocates and attorneys have begun focusing on how employment laws can
assist domestic violence survivors only recently. In fact, the laws specifically
addressing the needs of victims — such as the New York State law providing
access to unemployment insurance and the New York City and Westchester laws
specifically prohibiting discrimination and requiring reasonable
accommodations — were passed in the past decade. Many laws and legal
strategies remain underutilized. As a lawyer, you can help forge these laws into
useful tools that can help your clients gain the economic independence they
need to address effectively, and ultimately end, the violence in their lives.

250 Wendy R. Weiser and Deborah A. Widiss
Notes
1. Although men can be victims of domestic violence and domestic violence
can exist in same-sex relationships, in the majority of cases, the victim of
domestic violence is a woman and the abuser is a man. Accordingly, for
convenience’s sake, we refer to victims in the feminine and abusers in the
masculine throughout this chapter.
2. See generally Jody Raphael & Richard M. Tolman, Trapped In Poverty,
Trapped By Abuse: New Evidence Documenting the Relationship Between
Domestic Violence and Welfare (1997) (documenting ways in which abusers
interfere with victims’ ability to work, including preventing them from
going to work, harassing them at work, limiting their access to cash or
transportation, and sabotaging their child care arrangements).
3. See United States General Accounting Office, Domestic Violence:
Prevalence and Implications for Employment Among Welfare Recipients 19
(Nov. 1998) (summarizing three studies of employed battered women)
[GAO Report].
4. Greg Warchol, US Dept. of Justice, Workplace Violence, 1992-96 (July 1998).
5. Society for Human Resource Management, Workplace Violence Survey 6-7
(2000).
6. New York Dept. of Labor, Report to the New York State Legislature on
Employees Separated from Employment Due to Domestic Violence, Jan. 15,
1996, at 3 (citing Lucy N. Friedman & Sarah Cooper, Victim Services
Research: The Cost of Domestic Violence (Aug. 1987)).
7. GAO Report, supra, note 3.
8. Survivors Workplace Protection Act, Local Law 75 of 2003, to be codified
at Administrative Code of City of NY § 8-107.1 [NYC Local Law 75];
Westchester Co. Local Law Intro 14-2005, to be codified at Westchester Co.
L. ch. 800 [Westerchester Co. Local Law 14-2005].
9. Legal Momentum’s Employment and Housing Rights for Survivors of
Abuse (EHRSA) project provides direct representation and technical
assistance on employment-related needs of domestic violence survivors.
Information on this program can be found at
http://www.legalmomentum.org/html/issues/vio/ersastart.shtml.
10. NYC Local Law 75 § 4; Westchester Co. Local Law Intro 14-2005 § 2.

Victims in the Workplace 251
11. Section 10-b of the Labor Law, as explained by Section 575 of the
Executive Law, established the New York State Office for the Prevention of
Domestic Violence (OPDV) and directed that it develop model domestic
violence policies for government entities and for private businesses. The
model policies are posted on the OPDV website,
http://www.opdv.state.ny.us/workplace/index.html.
12. NYC Local Law 75; Westchester Co. Local Law Intro 14-2005, supra, note 8.
13. See e.g. Family and Medical Leave Act, 29 USC § 2601 et seq. (2003);
Penal Law § 215.14 (2003).
14. 42 USC § 12101 et seq. (2003); Executive Law, art 15.
15. See e.g. 29 USC § 651 et seq. (2003).
16. NYC Local Law 75, supra, note 8.
17. The Council Report of the Governmental Affairs Division, Marcel Van
Ooyen, Deputy Chief of Staff, Committee on General Welfare, Bill DeBlasio,
Chair, Report on Int. No. 107-A, Oct. 16, 2003,
http://webdocs.nyccouncil.info/attachments/59086.htm (stating reasonable
accommodations provision would require employers to allow victims “to
take leave from work to seek legal assistance, counseling, or assistance in
developing a safety plan [and that] [o]ther reasonable accommodations
could include . . . re-assigning seating so that a victim need not sit near an
entrance, changing a victim’s telephone number, removing his or her name
from the company’s phone directory, or adjusting starting and leaving times.”).
See also Reynolds v Fraser, 5 Misc 3d 758, 781 (NY Sup Ct 2004) (finding
failure to accommodate employee’s lack of a permanent address violates law).
18. NYC Local Law 75 §§ 3 & 4, to be codified at Administrative Code of City
of NY § 8-102(18) & § 8-107.1(3)(a)
19. NYC Local Law 75 § 4, to be codified at Administrative Code of City of
NY § 8-107.1(3)(b).
20. Id.
21. Westchester Co. Local Law Intro 14-2005.
22. NYC Local Law 75 and Westchester Co. Local Law Intro 14-2005, supra,
note 8.
23. Penal Law § 215.14 (2003); see also Buchwalter v Dayton Management
Corp., 129 Misc 2d 297, 900 (Sup Ct NY Co, 1988) (recognizing private
cause of action under § 215, 14).

252 Wendy R. Weiser and Deborah A. Widiss
24. 29 USC § 2601 et seq. (2003); see also 29 CFR Part 825 (2003). In Gregg v
Anchorage, 101 P 3d 181 (Almser 2004), the Supreme Court of Alaska
ruled failure to provide a domestic violence victim with time off to address
stress from the situation violates the FMLA.
25. 42 USC § 12101 et seq. (2003).
26. Executive Law, art 15.
27. 42 USC § 12102(2).
28. Executive Law § 292 (21) (2003) (covering impairments “which prevent[]
the exercise of a normal bodily function or is demonstrable by medically
accepted clinical or laboratory diagnostic techniques”).
29. See e.g. Reeves v Johnson Controls World Servs., 140 F3d 144, 154-56
(2d Cir 1998) (finding that panic disorder that was not a qualifying disability
under the ADA because the alleged restriction of everyday mobility was not
a major life activity was nonetheless a disability under the state Human
Rights Law because it was a medically diagnosed mental impairment).
30. Labor Law § 593(1)(a) (2003); In re Loney, 287 AD2d 846 (3d Dept 2001).
31. See Matter of Christina Ramirez-Huie, ALJ Case No. 001-08794 (Unempl.
Ins. App. Bd., July 20, 2001) (employee who was fired for missing work for
circumstances relating to domestic violence, including for medical treatment
and child custody disputes, did not commit “misconduct” and hence is
eligible for unemployment benefits).
32. Labor Law § 591(2) (2003).
33. NYC Local Law 75.
34. 42 USC § 2000e et seq. (2003).
35. Executive Law, art 15.
36. See generally McDonnell Douglas Corp. v Green, 411 US 792 (1972).
37. See e.g. Valdez v Truss Components Inc., No. CV98-1310 (US Dist Ct, OR,
filed Oct. 23, 1998); Valdez, 1999 US Dist LEXIS 22957 (US Dist Ct, OR,
Aug. 19, 1999).
38. See e.g. Dothard v Rawlinson, 433 US 321 (1977); Griggs v Duke Power
Co., 401 US 424 (1971).
39. See Bonley v Young-Sabourin, 394 F Supp 2d 675 (Dist Ct 2005) (finding
termination of lease because tenant was a victim of domestic violence could
state sex discrimination claim); Secretary, US Dept. of Hous. & Urban Dev.,

Victims in the Workplace 253
No. HUDALJ 10-99-0538-8 (HUD Ore. Apr. 16, 2001) (HUD charge of
discrimination in United States ex rel. Alvera v C.B.M. Group, Inc. finding that
eviction of woman because she was a victim of domestic violence violated
Fair Housing Act), http://www.legalmomentum.org/issues/vio/
Alvera%20Charge%20of%20Discrim.pdf; Winsor v Regency Prop. Mgmt,
Inc., No. 94 CV 2349 (Wisc. Cir Ct, Oct. 2, 1995) (holding that Wisconsin
Fair Housing Law, modeled after federal Fair Housing Act, prohibits
housing discrimination against domestic violence victims); O’Neil v
Karahlais, 13 MDLR 2004 (Mass. Comm’n Against Discrim. Oct. 21,
1991) (same with respect to Massachusetts law); Formal Op. No. 8F-F15,
1985 Op Atty Gen NY 45 (Nov. 22, 1985) (Attorney General’s opinion that
sex discrimination provisions of New York State Human Rights Law
prohibit denial of rentals to persons based on their status as domestic
violence victims).
40. See e.g. Excel Corp. v Bosley, 165 F3d 365 (8th Cir 1999); Fuller v City of
Oakland, 47 F3d 1523 (9th Cir 1995).
41. Acedevo v Consolidated Edison Co., 189 AD2d 497, 501 (1st Dept 1993).
42. See e.g. Peterson v RTM Mid-America, 209 Ga App 691, 693 (Ga Ct App
1993); Devault v Gen. Motors Corp., 386 NW2d 671 (Mich. App. 1986);
Morris v Soloway, 428 NW2d 43 (Mich App 1988).
43. Prignoli v City of New York, 1996 US Dist LEXIS 8498 (SDNY 1996).
44. Crapp v Elberta Crate & Box Co., 479 SE2d 101, 102-03 (Ga Ct App
1996). See also, e.g., Haddock v City of New York, 75 NY2d 478 (1990)
(affirming negligent retention holding in case brought by individual raped
by a city employee where city failed to follow its procedures regarding
conducting criminal background checks and thus was unaware that employee
had previously been convicted of several crimes); Duffy v City of Oceanside,
224 Cal Rptr 879, 884-85 (Cal Ct App 1986) (reversing summary judgment
holding for defendant on negligent failure to warn and respond claim where
employer failed to inform plaintiff of co-worker’s prior convictions for rape
and sexual assault even after plaintiff complained that co-worker had
sexually harassed her).
45. 29 USC §§ 651 et seq. (2003).
46. 29 CFR § 1904.5 (2002).

In addition to the physical and emotional harm caused by domestic violence,
survivors often face serious financial consequences. Many survivors are
dependent upon an abuser for basic financial support to pay for rent, food and
clothing. Often, abusers control their partners by preventing them from working
or by interfering with employment or child care arrangements until survivors are
fired or forced to quit their jobs. Some survivors are faced with the frightening
possibility of homelessness if they separate from their abuser or the loss of
existing housing as a result of the domestic violence. Without the most basic
resources necessary to provide for themselves and their children, many
survivors remain trapped.
The first critical steps toward economic self-sufficiency may come in the
form of public assistance and public housing. 1 Although an invaluable resource
for many survivors, the public assistance, or “welfare,” system has many serious
challenges. The system seeks to track and control its applicants and recipients,
and grants barely meet a client’s most basic needs. The shelter and subsidized
housing system also can be confusing and difficult to navigate. Because of the
dynamics of domestic violence, many battered clients face additional challenges
to securing documentation necessary to prove eligibility. Confidentiality
concerns create other obstacles.
Public Assistance
Public Assistance Basics
17
Public Assistance and Housing:
Helping Survivors Navigate Difficult Systems
by Amy E. Schwartz and Sharon Stapel
Welfare reform, beginning in the mid-1990s, has made it more difficult for
survivors to apply for, or remain on, public assistance, now termed temporary

256 Amy E. Schwartz and Sharon Stapel
assistance. 2 While the program still provides financial assistance to needy
families in the form of grants for “food and other” (including utilities) and
“rental assistance,” federal funds for the program are now limited, immigrant
eligibility is significantly restricted, families are subject to a sixty-month
lifetime limit in the Family Assistance Program, and eligibility requirements are
tougher to meet. 3
In New York State, temporary assistance (TA) is administered by the Office
of Temporary and Disability Assistance (OTDA). TA programs include both
Family Assistance (FA), which is designed for families that include a minor
child living with either a parent, two parents, or a caretaker relative, and Safety
Net Assistance (SNA), which is intended for individuals without children or
families with children who have reached their sixty month time limit. 4 FA and
SNA provide the same level of cash grants, but FA budgeting rules differ and
generally allow a working recipient to keep more of her cash or rental benefit
than the SNA program. Families with children may also be eligible for child
care benefits. 5 Medicaid and Food Stamps, while not addressed at length in this
article, are federal programs that are administered by the state welfare agency.
Families who are eligible for FA or SNA are generally also eligible for Food
Stamps and Medicaid. 6
State and federal statutes and regulations define social service district
obligations and applicant or recipient responsibilities. 7 Recipients can also
request fair hearings to challenge sanctions or an administrative determination
to reduce or deny benefits. 8
Public assistance grants are meager at best, as the below sample New York
City monthly grant award chart demonstrates. 9 The amount of public assistance
a recipient receives is determined by family size.
FAMILY SIZE
NON-SHELTER
(CASH)
RENT TOTAL
1 137.10 277.00 414.10
2 218.50 283.00 501.50
3 291.00 400.00 691.00
4 375.70 450.00 825.70
5 463.70 501.00 964.70
6 535.20 524.00 1059.20
7 607.70 546.00 1153.70
8 680.20 546.00 1226.20

Public Assistance and Housing 257
Because public benefits are administered by a state agency, the legal
landscape is largely defined by sub-regulatory agency directives such as
informational letters (INF), administrative directives (ADM), memorandums to
the Local District Commissioners (LCM), as well as New York City policy
directives (PD). 10 Administrative Decisions After Fair Hearings (DAFH) 11 also
set forth substantive precedent. While there is relevant case law, 12 it is often
focused on the procedure governing fair hearings or local and state compliance
with existing state and federal laws. 13
The regulations and policies that govern these areas of law change
periodically, so practitioners should consult advocates with particular expertise.
It is important to be familiar with the sources and substance of welfare law and
policy because improper or possibly illegal determinations about an applicant or
recipient’s case are made by welfare caseworkers and supervisors who are often
not well-versed in these materials. Incorrect determinations can and should be
challenged, and such challenges will require facility with federal and state law,
regulations, and administrative policies. Recipients can request fair hearings to
challenge adverse decisions. Although recipients do not have a right to counsel
in the fair hearing process, they may be represented by an attorney, an advocate,
or represent themselves in a fair hearing. The welfare system is extremely
complicated so even if you are not able to provide the survivor with direct
representation, you should try to provide her or her advocate with support and
assistance in the preparation of her administrative review.
The Application and Eligibility Process
In most communities, an individual can fill out one universal application14 for general welfare benefits (transitional benefits or TA), Food Stamps, and
Medicaid at the local welfare district office or welfare center. However TA,
Food Stamps15 and Medicaid are governed by different eligibility rules and
procedures. Families not eligible for FA or SNA may still be eligible for Food
Stamps, regular Medicaid, and/or one of the special programs such as Child
Health Plus or Family Health Plus. 16
Clients applying for TA are expected to document their household’s
eligibility for benefits. Applicants will need to provide such documentation as:
birth certificates, social security cards, proof of immigration status, any other
forms of identification, bank statements, proof of other earned or unearned
income in the household (including pay stubs, support and custody orders,
divorce judgments), school records, medical records, lease, and any other
resources (such as real property, stocks, bonds, retirements accounts). Domestic

258 Amy E. Schwartz and Sharon Stapel
violence survivors who don’t have access to these types of papers because they
fled their homes or had these documents destroyed by their abuser may have
difficulty providing this information. In this event, advocates may be able to
assist the client obtain this information safely. Although caseworkers are
required to help a client secure this documentation, many are unwilling to
provide this assistance.
The decision on a FA (TA for households with children) Application must be
made within 30 days of the application. Determinations of eligibility for SNA (TA
for households not eligible for FA) applications must be made within 45 days.
Applicants facing an emergency (such as having little cash or food, a utility
cut-off notice or an eviction) may be eligible for emergency assistance. 17
Applicants with emergencies must be given an immediate, same-day interview
and can receive a same-day emergency cash grant for non-food emergencies.
The applicant should explicitly advise the caseworker of her emergency needs
and be prepared to provide documentation of the emergency (e.g., the notice of
petition and petition if she is facing an eviction). Applicants are eligible for
“expedited” food stamps (issued within five days of application) if they have
less than $100 in cash savings and less than $150 in income during the month of
application. Applicants can also qualify for emergency food stamps if their rent
and utility costs are greater than the household’s gross income and available
resources. If an application for emergency assistance is denied, the applicant can
request a fair hearing. 18
In non-emergency cases, eligibility for assistance will be investigated by a
caseworker or, in NYC, by an Eligibility and Verification Review (EVR)
worker. Caseworkers should not contact an applicant’s abuser or his family if
such contact would result in potential danger to the applicant’s safety and the
safety of her children. The applicant must tell her caseworker at application or
investigation that she is abused to invoke this protection from contacting her
abuser. If an applicant no longer lives with her abuser but she and the abuser
have joint assets (such as joint bank accounts), these resources should not be
considered “available” for the purpose of determining eligibility, unless the
survivor has safe access to them. 19
Following the issuance of an assistance grant, recipients must “re-certify”
their eligibility every six months. While in receipt of benefits, recipients must
also satisfy various program requirements, most of which are onerous and
intrusive. For example, most TA recipients will be required to participate in
“work activities,” such as menial office work, cleaning streets or parks, for up to
35 hours per week. FA recipients will be required to cooperate with child

Public Assistance and Housing 259
support collection and enforcement, including providing locating information
about the father of their children and appearing in court. Failure to comply with
program requirements will result in a reduction or discontinuance of benefits, as
well as possible sanctions. Applicants whose FA or SNA cases are closed may
remain eligible for “transitional benefits,” including child care, 20 Medicaid, 21
and Food Stamps. 22
Although failure to comply with eligibility or programmatic requirements
can result in a sanction, reduction or discontinuance of benefits, all of the
programmatic requirements can be waived for survivors of domestic violence
under the Family Violence Option, discussed below.
Advocacy efforts with public assistance problems must be frequent,
consistent and well-documented. An advocate trying to resolve a client’s
problem should start by telephoning the caseworker and noting the dates, times,
and substance of the conversation. If the caseworker lacks the authority to
resolve the issue, the caseworker’s supervisor (or, in New York City, the director
of the welfare center) should be contacted. If these supervisors cannot or will
not resolve the issue, advocates should call the regional directors or managers.
Even reaching a caseworker or supervisor can be challenging, necessitating
multiple or even daily phone calls. All conversations should always be
confirmed in writing and faxed to the relevant staff person. Welfare offices are
generally large and uncoordinated, so documents are lost or misplaced with
great frequency. Faxes are generally the preferred way to send the letters, as
advocates can utilize fax confirmation records as proof that the letter was sent
and received. Clients should also be directed to similarly track their own
advocacy efforts with caseworkers. All welfare caseworkers should issue
standardized receipts for documentation provided by clients. 23 Often the more
informal advocacy routes fail, so the client should simultaneously request a fair
hearing, which can be withdrawn later if the informal route succeeds.
The Family Violence Option (FVO)
When welfare requirements became stricter, anti-domestic violence
advocates fought for exceptions for survivors who might be ineligible for
benefits because of their abusers’ actions. To address these concerns, Congress
created the federal Family Violence Option (FVO), which allows states to adopt
certain welfare-related protections for survivors. In 1997, New York adopted the
FVO and the state law now requires that all adult applicants for, and recipients
of, TA receive information about domestic violence and the protections and
local services available to survivors. 24 They must also be universally screened to

260 Amy E. Schwartz and Sharon Stapel
determine the presence of domestic violence and given the opportunity to
request a waiver of programmatic requirements that may place the survivor or
her children at risk. 25 Screening is supposed to take place during a face-to-face
contact as a part of the application or recertification interview. Applicants must
be screened without regard to marital status, gender or sexual orientation. 26
Local social services districts must use a standardized, confidential
screening form27 during the application and re-certification process, or complete
a screening upon request or in response to an indication of domestic violence to
any caseworker while an individual’s case is open. 28 Completing the screening
form is voluntary and not a requirement of eligibility. Applicants or recipients
may fill out the screening form or disclose domestic violence issues orally at
any time during application for, or receipt of, benefits.
Screening is not without its challenges. 29 Often survivors do not recognize
the range of tactics that are abuse and mistakenly believe that they qualify only
if subjected to physical violence. Some survivors may feel more comfortable
disclosing abuse issues only after learning about programmatic requirements
and the benefits of FVO-related waivers. Individuals may fear retaliation by
their abuser as a result of disclosure or may be embarrassed, ashamed or
suspicious of revealing this sensitive information to caseworkers. They may also
be mistrustful about the confidential nature of the information and question the
purpose for collecting this information. Additionally, survivors may interface
with caseworkers who they perceive to be judgmental, insensitive, or hostile to
their domestic violence concerns. Advocates should advise clients about their
rights to disclose domestic violence concerns at any time and assess how a
disclosure may or may not be helpful.
Regardless of how or when they are identified, applicants or recipients
with domestic violence concerns should be referred immediately to a Domestic
Violence Liaison (DVL) 30 to assess whether compliance with welfare
programmatic requirements would place the client and/or the client’s children in
danger or make it more difficult to escape the abuse. 31 The FVO cannot waive a
recipient’s basic financial eligibility requirements. 32 Although applicants and
recipients of “Food Stamps only” or “Medicaid only” are not required to be
notified of, and screened for, domestic violence under the FVO, some local
districts have opted to include these individuals in this screening process as
well. Some local districts will send these clients to the DVL for referral to
appropriate local domestic violence services. 33 While these individuals may be
able to take advantage of some limited DVL time and expertise, they will not be
eligible for any FVO-related waivers.

The Domestic Violence Liaison (DVL)
Public Assistance and Housing 261
A DVL is available within every local social services district or at every
center in New York City. In New York City, some DVLs split their time between
two centers, and, in these instances, are not immediately available for
appointments, which will generally be scheduled within a few days. The DVL is
most often a staff person who is specially trained about domestic violence
issues. Some social services districts have contracted out DVL services to an
approved domestic violence service provider, so the DVL may be located offsite.
34 In some communities, the DVL may also wear other hats for the local
district such as child protective or adult protective services caseworker,
eligibility caseworker, or supervisor. Applicants and recipients may express
legitimate concerns about disclosing sensitive information to these individuals.
However, it must be stressed that when the worker is in the role of DVL, that
worker is bound by the job requirements and confidentiality provisions
specifically outlined for the DVL. 35
DVLs are responsible for conducting waiver assessments, providing
emergency safety planning, informing participants and benefits programs
about waiver decisions, and developing service plans in collaboration with
the survivor. 36 DVLs also assess the applicant’s or recipient’s “credibility”
and the necessity for a waiver. 37 To verify and establish credibility, the DVL
looks at relevant documentation, such as police reports, court records,
medical records, photographs, and orders of protections. However, the
minimum documentation required is only a sworn statement alleging the
abuse. 38 The DVL cannot require the survivor to provide additional
documentation. In situations where documentation is unavailable, a DVL may
also use collateral contacts (i.e. domestic violence shelter staff, clergy,
community agency staff, co-workers, family and friends) but only with the
applicant’s or recipient’s written permission. 39
When an FVO-related waiver is granted, the DVL must prepare a service
plan individually designed to help lead the client to safety and self-sufficiency.
The plan should list recommendations, referrals to services (i.e. to the local DV
program), and available options (i.e. getting an order of protection). A client is
not required to follow the service plan’s recommendations and cannot be
sanctioned for failure to heed the DVL’s suggestions. 40
Our clients report that when they finally have the opportunity to meet with
DVLs, many tend to be helpful and more sensitive to domestic violence issues
than regular caseworkers. As a general rule, DVLs are more knowledgeable

262 Amy E. Schwartz and Sharon Stapel
about the legislative and policy directives around the FVO. However, despite
the great deal of discretion given to DVLs, many clients report that the DVLs
do not perceive themselves as having much discretionary power and regularly
ask for supervisor approval before granting waivers and exemptions. Although
law and policy does not require such approval, the DVLs’ perceived need for it
can make the waiver process multi-layered and time-consuming.
Family Violence Option Waivers
Many of the programmatic requirements have the potential to jeopardize a
domestic violence survivor’s safety or the safety of her children. 41 For example,
she may need time to secure safer housing, attend counseling, enroll her children
in new schools, or organize family affairs. Pursuing child support may disclose
her whereabouts to her abuser or incite anger or retaliation. As a result,
demanding compliance with requirements such as employment activities or child
support cooperation may be difficult or even dangerous, or may frustrate the
survivor to such an extent that she considers returning to the abuser. Waivers,
intended to provide temporary relief, can be granted for a minimum of four
months, but are renewable and should be continued for as long as necessary. 42
Although renewable, waivers are subject to the DVL’s ongoing review43 and
must be re-determined at least every six months, and can be modified, terminated
or extended at any time. Once a waiver ends, it will automatically expire if it is
not renewed. A client may also decline a waiver or terminate an existing waiver
at any time.
Waivers can be granted to excuse the applicant or recipient from
programmatic requirements including, but not limited to: residency rules, child
support and paternity establishment and cooperation, employment and work
training, participation in alcohol and substance abuse screening and treatment,
alien eligibility and deeming requirements, spousal support requirements, minor
parent education and living arrangement requirements, and lien requirements. 44
DVLs are also able to grant exemptions from the 60-month lifetime limit for the
receipt of TANF-funded public assistance benefits. 45
A DVL may grant a full waiver, which will completely relieve the client of
fulfilling any part of a programmatic requirement, or a partial waiver, which has
the effect of modifying certain programmatic requirements. Partial waivers are
most often seen for child support enforcement and paternity establishment
requirements, 46 as well as employment requirements. 47 A “partial child support
waiver” allows the agency to proceed with child support collection and
enforcement activities, but with certain precautions and limitations intended to

Public Assistance and Housing 263
protect the survivor and her children while support is pursued. 48 For example,
while a child support case is proceeding, the DVL may request the Child Support
Collection and Enforcement Unit to take steps to maintain confidentiality of
certain information about the client or limit the abuser’s contact with the client in
court. 49 Partial employment waivers may mandate the client to be involved with
work activity, but require her to travel to a different job site outside of her
abuser’s community.
We have found that minimal advocacy, such as speaking directly to the
DVL or sending a compelling advocacy letter on the client’s behalf, often results
in the granting of a full or partial waiver. Advocates need to explain clearly and
convincingly how domestic violence makes it unsafe for the applicant or
recipient to comply with programmatic requirements. These letters must be
explicit. For example, “Ms. X is a survivor of domestic violence and needs a
waiver” is helpful, but “Ms. X’s abuser is constantly threatening to kill her if he
is served with a petition for support. Ms. X’s abuser has in the past acted on his
threats to kill her by choking her and hitting her until the police were called or
Ms. X managed to escape. If Ms. X’s abuser receives a petition for child
support, he will not distinguish between the agency’s actions and Ms. X’s
actions. He will blame Ms. X and will likely act on his threats to kill her. Ms. X
must be given a permanent full child support waiver to stay safe and to escape
her abuser’s threats of violence” is more likely to be successful. If the request
for a waiver is denied, or a full waiver was requested but a partial waiver was
granted, the client may (and should) pursue a fair hearing.
Some communities have alternative programs that do not waive but instead
modify the welfare requirements that domestic violence survivors must fulfill.
For example, New York City’s Human Resources Administration / Department
of Social Services (HRA/DSS) established a pilot project known as ADVENT
(the Anti-Domestic Violence Eligibility Needs Team). 50 ADVENT allows
survivors in domestic violence shelters to include “domestic-violence related
services” when satisfying their work requirement. 51 Advocates should note,
however, that a waiver is always more beneficial than a program like ADVENT
because applicants or recipients cannot be sanctioned for not fulfilling waived
requirements.
Confidentiality Concerns
Because survivors may be hesitant to share sensitive information with social
services agencies, confidentiality safeguards were implemented to address both
applicant or recipient information and records. Disclosure of domestic violence

264 Amy E. Schwartz and Sharon Stapel
concerns is voluntary and confidential, and the information about applicants or
recipients who are identified as survivors of domestic violence may not be
disclosed to any outside parties or governmental agencies52 except if an applicant
or recipient authorizes the release in writing or the information is required to be
disclosed by law. 53 If a client reports child abuse to a caseworker, that caseworker
may have an obligation to report the abuse to child protective services.
DSS caseworkers, including DVLs, are required by law to report suspected
child abuse or neglect. 54 Some caseworkers may perceive child witnessing of
domestic violence as a type of neglect, so advocates should discuss with their
clients the implications of such disclosures before confiding in a caseworker.
Local social services districts are specifically required to tell applicants and
recipients that responding to questions regarding the existence of domestic
violence is voluntary. 55
The DVLs are required to maintain their own, separate files in order to
safeguard client-identifiable information. 56 Generally, this information is
available only to the DVL and not accessible to general caseworkers or other
DSS employees. However, client-specific information may be released intradepartmentally
in limited instances without the client’s consent. 57 If a survivor
reveals information to the DVL that may affect her benefits case, the DVL may
not transmit this information to the client’s public assistance caseworker without
the client’s consent. 58 For example, if a client tells the DVL that her boyfriend
forced his way back into her home and that she did not disclose his presence in
the household during her recertification with her caseworker, the DVL may not
reveal this information to the caseworker without the client’s consent, even
though it may constitute welfare fraud. Although the policy dictates the DVL
should not be perceived as condoning or encouraging the client to withhold
information on her public assistance case, the DVL’s primary goal is to preserve
client safety and confidentiality. 59 When, for example, the client reveals
additional income, the DVL must tell the client of the potential negative
consequences for non-reporting (i.e. sanction, rebudgeting, recoupment, criminal
liability), as well as the potential benefits of reporting (i.e. possible employment
retention, simple re-budgeting, access to certain employment-related benefits). 60
Further, because the DVL cannot pass along or act on this disclosure, reporting
this information only to the DVL will not be considered “reporting” to the
public benefits caseworker or to the agency. 61 Therefore, even if the client tells
the DVL of a problem or a change in circumstances, the client will also need to
officially inform her public assistance caseworker as well. If the DVL wears
multiple hats for the agency (i.e. is a caseworker or CSEU worker), the DVL

Public Assistance and Housing 265
must specifically ask the client if she wants to report the information to that
particular division. 62
Public Benefits and Battered Immigrants 63
Non-citizens are eligible in varying degrees for public benefits including
Family Assistance, Safety Net Assistance, Medicaid, Food Stamps and public
housing. Benefits will differ depending upon the precise nature of the person’s
immigration status64 and the date of entry into the United States. US citizen
children may be eligible even when their parents are not.
Determining a client’s immigration status may be particularly challenging in
cases involving battered immigrants. Many battered immigrants may not know
their immigration status because abusers have purposefully withheld
information or destroyed immigration documents. A battered immigrant may
have fled her home without the paperwork she needs to document her
immigration status or lost documents because of frequent relocations. Generally,
applications for public assistance cannot lawfully be denied or delayed because
of lost documents. 65 As a practical matter, however, the lack of immigration
documents can make it very difficult to establish eligibility for benefits.
Undocumented battered immigrants in New York State can become eligible
for public benefits by taking steps to adjust their immigration status. 66 For
example, the Violence Against Women Act (VAWA) offers specific immigration
relief such as the battered spouse waiver, the VAWA self-petition, U and T
Visas, or VAWA cancellation of removal.
Child Care Subsidy Program
Survivors with children who are receiving public assistance benefits,
transitioning off public assistance, employed or actively seeking employment, or
participating in an approved vocational training or rehabilitation program may
be eligible for child care subsidy assistance benefits. 67 Child care assistance may
also be available for certain emergencies. 68 Since local social services districts
have the discretion to tailor child care programs to meet their community’s own
need, 69 access to child care benefits varies widely from county to county. 70
Generally, to qualify for child care, families must be receiving public
assistance benefits or be determined income eligible. 71 The local districts must
guarantee free child care services to families with children under thirteen years of
age who are receiving public assistance benefits. 72 Families who are not on public
assistance will be required to contribute towards the cost of services and, as of
2005, they will also be required to document that they are pursuing child support

266 Amy E. Schwartz and Sharon Stapel
either through the Child Support Enforcement Unit, a private attorney, or on their
own. 73 If not, they must cooperate with paternity establishment and child support
collection and enforcement activities as a condition for receipt of benefits. 74
If a client is seeking only child care assistance benefits and has domestic
violence-related safety concerns associated with paternity establishment and
support collection activities, she is not eligible for child support-related waivers
under the Family Violence Option. However, the client could instead pursue a
“good cause exception” for refusal to participate with activities that may place
her and her children at risk of physical or emotional harm. 75 (The process is
discussed more fully in the following section.) If such a claim is raised, the client
will be asked to specify the circumstances that provide the basis of the claim,
corroborate the claim and, possibly, provide additional information in order to
permit an investigation. 76 Notably, an FVO waiver issued to a former TA
recipient within the last twelve months will be considered a demonstration of
good cause, but waivers older than twelve months will require a determination of
good cause. 77 When good cause claims involve domestic violence, child care
caseworkers can make the determination themselves or refer the client to the
DVL for a more complete assessment and recommendation regarding the
credibility of the claim. The child care caseworker and a supervisor will then
make a final determination about the claim. 78 Child care caseworkers also have
the authority to refer the client to the DVL or to a domestic violence program for
information and referral, but the client need not seek domestic violence services
as a condition of the receipt of a good cause exception. 79
Child Support, Spousal Support, Maintenance,
and Equitable Distribution Issues
As a condition of eligibility, public assistance recipients assign their rights
to collect child support, spousal support, or maintenance to the Department of
Social Services (DSS). 80 In other words, the local social services district, and
not the public assistance recipient, receives these support payments. This is
especially problematic for many survivors who may face the threat of violence
or other retaliation when the local district files a petition for support, enforces
an existing order, or attempts to establish the abuser as father of the child in
paternity proceedings. Recipients do not have control of the petitioning process
and often do not even know if and when a petition has been filed by DSS.
Recipients cannot file for child support without the knowledge and assistance of
DSS, although they may request child support and maintenance as a part of a
Family Court or divorce action, so long as this money is payable to the Office

Public Assistance and Housing 267
of Child Support Enforcement (CSE). Applicants and recipients who receive
money directly from their abuser must report this money as income. If DSS
obtains child support on the client’s behalf, she will be entitled to up to a $50
“pass through” child support payment each month in addition to her monthly
grant and DSS will retain the remainder of the support payment.
If an applicant or recipient indicates to the TA or CSE caseworker that she
has domestic violence concerns, the worker must suspend collection activities
and refer the applicant or recipient to the DVL. 81 Only DVLs are allowed to
determine the need for a domestic violence waiver related to support. However,
in complex situations and with the applicant or recipient’s permission, the DVL
may consult with the CSE caseworker to assess the impact of collection
activities on safety planning. 82
If the client is denied a FVO waiver by the DVL or she is not eligible for
the DVL’s assistance because of the type of benefits she receives, she may still
claim a “good cause” exception to the paternity establishment and support
collection requirements. 83 “Good cause determinations” differ from FVO
waivers in several key ways. First, the applicant or recipient must sign a notice
to claim good cause. The applicant or recipient then has 20 days to demonstrate
good cause by establishing that cooperation is “against the best interests of the
child” and that the applicant or recipient’s participation may reasonably result in
physical or emotional harm to the parent or child. 84 The applicant or recipient
will also need to provide corroborative evidence such as medical or mental
health records, sworn statements, and records from the courts, police or other
law enforcement agencies or documents from child welfare agencies or local
welfare districts indicating that the abusive parent might inflict physical or
emotional harm on the parent or child or that pursuit of support would be
detrimental to the mental and/or emotional health of the person. 85 Both adverse
FVO waivers and “good cause” determinations may be challenged through the
fair hearing process. 86
If the client who receives assistance benefits for herself or her children loses
primary custody and residency of her children, she must report this to her
caseworker. Her budget will need to be re-adjusted and it is possible that her
grant may change significantly or even be terminated. If a client continues to
accept the full grant and fails to report this change, she may face a sanction or
prosecution for welfare fraud.
If, pursuant to equitable distribution in the divorce case, the client receives
property, cash or a lump sum distributive award, there may also be implications
on the client’s public assistance case. 87 It is important that the client, her attorney,

268 Amy E. Schwartz and Sharon Stapel
and an expert in welfare law strategize together to best determine how to
structure a settlement that maintains the client’s eligibility for public assistance.
Housing Options: Domestic Violence Shelters and
Public Housing
In this section we focus on options survivors have if they choose to leave
their current housing and find emergency or permanent housing of their own.
Of course, survivors need not leave their home to escape the abuse.
Regardless of who holds the lease or title, orders of protection can direct the
abuser to vacate the residence and the Supreme Court may grant exclusive
possession and occupancy of the home as a part of a divorce proceeding. These
remedies are often helpful for survivors who desire to remain in their own
home, cannot afford alternative housing, and do not want to needlessly uproot
their children and leave their possessions and their pets behind. However, for
many survivors, remaining in a location known by their abuser can be extremely
frightening and dangerous. For those who choose to relocate for safety reasons,
domestic violence shelters and public housing programs offer safe and
affordable places to go. However, the nature of these services can vary
significantly from county to county. Therefore, before doing anything that may
affect a client’s housing, advocates should attempt to speak to a local domestic
violence program or a housing expert who is familiar with local resources.
Residential Domestic Violence Programs
Domestic violence survivors over age sixteen who are in imminent danger
and have no safe place to live are eligible for shelter regardless of sex, gender,
sexual orientation, immigration status, family size, marital status, income,
community of origin, or any other factor. However, because of space restrictions
or inability to provide attendant care services, some shelters may limit the
number of beds available for large families, single people, male survivors88 or
older male children, or residents (or their children) with certain disabilities or
health problems. 89
All local social services districts are required to offer and provide
residential domestic violence services. 90 Most local districts have chosen not to
offer their own and, instead, have contracted with existing residential domestic
violence service providers (“approved providers”) in their county. The New

Public Assistance and Housing 269
York State Office of Children and Family Services (OCFS) licenses these
programs and the local social services district reimburses the approved
providers for per diem services rendered. 91
For a program to receive reimbursement from the local district, each
resident must make an application for public assistance at the time of admission,
regardless of her income or resources. 92 Residents already receiving TA benefits
merely have to alert their caseworker to their new living situation. If a resident
is ineligible for public assistance93 (or for at least a full grant), the domestic
violence program may be able to cover the cost of the resident’s stay with
different grants or funds from other sources, such as donations or unrestricted
operating funds. However, if the shelter is unable to secure other resources to
pay for the resident’s stay, the shelter may ask for payment directly from the
resident. 94 This budgeting should be done in accordance with public assistance
regulations (including income disregards, 95 which lower the resident’s
contributions), but is often done improperly causing the resident to pay more
money than is mandated by law. When working with a client who is required to
pay for her domestic violence shelter stay, it’s best to contact a welfare law
attorney to review the budgeting. Policy “strongly discourages” the local social
services district from seeking reimbursement for the cost of a resident’s
domestic violence shelter stay from a legally responsible abuser. 96
The nature and extent of residential domestic violence services varies by
community. 97 Some communities with smaller populations or limited shelter
needs operate safe homes networks in private homes, safe dwellings or
apartments, or domestic violence programs that provide shelter to both domestic
violence survivors and other homeless individuals. Other communities may have
one or more “approved” shelter providers offering services at a multiple bed
domestic violence shelter.
In addition to safe housing, these programs also offer supportive core services
such as crisis intervention, 24-hour hotlines, advocacy, court accompaniment,
individual counseling, transportation, support groups, case management, and
children’s services. Programs may also require residents to follow restrictive rules
and curfews. At some, attendance at support groups or other educational sessions
is mandatory. By law, street addresses of domestic violence residential programs
are confidential. 98
Unfortunately, shelters are only temporary solutions. Residents at these
programs may stay for up to 90 days with the possibility of one 45-day
extension. 99 In New York City, after the 135 total days residents may request an
additional 30-day extension, but approval for these requests are relatively rare.

