Lawyer's Manual on Domestic Violence

446 Pages·2015·9.13 MB·English

Printer note: Back cover is all white. “Floating” spine
Purple ends at spine. center line
Lawyer’s Manual on Domestic Violence
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Representing the Victim, 6th Edition
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Edited by re ’s Representing the Victim, 6th Edition
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Mary Rothwell Davis, Dorchen A.Leidholdt and Charlotte A. Watson e
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With each edition, the Lawyer’s Manual has provided guidance on increasing numbers of a Edited by
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topics from leading experts, and this new edition continues to add to this indispensable h l
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Mary Rothwell Davis, Dorchen A.Leidholdt and Charlotte A. Watson
resource. It is, without a doubt, a powerful tool for those on the front lines and in the trench- n
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es to bring justice and safety to victims and accountability for perpetrators. There is valuable ic D
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information across these pages for judges, prosecutors, law enforcement, government agen- i
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cies, service providers, treatment professionals, community groups, and others who seek to
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protect victims and uphold the law. 6 s
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Hon. Jonathan Lippman ic
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Chief Judge of the State of New York V
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This 6th Edition of the Lawyer’s Manual on Domestic Violence marks the twentieth year n e
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since publication of the first Manual in 1995 when the New York State legislature set in
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motion what soon became a sea change in how New York law addressed domestic vio- e
lence. It has been ten years since publication of the last edition of the Lawyer’s Manual on
Domestic Violence and during that time the law in this area has continued to evolve at a
rapid pace. Our goal is to engender an understanding of the dimensions of domestic violence M
and the history that has brought us to where we are today. We hope this book will provide ar
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the wisdom and the technical information to help guide those called upon to respond within R
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the legal system. th
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Hon. Betty Weinberg Ellerin e
Presiding Justice, Appellate Division, First Department (Ret.) Ch ll D
This guide is an amazing compendium of spot-on critical information. Everyone doing this arlotte avis, D Edit
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work should read it, not just victim/survivor attorneys! . W rch by
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William M. Schaefer, Jr. t n
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VAWA/Victim Services Unit Manager L
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Office of Program Development and Funding id
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New York State Division of Criminal Justice Services
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A version of this manual in PDF form is available through the links at: d Supreme Court of the State of New York, Appellate Division, First Department
www.nycourts.gov/ip/womeninthecourts/publications.shtml and
The New York State Judicial Committee on Women in the Courts
www.probono.net/ny/family/library.cfm
Lawyer’s Manual on Domestic Violence
Representing the Victim, 6th Edition
Edited by
Mary Rothwell Davis, Dorchen A. Leidholdt & Charlotte A. Watson
Supreme Court of the State of New York, Appellate Division, First Department
Hon. Luis A. Gonzalez, Presiding Justice
New York State Judicial Committee on Women in the Courts
Hon. Betty Weinberg Ellerin, Chair
This text is an unofficial publication of the Appellate Division, First Department, Supreme
Court of the State of New York and the New York State Judicial Committee on Women
in the Courts. The content represents the views of the contributors and does not
necessarily reflect the views of the New York State Unified Court System,
the Committee, or any New York State Judge.
© 2015 All rights reserved
This project was supported by subgrant No.SV14-1117-E00 awarded by the state
administering office for the STOP Formula Grant Program. The opinions, findings, conclusions,
and recommendations expressed in this publication/program/exhibition are those of the
author(s) and do not necessarily reflect the views of the state or the U.S. Department of
Justice, Office on Violence Against Women or the NYS Division of Criminal Justice Services.
Dedication
These three judicial leaders devoted their minds, hearts and the transformative
power they held in their institutional roles to ensuring that domestic violence
be recognized as a scourge that could and would be addressed by our courts.

Hon. Betty Weinberg Ellerin • Hon. Judith S. Kaye • Hon. Jonathan Lippman

We dedicate this 6th edition of the Lawyer’s Manual on Domestic Violence to
them, with our deepest gratitude.
The pages of this book, with its chapters, paragraphs and words that
enfold knowledgeable discussion of legal strategy, legislative reform,
and energetic social advocacy, have a tendency to tear open, and we
see beneath the language the faces and terror of those living among
us in fear of domestic violence. These fellow humans might be next to
us on the bus, or in the apartment just two floors down, or handing
us our items at the check-out counter. We do not see them. But this
book reveals the horror that is all around us, too often invisible:
a version of hell.
Teodors Ermansons,
Graphic Designer (retired) Office of Court Administration
–Spoken upon completing design of this book.
Acknowledgements
Hon. Jonathan Lippman, whose steadfast and energetic willingness to name domestic violence as
one of the central concerns of the court system under his leadership has helped moved forward
justice and jurisprudence.
