Ask A Domestic Violence Lawyer: Taking Time Off Work

For those who are victims of abuse from an intimate partner, the right to take time off from work is provided under federal law. In some situations, state laws may also provide extended leave for employees who are injured due to abuse. It is best to consult a domestic violence lawyer if the workplace does not comply with laws provided.

What Is Domestic Violence?

Domestic violence can be defined as the mental or physical abuse inflicted by a partner. It can often deter the victim from going to work, whether it is for the purpose of obtaining medical assistance or to move to a safer location. Time off may also be required if one person damages or sabotages the others ability to get to work, such as vehicular damage or withholding access to cash.

Because of the increased amount of time away from work that is required to deal with these situations, many states have chosen to adopt domestic violence leave laws that provides time off for victims. In addition to utilizing the Family Medical Leave Act, which provides up to 12 weeks off per year to handle personal or family medical ordeals, these specialized laws permit victims to take time off to attend court proceedings.

Statewide Domestic Violence Leave Laws

The states that currently have these laws in place are very similar in what they cover, but there are variations.

For instance, some may vary in the length of time they offer. Some states provide a set amount of days off while others simply stipulate that a “reasonable amount of time” away is adequate. Other states only require that an employee not be fired due to absence stemming from a domestic abuse incident.

The stated reason for being away is also a consideration that varies. The list of covered activities is different, but may include all or some of the following: seeking mental or emotional counseling, seeking a domestic violence lawyer, going to court, or seeking a restraining order.

In addition, each state has different requirements for the application process. Some employers may need significant notice and extensive paperwork. However, there are typically stipulations in place for emergencies when notice is not an option. Other areas may require written proof for being absent.

The issue of paid days off will also depend on your location. No state requires employers to pay employees for time off. Employees may be able to use accrued hours from vacation or sick days before taking leave.

When dealing with abuse situations, it is crucial to work closely with a domestic violence lawyer to ensure total safety from an aggressor. They can also advise when a victim may need to take time off to deal with all that is necessary in these cases.

New York Domestic Violence Law: How to Get an Order of Protection in Family Court

Generally speaking, domestic violence refers to behavior that one person in an intimate relationship uses to control the other. Examples of such behavior include threats, name-calling, isolation, placing someone in fear of physical harm, stalking and sexual assault. The foregoing list of abusive behaviors is far from exhaustive. Each state has unique procedural and substantive rules to protect family members from domestic abuse.

New York’s substantive domestic violence law is set forth in various sections of the state’s Penal Law, Family Court Act, and Domestic Relations Law. These statutes provide several different procedural options for someone who needs to obtain judicial protection against an abusive family member. The broad and remedial purpose of the foregoing laws is to provide the maximum level of protection for victims of domestic violence. To further this goal, New York is a “mandatory arrest” jurisdiction. This means that the police are required to arrest suspects where there is “probable cause” to believe that the accused has committed, against a spouse, former spouse, family or household member, any felony, misdemeanor family offense, or violation of an order of protection requiring the defendant to stay away from the complainant.

Under New York’s Criminal Procedure Law, members of the same family or household (so as to fall under the protections of the family offense laws) include:

  1. persons related by consanguinity or affinity;
  2. persons legally married to one another;
  3. persons formerly married to one another regardless of whether they still reside in the same household;
  4. persons who have a child in common, regardless of whether such persons have been married or have lived together at any time; and
  5. persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time.

In New York, domestic violence cases are most frequently brought in the Family Court under Article 8 of New York’s Family Court Act. Unlike criminal proceedings, Family Court Article 8 proceedings are generally intended to secure practical protections for victims (such as orders of protection directing offenders to stay away from victims), as opposed to criminal convictions. Court-ordered relief frequently includes orders requiring the offender to vacate a marital residence and cease contact with the petitioner. The Family Court may also order someone to participate in an educational program specifically tailored for perpetrators of domestic abuse.