270 Amy E. Schwartz and Sharon Stapel
In New York City, domestic violence shelter residents must wait 42 days
after arriving in a shelter to apply for permanent housing. At 42 days, shelter
residents may apply for housing through development-based housing or
Section 8, but these applications can take several weeks to several months to be
approved. This results in residents being discharged from the shelter prior to
obtaining permanent housing. HRA/DSS is considering changing this policy so
that shelter residents can begin applying for permanent housing within 21 days of
shelter residence. As of June 2006, no official policy change has been issued. 100
When clients are discharged from a residential domestic violence program
and re-housed in unfurnished housing, the local district must provide essential
furnishings, equipment, and supplies necessary to establish a home. 101 Some
domestic violence programs also operate transitional housing programs that
allow longer stays in more permanent housing. Currently, only a handful of
these programs exist throughout the state. To find out about services in your
community, you can contact your local domestic violence service provider.
Subsidized Housing: A Brief Primer
The two primary subsidized housing programs available to survivors of
domestic violence are the Section 8 program (formally known as the “Housing
Choice Voucher Program”) and the “Public Housing” program. While the US
Department of Housing and Urban Development (HUD) grants funds for these
programs, local public housing agencies (PHAs) administer them. PHAs are
given some discretion to tailor program policies and procedures to community
needs. As a result, program policies and procedures vary regionally throughout
the state and may even vary substantially within a single county. In New York
State, local PHAs may be a municipal “Housing Authority” created under the
state’s public housing law. In New York City, the local PHA is New York City
Housing Authority (NYCHA). In the case of the Section 8/Housing Choice
Voucher Program, the PHA may be either a housing authority, the municipality
itself, or simply a not-for-profit corporation. The size of the geographic areas
served by the PHAs also vary and, in some communities, PHA jurisdictions
even overlap. It is important to be familiar with all of the PHAs operating in the
region to ensure that the client is considered for all available housing programs.
Lists of the programs operating in each county are available from the HUD
website at: http://www.hud.gov/offices/pih/pha/contacts/index.cfm.
Eligibility and admission policies and administrative procedures will vary
by program. To find the admissions policies and procedures for a local PHA,
practitioners should request a PHA’s “Admissions and Continued Occupancy

Public Assistance and Housing 271
Plan” or “Tenant Selection and Assignment Plan.” For the Section 8/Housing
Choice Voucher program, practitioners should request the “Administrative Plan”
for that PHA. Additionally, practitioners can obtain a copy of the PHA’s overall
operating plans (referred to by both the Section 8/Housing Choice Voucher
administrators and public housing authorities as the “PHA Plan”).
Despite specific direction from HUD in the early 2000’s encouraging the
creation and implementation of domestic violence survivor-friendly policies and
procedures, many local PHAs elected not to institute such accommodations in
either the Section 8 or the public housing arenas. 102 However, as a part of
federal housing reforms contained in the recent Violence Against Women Act
(VAWA III), effective January 5, 2006, PHAs are now required to formally
address domestic violence, stalking, and dating violence survivors’ needs in both
their annual103 and their five year plans. 104 Therefore, in order to comply, PHAs
must now describe any goals, objectives, policies, or programs they have in
place to serve the housing needs of these victims and collaborate with victim
service providers in creating these new policies and procedures. 105 Where legal
advocates want to have input into drafting and implementation of survivorfriendly
policies in their locality, they should consider meeting directly with
local PHA administrators or writing letters or testifying during annual openpublic
comment periods. On June 23, 2006 HUD issued PIH 2006-23, which
discusses the implementation of VAWA III and directs PHAs to “make tenants
participating in all public housing and voucher programs as well as owners
participating in the Section 8 voucher program aware of the requirements of
VAWA III as soon as possible.”
Because the demand for public housing and Section 8 vouchers often
exceeds the available resources, PHAs may establish a list of local preferences
for selecting priority applicants from its waiting list. Each PHA has the discretion
to determine its own preferences, which might include homelessness, involuntary
displacement, high rental costs or domestic violence. Priority preferences are not
a guarantee of housing or a voucher, but they offer those who are otherwise
eligible an opportunity to have quicker access to this scare resource. Although
there remains policy direction from HUD encouraging local PHAs to consider
preferences for domestic violence survivors and their children, many PHAs have
not implemented such preferences to date. 106 Unfortunately, VAWA III does not
require the creation of such preferences. However, utilizing both the HUD policy
guidance together with the broad VAWA III policy directives, domestic violence
service providers may want to advocate with their local PHAs for the adoption of
these preferences, as well as other protections. 107

272 Amy E. Schwartz and Sharon Stapel
Importantly, VAWA III provides that an individual’s status as a survivor of
domestic violence, dating violence, or stalking, is not an appropriate basis for
denial for admission or denial of housing assistance to an otherwise qualified
applicant into the public housing or the Section 8 programs. 108
Section 8 (The Housing Choice Voucher Program)
Tenant-Based Subsidies
Section 8 is the federal government’s largest program for aiding lowincome
families, the elderly and the disabled. Although there are actually many
separate subsidy programs within the federal Section 8 program, this article
will only address the main tenant-based voucher program, the Housing Choice
Voucher program. The Housing Choice Voucher program is the one that most
survivors of domestic violence advocates will be referring to when they say
“Section 8,” and it is by far the program which makes up the bulk of HUD’s
tenant-based subsidies. 109 Under the tenant-based Section 8 voucher program,
people use vouchers to help pay for their own housing in the private rental
market. Once the voucher holder finds a landlord willing to participate in the
program, that landlord will enter into a subsidy contract called a “Housing
Assistance Payments” contract. The housing subsidy is then paid directly to the
landlord by the PHA on the participant’s behalf. The participant will have to
pay the landlord the difference between the subsidy and the actual rent charged.
The size of the voucher will vary based upon the participant’s income, the
family size and composition, as well as the “payment standards” determined by
the local public housing agency. 110 The “payment standards” will be based on
the housing market in the community and will vary regionally. 111 For example,
in 2006, the fair market rent for a two bedroom is $1,133 in New York City
and $656 in Rochester. For other areas of the state, see the HUD Fair Markets
Rents for FY 2006 published at 70 Fed. Reg. 57654, or available online at:
http:// huduser.org (select “Data Sets” then “Fair Market Rents.”) A voucher
holder is free to choose any housing type (house, apartment, or townhouse).
However, for the housing to be approved, the landlord must consent to rent to
the tenant under the terms and conditions of the PHA contract and the housing
unit must be formally approved by the PHA to determine whether it meets the
housing quality standards. Because private landlords are not required to accept
Section 8/Housing Choice vouchers, as a practical matter, a voucher holder’s
options may still be severely limited.
Eligibility for the Section 8 program is determined by the local PHA based
upon the applicant’s total annual gross income and family size, as well as other

Public Assistance and Housing 273
federally-imposed eligibility requirements. Certain categories of non-citizens
with eligible immigration statuses may apply. However, income eligibility
levels will vary depending on the county or the city where the client chooses to
reside. 112 Generally, applicants will need to be below 50% of the area median
income, but, in some cases, they can have an income of up to 80% of the area
median. For example, in 2006 a family of three in New York City would
qualify for Section 8 with “30% of the median family income” if the total
household income is less than $19,150, as a “very low income family” if the
total household income is less than $31,900, and as a “low income family” if
the total household income is less than $51,050. In Rochester, a family of three
would qualify for Section 8 with “30% of the median family income” if the
total household income is less than $17,350, as a “very low income family” if
the total household income is less than $28,850, and as a “low income family”
if the total household income is less than $46,150. Practitioners should contact
the local PHA for a listing of the income limits for the area and family size.
Because this program is dependent upon federal funding, from time to time
Section 8 vouchers may be unavailable or severely limited. Applications for
Section 8 may be accepted during these time periods but processed when funding
is secured or applicants may be placed on extremely long waiting lists before
they can even be considered. 113 As a result, advocating for establishment of a
stated domestic violence preference in your community may enable these clients
to be given priority in lean times when vouchers actually become available.
Portability of Housing Choice Section 8 Vouchers
As vouchers are not attached to specific housing, the client may be able to
transport (also known as “port”) the voucher with her if she relocates, even on
an emergency basis. 114 This feature can be particularly useful for survivors who
must flee their home or their community but want to retain their crucial housing
subsidy. Under the VAWA III reforms, voucher holders who are survivors of
domestic violence, dating violence, and stalking may move to another
jurisdiction if they have complied with all other obligations and are relocating
because of imminent threats of further abuse if they remain in the unit. 115
Public Housing Programs
Throughout New York State there is also a large supply of housing owned
by public housing authorities. Also HUD-subsidized, these housing
developments are sometimes known as “projects.” Public housing projects may
vary from single-family homes to townhouses and large multi-family apartment

274 Amy E. Schwartz and Sharon Stapel
buildings. Housing is available to applicants who meet income and other
eligibility requirements (such as immigration status and criminal record status)
developed by both HUD and the local public housing authority. 116 Those who
apply for assistance at a housing program with a stated domestic violence
priority preference policy will likely be asked to document the abuse.
The public housing authority operates like a landlord and is responsible for
collecting rent, selecting tenants and managing the units. The amount of rent a
tenant pays will vary depending upon the size of the unit and the tenant’s
income. Some public housing authorities may also offer additional services such
as on-site employment training and children’s services.
New York City Housing Authority’s Public Housing Programs
NYCHA offers domestic violence survivors priority when applying for an
apartment in NYCHA housing or when requesting a transfer within the housing
authority. Priority status allows an application for NYCHA housing to be
processed more quickly than other applications, but approval can take several
months. Once approved, applicants will be placed on a waiting list until an
apartment becomes available. Applicants do not have to be in the shelter system
to qualify for the domestic violence priority. 117
In New York City, applicants may not move within specified zip code zones
(e.g., the zip code in which they lived when the violence occurred and
surrounding zip codes). 118 Staten Island has not been divided into zones, and
Staten Island residents will not be able to remain on Staten Island. Approval can
take several months.
Additional Requirements for New York City’s Public Housing Options
Every member of the family on the Section 8 or NYCHA application is
subject to a criminal background check, which NYCHA runs based on name,
date of birth and social security number. Criminal convictions could affect
eligibility. 119 Applicants who owe past rental arrears for a NYCHA, Section 8
apartment are not eligible to apply for these programs until the arrears have
been paid. Although some categories of immigrants are eligible to apply for
public housing and Section 8 assistance, in cases in which one family member is
ineligible, there is a detailed formula to determine the amount that individuals
would have to contribute towards rent.
Housing Stability Plus (New York City)
In New York City, Housing Stability Plus (HSP or “The Plus Program”) is a
permanent housing subsidy available to New York City residents who are

Public Assistance and Housing 275
leaving a homeless or domestic violence shelter for permanent housing. In New
York City, homeless shelter residents will now apply for HSP instead of
Section 8 or public housing. The family must have an open public assistance
case and at least one minor receiving benefits. HSP is a form of rental assistance
through the public assistance case. The Human Resources
Administration/Department of Social Service’s (HRA/DSS) Office of Domestic
Violence Emergency Intervention Services (ODVEIS), rather than the
Department of Homeless Services (DHS), will process applications for domestic
violence shelter residents with active public assistance cases. HSP is a timelimited
rental subsidy for families residing in shelters. Domestic violence
survivors are eligible for SHP after 42 days in shelter. HSP is intended to
streamline the shelter process for survivors. Survivors and their families should
transfer directly from an HRA shelter to Department of Homeless Services
(DHS) housing, bypassing DHS intake. HSP is available to families for a
maximum of five years and will decrease by 20% each year. At the end of the
fifth year, the subsidy will end, and the family will be expected to pay for
shelter costs.
Families in HRA/DSS domestic violence shelters can apply after 42 days in
shelter for HSP. The amount of the supplement is based on the number of family
members receiving public assistance and the number of bedrooms of the
apartment. For example, in 2006, a household of one would be eligible for a
$765 subsidy, a household of two would be eligible for a $820 subsidy and a
family of three or four would be eligible for a $925 subsidy.
Emergency Transfers in Public Housing
Rather than forfeit public housing for safety, the client may want to
consider seeking a transfer allowing her to move to a different unit or to another
housing development. While HUD has encouraged PHAs to develop special
transfer policies to assist domestic violence survivors who need to move within
the public housing system, many agencies have chosen not to formalize any
procedure. 120 VAWA III reforms do not specifically require the creation of
survivor-sensitive transfer policies. In order to determine the transfer policies,
advocates will need to examine the local admissions and operating plans. If
policies are not survivor-friendly, advocates may lobby their local PHAs to
adopt such policies. Regardless of local policy, PHAs have the discretion to
allow these transfers. If a client is having difficulty with a transfer, advocates
should send a letter explaining the client’s situation and requesting relief.

276 Amy E. Schwartz and Sharon Stapel
Evictions from Housing Choice Voucher Section 8
or Public Housing
In the past, domestic violence survivors nationwide have been evicted under
federal policy that allows, but does not require, PHAs and Section 8 landlords to
evict a tenant because of criminal activity by a family member or guest that
threatens the health, safety, or quiet enjoyment of other residents. 121 Domestic
violence survivors and their children lost housing as a result screaming for help
or calling the police or because of crimes of violence perpetrated upon them by
their abusers. Often PHAs and landlords would automatically try to evict all
tenants in the apartment following a domestic violence incident without much
inquiry into the nature and dynamics of the domestic violence issues. 122 In
response, VAWA III now states that an actual or threatened incident of domestic
violence, dating violence, or stalking does not qualify as a “serious or repeated
violation of the lease” or constitute “good cause for terminating the assistance,
tenancy, or occupancy rights of the victim.” 123 Additionally, criminal activity
directly relating to domestic violence, dating violence, or stalking does not
constitute grounds for termination of tenancy. 124 The new law also makes clear
that PHAs and Section 8 landlords may hold abusers accountable by terminating
only their voucher assistance or bifurcating the lease by removing the offender
while allowing the survivor (who is a lawful tenant or occupant) to remain in
the home. 125 However, when a landlord or PHA proves that allowing a survivor
to remain a tenant would pose an actual and imminent threat to other tenants, to
employees or those providing services at the property, the survivor may be
lawfully evicted. 126 Survivors may also be evicted for lease violation or criminal
activity unrelated to the abuse as long as the survivor is not being held to a
standard more stringent than other tenants. 127 Because these federal laws are so
new and do not yet have implementing regulations, resolving problems may
require active advocacy and education with the PHA and the landlord. 128
Providing Proof of Status as Survivor of Domestic Violence,
Stalking, or Dating Violence
Under VAWA III reforms, public housing or Section 8 applicants or tenants
requesting portability of a voucher or protesting an eviction or denial of housing
may be required to provide some evidence or certification that they are a victim
of violence. 129 In 2006’s PIH 2006-23 (discussed above) HUD states that it is
developing proposed regulations and forms regarding certification of domestic
violence to conform with VAWA III.

Public Assistance and Housing 277
Documentation of the abuse may include: certified HUD certification form;
federal, state, tribal or territorial or local police/court record; a statement from a
victim service provider, attorney, medical professional who provided assistance;
or the signed, attested statement from the survivor. 130 The documentation must
specifically name the offender. When the survivor provides this information, the
PHA or the Section 8 landlord must keep this information confidential, subject
to certain exceptions. 131 The survivor seeking admission based upon priority
preference also may be asked to supply corroborating information based upon
local policies and procedures.
Jiggetts/Shelter Supplements (New York City and Selected
Counties) 132
Under Jiggetts, a long pending lawsuit, 133 a public assistance recipient’s
shelter allowance may be increased if she has children in the household, she is
served with a petition for a non-payment proceeding, and her rent is within a
specified amount. Tenants can only make Jiggetts applications through specific
providers such as the Legal Aid Society, Legal Services and the Citizen’s
Advice Bureau. The tenant’s public assistance case must remain open and
unsanctioned. Once a tenant has an increased rental allowance under Jiggetts,
she may not move, with some exceptions, including safety issues relating to
domestic violence. To be eligible to move due to domestic violence (a “Jiggetts
move”), the tenant must document the domestic violence by an order of
protection, police and medical reports, a letter from the domestic violence
shelter, or letters from advocates, and s/he must find an apartment in the same
borough that is at or near the same rent as the current apartment. There are few,
if any, exceptions to the requirement of finding an apartment in the same
borough at the same price.
Like initial applications, Jiggetts move applications may only be made through
specific providers. An advocacy letter attesting to the necessity for a move from a
social services organization or the agency that prepared the Jiggetts move
application can make approval more likely. This letter should include information
about the domestic violence, how it affects housing and how a new, confidential
apartment would help prevent new incidents of domestic violence. An approval to
move can take several days to a week; in an emergency, the request can be
expedited. It can take anywhere from two to three weeks to a few months after
approval to get the checks. Vigorous advocacy can help expedite the decision.
Under a program that will eventually replace Jiggetts, local social services
districts may provide an additional shelter supplement to families with children

278 Amy E. Schwartz and Sharon Stapel
in areas where rents are high, public housing and other low cost housing is
unavailable, and evictions are frequent. To provide such a supplement the local
district must file a plan with the Office of Temporary and Disability Assistance,
which sets the amount of the supplement and the conditions of eligibility. 134
New York City and Orange, Suffolk, Nassau and Westchester counties have
adopted such plans, which can provide a family who is eligible for public
assistance with hundreds of additional dollars each month. 135 In New York City,
this program is called the Family Eviction Prevention Supplement (FEPS). The
family must have an open public assistance case. FEPS, like Jiggetts,
supplements the pubic assistance rental allowance. Unlike Housing Stability
Plus (discussed above), FEPS grants will not be reduced annually.
Like Jiggetts relief, FEPS is available if a family is facing an eviction
action filed in Housing Court. The FEPS application can only be made by the
Legal Aid Society, Legal Services offices, and approved community-based
organizations. Households that are currently receiving Jiggetts relief will
continue receiving Jiggetts for up to two years from Summer 2006; after that
time, the family will be transferred to FEPS if the family is still eligible for a
shelter supplement.
Jiggetts and FEPS differ in that FEPS levels are higher than Jiggetts levels.
Supplements are as follows:
SIZE OF PA HOUSEHOLD JIGGETTS LEVEL FEPS LEVEL
1 $450 $650
2 550 750
3 650 850
4 700 900
5 725 1000
6 750 1050
7 775 1100
Because FEPS is a new program, and because Jiggetts is a still open
lawsuit, advocates should consult with their local legal service providers and
review OTDA policy directives. 136

Conclusion
Public Assistance and Housing 279
The public assistance and subsidized housing systems may be your client’s
best hope for independence from an abuser, but navigating these systems can be
difficult. With persistence you, as an advocate, can make a difference.

280 Amy E. Schwartz and Sharon Stapel
Notes
We are indebted to Susan Bahn, Allison Baker, Jennifer Baum, Richard Blum,
Jane Sujen Bock, Lauren Donnelly, Judith Goldiner and Elizabeth Saylor of the
Legal Aid Society, as well as Susan Antos and Michael Hanley of the Empire
Justice Center, and Jill Stein of New Destiny Housing Corporation’s
HousingLink.
1. Up to 80% of women receiving temporary assistance (welfare) may be
survivors of, or attempting to escape, violent relationships. Desk Reference
for DV Screening under the Family Violence Option, Administrative
Directive from the Office of Temporary and Disability Assistance to Local
District Commissioners 03 ADM-2 (Feb. 24, 2003), citing a Center for
Impact Research study.
2. The 1996 Federal Personal Responsibility and Work Opportunity
Reconciliation Act (PRWORA) “reformed” welfare and created stricter
requirements for public assistance applicants and recipients focusing on an
ideology of “welfare to work.” On August 4, 1997, the New York State
legislature passed The Welfare Reform Act (WRA) of 1997. New York
State was affected not only by these stricter requirements but also by the
City’s “diversion” tactics, in which the goal was to slash the public
assistance roles. “Diversion” tactics have been prohibited by a New York
City court order issued in Reynolds v Giuliani, 35 F Supp 2d 331 (SDNY
1999). Funding for federal welfare programs was extended to September
30, 2010, through the Deficit Reduction Act of 2005.
3. For a relatively straightforward explanation of the rules, see Office of
Temporary and Disability Assistance, Temporary Assistance Source Book,
http://www.otda.state.ny.us/otda/ta/sourcebook/TASB_FEB_2005 (last
visited June 19,2006) and Community Service Society, Public Benefits
Resource Center Manual, http://pbrcmanual.cssny.org (Note: CSS now
charges a fee for online subscriptions to this manual; last visited June 19,
2006).
4. See Office of Temporary and Disability Assistance, Temporary Assistance,
http://www.otda.state.ny.us/otda/ta/default.htm (last visited June 19, 2006).
5. See generally 18 New York Code, Rules & Regulations (NYCRR) § 415.
6. Families who are over-income for public assistance cash or shelter
assistance benefits may still be eligible for Food Stamps or Medicaid,
which have higher income limits. These families should apply for the Food
Stamps and Medicaid programs directly.

Public Assistance and Housing 281
7. For domestic violence related public assistance law, see 45 CFR § 260.50,
et seq., 42 USC § 402, NY Social Services Law § 131-u, NY Social
Services Law § 349-a, 18 NYCRR §§ 347.5, 351.2 and 369.2.
8. A fair hearing can be requested in person, by mail, phone, fax or online.
There is a specific form, the Fair Hearing Request Form, to request the
fair hearing in writing, available at
http://www.otda.state.ny.us/otda%20internet%20search/oah/FHREQ.pdf
(last visited June 19, 2006).
Fair hearings can be requested in person at the local district offices for
welfare, Medicaid or Food Stamps issues. To make a request by mail, send
the Fair Hearing Request Form to the Office of Temporary and Disability
Assistance, Office of Administrative Hearings, Fair Hearing Request Unit,
PO Box 1930, Albany, New York, 12201-1930. To obtain proof of service,
individuals requesting the fair hearing by mail should send the paperwork
certified mail and return receipt requested. To make a request by fax, send
the form to (518) 473-6735. On the Internet, applicants/recipients may also
directly request a hearing from OTDA’s website,
http://www.otda.state.ny.us/otda%20internet%20search/oah/default.asp (last
visited June 19, 2006)
Regardless of the method, applicants/recipients should keep a copy of the fair
hearing request. For information on requesting fair hearings and strategies at
fair hearings, see The Legal Aid Society’s How to Win Your Fair Hearing,
http://www.legal-aid.org/Uploads/fh_en_web.pdf (last visited June 19, 2006).
9. The numbers represented in the chart represent New York City grants for
families with children, which are typically higher grant amounts than in
other counties or for families without children. Also, in New York City and
some other counties, the shelter allowance may be increased by the Family
Eviction Prevention Subsidy (FEPS) or Jiggetts-like relief.
10. For issues relevant to domestic violence, see Office of Temporary and
Disability Assistance Administrative Directive 03 ADM-2 (Feb. 24, 2003),
99 ADM-8 (Nov. 2, 1999) and 98 ADM-3 (March 13, 1998; Errata Sept. 4,
1998), Family Independence Administration (of the New York City Human
Resources Administration/Department of Social Services) Policy Directive
(PD) 01-75-OPE (Dec. 21, 2001), Informational Directive (INF) 06-INF-11
(March 22, 2006), and Policy Bulletin (PB) 06-56-OPE (Apr. 14, 2006).
11. For Decisions After Fair Hearing (DAFHs), visit the Fair Hearing Bank
operated by the Empire Justice Center and the Western New York Law
Center, http://onlineresources.wnylc.net/welcome.asp?index=Welcome (last
visited June 19, 2006). Informational Letters, Policy Directives and

282 Amy E. Schwartz and Sharon Stapel
Administrative Directives can be found online at the Office of Temporary
and Disability Assistance website,
http://www.otda.state.ny.us/directives/2006/default.htm (last visited June 19,
2006). These policy documents are archived by year from 1990-2006. These
documents (including many documents older than 1990) are also archived
on the Western New York Law Center’s Online Resource Center,
http://onlineresources.wnylc.net/pb/default.asp (last visited June 19, 2006).
12. For example, Rivera v Bane, Index No. 45305-92 (Judgment Dec. 22,
1995) (client is entitled to review documents before the hearing);
Rodriguez v Blum, 79 Civ 4518 (VLB) (Stipulation and Judgment Mar. 3,
1983) (agency must bring a recipient’s complete relevant case record to the
fair hearing).
13. There is informal relief (e.g. systems set up to resolve common issues
faced by public assistance applicants or recipients) available. We have
included a description of some of the informal relief available here. See
also Welfare Law Center, http://www.welfarelaw.org (last visited June 19,
2006). Adding persons to a public assistance budget or obtaining a special
needs allowance in a timely manner, Brown v Giuliani, 158 FRD 251, 269
(EDNY1994); Assessments and employability plans, and placements in
education and training programs; students attending community colleges,
work study or internships, Davila v Turner, Index No. 407163/96 (Sup Ct,
NY County, filed July 20, 1998); The right to keep aid continuing after a
timely fair hearing request, Morel v Giuliani, 927 F Supp 622 (SDNY
1995); “Diversion” tactics prohibited, Reynolds v Giuliani, 35 F Supp 2d
331 (SDNY1999); Timely restoration of benefits after a fair hearing, Piron
v Wing, Index No. 4011310/97 (Sup Ct, NY County, June 24, 1997);
Reductions or discontinuances of benefits due to failure of a recipient to
receive a notice from HRA/DSS by mail, Meachem, et al. v Wing et al.,
Civ Action No. 4630 AGS (SDNY filed June 1999) (Complaint); Other
types of informal relief may be available, and clients can call local legal
services providers (or, in New York City, visit Project FAIR at 14 Boerum
Place, Brooklyn, New York) to determine whether they can address their
problems through the informal systems.
14. These applications are available in English, Spanish, Russian, Arabic and
Chinese. See generally 03 INF-38 (Oct. 22, 2003) and 03 INF-37 (Oct. 22,
2003).

Public Assistance and Housing 283
15. To find the appropriate welfare center in New York City, see New York
City Human Resources Administration’s Family Independence
Administration,
http://www.nyc.gov/html/hra/html/family_independence/job_center_sites.shtml
(last visited June 19, 2006).
16. See Office of Temporary and Disability Assistance, Food Stamps,
http://www.otda.state.ny.us/otda/fs/fs_default.htm (last visited June 19,
2006). See also Community Service Society, Public Benefits Resource
Center Manual, http://pbrcmanual.cssny.org (Note: CSS charges a fee for
subscription to the online manual; last visited June 19, 2006) to determine
the level of benefits for which one is eligible, and Office of Temporary and
Disability Assistance, Food Stamps Source Book,
http://www.otda.state.ny.us/otda/fs/FSSB.pdf (last visited June 19, 2006)
for Food Stamps rules. For more information, see New York State
Department of Health, Child Health Plus,
http://www.health.state.ny.us/nysdoh/chplus/index.htm (last visited June
19, 2006).
17. Applicants who are single, without children, and currently sanctioned for
an employment program violation may not be eligible for emergency
assistance. See generally 02 ADM-2 (March 4, 2002). Emergency needs
grants can be limited if applicants/recipients make frequent applications,
03 INF-34 (Aug. 13, 2003).
18. If the client has an emergency (no place to live or no food, notice of
eviction, shut off notices for gas or electricity, etc.), she should say so
when she is requesting a fair hearing and ask for an emergency fair
hearing. An emergency fair hearing is held a few days after it is requested
and an expedited Decision After Fair Hearing will be issued. In New York
City, call (212) 417-3614 for an emergency fair hearing or go to the Fair
Hearing Office, 14 Boerum Place, Brooklyn to request an emergency fair
hearing.
19. 02 INF-36, #6 (November 5, 2002).
20. 18 NYCRR § 415.2.
21. 97 ADM-20 (Oct. 24, 1997).
22. 01 ADM-16 (Nov. 7, 2001), 03 INF-33 (July 30, 2003), 03 INF-10 (March
3, 2003).

284 Amy E. Schwartz and Sharon Stapel
23. 05 INF-02 (Jan. 12, 2005) [mandating distribution of standardized receipt
for client’s documents]; see also, 18 NYCRR 600.6(a) and 02 INF-33
(Nov. 1, 2002) [which encouraged, but did not mandate, receipts for
documents and has been updated by 05 INF-02].
24. 98 ADM-3 (March 13, 1998; Errata Sept. 4, 1998); Social Services Law
§ 349-a(1-3); 18 NYCRR § 351.2(3-4).
25. 18 NYCRR § 347.5; 18 NYCRR § 351.2; 18 NYCRR § 369.2.
26. 06 INF-11 (March 16, 2006). Notably, this policy recognizes domestic
violence in gay or lesbian relationships and notes that same sex-couples
should be screened for domestic violence and both individuals should be
screened separately.
27. See 03 ADM-2 for a copy of LDSS-4813 “Desk Reference for DV
Screening under the FVO.”
28. See 03 ADM-2 (Feb. 24, 2003) and 06-56-0PE (Apr. 14, 2006). On April
14, 2006, New York City Human Resources Administration replaced its
Domestic Violence Informational Handout with a Domestic Violence Palm
Card, and updated the universal screening form. 06-56-0PE (Apr. 14,
2006).
29. New York’s screening policies and procedures were specifically evaluated
by the United States Government Accountability Office (GAO) in a report
entitled, State Approaches to Screening for Domestic Violence Could
Benefit from HHS Guidance, GAO-05-701 (August 2005).
30. 18 NYCRR § 351.2(l)(4)(iv); But see PD 01-75-OPE (Dec. 21, 2001)
which states workers should “[e]ncourage the individual to speak to the
Domestic Violence Liaison.” [Emphasis added.]
31. 18 NYCRR § 351.2(l)(4)(iv).
32. However, when reviewing financial eligibility, local districts can consider
unavailable to survivors of domestic violence (and therefore, not counted
in determining eligibility) any income lost when fleeing an abusive
situation, any resources belonging to the batterer and any resources that
cannot be accessed without compromising the survivor’s safety, 02 INF-36
(Nov. 5, 2002); As well, lien requirements may be waived, Id. Further, a
person who is denied an FVO waiver of the requirement to sign a lien or
mortgage against property that he or she owns as a condition of eligibility
for public assistance (Social Services Law § 106) may refuse to sign the
lien and still receive a public assistance grant for the remaining members
of the household. Temporary Assistance Source Book, ch 13, Resources, at

Public Assistance and Housing 285
9 available at Office of Temporary and Disability Assistance,
http://www.otda.state.ny.us/otda/ta/sourcebook/TASB_FEB_2005.pdf (last
visited June 19, 2006).
33. Because the FVO applies only in cases involving Temporary Assistance
programs such as FA and SNA, DVLs cannot grant individuals with “Food
Stamps only” or “Medicaid only” cases domestic violence waivers from
those specific program requirements (such as child support cooperation or
work requirements). If family violence is an issue, those clients might
consider seeking “good cause” exceptions from those requirements. For a
discussion about “good cause” waivers, see section on “Child Support,
Spousal Support, Maintenance, and Equitable Distribution Issues,” and
“Child Care Subsidy Program” infra.
34. See 18 NYCRR § 351.2(l)(2)(iii), 98 ADM-3 (March 13, 1998; Errata Sept.
4, 1998) for the guidelines to the local districts for contracting out the DVL
services. Depending upon the particularities of the local district, some
domestic violence program-based DVLs conduct their client interviews and
assessments at locations outside of the DSS office, such as a shelter. Local
districts must be able to ensure that the client can get to the alternate location
and that her safety and confidentiality will be maintained. Additionally, O3
INF-29 (July 18, 2003), contains a county-by-county list of DVLs and their
contact information, including those sub-contracting agencies.
35. 18 NYCRR § 357(3)(I); see also 02 INF-36 (Nov. 5, 2002).
36. PD 01-75-OPE (Dec. 21, 2001); 18 NYCRR § 352.1, which addresses
service plans, was amended to include the purpose of the service plans as
“designed to lead to work, to the extent that the plan would not make it
more difficult for the survivor to escape domestic violence or unfairly
penalize those individuals who are or have been victimized by domestic
violence or who are at risk of further domestic violence.”
37. The applicant is only required to submit a “sworn statement” as proof of
domestic violence. Temporary or final order of protection, police and
hospital records, letter from domestic violence shelter and/or letter from
other advocates can be helpful but are not required.
38. Social Services Law § 349-a(4); 18 NYCRR § 351.2(l)(5).
39. 98 ADM-3 (March 13, 1998; Errata Sept. 4, 1998); 02 INF-36 (Nov. 5, 2002).
40. 99 ADM-8 (November 2, 1999).
41. For detailed rules, see 18 NYCRR § 351.2.

286 Amy E. Schwartz and Sharon Stapel
42. See generally 18 NYCRR § 351.2(l)(7); PD 01-75-OPE (Dec. 21, 2001);
Credibility does not have to be reassessed when assessing whether to
renew waiver; 02 INF-36 (Nov. 5, 2002).
43. Note that a DVL need not reassess credibility, only the continued need for
a waiver. See generally 18 NYCRR § 351.2(l)(7); PD 01-75-OPE (Dec. 21,
2001); 02 INF-36 (Nov. 5, 2002).
44. 18 NYCRR § 351.2(l)(7)(I); PD 01-75-OPE (Dec. 21, 2001).
45. 18 NYCRR § 369.4; 01 ADM-3 (March 28, 2001; Errata Apr. 20, 2001).
Note that the survivors may be exempt from the lifetime limit where they
are unable to work because of a verified physical or mental impairment to
the parent or child that is the result of domestic violence and is expected to
last three months or more.
46. Unless waived, applicants or recipients are required to assist public
assistance with establishing the paternity of a child’s other parent and his
location, as well as assisting with child support actions in Family Court.
47. Unless waived, applicants or recipients are required to participate in
employment activities, which can include training and education, but most
frequently consist of “Work Experience Program” (WEP) job assignments.
The City must conduct an assessment of each public assistance recipient
and develop an employability plan based on the assessment, which must
include education and training opportunities, if appropriate. Additionally,
students attending community colleges cannot be assigned to participate in
WEP. They can fulfill their work activity obligations through college
attendance and/or work study or internships, Davila v Turner, Index No.
407163/96 (Sup Ct, NY County, filed July 20, 1998).
48. 02 INF-36 (Nov. 5, 2002); PD 01-75-OPE (Dec. 21, 2001).
49. Id.
50. PD 01-75-OPE (Dec. 21, 2001).
51. Id.
52. Social Services Law § 349-a(7); 18 NYCRR § 357.3(I); 98 ADM-3 (March
13, 1998; Errata Sept. 4, 1998).
53. Id.
54. 98 ADM-3 (March 13, 1998; Errata Sept. 4, 1998).
55. Id.
56. Id.

Public Assistance and Housing 287
57. Id. See also 02 INF-36 (Nov. 5, 2002) where OTDA policy states the
administrative intent of this regulation is for the sharing of limited
information.
58. Id.
59. Id.
60. Id.
61. Id.
62. Id.
63. Please see the chapter addressing battered immigrants for a more
comprehensive analysis of this complex issue. Additionally, OTDA
recently released a new Informational Directive, 06INF-14 (Mar. 22, 2006;
Errata May 5, 2006), which comprehensively outlines OTDA’s policies on
battered immigrants’ eligibility for a myriad of public assistance benefits.
64. For a general description of non-citizens’ access to public benefits see
Empire Justice Center, Restrictions on Eligibility of Non-Citizens in NYS
for Certain Public Benefits, revised December 2005,
http://www.empirejustice.org/IssueArea/ImmigRights/AccessToPubBen/
2005/EmpireJustceFordhamChart2005.pdf (last visited June 19, 2006).
See also The Legal Aid Society, An Advocate’s Guide to Government
Benefits for Immigrants, Jennifer Baum,
http://www.legal-aid.org/Uploads/Immigrants.pdf (last visited June 19, 2006).
65. See 03 INF-19 (Apr. 28, 2003).
66. M.K.B. v Eggleston, a pending lawsuit filed in the Southern District of
New York in 2005, has challenged OTDA’s practice of systematically
denying immigrants public benefits. As of June 2006, M.K.B., through an
interim order, has an informal relief form that can be used if battered
immigrants, PRUCOL immigrants, and certain green card holders are
denied public assistance, Medicaid, or food stamps by a NYC Job Center
due to immigration status. Among those immigrants commonly denied are:
(1) battered immigrants who have filed Violence Against Women Act
(VAWA) self-petitions; (2) battered immigrants married to green card
holders or citizens whose husbands filed papers on their behalf (ex. I-130
family-based petition, K or V Visa); (3) those granted deferred action
(often due to a U Visa petition based on cooperation with the prosecution
in pressing charges against an abuser); and (4) those immigrants who are
PRUCOL due to a valid pending application with federal immigration
authorities (ex. pending green card application, approved I-130 petition, K,

288 Amy E. Schwartz and Sharon Stapel
V, or S Visa). Questions on M.K.B. and all other relief associated with the
lawsuit, which was still pending at the time of publication, should be
addressed to Sarah Borsody, New York Legal Assistance Group, Fax:
(212) 750-0820, Telephone: (212) 613-5090, E-mail: sborsody@nylag.org.
67. 18 NYCRR § 415.2(a).
68. 18 NYCRR § 415.2(b).
69. See generally 18 NYCRR § 415.4.
70. For an in-depth treatment of the issues associated with county-specific child
care subsidy administration, see Empire Justice Center,
http://www.empirejustice.org/MasterFile/IssueAreas/ChildCare/Overview.htm
(last visited June 19, 2006).
71. 18 NYCRR § 415.3; 18 NYCRR § 415.4; 18 NYCRR § 415.8.
72. 18 NYCRR § 415.8(a).
73. See 05-OCFS-ADM0-03 (May 20, 2005). The recent changes to the child
care subsidy program are extensive and advocates should familiarize
themselves with this recent policy directive. Provisions relating to good
cause for domestic violence are outlined at 51-56.
74. 18 NYCRR § 415.11.
75 “Good cause” exists where the pursuit of support would adversely affect the
health, safety or welfare of the child or of other persons in the household,
such as the child’s parent. This is a ‘best interests” determination. See
generally 18 NYCRR § 369.2 and 05-OCFS-ADM-03, at 52-53.
76. 05-OCFS-ADM-03, at 52.
77. Id at 54.
78. Id at 53.
79. Id.
80. Social Services Law § 348; This applies to Medicaid only cases; see 99
ADM-5 (July 1, 1999).
81. 18 NYCRR § 347.5; 03 ADM-5 (June 19, 2003); This Administrative
Directive specifically addresses the issue of child support and the FVO and
contains a thorough discussion of the required actions for DVLs, TA
workers, as well as CSE workers when the TA case is either open or closed.
82. Id.
83. See generally 18 NYCRR § 369.2.