Hon. A. Gail Prudenti, whose sensitivity to New York’s most vulnerable citizens and the centrality
of our courts to bettering their lives has helped make our judicial system ever more responsive.
Hon. Lawrence Marks, our new Chief Administrative Judge, who will carry forward administration
of justice in domestic violence cases.
Hon. Luis Gonzalez, whose leadership of the Appellate Division, First Department has embraced
the publication of this book and the promotion of best practices for domestic violence cases in New
York courts.
Hon. Betty Weinberg Ellerin, Chair of the New York State Judicial Committee on Women in the
Courts, special counsel to Alston & Bird, and former Presiding Justice of the Appellate Division, First
Department for her constant leadership, vision and perseverance in the pursuit of justice.
Teodors Ermansons, who designed the cover and the book, cheerfully helping the co-editors through
draft after draft of these chapters until they were perfect or, given Ted’s impending and well-deserved
retirement, we ran out of time. This book would not have been without his tireless care, attention and help.
U.S. Department of Justice’s Office on Violence Against Women & the New York State Division
of Criminal Justice Services for a generous STOP grant that underwrote creation of this book.
Jill Zuccardy, Amanda Norejko, and William Silverman of Greenberg Traurig for invaluable
proofreading.
The contributors, one and all, who took time in professional lives that were already stretched to the
breaking point to share with our readers and with the Bar the extraordinary collective wisdom they
carry. We are so very grateful.
Mary Rothwell Davis
Dorchen A. Leidholdt
Charlotte A. Watson
Summary of Contents
Acknowledgements v 7 Intimate Partner Sexual Assault:
Summary of Contents vi An Overlooked Reality of Domestic Violence
Table of Contents viii by Jill Laurie Goodman
Foreword by Hon. Jonathan Lippman xxv updated by
Introduction by Hon. Betty Weinberg Ellerin xxvi Lynn Hecht Schafran & Eliana Theodorou 68
Section 1 Introductory Matters 8 Taking Stalking Seriously
by Hilary Sunghee Seo 77
1 Ensuring Victim Safety
and Abuser Accountability:
Reforms and Revisions in 9 Litigating Family Offense Proceedings
New York Courts’ Response by Nicole Fidler & Dorchen A. Leidholdt 87
to Domestic Violence
by Hon. Jonathan Lippman 1
Section 3 Domestic Violence in the Courts
2 A Look Back on Our 40-Year 10 Representing Victims of Domestic Violence in
Walk, and a Glimpse Ahead Supreme Court Matrimonial Actions
by Charlotte A. Watson 18 by Hon. Emily Ruben 108
11 Prosecuting a Domestic Violence Case:
Section 2 Fundamentals of a
Looking Beyond the Victim’s Testimony
Domestic Violence Case
by Elizabeth Cronin 116
3 Interviewing and Assisting
Domestic Violence Survivors
12 Compensation for Domestic Violence Victims: Tort
by B. J. Cling & Dorchen A. Leidholdt 32
Remedies and Beyond
by Betty Levinson 130
4 Assessing Lethality and Risk:
What Do We Know, How Can We Help?
13 The Rights of Domestic Violence Victims in
by Hon. Janice M. Rosa 46
Criminal Proceedings
by Christina Brandt-Young 140
5 Police Response: Mandatory Arrest
& Primary Physical Aggressor
14 The Integrated Domestic Violence Court:
by Lisa Fischel-Wolovick 52
New York’s Successful Experience
by Hon. Daniel D. Angiolillo 150
6 Firearms Seizure in
Domestic Violence Proceedings
by Hon. Mary Anne Lehmann 62
vii
Section 4 Children and Domestic Violence 24 Disabled Victims of Domestic Violence
15 Litigating Custody and Visitation by Mary Rothwell Davis 302
in Domestic Violence Cases
by Kim Susser 163 25 Abuse in Later Life:
Domestic Violence and the Older Client
16 Child Welfare Cases and Investigations by Mary Rothwell Davis 316
Involving Domestic Violence
by Jill M. Zuccardy 182
Section 6 Employment, Housing and Benefits
26 Domestic Violence Victims
17 Representing Domestic Violence Victims
and Employment Law:
in Child and Spousal Support Cases
Safeguarding the Workplace
by Roxana Bernal & Amy Hozer 196
by Wendy R. Weiser & Deborah A. Widiss
updated by
18 Interstate Custody for Domestic Violence Christina Brandt-Young & Jelena Kolic 329
Victims and Their Children: The UCCJEA
and Relocation
27 Public Assistance and Housing:
Updated by Mary Rothwell Davis 208
Navigating Difficult Benefits Systems
by Jack Newton,
19 International Custody Disputes and Abduction:
Amy Schwartz & Sharon Stapel 343
Invoking and Defending Against UCCJEA and
Hague Convention Claims
28 Helping Immigrant Victims of
by Betsy Tsai, Mary Rothwell Davis
Domestic Violence Access Federal
& Josephine Lea Iselin 221
and State Public Benefits
by Barbara Weiner 369
Section 5 Protecting All Victims
20 Lesbian, Gay, Bisexual, Transgender and Section 7 Offender Accountability
Queer Victims of Intimate Partner Violence
29 Batterer Intervention Programs:
by Sharon Stapel & Virginia M. Goggin 241
What Criminal Justice
Professionals Need to Know
21 Teen Victims of Intimate Partner Violence by Rose M. Garrity 378
by Andrew Sta. Ana & Stephanie Nilva 254
30 The Role of Probation in
22 Remedies for Immigrant Victims Domestic Violence Cases
of Domestic Violence by William M. Schaefer, Jr.