To obtain an order of protection in New York Family Court, a petitioner must establish that a family offense has occurred. Family offenses include acts constituting disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, menacing in the second degree, menacing in the third degree, reckless endangerment, assault in the second degree, assault in the third degree, or an attempted assault between spouses and/or members of the same family or household. In the context of family offense proceedings, the definition of “disorderly conduct” is broader than in the criminal context, and may include conduct not in a public space. Under Penal Law 240.20, disorderly conduct includes conduct intended to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof. Examples of such conduct include tumultuous or threatening behavior, abusive or obscene language, unreasonable noise, or making an obscene gesture.

Generally, both the New York Supreme Court and the Family Court have jurisdiction to issue an Order of Protection. However, only the Supreme Court has jurisdiction to issue a divorce. Thus, individuals who do not have a marital relationship must seek judicial relief in either the Family Court or Criminal Court.

Occasionally, a spouse may bring an action seeking an Order of Protection in the Family Court, and then subsequently initiate divorce proceedings in the Supreme Court. In such instances, it may be appropriate to consolidate the existing actions. Section 240(3) of New York’s Domestic Relations Law (DRL) authorizes the Supreme Court to enter an order of protection in a matrimonial action.

Given the overlapping remedies and jurisdiction of New York’s Family and Supreme Courts, and the broad array of procedural options, selection of venue and other strategic decisions should be carefully considered and evaluated at the outset of order of protection proceedings with the advice and assistance of an experienced New York family law attorney. In addition to considerations regarding venue, a family law attorney will be able to guide the complainant about important issues regarding preservation of evidence. Frequently, proof of domestic violence hinges on preservation of key communications, such as text messages, voice mails, and emails. Ultimately, these communications will need to be introduced as evidence at trial. Giving careful consideration to strategic and evidentiary considerations at the earliest possible stage is crucial to obtaining a permanent order of protection against an abusive spouse or household member.

How Do I Find a Domestic Violence Lawyer?

Look at this situation, you have just been served of a temporary restraining order prompting you to avoid returning to your house, seeing and even speaking to your kids and your partner. The police are required to escort you to your home to gather up your things in just fifteen minutes. The best thing to do right after this is to contact a skilled domestic violence lawyer to defend your case.

Do not just hire any lawyer you see, make sure that the lawyer who will be defending you already handled a case on domestic violence. This is crucial because you need an expert lawyer to gather essential information, documents and witnesses for you so you can be acquitted of your criminal charge. Hiring between an experienced lawyer versus an inexperienced one could spell the difference between winning or losing your case.

The internet is the best place to start your search for a domestic violence lawyer. There are a lot of websites that can provide you not only with a list of capable lawyers but also information regarding your case. The first criterion you should consider is the solid background of the lawyer in the law field. It is important that the lawyer you would choose is well educated, and more importantly, posses a license to practice law in the state you are in.

Narrow down your search and use your good judgment in doing so. Now that you have a list of qualified candidates, the next thing you should do is to contact each one on your list and schedule for a consultation. The first consultation is usually free of charge so you better take advantage of this. In this meeting, you can explain your case to the lawyer and then he or she will in turn explain to you how he or she will go about the case you just presented. The lawyer can also advise you on the probability of success based on the facts you presented him or her. The consultation process is another important step in finding a domestic violence lawyer to represent your case. You will have the initial feel of working with the lawyer and this will determine whether you like his style or not and whether you trust him enough to defend you in court.

Once you find the lawyer that you think will best represent you, you then have to work out the payment terms for his or her service. Discuss the payment plans with your lawyer. Both of you should agree with the payment terms, if not, you better look for somebody else. Even if he is the best defense lawyer in the state, it will not matter if he will not work for you due to payment disagreements.

The Laws Behind Domestic Violence

“Domestic violence is a criminal matter and needs to stay in criminal court,… Too often, judges see charges of domestic violence as a ploy to get custody and send the case to family court.” – Catherine Campbell.

The Federal government has enacted many domestic violence laws to protect those that are married or in a domestic partnership from being victimized and abused. There are specific laws that deal with stalking, protection, traveling to commit violence, and violence against women. These laws are dealt with specifically on the federal level, and then there are state specific laws as well.