84. Id.
85. Id.
Public Assistance and Housing 289
86. The Empire Justice Center, together with the Western New York Law
Center, maintains a database of fair hearing decisions, including those
involving good cause and child support cooperation. New decisions are
added regularly. See the Fair Hearing Bank,
http://onlineresources.wnylc.net/welcome.asp?index=Welcome (last visited
June 19, 2006).
87. See Decision After Fair Hearing Number 0670706K In the Matter of B.S.,
http://onlineresources.wnylc.net/welcome.asp?index=Welcome (last visited
June 19, 2006).
88. Because many domestic violence shelters are congregate living facilities
without separated bathrooms and living spaces, some programs are not
architecturally structured to house individuals of both sexes and genders in
the same facility. Therefore, some will have to turn away males or
residents with older male children for residential services. However, some
programs are able to house these individuals together or provide alternative
housing, such as a safe home or safe dwelling. You will want to contact the
domestic violence program in your community to determine their specific
services. As of 2004, New York City’s Safe Horizon shelter has space
available to male survivors who require residential services when they flee
their abusive same-sex partners. Transgender women may also have access
to DV shelters; some DV shelters in New York City have instituted policies
that not only accept transwomen into shelter but also address staff and
resident training and education about transgender survivors. Since different
shelters have different policies, advocates should contact individual
shelters directly when finding shelter for transgender clients. It should also
be noted that the Department of Homeless Services (DHS) in New York
City has instituted a formal policy regarding gender identity and placement
in homeless shelters. DHS’s policy requires shelter workers to place clients
in gender-appropriate shelters in accordance with the client’s gender
identity (e.g., how the client defines his or her gender), regardless of how
the client’s gender may be interpreted by shelter staff. DHS Procedure 06-
1-31 (Jan. 1, 2006), http://www.srlp.org/documents/DHS_trans_policy.pdf
(last visited June 16, 2006).
89. Note that it is a violation of the Americans with Disabilities Act for a
domestic violence program to refuse to provide services or
accommodations to survivors or their children if they have disabilities. As
places of public accommodation under Title III, residential domestic

290 Amy E. Schwartz and Sharon Stapel
violence services are required to be compliant with the ADA. However, if
the potential resident requires intensive services, such as a personal care
assistant or has heightened medical needs, a domestic violence program
may not be able to provide for those more intensive needs and may have to
refer the resident for alternative supported housing. These individuals,
however, should be provided non-residential services, as requested. In 2006
in New York City, Barrier Free Living domestic violence program opened
Freedom House, an accessible domestic violence shelter specifically
intended to house domestic violence survivors with disabilities. This
shelter is the first of its kind in the US.
90. See generally Social Services Law § 131-u; 94 ADM-11 (June 22, 1994);
New York State Shelter regulations explicitly state that a person cannot be
excluded because of gender; instead, the shelters must accept anyone who
is a survivor if the shelters can provide separate living spaces. 02 INF-27
(Sept. 30, 2002).
91. Social Services Law § 131-u(2).
92. 18 NYCRR § 408.5.
93. Residents may not be eligible for reimbursement for their stays if they are
on durational sanctions, over-income, under sixteen, do not have qualifying
immigration status, or are not abused by a current or former intimate
partner.
94. See also 02 INF-27 (Sept. 30, 2002).
95. The first $90 of each month’s earned income must be disregarded, as must
a certain percentage (which changes each year, but is 43% in 2006) of the
remaining earned income. 18 NYCRR § 352.19.
96. 99 INF-10 (July 1, 1999).
97. In New York City, there are two parallel shelter systems. The larger
system, consisting of transitional shelters that include “overnight” beds,
conditional placements in hotels/motels, scattered site units and “Tier II”
shelters, serves over 9,000 homeless families at any given time and is
administered by the Department of Homeless Services (DHS). Families
with children under 21 years old or women who are pregnant and applying
for shelter must go to the Prevention Assistance and Temporary Housing
(PATH) Office in the Bronx at 346 Powers Avenue Bronx, NY 10454. The
Path Office is open daily, 9:00 a.m.-5:00 p.m., including holidays. Adult
families with no children under 21 must go to the Adult Family Intake
Center (AFIC), located at 29th Street and 1st Avenue, Manhattan, NY

Public Assistance and Housing 291
10016. AFIC is open 24 hours, seven days a week. Single survivors
without children must go to a DHS intake Center, located throughout New
York City. See,
http://www.ny.gov/html/dhs/html/homeless/homelss_now/shtml (last
visited June 28, 2006). The Emergency Assistance Unit (EAU) was closed
on June 30, 2006.
The smaller system of shelters, specifically for survivors of domestic
violence leaving a domestic violence shelter, is administered by the New
York City Human Resources Administration/Department of Social Services
(HRA/DSS). There are approximately 155 domestic violence specific Tier
II units, administered by DHS and HRA/DSS. Unlike non-domestic
violence Tier II shelters, the domestic violence shelters offer services
specific to survivors of domestic violence and are in confidential and
secure locations. Domestic violence shelters can house up to approximately
650 women and 1300 children at one time. Once domestic violence shelter
stay time has expired, residents are sent to the HRA No Violence Again
(NOVA) office at PATH for determination regarding their Tier II shelter
eligibility. Families on average stay in the DHS shelter system for eleven
months until they are relocated to permanent housing. Outside of New
York City, to obtain space in a domestic violence shelter, survivors can call
the local domestic violence program directly or utilize a centralized
number for referral. The New York Coalition Against Domestic Violence
maintains several 24-hour, toll-free Statewide Domestic Violence Hotlines
which are available at (800) 942-6906 (English), (800) 818-0656 (English
TTY), (800) 942-6908 (Spanish), and (800) 780-7660 (Spanish TTY). In
New York City, survivors must call the City’s domestic violence hotline at
(800) 621-HOPE.
98. Social Services Law § 459-g; But see People v Ramsey, 174 Misc 2d 304
(Sup Ct, NY County, 1997).
99. 94 ADM-11 (June 22, 1994). Note that domestic violence residential
programs may contract with the local social services district for shorter
periods of stay. Therefore while a resident’s stay may legally be up to 135
days, actual policies can vary by community.
100. Id.
101. 18 NYCRR § 352.7.

292 Amy E. Schwartz and Sharon Stapel
102. See Department of Housing and Urban Development Housing Choice
Voucher Guidebook, Publication No. 7420.10G, ch 4 (Apr. 2001);
Department of Housing and Urban Development Public Occupancy
Guidebook, Part 7, ch 19, at 216-220 (June 2003); 24 CFR § 960.206(b)(4).
103. 42 USC § 1437c-1(d)(13).
104. 42 USC § 1437c-1(a)(2); 42 USC § 12705(b)(1).
105. 42 USC §§ 1437c-1(a)(2). PHA plans require PHAs to include a
description of activities, services, or programs provided or offered directly
by the housing agency or in partnership with other providers to adult or
child victims of domestic violence, stalking, sexual assault, or dating
violence. 42 USC §§ 1437c-1(13).
106. See Department of Housing and Urban Development Housing Choice
Voucher Guidebook, Publication No. 7420.10G, ch 4 (Apr. 2001);
Department of Housing and Urban Development Public Occupancy
Guidebook, Part 7, ch 19, at 216-220 (June 2003); 24 CFR
§ 960.206(b)(4).
107. As a method to encourage their adoption, VAWA III authorized a new grant
program requiring participating PHAs and assisted housing providers to
adopt such preference.
108. 42 USC §§ 1437d(c)(3); 1437f(c)(9)(A); 1437f(d)(1)(A); 1437f(o)(B).
Note the new federal law defines “domestic violence” [42 USC
§§ 1437f(f)(8); 1437d(u)(3)(A); 13925(a)(6)], “dating violence” [42 USC
§§ 1437f(f)(9); 1437d(u)(3)(B); 13925(a)(8)], and “stalking” [42 USC
§§ 1437f(f)(10); 1437d(u)(3)(C)]. Note: In 2005, Westchester County
passed a local law prohibiting discrimination against domestic violence
victims in both private and public housing. Laws of Westchester County
§ 700.02. Also, as per a 1985 NYS Attorney General’s Opinion, Formal
Opinion, No. 85-F15, November 12, 1985, 1985 N.Y. Op. Atty. Gen. 45,
1985 WL194069 (N.Y.A.G.), it is unlawful gender discrimination for a
landlord to have a policy that denies housing to domestic violence
survivors who have no intention of co-habiting with their abusers. This
opinion was adopted in an unreported judicial opinion, Cox v Related
Companies, available from the Empire Justice Center.
109. The regulations governing the programs are found at 24 CFR Part 982.
The HUD website is also a good source of general information about the
various programs. Housing and Urban Development, Housing Choice
Vouchers, http://www.hud.gov/offices/pih/programs/hcv/forms/forms.cfm
(last visited June 19, 2006). However, practitioners must contact the local

Public Assistance and Housing 293
PHA to determine a community’s specific policies and procedures. Local
PHA plans are available at The Department of Urban Development, Public
Housing Plans, http://www.hud.gov/offices/pih/pha/approved/index.cfm,
(last visited June 19, 2006). See also Probono.net, Housing,
http://www.probono.net/ny/housing/index.cfm (last visited June 19, 2006).
110. In New York City, under the NYCHA Section 8 Housing Choice Voucher
program, a family’s public assistance shelter allowance cannot exceed 30%
of the standard of need for the family size. This is a reduction of shelter
allowances for many public assistance recipients. For example, a family of
three will receive a maximum shelter allowance (which supplements the
Section 8 payment) of $207; for a family of four, the allowance is $248.
The shelter allowance can never exceed $421 for a family without children
or $546 for a family with children, regardless of how many family
members are in the household. However, families receiving Section 8
through the Housing Preservation Department (HPD) or the Division of
Housing and Community Renewal (DHCR) will not be affected by the
30% rule. PD 05-10-SYS (Mar. 23, 2005). There are several other PHAs in
New York State that are subject to a similar restriction on the welfare
shelter allowance if a recipient participates in their Section 8 program. See
18 NYCRR § 352.3(d)(2)(ii)(b) and (c).
111. “Payment standards” are based on area “Fair Market Rents” published
annually by HUD and must be between 90% and 110% of fair market
rents. See 24 CFR § 982. 503. Fair Market Rents for each county in New
York are available at: http://www.huduser.org/datasets/fmr.html. (Under
“Final Data” click on “Schedule B – FMR tables.” New York State
counties are listed at 34-35. (last visited June 19, 2006).
112. Income eligibility levels are based on area median incomes. See The
Department of Housing and Urban Development, Eligibility Levels,
http://www.huduser.org/datasets/fmr.html (last visited June 2006).
113. For more information, and updated information about Regular Section 8
availability in New York City, see New Destiny Housing Corporation’s
HousingLink website,
http://www.newdestinyhousing.org/programs_HousingLink.shtml (last
visited June 19, 2006).
114. 24 CFR § 982.355.
115. 42 USC §§ 1437f(r)(5). Under VAWA III, PHAs and landlords are also
required to keep information related to victim status confidential.

294 Amy E. Schwartz and Sharon Stapel
116. Local PHAs should be contacted to determine specific eligibility
requirements.
117. To demonstrate evidence of abuse, an applicant will need to present:
A. A current order of protection (with a provision excluding the batterer
from the home, if the batterer has ever lived with the applicant) or, in the
alternative, a letter from the Court Dispute Referral Center explaining why
the applicant does not have an order of protection; AND
B. Two police reports regarding incidents that occurred within the last
twelve months, OR one incident report regarding an incident other than
that alleged in the order of protection petition. NYCHA requires proof of
two separate incidents of violence, unless the initial incident resulted in
serious injury or a charge of a felony offense; AND
C. One of the following attesting to her status as a survivor of domestic
violence:
1. Letter from Safe Horizon; OR
2. Letter from a social services agency, medical center or court; OR
3. Letter from a public/private shelter counseling facility, indicating the
name of the survivor, the name of the batterer and an explicit description of
where and when the abuse occurred.
118. This rule used to be a “borough of exclusion” rule, where Section 8
applicants were excluded from finding a new apartment in the borough in
which the violence occurred. NYCHA, which runs the Section 8 program
in New York City, has changed this policy to a zip code exclusion to allow
survivors more housing choices.
119. For a list of criminal convictions that may affect Section 8 eligibility in
New York City, see New Destiny Housing Corporation, Criminal
Convictions, http://www.newdestinyhousing.org/convictions.htm (last
visited June 30, 3006).
120. New York City Housing Authority changed its emergency transfer policy in
April 2006. NYCHA established three categories of documents, and to
qualify for a transfer, a client must have one document from each category.
Category A includes: a current order of protection, a DIR within six
months of the emergency transfer request, a hospital In-Patient Admission
Letter resulting from an assault, a Court Dispute Referral Center Letter, or
a letter from the NYCPD or a Parole Officer if the batterer is incarcerated.
Category B includes: an additional DIR (between the same parties but as a

Public Assistance and Housing 295
result of an incident that was separate from that mentioned in the order of
protection), an order of protection (current or expired) for an incident
occurring within twelve months of the transfer request, or a hospital
admission letter or medical records/discharge papers documenting a
domestic violence incident (other than the same incident documented by
papers in Category A). Category C includes: an advocacy letter from Safe
Horizon, Family Justice Center, other “Certified Social Service Providers,”
the Administration of Children’s Services, a mental health provider, the
District Attorney’s office (other than for the same incident documented by
papers in Category A), or from the Human Resources Administration. The
letters from Category C must be dated within 60 days of the transfer
request. If the case involves a “one-time serious felony” then documents
from only two categories (A & C) are required.
121. Department of Housing and Urban Development Public Occupancy
Guidebook, Part 7, ch 19, at 216-220 (June 2003). However, by letter dated
April 16, 2000, HUD Secretary encouraged PHAs to be “guided by
compassion and common sense” in addressing crime and violence by
household members and urged them to consider the situation of innocent
family members in making its determinations.
122. See, for example, United States ex rel. Alvera v The C.B.M.Group, Inc., No.
01-857-PA (D Or Filed June 8, 2001) [Battered woman, together with the US
Attorney, sued landlord for gender discrimination under the federal Fair
Housing Act for attempting to evict her because she was a survivor of
domestic violence]. The complaint is located at the Legal Momentum website,
http://www.legalmomentum.org/issues/vio/Alvera%20Complaint.pdf (last
visited June 19, 2006). The final decree is located at the Legal Momentum
website, http://www.legalmomentum.org/issues/vio/alvera_consentdecree.pdf
(last visited June 19, 2006).
123. 42 USC §§ 1437d(1)(5); 1437(f)(c)(9); 1437(f)(d)(1)(B); 1437(f)(o)(7)(C);
1437(f)(o)(20)(A).
124. 42 USC §§ 1437d(1)(6); 1437(f)(c)(9)(C); 1437(f)(d)(1)(C);
1437(f)(o)(7)(D); 1437(f)(o)(20)(B).
125. 42 USC §§ 1437d(1)(6)(B); 1437(f)(o)(7)(D)(ii).
126. 42 USC §§ 1437d(1)(6)(E); 1437(f)(o)(7)(D)(v); 1437(f)(o)(20)(D)(iv).
127. 42 USC §§ 1437d(1)(6)(D); 1437(f)(o)(7)(D)(iv); 1437(f)(o)(20)(D)(iii).

296 Amy E. Schwartz and Sharon Stapel
128. Note: It may also be unlawful sex discrimination under the federal Fair
Housing Act to engage in evictions of domestic violence survivors as most
survivors, statistically, are women and such policies may have a disparate
impact upon females. See Bouley v Young Sabourin, 2005 WL 950632
(D Vt 2005). In 2005, Westchester County passed a local law prohibiting
discrimination against domestic violence victims in both private and public
housing. Laws of Westchester County § 700.02.
129. 42 USC §§ 1437d(u)(1)(A),(C); 42 USC §§ 1437f(ee)(1)(A),(C).
130. Id. Note that the survivor has at least fourteen business days to provide this
documentation.
131. See 42 USC §§ 1437d(u)(2)(A); 42 USC §§ 1437f(ee)(2)(A).
132. Jiggetts v Grinker, 75 NY2d 411 (1990). There are also “Jiggetts-like”
lawsuits currently pending in Westchester, Nassau, and Suffolk counties.
133. Many advocates familiar with Jiggetts relief, which has been in effect for
over a decade, assume this is a permanent housing option. Within the next
two years, Jiggetts will be replaced by the Family Eviction Prevention
Supplement (FEPS).
134. 18 NYCRR § 352.3(a)(3); 03 ADM-7, at 9.
135. The details of each of these enacted plans are available on line at the
Empire Justice Center’s website,
http://www.empirejustice.org/MasterFile/IssueAreas/PublicBenefits/
CashAssistance/ShelterSupplements.htm (last visited June 19, 2006). Each
county has a different name for its supplement plan programs.
136. See Office of Temporary and Disability Assistance Policy Directive
05-21-ELI (May 27, 2005).

Identifying Domestic Violence
Despite ongoing progress in addressing domestic violence issues, an
American Bar Association survey concluded that “most members of the private
bar do not identify those among its clients who are victims of abuse” and that
the judiciary is “largely uninformed about domestic violence. . . .”1 Given these
constraints, any consideration about how to implement tort remedies for battered
women2 must begin with a willingness to undertake this particular kind of
work, which is not always valued or encouraged by the legal community. The
practitioner should be aware that “. . . the atmosphere in family court and within
the family bar can still be hostile to claims of violence when it means risking
the ire of some of their colleagues, perhaps facing hostility from the
bench. . . .”3 Facing these challenges is both daunting and gratifying. It begins,
perhaps not obviously, with an ability to identify those who need your help.
Identifying the Plaintiff
18
Domestic Violence and Tort Remedies
by Betty Levinson
Do not assume that a woman who has been abused by an intimate partner
will readily reveal her history. Many abuse victims experience feelings of shame
and personal responsibility for their injuries. Many women justifiably fear
retribution if they take action against their abusers. Many battered women are
apprehensive about seeking relief in court because they are aware of its
limitations in recognizing and compensating psychological injury, which is often
the most long-lasting effect of physical abuse. Thus, a client’s ability to tolerate
reasonably anticipated hostility from adverse counsel, judges, and juries may be
a decisive factor in deciding whether to sue for damages arising from domestic
violence. The initial challenge is to make your client feel safe enough to trust

298 Betty Levinson
you with the facts concerning her abuse. In some instances, she may be seeking
legal help for a matter that does not immediately announce itself as domestic
violence, such as a divorce, a marital property settlement, a custody matter, or a
conflict in a business relationship. Whether or not a tort claim is on the
articulated agenda, it is wise to cast a wide net in determining what causes of
action may be viable for the client.
In interviewing the client, it is best to avoid asking conclusory questions
such as, “Are you a battered woman?” or “Has your husband/boyfriend been
physically abusive to you?” Be aware that the client may have become so inured
to abusive physical and verbal treatment that she does not experience herself as
having been victimized. If her experience does not mirror her notion of “a
battered woman,” i.e., someone with visible facial bruises or broken bones, her
answer will likely be negative. 4 In raising the subject of domestic violence, the
best approach is to ask open-ended questions, such as, “Does your partner touch
you with his hands during arguments?” “Where does he touch you?” “Does he
frighten you?” “Does he hurt you?” Avoid conclusory questions such as, “Did
he rape you?” Blame-seeking questions such as “Why did you stay?” are also
counterproductive. In general, be prepared to make inquiries that allow the
client to express a full range of facts and feelings about her experiences.
Nonjudgmental listening is a learned skill that takes practice. 5
Identifying the Tort
Common Law Torts
The injuries caused by domestic violence are both physical and psychological.
Among the common law torts arising from abusive relationships are assault,
battery, the negligent or intentional infliction of venereal disease, unlawful
imprisonment, and the intentional infliction of emotional distress. 6 Victims of
domestic violence have had difficulty bringing suits for the intentional infliction
of emotional distress in New York courts. Although the common law prohibition
against interspousal torts has been removed by statute, 7 married or divorcing
plaintiffs are effectively barred from suing for the intentional infliction of
emotional distress by the Court of Appeals ruling in Weicker v Weicker. 8 In
Weicker the Court found that a claim for the intentional infliction of emotional
distress was subsumed within a cause of action for divorce on the grounds of cruel
and inhuman treatment. When unmarried partners have sued, the results have been
mixed. A divided Third Department allowed a suit for the intentional infliction of
emotional distress by an unmarried domestic partner, 9 but a contrary result was

Domestic Violence and Tort Remedies 299
reached in a Second Department case. 10 Married as well as unmarried victims of
abuse in New York have been able to bring tort actions other than suits for the
intentional infliction of emotional distress. For example, the negligent infliction of
a venereal disease by a spouse has been recognized as an actionable tort, 11 and a
cause of action was sustained in a case brought by a woman against her exhusband
who made harassing phone calls, came to her home uninvited, and tried
to force or pay her to have sex with him. 12
Statutory Torts
In New York City battered women have the benefit of a law creating a
cause of action for gender-motivated violence. When the federal Violence
Against Women Act’s private right of action provisions were declared
unconstitutional, 13 New York City passed legislation permitting victims of
violent crimes rooted in gender to sue for damages. 14 This law has been used
to sustain a cause of action in at least one New York case. 15
Valuing the Tort
Damages arising from a tort inflicted by a domestic partner are essentially
the same as any other damages: emotional and physical pain and suffering; loss
of earnings; and the cost of medical, psychological and other services required
for treatment of the injury. Ballpark dollar values for physical injury can be
ascertained by reading the cases and from reviewing jury verdict reporters such
as Jury Verdicts Weekly.
In maximizing recovery for a battered woman, the effective trial attorney
will succeed in persuading the trial judge or jury that a premium in damages is
appropriate because the injury was inflicted by a domestic partner, the person
who was supposed to love, not hurt, his partner. This is also the basis upon
which punitive damages should be sought. The monetary value of psychological
injuries is more difficult to establish because it is based upon a subjective
description of emotional pain and suffering. However, many survivors of
domestic violence report that emotional scars persist long after physical injuries
have healed. Having an expert who understands the psychological dynamics of
battering, including the complex nature of a battered woman’s attachment to her
abuser, as well as the literature pertaining to the subject, is critical. Expert
testimony should not only clarify and describe the emotional sequelae, which
are typical for victims of domestic violence, but should also address the

300 Betty Levinson
potentially thorny problems of comparative negligence and “assuming the risk.”
If the plaintiff already has a treating mental health provider, it is important to
ascertain whether that individual will be an effective witness. Many mental
health providers, particularly older practitioners steeped in the lore of traditional
psychoanalytical theory, maintain outdated victim-blaming views about
domestic violence. If this is the case, a change in therapist may be necessary, as
well as the hiring of a forensic expert.
Statutes of Limitations
The short statute of limitations for intentional torts, including assault, poses
substantial and often insurmountable problems for battered women. Under the
CPLR, an action for an intentional tort must be brought within one year of the
injury. 16 Often, by the time a battered woman leaves her abuser, she has suffered
years of abuse and the statute of limitations for many of her injuries has already
passed. Even when she does manage to free herself from her abuser within the
statute of limitations, she is likely to need time to build a stable life and to
overcome the effects of trauma before she can think about starting a lawsuit.
Some battered women may be able to use various tolling provisions to
avoid the harsh effects of short statute of limitations. If a criminal action has
been brought against an abuser for the actions that gave rise to the tort, the
statute of limitations is tolled and the victim has one year from the time the
criminal case is concluded to file her tort claim. 17 The statute of limitations is
also tolled for insanity18 which the Court of Appeals has defined broadly as “an
overall inability to function in society” 19 and has said may include a “temporary
mental affliction” arising from the injuries that give rise to the lawsuit. 20 In
Nussbaum v Steinberg, a brutally battered woman successfully argued that
injuries inflicted by her abuser rendered her sufficiently incapacitated to toll the
statute of limitation under the insanity exceptions for intentional torts. 21
A battered woman might also argue that the violence to which she was
subjected was a continuing course of conduct that allows her to sue for an
extended history of abuse as long as the last incident is within the statute of
limitations. Domestic Violence and Tort Remedies 271. Courts in other states
have found that domestic violence is a continuing course of conduct and
allowed suits that would otherwise have been barred. 22 New York courts,
however, have yet to adopt this theory in domestic violence cases, and one trial
court explicitly rejected it on the facts before it. 23

Domestic Violence and Tort Remedies 301
Torts Claims and Matrimonial Actions: Chen v. Fisher 24
In late 2005, the Court of Appeals held that a wife’s personal injury action
against her husband, commenced while their divorce action was pending, should
not have been dismissed by the Appellate Division, Second Department
pursuant to the doctrine of res judicata. Judge Carmen Ciparick, writing for a
unanimous court, marshaled the reasons why mandatory joinder of assault and
matrimonial causes of action, the procedure endorsed by the court below, should
not be required. 25 The policy reasons supporting this decision are sound: tort
claims are generally tried by juries, whereas divorce claims are tried by judges;
tort attorneys are compensated with contingency fees, while matrimonial
counsel are prohibited from engaging in contingency fee agreements; tort claims
constitute separate property and are not subject to equitable distribution directed
by a trial court; the need to expeditiously try matrimonial matters is absent in
tort actions. All of these differences, the court concluded, fail to create a
“convenient trial unit” and should permit the separate prosecution of the
disparate yet related claims.
Chen has properly removed the impediments created by the Second
Department, recognizing that trial courts, burdened by heavy matrimonial
dockets, exert substantial pressure on litigants to stipulate to grounds in divorce
actions. As a practical matter, however, the matrimonial practitioner generally
insists upon an exchange of general releases when drafting a divorce settlement
agreement. Thus, the attorney wishing to preserve her client’s right to proceed
with both varieties of claim, must take care not to miss the general release
provisions in the boilerplate language of settlement documents. If the adverse
party refuses to enter an agreement without an exchange of releases, the injured
spouse will be confronted with the pragmatically difficult decision of whether to
seek peace on both the matrimonial and tort fronts, or on neither.
Practice Points Choice of Forum
State law as interpreted by state courts can be quite harsh and unavailing
to torts victims when passing judgment upon the threshold question of what
constitutes conduct sufficiently extreme and outrageous to sustain an
intentional infliction of emotional distress cause of action. Interestingly, two
federal judges, both women, have exercised more liberal views about what
constitutes such atrocious behavior in two non-domestic violence cases

302 Betty Levinson
alleging intentional inflictions of emotional distress. 26 Thus, if diversity or
other federal jurisdiction is available, the possibility of proceeding in a federal
forum ought to be considered.
Criminal Proceedings
A conviction in a criminal proceeding will support a motion for summary
judgment in a civil damage action, leaving only the issue of damages to be tried.
However, if the victim pursues a criminal action against her abuser, she may find
herself in the awkward position of being counseled by the District Attorney’s
office to refrain from bringing a civil action in order to preclude crossexamination
from the defendant’s attorney about anticipated financial gain. 27
Disclosure
Anything a plaintiff writes about her experiences with her abuser may
constitute discoverable material. Thus, if a client wishes to pursue a suit, she
must be prepared to surrender to adverse counsel any diary she may be keeping
that records the events in question.
Expert Testimony
The testimony of a mental health expert is essential to proving damages.
Consider carefully the option of retaining a forensic psychiatrist to complement
the testimony of the treating psychotherapist, who may be reluctant to testify.
Medical Records
Battered women often provide doctors with “cover stories” about the source
of their injuries. Medical records should be obtained at the earliest opportunity
to determine their contents. Be aware of some hospitals’ policy to “flag” patient
charts that have been requested by lawyers. If possible, make immediate contact
with supervisory personnel having custody of the records, in order to avoid
delays in processing.
Theories of Tort Recovery Recognized in Other Jurisdictions
New York is not a jurisdiction particularly hospitable to the expansive
development of tort remedies. 28 Theories that have gained success in other
jurisdictions have not been recognized here. For example, domestic violence has
been characterized as a continuing tort in Idaho 29 and New Jersey. 30

Conclusion
Domestic Violence and Tort Remedies 303
The tort remedies available under current New York statutory and common
law principles provide important tools for enabling many victims of domestic
violence to obtain compensation for their injuries. Legislative reform,
particularly the expansion of statutes of limitation, is urgently needed to fully
realize the scope of relief that should be available to battered women.

304 Betty Levinson
Notes
1. Family Violence in Child Custody Statutes: An Analysis of State Codes and
Legal Practice, 29 Fam LQ 212, 216 (1995).
2. Throughout this article, victims of domestic violence are identified as
women and the perpetrators as men. This reflects the scenario of the vast
majority of cases.
3. Clare Dalton, Domestic Violence, Domestic Torts and Divorce: Constraints
and Possibilities, 31 New Eng L Rev 2 (1997).
4. See Elizabeth Kelly, “How Women Define Their Experiences of Violence,”
in Feminist Perspective on Wife Abuse, Kersti Yllo and Michele Bograd, eds
(1990).
5. Two very useful texts in understanding domestic violence are Judith L.
Herman, Trauma and Recovery (1992) and Ann Jones, Next Time She’ll Be
Dead: Battering and How to Stop It (1994).
6. A full panoply of possible tort claims is contained in All in the Family —
Tort Litigation Comes of Age, 28 Fam LQ 3 (1994).
7. General Obligations Law § 3-313.
8. Weicker v Weicker, 22 NY2d 8 (1967); see also Baron v Jeffer, 98 AD2d
810 (2d Dept 1983); But see Weisman v Weisman, 108 AD2d 853 (2d Dept
1985) decided without citation to Weicker.
9. Murphy v Murphy, 109 AD2d 965 (3d Dept 1985).
10. Artache v Goldin, 133 AD2d 596 (2d Dept 1987); see also Jose F. v Pat M.,
154 Misc 2d 883 (Sup Ct Suffolk Co 1992) and Sanders v Rosen, 159 Misc
2d 563 (Sup Ct NY Co 1993).
11. Maharam v Maharam, 123 AD2d 165 (1st Dept 1986). Remember that the
statute of limitations in such cases runs from the time the plaintiff knew or
should have known when the disease was contracted.
12. Corrigan v Corrigan, NYLJ, Oct. 22, 1998, at 25 (Sup Ct Westchester Co
1998).
13. Brzonkala v Morrison, 529 US 598 (2000).
14. 8 NYCRR § 903(a).
15. Cadiz-Jones v Zambetti, NYLJ, Oct. 29, 2002, at 21 (Sup Ct NY Co 2002).

Domestic Violence and Tort Remedies 305
16. CPLR § 215(3). 274 Betty Levinson
17. CPLR § 215(8).
18. CPLR § 208.
19. McCarthy v Volkswagen, 55 NY2d 543, 248 (1982).
20. Id.
21. Nussbum v Steinberg, 269 AD2d 192 (1st Dept 2000).
22. Curtis v Firth, 850 P2d 749 (Idaho 1993); Giovine v Giovine, 663 AD2d
109 (NJ Sup Ct 1995).
23. Galvin, Francis, 23 WL 21696740 (Sup Ct Richmond Co 2003).
24. 6 NY2d 94 (2006).
25. The Court of Appeals approvingly refers passing to Weicker v. Weicker, see
fn 8, above, confirming New York’s policy of refusing to compensate
damages for the intentional infliction of emotional distress within marriage.
26. See Neufeld v Neufeld, 910 F Supp 977 (SDNY 1996) and Bonner v
Guccione, 916 F Supp (SDNY 1996).
27. Further efforts between prosecuting attorneys and civil practitioners are
necessary in order to harmonize their efforts on behalf of battered women.
28. See Hoffman v Hoffman, 162 AD2d 249, 556 (1st Dept 1990) (Court disallowed
tolling of statute of limitations for “recovered memory” incest victim).
29. Curtis v Firth, 850 P2d 749 (Idaho 1993).
30. Giovine v Giovine 663 AD2d 109 (NJ Super Ct 1995).

Part VI
Emerging Communities

The fundamental issues confronting immigrant victims of domestic violence
are, in some respects, not so much different from those of their Americanborn
counterparts as they are intensified. The commonly experienced feelings of
powerlessness, isolation, and fear of both the abuser and the authorities increase
exponentially when the victim has journeyed to the United States from another
country. Despite these underlying similarities, the immigration status of domestic
violence victims, and, in some cases, of their abusers, raises issues that require
the practitioner to understand the complicated remedies and potential pitfalls
specific to immigration law.
Although, with its contradictory or overlapping forms of relief, the American
immigration system may seem unnavigable, legal practitioners should take heart:
despite the declining availability of relief for most other categories of immigrants,
there are now more avenues to assist immigrant victims of domestic violence than
have ever existed in US history. Help from multiple sources will be necessary, but
absent extenuating factors such as criminal convictions or fraud (and even in those
cases, waivers may be available), a domestic violence victim’s carefully executed
application for immigration relief stands an excellent prospect for success.
Barriers to Protection Faced by Immigrant Women 1
Language
Representing Immigrant Victims
of Domestic Violence
by Lori L. Cohen
Perhaps nowhere does an immigrant woman’s vulnerability become as
apparent as her inability to pick up the phone and call for help. In a society
where multilingualism is actively discouraged and proposals abound for
establishing English as a “national language,” those individuals who lack the
19

310 Lori Cohen
ability to speak it face grave danger. While some immigrant victims of domestic
violence speak English, many do not, even if they have lived in the United
States for a number of years. Women raised in regions where the formal
education of girls is discouraged or prohibited may be illiterate in their native
language as well, compounding the difficulties in studying English.
In some cases, the abuser may use his command of English to further
isolate the victim, forbidding her to study or telling her that she is “too stupid”
to learn a new language. A woman who cannot leave home to study, work, shop
or even associate with neighbors has little chance of gaining a command of
English. To perpetuate control, the abuser may even rely on his victim’s
inability to communicate with the authorities in English. In the rare event that
police are called, the abuser may explain that the call was a mistake or that the
victim was the aggressor, while the victim remains powerless to ask for aid.
In fact, the New York City Domestic Violence Hotline has free translation
assistance in 140 languages, 2 but it remains a challenge to share this information
with isolated victims.
Lack of Family Support
In addition to the isolation created by language barriers, many immigrant
women are physically separated from their families, who may live thousands of
miles away. If sympathetic to the victim, her family can provide not only
emotional and financial support, but also offer a safe place for her to hide.
Without family members, the victim may be more vulnerable to feelings of
abandonment and at greater risk for abuse.
Unfortunately for many abused immigrant women, even when family
members are physically present in the United States they may side with the
abuser. Physical punishment of wives is openly accepted in some countries as a
husband’s right, treated as a private domestic matter. A woman raised in an
environment in which her female relatives are routinely abused is not likely to
be encouraged to leave her abuser. Even when the victim suffers broken bones
or requires stitches, she may be admonished by her relatives to try not to anger
her husband.
Isolation from the Victim’s Ethnic and Religious Community
Just as the victim may be isolated from her blood relatives, so too may she
be cut off from her larger “family” in the form of her ethnic community. Ethnicbased
community organizations have made important inroads by educating their

Representing Immigrant Victims of Domestic Violence 311
constituency that domestic violence is not only socially unacceptable and illegal
in the United States, but also at odds with their own cultural and religious
traditions. 3 This two-pronged approach has garnered the support of community
leaders who recognize the real threat of arrest and deportation resulting from
domestic violence charges, but who may feel ambivalent about “Americanizing.”
Consequently, an immigrant domestic violence victim seeking assistance can turn
to a variety of organizations in the metropolitan New York area where
caseworkers share her ethnic background, speak her language, and understand
her cultural concerns. 4 To offset this support, however, a batterer may move her
to a neighborhood where no one shares her cultural background.
Additionally, despite ethnic-specific support groups, religious authorities
within that community may serve as countervailing forces. While some religious
leaders have been laudable for criticizing domestic violence, others reject the
American “rush” to divorce, urging instead that victims respect their religious
vows. Immigrant women commonly report being counseled by a spiritual leader
to remain in a marriage despite evidence of severe physical abuse, and of being
chastised for failing to accept their husbands’ authority.
Concern for the Children
The presence of children, while a complicating factor in the victim’s decision
to seek help, gains particular urgency when she is an immigrant. If the abuser is
a US citizen (“USC”) or lawful permanent resident (“LPR”) and she is
undocumented, he may tell her that only someone who is “legal” could win a
custody battle. Alternatively, he may threaten to “turn her in” to the immigration
authorities and have her deported, while the children, who may be US citizens,
remain behind with him. In other cases, if the husband also holds foreign
citizenship, he may kidnap the children to his country of birth, abandoning his
battered wife and preventing her from ever seeing them again. 5 Should the victim
possess sufficient resources for travel to the abuser’s home country to reclaim the
children, custody laws may favor the father nevertheless. 6
Unfamiliarity with US Law
Protections extended to battered women in New York are relatively recent
enactments, and federal remedies for immigrant women are less than two
decades old. 7 These developments may be unknown to women emigrating from
countries that explicitly or tacitly condone domestic abuse. In some countries
legislation criminalizing spousal abuse is rarely, if ever, enforced because of
prevailing social norms or corrupt law enforcement. The abuser himself may be

312 Lori Cohen
a current or former police officer, a member of the military, or a prominent
business figure with close ties to law enforcement. In the most extreme cases, a
woman who turns to the authorities for help in turn may be raped and tortured
as a trouble maker who “asked for it.” 8
As a result, immigrant women in the United States rarely view the law as an
ally in their quest for protection. An abuser may capitalize on this by threatening
to have the victim arrested should she call the police. Unfortunately, too many
abusers have made good on their threats, as domestic violence victims have
found themselves arrested and placed into removal proceedings when seeking to
escape an abusive relationship. 9
Even when a call to the police results in the abuser’s arrest, the victim may
be unwilling to press charges against him. If the abuser is also an immigrant, a
conviction of a crime of domestic violence, stalking, child abuse, or violation of
a protection order may render him deportable. 10 The deportation of the abuser,
while sparing the victim from further physical abuse, may result in her family
losing its sole source of income. If the batterer has prevented his victim from
obtaining employment authorization, she may find the challenge of financially
supporting herself and her children insurmountable. A victim may weigh the
prospects of becoming homeless against suffering physical abuse and remain in
the abusive relationship, unaware of the legal remedies and public benefits
available to her.
Even if the victim understands her rights, the possibility of her abuser’s
removal from the United States carries significant risks. Should the abuser have
friends in the United States, they may retaliate against the victim for “causing”
his deportation. Moreover, a victim is only protected from her abuser while she
is in the United States — American safeguards vanish at the border. When
victim and batterer are from the same country of origin, his deportation may
also jeopardize the safety of the victim’s relatives living abroad.
Preliminary Notes on Representing Immigrant Domestic
Violence Victims
Establishing the Attorney-Client Relationship
As with American-born victims of domestic violence, immigrant victims have
suffered a profound betrayal of trust. The attorney must be vigilant against
stereotyping based upon the client’s country of origin, style of dress, religion,

Representing Immigrant Victims of Domestic Violence 313
educational background, or manner of entry. Also, the practitioner must remember
that information routinely known to Americans may be entirely new for the
foreign-born victim. The immigrant client may fear her lawyer is actually an agent
for the immigration authorities who will turn her in. If represented pro bono, the
client may worry that her attorney is not a “real lawyer.” Nor is the confidential
nature of the attorney-client relationship a concept familiar to many immigrants. It
is therefore essential to explain the lawyer’s role and responsibilities to the client
to help establish a foundation of trust.
Working with a Translator
Representation becomes more complicated when a translator is introduced,
as the client must establish confidence in her counsel while speaking through an
intermediary. That individual should be someone the client trusts but also
someone the attorney believes will provide accurate translation and strictly
respect rules regarding confidentiality.
In some cases, the client may wish to rely upon a family member to translate.
While a relative may help the client feel more at ease, family members can make
poor interpreters. Regardless of the admonition to translate accurately, some
relatives may try to “help” the victim by embellishing her story. Embellishments
are not only unnecessary, but they can undermine a legal claim if they are not
supported by medical records or if inconsistencies surface. Perhaps even more
common is the opposite problem — a relative may be so uncomfortable with the
abuse that he or she may soften or omit it entirely. The victim may also be
uncomfortable describing any sexual abuse in a relative’s presence. Family
members also experience difficulty observing the rules of confidentiality and,
even if they believe they have the victim’s best interests in mind, may take it
upon themselves to share the translated confidences with other relatives or with
the abuser. Relying upon friends of the victim to translate carries similar risks.
Ideally, if a client turns to a friend or family member for emotional support,
it would be best for that person to wait in the reception area while a
disinterested party (such as a coworker) translates. If the client is staying in a
battered women’s shelter or working with an immigrant outreach organization,
a bilingual caseworker may be available. Other possible sources for interpreters
may be the local bar association, or bilingual law or social work students, who
are often eager to use their language skills and gain practical experience.
If the translator can only meet with the victim a limited number of times, it
may be necessary for the victim to write the details of her abuse and have her
statement translated. In some cases, the client may actually prefer to write about

314 Lori Cohen
the abuse than to discuss it. The document not only will serve as the basis for
her “personal statement” to be included in the majority of applications for
immigration relief, but also can form a foundation for dialogue with the client.
A final word on translation — under no circumstances should the victim turn
to a local travel agent or notary public from her ethnic community for translation
assistance. These individuals (known as “notarios” in the Spanish speaking
community, but prevalent among a variety of ethnic communities) often serve as
unofficial legal advisors. Because a “notary” is a licensed legal practitioner in
many foreign countries, immigrants often assume that a notary public in the
United States is the same as a lawyer. The notary translating a client’s statement
may also be providing conflicting (and erroneous) legal advice for a fee, or
worse, sharing the client’s confidential information with the abuser.
Confidentiality of the Application Process
A domestic violence victim will understandably be worried that any
information she discloses on an immigration application may be shared with
her abuser, putting her at risk for further abuse. In addition to the normal rules
of privilege and confidentiality within attorney-client relationships, the US
Citizenship and Immigration Services (USCIS) is mandated to keep
confidential all information provided by the victim. 11 As part of that effort to
ensure confidentiality, applications pertaining to domestic violence relief
contain provisions for a “safe” mailing address so that correspondence will not
be forwarded to the abuser. Despite these precautions, however, mistakes in
notification do occur, so extra care must be taken if the victim and her abuser
share a common address.
Inability to Pay for Filing Fees
In many, if not most cases, a woman fleeing from an abusive relationship will
not have the financial means to pay the specified filing fees on the applications for
immigration relief. 12 Upon a demonstration of inability to pay, fee waivers are
available for most applications. 13 Applicants seeking fee waivers should mark
correspondence with red ink indicating “FEE WAIVER REQUESTED.”
Immigration Status of the Victim’s Children
If a victim has children, her concern that they remain with her in the United
States may eclipse any fears about her own safety. If her children were born in
the United States, the fear may be assuaged by explaining that they are citizens
and not subject to deportation. Under certain circumstances, even children born

Representing Immigrant Victims of Domestic Violence 315
abroad to a US citizen parent may also be citizens. 14 If the children are not
citizens by birth, remedies for the mother are intended to ensure that they obtain
relief as well. 15
Factors in Determining Eligibility for Relief
The type of immigration relief for which a domestic violence victim may be
eligible depends upon a number of variables, including her marital status, her
current immigration status, the immigration status of her abuser, and her “good
moral character” as defined under federal law.
Brief Overview of Family-Based Immigration Law
Family-based immigration is the most common way for foreign-born
individuals to gain permanent legal status in the United States. Approximately
three-fifths of all immigrants to the United States each year obtain permanent
resident status (commonly called a “green card,” though the color of the card has
not been green for years) based upon a qualifying family relationship. 16 Permanent
residence allows an individual to work in the United States, to travel abroad, and,
after either three or five years, to naturalize. To initiate the immigrant visa process,
a US citizen or lawful permanent resident (the “petitioner”) files a document
known as a “Petition for Alien Relative” with USCIS and submits documentation
in support of the qualifying family relationship (such as marriage or birth
certificates). 17 Certain categories of family members (the “beneficiaries”) are
assigned a “priority date” based upon the date of the application, and wait until an
immigrant visa is available. The beneficiaries then become eligible to obtain
“adjustment of status” to that of lawful permanent resident. Because of annual caps
on visas based upon familial relationships and countries of origin, the current wait
ranges from 6 (e.g., British-born spouse of a permanent resident) to 23 years (e.g.,
a Philippine-born sibling of a US citizen)! 18
Individuals who are married to a United States citizen and their minor,
unmarried children (under 21) are not subject to annual caps and so avoid the
waiting period for an immigrant visa. These individuals, known as “immediate
relatives,” can obtain lawful permanent residence within months of filing
the Alien Relative petition, although disparities exist in processing times
throughout the country because of case backlogs and security clearances. 19 Still,
while the application is pending, an immediate relative is eligible for
employment authorization.