by Melissa Brennan & Pooja Asnani 266 & Robert M. Maccarone 386
Appendix 395
23 Emerging Issues: FGM, Forced Marriage,
Contributors 410
Honor Violence & Trafficking
by Dorchen A. Leidholdt & Sayoni Maitra 287
Table of Contents
Acknowledgements v
Summary of Contents vii
Table of Contents viii
Foreword by Hon. Jonathan Lippman xxv
Introduction by Hon. Betty Weinberg Ellerin xxvi
Section 1 Introductory Matters
1 Ensuring Victim Safety and Abuser Accountability:
Reforms and Revisions in New York Courts’ Response to Domestic Violence*
by Hon. Jonathan Lippman 1
Introduction 1
Changes to the New York Criminal Court System Over Time
Have Improved Outcomes for Victims of Domestic Violence 2
In the past, antiquated views of women and domestic violence impeded the prosecution of abusers. 2
Logistical and procedural obstacles in criminal court also prevented litigants from accessing justice. 3
Mandatory arrest policies, a statewide domestic violence registry, and other reforms were
implemented to aid law enforcement and prosecutors. 3
The creation of specialized domestic violence courts brings families with overlapping criminal
and family court cases before the same judge. 5
The success of specialized domestic violence courts and other reforms are documented by encouraging
statistical trends from the criminal courts. 7
Innovative Solutions in the Family Courts Have Increased
Access to Justice for Domestic Violence Victims 7
Historically, obstacles in Family Court prevented victims of domestic violence from obtaining relief. 7
Legislative changes and the strengthening of civil protective orders have aided in combating domestic violence. 8
The implementation of Family Justice Centers and expanded access to civil legal services provide
increased support to domestic violence victims. 9
Conclusion 10
Notes 11
2 A Look Back on Our 40-Year Walk, and a Glimpse Ahead
by Charlotte A. Watson 18
Civil Justice Reforms 22
Judicial Insight into Domestic Violence: Court Responses 24
Chief Judge Kaye Embraces and Champions Our Cause 25
Family Justice Center: Centralized Services 27
Continuing Expansion of Legal Remedies 27
Notes 29
Table of Contents ix
Section 2 Fundamentals of a Domestic Violence Case
3 Interviewing and Assisting Domestic Violence Survivors
by B. J. Cling & Dorchen A. Leidholdt 32
The Attorney-Client Relationship: Where it Begins 32
Communicating Safely 32
Communicating Effectively 33
Stretching Further to Connect With Your Client 33
Awareness of the Strength of Your Role 33
Understanding Legal Issues 33
Understanding Intimate Partner Violence 34
Coercive Control & Intimate Terrorism 34
Jealousy and Possessiveness 34
Controlling Behavior 34
Quick Involvement and Manipulative Behavior 35
Isolation 35
Blame and Incessant Criticism 35
Cruelty to Animals or Children 35
Abusive and Violent Sex 36
Verbal Abuse 36
Rigid Sex Roles 36
Identifying Other Legal and Non-Legal Needs 36
Other Legal Proceedings 36
Non-Legal Needs 37
For safety 37
For counseling 37
For therapy or psychiatric help 37
For emotional reassurance 38
The Interview 38
The First Meeting 38
Confidentiality 38
Three Effective Techniques 39
Obtaining the History of Domestic Violence and Gathering Evidence 39
Documenting the Abuse and Preserving Evidence 39
Assessing the Children’s Situation 40
Knowing the Worst 40
Strengthening Your Client’s Courtroom Presentation 41
Prepare the client for meetings with other professionals. 41
Understanding the Effects of Trauma 41
Post-Traumatic Stress Disorder (PTSD) 41
Trauma-Coerced Bonding: When Your Client Wants to Return to the Abuser 43
Vicarious Trauma 43
Conclusion 44
Notes 44