In 1994, Congress joined the fight against domestic violence by enacting legislation as part of the crime bill. Historically, the government did not have jurisdiction over domestic violence related crimes that occurred in the community. These types of crimes were dealt with in the local and state levels. The Congress of the United States recognized that crimes against women and children were posing a serious problem. Congress came up with legislation to address the shortcomings called the Violence Against Women Act (VAWA). This legislation created laws to address some types of domestic violence crimes on the federal level.

The precedent that was set by Congress in 1994 spread to the fifty states also. The states were asked to pass harsher laws dealing with crimes related to domestic violence. As time has passed, laws have been created to address other issues such as stalking, internet stalking, internet related crimes such as communicating threats, and so on.

Laws have been passed to fund help for victims and their children. The government has also made grants available to help states implement more support programs and networks to add victims of this type of crime. There is a national hotline that has also been created to connect victims with someone in their local area to help them with intervention and information.

The federal government has also created programs that rank how states are doing in the fight against dating violence, and are funding more shelters. The government is taking this fight very seriously and is backing their stance with funding and support. How successful have these new laws been? Well this depends upon who you ask. Official statistics show that the domestic violence laws put into place are making a dent in the amount of crimes being reported and being committed. Advocates claim that the instances of domestic violence have increased and are continuing in an upward trend.

We are making progress in the fight in our communities by making more programs and making help available to victims. We are not making progress in decreasing the amount and severity of instances of violence. More funding should be given to rehabilitate the perpetrator of this violence to end the cycle. Adding more severe domestic violence laws to punish might curb some violence but not all.

Domestic Violence – A Defendant’s Survival Guide

Domestic Violence charges are treated differently than most other criminal cases because from the outset of the charge, not the conviction, it is very likely that you will have your home and your children taken from you. We are supposed to have a criminal system where you are innocent until proven guilty but as you will discover that is not the case with Domestic Violence charges. This survival guide will help explain the system you’re up against and how to get through it.

  • Do not plead guilty at Arraignment. Arraignment is the first formal court appearance in a criminal case. During this hearing, you will be formally notified of the criminal charge against you and given the opportunity to plead guilty or not guilty. DO NOT PLEAD GUILTY! This is obvious in cases where you do not believe you’ve done anything wrong but is also true in cases where you do think you’ve done something wrong. There is no benefit in pleading guilty up front but there may be costs in doing so.

Some inexperienced people mistakenly believe that if they plead guilty at arraignment, they will get a lighter sentence than if they plead guilty later. This is incorrect. The reverse is much more common; you will likely get sentenced harder if you plead guilty up front.

If you decide to plead guilty later, the Judge will not use the fact that you pled not guilty initially against you. By pleading not guilty at Arraignment, what you are really saying to the Judge is that you want a chance to see what evidence the Prosecutor has and if you feel it is sufficient to prove your guilt then you want a chance to negotiate with the Prosecutor for a better outcome.

  • Pre-Trial No Contact Orders. In most criminal cases, a Judge will issue an order directing the Defendant not have any contact with the alleged victim. In Domestic Violence cases, that order can be extended to the victim’s home, place of work, and children. These orders are issued before there is a finding of guilt and can render a Defendant homeless. If you work at the same place as your spouse then you might just find yourself out of a job too. Whether or not the children were involved with the incident, you can be prohibited from seeing them.

If you are served with an order like this, DO NOT VIOLATE IT. Violating a No Contact Order is an independent crime. That means even if the underlying charge is dismissed, you can still be prosecuted just for violating the order. The better way is to get the order removed.

Here’s what I often see in my practice: Two people are together. Something happens, the police are involved and a No Contact Order slams into place. People, being people, want to work out whatever problems they have. At some point, the alleged victim contacts the Defendant and says something to the effect of “Come on over and we’ll work it all out.” The problem, of course, is that the No Contact Order is still in effect and no contact means NO CONTACT even if it’s invited by the alleged victim. The two people go out to celebrate their rekindled love and someone pulls a ‘slow and go’ at a stop sign (or some other normally insignificant violation). The next thing the Defendant knows, he’s off to jail for violating the No Contact Order. Even if the underlying criminal case goes away, he’s still got a Domestic Violence criminal conviction on his record for violating the order.