316 Lori Cohen
Until recently, the relative petition process was predicated on the
assumption that a permanent resident or US citizen sought legalization of a
spouse’s status to attain family unity. While the assumption held true if the
couple was happily married, it functioned as a weapon in the abuser’s arsenal
against the domestic violence victim. As the sole holder of lawful immigration
status, the abuser could refuse to file on behalf of his family members or
withdraw a pending application, and the intended beneficiaries would have little
recourse. Moreover, all possibilities for the victim to obtain relief would
terminate in the event of divorce or the abuser’s death, even if the couple had
been married for years. A victim could remain imprisoned in an abusive
marriage forever, fearful of deportation if she left.
In recognition of the immigrant victim’s dilemma, and thanks largely to the
efforts of domestic violence and immigration activists, Congress passed the 1994
Violence Against Women Act (VAWA), which included unprecedented protections
for immigrant victims of domestic violence. 20 The VAWA immigration provisions
allow spouses of abusive US citizens or permanent residents and their children to
self-petition, as well as to receive public assistance benefits. Congress has
continued to fine tune the VAWA provisions to correct initial flaws, and has
expanded the categories of aliens eligible for VAWA relief.
Evaluating the Client’s Immigration Status
If an immigrant victim of domestic violence has had any contact with the
immigration authorities at any point in her stay in the United States, she may
have generated a file at USCIS, called an “A file.” The file may provide
valuable information, such as the client’s current immigration status and that of
her abuser, immigration documents filed on her behalf, and any record of
immigration proceedings pending against her. To obtain a copy, the client should
execute a Freedom of Information Act (FOIA) application. 21 Unfortunately, a
speedy response to a FOIA request is rare. USCIS is required to respond to the
FOIA request within ten days, 22 but, in reality, it may take years for a reply. The
regulations provide an appellate process in the event a reply is not timely
given. 23 Ultimately, it may be necessary to file a lawsuit in US District Court to
prompt production of the requested records. 24 As an alternative, if the client is in
removal proceedings, it may be possible to schedule an appointment with the
District Counsel’s office to review the A file.

Could the Victim be a US Citizen Already?
Representing Immigrant Victims of Domestic Violence 317
In evaluating the client’s immigrant status, the practitioner should not
overlook the possibility that she may unknowingly be a United States citizen.
A victim may have been born in the United States and raised abroad, or she
might have one or more parents or grandparents who are citizens. In some cases,
an individual can obtain citizenship through a family relationship if she is the
illegitimate child of a US citizen. Tracing all family relationships is also
important to determine whether the client is eligible for other family-based
immigration petitions should the domestic-violence related application fail.
Under What Circumstances Did the Victim Enter the United States?
If the client is a foreign national, the manner in which she entered the United
States may determine the course of action. For example, an individual bearing a
K-1 or “fiancee” visa is essentially “pre-approved” for a family-based petition if
she marries her petitioning fiancé within 90 days of entry to the United States. 25
Conversely, if the client entered without inspection, that is to say, crossed the
border without a visa, or she entered on a visa which has lapsed, she should not
leave the United States or she may be barred from returning for years. 26 Even if
she possesses valid immigration documents, a departure from the United States
could jeopardize claims for relief as a trafficking victim or an asylee. Moreover,
the period of time lapsing between date of entry into the United States and
eligibility for certain applications, such as asylum, may prove very important.
What is the Abuser’s Immigration Status?
In addition to examining the status of the victim, the practitioner should
attempt to verify the immigration status of the abuser. This can be a surprisingly
difficult task — withholding legal documents such as a birth certificate or a
green card constitutes one manner in which the abuser exerts control over his
victim. Still, in some cases, the victim can discover the abuser’s birth or
naturalization certificate or passport in her home, or she may find his Social
Security number or Alien Registration Number written on a tax return or
employment-related document. If the victim is married to a native-born US
citizen, she may be able to obtain a copy of the abuser’s birth certificate from
a county clerk. 27 If the abuser is either a naturalized citizen or a permanent
resident, USCIS should be able to verify his status through its own records. 28
If the victim has a family court case pending, the judge may be willing to order
the production of documents relevant to the abuser’s immigration status. 29

318 Lori Cohen
Has the Victim Been Legally Married?
Certain forms of immigration relief require the victim to demonstrate that she
was legally married to her USC or LPR abuser. If the marriage occurred in the
United States, a certified copy of a state-issued marriage certificate constitutes
proof of marriage. If it occurred outside the United States, an official marriage
certificate from the country of marriage, along with a certified translation, is proof
of marriage.
If a marriage occurred abroad, the ability to obtain a certificate may be more
complicated. While a valid marriage certificate is obtainable in many countries,
some may have little or no record keeping due to war or natural disasters, while
others are notorious for issuing fraudulent documents. As a general rule, USCIS
requires that only primary evidence of marriage be submitted in support of
immigration applications and petitions, unless the applicant or petitioner can
demonstrate that the document is unavailable. In that case, secondary evidence,
such as church records, may be included. 30 However, the evidentiary standard is
relaxed for applications submitted by domestic violence victims, and USCIS will
consider “all credible evidence.” 31 While it is not necessary to demonstrate that
the preferred primary or secondary evidence is unavailable for certain domestic
violence related remedies, it is still advisable to do so whenever possible. Where
primary evidence is unavailable, the victim should submit witness affidavits, if
possible, to prove lawful marriage.
If the abuser was previously married, the victim must demonstrate she
believed that she had entered into a legally valid marriage with him. Although
the statute protects a domestic violence victim who may also be the innocent
victim of bigamy, she nevertheless must submit proof of termination of any of
her own prior marriages. 32
Was the Marriage Entered in “Good Faith”?
In addition to evidence of a legal marriage, some applications require that
the marriage be entered in “good faith” and not merely to obtain an immigration
benefit. There is no single list of required documents used to prove good faith
marriage. Acceptable evidence includes: birth certificates showing children born
into the marriage, health records indicating any miscarriages that occurred during
the marriage, leases, titles, receipts, bills, and other correspondence showing a
shared address, joint tax returns, insurance policies, credit cards, bank statements,
even grocery or video club cards listing both spouse’s names.

Representing Immigrant Victims of Domestic Violence 319
When the abuser has isolated the victim by withholding her name from any
official documents, it may be difficult to prove a shared residence. In that case, it
may be necessary to compile documentation of a more personal nature, such as
love letters, photographs of the couple’s wedding (if celebrated with witnesses
present), affidavits from family, friends, or neighbors. Ironically, police reports
and hospital records resulting from incidents of abuse can support a finding of
good faith marriage, particularly when they show the couple living together.
A final warning about good faith marriage: ample documentation still may not
be sufficient to overcome such factors as multiple previous marriages by either
party, a wide gap in age between husband and wife, or racial, linguistic, or ethnic
differences. If red flags exist, the client must be prepared to explain them.
Documenting Abuse
Abuse of a victim may be either battery or extreme cruelty. 33 As with the
element of good faith marriage, many kinds of evidence support a finding of
abuse. If law enforcement was ever involved, the client should obtain copies of
all police reports, protective orders, and records of criminal proceedings.
Likewise, photographs and hospital or other medical records indicating signs of
physical abuse should be submitted. Documentation showing stays at domestic
violence shelters, family court records that include claims of abuse, and reports
from psychologists or social workers are also useful records.
If the victim has been too intimidated to contact the authorities or the abuser
has inflicted psychological abuse and she has not received psychological
counseling, an alternative approach may be required. For example, affidavits of
neighbors may attest that they heard arguments, that the victim was bruised, that
she was never observed leaving the house without her abuser, that their children
were never permitted to play together, or that the victim never spoke to them or
even looked at them when passing them on the street. Friends or relatives could
submit affidavits saying that they were not permitted to telephone or visit, that
the victim seemed nervous or fearful when asked about her spouse, or that she
would unexpectedly fail to appear at social events. In some cases, former
spouses or girlfriends of the abuser may even be willing to submit affidavits
testifying to abuse suffered by them.
Perhaps the most important document the victim can provide is a cohesive
account of the abuse suffered. Nearly all VAWA applications require a “personal
statement” that recounts the victim’s experiences in her own words, not in
legalese. The less “hard” evidence available to support her claim, the more
important her statement will be. While it may take a number of interviews to

320 Lori Cohen
collect sufficient information for the client’s personal statement, it is essential to
provide as much detail as possible. It may be difficult to elicit some information,
such as details of sexual abuse — nonetheless, such details are essential to a
successful application. If the client does not speak English, a certificate of
translation must be included at the conclusion of her statement.
Categories of Relief for Domestic Violence Victims
Removal of Conditions on Residence
If the victim is married to a United States citizen who has previously filed
an immigrant petition for her, she may currently hold “conditional resident”
status. 34 Conditional permanent residence allows the foreign-born spouse to
work and to travel abroad, but it is limited to two years. If the couple is still
married and living together 90 days prior to the two year anniversary of the
conditional residence, they may file a joint “Petition to Remove the Conditions
on Residence.” 35 If approved, the condition on the permanent resident status
previously granted to the foreign-born spouse is removed. Once the condition is
removed, permanent residence will not be revoked if the couple subsequently
divorces. Conditional residence was established to discourage fraudulent
marriages between would-be immigrants and United States citizens. 36
Where the couple is happily married and possesses sufficient documentation
to substantiate their continuing good faith marriage, petitioning to remove the
conditions on residence is one of the more straightforward applications that a
practitioner can hope to file. The process is more complicated when the wife is a
victim of domestic abuse and the husband refuses to file, or she does not want
to or cannot ask him. Rather than submit a joint petition, she may file alone and
request a “battered spouse waiver.” 37 While a battered spouse waiver requires
more documentation than a petition jointly filed by a married couple, it still
offers a more streamlined form of relief for victims of domestic violence than
other VAWA remedies.
Elements of a “Battered Spouse” Waiver under VAWA
To obtain a battered spouse waiver, the victim must show:
She is currently or previously has been a conditional resident;
She is currently or previously has been married to a United
States Citizen;

Representing Immigrant Victims of Domestic Violence 321
She entered the marriage in good faith;
She (or her child) suffered from physical battery or extreme
cruelty from her citizen spouse. 38
The elements of good faith marriage and physical battery or extreme cruelty
have been discussed in the preceding sections. 39 This section focuses upon two
factors unique to the battered spouse waiver: (1) current or previous status as a
conditional resident; and (2) status as a current or former spouse of a United
States citizen.
Currently or Previously a Conditional Resident
Proof of conditional residence is established by submitting a photocopy of the
victim’s Permanent Resident Card. 40 While a jointly filed petition to remove the
conditions on residence must be filed 90 days before the two-year anniversary
of conditional residence, individuals seeking a waiver based upon having been
battered or subject to extreme cruelty are eligible to file beyond the 90-day
anniversary period, even if their conditional residence status has lapsed. 41 As a
practice pointer, it is still recommended that the applicant file the waiver request
as quickly as possible to avoid being placed into removal proceedings.
Currently or Previously Married to a United States Citizen
While jointly filed petitions to remove the conditions on residence require
that the conditional resident and citizen spouse be married, an individual seeking
a battered spouse waiver may file even after the marriage has ended. 42 An
individual who has already divorced her abuser additionally may seek a waiver
based upon a good faith marriage that terminated due to divorce or annulment. 43
Procedure for Obtaining a Waiver
Detailed filing instructions are contained on the waiver form, obtainable
on the USCIS website. 44 In addition, the legal practitioner must include a
“Notice of Appearance of Attorney or Representative” to ensure receipt of
USCIS correspondence. 45
Once USCIS receives the waiver request, it automatically extends the
petitioner’s conditional resident status for one year. To obtain proof of the
extension, the client should make an appointment to appear at a local USCIS
office to receive a stamp in her passport. 46 If the application is approved, the
petitioner will receive a permanent resident card in the mail. If denied, the
petitioner may be placed into removal proceedings, where an immigration judge
may review the denial of the waiver request. 47

322 Lori Cohen
VAWA Self-Petitions for Victims Married to a USC or LPR 48
While the battered spouse waivers offer streamlined relief, they are available
only to the subgroup of victims whose abusers had assisted them in obtaining the
initial conditional residence status. Far more common is the scenario where the
abuser (1) never filed any immigration petitions on the victim’s behalf; or (2)
filed an initial family-based petition and subsequently withdrew it or refused to
file the subsequent adjustment of status application. A VAWA self-petition assists
current or former spouses of US citizens or permanent residents and their
children to seek permanent residence. 49 VAWA self-petitioners may adjust their
status to lawful permanent resident even if they entered the United States without
inspection or are “unlawfully present” in the United States. 50 A victim may also
self-petition if she already has received an approved Petition for Alien Relative
or has an adjustment of status application pending.
Elements of a VAWA Self-Petition
To qualify for a VAWA self-petition, the victim must demonstrate:
legal and valid marriage to a current or former USC or LPR
spouse; 51
good faith marriage;
physical battery or extreme cruelty suffered by her or her child;
joint residence with the abuser;
good moral character. 52
The first three elements overlap substantially with the provisions for the
battered spouse waiver for conditional residents. However, the legal and valid
marriage requirement differs from the waiver in two important aspects. First,
while the battered spouse waiver in practice requires the batterer to be a US
citizen (since spouses of permanent residents cannot currently obtain conditional
residence), the VAWA self-petition also enables spouses of permanent residents
to seek relief. Second, while a victim seeking a battered spouse waiver may file
at any time after the termination of her marriage, the VAWA self-petitioner faces
a two-year deadline between the termination and the filing of her application, and
there must be a connection between the divorce and the domestic violence. 53
Joint Residence with the Abuser and Current US Residence
A VAWA self-petitioner must show that she has resided in the past with her
abuser. A conflict currently exists between the USCIS and the regulations

Representing Immigrant Victims of Domestic Violence 323
regarding the joint residence requirement. While the Violence Against Women
Act of 2000 deleted the requirement that joint residence occurred in the United
States, the regulations (and the self-petition form) have not been amended to
reflect these changes. 54 Nor do the regulations reflect that a victim is no longer
required to currently reside in the United States to file. 55 There have been
anecdotal reports that USCIS continues to follow the unamended regulations, and
the practitioner should be prepared to assert that the statute controls if US
residency requirements are at issue. Regulations from USCIS are expected to be
released shortly that conform to the statute.
Good Moral Character
Unlike the battered spouse waiver, a VAWA self-petition must demonstrate
“good moral character.’’ The victim’s personal statement should indicate that she
has good moral character, and she must submit a local police clearance or a
state-issued criminal background check for every location in which she has
resided for at least six months (including any residence abroad) during the threeyear
period before filing the self-petition. If it is impossible to obtain a police
clearance from a foreign authority, the self-petition must include an explanation
as to why the documentation is unavailable, and include affidavits from
witnesses in support of the victim’s good moral character. 56
Absent a history of criminal activity, a good moral character finding is
relatively straightforward. 57 However, a VAWA self-petitioner may be barred from
a finding of good moral character if she has a criminal conviction or admits to
certain disqualifying acts. 58 In that case, it is critical to review the statute and
regulations to determine if she can obtain a waiver. For example, prostitution,
smuggling of a family member, or giving false testimony to procure an
immigration benefit are all acts which would ordinarily render an alien
inadmissible but for which a domestic violence victim may obtain a waiver if she
can demonstrate a connection between the act and the domestic abuse. 59 When
representing a client with issues implicating good moral character, the practitioner
should consult an experienced mentor for assistance with the waiver application. 60
Mechanics of a VAWA Self-Petition
The VAWA self-petition is initiated by filing a “Petition for Amerasian,
Widow(er), or Special Immigrant.” 61 As the name implies, the form applies to
an array of immigrant categories, and only those sections concerning a Self-
Petitioning Spouse of an Abusive US Citizen or Lawful Permanent Resident
should be completed.

324 Lori Cohen
The self-petition form contains instructions on the payment of filing fees,
submission of additional documents, and mailing address. However, the form
also contains requirements that are no longer used to establish VAWA eligibility.
For example, the petition requires a petitioner to show that she or a qualifying
family member would suffer extreme hardship should she be deported. The
requirement was stricken under VAWA 2000, however, and USCIS no longer
considers extreme hardship in adjudicating a self-petition. 62 When preparing the
VAWA self-petition packet for mailing, mark the envelope and all
correspondence “VAWA UNIT” in red ink.
If the self-petitioner has been married to a USC abuser, she may
simultaneously file applications for adjustment of status and employment
authorization. If she has foreign-born children who live with her, she may
include them in her self-petition but must execute separate adjustment of status
applications for each child. 63 Because spouses of green card holders must wait
for an immigrant visa to become available, a self-petitioner who had been
married to a permanent resident cannot typically file for adjustment of status
concurrently with the VAWA self-petition but can apply for employment
authorization. If, however, the victim’s current or former permanent resident
spouse previously filed a family petition for her that has a current priority date,
the self-petitioner may file an adjustment application. 64
If the self-petition is approved, USCIS will issue “deferred action” status
and any requested employment authorization. 65 Self-petitioners who had been
married to US citizens or who have current priority dates from previously filed
family petitions will be scheduled for an interview on their adjustment of status
applications at their local USCIS office. Spouses of permanent residents without
current priority dates must wait for an immigrant visa to become available
before seeking adjustment of status. 66 In the interim, both categories of selfpetitioners
may extend their deferred action status and employment
authorization until they adjust status. 67
VAWA Cancellation of Removal
If a domestic violence victim has been placed in removal proceedings
before an immigration judge, she may also be eligible to “cancel” the
proceedings and adjust to permanent resident status under a special provision
colloquially known as “VAWA Cancellation.” “VAWA Cancellation” offers
domestic violence victims in removal proceedings the chance to obtain lawful

Representing Immigrant Victims of Domestic Violence 325
permanent residence when they might otherwise be unable to secure relief.
Since immigration courts form an entity that is distinct from USCIS, this
procedure offers an alternative channel of relief.
Elements of a VAWA Cancellation Application
A domestic violence victim in removal proceedings must establish the
following to qualify for VAWA cancellation:
She had a legal and valid marriage to a current or former USC
or LPR or, if not married, had a child in common with him; 68
If married, their marriage was in good faith;
She or her child suffered physical battery or extreme cruelty
by the current or former USC or LPR;
She had at least three years of continuous physical presence in
the United States prior to submitting her application for
cancellation of removal;
She had good moral character for three years prior to making
the application;
She, her child, or parent would suffer extreme hardship if
removed from the United States. 69
Marriage and Physical Presence Requirements
A VAWA cancellation application provides relief to a broader range of
victims than either the battered spouse waiver or VAWA self-petition. A victim
may seek VAWA cancellation even if she divorced her abuser more than two
years prior to the application. Significantly, if the victim never married her
abuser but had a child with him, she may still be eligible for relief. 70 Also, if a
current or former USC or LPR abusive spouse or parent lost his own legal
status, it is not necessary to demonstrate a nexus between the status loss and
domestic violence. 71 At the same time, the requirement of three years physical
presence in the United States is an additional burden not present in either the
battered spouse waiver or the VAWA self-petition.
Good Moral Character
The good moral character requirement for VAWA cancellation is similar to
that in the VAWA self-petition, except the period for establishing good moral
character is limited to three years prior to the cancellation filing. There are some
differences in eligibility for VAWA cancellation rather than a VAWA self-petition

326 Lori Cohen
if the victim has been convicted of, or admitted to, certain criminal acts, and the
representative should work with an experienced mentor to address these issues. 72
Extreme Hardship
A hurdle for the VAWA cancellation applicant not found in a battered
spouse waiver or VAWA self-petition is the requirement that her removal from
the United States would cause “extreme hardship” to herself or to her child or
parent. The regulations provide examples of extreme hardship. 73
The Application Process for VAWA Cancellation and a
Cautionary Note
To file an application for VAWA cancellation, a victim must submit an
“Application for Cancellation of Removal and Adjustment of Status for Certain
Nonpermanent Residents” 74 with the immigration court, along with her personal
statement and all supporting documents. The filing fee is waivable upon a
showing of inability to pay. If the applicant prevails, the immigration judge may
grant her permanent resident status. Unlike the VAWA self-petition, the children
of a victim cannot be included as “derivative” beneficiaries (although they may
be eligible to file a separate claim for VAWA cancellation). Once the mother
obtains permanent residence, however, the children will be granted parole,
allowing her to file a visa petition on their behalf. The parole will continue until
the children can adjust status to lawful permanent residence. 75
While the prospect of attaining a green card through the immigration courts
may appear preferable to waiting years for an immigrant visa to become
available through the affirmative filing of a VAWA self-petition with USCIS, the
advocate should beware: immigration practitioners typically avoid having their
clients placed in removal proceedings. Although a domestic violence victim may
have a meritorious case, she risks losing and being removed from the United
States. An attorney considering whether to have a client placed in removal
proceedings should consult an experienced immigration practitioner. Even if
attorney and client ultimately agree that removal proceedings offer the best
route for relief, in overburdened jurisdictions like New York it may be difficult
to convince the immigration authorities to process such a request.

Representing Immigrant Victims of Domestic Violence 327
Alternative Remedies for Victims of Physical, Psychological,
or Sexual Abuse: T Visas and U Visas
The VAWA provisions offer unprecedented protection and benefits for
qualifying relatives of current or former US citizens or permanent residents. The
remedies, however, do not apply to women who suffered abuse at the hands of a
non-spouse (except for VAWA cancellation if there is a child in common) or a
spouse without permanent legal status in the United States. Instead, they may be
eligible for relief under the Victims of Trafficking and Violence Protection Act
of 2000 (“VTVPA”), specifically the “T” and “U” visas. 76 These visas, while
classified as “nonimmigrant” visas, allow victims of sexual and other crimes to
obtain employment authorization and public assistance benefits, and apply for
permanent resident status after a three-year waiting period.
T Visa 77
The T visa is available to victims of a “severe form of trafficking in
persons.” Trafficking includes both forced labor and commercial sex. 78 It
protects victims lured to the United States on the false promise of decent work,
only to be subjected to slave labor conditions, rape, or torture. Nearly all
grounds of inadmissibility are waived if they were caused by, or were incident
to, the trafficking. 79 Although the T visa classified as a “nonimmigrant visa,” T
visa holders may apply for permanent resident status after three years. 80
To qualify for a T visa, an applicant must file an “Application for T
Nonimmigrant Status” 81 and demonstrate that:
She is or has been a victim of a “severe form of trafficking in
persons”;
She has either complied with a “reasonable request” for
assistance in an investigation or prosecution in connection
with the trafficking or she is under 18 years old;
She is physically present in the US on account of such
trafficking;
She would suffer “extreme hardship involving unusual and
severe harm” if removed from the United States. 82
Qualified family members may be included in the T visa application as
derivative beneficiaries. 83 If the application is granted, the victim may seek to
apply for permanent resident status after three years. She may also apply for

328 Lori Cohen
employment authorization, either concurrently with the T visa application or any
time thereafter. During the period between receiving the T visa and adjusting
status to permanent resident, she must maintain continuous physical presence in
the United States and good moral character, and either show that she had
cooperated in any reasonable request for investigation of the trafficking or
demonstrate extreme hardship involving unusual and severe harm if removed
from the United States. 84 If the client meets these requirements, both she and her
derivative family members should receive lawful permanent residence.
U Visa 85
The U visa assists victims of certain crimes (and in some cases their parents)
who have suffered “substantial physical or mental abuse” from the criminal
activity, and who have stepped forward to cooperate with law enforcement
investigations or prosecutions. 86 Like the T visa, the U visa permits the inclusion
of certain qualified relatives. 87 Also like the T visa, the U visa classifies recipients
as “nonimmigrants,” but allows them to seek permanent resident status after three
years. The statute encompasses not only domestic violence, but many other crimes
such as sexual assault, felonious assault, unlawful criminal restraint, and torture. 88
Regulations have not yet been promulgated to implement and issue U visas,
although USCIS has issued a draft U visa application for comment. At present,
practitioners are obtaining interim relief by filing a cover letter that details the
grounds for the victim’s U visa eligibility, law enforcement certification, and a
sheet with basic identification data. 89 The law enforcement certification must
state that the alien victim “has been helpful, is being helpful, or is likely to be
helpful” in the investigation or prosecution of the qualifying criminal activity.
The certification may be signed by a federal, state or local law enforcement
official, or by a prosecutor, judge, or other authority investigating the criminal
activity. 90 There is no requirement that a defendant actually be convicted, or
even arrested, for a victim to qualify for U status.
Upon showing prima facie eligibility, the applicant will receive deferred
action status until the U visa regulations are issued. In the interim, victims may
submit an employment authorization application with their request for deferred
action, and, once granted, renew their work permit annually. Pursuant to a
January 2006 policy memorandum, USCIS will count the period that a victim
has deferred action status per a grant of interim relief towards the three years
required to apply for adjustment of status. 91 Like the T visa, most bars to
inadmissibility are waived, but without the T visa’s requirement that there be a
nexus between the ground of inadmissibility and the criminal activity. 92

Asylum and Related Remedies
Representing Immigrant Victims of Domestic Violence 329
Domestic violence survivors, as victims of gender-based persecution, also
may seek immigration relief in the United States by filing an application for
asylum. An asylum applicant must show that she is unable or unwilling to return
to her home country because she suffered persecution or has a “well-founded
fear” of future persecution on account of her race, religion, nationality, political
opinion, or membership in a particular social group. 93 A “well-founded fear” of
persecution does not require absolute certainly of persecution, and the Supreme
Court has found that an individual who has a 10% chance of being persecuted
may meet the standard. 94
Asylum applications based upon gender-related persecution are typically
categorized as “social group” claims. Members of a “particular social group”
share an immutable characteristic that they cannot change or should not be
required to change, such as gender, family membership, or marital status. 95
While initially resistant to gender-based social group claims, immigration law
has evolved to offer protection to women fleeing female genital mutilation (also
referred to as “female genital cutting”), forced arranged marriage, honor killing,
and prostitution. 96 Gender-based claims often overlap with other protected
grounds such as political opinion and religion, however, and the asylum
applicant should include as many of them as possible in her application. 97
Although the current legal landscape is still in flux, asylum or its related
remedies, withholding of removal and Convention Against Torture (CAT)
relief, may be the only route for some women who fear domestic violence or
other forms of gender-based persecution abroad and now seek shelter in the
United States.
Matter of R-A- and Its Aftermath
The leading case addressing asylum eligibility for domestic violence
survivors is Matter of R-A-. 98 In R-A-, a Guatemalan woman named Rodi
Alvarado sought asylum after suffering substantial violence at the hands of her
husband, a former soldier. Her repeated pleas for help from the Guatemalan
authorities were rejected. Ms. Alvarado fled to the United States and was placed
into deportation proceedings. While the immigration judge found that the abuse
she had suffered constituted persecution, the Board of Immigration Appeals
(“BIA”), the appellate body for the immigration courts, reversed on the grounds
that victims of domestic violence did not constitute a “particular social group”
for asylum purposes. 99 The INS subsequently reversed its earlier opposition to

330 Lori Cohen
Rodi Alvarado’s asylum application and issued proposed regulations relevant to
her claim. 100 In 2001, the Attorney General vacated the BIA decision and
ordered it to issue a new one after the regulations were finalized. 101
In 2003, the Attorney General certified Matter of R-A- to himself to decide,
and ordered briefing on Rodi Alvarado’s eligibility for relief. In the absence of
final regulations, the Department of Homeland Security’s brief provides
essential guidance to establishing eligibility for domestic violence-based claims.
The brief essentially adopted many of the points long articulated by domestic
violence advocates, including the formulation of Rodi Alvarado’s membership
in a particular social group. 102 In January 2005, the Attorney General remanded
R-A- to the BIA for reconsideration following the final publication of the
proposed rule. 103 The final rule has not yet been published.
While a final resolution of R-A- has yet to come, the Attorney General’s
order to vacate the BIA decision, the proposed regulations, and, critically, the
government’s brief on Rodi Alvarado’s eligibility, have made a profound impact
on the adjudication of domestic violence-based asylum claims. Women fleeing
domestic violence have prevailed both on their affirmative claims and in
removal proceedings.
Procedural Elements for Asylum Seekers
Asylum claims may be brought either affirmatively or in removal
proceedings, and involve the filing of an asylum application, 104 the asylum
applicant’s personal statement, research on conditions in the applicant’s home
country, and any other supporting documentation, such as witness affidavits,
photographs, news reports, and medical evaluations that corroborate physical
and psychological trauma. Children living in the United States should be
included in the principal application. An affirmative asylum application should
be mailed to the USCIS Service Center for the applicant’s region. 105
The Affirmative Interview
The affirmative asylum process is non-adversarial and conducted by
specially trained interviewers (a female interviewer may be requested) at a
USCIS Asylum Office. 106 While attorneys should attend the asylum interview to
observe, make a closing statement, and point out relevant supporting material,
they are discouraged from otherwise participating in the process. Typically,
applicants return to the Asylum Office two weeks after the interview to
personally receive their decision. An application based solely on a domestic
violence-based social group, however, will be referred to the Asylum Office
Headquarters, delaying a decision, so including other grounds for asylum is

Representing Immigrant Victims of Domestic Violence 331
imperative. The regulations mandate that an applicant be interviewed and
receive a decision within 150 days of filing her application or she will become
eligible to apply for employment authorization. 107
If the application is granted, the applicant will be designated an asylee,
along with any immediate family members included in her application, receive
employment authorization, and become eligible to apply for adjustment of status
to permanent resident after one year. 108 In addition, she may petition for children
living abroad who were not included in the original asylum application. 109
Asylum In Removal Proceedings
If the application is not approved and the applicant does not have valid
immigration status, she will receive a “Notice of Referral” and be placed in
removal proceedings, where an immigration judge will hear testimony on the
filed application, and a trial attorney will cross-examine her. If the client had not
filed for asylum affirmatively, but only raised the claim after being “picked up”
and placed in removal proceedings, she may file the application directly with
the immigration court. If the court grants the application, the asylee has the
same status as if she had been granted asylum affirmatively. If the application is
denied, the applicant may appeal the decision to the Board of Immigration
Appeals, 110 and, subsequently, to the US Court of Appeals. 111
The One-Year Filing Deadline and Withholding of Removal
A grant of asylum offers the promise of sanctuary and stability to the
woman fleeing from gender-based persecution. That promise, however, has
become increasingly elusive thanks to a one-year filing restriction imposed by
Congress in 1996. Whereas previously, a victim could seek asylum at any point
during her stay in the United States, including while in proceedings before the
immigration judge, she now must file an application within one year of her
arrival to the United States. 112 Limited exceptions exist to the one-year bar, and
an applicant may file late if she experienced either “changed circumstances” or
“extraordinary circumstances.” 113 In some cases, a victim may successfully
assert that the abuse suffered constituted such an extraordinary circumstance to
prevent a timely filing. Others victims, unable to overcome the strictures of the
filing deadline, have sought relief in the form of “withholding of removal.”
Withholding of Removal
Like asylum, withholding of removal provides protection to individuals
fleeing persecution based upon one of the five enumerated categories. 114 The
similarities between the two categories of relief quickly diverge, however.
While an asylum applicant need only demonstrate a “well-founded fear,” an

332 Lori Cohen
applicant seeking withholding must demonstrate that she faces a “clear
probability of persecution,” which courts have interpreted as “more likely than
not.” 115 Individuals granted withholding are denied many of the benefits
available to asylees. While they may work and obtain public assistance, they
may not petition for their children or obtain permanent residence. In addition, a
grant of withholding of removal only assures that the victim will not be
returned to her home country - should the United States find an alternate
country that is willing to accept the victim, it may remove her to that
country, 116 although this rarely occurs.
While withholding of removal is seen as a less desirable option compared to
asylum, it offers certain protections unavailable in asylum. First, while asylum
is a discretionary form of relief, an immigration judge must grant withholding if
the applicant meets the standard and is not subject to certain criminal or other
statutory bars. 117 Second, while the statute and regulations prohibit the late filing
of asylum applications, they do not preclude applications for withholding of
removal. 118 Consequently, withholding has become an increasingly significant
tool for individuals fleeing gender-based persecution who were unable to qualify
as an exception to the filing deadline.
Applying for Withholding of Removal
An application for asylum automatically includes a request for withholding
of removal. 119 As a practice pointer, it is nonetheless advisable to indicate that
the applicant is seeking both forms of relief. While asylum can be granted by
either an asylum officer or an immigration judge, withholding can only be
granted by an immigration judge. 120
Convention Against Torture (CAT) Relief
In some circumstances, an applicant for asylum or withholding of removal
may not qualify for relief, either because she does not fall within one of the
protected grounds or because of statutory bars. 121 In that case, she may seek
protection in removal proceedings under the Convention Against Torture (CAT),
which prohibits the return of a person to a country where it is more likely than
not that she will be tortured. 122 While the definition for “torture” under CAT
differs from “persecution” under asylum law, rape and female genital mutilation
have been held to be forms of torture for purposes of a CAT claim. 123 There is
no separate application for CAT relief, but the asylum application contains a box
to be checked if the applicant seeks CAT relief, and also asks if the applicant
has been tortured or fears torture in her home country. If an applicant indicates
that she fears torture in her asylum application, the immigration judge is

Representing Immigrant Victims of Domestic Violence 333
required to consider eligibility for CAT relief. 124 When preparing a request for
CAT relief, consult with an experienced mentor.
Conclusion
This chapter, while offering an introductory guide to the issues confronting
immigrant domestic violence victims and possible avenues for relief, must serve
only as a starting point for the legal practitioner. Because of the rapid evolution
of the law, inconsistencies between the statutes and regulations, and complex
rules governing filing requirements and waiver eligibility, the task can be
daunting. Fortunately, the domestic violence advocacy community has
developed a network of educational, mentoring, and referral services to guide
legal practitioners through the complexities. In addition to national
organizations available via the internet, New York attorneys are fortunate to
have access to a wide array of legal and domestic violence organizations that
offer excellent training seminars for attorneys free of charge or for a modest fee.
Information on some of these national and local organizations is attached as
Appendix A to this article.
The domestic violence advocacy network not only provides the practitioner
with the legal tools necessary to craft an effective application for relief, but also
serves as an important source of support for a process that is challenging to
client and attorney alike. It is traumatic for a woman to discuss intimate details
of abuse inflicted on her or her child, let alone submit it on a government
application, and collecting that information can be painful. For the attorney who
rises to the legal and emotional challenges, however, the results can be deeply
satisfying. The domestic violence victim who obtains a work permit, and then a
green card, takes a critical step toward self-sufficiency. With the ability to live
and work legally in the United States, the victim can support herself and her
family and, in the process, overcome her victimization.

334 Lori Cohen
Appendix A
Legal Resources for Immigrant Victims of Domestic Violence
NEW YORK CITY
Asian American Legal Defense and Education Fund (AALDEF)
99 Hudson Street, 12th floor, 10013
(212) 966-5932 (ask for Mabel Tso)
http://www.aaldef.org
AALDEF provides free legal advice, referral, advocacy, as well as limited
client representation. Please call for additional information. Languages
spoken: Cantonese, Mandarin and Hindi.
Association of the Bar of the City of New York Fund, Inc., Community
Outreach Law Program, Immigrant Women and Children Project
(212) 382-4711
The Community Outreach Law Program is located in midtown Manhattan.
After an initial telephone screening, callers are scheduled for an in-person
intake. Legal services are free, and there are no income screening
requirements. Languages spoken: Spanish, English, Korean and French.
Catholic Charities Community Services, Department of Immigration
1011 First Avenue, 12th floor, 10022, between 55th and 56th Streets
(212) 419-3700
Fees are on a sliding scale but can be waived in certain circumstances.
InMotion, Inc.
Bronx: (718) 562-8181 (call Wednesdays 10 a.m. - 2 p.m.)
Manhattan: (212) 695-3800 (call Thursdays 10 a.m. - 2 p.m.)
http://www.inmotionline.org

Representing Immigrant Victims of Domestic Violence 335
The Legal Aid Society—Domestic Violence Project
Bronx: (718) 991-4600
Brooklyn: (718) 722-3100
Harlem: (212) 426-3000
Queens: (718) 286-2450
Staten Island: (718) 273-6677
http://www.legal-aid.org/supportDocumentIndex.htm?docID=128&catid=43
The Legal Aid Society provides a range of legal services, including
immigration assistance, to victims of domestic violence. Languages:
Spanish, with interpreters available in other languages.
Main Street Legal Services, CUNY Law School (Flushing, Queens)
(718) 340-4300 (ask for the Battered Immigrant Women’s Project)
Callers who contact the office when intake is open (generally just before the
beginning of each new semester in August and December) will be given
intake appointments. Clients are served by third-year law students under a
supervising attorney.
New York Association for New Americans (NYANA)
Center for Women and Families
(888) 242-5838 (NYANA Domestic Violence Hotline)
http://www.nyana.org/women.asp
Victims who call the hotline will speak with a domestic violence counselor.
When appropriate, clients are referred for legal services. NYANA is located
in downtown Manhattan.
Northern Manhattan Improvement Corporation
(212) 822-8300 (ask for intake with the domestic violence unit)
http://www.nmic.org
The Northern Manhattan Improvement Corporation serves victims of
domestic violence who are residents of Manhattan above 155th Street or
with community ties to the Washington Heights/Inwood area.
Safe Horizon: Immigration Law Project
(718) 899-1233, ext. 129
http://www.safehorizon.org/page.php?page=legalservices

336 Lori Cohen
The office is located in Jackson Heights, Queens. New callers who contact
the office by telephone are usually scheduled for an in-person intake within
the following two to three weeks.
Sanctuary for Families, Center for Battered Women’s Legal Services
(212) 349-6009, ext. 246
http://www.sanctuaryforfamilies.org
Leave a message on the intake voicemail. Indicate a safe number to which
your call can be returned. After an initial telephone screening, callers are
scheduled for an in-person intake.
OUTSIDE NEW YORK CITY
Empire Justice Center
Albany: (518) 462-6831, nkrupski@empirejustice.org
Rochester: (588) 454-4060, mpeterson@empirejustice.org
White Plains: (914) 422-4333, nkrupski@empirejustice.org
http://www.empirejustice.org
Empire Justice is a statewide, non-profit law firm focused on poverty law,
including immigration and domestic violence. It provides direct client
representation as well as research and training, acts as an informational
clearinghouse, and provides litigation backup to local legal services programs
and community based organizations. Legal services are free for immigrant
victims of domestic violence, with no income eligibility requirement.
Hiscock Legal Aid
351 South Warren Street, Syracuse, New York 13202
(315) 422-8191, ext. 129
Toll-Free: (800) 963-5604, ext. 2 (Upstate New York Immigration Project)
http://www.hiscocklegalaid.org
Free legal services for income-eligible residents of the following counties:
Broome, Cayuga, Chemung, Chenango, Cortland, Delaware, Herkimer,
Jefferson, Lewis, Madison, Oneida, Onondaga, Oswego, Otsego, Schuyler,
Tioga, Tompkins.
In addition, please see information regarding the Upstate New York
Immigration Project, listed under the Legal Aid Society of Rochester.

Representing Immigrant Victims of Domestic Violence 337
The Legal Aid Society of Northeastern New York
55 Colvin Avenue, Albany, New York 12206
(518) 689-6300
Toll-Free: (800) 963-5604, ext. 3 (Upstate New York Immigration Project)
http://www.lasnny.org
Free legal services are available to income-eligible residents of the
following counties: Albany, Clinton, Columbia, Essex, Franklin, Fulton,
Greene, Hamilton, Montegomery, Rensselaer, Saratoga, Schenectady,
Schoharie, St.Lawrence, Warren and Washington.
In addition, please see information regarding the Upstate New York
Immigration Project, listed under the Legal Aid Society of Rochester.
The Legal Aid Society of Rochester and the
Upstate New York Immigration Project
One West Main Street, Suite 800, Rochester, New York 14614
(585) 232-4090
Toll-Free: (800) 963-5604, ext. 1 (Upstate New York Immigration Project)
http://www.lasroc.org/dom_viol.html
Serves income-eligible residents of the following counties: Allegany,
Cattaraugus, Chautauqua, Genesee, Livingston, Monroe, Niagara, Ontario,
Orleans, Seneca, Steuben, Wayne, Wyoming and Yates counties. A nominal
fee is charged.
In addition, The Legal Aid Society of Rochester administers the Upstate
New York Immigration Project, a coooperative effort with Hiscock Legal
Aid and the Legal Aid Society of Northeastern New York. Immigrant
domestic violence victims who live within the jurisdiction of any of these
three legal aid organizations may receive legal services through the Upstate
New York Immigration Project.
My Sisters’ Place
(914) 683-1333
http://www.mysistersplacny.org
My Sisters’ Place serves residents of Westchester County. After an initial
telephone screening, callers are scheduled for an in-person intake.

338 Lori Cohen
New York State Coalition Against Domestic Violence
350 New Scotland Avenue, Albany, NY 12208
(518) 482-5465
http://www.nyscadv.org
The New York State Coalition Against Domestic Violence is a statewide
membership organization whose mission is to prevent and eliminate
domestic violence. The Coalition publishes a directory of domestic violence
service providers located throughout New York State, which includes
information on the availability of services to immigrants, as well as contact
information for New York State government services.
RESOURCES FOR ATTORNEYS
American Immigration Lawyers Association (AILA)
918 F Street, NW, Washington, D.C. 20004
(202) 216-2400
http://www.aila.org
AILA is a membership organization for attorneys practicing immigration
law. Member services include access to an extensive database on a range of
immigration subjects, including VAWA and asylum, and links to a number
of other organizations that serve immigrants. In addition, AILA maintains a
list of mentor attorneys, who offer technical guidance to less experienced
attorneys at no charge.
Amnesty International USA
5 Penn Plaza, 14th floor, New York, NY 10001
(212) 807-8400
http://www.amnestyusa.org
Amnesty International is a human rights advocacy organization that maintains
extensive background material to assist in the documentation of asylum
claims. It hosts an on-line library with information on country conditions,
including gender-based issues, free of charge. Amnesty International also
issues an annual report on human rights conditions in over 150 countries,
excerpts of which are frequently included in asylum applications.

ASISTA
http://www.asistaonline.org
Representing Immigrant Victims of Domestic Violence 339
ASISTA is a collaboration between four nationally-recognized legal experts
who provide technical assistance on the intersection between immigration
and domestic violence law. The ASISTA website offers useful material on
VAWA self-petitions, T and U visas, and links to other organizations that
assist domestic violence victims. ASISTA provides free technical assistance
to organizations that receive money from the federal Office on Violence
Against Women or state STOP grants. Other attorneys and organizations
that would like access to Asista staff can do so for a contribution—contact
Asista for details.
Center for Gender and Refugee Studies (CGRS)
University of California, Hastings College of the Law
200 McAllister Street, San Francisco, CA 94102
(415) 565-4877
http://cgrs.uchastings.edu
The Center for Gender & Refugee Studies (CGRS) supports women
asylum-seekers fleeing gender-related harm. CGRC provides free training
and technical assistance to individuals representing asylum applicants. It
tracks gender asylum decisions nationwide, and maintains country
conditions research, a brief bank, and unpublished decisions. Its online
database offers extensive legal research and guidance to assist the
practitioner in preparing a gender-based asylum claim.
Equality Now
PO Box 20646, Columbus Circle Station, New York, NY 10023
Fax: 212-586-1611
info@equalitynow.org
http://www.equalitynow.org
Equality Now is a human rights organizations that works to end violence
and discrimination against women throughout the world. Advocacy and
education issues include domestic violence, female genital mutilation, rape,
and trafficking.

340 Lori Cohen
Human Rights First
333 Seventh Avenue, 13th Floor, New York, NY 10001-5108
(212) 845-5200
http://www.humanrightsfirst.org
Formerly known as the Lawyers Committee for Human Rights, Human
Rights First helps volunteer lawyers to learn about asylum law, including
gender-based claims, and to represent individual clients at an asylum
interview or a hearing before an immigration judge.
Human Rights Watch
350 Fifth Avenue, 34th floor, New York, NY 10118-3299
(212) 290-4700
http://hrw.org
Human Rights Watch monitors human rights practices throughout the globe.
Its website contains a special section on women’s issues, which provides
useful country condition research. It also offers information on trafficking.
Immigrant Legal Resources Center
1663 Mission Street, Suite 602, San Francisco, CA 94103
(415) 255-9499
http://www.ilrc.org
The ILRC is a national resource center that provides trainings and advocacy
to advance immigrant rights, including domestic violence issues. It offers
materials for purchase, including The VAWA Manual: Immigration Relief for
Abused Immigrants. The website provides information on VAWA and U
visas. ILRC also offers phone consultation and technical assistance for a fee.
National Immigration Project of the National Lawyers Guild
14 Beacon Street, Suite 102, Boston, MA 02108
(617) 227-9727
http://www.nationalimmigrationproject.org
The National Immigration Project of the National Lawyers Guild (NIP)
offers free online access to a range of VAWA policy documents and sample
forms. In addition, extensive legal research is available for purchase to non-
NIP members. Individuals who join NIP have access to an even larger library
of VAWA resources online. Membership includes unlimited technical

Representing Immigrant Victims of Domestic Violence 341
assistance by NIP attorneys via e-mail or by telephone. NIP also manages a
VAWA listserve for the latest developments on VAWA laws, including selfpetitions,
U visas, trafficking issues, and related issues. NIP members who
wish to join the VAWA listserve should send a request to Ana Manigat at
ana@nationalimmigrationproject.org. Non-members who wish to join should
contact the listserve manager, Linda Olson, at linda@asistaonline.org.
Tahirih Justice Center
6066 Leesburg Pike, Suite 220, Falls Church, VA 22041
(703) 575-0070
http://www.tahirih.org
The Tahirih Justice Center provides legal services for immigrant and
refugee women who have fled to the U.S. to seek protection from human
rights abuses. Tahirih staff attorneys are a useful resource on current
developments in gender-based asylum law.
The New York Immigration Coalition
137-139 West 25th Street, 12th Floor, New York, NY 10001
(212) 627-2227
http://www.thenyic.org
The New York Immigration Coalition (NYIC) is an umbrella policy and
advocacy organization for approximately 150 groups in New York State that
work with immigrants and refugees. NYIC offers trainings for CLE credits
to attorneys on a range of immigration issues, including VAWA relief and
gender-based asylum claims. The NYIC website offers a referral link to an
extensive list of service providers.
GOVERNMENT RESOURCES
Mayor’s Office to Combat Domestic Violence (OCDV)
New York City Domestic Violence Hotline
Toll-Free: (800) 621-HOPE (4673)
http://www.nyc.gov/html/ocdv

342 Lori Cohen
New York State Domestic Violence Hotline
Toll-Free: (800) 942-6906 (English); (800) 942-6908 (Spanish)
http://www.nyscadv.org
New York State Office for the Prevention of Domestic Violence (OPDV)
(518) 457-5800
http://www.opdv.state.ny.us
USCIS VAWA Information Line Vermont Service Center
(802) 527-4888
The VAWA Information Line provides recorded information about the
application filing process and updates on self-petitioning issues to
applicants, attorneys, service providers and others assisting battered
immigrants. It also allows callers to leave messages. While USCIS
employees will return the call, they will not discuss specific cases.
U.S. Department of State
Bureau of Democracy, Human Rights and Labor (DRL)
http://www.state.gov/g/drl/hr
DRL develops an annual report on human rights conditions throughout the
world, Country Reports on Human Rights Practices, accessible on its
website free of charge. It also provides information on country conditions to
USCIS and immigration judges in asylum cases.

Notes
Representing Immigrant Victims of Domestic Violence 343
The author would like to thank Sanctuary interns Alix Lerner and Carla
Martinez for research assistance and the compilation of Appendix A.
1. While the remedies discussed are available for domestic violence victims
of either gender, this article assumes that the victim is female and the
abuser is male.
2. See Appendix A for information on the New York City Domestic Violence
Hotline and other services available to immigrant domestic violence
victims.
3. For example, SAKHI for South Asian Women offers outreach, education
and social assistance to domestic violence victims from Bangladesh, India,
Nepal, Pakistan, Sri Lanka, and the South Asian Diaspora,
http://www.sakhi.com (accessed Aug. 12, 2006).
4. See Appendix A for a list of organizations that assist immigrant domestic
violence victims.
5. US law requires that both parents appear in person to apply for the passport
of a child under the age of 14, or the non-applying parent must execute an
affidavit giving her consent. 22 USC § 213; 22 CFR § 51.27(b). While
intended to safeguard minors from being kidnapped abroad, it does not
protect children over the age of 14 or children who carry a foreign
passport. Nor are there safeguards to ensure that an abused spouse will not
be coerced into executing the requisite affidavit.
6. For example, in Saudi Arabia, if a custody dispute arises between a foreign
citizen woman and her citizen husband, the husband is legally able to
prevent their children from leaving the country. US Department of State,
Country Conditions Report on Human Rights Practices for 2005, “Saudi
Arabia” (2006), http://www.state.gov/g/drl/rls/hrrpt/2005/61698.htm (last
updated Aug. 12, 2006).
7. The Immigration Act of 1990 first introduced a waiver for conditional
residents who were subject to battery or extreme cruelty. Immigration Act
of 1990, Pub. L. 101-649, 104 Stat. 4978 (Nov. 29, 1990). As discussed
below in the section “Removal of Conditions on Residence,” page 320, this
“battered spouse waiver” applies to a very limited category of domestic
violence victims. In response, in 1994 Congress passed the Violence
Against Women Act, which afforded protections to broader classes of
domestic violence victims. Violence Against Women Act of 1994, Pub. L.

344 Lori Cohen
No. 103-322, 108 Stat. 1796 (hereinafter “VAWA”). For an overview of the
developments of protections to battered immigrant spouses and children,
see 5 Gordon, Mailman & Yale-Loehr, Immigration Law & Procedure
§ 41.05; § 42.05[2]; § 64.04[6] (2006).
8. The Center for Gender & Refugee Studies offers an extensive database
documenting abuse of women internationally at
http://cgrs.uchastings.edu/country/memos.php (accessed Aug. 12, 2006).
In March 2006, Amnesty International launched a monthly campaign to
highlight countries where domestic violence is either permissible under
customary law (e.g., Sierra Leone and Albania) or existing laws are not
enforced (e.g., France and Russia),
http://web.amnesty.org/actforwomen/dvexposed-080306-editorial-eng
(accessed Aug. 12, 2006). The US Department of State now includes in its
annual Country Reports on Human Rights Practices a section on the status
of women and whether legal protections exist or are enforced to protect
them from domestic violence, http://www.state.gov/g/drl/rls/hrrpt/ (last
updated Aug. 12, 2006).
9. Mayor Bloomberg signed an Executive Order that the NYPD not inquire
about the immigration status of crime victims, witnesses, or others who
call or seek police assistance. Executive Order (Bloomberg) No. 41 (Sept.
17, 2003), http://www.nyc.gov/html/imm/downloads/pdf/exe_order_41.pdf
(accessed Aug. 12, 2006). This order, however, does not apply beyond the
boundaries of New York City, and anecdotal evidence within the city
suggests that it is not uniformly applied. For a more detailed discussion of
immigrant women’s fear of law enforcement, see Gail Pendleton, “Local
Police Enforcement and Its Effect on Victims of Domestic Violence,”
ABA Commission on Domestic Violence,
http://www.nationalimmigrationproject.org/DVPage/
DVSA_CLEAR_Article.doc (accessed Aug. 12, 2006).
10. The definition for “crime of domestic violence” is found in the
Immigration and Nationality Act (hereinafter “INA”) § 237(a)(2)(E)(i).
11. Section 384 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”) Div. C of Departments of
Commerce, Justice, and State, and the Judiciary Appropriations Act of
1997, Pub. L. 104-208, 110 Stat. 3009 (Sept. 30, 1996), 8 USC § 1367;
Memorandum from Paul Virtue, Acting Exec. Assoc. Comm’r, to all INS
Employees, INS File No. 96act.036, Non-Disclosure and Other
Prohibitions Relating to Battered Aliens: IIRIRA § 324 (May 5, 1997),
http://www.asistaonline.org/legalresources/policymemos/

Representing Immigrant Victims of Domestic Violence 345
384_memo_-_clean_copy.pdf (accessed September 8, 2006). Separate
provisions guard confidentiality of asylum applications. 8 CFR § 208.6;
§ 1208.6. USCIS is one of three bureaus that replaced the Immigration and
Naturalization Service (“INS”) as a result of reorganization under the
Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (Nov.
25, 2002).
12. There is no filing fee for an asylum application.
13. 8 CFR § 103.7(c). For guidance on fee waivers, see Memorandum from
William R. Yates, Assoc. Director, to Service Center Directors, CIS,
Regional Directors, CIS, District Directors, CIS, File No. HG70/5.5, Field
Guidance on Granting Fee Waivers Pursuant to 8 CFR 103.7(c) (March 4,
2004), http://uscis.gov/graphics/lawsregs/handbook/FeeWaiverGd3404.pdf
(last updated Sept. 7, 2006).
14. INA § 301 (generally); § 309 (children born out of wedlock).
15. Victims of child abuse are also eligible for relief separate from those of
their mother; however, other than in the context of VAWA cancellation,
those remedies are beyond the scope of this chapter.
16. US Department of Homeland Security, Office of Immigration Statistics,
US Legal Permanent Residents: 2005 (April 2006),
http://www.uscis.gov/graphics/shared/statistics/publications/
USLegalPermEst_5.pdf (accessed Aug. 12, 2006).
17. Form I-130. The Petition for Alien Relative, as well as other forms
discussed in this article, can be found at the USCIS website,
http://www.uscis.gov/graphics/formsfee/forms/index.htm (last updated July
31, 2006). Forms may also be ordered by calling (800) 870-3676.
18. Visa eligibility based upon “priority dates” can be checked monthly on the
US State Department’s website, http://travel.state.gov/visa/frvi/bulletin/
bulletin_2943.html (last updated Aug. 12, 2006).
19. For example, an immediate relative seeking permanent residence in New
York City can currently expect to wait about one year before obtaining a
green card, while her neighbor in Albany faces approximately a threemonth
wait. Information on application processing dates can be found at
https://egov.immigration.gov/cris/jsps/ptimes.jsp (last updated Aug. 12, 2006).
20. The Violence Against Women Act (“VAWA”) is part of the Violent Crime
Control and Law Enforcement Act of 1994, Pub. L. No. 103-322,
§ 40701-03, 108 Stat. 1796, 1902-55 (Sept. 13, 1994).

346 Lori Cohen
21. Form G-639, http://www.uscis.gov/graphics/formsfee/forms/
files/g-639.pdf (last updated Feb. 24, 2006).
22. 8 CFR §103.10(c)(1).
23. 8 CFR §103.10(c)(d)(3).
24. 5 USC § 552(a)(4)(B). For a more detailed discussion about judicial review
of FOIA requests, see 1 Gordon, Mailman & Yale-Loehr, Immigration Law
& Procedure, § 3.24[3][b][i].
25. INA § 101(a)(15)(K).
26. INA § 212(a)(6)(A); (9)(B).
27. For a state-by-state analysis regarding a spouse’s ability to obtain a birth
certificate, see http://www.nationalimmigrationproject.org/
DVPage/BirthCertificateinfo.doc (accessed Aug. 12, 2006).
28. 8 CFR § 204.1(g)(3).
29. Gail Pendleton and Ann Block, “Applications for Immigration Status
Under the Violence Against Women Act,” American Immigration Lawyers
Association, Immigration & Nationality Law Handbook (2001-02 ed.),
http://www.nationalimmigrationproject.org (accessed Sept. 9, 2006), on the
VAWA Resources link for National Immigration Project (NIP) members.
For information on joining the NIP, see Appendix A.
30. 8 CFR § 103.2(b)(2)(i). The unavailability of a document may be
confirmed by referencing the State Department’s Foreign Affairs Manual
(FAM), which lists the availability of civil documents from each country.
9 FAM Part IV, Appendix C.
31. 8 CFR § 103.2(b)(2)(iii) (VAWA self-petition); INA § 240A(b)(2)(D)
(VAWA cancellation).
32. INA § 204(a)(1)(A)(iii)(II)(aa)(BB) (USC spouse); (B)(ii)(II)(aa)(BB)
(LPR spouse); § 240A(b)(2)(A)(i)(II); see also Memorandum from
Johnny N. Williams, Exec. Assoc. Comm’r, to Regional Directors,
Deputy Exec. Assoc. Comm’r, INS File No. HQADN/70/8, Eligibility to
Self-Petition as an Intended Spouse of an Abusive US Citizen or Lawful
Permanent Resident (Aug. 21, 2002),
http://www.uscis.gov/graphics/lawsregs/handbook/VAWA82102_pub.pdf
(last updated Aug. 1, 2006).
33. INA § 216(c)(4)(C) (“Battered Spouse” waiver for conditional residents); §
204(a)(1)(A)(iii)(I)(bb), (B)(ii)(I)(bb) (VAWA self-petition);
§ 240A(b)(2)(A)(i) (VAWA Cancellation of Removal).

Representing Immigrant Victims of Domestic Violence 347
34. Conditional residence is theoretically available to immediate relatives of
lawful permanent residents as well; however, because of the current
waiting period to process family petitions for LPR relatives, it is practically
only given to spouses of US citizens.
35. Form I-751, http://www.uscis.gov/graphics/formsfee/forms/i-751.htm (last
updated May 16, 2006).
36. Conditional residence is also theoretically available to the spouses of
lawful permanent residents, but, because of the extensive waiting period, it
is essentially unavailable.
37. INA § 216(c)(4)(C); 8 CFR § 216.5(a)(1)(iii).
38. 8 CFR § 216.5(e)(3).
39. For the regulatory definition of physical battery or extreme cruelty as it
applies to waivers for conditional residents, see 8 CFR § 216.5(e)(3)(i).
40. Form I-551. The card appears identical to a Permanent Resident Card but
bears a two-year expiration date.
41. 8 CFR § 216.5(e)(3)(ii).
42. Id.
43. 8 CFR § 216.5(a)(1)(ii). A third waiver exists for individuals whose
deportation or removal would result in “extreme hardship.” 8 CFR
§ 216.5(a)(1)(i).
44. The USCIS website also posts information about filing fees, fee waivers
and form updates. Form I-751,
http://www.uscis.gov/graphics/formsfee/forms/i-751.htm (last updated May
16, 2006). Updates for filing instructions may also be obtained by calling
the USCIS National Service Center at (800) 375-5283.
45. Form G-28, which should be included with all VAWA applications filed
with USCIS, http://www.uscis.gov/graphics/formsfee/forms/g-28.htm (last
updated Jan. 28, 2006).
46. Appointments may be made through the USCIS “Infopass” system,
http://www.infopass.uscis.gov (accessed Sept. 8, 2006).
47. 8 CFR § 216.5(f).

348 Lori Cohen
48. For a more detailed discussion of the VAWA self-petition process, see Julie
Dinnerstein, “Comprehensive Guide to Violence Against Women Act
(VAWA) Self-petition for Domestic Violence Victims,” American
Immigration Lawyers Association, Immigration & Nationality Handbook
(2006-07 ed.).
49. INA § 204(a)(1)(A)(iii); (B)(ii). Children of an abusive USC or LPR parent
may self- petition independently. INA § 204(a)(1)(A)(iv); (B)(iii). In
addition, parents of abusive USC sons or daughters may self-petition.
INA § 204(a)(1)(A)(vii).
50. INA § 245(a), (c).
51. A victim may also self-petition if the batterer has lost his US citizen or
permanent resident status within the last two years in connection with an
incident of domestic violence. INA § 204(a)(1)(A)(iii)(II)(CC)(bb).
52. INA § 204(a)(1)(A)(iii); (B)(ii); Dinnerstein, “Comprehensive Guide,”
note 48.
53. INA § 204(a)(1)(A)(iii)(II)(aa)(CC)(ccc); (B)(ii)(II)(aa)(CC)(bbb).
54. INA § 204(a)(1)(A)(iii)(II)(dd); (B)(ii)(II)(dd), as amended by the Violence
Against Women Act of 2000 (enacted as div. B of Victims of Trafficking
and Violence Protection Act of 2000, Pub. L. No. 106-386, § 1501, 1503,
114 Stat. 1464, 1519) (Oct. 28, 2000). The regulations and self-petition
form, however, continue to include the joint US residence requirement,
8 CFR § 204.2(c)(1)(i)(D); (v); Form I-360.
55. INA § 204(a)(1)(A)(v), as amended by the Violence Against Women Act of
2000, Pub. L. No. 106-386, § 1503, 114 Stat. 1520 (Oct. 28, 2000). But see
8 CFR § 204.2(c)(1)(i)(C); (v); Form I-360.
56. 8 CFR § 204.2(c)(2)(v).
57. See INA § 101(f) for good moral character requirements.
58. The “look back” period for good moral character focuses on the three years
immediately preceding the filing of the self-petition, but the Service may
investigate beyond that period if there is reason to believe that she was not
of good moral character during that time. Interoffice Memorandum from
William R. Yates, Associate Director, Operations, to Paul E. Novak,
Director, Vermont Service Center, USCIS File No. HQOPRD 70/8.1/8.2,
Determinations of Good Moral Character in VAWA-Based Self-Petitions,
January 19, 2005, http://www.uscis.gov/graphics/lawsregs/
handbook/GMC_011905.pdf (accessed Sept. 8, 2006).

Representing Immigrant Victims of Domestic Violence 349
59. Id. at 3 and Attachment 1, http://www.uscis.gov/graphics/lawsregs/
handbook/GMC_chart.pdf (accessed Sept. 8, 2006).
60. For a more detailed discussion on the impact of criminal acts on VAWA
eligibility, see Ann Benson, Overview of Immigration Consequences of
Criminal Conduct for Immigrant Survivors of Domestic Violence
(Washington Defender Association 2004), on the VAWA Resources link for
NIP members, http://www.nationalimmigrationproject.org (accessed Sept.
8, 2006).
61. Form I-360, http://www.uscis.gov/graphics/formsfee/forms/i-360.htm
(accessed August 15, 2006).
62. Violence Against Women Act of 2000, Pub. L. No. 106-386, §§ 1501-13,
114 Stat. 1464, 1518) (Oct. 28, 2000).
63. For a more detailed guide to the inclusion of children as “derivative” of
their mother’s adjustment application, see Levre Gillis, Obtaining Legal
Permanent Residence for Derivatives,
http://www.nationalimmigrationproject.org (accessed Aug.13, 2006), on the
VAWA Resources link for NIP members.
64. Interim Rule Implementing the Self-Petitioning Provisions and Instructions
for Processing Self-Petitions, at 2-3, attached to Memorandum from T.
Alexander Aleinikoff, INS Exec. Assoc. Comm’r, to all INS offices, File
No. HQ 204-P, Implementation of Crime Bill Self-Petitioning for Abused or
Battered Spouses or Children of US Citizens or Lawful Permanent
Residents (April 16, 1996), on the VAWA Resources link for NIP members,
http://www.nationalimmigrationproject.org (accessed Aug. 13, 2006).
65. Attorneys can track the status of their clients’ cases on-line through the
USCIS website. For instructions, see
https://egov.immigration.gov/cris/jsps/index.jsp (accessed August 15, 2006).
66. If the permanent resident spouse or parent naturalizes while the selfpetitioner
is waiting for her priority date to become current, she may seek
adjustment of status. INA § 204(a)(1)(B)(v)(II).
67. For guidance on renewals of deferred action and employment
authorization, see Memorandum from Michael D. Cronin, Acting Exec.
Assoc. Comm’r, to the Vermont Service Center, File No. HQ/ADN/70/6.1P,
Deferred Action Determinations for Self-petitioning Battered Spouses and
Children (Sept. 8, 2000); and Memorandum from Michael D. Cronin,
Acting Assoc. Comm’r, to All Regional Directors, Deferred Action for Self-

350 Lori Cohen
petitioning Battered Spouses and Children with Approved I-360 Petitions
(Dec. 22, 1998), on the VAWA Resources link for NIP members,
http://www.nationalimmigrationproject.org (accessed Aug. 14, 2006).
68. As with the VAWA self-petition, an exception exists where the domestic
violence victim is also a victim of bigamy. INA § 240A(b)(2)(A)(i)(III).
69. INA § 240A(b)(2).
70. For a Board of Immigration Appeals analysis of “extreme cruelty” to a
child where the mother had suffered extensive physical abuse by the
permanent resident father, see BIA Decision on Extreme Cruelty (to
Children), November 2001, http://www.nationalimmigrationproject.org
(accessed August 15, 2006), on the VAWA Resources link for NIP
members.
71. INA § 240A(b)(2)(A)(i).
72. For a discussion of strategies when a potential VAWA cancellation
applicant faces criminal bars to admissibility, see 5 Gordon, Mailman &
Yale-Loehr, Immigration Law & Procedure § 64.04[6][b][iii].
73. 8 CFR § 1240.58(c). See also, Memorandum from Paul Virtue, INS General
Counsel, to Terrance O’Reilly, Director, Administrative Appeals Office, File
No. HQ 90/15-P, HQ 70/8-P, “Extreme Hardship” and Documentary
Requirements Involving Battered Spouses and Children (Oct. 16, 1998),
reproduced in 76 Interpreter Releases 162 (Jan. 25, 1999), on the VAWA
Resources link for NIP members, http://www.nationalimmigrationproject.org
(accessed August 15, 2006).
74. Form EOIR 42B, http://www.usdoj.gov/eoir/eoirforms/instru42b.htm
(accessed August 15, 2006).
75. INA § 240A(b)(4). See also 5 Gordon, Mailman & Yale-Loehr,
Immigration Law & Procedure § 64.04[6][c][ii].
76. For a more detailed discussion of the T and U visa remedies under the
VTVPA, see Gail Pendleton, “Relief for Domestic Violence Survivors and
for Victims of Crimes: Update on VAWA 2000, Trafficking and U Visas,”
http://www.asistaonline.org/legalresources/U_Visa/
U-Visa_Update_on_VAWA_2000.pdf (accessed on August 14, 2006).
77. Victims of Trafficking and Violence Protection Act of 2000, Pub. L.
106-386, 114 Stat. 1464 (Oct. 28, 2000). For a more detailed discussion of
T Visas, see Gail Pendleton, “Relief for Trafficking Victims” in American

Representing Immigrant Victims of Domestic Violence 351
Immigration Lawyers Association, Immigration & Nationality Law
Handbook (2002-03 ed.), http://www.asistaonline.org/legalresources/
T_Visa/TVisa.html (accessed Aug. 14, 2006).
78. VTVPA § 103(8), on the VAWA Resources link for NIP members,
http://www.nationalimmigrationproject.org (accessed Aug. 14, 2006).
79. INA § 212(d)(13).
80. INA § 245(l). As of the date of this article, regulations governing
adjustment of status for T visa holders have not been issued.
81. Form I-914, http://www.uscis.gov/graphics/formsfee/forms/i-914.htm (last
modified Jan. 20, 2006).
82. INA § 101(a)(15)(T)(i).
83. INA § 101(a)(15)(T)(ii).
84. INA § 245(l)(1).
85. For a more detailed discussion of U visas, see William Yates, Assoc. Dir.
Of Operations, Memorandum to Director, Vermont Service Center,
Centralization of Interim Relief for U Nonimmigrant Status Applicants
(Oct. 8, 2003), http://www.asistaonline.org/legalresources/policymemos/
UCntrl100803.pdf (accessed Aug. 14, 2006); Sally Kinoshita, How to
Obtain U Interim Relief, A Brief Manual for Advocates Assisting
Immigrant Victims of Crime (Immigrant Legal Resources Center: 2006),
http://www.ilrc.org (accessed Sept. 10, 2006); Gail Pendleton, U Visas for
Victims of Crimes as of March 6, 2006, http://www.asistaonline.org/
legalresources/U_Visa/U_Visa_Summary_2006.pdf (accessed Aug. 14, 2006).
86. INA § 101(a)(15)(U)(i).
87. INA § 101(a)(15)(U)(ii).
88. INA § 101(a)(15)(U)(iii).
89. The NIP offers instructions for completing a U interim relief application and
a sample, http://www.nationalimmigrationproject.org/DVPage/
Instructions_for_Completing_U_Certification.doc (accessed Aug. 14, 2006).
90. INA § 214(p)(1).

352 Lori Cohen
91. Michael Aytes /s/ by Janis Sposato, Acting Assoc. Director, Domestic
Operations, to Director, Vermont Service Center, File No. HQPRD 70/6.2,
Applications for U Nonimmigrant Status (Jan. 6, 2006),
http://www.asistaonline.org/legalresources/policymemos/
Unonimms010606.pdf (accessed Aug. 14, 2006).
92. INA § 212(d)(14).
93. INA § 101(a)(42)(A); § 208 (b)(1)(A); INS v Elias-Zacarias, 502 US 478,
481 (1992).
94. INS v Cardoza-Fonseca, 480 US 421, 440 (1987).
95. Matter of Acosta, 19 I&N Dec. 211, 233-34 (BIA 1985), modified on other
grounds, Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987); Matter of
C-A-, 23 I&N Dec. 951 (BIA 2006) (social visibility of group an important
consideration).
96. Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996) (female genital
mutilation); Gao v Gonzales, 440 F3d 62, 66-70 (2d Cir. 2006) (forced
marriage in China). For unpublished grants of asylum to women fleeing
honor killing and prostitution, see Center for Gender and Refugee Studies,
http://cgrs.uchastings.edu/law/index.php (accessed August 15, 2006).
Unpublished grants, while persuasive in some instances, do not have
precedential value. At least one court has rejected classifying “young,
attractive women” at risk for prostitution as a social group for asylum
purposes, Rreshpja v Gonzales, 420 F3d 551 (6th Cir 2005), and a
practitioner submitting an application on these grounds should consult a
mentor experienced in gender-based asylum law.
97. Matter of S-A, 22 I&N Dec. 1328 (BIA 2002) (woman with liberal Muslim
beliefs who suffered abuse at the hands of her father); Ali v Ashcroft, 394
F3d 780 (9th Cir 2005) (rape on account of social group membership in a
clan and political opinion), Safaie v INS, 25 F3d 636 (8th Cir 1994)
(opposition to the Iranian government may be both political opinion and
particular social group).
98. Matter of R-A-, 22 I&N Dec. 906 (AG 2001; BIA 1999), remanded by AG,
23 I&N Dec. 694 (AG 2005).
99. Id. at 917.
100. 65 Fed. Reg. 76588 (Dec. 7, 2000).

Representing Immigrant Victims of Domestic Violence 353
101. Order No. 2379-2001 of Attorney General Janet Reno, In re: Rodi
Alvarado (Jan. 19, 2001), reprinted in Matter of R-A-, 22 I&N Dec. 906
(A.G. 2001; BIA 1999).
102. For a summary of the procedural history of Matter of R-A-, see Joe
Whitley, General Counsel, US Dept. Homeland Security, File No. A73 753
922, Dept. of Homeland Security’s Position on Respondent’s Eligibility for
Relief, 7-8 (Feb. 19, 2004) (hereinafter “DHS 2/19/04 Brief”),
http://cgrs.uchastings.edu/documents/legal/dhs_brief_ra.pdf (accessed
August 15, 2006).
103. In re R-A-, 23 I&N Dec. 694 (AG 2005).
104. Form I-589, http://www.uscis.gov/graphics/formsfee/forms/i-589.htm.
105. Id.
106. Memo from Phyllis Coven, Office of International Affairs, INS, to all INS
Asylum Office/rs, HQASM Coordinators, Considerations for Asylum
Officers Adjudicating Asylum Claims from Women (May 26, 1995),
http://cgrs.uchastings.edu/documents/legal/guidelines_us.pdf (accessed
August 15, 2006).
107. 8 CFR § 208.7(a)(1).
108. INA § 209, 8 CFR § 209.2.
109. Form I-730, Petition for Refugee/Asylee, http://www.uscis.gov/graphics/
formsfee/forms/files/I-730.htm (modified 9/29/06).
110. 8 CFR § 1003.1(b).
111. INA § 242(a)(1).
112. INA § 208(a)(2)(B). For the government’s analysis of the one-year filing
provisions, see INS, Asylum Officer Basic Training Course, One-Year
Filing Deadline (2001), http://www.asylumlaw.org/docs/united_states/
asylum_officer_training_oneyear_112001.pdf (accessed September 6,
2006).
113. INA § 208(a)(2)(D); 8 CFR § 208.4(a)(4), (5); § 1208.4 (a)(4), (5).
114. INA § 241(b)(3).
115. Cardoza-Fonseca, 480 US at 423; INS v Stevic, 467 US 407 (1984).
116. Cardoza-Fonseca, 480 US at 428-29.

354 Lori Cohen
117. INS v Aguirre-Aguirre, 526 US 415, 419-20 (1999); Osorio v INS, 18 F3d
1017, 1021 (2d Cir. 1994); INA § 241(b)(3)(B).
118. INA § 208(a)(2)(B); 8 CFR § 208.4(a); § 1208.4(a).
119. 8 CFR § 208.3(b); § 1208.3(b).
120. 8 CFR § 208.16(a); § 1208.16(a) (Asylum officer may not decide
withholding claim.)
121. INA § 241(b)(3)(B).
122. 8 CFR §§ 208.16, 208.17; §§ 1208.16, 1208.17. For a more detailed
discussion of relief under the Convention Against Torture, see 3 Gordon,
Mailman & Yale-Loehr, Immigration Law & Procedure, § 33.10; § 34.07.
123. 8 CFR § 208.18(a), § 1208.18(a) (definition of “torture” under CAT);
Zubeda v Ashcroft, 333 F3d 463 (3rd Cir 2003) (rape); Tunis v Gonzalez,
447 F3d 547 (7th Cir. 2006) (female genital mutilation).
124. Eduard v Ashcroft, 379 F3d 182, 195-96 (5th Cir. 2004); 8 CFR
§ 208.18(b), § 1208.18(b).