  • Legal Help. You will need professional help to successfully defend against a Domestic Violence charge. There are two ways to get this help: hire a private attorney or get a public defender appointed.

Public Defenders: Public Defenders are among the most maligned group of attorneys on the planet. More often than not, their reputation is undeserved. I have met many public defenders that are both passionate about what they do as well as extremely skillful. Like any group of people, some are better than others. Most, however, have huge caseloads; which means they cannot spend the kind of time on a case that a private attorney can. If the Court appoints a Public Defender to you, you are stuck with whomever they assign. You will have no control over which one you get. If you choose to go with a public defender and later change your mind, you can always have a private attorney substitute in. A Judge will not penalize you for doing this.

Private Attorneys. There are two advantages with private attorneys: First, they tend to have lower case loads, so can spend more time on your matter. Second, you get to choose which one you hire. This means that you should look for someone that communicates well, has a deep understanding of this area of law and really knows how to listen to you.

  • Options: There will most likely be several options for resolving your criminal case, but they may not become available until after your case is underway.

Trial

No one wants to go to trial. It’s expensive, stressful and risky. Why do so many attorneys like to talk about trial then? There are two answers: (1) It may be the only way to avoid a criminal conviction; and (2) you may be able to negotiate a better settlement immediately prior to trial.

The tactics used at trial, like Self Defense or Burden of Proof, will depend on the facts specific to your case. This is where an experienced and aggressive trial lawyer really becomes helpful.

Self Defense. In Washington State, you have the right to defend yourself – so long as what you did was reasonable. This means that if someone is hurting you then the law may well allow you to hurt them back. As long as a Jury finds that what you did was reasonable, Self Defense is a complete defense to the criminal charge. Also, if a Jury finds that you were acting in Self Defense, then you may be entitled to recover attorney’s fees and other out of pocket expenses that you incurred by defending yourself.

Burden of Proof. This is by far the most common defense in all of criminal law. Basically, you are requiring the Prosecutor to prove his or her case. It is sometimes surprising just how often they are unable to do this.

Witnesses failing to appear at trial

Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). In Crawford, the United States Supreme Court held that, under the Confrontation Clause of the Sixth

The reality of Criminal Law is that negotiations do not become the most productive until right before trial. This can mean the day or two before trial or it can mean the morning of trial. Setting a case for trial does not always mean that there will be a trial but it does mean that both the Prosecutor and the Defendant have incentive to work on a negotiated settlement.

Stipulated Orders of Continuance / Pre-Trial Diversion Agreements

These are contracts, nothing more. You make an agreement with the Prosecutor’s Office to do (and not do) certain things, like entering a Domestic Violence Treatment Program and stay out of trouble. If you comply with the contract, the case is dismissed.

Reduced Charge

It is often possible to get a Domestic Violence charge re-filed as a different, less serious, charge. The factors involved are: the facts of the current case, the Defendant’s criminal history, and the position of the alleged victim. Examples of reduced charges are: Disorderly Conduct or Simple Assault without the DV tag.

  • Only the State can bring criminal charges. With any criminal charge, including Domestic Violence, only the State can bring the charge – not the alleged victim in your case. This means that even if the person labeled “victim” wants the No Contact Order or the entire case to simply go away, they don’t have the power to dismiss it; only the Prosecutor does
  • Joint Bank Accounts. Be aware that some Victims Advocates are advising alleged victims to drain joint bank accounts. This advice leaves Defendants in the impossible position of becoming suddenly homeless due to the no contact order and penniless.
  • Gun Rights. Conviction for a crime labeled Domestic Violence will forfeit your rights to own or possess firearm for the rest of your life. This is true even in cases where no gun was used, threatened, mentioned or even owned by the defendant.

Conclusion

Because of the nature of Domestic Violence charges, you need to find an attorney that understands the complexity of these charges and what you can do about them. If you have questions specific to your case, please give me a call. I do not charge money for an initial consultation and I can answer many questions over the phone or via email.

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