Helping Immigrant Victims of
Domestic Violence Access Federal
and State Public Benefits
Victims of domestic violence who are also noncitizens face special constraints on
their ability to leave their abusers. For those whose immigration status is
uncertain, there is the constant fear that immigration officials will discover their
presence and deport them, perhaps forcing them to leave their US-born children
behind in the hands of their abusive spouses. Language barriers, economic
dependence on the abuser, and fear of the very law enforcement services they must
turn to for help strengthen the hold abusers have over their noncitizen spouses.
Adding to these difficulties are the complicated immigrant eligibility rules of
the benefit programs that are so critical to a victim’s ability to escape the abusive
household. These rules, largely by their sheer complexity, erect what often appear
to be insurmountable barriers to the achievement of economic independence.
In fact, there are special eligibility rules for victims of domestic violence
without legal immigration status but who are married to a US citizen or lawful
permanent resident (LPR). These victims have access to benefits that would not
otherwise be available to undocumented noncitizens. Nevertheless, these rules
are often poorly understood and inadequately implemented by the very agencies
whose responsibility it is to provide the benefits. 1 It is therefore critical that
lawyers and advocates providing assistance to immigrant victims of domestic
violence understand these rules sufficiently to assure that their clients receive
the benefits to which they are entitled and which are critical to their clients’
ability to leave their abusers.
Immigrant Benefits Eligibility Rules in General
by Barbara Weiner
In 1996, Congress passed welfare reform legislation, the Personal
Responsibility and Work Opportunity Reconciliation Act, which sharply
20

356 Barbara Weiner
curtailed the eligibility of immigrants for public benefits. A new benefits-related
immigrant eligibility category was created, that of “qualified alien” (“qualified
immigrant”). This is not itself an immigration status but rather encompasses a
list of immigration statuses. A noncitizen must be in one of these statuses to be
considered eligible for public benefits. Included in the qualified immigrant
category are:
lawful permanent residents (LPR or “green card” holders);
humanitarian-based immigrants (refugees, asylees,
Amerasians, Cuban/Hatian entrants, and persons granted
withholding of deportation);
public interest parolees who have been granted entry to the US
for a period of at least a year; and
an immigrant spouse or child of a US citizen or lawful
permanent resident who has been battered or subjected to
extreme cruelty and who has filed or is the beneficiary of a
family-based immigration petition that is pending or has been
approved. 2
In order to be eligible for means-tested federal benefits, PRWORA required
that qualified immigrants meet additional requirements. What those requirements
are depends in part upon the particular program and which immigration status the
person holds. The federal means-tested benefit programs include four major
assistance programs:
the Supplemental Security Income (SSI) program, the
federal income assistance program for indigent elderly and
disabled persons;
Temporary Assistance to Families (TANF), the federal cash
assistance program for families with children;
the Food Stamp Program, nutritional assistance for
households with net income at or below the federal poverty
level; and
the Medicaid and Child Health Plus program, the federal
and state cooperatively funded program to provide medical
assistance to low income persons.
A general rule in all these programs is that qualified immigrants (with the
exception of humanitarian-based immigrants) who arrive in the US after August
of 1996 must reside in the US in a qualified status for five years before they will
be considered eligible for a federal means-tested benefit program (known as the

Helping Immigrant Victims Access Federal and State Public Benefits 357
five year bar). 3 In addition, since December of 1997, relatives who sponsor
immigrants to come to the US must file legally enforceable affidavits of
support. These affidavits advise the sponsors that they may be required to
reimburse a state or local social services agency for the benefits provided by the
agency to the sponsored immigrant. The period of sponsor liability runs from
the time the immigrant is granted permanent residence status until he or she
becomes a citizen or can be credited with a substantial work record under the
Social Security Act (40 qualifying quarters). 4
Restrictions on the access of elderly or disabled immigrants to the SSI
program are particularly severe. SSI benefits are virtually unavailable to
immigrants who arrive in the United States after August of 1996 unless they
become citizens or can be credited with 40 qualifying work quarters. 5 One
exception is the humanitarian-based immigrant category. 6 However, even these
immigrants are only eligible for SSI within the first seven years. To continue to
receive SSI after the first seven years, they must have naturalized or accumulated
a significant work history.
For other federal means-tested programs — food stamps, cash assistance,
and medical assistance — those in a qualified immigrant status who entered the
country after August of 1996 must generally wait five years before becoming
eligible for benefits. Immigrants in the humanitarian-based categories are
exempt from the five year bar. In addition, qualified immigrants who are under
eighteen years old or who are disabled are exempt from the five year bar in the
food stamp program.
In New York State, with the exception of the federal food stamp program
for which there is no longer a state replacement program, the five year bar in the
federal means-tested programs has minimal effect because there is no such bar
in the state-funded welfare assistance program, the Safety Net program, and the
state-funded Medicaid program. 7
The “Battered Qualified Immigrant” Eligibility Category
PRWORA created a special immigrant-eligibility category for spouses and
children of US citizens and lawful permanent residents who have been “battered
or subjected to extreme cruelty.” Unlike most other immigrants, they are not
required to attain permanent resident status before becoming eligible for benefits.
Instead, they are eligible for benefits as soon as they are in the process of
obtaining permanent status on their own behalf. The ability of immigrant victims

358 Barbara Weiner
of domestic violence to petition for permanent residence on their own behalf was
provided by Congress in the 1994 Violence Against Women Act (VAWA).
To be classified as a qualified immigrant for benefits purposes, the battered
immigrant must show:
1. That a family-based petition (I-130) has been filed on her
behalf by her US citizen or LPR spouse and has been
approved or is pending; OR
2. That she has filed a self-petition (I-360) on her own behalf
that is pending or has been approved; 8 OR
3. That she has filed an application for suspension of deportation
or cancellation of removal based on the battery or abuse by
her US citizen or LPR spouse that is pending or has been
approved; AND
4. That the she has been battered or subjected to extreme cruelty;
AND
5. That her need for benefits is substantially connected to the
battery or extreme cruelty; AND
6. That she no longer resides in the same household as the abuser.
Immigration Status Related Requirements
The first step in the application process is for the battered immigrant to
provide evidence to the benefits agency that an immigration petition has been
filed with the United States Citizenship and Immigration Service (USCIS)
showing that she is the spouse of a US citizen or lawful permanent resident, that
she entered the marriage in good faith, and that she is a person of good moral
character. This requirement may be met either by providing evidence to the
agency that a family-based petition (Form I-130) was filed on her behalf by her
abuser spouse or by showing that she has filed a battered spouse self-petition
(Form I-360). 9
Immigration Documents That Prove an I-130 Petition is Pending or
Has Been Approved:
A major barrier to the provision of benefits to qualified battered immigrants
has been the failure of local social services districts to fully understand the
immigration related requirements of the battered qualified immigrant category. 10
Agencies often fail to recognize that an immigrant who is the beneficiary of an

Helping Immigrant Victims Access Federal and State Public Benefits 359
I-130 family-based petition who provides evidence to the benefits agency that
she has been battered or abused is a qualified immigrant for benefits purposes.
To document that the immigrant is the beneficiary of a pending11 or approved
I-130 petition, any of the following immigration documents should be sufficient:
1. an I-797 Notice of Action indicating receipt or approval of an
I-130 Petition for an Alien Relative, naming the immigrant as
the beneficiary; or
2. any document, even if it is expired, that shows that the
immigrant has been granted an immigration benefit or status
that is based upon a pending or approved I-130 petition. 12
Conditional residence status also is proof that an I-130 petition has been
filed. In fact, it is proof that the petition has been approved. Conditional
residence status is granted to an immigrant spouse of a USC if the marriage is
less than two years old at the time of the permanent resident interview. 13 An
immigrant who is a conditional resident is treated as a permanent resident for
two years. Failure to file a joint petition with the USC spouse to remove the
condition ends the conditional status. A battered immigrant is eligible to file a
petition on her own behalf to remove the condition and make her status
permanent, but even before she does that, she should be treated as a qualified
immigrant by the social services district. 14
Immigration Documents That Show an I-360 is Pending or Has
Been Approved:
Local social services districts appear to have less trouble recognizing the
types of immigration documents that entitle a battered immigrant to qualified
status when the documents the applicant provides relate to a self-petition
(I-360). In contrast to the I-130 family-based petition, USCIS issues a notice
upon receiving the I-360 and the supporting documents as soon as it determines
that the immigrant has made out a prima facie case for approval of the petition.
This notice is often referred to as the prima facie notice but its full title is
“Notice of Establishment of a Prima Facie Case.” A battered immigrant with
such a notice is considered a qualified immigrant.
Although the prima facie determination expires (usually after 150 days), it
is renewable until a final decision on the petition is made by USCIS. The
application for benefits of an immigrant who presents an expired prima facie
notice to the local social services district must be processed and the applicant
given thirty days to provide proof that she has applied for an extension. 15

360 Barbara Weiner
If the I-360 petition is approved, USCIS issues an “Approval Notice.” Both
a prima facie notice and an approval notice constitute proof not only of the
required immigration status but also that the individual is a victim of domestic
violence. An immigrant with a prima facie notice or an approved I-360 is not
required to provide the benefits agency with evidence that she has been battered
or subjected to extreme cruelty to establish her eligibility for assistance.
Evidence that the Immigrant is a Victim of Battery or Abuse
Battered immigrants who provide the social services district with evidence
that an I-130 has been filed on their behalf that is pending or has been
approved must have a determination made by the benefits agency that she is a
victim of battery or extreme cruelty in order to be considered a qualified
immigrant. This determination is made by the local social services district’s
Domestic Violence Liaison (DVL). 16 Similarly, an individual who provides
proof that her I-360 has been filed with USCIS but who has not yet received a
prima facie determination must also be referred to the DVL for a credibility
determination. 17 Finally, battered immigrants who have no immigration
documents they can provide to the agency but who file a statement saying they
are the spouse of a US citizen or lawful permanent resident and have been
battered or abused must also be referred to the DVL. If the DVL determines the
immigrant is a victim of domestic violence, the local district is authorized to
provide assistance to meet her immediate needs. However, to receive ongoing
assistance, she must return to the agency within 30 days with proof that an I-
360 self-petition has been filed with USCIS. 18
No Longer Lives with Abuser and Substantial Connection Between
Abuse and Need for Benefits
The final condition that must be met by the battered immigrant to be
classified as a qualified immigrant is that she no longer lives in the same
household as the abuser and that her need for benefits is substantially connected to
the abuse. 19 The eligibility worker rather than the DVL makes this determination.
Proof of separate residence can be provided by Orders of Protection
requiring the abuser to stay away from the immigrant, by employment records,
school records, medical records or domestic violence shelter records. To
demonstrate that the need for benefits is substantially connected to the abuse,
the immigrant can show, for example, that the benefits are necessary to enable
her to become self-sufficient or to enable her to escape the abuse or to make up
for the loss of financial support from the abuser or to ensure her safety.

Helping Immigrant Victims Access Federal and State Public Benefits 361
Concerns About “Public Charge”
That an immigrant is or may become dependent on the government for
subsistence, i.e., a “public charge,” can be a ground for denying an immigrant
permanent resident status. Many immigrants hesitate to seek benefits for fear
that accepting public benefits will hurt their chances of becoming a permanent
resident remaining in the US, or becoming a citizen. These concerns are often
without justification.
The use of benefits is rarely, if ever, a ground for deportation and it is never
a ground to deny a lawful permanent resident’s application for citizenship.
Furthermore, it is not the receipt of any public benefit but only the receipt of
welfare benefits or long term institutional care funded by Medicaid that raises
potential public charge concerns. Importantly, battered immigrants whose
adjustment is based on an approved I-360 self-petition are exempt from the
public charge ground of inadmissibility. 20
Permanently Residing Under Color of Law (PRUCOL)
Unlike the federal government, New York provides welfare and medical
assistance benefits to immigrants who, though not meeting the conditions
necessary for treatment as a qualified immigrant, can show that they are
“permanently residing in the US under color of law” (PRUCOL). New York
preserved PRUCOL eligibility for its cash assistance program, the Safety Net
program, in its 1997 welfare reform amendments to the Social Services Law. 21
In addition, a unanimous decision by the Court of Appeals in June of 2001
required the State to provide PRUCOL immigrants with access to the State’s
Medicaid program. 22
Immigrants are considered PRUCOL if they are residing in the US with the
knowledge and permission or acquiescence of USCIS. There are no hard and fast
rules about who should be considered PRUCOL. In fact, the Office of Temporary
and Disability Assistance that administers the State’s welfare programs and the
Department of Health that administers the medical assistance programs have
expressed differences in their interpretation of PRUCOL. The Department of
Health has issued the most complete and inclusive policy on the question of who
is PRUCOL. 23 Those representing immigrants who do not have a qualified
immigrant status but who have made some contact with USCIS should consult
DOH policy to evaluate whether a client’s status can be considered PRUCOL.

362 Barbara Weiner
One clear PRUCOL status related to immigrant victims of domestic
violence is a holder of a U visa, made available by Congress to crime victims
cooperating with law enforcement authorities. Because the U visa regulations
have not yet been issued, applicants for the visa are granted Deferred Action if
they make out a credible case that they are victims of a crime, including the
crime of domestic violence, and have been cooperating with the investigation or
prosecution of the crime. Deferred Action is a PRUCOL status, giving the crime
victim access to both the Safety Net and Medicaid programs.
The Benefits Rights of Undocumented Immigrants and
Their Families
Certain benefit programs are available to all immigrants, regardless of their
status. These programs include:
emergency Medicaid
medical assistance for children (CHIP)
Child and Adult Protective Services
Aids Drug Assistance Program (ADAP)
nutritional assistance under WIC
Prenatal Care Assistance Program (PCAP)
emergency shelter, 24 food pantries, and soup kitchens
In addition, immigrants without status have the right to file an application
for benefits on behalf of family members, including their children, who do have
an eligible immigration status or who are US citizens. The Office of Temporary
and Disability Assistance has instructed local districts that if an immigrant
without eligible status files an application for welfare assistance or food stamps
on behalf of US citizen or eligible immigrant household members, the local
district must process the application. 25
Finally, one frequent concern of undocumented immigrants in applying for
benefits, even if they are applying only on behalf of other household members,
is that the agency may report their presence to immigration authorities if they
are unable to provide adequate documentation of legal residence. However, both
OTDA and the US Department of Justice have advised agencies administering
benefit programs that they have no duty to report an applicant for benefits to
immigration authorities absent evidence submitted to the agency by the

Helping Immigrant Victims Access Federal and State Public Benefits 363
applicant that the immigration service has found the individual to be unlawfully
residing in the US. The evidence would basically have to be a non-appealable
Order of Deportation, since anything less than that is not proof of a finding by
immigration authorities that an individual is unlawfully in the US. 26 In all other
cases, including where the immigrant cannot provide any documentation
showing legal residence, the information provided to the eligibility worker in
the context of an application for benefits should be protected by the privacy and
confidentiality rules of the social services law.

364 Barbara Weiner
Notes
1. The systemic failure of the Human Resources Administration to correctly
determine the public benefits eligibility of immigrant victims of domestic
violence is the subject of litigation entitled MKB, et al. v Eggleston, et al.
05 Civ. 10446 (JSR), currently before the US District Court, Southern
District of New York, on a motion for preliminary relief. The litigation has
already forced both New York and New York City to issue policy
clarifications, undertake additional training and to revise various systems to
ensure that benefits eligibility determinations with respect to battered
immigrants are correctly made.
Plaintiffs in MKB, et al. v Eggleston, et al. are represented by the New
York Legal Aid Society, Scott Rosenberg and Jennifer Baum, Of Counsel;
The New York Legal Assistance Group, Jane Stevens and Caroline Hickey,
Of Counsel; Hughes Hubbard & Reed, Ronald Abrams and Russell Jacobs,
Of Counsel; and The Empire Justice Center, Barbara Weiner, Of Counsel.
2. Immigrants whose children (or parents) have been abused by a US citizen
or LPR parent (or spouse) are also eligible to be treated as qualified
immigrants for benefits purposes as long as they are the beneficiary of a
family-based immigration petition that is pending or has been approved.
8 USC § 1641(b) and (c).
3. See 8 USC § 1613.
4. See 8 USC § 1183a.
5. See 8 USC § 1612(a)(2).
6. Also exempted from these restrictions as well as the five year bar in all the
other federal means-tested benefit programs are active duty service
members and their dependents and honorably discharged veterans and their
dependents.
7. Safety Net and state Medicaid are accessible not only to qualified
immigrants but to persons “permanently residing under color of law”
(PRUCOL).
8. A child who has been battered by his or her US citizen or LPR parent may
also qualify for benefits if a I-130 petition or I-360 self-petition is pending
or has been approved. Children listed on the I-130 petitions or I-360 selfpetitions
of their immigrant parent may also qualify for benefits as
derivatives. See 8 USC 1641(c).

Helping Immigrant Victims Access Federal and State Public Benefits 365
9. See 8 USC 1641(c). A battered immigrant in removal (deportation)
proceedings who provides evidence to the benefits agency that the
Immigration Court has granted her cancellation of removal or, if the
proceeding is still pending, has found her application for cancellation to
make out a prima facie case for relief, also satisfies the immigration related
requirements of the qualified immigrant classification.
10. Recently, largely in response to the MKB litigation, the New York Office of
Temporary and Disability Assistance (OTDA) has issued a revised policy
and alien desk guide that set forth a complete list of the various
circumstances under which a battered immigrant is to be treated as a
“qualified immigrant” for benefits purposes. See OTDA Informational
Letter, Revised 06 INF-14, Battered Aliens Eligibility for Benefits, May 5,
2006 and OTDA Informational Letter, 06 INF-23, Alien Eligibility Desk
Aid, June 26, 2006, http://www.otda.state.ny.us/directives/2006/default.htm.
11. Where the battered immigrant provides a document that shows only that an
I-130 has been filed, the social services district is instructed to verify
through the SAVE system that the I-130 is still pending and has not been
denied. If the inquiry reveals that the I-130 has been denied, which is often
the case when the abuser spouse fails to file all the required documentation
in support of the petition, the applicant must return to the local district with
evidence that she has filed an I-360 self-petition in order to be treated as a
qualified immigrant. See Revised 06 INF-14, Section B.2.
12. These documents include:
(a) a K3 or K4 visa, which is issued to the spouse or child of a USC who is
awaiting the processing for his/her application for permanent residence (the
visa is usually attached to the immigrant’s passport);
(b) V1, V2 or V3 visas, which are issued to the spouse and derivative
children of an LPR who filed an I-130 on their behalf on or before
December of 2000;
(c) an I-94 Arrival/Departure record annotated K3, K4, V1, V2 or V3 (this
may also be stapled to the immigrant’s passport or is sometimes separate), or
(d) an employment authorization document (EAD) with the code (a)(9),
which signifies the holder was granted a K3/K4 visa, or (a)(15), which
signifies the holder was granted one of the V visas.

366 Barbara Weiner
13. The immigration documents of a conditional resident will be annotated
with a code CR-1 or-2 or CR-6 or -7. Documents that provide evidence of
conditional resident status include a permanent resident card with a two
year expiration date, an I-94 annotated with the CR-1,-2,-6 or -7 code, an
EAD similarly annotated or an I-551 stamp in a passport.
14. OTDA instructs the local districts that someone with documents indicating
an expired conditional residence status would have to provide evidence of
filing her own petition to remove the condition (Form I-751) under a
battered spouse waiver or that she filed an I-360 in order to continue to
receive benefits as a qualified immigrant. See Revised 06INF-14 at B.5.
Although there appears to be no authority for the imposition of this
requirement, since the approved I-130 that is the basis of the conditional
resident status is not revoked by the termination of that status, the
immigrant should file either the I-360 or I-751 in any case, simply in order
to legalize her status.
15. See Revised 06 INF-14.
16. This determination is made by the DVL pursuant to the guidelines set out
in 98 ADM-3. See Revised 06 INF-14.
17. See Revised 06 INF-14.
18. Id.
19. 8 USC § 1641(c); see also Revised 06 INF-14.
20. 8 USC § 1182(a)(4)(C).
21. See New York Social Services Law (SSL) § 122.
22. Aliessa v Novello, 96 NY2d 418 [2001]. For a fuller description of
PRUCOL eligibility, see Department of Health, Administrative Directive
04 OMM/ADM-7, Citizenship and Alien Status Requirements for the
Medicaid Program, October 26, 2004.
23. See above.
24. Although this is generally not the case in New York City, shelters in the
rest of the state, including domestic violence shelters, often have
difficulties obtaining reimbursement from the local social services district
for homeless immigrants and immigrant victims of domestic violence who
do not have an immigration status, either as a qualified immigrant or a
PRUCOL immigrant, that would make them eligible for welfare. This is
because New York primarily reimburses shelter providers through its
public assistance programs.

Helping Immigrant Victims Access Federal and State Public Benefits 367
25. See OTDA Informational Letter 01 INF-9, Application Access for Non-
Citizens: Temporary Assistance and Food Stamps, March 26, 2001.
26. For the State’s guidance, see OTDA Informational Letter 99 INF-17,
September 29, 1999, Reporting of Aliens Known to be Unlawfully in the
United States; the federal guidance is at 65 Fed.Reg. 58301, et seq.,
Responsibility of Certain Entities To Notify the Immigration and
Naturalization Service of Any Alien Who the Entity ‘Knows’ Is Not
Lawfully Present in the United States, September 28, 2000.

21
From Sex Trafficking to FGM:
Emerging Issues Confronting Advocates for
Immigrant Battered Women
by Dorchen A. Leidholdt
Like other domestic violence victims, immigrant battered women have often
been subjected to multiple forms of violence and exploitation, from rape
and workplace sexual harassment to child sexual abuse. Lawyers representing
battered women who have endured other forms of gender-based violence must
be aware that these experiences of abuse often intensify the victim’s trauma and
may require referrals to specialized social service and health care providers as
well as to other legal professionals. Advocates for immigrant women may find
this situation particularly daunting. Because the violence may have taken place
in a different culture, in a form with which you are unfamiliar, your client may
have urgent needs that you are unaware of and rights that, as a consequence, are
never vindicated. Some of these forms of violence, like trafficking in persons
and exploitation in internet marriages, are more common in the cases of clients
from industrialized societies. Other types of violence, such as child marriage
and female genital mutilation, are more frequent in the cases of victims from
traditional cultures.
This article will explore several prevalent forms of gender-based violence
and exploitation with which lawyers representing immigrant domestic violence
victims should be acquainted. Awareness of them will not only enable you to
understand better your client’s experience and make appropriate referrals; it may
also strengthen her immediate legal case and enable you to pursue all available
legal strategies that will further her safety and stability.

370 Dorchen A. Leidholdt
Trafficking and Prostitution
You may learn that your client was subjected to trafficking and/or prostitution.
Trafficking in persons, in essence, is the reduction of human beings to commodities
bought and sold for sexual exploitation or forced labor. 1 While both sex
trafficking and labor trafficking are severe human rights violations, the former,
which typically involves rapes by multiple strangers on a daily basis, often for
years, is the most prevalent form of trafficking and the most devastating to
victims’ physical and mental health. Most victims of trafficking — the US
government estimates more than 80% — are women and girls. 2 For trafficked
women and girls labor trafficking may become sex trafficking: domestic
workers are often sexually exploited and abused by their male employers.
Many sex trafficking victims are recruited through fraudulent offers of
legitimate work as nannies or receptionists, and then forced into prostitution
through debt bondage and threats of violence. Traffickers often confiscate their
victims’ passports and other documents in order to solidify their control. Other
victims are driven into sex trafficking, not through fraud or coercion by a trafficker,
but as the result of pressure to provide income to their impoverished families or
an attempt to escape an abusive family member, usually a sexually abusive male
relative or battering spouse. Some trafficking victims are sold into sex slavery
by members of their families or communities. Trafficking victims may have
been exploited in local sex industries before being trafficking internationally. 3
Domestic violence victims have been induced into trafficking through all of
these routes. In one case handled by Sanctuary for Families, the New York Citybased
domestic violence service provider for which I work, 4 the client, a young
mother from Hungary, was brought into the United States by her abusive
husband who forced her to work in a strip club in the Bronx and give him all of
her earnings. He later returned to Hungary with their son and told her that she
would never see the child again if she didn’t continue to work in the club and
send him the money she earned. Another victim told her story at a conference in
Dhaka, Bangladesh organized by the Coalition Against Trafficking in Women: 5
A battered wife in rural Bangladesh, she fled from her brutal husband to her
childhood home, only to discover that her family refused to take her back. With
few if any options, she acquiesced to the entreaties of traffickers and, resigned
to fate, agreed to enter a brothel in Dhaka.
The number of trafficking victims is hard to pin down because definitions
vary, trafficking is hidden, and most victims are afraid to report. The United
Nations has estimated that between 700,000 and 4,000,000 women and children
are annually trafficked across international borders. 6 In 2003, the US State

From Sex Trafficking to FGM: Emerging Issues 371
Department estimated that nearly 20,000 victims of trafficking cross US borders
each year. 7 None of these figures includes the most prevalent form of trafficking
— domestic trafficking that takes place within countries.
Many prostituted women are domestically trafficked — moved by pimps
from their homes to locations far away from their support systems. Like
international trafficking, domestic trafficking makes the buying and selling of
women and girls more profitable because customers pay more for novelty. An
additional advantage for sex industry entrepreneurs is that moving women from
location to location makes it easier to keep them isolated and maintain power
and control. Like batterers, traffickers and pimps employ all of the strategies of
coercive control — isolation, threats, sexual abuse, and economic control — and
may not even need to resort to overt violence to secure control because they
have obtained it through more subtle means of domination. 8
Immigrant women, especially undocumented immigrants in conditions of
economic hardship, are especially vulnerable to domestic traffickers. One such
victim, a client of Sanctuary for Families, had been a successful model in her
native Brazil and came to the United States to advance her career. When her
visa expired, she could no longer obtain legitimate work. A limo driver, who
served as a recruiter for traffickers, encouraged her to work for an “escort”
agency and began supplying her with drugs that “eased” her transition into
prostitution. Before long the limo driver was not only her drug supplier, but her
boyfriend, batterer, and pimp.
Domestically prostituted women have often endured many different kinds of
gender-based violence, beginning in childhood and continuing through adolescence
and adulthood. Research demonstrates that between 60% and 80% of prostituted
adults are victims of incest and related forms of child sexual abuse. 9 Indeed the
average age of entry into prostitution is estimated to be between the ages of
twelve and fourteen. 10 Cross-culturally, prostituted adults sustain exceedingly
high rates of battering, rape, and murder and are the targets of many different
kinds of predators, including pimps, “johns,” and serial killers. One Canadian
study found that prostituted adults have a mortality rate that is forty times higher
than that of adults who have not been subjected to prostitution. 11
Whether your client has been internationally trafficked or domestically
prostituted, her experiences may have considerable ramifications for her legal
situation. If she wants to initiate a criminal case against her exploiters or obtain
protection from the criminal justice system, you will need to help her make a
police report, arrange a meeting with the local District Attorney, or contact
federal criminal justice authorities, such as the FBI and the US Attorney. 12

372 Dorchen A. Leidholdt
Before your client meets with criminal justice authorities, you should obtain the
assurance that she will not be charged criminally and will not be pressured or
forced to cooperate.
If your client has been arrested for soliciting for the purposes of prostitution,
you may need to intervene with the police and the assistant district attorney to
help them understand that she is not a criminal but a victim. A conviction for
prostitution is far from trivial. If your client has children, a criminal investigation
or conviction for prostitution could result in the initiation of a child welfare
investigation or a civil charge of child neglect or could be used against her in a
custody dispute. It could also defeat her efforts to win legal immigration status,
although in certain circumstances she can obtain a waiver from this bar to
admissibility into the United States. (If your immigrant client has been convicted
of prostitution, refer her immediately to an immigration lawyer with expertise
in immigration law remedies for victims of gender-based violence.) Educating
investigators, prosecutors, law guardians and fact-finders about trafficking and
sexual exploitation and helping them understand that victims of these practices
are often good, protective mothers will be a critical part of your advocacy.
You may confront and have to challenge a double standard that blames your
client for her sexual exploitation while ignoring the role that her male partner
played as pimp or customer.
Your client’s ordeal as a victim of trafficking or other forms of sexual
exploitation may render her eligible for certain kinds of immigration relief.
Victims of “severe trafficking” (trafficking involving force, fraud, or coercion)
who cooperate with the investigation or prosecution of their exploiters and can
demonstrate that they would suffer “extreme hardship” if returned to their home
countries may be eligible for T Visas under the Trafficking Victims Protection
Act. 13 If your client has suffered substantial physical or mental abuse as the result
of having been prostituted or trafficked and cooperates with the investigation or
prosecution of her exploiters, she may be eligible for a three year U Visa. 14 If
your client’s ordeal as a victim of trafficking or prostitution resulted in persecution
in her country of origin or if your client faces a well-founded fear of future
persecution because traffickers and/or their confederates may persecute her upon
her return to her native country, she may be eligible for asylum. 15 Finally, if your
client in good faith married her pimp, trafficker, or customer, if he was a US
citizen or permanent resident, and if she was subjected to “battering or extreme
cruelty,” she may be eligible for a battered spouse waiver or to self-petition under
the Violence Against Women Act.

From Sex Trafficking to FGM: Emerging Issues 373
Even if your client’s experience as a victim of trafficking or prostitution is
irrelevant to her legal case, it will likely have an impact on your interaction with
her. She may feel mistrust, fear, and shame that will make it difficult for her to
disclose information about the exploitation and abuse. You should remind her of
your duty of confidentiality and reassure her that she is not to blame for what
was done to her. Your client may also have mental and physical health needs
triggered by the sexual exploitation. Research demonstrates that, cross-culturally,
people exploited in prostitution sustain exceptionally high levels of post-traumatic
stress disorder and other psychological harms, such as depression. Prostitution
often has a devastating effect on victims’ physical health, leading to sexually
transmitted diseases, including HIV/AIDS, which can severely damage the
reproductive and immune systems. Many women and children who have been
sexually exploited become dependant on alcohol or drugs either because their
abusers sought their addiction as a tactic of control or because the victims used
substances to numb the psychic pain caused by sexual exploitation and abuse.
Identifying appropriate and available health services and substance abuse
programs can be quite challenging. 16 Just as few of these programs were
designed to address the complex needs of victims of domestic violence, even
fewer are capable of addressing the multifaceted needs — cultural, linguistic,
psychological, and medical — of victims of trafficking and prostitution.
Internet Marriages
Exploitation by internet marriage brokers is closely akin to exploitation by
the sex industry. Internet marriage brokers, many of whom double as sex tourism
promoters, recruit young, attractive girls and women from poor countries as
brides for comparatively affluent Western men. Most of these brokers promote
their human merchandise by employing racial and ethnic gender stereotypes that
portray the women as willing sex objects and happily submissive domestic
servants. 17 The women are often told that Western men are more understanding
and egalitarian than men from their own country. The result is a clash of
expectations that often results in domestic violence. In a 2003 conference for
domestic violence service providers organized by the New York State Coalition
Against Domestic Violence, half the counselors in attendance had assisted
internet brides who had become victims of domestic violence. 18 Advocates at
Sanctuary for Families have reported that husbands of their clients specifically
sponsored them because the men wanted their new brides to engage in sex acts,

374 Dorchen A. Leidholdt
such as swinging and anal sex, that their previous female partners had refused.
When the internet brides also refused, they were raped; when they fled, the men
pursued new “brides” over the internet.
When internet marriages turn violent, victims need the same kinds of
protection as other battered women. Explore with your client the possibility of
calling the police to initiate a criminal prosecution and obtain a criminal order
of protection. Also discuss with her the advantages and disadvantages of filing
for a civil order of protection in family court or as part of the interim relief in a
matrimonial action.
Like women and girls who have been prostituted, victims of the internet
bride trade are often subjected to misogynistic stereotypes. The popular media
and commercial movies have portrayed the internet bride as a gold-digging
“Natasha,” in pursuit of a green card, who preys on vulnerable, lovelorn
American men. Interviews with victims represented by Sanctuary for Famlies
reveal that the women, several of whom came with their children, genuinely
hoped for warm, loving, and supportive husbands with whom they could build
families. Their new husbands, by contrast, were often sex industry consumers;
several were substance abusers or mentally ill. Often the men portrayed a falsely
wholesome and affluent picture of their lives in the United States that induced
their victims to give up apartments and jobs in their home countries. Soon after
they arrived, the women were confronted with a depressing and violent reality
— along with threats that unless they complied with all of their husband-to-be’s
demands they would be forever undocumented and subject to deportation.
You should be prepared to confront the derogatory stereotypes of internet
brides and educate the court and any other key players in your case about the
reality of your client’s situation. Unless challenged, these stereotypes will undercut
your client’s credibility and increase the difficulty of persuading authorities to
pursue appropriate action, such as prosecuting her American husband for marital
rape or granting her immigration protection.
Even when their husbands refuse to serve as their immigration sponsors,
internet brides are likely to be eligible for immigration law relief. Women who
can establish that they married their American husbands in good faith and were
subjected to battering or extreme cruelty are usually eligible either to apply for
battered spouse waivers or to self-petition under the Violence Against Women
Act. Internet brides subjected by their husbands to forced labor or sexual
exploitation through fraud, force, or coercion may be able to establish the
requirements of “severe trafficking” under the Trafficking Victims Protection
Act. If they are willing to cooperate with the investigation and prosecution of a

From Sex Trafficking to FGM: Emerging Issues 375
trafficking case and they face “extreme hardship” in their home countries, they
may be eligible for “T Visas.” Internet brides who have suffered substantial
physical or mental abuse as the result of crimes committed against them by their
husbands, such as rape and domestic violence, and who cooperate with the
investigation and prosecution of these crimes are eligible for U Visas.
Early Marriage and Forced Marriage
You may discover that your client was betrothed and married as a child
and/or was forced into a marriage against her will. Forced marriage and child
marriage are most likely to occur in countries in the Middle East, Africa, and
South Asia. 19 These marriages should be distinguished from arranged marriages,
where family matchmakers recommend but do not impose eligible suitors on
marriage-aged sons and daughters. Immigrant parents from traditional societies
who are worried about the westernization and assimilation of their daughters
may take them back to their home countries, perhaps on the pretext of a vacation,
and force them into marriages. Lawyers at Sanctuary for Families helped a
Bangladeshi high school student, whose parents were trying to force her into an
unwanted marriage, obtain a civil order of protection against them and legal
emancipation. Sanctuary’s legal staff also represented a Palestinian-American
teenager, whose father had forced her into a marriage during a family vacation
in Jordan, in a divorce action against her construction worker husband, who
raped and beat her until her mother engineered her escape. Back in the United
States, the young woman was beaten by her older brother, who was furious that
she had defied her father’s wishes.
Actual or potential victims may need protection from the criminal justice
system to prevent family members from coercing them into marriages or retaliating
against them when they refuse to accede to their wishes. Protection is also available
in family court, where victims can initiate family offense proceedings to obtain
civil protective orders against coercive relatives and child welfare authorities
can initiate neglect and abuse proceedings.
Lawyers representing immigrants have encountered cases in which parents
are pressuring or forcing their daughter, who holds permanent resident status or
citizenship, to sponsor a fiancé or husband from her home country. Assisting
families to carry out such plans is highly unethical. Alerting immigration
authorities to the young woman’s plight, while stressing the importance of

376 Dorchen A. Leidholdt
keeping her communication confidential, may protect her from having to marry
against her will.
Victims of child or forced marriages who reject suitors picked by their families
or flee the spouse imposed on them may face retaliation in their home countries,
ranging from ostracism to outright violence and even death. Such persecution
may form the basis of a viable asylum claim, especially if there is evidence that
the government sanctions child or forced marriage and/or is unwilling or unable
to protect girls and young women forced into such arrangements.
Honor Killing
For some victims of domestic violence, their own families pose as much of
a danger as their abusive spouses. 20 In traditional societies in the Middle East,
Pakistan, and Turkey, a family’s honor is measured by the perceived chastity
and fidelity of the women in that family. Even a rumor, however ill-founded,
can stain the family’s honor and leave the men of the family convinced that they
have only one choice: to eliminate the stain by eliminating its perceived source
— the woman or girl who is the subject of the rumor. Although honor killings
are commonly assumed to be punishment for adultery, women and girls have
been threatened with death or killed by their families for leaving the family
compound without an explanation, having a friendly conversation with a male
neighbor, and rejecting a suitor selected by the family. 21
Domestic violence is often a trigger for a threat of honor killing. Jealousy is
a hallmark of batterers, who often become convinced without a shred of evidence
that their wives or girlfriends are cheating on them. When the jealous husband
confides his unfounded suspicions to his wife’s family members in a culture that
supports honor killing, the outcome can be deadly. In one case handled by
Sanctuary for Families, the honor killing plot against an observant young Muslim
mother was triggered by her husband’s contention that a pair of her underwear
was missing. Convinced that she had betrayed him, her husband tortured her by
burning her all over her body with a heated drill bit, taped her forced confession,
left her comatose, and then reported back to her brothers in Syria that his actions
were justified because she was having an affair. The brothers immediately
convened a family meeting at which they concocted a plot to kill her.
Leaving an abusive spouse can also trigger the threat of honor killing. In
another Sanctuary for Families’ case a young mother from the Punjab region of
Pakistan, the region with the highest incidence of honor killings in the world,
fled her abusive husband and entered a domestic violence shelter in Brooklyn.

From Sex Trafficking to FGM: Emerging Issues 377
Her husband contacted her brothers in Pakistan and informed them that she had
left him for another man. The brothers convened a meeting at which they vowed
to kill her; not long afterward her oldest brother was smuggled into New York City.
As this story illustrates, women targeted by honor killing conspiracies are
not only in danger in their home countries; they can be at great risk here in the
United States. Lawyers representing such victims must work closely with
domestic violence service providers to insure that the women’s locations are
kept confidential. Notifying criminal justice authorities about the threats is
usually a good idea. Pursuing a civil order of protection or pursuing other
family law relief may not be advisable, however, because it will require the
victim to serve the threatening family members and give them access to her
during court dates. In these cases, the victim’s own community poses a danger,
and it is important that she avoid locations where community members may
spot her and report her whereabouts to her family. To protect her safety it may
be necessary for the victim to relocate to another jurisdiction within New York
State or even to another state.
Women and girls threatened with death by their families in their home
countries often have strong claims for asylum because most of the countries
where honor killing is practiced, especially in the Middle East and Pakistan,
have not taken adequate steps to protect victims. In some of these countries
perpetrators of crimes of honor are rarely brought to justice or are prosecuted
but under reduced charges and, upon conviction, receive reduced sentences.
If your client is a victim of an honor killing conspiracy and does not have US
citizenship or permanent resident status, immediately contact an immigration
legal services provider to explore whether she is eligible for immigration law
protection and relief.
Female Genital Mutilation
Female genital mutilation, often known by its acronym, FGM, or as female
circumcision, is practiced in twenty-eight African countries and twelve other
countries in Asia and the Middle East. The World Health Organizations
estimates that as many as 140 million women have been subjected to FGM and
each year two million girls are threatened with it. 22 Although most prevalent in
Muslim countries, female genital mutilation is not a religious practice but a
tradition rooted in tribal culture. In some countries, FGM is also practiced by
Christians, and there are many Muslim countries in which FGM is absent.

378 Dorchen A. Leidholdt
FGM is rooted in the patriarchal belief that female sexuality is dangerous to
the stability of families and communities and that women’s genitalia is unclean;
it goes hand-in-hand with the kinds of subjugation of women that breeds severe
and pervasive domestic violence. In counties in which FGM is systematically
practiced, girls and women who have not been cut are considered dirty and
unchaste and are not marriageable. In countries — like Guinea, Mali, and the
Sudan — FGM is demanded not only by families but also by communities and
is often performed while the girl is a baby or toddler. Mothers and other family
members reluctant to have their daughters cut may face enormous community
pressure to accede to the practice, and they must vigilantly guard their daughters
so that they are not spirited away and cut. The severity of FGM varies among
tribes and countries. The most common form of FGM is excision or clitoridectomy,
which involves the removal of the clitoris, and some or all of the labia minora.
The most radical form is full infibulation, in which all of the external genitalia
are excised and most of the vagina is sewn shut. The effects of FGM on adult
women who have survived the practice range from diminished or extinguished
sexual pleasure to excruciating pain and injury during urination, menstruation,
sexual intercourse, and childbirth. Because the procedure is usually performed by
nonmedical personnel, often elderly women who are professional circumcisers,
under unhygienic conditions, many girls subjected to FGM are infected by the
cutting and a number die from infections or unchecked loss of blood. 23
Although FGM is illegal in several of the countries in which it is
systematically practiced, few governments have the resources and political will
to investigate and prosecute crimes of FGM. Indeed, in most such countries,
perpetrators operate freely with impunity. Immigrants, primarily from Africa,
have continued the practice in the Western countries into which they have
immigrated. 24 In the United States evidence has surfaced that FGM has been
practiced in some immigrant communities of major cities, including Atlanta,
Detroit, Los Angeles, and New York, and many states, including New York, 25
have passed legislation specifically criminalizing the practice of FGM. On a
federal level, FGM has been criminalized as a violation of human rights. 26
Lawyers representing immigrant FGM victims have often found that,
remembering their own suffering, they oppose having their daughters cut but
encounter overwhelming pressure from husbands and extended family members
to acquiesce to the ritual. Some daughters are sent to the home country for
vacations and then cut while they are there. 27
Lawyers representing victims of domestic violence from countries or cultural
traditions in which FGM is systematically practiced should warn their clients

From Sex Trafficking to FGM: Emerging Issues 379
with daughters who have not yet been cut that FGM is a crime in the United
States and that they could be subjected to prosecution if they cooperate with the
practice of FGM. Be aware that opposition to the practice of FGM could put
your client at odds with the wishes of her husband and extended family and
could intensify any domestic violence. Mothers of uncut daughters who wish
to return to their FGM-prone home countries for a visit should be warned that
extended family members, often grandmothers and aunts, have been known to
take their granddaughters and nieces to be cut while their mothers are at a
family celebration.
If your client has survived FGM or if she or her daughter(s) are at risk of
the ritual upon return to their home country, they may be eligible for asylum.
In a landmark case the Second Circuit Court of Appeals granted a young woman
from Togo asylum after she fled Togo into first Germany and then the United
States to prevent her extended family from subjecting her to FGM. 28 More
recently mothers whose daughters were at risk of FGM if forced to return to
their home countries have won battles against deportation and for asylum. 29
Conclusion
Although representing immigrant victims of domestic violence poses unique
challenges that may require you to immerse yourself in legal areas and cultural
practices far outside your experience, it is also uniquely gratifying. You have the
ability to serve as a catalyst infinitely for the better in the lives of your immigrant
client and her children. Thanks to changes brought about by domestic violence
victim and immigrant rights advocates over the past decade, lawyers for
immigrant victims can pursue a wide array of remedies, from both the civil and
criminal court systems and immigration authorities, that can help their clients
move from violence, destitution, and fear to safety, stability, and selfconfidence.
In the process of serving your client, you may find that the tables
have been turned — that your client has become your guide and mentor, leaving
you with unforgettable lessons, not only about her culture and its practices, but
about courage in the face of overwhelming adversity and about survival.

380 Dorchen A. Leidholdt
Notes
1. The Protocol to prevent, suppress and punish trafficking in persons,
especially women and children, supplementing the United Nations
Convention Against Transnational Organized Crime, also known as the
Palermo Protocol, signed by the United States in December 2003, defines
trafficking in persons as “the recruitment, transportation, transfer,
harbouring or receipt of persons, by means of the threat or use of force or
other forms of coercion, of abduction, of fraud, of deception, of the abuse of
power or of a position of vulnerability or of the giving or receiving of
payments or benefits to achieve the consent of a person having control over
another person for the purpose of exploitation,” and specifies that
“[e]xploitation shall include, at a minimum, the exploitation of the
prostitution of others or other forms of sexual exploitation, forced labour or
services, slavery or practices similar to slavery, servitude or the removal of
organs.” The definition also specifies that “[t]he consent of a victim of
trafficking in persons to the intended exploitation set forth [above] shall be
irrelevant where any of the means set forth [above] have been used.”
2. Office of the Press Secretary, President Announces Initiatives to Combat
Human Trafficking, “Worldwide, at least 600,000 to 800,000 human beings
are trafficked across international borders each year. Of those, it is believed
that more than 80% are women and girls and that 70% of them were forced
into sexual servitude,” Tampa, Florida, July 16, 2004.
3. J. Raymond, J. D’Cunha, S.R. Dzuhayatin, H.P. Hynes, Z.R. Rodriguez, &
A. Santos, eds (2002) A Comparative Study of Women Trafficked in the
Migration Process: Patterns, Profiles and Health Consequences of Sexual
Exploitation in Five Countries (Indonesia, the Philippines, Thailand,
Venezuela and the United States), Coalition Against Trafficking in Women
(CATW), http://www.catwinternational.org.
4. Sanctuary for Families, 67 Wall Street, Suite 2211, New York, NY 10005-
7198, http://www.sanctuaryforfamilies.org.
5. Coalition Against Trafficking in Women, PO Box 9338, North Amherst,
MA 01059, http://www.catwinternational.org.
6. United Nations Press Release, Secretary-General Calls Human Trafficking
One of the Greatest Human Rights Violations of Today, International
Summit on Human Trafficking, Child Abuse, Labour and Slavery, Abuja,
Nigeria, August 2-4, 2002.

From Sex Trafficking to FGM: Emerging Issues 381
7. US Secretary of State Colin Powell, Trafficking in Persons, Global Issues,
US Department of State, June 11, 2003.
8. Dorchen A. Leidholdt, Prostitution and Trafficking in Women: An Intimate
Relationship, in Melissa Farley, ed, Prostitution, Trafficking, and Traumatic
Stress (2003) at 167-183.
9. Richard J. Estes and Neil Alan Weiner, The Commercial Sexual Exploitation
of Children in the US, Canada and Mexico, University of Pennsylvania
School of Social Work, Center for the Study of Youth Policy, September 18,
2001; Susan Kay Hunter, Prostitution is Cruelty and Abuse to Women and
Children, 1 Michigan Journal of Women and Law, 91 (1993); Mimi H.
Silbert and Ayala A. Pines, “Entrance Into Prostitution,” 13 Youth & Society
471, 479 (1982).
10. D. Kelly Weisberg, Children of the Night: A Study of Adolescent Prostitution
(1985); Mimi H. Silbert and Ayala A. Pines, Victimization of Street
Prostitutes, Victimology: An International Journal 7, at 122-133 (1982).
11. Melissa Farley, Isin Baral, Merab Kiremire, Ufuk Sezgin, Prostitution in
Five Countries: Violence and Post-traumatic Stress Disorder, Feminism &
Psychology 8 (4) 405-426 (1998); Special Committee on Prostitution and
Pornography, Pornography and Prostitution in Canada (1985).
12. Note that the penal and victims services provisions of the Federal Trafficking
Victims Protection Act of 2000 apply only to situations of “severe trafficking,”
which, if the victim is age eighteen or older, requires proof of force, fraud,
or coercion; HR 3244, 106th Cong § 7(f)(1) (Apr. 4, 2000).
13. HR 3244, 106th Cong § 7(f)(1) (Apr. 4, 2000).
14. INA § 101(a)(15)(U), 8 USC. § 1101(a)(15)(U) (2001).
15. INA §§ 101(a)(42); 8 USC. §§ 1101(a)(42), 1158 (2001).
16. Melissa Farley, Isin Baral, Merab Kiremire, Ufuk Sezgin, Prostitution in
Five Countries: Violence and Post-traumatic Stress Disorder, Feminism &
Psychology 8 (4), at 405-426 (1998); Special Committee on Prostitution and
Pornography, Pornography and Prostitution in Canada (1985); R. Belton,
Assessment, Diagnosis, and Treatment of Prostitution Trauma; Paper
presented at symposium — Prostitution: Critical Aspects of the Trauma,
American Psychological Association, 106th Annual Convention, San
Francisco, August 17, 1998; C. Hoigard and L. Finstead, Backstreets:
Prostitution, Money and Love (1986).

382 Dorchen A. Leidholdt
17. See International Matchmaking Organizations: A Report to Congress
(1999); Asjlyn Loder, Mail Order Brides Find US Land of Milk, Battery,
Women’s E-News, July 13, 2003.
18. Albany, New York, Nov. 6, 2003. Contact information for the New York
State Coalition Against Domestic Violence can be obtained on its website,
http://www.nyscadv.org.
19. BBC News, Child Marriage Violates Rights, March 7, 2001, citing UNICEF
statistics that “half of all girls in some countries are married by the age of
18. . . . Child marriages are most common in sub-Saharan Africa and South
Asia, where poverty, traditional taboos about premarital sex, and fears of AIDS
are widespread. . . . In Nepal, 7% of girls are married before they are 10, and
40% by age 15.” Chicago Tribune, Child Marriage’s “Brutal” Effects on Girls
Worldwide, “Child Marriage. . . affects about 51 million girls in developing
countries worldwide,” December 14, 2004, http://www.kaisernetwork.org.
20. Mary Robinson, United Nations High Commissioner for Human Rights,
“Honor killing is one of history’s oldest gender-based crimes. It assumes
that a woman’s behavior casts a reflection on the family and the community.
If women fall in love, seek a divorce even from a battering husband, or
enter into a relationship outside marriage, they are seen as violating the
honor of the community,” April 10, 2000.
21. Mark Rice-Oxley, “The United Nations says at least 5,000 women worldwide
are killed each year as a matter of so-called family honor”; Britain
Examines Honor Killings, The Christian Science Monitor, July 7, 2004.
22. Genital Mutilation On the Increase in Europe, Press Association News,
November 26, 2004; Europe Impotent in Fighting Female Mutilation
Among African Women, November 30, 2004, http://www.Afrol.com.
23. Rogaia Mustafa Abusharaf, I Will Never Forget the Day of My
Circumcision, The Sciences, March/April 1998, at 23-27.
24. In the United Kingdom, it has been estimated that between three and four
thousand girls undergo the procedure each year, although there have been
no prosecutions under the federal statute banning FGM, which was
enacted in 1985. In France, there have been a number of well-publicized
prosecutions of West African immigrant parents who have arranged to have
their daughters cut.
25. Penal Code § 135.85.
26. 18 USCA § 116.

From Sex Trafficking to FGM: Emerging Issues 383
27. Holly Maguigan, Will Prosecutions for Female Genital Mutilation Stop
the Practice in the US? Temple Political and Civil Rights Law Review,
Spring 1999.
28. In re Fauziya Kasinga, 1996 WL 379826 (Board of Immigration Appeals,
June 13, 1996).
29. See e.g. Abay v Ashcroft, 368 F3d 634 (6th Cir 2004).

22
Advocating for Youth in
Domestic Violence Proceedings
by Stephanie Nilva and Kristine Herman
Advocating for young victims of domestic violence requires specific skills.
Young victims experience similar forms of power and control as adult
victims, but a number of complex issues unique to teens and young adults
further complicate their situations and create barriers to accessing safety. Young
people often are isolated from support systems, unaware that help is available to
them, and unable or reluctant to pursue assistance.
In most cases, young victims of domestic violence have limited access to
resources, and they usually reside with a guardian of some kind. Their
developmental stage, relative inexperience with intimate partners, and distrust of
authority also separate them from adult victims. The support from a young
person’s family and the structure of New York State’s legal system will shape
options available to your young clients. Together, these aspects of the youth
experience mean that advocating for youth experiencing relationship abuse is
particularly demanding.
Understanding your client’s experience as a teenager or young adult can be
difficult, but sympathizing with her experience will help build a trusting
relationship. Patiently exploring the legal options without alienating her through
condescending or “adultist” behavior will pay off. In many situations, your
client will be ineligible for, or unwilling to seek, all of the legal system’s
protections; in other cases, she will remain involved with the abuser or display
extraordinary levels of ambivalence; she may leave and return to him frequently.
In every one of these cases, safety planning is essential. 1

386 Stephanie Nilva and Kristine Herman
Impact of Relationship Abuse Among Youth
A Journal of American Medical Association (JAMA) study found that as
many as 20% of girls in high school have been physically or sexually abused
by a dating partner. 2 Nearly 80% of girls who are physically abused in their
intimate relationship continue to date their abuser. 3 A 2004 survey of young
women between 15 and 24 in New York City found a high prevalence of dating
relationships characterized by physical violence (22%), coercion (60%), and
forced sexual experiences (27%). 4 About 10% of domestic violence victims seen
in the City’s public hospitals are under the age of twenty, and 8% of women
killed by their intimate partners in New York City are teenagers. 5
The consequences of youth dating violence are a critical public health
problem. In a lifetime prevalence study of adolescent girls, JAMA found that
female adolescents who experienced physical dating violence have a higher
incidence of substance abuse, eating disorders, high-risk sexual behavior,
pregnancy and suicidality. 6 In addition to the physical and mental problems
associated with dating violence, 7 the negative impact of relationship abuse is
compounded by the features of adolescent development.
Challenges to Representing Youth
Isolation
Most young people have little contact with social support and civic systems
outside of their schools. They may be entirely unaware that minors are eligible
to speak confidentially to an attorney, may hire a lawyer at no cost, or may file
for an order of protection without representation. Even when young people are
ready to accept help, they face barriers, such as a lack of money for public
transit, limited familiarity with neighborhoods beyond their home and school,
and little time outside of school hours to schedule appointments.
Abusive and controlling behavior isolates victims from friends and family.
The batterer’s behavior will often cause a young person to feel even more
confined and more inclined to view her abuser as omniscient with enormous
power over her. Such feelings will be even greater if the victim has continuing
emotional attachment to, or contact with, the perpetrator through children in
common, a common scenario for many young victims.

Distrust of Authority
Advocating for Youth in Domestic Violence Proceedings 387
Adolescents may fear that seeking adult assistance will result in a loss of
autonomy, so adolescent victims may be protective of their independence and
cautious about forming a relationship with you. Hand in hand with these
developmental concerns regarding independence and autonomy is the
adolescent’s task of boundary-testing and limit-testing. Adolescents are at a
developmental stage in which they test and challenge everything. They badly
want to experience life and learn through trial and error. They may be reluctant
to solicit advice and counsel, and when they do, they may not trust you. Though
no victim benefits from being told how to live her life, almost no other
population is as resistant as adolescents to being told what actions they should
take or decisions they should make.
Young people often keep domestic violence a secret. If they speak to
anyone, they are most likely to speak to their friends and peers. Over 97% of
teenagers do not report violent incidents to any authority figures. 8 In one study
of teenage victims, 61% of adolescents confided in a friend, and 30% did not
tell anyone. 9 Some young people want to avoid getting the abuser in trouble;
others simply feel they won’t be believed.
Ambivalence
Though adult victims separate from their abusers repeatedly before leaving
for good, 10 young people in dating relationships may demonstrate what appears
to be an even greater level of ambivalence. Because your client’s relationship
may not have defining characteristics such as a shared household or some other
legal tie, you may see young people drifting in and out of relationships. They
may appear to have more confused concepts of being together or apart than
adults might. Yet what appears to you as indecision may be reluctance to
disclose abuse, fear, or inability to define unacceptable behavior.
Like adults, young survivors may feel embarrassed, ashamed or confused;
they may fear increased violence if they disclose the abuse, or they may believe
they can stop the abuse or “handle it.” In addition, they may fail to recognize
that they are being abused, especially if this is their first intimate relationship.
Some young people may perceive abusive behavior as “normal,” particularly if
they have witnessed abuse by adults in their household. Their concerns about
losing autonomy or independence may cause them to fear reprisal from a parent
or guardian, who might prevent them from seeing the abuser or curb their
freedom in future relationships. If involved with someone her own age, a victim

388 Stephanie Nilva and Kristine Herman
might identify more with the abuser as a peer than she would with her parents.
As with victims of all ages, a young person may simply be confused by her
emotional attachment to the abuser.
Other Influences
In young victims of domestic violence, the developmental tasks, such as
boundary-testing, and the underdeveloped cognitive skills (i.e., concrete
thinking versus more abstract thinking skills) create substantial challenges.
Teens may not understand that legal and social services may be needed. They
may feel enormous social pressure from peers to continue the relationship. Peer
pressure strongly influences teens, and the social status associated with having a
boyfriend — or dating someone particularly popular who might confer special
social status — can be highly valued. Also, parents may support the relationship
if they refuse to acknowledge the abuse, are unaware of the violence, or believe
the abuser to be a good match for religious or cultural reasons.
In some cases, your young client will have an abusive partner who is
substantially older than she is. For a teen, a partner who has graduated from high
school or is employed may give her the impression of being much older or more
mature. The age difference may increase the control your client feels is being
exercised over her; she may feel that her abuser, as an adult, will always be able
to find her and hurt her. The influence of an older partner, who may have an
apartment, job, or car, also can exacerbate the difficulties a young person faces.
His access to resources can create conflicting feelings and make her feel as if she
would be giving up something of great value if she were to leave. When the
perpetrator is also a teen, you may confront challenges such as denial and
minimization of the abuse by adults in the young victim’s life, who mistakenly
believe the young abuser is not dangerous. In these cases, in which parental and
family support is absent, assisting your client will become more difficult.
Advocacy Tips
Once you begin meeting with your client, certain techniques will help you
build trust and serve your young clients. Making every effort to support the
autonomy of your clients will be an important element in assisting teens and
young adults. When teenagers experience controlling and abusive behavior by
an intimate partner during this complex stage, greater sensitivity is required
from advocates, who will be perceived as authority figures. Incorporating
practices that foster independence can contribute to the healing process.

Advocating for Youth in Domestic Violence Proceedings 389
Keep in mind that this may be your client’s first serious intimate relationship,
and her lack of experience may contribute to difficulties separating definitively
from the abuser and seeking or accepting outside assistance. Your client will
inevitably test your patience at times, and you should prepare yourself for that
moment. Her priorities will not be the same as an adult’s. She may not take risk
seriously, and you may find it difficult to convince her that she might be in
danger. You will need to understand and adjust your approach to the reality of her
thought process and her day-to-day experience.
Also remember the practical obstacles a young client in particular might
have in scheduling meetings. Since getting to your office may be difficult for
her, limiting the number of appointments scheduled with your client or meeting
her in her own community will be a great help. When your client comes to
your office, be sure to provide her with detailed directions and explain any
requirements — such as identification, which your client may not have — to
enter your building. If your office can provide reimbursement for travel
expenses, let her know, so she can borrow money from friends or family with
the knowledge that she can repay it.
Interviewing Adolescent Victims
Interviewing young victims of domestic violence requires the careful thought
and nonjudgmental approach you use with any domestic violence victim. In
addition, you should give extra time and special attention to building trust and
ensuring your client feels you are responsive to her needs. Client engagement
with a young person is unique because, added to the existing power differential
between an attorney and a client, there is another, almost more critical, power
dynamic present between adult and youth. Therefore, it is crucial for you to
begin to show your client from the very first contact that you are not attempting
to take power away from her or tell her what to do, but that you are assisting her
in empowering herself.
From your first communication with potential clients, you should provide
specific meeting dates and times that take into account travel time and potential
school conflicts. Your keeping these appointments will be a critical ingredient to
establishing trust with young people who respond better to adults they perceive
as reliable. Young people establishing a relationship with an adult often test
them. They may be very literal in their interpretation of what and when
something is planned or have a different interpretation of language that seems
clear to you in the context of your legal practice. Telling your client that you are
“always available to talk” or that you will return her call “soon” may result in

390 Stephanie Nilva and Kristine Herman
dramatic misunderstandings if you have not clarified your client’s expectations
in advance. Additionally, it is not uncommon for young people to test an adult’s
loyalty or the boundaries of the relationship. Such testing might take many
forms including hostility or trying to distance themselves to protect against
feeling disappointed or abandoned. Remain alert to what your client’s
motivations might be in pushing you away, and focus on reassuring her that she
can rely on you.
In your interview, explore the client’s abusive relationship but also the
relationships of her family and friends. She may be close to her abuser’s relatives
or have friends or relatives who date his friends or relatives, and this can cause
her to feel pressured by additional people who have a stake in her relationship
and any decisions she might make. Be particularly delicate about discussing the
client’s sexual activity or any potential sexual assault, as this may raise additional
defenses. A client willing to disclose physical abuse to you or to her family still
may avoid sharing information about her sexual activity or assaults. You should,
however, make clear that you are open to hearing about sexual abuse.
Communicating With Your Young Client
Be sure to explain to your client all of her legal options and every step of
the legal process. Be clear, consistent and honest about the system’s limitations,
and never make any promises that you can’t keep. In both face-to-face meetings
and telephone contacts, extra care should be taken not to talk down to her or
treat her as though she were a child. She may be young, but it is important that
she be taken seriously and not treated in a condescending manner that
minimizes her experiences, thoughts, or concerns.
You will want to be extra aware of giving your young client all the respect
and attention you automatically would give to someone older. Avoid taking calls
or shifting your attention while your client is speaking. Be sure to acknowledge
her feelings and circumstances. Validating her experiences and concerns about
peer pressure or her social challenges with friends and relatives will help gain
your client’s trust. Your client may have reasons for her behavior that seem
ridiculous at first — she may tell you she stays with her abuser because he’s
cute — and your ability to take her seriously will help her trust you.
When communicating with your client, an authoritarian approach is likely
to backfire, and avoiding any semblance of judgment or overassertive behavior
will be helpful. Every attempt should be made to offer the client extensive
information and guidance while supporting her choices. Your client will need
concrete suggestions of how to increase her safety while in the relationship, but

Advocating for Youth in Domestic Violence Proceedings 391
your ideas will be better received if you brainstorm with her about her
circumstances rather than simply lecturing her.
Justice System Response
Challenges to Access in New York State
In New York, an order of protection can be issued by the Family Court only
if the parties to the case are related by blood or marriage or share a child in
common. Civil Supreme Court is open to domestic violence victims only if they
are married. The vast majority of young people in intimate or dating relationships
are not eligible for assistance in the civil courts and may use only the Criminal
Court — which is open to individuals in all relationships — to access legal
protection. Only a young person married to, or sharing a child in common with,
the abuser will be eligible to seek assistance in both Family and Criminal Court
simultaneously. Because the two court systems have different purposes, entry
points, and relief available, you will have to be prepared to explain both systems
to eligible clients. Beyond explaining eligibility, you should be prepared to
explain the steps involved in each process. The idea of going to court —
particularly Criminal Court — may be unusually intimidating and unappealing to
a young victim, and your ability to demystify the process for your client may
impact her decision to seek an order of protection.
Criminal Justice System
Many adolescent characteristics create challenges for advocates working
with teenagers who are complaining witnesses in criminal cases. While victims
of all ages may be reluctant to use the Criminal Courts to obtain protection,
young victims are likely to be more secretive and distrustful of adults, especially
police. Like an adult victim, a teen might avoid the police if her suspicion or
fear of criminal authorities is greater than her concern for her own safety. She
may be worried that speaking to police would implicate her in criminal behavior
that she might have been encouraged or forced into by the abuser.
Your client probably will struggle with making a decision that will further
anger the abuser or result in punishment and a possible criminal record for her
batterer. Her unwillingness to expose the abuser to sanctions may arise from
fear or concern for him or for herself. She may be an undocumented immigrant
and concerned about her own status or that of her family. If the abuser is

392 Stephanie Nilva and Kristine Herman
undocumented — particularly if he is also the father of her child — she may not
be interested in subjecting him to potential deportation. All of these conditions
play out in the context of a young victim who is likely to share a school or
community with her batterer. For example, if the abuser is a member of a gang,
his peers or his family may pose a threat to her if he receives punishment or
restriction of any kind.
Additionally, teen victims of domestic violence may use physical violence in
relationships and friendships themselves, potentially exposing a victim to
prosecution or cross-petitions in Family Court. While girls might appear to be as
physically violent as boys, it is girls who suffer a greater number of injuries,
more frequent injuries, greater severity of injuries, and are in greater fear of their
partners than boys are. 11 When a teen victim appears to be physically violent
herself, a deeper analysis of the other forms of power and control in the
relationship is warranted. 12 Careful examination of retaliatory filings and who is
the primary aggressor will be necessary.
The benefits to your client of participating in a criminal prosecution against
her batterer might include obtaining an order of protection and communicating a
message to the batterer that he cannot harm her without facing the consequences
of his abusive actions. For some victims, seeing their abusers put in jail tells
them that the abuse is taken seriously. It can be an advantage of the criminal
court process that the District Attorney’s Office, not the victim, is in charge of
the case and responsible for prosecuting the perpetrator. With the victim relieved
of the responsibility of filing the case or dropping it, she may be subjected to
less coercion and pressure by the perpetrator, family and friends, and she may
not have to face him unless she must testify.
Though a victim may benefit from not being the proactive party to a criminal
case, her lack of control over the process may create risk. If she is in danger or
would like the case to be dismissed and her wishes diverge from the prosecutor’s,
her request for a dismissal or a limited order of protection may be disregarded.
As a witness to the proceedings but not a party to the case, a victim who has
been subject to the control of her abuser may feel restricted or powerless.
Access to help may be limited by the failure of officials to recognize your
client as a victim of domestic violence in need of special help. Police in New York
City do not categorize dating relationships as family offenses and are not required
to issue domestic incident reports (DIRs). However, the police use a more
expansive definition than the Family Courts do, and issue DIRs for cohabitants.
Many adults simply trivialize the relationships of young people. In some
instances, you may have to advocate on behalf of your client with police officers

Advocating for Youth in Domestic Violence Proceedings 393
who are dismissive and/or unwilling to take a report related to an abusive incident.
Police may minimize the severity of the incident based on the victim’s age or
mistakenly may tell the young person to seek help in the Family Court system.
Case identification within the Criminal Court also creates challenges. Most
counties will not identify a criminal complaint or DIR involving a youth as a
domestic violence case, and most will not have dedicated prosecutors from the
Domestic Violence Bureau assigned to these difficult cases. Also, most District
Attorney’s Offices do not have advocates trained in adolescent development and
teen dating violence to reach out to young complaining witnesses in a criminal
matter. Because these cases might be improperly identified by the police or the
District Attorney’s Offices, they may not always make it to the Domestic
Violence Courts, and they may not receive any specialized services for young
victims of domestic violence.
Criminal Court Process
You can assist young people reluctant to make a criminal complaint by
helping them contact the police or the District Attorney’s Office. As a complaining
witness’ civil attorney, your role in a criminal prosecution is limited. If your client
wishes to participate in prosecuting her batterer, you can help by explaining the
legal system and criminal justice process to her, including her role and the realistic
outcomes of her case. You should be sure your client knows that even her
statement can be used as evidence of a crime. In addition, you can help the
Assistant District Attorney (ADA) by acting as a liaison to your client or ensuring
that she maintains contact with the prosecutor’s office. Your advocacy may also be
helpful to the victim if the ADA is minimizing your client’s experience based on
her age. Educating the prosecutor about teen dating abuse and your client’s
experience may encourage the ADA to pursue a more serious charge than
originally planned.
If a complaint has been made with the District Attorney’s Office or a
police precinct, or if a 911 call has been placed, the police probably will arrest
the perpetrator of the violence. Immediately following the arrest, the District
Attorney’s Office, either through an ADA or a victim advocate, will reach out
to the victim. Victim advocates may work for the District Attorney’s Office
counseling services unit, crime victims’ assistance unit or an outside social
service agency. If an arrest is made for a felony, the case will be presented to a
grand jury and the victim will be expected to testify in Supreme Court. If the
arrest is for a misdemeanor, the case will proceed in the local Criminal Court,
and no grand jury testimony will be required.

394 Stephanie Nilva and Kristine Herman
As a complaining witness in a criminal case, the victim does not have a role
in the criminal justice process other than as a witness to a crime. Once the arrest
is made, the District Attorney’s Office will ask the victim to come in for an
interview/intake about the criminal case, and she will likely be asked to sign a
corroborating affidavit at that time. Some counties allow a victim up to 90 days
to decide whether or not to sign a corroborating affidavit, while other counties
require a victim’s participation within the first 24 hours after an arrest or they
will “decline to prosecute.” If the victim cannot be reached or does not come in
to the DAs Office, the ADA may “decline to prosecute.” Some jurisdictions use
a domestic incident report (DIR) to convert the case to an “information” — a
formal misdemeanor charge brought without a grand jury. 13
If the victim decides not to participate in the prosecution, ADAs may decline
to prosecute or the case may remain in court for up to 90 days. Additionally,
depending on the other forms of available evidence (e.g., 911 calls, medical
records, photographs of injuries, or eye witness testimony), the case may proceed
without the participation of the victim. However, ADAs are often reluctant to
prosecute a case without more evidence than a witness’ statement.
Once a victim has decided to participate in the prosecution, her presence is
not necessary at any court dates with the exception of hearing and trial dates,
but she will be expected to return to the District Attorney’s Office to be
prepared for a trial. Since victim advocates or ADAs do not always inform
victims of the status of a given case after each court appearance, your staying in
touch with the ADAs may be important to her safety. Otherwise she may not
know whether she has a current order of protection or if her abuser has been
released from jail.
Usually an order of protection will be granted to your client. The order of
protection is typically valid for the duration of the criminal matter. If there is a
conviction, an order of protection may be issued at that time for six months for
a non-family Adjournment in Contemplation of Dismissal (ACD), up to three
years for a misdemeanor and five years for a felony. If the criminal case is
dismissed or the defendant is acquitted, the client will no longer have a valid
order of protection unless she received one from Family Court.
The District Attorney’s Offices determine the course of the case and
whether or not to take the case to trial or offer a plea. As a witness in the
criminal matter, the victim can make her goals for the case known to the
District Attorney’s Office. However, even when she has expressed wishes, the
prosecutors handling the case may not always communicate the victim’s views
to the court. Most ADAs determine the levels of protection and orders to seek

Advocating for Youth in Domestic Violence Proceedings 395
and, while they may consult the victim, they do not represent her and do not
always request the relief she wants.
Victims in the criminal justice process may feel torn; some may not want
an abuser to be jailed or punished but may simply want the court system to find
a way to make the violence stop. Typically when the option of a batterer’s
intervention program as part of a plea agreement comes up, a victim may
express interest in the hope that the program will eliminate her partner’s
battering behavior. You should tell your client that there is no evidence that the
programs stop battering behavior. A false sense of security and optimism about
rehabilitating a batterer can be dangerous.
Civil Relief
Potentially less intimidating than the Criminal Court, the civil courts are an
alternative for your young client if she is eligible to petition the Family Court.
However, only a young person married to, or divorced from, her batterer, or
whose abuser is also the parent of her child will have access to a civil order of
protection in New York State. 14
Family Courts have the advantage of offering a young victim far greater
resources and autonomy than the criminal system. The process of speaking to
a clerk in plain clothes and filing a petition in Family Court, rather than
approaching a uniformed police officer and filing a criminal complaint, may be
more appealing to many young people. In Family Court, the survivor of abuse is
a party to the case, rather than a witness. She determines whether and when to
bring or drop her case against the abuser; she can pursue specific protections or
oppose sanctions against the batterer that she finds unacceptable.
Family Court Process
Motion papers necessary to request an order of protection do not require the
petitioner to provide her age, and, though law guardians are customarily assigned
to young people in family court proceedings, minors may initiate a family court
proceeding without legal counsel. 15 Nonetheless, young people who approach the
Family Court for assistance without representation may meet resistance from
family court staff unaware that minors may file for orders of protection without
an attorney. 16 Some may confuse the Social Services Act — which defines a
victim of domestic violence as someone “over sixteen years of age” — with
provisions that apply to Family Court. 17

396 Stephanie Nilva and Kristine Herman
Young people who share children in common with their abusers may be at
risk of additional unwanted attention by the courts when seeking civil relief. A
client who is a teen parent might face an investigation of her household by the
Administration for Children’s Services. Such an investigation could be directed at
your client, whose child might be at risk, or at your client’s parents, who might be
held responsible for circumstances leading to your client’s pregnancy or abuse.
Representation
A financially eligible victim may request that counsel be assigned to
represent her in the Family Courts. Almost invariably, teenagers will qualify for
assigned counsel. The counsel afforded by full legal representation in the civil
system can foster the autonomy important to survivors of abuse. At a minimum,
representation by an attorney will give the young person the opportunity to have
confidential communications with an advocate as she discusses the process of
leaving an abuser or pursuing legal help.
Standard of Proof
Family Court offers a far less stringent standard of proof than Criminal Court.
In Family Court a petitioner must establish her case only by a preponderance of
the evidence. Young victims who might not have documentary evidence
associated with medical care, or have the benefit of a DIR issued by the police,
might still meet this evidentiary standard. As a practical matter, accessing an order
of protection in Family Court on behalf of a young person who is the victim of
stalking or verbal threats, for instance, will be far easier than it would be in a
criminal court setting.
Safety Planning with Young Clients
Teenagers are as frequently frustrated as their adult counterparts in their
efforts to avoid or escape their abusers, and they face several unique barriers.
The ambivalence and confusion young people experience when abused by an
intimate partner can slow the process of separating as well, so you should be
prepared to work with her on safety planning while accepting her decision to
remain with him.
Some young clients who are ready to end their relationships may still be
reluctant to go to court. Others may be unwilling to use the Criminal Courts and
ineligible for relief from Family Court. Even if eligible for legal protection,

Advocating for Youth in Domestic Violence Proceedings 397
young people might not want to disclose details of extreme abuse, such as a
sexual assault. Like an adult client, a teen will need advice and reminders on
avoiding situations where she might be alone with the abuser, notifying friends
and family of her whereabouts, or ensuring she carries a cell phone and money
at all times. Reluctance to tell you where she is spending time may hamper her
ability to create or conform to a safety plan. Any successful safety plan will
have to be flexible and take into account the fluidity of young people’s
relationships and lives.
Young people are more restricted by family and school ties than adults.
A teenager is likely to share the same school or community with her abuser. If
your client lives in the same building or neighborhood as her batterer, she will
benefit from advice on varying her path to school, becoming aware of safe
locations on her usual routes, and having an escape strategy in mind if she
encounters him unexpectedly.
A client who is still in school may need your assistance in speaking with
school officials. If she acquires an order of protection against a student in the
same school, advocacy will be important in helping the school administrators to
comply with the order’s provisions while they balance internal requirements
with respect to students’ rights. Whether or not the abused student has an order
of protection, with her permission you may want to speak to the school principal
or guidance counselor about changing the location of a student’s locker, altering
her class schedule, or simply alerting school safety personnel to the abusive
relationship. The school might offer the victim the opportunity to obtain a
“safety transfer,” and your assistance will be needed in helping your client
evaluate whether that solution is best for her.
Conclusion
Young victims of domestic violence can be unaware of, or unable to access,
supportive services and legal resources. They are also likely to be challenging to
engage and reluctant to pursue remedies. Because young women and girls
between the ages of 16 and 24 experience the highest per capita rates of intimate
violence, 18 it is all the more critical to have specialized knowledge and training
to deal with the concurrent and complicated issues raised by young clients.
The legal obstacles for young people who experience dating violence are
numerous. Cases may not be identified as domestic violence, and domestic
incident reports may not be issued. The abuser and victim may not meet the

398 Stephanie Nilva and Kristine Herman
statutory definition of “family” and therefore the victim may have no access to
Family Court for civil orders of protection. The victim may be unwilling to
utilize the criminal system and, when she is willing, may confront prosecutors
who will not or cannot successfully prosecute her case.
Lawyers can play an important role in improving young domestic violence
victims’ access to justice through civil representation, legal education and
training, and legislative advocacy. You can increase the likelihood that your
young client will achieve safety by improving awareness and accessibility of
your services for young people, ensuring that service provision is tailored to the
emotional and practical needs of youth, and familiarizing yourself with both
criminal and civil procedures.

Notes
Advocating for Youth in Domestic Violence Proceedings 399
1. This article uses “she” to denote victims and survivors of abuse, and “he”
to denote perpetrators of abuse. Studies show that both male and female
teens commit physical violence within the context of a dating relationship;
however, boys initiate violence more often, use greater force than girls, and
are more repeatedly violent with their dating partners. Girls sustain more
physical injuries as a result of violence, are more likely to report that
physical violence was used in self-defense, and overwhelmingly report
being afraid of their partner more than boys. C. Molidor & R. Tolman,
Gender and Contextual Factors in Adolescent Dating Violence, 2 Violence
Against Women 4, at 180-194 (1998) (hereinafter Gender and Contextual
Factors).
2. J.G. Silverman, A. Raj, L.A. Mucci & J.E. Hathaway, Dating Violence
Against Adolescent Girls and Associated Substance Use, Unhealthy Weight
Control, Sexual Risk Behavior, Pregnancy, and Suicidality, 5 Journal of the
American Medical Association 286, at 572-79 (August 2001) (hereinafter
Dating Violence Against Adolescent Girls).
3. City of New York Teen Relationship Abuse Fact Sheet (March 1998);
Uniform Crime Reports, Federal Bureau of Investigation (1991).
4. L.L. Davidson, Prevalence of Intimate Partner Violence in Urban Young
Women: Experiences with Disclosure in Health Care Settings, American
Public Health Association presentation, Washington, DC (2004).
5. Domestic Violence Fact Sheet, Mayor’s Office to Combat Domestic
Violence (November 2005); Report of the Public Advocate Betsy
Gotbaum, Opening the Door: Looking at New York’s Response to
Domestic Violence 13 Years After “Behind Closed Doors,” January 2006.
6. Dating Violence Against Adolescent Girls, supra, note 2.
7. J. Gazmararian, et al., Violence and Reproductive Health: Current
Knowledge and Future Research Directions, 4 Maternal and Child Health
Journal, No. 2 (2000); M. Moore, Reproductive Health and Intimate Partner
Violence, 31 Family Planning Perspectives, No. 6 (1999); J. Silverman, et
al., Dating Violence and Associated Sexual Risk and Pregnancy Among
Adolescent Girls in the United States, 114 Pediatrics, at 220-225 (2004).
8. Gender and Contextual Factors, supra, note 1.
9. Id.

400 Stephanie Nilva and Kristine Herman
10. On average, women leave their abusers seven times before leaving
permanently. June Sheehan Berlinger, Why Don’t You Just Leave Him?
4 Nursing 28, at 34-36 (1998).
11. Gender and Contextual Factors in Adolescent Dating Violence, supra, note 1.
12. Id.; S. Dasgupta, Towards an Understanding of Women’s Use of Non-Lethal
Violence in Intimate Heterosexual Relationships, National Resource Center
on Domestic Violence (February 2001).
13. A DIR only converts the case to an information if in the DIR the
complaining witness has described the incident in her own words, named
the defendant specifically, and signed the document. Clients should be
instructed to write their own description of the incident on the DIR and
sign it, so that the DIR can be used later as potential evidence.
14. According to Family Court Act § 822(a), “Any person in the relation to the
respondent of spouse, or former spouse, parent, child, or member of the
same family or household” may file the petition. Individuals in the “same
family or household” include people related by blood or marriage, people
who are married or divorced, or parents who have a child in common. See
Family Court Act § 812 (1) (a-d).
15. Family Court Act §§ 241 and 249. The CPLR provides for representation
by counsel of minors, and CPLR § 101 applies the CPLR to all matters not
addressed by the Family Court Act. In practice, though, courts have
determined that in paternity proceedings and child support cases involving
minor parties, the FCA applies over the CPLR. Anonymous v Anonymous,
70 Misc 2d 584, 585 (Fam Ct Rockland 1972); Tiffany DD v James EE,
203 AD2d 688, 688-689 n 2 (3d Dept 1994).
16. Though CPLR § 1201 prescribes representation for a minor, the CPLR
provisions only apply where the Family Court Act does not designate
procedure. Family Court Act § 165 (a) and CPLR § 1201. Because Family
Court Act §§ 241 and 249 preempt application of the CPLR by indicating
the manner in which minors can be represented, which can include no
representation, representation in Family Court is not mandatory in Article 8
proceedings for minors.
17. Though the New York State Social Services Law defines a “victim of
domestic violence” as someone “over the age of sixteen,” the Family Court
Act has no such designation. Social Services Law § 459-a.
18. Bureau of Justice Special Report: Intimate Partner Violence (May 2000).

23
Domestic Violence in the Lesbian, Gay,
Bisexual, and Transgender Communities 1
by Sharon Stapel
Domestic violence in the lesbian, gay, bisexual, and transgender (LGBT) 2
communities is an often ignored, sometimes confused, and rarely discussed
problem. For the LGBT communities fighting for equality and the legitimization
of their relationships, it can be difficult to admit that battering occurs. Many
traditional models for addressing domestic violence assume intimate partners
are heterosexual and omit reference to LGBT victims or craft solutions that fail
to account for the impact of sexual orientation or gender identity. Some
advocates and organizations may not know how to even begin to talk about the
issue because of a lack of familiarity with the language or culture of the LGBT
communities. Civil legal practitioners may want to help with the issue, but find
that few, if any, civil legal remedies exist for LGBT clients.
This article will explore the issue of intimate partner violence in the LGBT
communities and the civil legal remedies that address this violence. Some legal
remedies discussed in this article were crafted specifically to address domestic
and intimate partner violence. However, since many survivors of violence in the
LGBT communities cannot invoke the entire spectrum of remedies available for
heterosexual survivors of domestic and intimate partner violence, also discussed
are more creative, and perhaps less common, uses of law.
The lesbian, gay, bisexual, and transgender communities are not
interchangeable. For practitioners new to the issues of the LGBT communities,
some of the language used to describe LGBT people and their partners or their
identities can be confusing. Gender identity is often confused with sexual
orientation. Sexual orientation is commonly defined as our preference for sexual
partners — either same or opposite-sex partners. Lesbians generally identify
themselves as women who partner with other women. Gay men generally
identify themselves as men who partner with other men. Bisexual people often

402 Sharon Stapel
identify themselves as people who partner with same and opposite-sex partners.
Gender identity, on the other hand, is commonly defined as a sense of ourselves
as masculine, feminine or at some other point along that spectrum. Transgender
people may define themselves as male or female or in a differently defined
gender (or lack of gender). While some trans people do identify as “queer”
(either because they are involved in same-sex relationships or because their
sexual orientation is not “straight”), others define their sexual orientation as
straight or heterosexual.
Defining LGBT Domestic and Intimate Partner Violence
Defining Domestic Violence
Domestic, or intimate partner, violence occurs within the lesbian, gay and
bisexual communities with the same statistical frequency as in the heterosexual
community. 3 According to the American Bar Association Commission on
Domestic Violence the prevalence of domestic violence among gay and lesbian
couples is approximately 25 to 33%. 4 Each year, between 50,000 and 100,000
lesbians and as many as 500,000 gay men are battered. 5 Although few studies
have been done, preliminary data suggests that domestic violence may occur at
a higher rate in transgender relationships. 6
As in the heterosexual communities, domestic violence in the LGBT
communities is generally defined as a pattern of behavior where one partner
coerces, dominates, or isolates the other partner. It is the exertion of any form of
power that is used to maintain control in a relationship. 7 The violence can be
physical, emotional, psychological or economic. Same-sex batterers use forms
of abuse similar to those of heterosexual batterers. However, some forms of
battering are unique to the LGBT communities. Batterers have an additional
weapon in the threat of “outing” their partner’s sexual orientation or gender
identity to family, friends, employers, landlords or other community members. 8
Same-sex survivors of domestic violence faced with custody battles may worry
that their sexual orientation will negatively impact their case and decide to stay
with an abuser rather than risk losing custody or visitation rights. Batterers who
abuse their transgender partners often tell their partners that no one will
understand or love them because of their gender identity or transition process, or
they may threaten to throw out their transgender partner, leaving the survivor
homeless and facing dangers in the streets, the homeless shelters and the job
market. Survivors may face further isolation because they are reluctant to access

Domestic Violence in the LGBT Communities 403
services that are not perceived as LGBT-friendly. For some LGBT survivors,
their batterer may be the first person to accept their sexual orientation or gender
identity and batterers may use this knowledge to keep a survivor isolated.
Barriers to Service for LGBT Survivors
It can be difficult for a LGBT survivor to access services. Models based on
heterosexual relationships can be alienating and seemingly irrelevant to samesex
survivors. Survivors who must out themselves to service providers may be
afraid that they will be treated disrespectfully or be denied services. LGBT
survivors may not have the energy to educate advocates unfamiliar with LGBT
communities about their experiences and cultural norms. LGBT survivors also
may understand the restricted access they have to civil legal remedies and may
not seek services because it is unclear that the law will afford protection.
Some of these barriers can be easily overcome by services providers. It is
important for practitioners to become and remain educated about social and
legal issues specific to the LGBT communities. 9 As discussed below, it is
important to avoid assumptions. It is also important for practitioners to
challenge their own service provision models and to make sure these models are
LGBT inclusive. Practitioners should consider displaying literature that
advertises LGBT-specific services, support groups and legal service providers in
a waiting room or office. Most importantly, practitioners should form
meaningful collaborations with service providers who have worked with LGBT
intimate partner violence. LGBT domestic violence is as much an anti-violence
issue as it is an LGBT issue.
Interviewing LGBT Clients
To plan for safety and find legal remedies and strategies with clients,
practitioners need complete histories of the relationship with the abuser and the
violence. As with all clients, it is important to obtain this information in a neutral,
respectful manner. When meeting with all clients, it is important to avoid
assumptions and to allow clients to describe and define their own identity and the
identity and gender of the batterer, and to name the violence in their own
language. Nonetheless, lawyers and advocates inevitably will find themselves in
situations where they are still unsure of how clients identify their sexual
orientation, their gender identity or that of their partner. In those cases, it is best
to ask clients what language they would use to describe themselves, their partner
or their situation. 10 As when working with all clients experiencing violence,

404 Sharon Stapel
practitioners can best create a common understanding by using the language
clients use to describe themselves or the events that have happened to them. 11
While most practitioners work diligently to create an atmosphere of
tolerance and respect, there are times when inaccurate assumptions may arise.
For example, advocates working within the anti-violence communities often
assume (not without reason) that most victims are women and most perpetrators
are men. However, referring to an abuser as “he” or “your boyfriend” or
“husband” is likely to cause a lesbian client to wonder how safe she is in
“coming out” about her sexual orientation and the gender of her abuser. There
are many ways to welcome clients who identify as LGBT. Consider the
following suggestions for law offices and lawyers:
Use gender-neutral terms until the client identifies the abuser’s
gender (e.g., “So what is your partner’s name?” instead of
“What is his name?”).
Ask respectfully how they identify and what pronouns they
prefer. Questions about a transgender client’s sexual organs,
sexual-reassignment surgery status (many transgender people
never have sexual reassignment surgery), hormone status or
any other clearly private matter as a way to establish a client’s
identity are inappropriate in all circumstances. As in any other
situation, these questions are intrusive and embarrassing. If a
definition of the transition process is necessary for a legal
theory or remedy, practitioners should explain to the client why
they are asking an admittedly personal and invasive question.
Create intake forms that are neutral in tone. For example,
instead of “Gender: F or M,” use “Gender: ________,” which
allows transgender clients to self-identify. Also consider using
language like “partner” instead of “boyfriend” or “husband”
on written materials.
Instead of using the phrase “battered women” — which may
alienate battered gay men and transmen — use gender-neutral
language like “victim” or “survivor.”
Consider making all office bathrooms gender neutral.
Transgender clients face pervasive and often violent
discrimination in attempting to go about the everyday business
of their lives. Transgender clients are often harassed for using
bathrooms appropriate to their gender identity and gender

Domestic Violence in the LGBT Communities 405
neutral bathrooms can alleviate unnecessary strain and anxiety
for clients.
Once practitioners have a basic understanding of clients’ gender identity or
sexual orientation and that of their abusers, it is important to continue to guard
against assumptions. As in all interviews, practitioners should ask detailed
questions that allow clients to explain their story; this is particularly true with
LGBT survivors who may not have the same cultural assumptions or life
experiences as the practitioner. Practitioners should also expect that they will
make mistakes while learning to work with LGBT-specific intimate partner
violence issues; however, it is generally enough to acknowledge the error,
correct it and move on. This will not only demonstrate respect for the client, but
it will also avoid placing the burden of educating practitioners about LGBT
issues on a survivor who is in the midst of a personal and traumatic time.
Identifying the Victim or the Abuser
Assumptions are easy to make but can have devastating effects. Assuming
that the more “butch” or masculine-acting (or identifying) partner in a lesbian
relationship is an abuser, or assuming that the more effeminate-acting (or
identifying) partner in a gay male relationship is the victim, creates not only a
barrier to talking with clients, but also a potential erroneous analysis of who is
the victim and who is the perpetrator in the relationship. The process of
identifying perpetrators in a same-sex relationship can be fraught with difficulty,
but it is a critically important process to assuring a victim’s safety and
preventing a batterer from entering a support system meant for victims. 12
Instead of relying on gender stereotypes practitioners must look to factors that
indicate typical behaviors of an abuser or a victim. For example, victims are
more likely to blame themselves, to minimize violent attacks, to excuse the
behavior of their abuser, or to hesitate to take action against the abuser. Abusers
are more likely to blame the victim, to use aggressive and hostile language in
describing incidents, and they may exhibit a sense of entitlement in punishing
their partner. 13 Careful consideration of the totality of the circumstances made
after investigation into the issues is the best way to determine who is the victim
and who is the abuser.

406 Sharon Stapel
Overview of Legally Recognized LGBT Relationships in New
York City and New York State
Legal Recognition of Partnerships Between Same-Sex Couples
While same-sex battering in many ways mirrors heterosexual battering, both
in type and prevalence, LGBT victims receive fewer protections. Despite
legislative advances, many laws fail to recognize a legal relationship between
same-sex intimate partners. 14 The legal recognition that a court or statute gives
to a relationship largely defines the remedies available to the parties in that
relationship. For bisexual and transgender people involved with someone of the
opposite gender15 the relationship may be defined as a traditional “straight”
relationship for the purposes of marriage licenses, domestic partnerships or
other opposite-sex specific relationship criteria as defined in the Family Court
Act or Domestic Relations Law.
For lesbians, gay men, bisexuals, and trans people involved in a same-sex
relationship, the process of determining whether the relationship is legally
recognized is a bit more difficult.
Same-sex marriage and civil unions are not recognized in New York City or
New York State. 16 Domestic partnerships are recognized by a few localities, 17
but they do not confer the general state and federal protections or privileges of
marriage and do not give partners direct access to traditional legal protection
from domestic violence. 18
New York courts and legislative efforts have created some recognition for
same-sex couples; however, few of these rights apply to protections from
domestic violence. 19 One significant right that might help victims of domestic
violence is compensation from the Crime Victims Board for same-sex
domestic partners of crime victims, which was recently extended to all
domestic partners. 20
The Family Court Act (FCA) defines “family” as relationship through blood
or marriage (spouse or former spouse, or in-laws) or a child in common. 21 This
definition could include bisexual and transgender clients who marry oppositesex
partners and same-sex couples who adopt a child in common. 22 However,
this definition of family prevents the majority of LGBT people in long-term,
committed relationships, most of whom are not married and do not have a child
in common, from obtaining relief in Family Court. 23

Domestic Violence in the LGBT Communities 407
Domestic Violence Specific Legal Remedies for Same-Sex
and Trans Survivors of Domestic Violence
Orders of Protection in Criminal Court
Although same-sex couples without children in common are ineligible for
civil orders of protection, Criminal Court orders are available. Under the
expanded New York City Police Department definition, family or household
also includes persons who are not legally married but are currently living
together in a family-type relationship; are not legally married but formerly
lived together in a family-type relationship; and registered NYC domestic
partners. LGBT victims of domestic violence are protected by mandatory arrest
laws only if the police respond to an abusive incident as a domestic incident
committed by a “family or household member.” An appellate court has ruled
that a domestic violence incident report (DIR) should be filled out even when
the parties are not a “family member” within the meaning of the Family Court
Act. 24 However, police department practices vary throughout the state.
The content of the order of protection obtained in Criminal Court will have
different terms depending upon whether the parties meet the definition of
“family” under the Family Court Act. Criminal Procedure Law (CPL) allows for
protection for victims of family offenses, when the parties have a relationship of
“family” as defined by the Family Court Act, with the following provisions: 25
stay away;
visitation;
“refrain from committing a family offense;”
refrain from creating an unreasonable risk to the health, safety
or welfare of a child, family or household member; and
permission to enter a residence to remove personal belongings.
In contrast, the CPL section that governs victims of crimes other than
family offenses grants Criminal Court power to issue only orders with
provisions to: 26
stay away; and
refrain from harassment, intimidation, threats or other
interference.

408 Sharon Stapel
Although New York does not allow most LGBT people to use the Family or
Supreme Court to obtain orders of protection, the New York City Criminal
Court has held that New York Courts must give full faith and credit to
protection orders from other states, even if they are issued to a same-sex couple
who would not be entitled to the same relief in New York. 27
Custody and Visitation
When there is a legal relationship between the child and both same-sex
partners or opposite-sex bisexual or transgender partners, whether through
adoption, marriage or an order of filiation, the courts in determining custody and
visitation matters look to the “best interests of the child.” The Domestic
Relations Law requires a court to consider the effect of domestic violence upon
the best interests of the child in determining custody or visitation and applies to
LGBT custody determinations. 28 If there is no legal relationship between the
child and one of the partners, the courts treat the non-related parent as a
“stranger,” who must show extraordinary circumstances, such as the unfitness of
the parent, before the courts will consider the child’s best interest.
New York Courts have afforded no help to same-sex partners who have not
adopted the child of their partner. The New York Court of Appeals has held that
a long-term same-sex partner who planned with the biological mother to
conceive children with the intent of raising the children as a family does not
have a right to visitation unless the child has been adopted. 29 New York courts
have also held that the doctrine of equitable estoppel was unavailable to a samesex
partner and that parens patriae does not provide a basis for granting
standing to a former same-sex partner of the biological mother of two siblings,
one of whom the partner adopted and the other she did not, to seek custody of
the non-adopted child. 30
Public Assistance and LGBT Domestic Violence
Given the problems obtaining civil orders of protection for LGBT clients
and the attendant problems using the criminal system, safety planning often
takes the form of increased financial assistance for LGBT survivors of domestic
violence. New York State’s Sexual Non-Discrimination Act (SONDA) 31
prohibits discrimination on the basis of sexual orientation in employment,
education and housing accommodation. 32 Under New York City and New York
State anti-discrimination law, LGBT public assistance recipients should be
treated as any other public recipient is treated. Sexual orientation has no effect
on eligibility for public assistance, and the Family Violence Option (also known

Domestic Violence in the LGBT Communities 409
as the “domestic violence waiver”) is available to LGBT survivors. 33 Prejudice
and confusion about sexual orientation or gender identity issues may, however,
make getting public assistance more difficult.
Housing and LGBT Domestic Violence 34
Many LGBT survivors of domestic violence, like other survivors, face
homelessness; however, homeless shelters, even domestic violence shelters,
often do not provide appropriate services for LGBT survivors. Under New York
City and New York State anti-discrimination law, LGBT homeless and
subsidized housing tenants should be treated in a non-discriminatory manner.
However, it is not considered discriminatory to refuse to shelter gay men if a
shelter is a single sex unit for women, since anti-discrimination laws specifically
allow single gender shelters. 35 There are also specific problems for trans clients
who may be identified by their sex assigned at birth and therefore assigned to
the wrong single sex shelter. However, the Department of Homeless Services
(DHS) has released a very helpful policy directive regarding sheltering
transgender clients in homeless shelters. The DHS policy states that “a client’s
gender is determined by his or her gender identity,” and gender identity shall be
determined by asking “the client how he or she identifies, irrespective of legal
documents or physical appearance.” 36
All domestic violence survivors who are in imminent danger and have no
safe place to live are eligible for shelter regardless of sex, gender, immigration
status, family size or income, state or community of origin, or any other factor.
However, because of space restrictions some shelters may limit the number of
beds available for large families, single people, men, older male children, or
residents with special needs. 37
Non-Domestic Violence Specific Civil Legal Remedies
Because the legal system does not provide many of the “safety” protections
that we generally rely upon when working with survivors, such as orders of
protection and the myriad relief that accompanies these orders, it is important to
consider other legal remedies that might be available to LGBT intimate partner
violence survivors. An LGBT survivor of intimate partner violence may be able
to bring a breach of contract action, 38 or invoke the laws of partnership, 39
constructive trust, 40 conversion, 41 replevin, 42 or tort. 43 Clients may also want to
consider using Small Claims Court. 44

410 Sharon Stapel
Housing Remedies for LGBT Relationships:
Although LGBT people may not be entitled to exclusionary orders of
protection through Family Court or Criminal Court, they may bring eviction
actions against their partners in Housing Court. The issue in these cases will
likely focus on who is the primary tenant. The Court of Appeals recognized that
same-sex partners may qualify as “family members” under rent control law,
which may create difficulties in evicting a same-sex partner. 45 On the other hand,
an abused same-sex partner may have protection from eviction. In New York
City, courts have held that a “co-habitant” who lives with but is not married to
the tenant and who claims to be a “spouse equivalent” cannot be evicted in a
summary proceeding as a licensee (a person who enters the premises with
permission of a person entitled to possession, called the licensor). 46
New York’s Roommate Law47 could be helpful in defending an eviction
against a landlord who may be working with an abuser to evict the battered
partner. The roommate law48 permits a tenant to have one unrelated roommate.
An LGBT survivor who is excluded from an apartment without possessions may
file an Action of Ejection (otherwise referred to as an Action to Recover
Possession of Real Property) to recover possession, damages, and costs from the
person possessing the property. A plaintiff may sue for damages for withholding
the property, including the rents and profits or the value of the use and
occupation of the property for a term not exceeding six years. 49
Conclusion
As LGBT communities and allies struggle to obtain legal recognition and
protections for themselves, their partners, and their children, these communities
are also confronting intimate partner violence. Anti-violence service providers
must be aware of, and educated about, issues specific to the LGBT
communities, and they must be willing to work in coalition with LGBT
organizations to address LGBT intimate partner violence.

Notes
Domestic Violence in the LGBT Communities 411
1. The author would like to acknowledge the substantial contributions made
to this article by Virginia Goggin, a New York Law School student, whose
work made this article possible. Thanks also go to Jane A. Slater, a student
at Columbia Law School, for her help with research.
2. Lesbian, gay, bisexual, and transgender (also referred to as “trans”)
communities can also be referred to as the “queer” community and include
people who identify as queer, questioning, two-spirited, gender variant,
genderqueer, bigendered, intergender, intersex, same gender loving, and/or
by any other terms that indicate self-definition of gender identity and/or
sexual orientation. For an excellent description of all of these terms, see Eli
Green’s “LGBTQI Terminology,” http://www.trans-academics.org/
LGBTQITerminology.pdf (last visited Apr. 5, 2006).
3. D. Dolan-Soto & S. Kaplan, New York Lesbian, Gay, Transgender and
Bisexual Domestic Violence Report, 2003-2004: A Report of the New York
City Gay and Lesbian Anti-Violence Project, http://www.avp.org (last
visited May 1, 2006).
4. http://www.abanet.org/domviol/stats.html (last visited Apr. 5, 2006).
5. Id.
6. From “Sexual Assault in the Transgender Community,” an excerpt by
Arlene Istar Lev and S. Sundance Lev,
http://my.execpc.com/~dmmunson/Nov99_7.htm (last visited Apr. 5, 2006).
This may be due to societal transphobic responses to transgender people.
See, http://www.survivorproject.org/survivor.html (last visited Apr. 5, 2006).
7. This definition is found in the New York City Gay and Lesbian Anti-
Violence Project’s training materials entitled “Domestic Violence: Working
with Lesbian, Gay, Bisexual, Transgender and Questioning people,” and
used with permission. Materials on file with the authors.
8. As further explained by the New York City Gay and Lesbian Anti-Violence
Project, “LGTB abusers have some additional tools at their disposal;
heterosexism, homophobia, transphobia and biphobia. Heterosexism refers
to the presumption that heterosexual relationships are the ‘right,’ only or
preferred form of relationship. Homo/trans/bi-phobias refer to fear,
ignorance and hatred of LGTB persons. Heterosexism, as well as the other
phobias, can be exhibited or used by people of any sexual orientation or
gender identity. LGTB abusers use these biases and stigmas to convince

412 Sharon Stapel
their victims that no one else will care about them, and that if victims seek
assistance from others, they may be at risk for bias or even abuse,
unfortunately not an unfounded concern. LGTB abusers may also use these
biases within relationships to control their victims’ forms of self-expression
or social contact with others.” D. Dolan-Soto & S. Kaplan, New York
Lesbian, Gay, Transgender and Bisexual Domestic Violence Report, 2003-
2004: A Report of the New York City Gay and Lesbian Anti-Violence
Project, http://www.avp.org/ (last visited May 1, 2006).
9. For more information on LGBT domestic violence and referrals throughout
the state, contact: The New York City Gay and Lesbian Anti-Violence
Project, 240 West 35th Street, Suite 200, New York, New York 10001,
(212) 714-1184, http://www.avp.org, or visit the websites found in the
endnotes of this article.
10. This might be uncomfortable for practitioners unfamiliar with the language
or culture of the LGBT communities. However, practitioners can best help
clients when they strive to understand the cultural norms and community
mores of clients whose experiences are different from their own.
11. See Dorchen A. Leidholdt’s chapter “Interviewing Battered Women” in this
publication.
12. This appears to be a common tactic of batterers in same-sex relationships,
according to the New York City Gay and Lesbian Anti-Violence Project.
Often, batterers request services pretending to be the victim, both to
prevent the victim from accessing services and to keep track of the victim’s
options in reaching out for assistance. There is no way to figure out which
partner is statistically more likely to be the batterer based on gender in
same-sex relationships. Therefore, practitioners must be vigilant in both
welcoming LGBT clients but also be more deliberate in engaging in a
victim/aggressor analysis of the relationship.
13. None of these factors is determinative, of course. It should be mentioned
that many clients who are victims are also seeking “justice” or want their
abuser “to pay.” This is a typical and normal reaction and may not indicate
that the client is an abuser. However, these factors, viewed through the
totality of the circumstances, including any past accusations of abuse
against the client, can be helpful in determining who is the aggressor. For
more information about this topic, contact The New York City Gay and
Lesbian Anti-Violence Project, http://www.avp.org.

Domestic Violence in the LGBT Communities 413
14. Insured same-sex live-in partner was not a “spouse” entitled to
underinsured motorist coverage under the supplementary uninsured
motorist clause in the named insured’s automobile policy, even if the word
“spouse” could be understood to include same-sex partners living together
in a spousal-type relationship, absent evidence that the relationship
between the two was of this nature. Dicta suggested that with evidence,
same-sex couples might qualify as “spouse.” Ortiz v NYC Transit
Authority, 267 AD2d 33 (1st Dept 1999). Unmarried same-sex couples are
not considered “surviving spouses” under the Estates Power and Trust
Laws (EPTL). In the Matter of Cooper, 149 Misc 2d 282 (Sur Ct Kings Co
1990), aff’d, 187 AD2d 128 (2d Dept 1993), lv dism, 82 NY2d 128. Nor
was a domestic partner of a flight attendant who died in an airplane crash a
“surviving spouse” for purposes of seeking death benefits. Valentine v
American Airlines, 17 AD3d 38 (3d Dept 2005). Similarly, derivative lossof-consortium
claim can not be maintained based on claimant’s status as
registered domestic partner in New York City because lawful marriage is
required. Lennon v Charney, 797 NYS2d 891 (Sup Ct, Westchester County,
2005). Most recently, the Appellate Division, Second Department held that
a surviving partner of a same-sex Vermont civil union was not a “surviving
spouse” within the meaning of the EPTL’s definition of classes of
decedent’s distributees and therefore could not bring a wrongful death
action arising from his partner’s death. The Court of Appeals dismissed
appeal from the Second Department. Langan v St. Vincent’s Hospital of
New York, 196 Misc 2d 440 (Sup Ct Nassau Co 2003), rev’d, 2005 WL
2542658 (2d Dept 2005), app dism, 6 NY3d 890 (2006).
15. Although we have found no case law on point, from speaking to trans
activists and attorneys it appears that, for the purposes of the Family Court
Act or Domestic Relations Law, the courts will likely define an “opposite
gender” partner as a partner with the gender that is the opposite of the trans
client’s birth certificate gender (and not his/her gender identity if it is
different from that of the gender on his/her birth certificate). For example,
a male-to-female transwoman would identify as a woman, but if her birth
certificate still reflects “male” as a gender, the courts will likely, for the
purposes of granting marriage licenses, etc., define her as “male.”
16. The Court of Appeals, in Hernandez v Robles, 794 NYS2d 579 (Sup Ct,
NY County, 2005), rev’d and vacated, 26 AD3d 98 (1st Dept 2005), aff’d,
2006 WL 1835429 (2006), held that the Domestic Relations Law
prohibited same-sex marriage and did not violate the equal protection or
due process clauses of the New York State Constitution, and that “. . .
whether such marriages should be recognized is a question to be
determined by the Legislature.”

414 Sharon Stapel
17. See, e.g., New York City (NYC Admin. Code § 3-241 (2000)), Buffalo,
Westchester County (Westchester County Domestic Partnership Registry),
City of Rochester (Roch. Charter & Code v.9 (N.Y.) § 47B), City of Ithaca
(1990), and Albany (1996).
18. When recognized, domestic partnerships do confer privileges and a legal
status to same-sex couples who are so partnered. See
http://nycmarriagebureau.com/about/domesticpartnership.html (last visited
May 2, 2006). In New York City, the rights conferred by a New York City
domestic partnership include: bereavement leave and childcare for NYC
employees; visitation in correctional and/or juvenile detention centers;
visitation in facilities operated by the NYC Health and Hospitals
Corporation; eligibility to qualify as family member to be added by New
York City Housing Authority (NYCHA) to an existing tenancy as a
permanent resident; eligibility to qualify as family member entitled to
succeed to the tenancy or occupancy of a tenant or cooperator in buildings
supervised by or under the jurisdiction of the Department of Housing
Preservation and Development; health benefits provided by NYC to its
employees and retirees and eligible members of their family pursuant to
stipulation or collective bargaining. However, a domestic partner does not
qualify as a “family or household member” under the Family Court Act.
19. In 2001-2002, the Governor and the State Legislature also recognized
same-sex surviving partners of gay victims of the September 11, 2001,
World Trade Center attacks as “surviving spouses” for the purposes of
receiving benefits from the Crime Victims Board (Executive Order No.
113.30, 9 NYCRR 5.113.30 (Oct. 10, 2001)), for the September 11 Federal
Fund awards (see also, September 11th Victims and Families Relief Act,
2002 Session Law News of NY, ch 73), workers compensation death
benefits (2002 Session Law News of NY, ch 467, S7685), and the State’s
World Trade Center Memorial Scholarship Program (2002 Session Law
News of NY, ch 176, S7792). This law includes same-sex surviving
partners and their children. In 2004, the Governor and the State Legislature
passed a bill allowing domestic partners the right of visitation accorded to
spouses and next-of-kin at any hospital, nursing home or health care
facility. NY Pub Health § 2805-q (2004). The State has extended the right
to same-sex partners of credit union members to become members and
have full access to banking services (2003 Session Law News of NY, ch
679, S5590). In February 2006, the Governor signed the Control of
Remains Bill that extends control of a partner’s corpse to include domestic
partners, both same-sex and opposite-sex. The bill gives equal standing to
spouses and domestic partners above blood relationships like adult

Domestic Violence in the LGBT Communities 415
children, parents and adult siblings. (Available at:
http://www.prideagenda.org/pressreleases/pr-02-03-06.htm (last visited Apr.
5, 2006).)
20. This protection extends to all crime victims, not just September 11th
victims. 9 NYCRR Sec. 525.1, 525.2 (2004).
21. FCA § 812(1), § 821. A bill expanding the definition of “family” for the
Family Court Act that would allow LGBT people (among other unrelated
persons in intimate or dating relationships) access to the Family Court has
been proposed by the New York State Legislature since 1988. For the
2005-2006 Legislative Session bill, see A05052/S4303, proposed by
Assemblywoman Weinstein, http://assembly.state.ny.us/leg/?bn=A05052
(last visited Apr. 5, 2006).
22. It is well-established that same-sex couples in New York may adopt
children in common, and applications for adoption may not be denied on
the basis of the applicant’s sexual orientation. In re Adoption of
Anonymous, 209 AD2d 960 (4th Dept 1994); 18 NYCRR § 421.16(h).
Same-sex partner of a child’s biological mother may adopt the child
regardless of the partner’s sexual orientation. Matter of Jacob, 86 NY2d
651 (1995). Same-sex couples may adopt jointly, known as two-parent
adoptions. In re Adoption of Carolyn B., 6 AD3d 67 (4th Dept 2004). This
adoption of a child confers upon the two parents a legally recognized
relationship. New York also permits gay men and lesbians to become foster
parents. In re Adoption of Jessica N. and Another, Infants, 202 AD2d 320
(1st Dept 1994). Adoptions by same-sex couples, when challenged by one
partner after a break up, will not lightly be set aside. Turner v Hembrooke,
12 AD3d 966 (3d Dept 2004).
23. Also excluded from this definition are opposite-sex couples who choose not
to get married and do not have children in common and teenagers who are too
young to marry and do not have children in common, among other groups.
24. Groves v State University of New York at Albany, 265 AD2d 141 (3rd Dept
2000).
25. CPL § 530.11.
26. CPL § 530.13.
27. People v Hadley, 172 Misc 2d 697 (Crim Ct NY Co 1997).
28. Domestic Relations Law § 240(1).
29. Alison D. v Virginia M., 77 NY2d 651 (1991).

416 Sharon Stapel
30. See C.M. v C.H., 789 NYS2d 393 (Sup Ct, NY County, 2004); Janis C. v
Christine T., 294 AD2 496 (2d Dept 2002); Multari v Sorrell, 287 AD2d
764 (3d Dept 2001).
31. 2002 Session Law News of NY, Ch 2, A1971.
32. Notably, SONDA does not protect transgender people from discrimination
based on gender identity, although if a trans person identifies as gay, lesbian
or bisexual, and is discriminated against because of sexual orientation and not
gender identity, the discrimination would be prohibited under SONDA. Many
argue that the “gender” and “sex” clauses in the New York State Human
Rights Law protect trans people from gender identity discrimination;
however, the New York City Administrative Code was recently amended to
more clearly and accurately reflect this intention in New York City.
Guidelines interpreting the Human Rights Law that was passed to protect
New Yorkers from discrimination on the basis of gender identity or
expression in 2002, http://www.srlp.org/documents/trans_guidelines_final.pdf.
The New York State Legislature has introduced legislation to prohibit
discrimination on the basis of gender identity and expression in employment,
housing, credit, education and public accommodations under A.7438/S.4794
(2005-2006 Legislative Session).
33. For a detailed discussion on the Family Violence Option and other public
assistance considerations for domestic violence survivors, see Amy
Schwartz and Sharon Stapel, “Public Assistance and Housing: Helping
Battered Women Navigate Difficult Systems,” in this publication.
34. For a discussion of other domestic violence related housing options, see
Amy Schwartz and Sharon Stapel, “Public Assistance and Housing:
Helping Battered Women Navigate Difficult Systems,” in this publication.
35. See New York City Human Rights Law 8-107 (5)(k): Applicability;
dormitory-type housing accommodations. The provisions of this
subdivision that prohibit distinctions on the basis of gender and whether
children are, may be or would be residing with a person shall not apply to
dormitory-type housing accommodations including, but not limited, to
shelters for the homeless where such distinctions are intended to recognize
generally accepted values of personal modesty and privacy or to protect the
health, safety or welfare of families with children.
36. DHS Policy No. 06-1-31 (Jan. 31, 2006).
37. Although lesbians and bisexual women generally do not have trouble
finding shelter space designated for women, often the shelter is not equipt
to address issues of sexual orientation or same-sex violence. Gay men, as

Domestic Violence in the LGBT Communities 417
all men do, have a more difficult time finding domestic violence shelter
because many shelters have dormitory style housing and therefore may be
designated as single sex. Trans clients, particularly those whose birth
certificates reflect their birth sex and not gender identity, and trans clients
who do not “pass” as easily in their gender identity presentation (e.g., a
“masculine” looking transwoman), are often denied shelter or are sheltered
in an inappropriate single sex shelter based on their birth, not identity,
gender. The most commonly heard reason for turning transwomen away
from women-only DV shelters is that the other shelter residents will not
feel comfortable with a transwoman. This is transphobia and must be
addressed through education and information to shelter staff and residents.
Safe Horizon has a dedicated apartment for LGBT clients and have housed
gay, lesbian, and trans women to date. Safe Horizon attorneys work closely
with the New York City Anti-Violence Project (AVP) and receive both
LGBT referrals and on-going training from AVP.
38. Generally New York does not recognize an implied contract for the
rendition of services by an unmarried couple living together because courts
assume the relationship between the parties makes the rendering of such
services naturally gratuitous. Morone v Morone, 50 NY2d 481 (1980).
However, in Moors v Hall, the Second Department suggested that an
individual may be entitled to quantum meruit recovery for the reasonable
value of the domestic services rendered while in an unmarried relationship.
143 AD2d 336 (2nd Dept 1988). It is important to note that in Moors v
Hall, the couple maintained separate residences and the male partner
acknowledged on several occasions that he would pay his female partner
for the services rendered. Generally, a major obstacle to recovery in
quantum meruit is the presumption that services rendered between
members of the same household have been performed gratuitously.
46 AMJUR POF 2d 495 (2006). Presumably, LGBT partners could
similarly sue for services rendered and face the same obstacles.
39. In Cytron v Malinowitz, the Kings County Supreme Court determined a
domestic partner seeking a portion of the proceeds from the sale of a
jointly-owned property in partition action could be determined by the laws
of partnership. 1 Misc 3d 907(A) (Sup Ct, Kings County, 2003). In
determining whether the laws of partnership were appropriate, the Court
looked at whether the parties had so joined their property, interests, skills
and risks so that contributions have become as one and interest of the
parties has been made subject to each of the parties. Such a partnership
need not have been agreed to in writing. The fact that there is no written
agreement will merely be one element to be considered in determining

418 Sharon Stapel
whether a partnership existed. A court will look at the relevant testimony,
conduct, and documentary evidence. Hanlon v Melfi, 102 Misc 2d 170
(Sup Ct, NY County, 1979). However, courts have held that oral contracts
are unenforceable under the statute of frauds. Robin v Cook, NYLJ, Oct 30,
1990, col. 1, p. 21 (Sup Ct, NY County).
40. A court may impose a constructive trust as to property to prevent one party
from being unjustly enriched. Generally, such a trust may be imposed upon
a showing of the following four factors: (1) a confidential or fiduciary
relationship; (2) a promise or agreement, express or implied; (3) a transfer
in reliance on such promise or agreement; and (4) unjust enrichment. Thus,
in Minieri v Knittel, the Supreme Court of New York County indicated that
a constructive trust might be appropriate in the case where one party to a
lesbian couple transferred nominal and joint title to her real and personal
assets to her partner in reliance on an oral agreement between them that it
was being held for the transferor and would be conveyed to the transferor
upon request. 188 Misc 2d 298 (Sup Ct, NY County, 2001). Importantly, in
Mineri, the Supreme Court also noted that the above enumerated factors
are not necessarily determinative for the imposition of a joint trust.
41. Conversion is defined as an act or series of acts of willful interference,
without lawful justification, with an item of property in a manner
inconsistent with another’s right, whereby that other person is deprived of
the use and possession of the property. Black’s Law Dictionary, 8th ed.
(2004). Thus it would include such acts as taking possession of a partner’s
property, refusing to give up on demand, disposing of the goods to a third
person, or destroying them. In Tucker v Evanczik, the Fourth Department
determined that by the act of fraudulently signing a partner’s name on a
vehicle registration and then selling the vehicle to a third party constituted
conversion. 78 AD2d 993 (4th Dept 1980).
42. Replevin constitutes an action for the repossession of personal property
wrongfully taken or detained by the defendant, whereby the plaintiff gives
security for and holds the property until the court decides who owns it.
Black’s Law Dictionary, 8th Ed. (2004). Generally, replevin is applicable
only when the property or thing is capable of specific identification or
certain designation. Replevin may be employed to permit the recovery of
chattels of a wide variety of goods including motor vehicles and computer
equipment. Although rarely used, replevin may be a powerful weapon
when an abuser wrongly holds property belonging to the victim.

Domestic Violence in the LGBT Communities 419
43. Because intimate partner violence in many LGBT relationships may not be
pursued in Family Court or Supreme Court, LGBT survivors may consider
civil torts remedies. These torts could include assault, battery, the
intentional infliction of emotional distress, false imprisonment, defamation,
or public disclosure of private facts.
44. Small Claims Court may be used to recover money for damages or
property taken by an abusive partner up to a value of $5,000. The Small
Claims Court is a simple, inexpensive and informal court where people can
sue for money without a lawyer. For more information, see
http://www.courts.state.ny.us/courts/nyc/smallclaims/general.shtml (last
visited May 3, 2006).
45. Braschi v Stahl Assocs., 74 NY2d 201 (1989). The First Department has
extended Braschi to protect same-sex partners in rent-stabilized
apartments. East 10th Street Assocs. v Estate of Goldstein, 154 AD2d 142
(1st Dept 1990). A lower court in the Second Department has also extended
Braschi to protect same-sex partners in rent-stabilized apartments.
LaMarche v Miles, L&T Index No. 078102/04 (NYLJ 11/4/2005).
46. Minors v Tyler, 137 Misc 2d 505 (NY City Civ Ct, 1987). However, a
Nassau County Court, in Blake v Stradford, 188 Misc 2d 347 (NY Dist Ct,
2001), held that a domestic partner was a licensee and subject to eviction.
In Dejesus v Rodriguez, 768 NYS2d 126 (NY City Civ Ct, 2003), the New
York City Civil Court specifically declined to follow Blake.
47. Before the Roommate Law was enacted in 1983, leases could prohibit
tenants from living with anyone other than “family members.” Landlords
regularly used these lease restrictions to evict unmarried couples, including
lesbian and gay couples. The State Legislature passed the Roommate Law
specifically to prohibit landlords from evicting these families based on
their marital status.
48. Real Property Law 235-f.
49. McKinney’s RPAPL § 601.

Appendices
Power and Control Wheel Diagrams

Appendices
Power and Control Wheel Diagrams
Physical and sexual assaults, or threats to commit them, are the most
apparent forms of domestic violence and are usually the actions that allow
others to become aware of the problem. However, regular use of other abusive
behaviors by the batterer, when reinforced by one or more acts of physical
violence, make up a larger system of abuse. Although physical assaults may
occur only once or occasionally, they instill threat of future violent attacks and
allow the abuser to take control of the woman’s life and circumstances.
The Power & Control diagram is a particularly helpful tool in understanding
the overall pattern of abusive and violent behaviors, which are used by a
batterer to establish and maintain control over his partner. Very often, one or
more violent incidents are accompanied by an array of these other types of
abuse. They are less easily identified, yet firmly establish a pattern of
intimidation and control in the relationship.
The diagrams on the following four pages are based on models by the
Domestic Abuse Intervention Project, Duluth, MN, (218) 722-4143. They are
produced and distributed by the National Center on Domestic and Sexual
Violence, (512) 407-9020, and available for download from
http://www.ncdsv.org.

424 Appendices
Appendix A
Power and Control Wheel
Developed by the Domestic Abuse Intervention Project, Duluth, MN.

Appendix B
Immigrant Power and Control Wheel
Adapted from the original wheel by the Domestic Abuse
Intervention Project, Duluth, MN.
Appendices 425

426 Appendices
Appendix C
Teen Power and Control Wheel
Developed from the Domestic Abuse Intervention Project, Duluth, MN.

Appendix D
Lesbian/Gay Power and Control Wheel
Developed by Roe & Jagodinsky; inspired by and adapted from the
Domestic Abuse Intervention Project, Duluth, MN.
Appendices 427

Contributors

Contributors
Liberty Aldrich is the Director of Domestic Violence and Family Court
Programs at the Center for Court Innovation, which provides technical
assistance and training to court administrators and judges on domestic violence
issues in New York State and nationally.
Lori L. Cohen is a volunteer attorney at the Immigration Intervention Project
at the Center for Battered Women’s Legal Services at Sanctuary for Families,
the largest domestic violence service provider in New York State. Prior to
volunteering at Sanctuary for Families, Ms. Cohen taught Immigration Law
at the University of Michigan Law School and served as the Director for the
Office of Immigration Legal Services at the Archdiocese of Detroit.
Elizabeth Cronin is the Director of Legal Affairs for the U.S. Court of Appeals
for the Second Circuit. She is also an adjunct professor in the Criminal Justice and
Sociology Department at Pace University, where she teaches domestic violence
and child abuse, ethics and criminal justice. She was a Deputy Bureau Chief of
the Domestic Violence and Child Abuse Bureau at the Westchester District
Attorneys’ Office, from 1986 until she left for the Court of Appeals in 2000.
Mary Rothwell Davis, an attorney in New York City, is currently developing,
with the National Judicial Education Program of Legal Momentum, a web-based
distance-learning program for judges on Intimate Partner Sexual Abuse. She
also serves as appellate counsel to Sanctuary for Families’ Center for Battered
Women’s Legal Services. She was formerly the court attorney for the State’s
first Integrated Domestic Violence Court in Bronx County and served as law
clerk to Chief Judge Judith S. Kaye.
Julie A. Domonkos is a former Executive Director of My Sisters’ Place,
Westchester County’s domestic violence services and advocacy organization.
She was a co-founder of the Lawyers Committee Against Domestic Violence
and served as its co-chair for over ten years.
Lisa Fischel-Wolovick is currently in private practice in New York City with
an emphasis on matrimonial and family law. She is also an adjunct assistant
professor at Fordham Graduate School of Social Service.
Jill Laurie Goodman is Counsel to the New York State Judicial Committee
on Women in the Courts and co-chair of the Lawyers Committee Against
Domestic Violence.

432 Contributors
Kristine Herman is a J.D./M.S.W. with more than twelve years experience in
the fields of domestic violence and sexual offenses. She is currently serving a
year as the Gender and Human Rights Liaison for the American Bar Association
in Azerbaijan. Prior to her work in Azerbaijan, Ms. Herman worked for the
Center for Court Innovation where she assisted in the creation of the nation’s
first Youthful Offender Domestic Violence Court.
Dorchen A. Leidholdt is the Director of the Center for Battered Women’s Legal
Services at Sanctuary for Families in New York City. She also serves as Co-
Executive Director of the Coalition Against Trafficking in Women (CATW),
which she helped found in 1988, and teaches Domestic Violence and the Law
at Columbia University School of Law.
Betty Levinson is a partner in Gulielmetti Levinson, P.C. Her three decades
of law practice include counseling and litigation in divorce, custody, support,
paternity, and adoption matters in traditional and non-traditional families, with
special expertise in protecting the rights of battered women.
Elizabeth Murno is a family law attorney with extensive experience advocating
on behalf of domestic violence victims. Most recently, Ms. Murno served as Legal
Director for Safe Horizon’s Domestic Violence and Immigration Law Projects.
Stephanie Nilva is the founder and Executive Director of Day One, an
organization that partners with New York City youth to end dating abuse and
domestic violence through community education, legal advocacy, supportive
services and leadership development.
Judy Reichler is a Town Justice in New Paltz. She has been a Support
Magistrate and a Referee in New York City Family Court and sits on the
Unified Court System’s Task Force on Family Violence.
Emily Ruben is the city-wide supervisor of The Legal Aid Society’s Family
Law Practice and co-supervisor of its Domestic Violence Project.
Amy E. Schwartz is the Coordinator of the Domestic Violence Legal Program
for the Greater Upstate Law Project in Rochester, where she provides legal
technical assistance, support, and training to domestic violence attorneys and
advocates throughout New York State.
Lauren Shapiro is the Director of the Family Law Unit at South Brooklyn
Legal Services and specializes in advocacy on behalf of domestic violence
survivors in Family and Matrimonial Courts and parents in child protective
cases. She is the co-chair of the Kings County Family Court Domestic Violence
Working Group.

Hilary Sunghee Seo is Co-Director of the Community Liaison Project at
Sanctuary for Families Center for Battered Women’s Legal Services.
Contributors 433
Sharon Stapel is a Staff Attorney in the Legal Aid Society’s Domestic Violence
Project, which she created in 1998 as a NAPIL (now Equal Justice Works)
Fellow. She specializes in domestic violence in family/matrimonial and public
assistance law, focusing on the effect of these issues on the lesbian, gay,
bisexual and transgender community.
Kim Susser is the Director of the Matrimonial & Family Law Unit at the New
York Legal Assistance Group and also serves as an Adjunct Professor at St.
John’s University School of Law.
Betsy Tsai is a Staff Attorney in the Bronx Community Office of Sanctuary
for Families, Center for Battered Women’s Legal Services. Prior to joining
Sanctuary, she was a litigation associate at Patterson Belknap Webb and Tyler
LLP and a clerk to the Honorable Denny Chin in the Southern District of New
York. Before going to law school, she was a social worker and worked for the
Criminal Court of the City New York on specialized domestic violence courts.
Barbara Weiner is a staff attorney with the Empire Justice Center. Her areas of
practice include immigration law, particularly assistance to immigrant victims
of domestic violence, and public benefits law, with a focus on the eligibility of
immigrants for federal and state public benefit programs.
Wendy Weiser is currently Associate Counsel in the Democracy Program at the
Brennan Center for Justice at New York University School of Law. Formerly,
she was a Senior Staff Attorney at Legal Momentum (the new name of NOW
Legal Defense and Education Fund).
Deborah Widiss is a Staff Attorney at Legal Momentum (the new name of NOW
Legal Defense and Education Fund) where she has principal responsibilities for its
Employment and Housing Rights for Survivors of Abuse project.
Jill M. Zuccardy is a family law attorney and consultant. While employed as
the Director of the Child Protection Project at Sanctuary for Families Center for
Battered Women’s Legal Services, she served as trial and appellate co-counsel in
Nicholson v. Williams, the federal class action lawsuit that successfully challenged
New York City’s practices in child welfare cases involving domestic violence.