Domestic Violence: Legal Basics & Resources

What Is Domestic Violence?

New York Social Services Law § 459-A defines domestic violence as an enactment of violence, that “would constitute a violation of penal law,” on a person or their child by another person that:

  • results in the fear of or actual physical or emotional harm, and
  • is committed against a family or household member.

Family or household members includes those who are:

  • Dating (or who have dated previously)
  • Living together (or who have lived together previously)
  • Related by blood (siblings, parents, etc.) or marriage (in-laws)
  • Legally married or divorced
  • Parents of the same child (biologically or through adoption)

Domestic violence involves any criminal offense committed against the aforementioned protected persons and includes but is not limited to:

  • Assault or attempted assault
  • Attempted murder
  • Coercion
  • Criminal mischief
  • Harassment or aggravated harassment
  • Kidnapping
  • Menacing
  • Reckless endangerment
  • Sexual misconduct, forcible touching, or sexual abuse
  • Stalking
  • Strangulation

Victim/Survivor Resources: Getting the Help You Need

If you are in immediate danger, please call 911. If you are not presently in danger, you can take steps to ensure your future safety by creating a safety plan, filing for protective orders, or confiding in someone you trust.

Create a Safety Plan

A safety plan includes the steps you can take to lower your risk of being hurt by or running into your abuser. For help creating your plan, you can visit the NDVH’s website and use their interactive creation tool. However, you choose to draft your plan, you should include information such as:

  • How you can travel to work or class without running into your abuser
  • What action you can take to move out of your shared home if you live together (i.e. where you can go if you feel unsafe)
  • What items you will need to grab if you need to leave quickly, such as your ID, medicines, clothes, cash, etc.
  • Who you can confide in about the abuse as well as this plan
  • What codeword or phrase you can share with a friend, family member, neighbor, or trusted person if you need help

File for a Protective Order

Orders of protection can help victims/survivors of domestic violence receive legal protection from their abusers. While each order has specifics on what an offender can and can’t do, protective orders typically prohibit the restricted person from:

  • Contacting you in any way
  • Being within a certain distance of you, your work, home, school, and/or family
  • Abusing, harassing, or threatening you further

There are two types of protective orders in New York:

  • A temporary ex parte order of protection
  • A final order of protection

For a protective order, you should seek a lawyer to file an order of protection on your behalf. Once filed, a judge will determine if the orders are granted. Temporary orders will last until the court hearing. Final protective orders are issued:

  • “On consent,” if the matter is settled out of court and the abuser consents to orders being placed against them. In these cases, the abuser may not admit to any wrongdoings.
  • After a hearing, where both parties can present evidence and give testimonies.

Reach Out for Help

While domestic violence can make victims/survivors feel isolated and helpless, people are ready and able to help with filing orders, creating safety plans, going with you to court, and more. For confidential, reliable help, victims/survivors or their loved ones can reach out to the:

  • National Domestic Violence Hotline (NDVH) online, by calling 1(800) 799-7233, or texting 88788
  • NYS Office for the Prevention of Domestic Violence online
  • NYS Domestic and Sexual Assault Hotline by calling (800) 942-6906 or texting (844) 997-2121
  • Domestic violence attorneys at Jason M. Barbara & Associates, P.C. online or by calling (516) 406-8381

What Can You Do If Someone You Know Is Being Abused?

If you know someone is being abused, you likely want to help them leave the harmful situation. To help someone you believe is in danger, you can:

  • Contact an abuse hotline or local agency
  • Knock on their door (with regard to your safety)
  • Record any instances of abuse you witness (as this can be used as evidence)

If you or the victim/survivor is in imminent danger, you should call the police/911. However, contacting the authorities is not always the safest way to help domestic violence victims/survivors. An NDVH article cautions loved ones against calling the police as victims/survivors:

  • May be put at greater risk if the police show up
  • May be unable to talk honestly with the police
  • Have a safety plan in place (that excludes calling the police)

It is also important to note that it is not your responsibility to fix or save anyone. Even though it can be hard, you should respect their boundaries as victims/survivors have already likely experienced some loss of control and autonomy. While you may want to be a help, those in an abusive relationship have a right to choose when, if, and how they want to handle the situation.

Domestic Violence & Family Law Cases

Domestic violence allegations and convictions can impact family laws cases, particularly child custody or divorce proceedings. When it comes to the equitable distribution of property in divorces, courts consider multiple factors, including whether one partner has any acts of domestic violence against the other party as well as “the nature, extent, duration and impact of such” acts (New York Domestic Relations Law § 236B).

In child custody cases, the welfare and best interest of the child take precedence. If domestic violence allegations or convictions arise, the court will investigate and consider these claims as they decide on custody. If allegations are substantiated by evidence, then the court will not award custody or visitation to the parent who presents a risk to the child’s safety (New York Domestic Relations Law § 240).

Contact Our Domestic Violence Attorneys Today

At Jason M. Barbara & Associates, P.C., we are advocates for clients who seek help with filing for protective orders to protect themselves or their families. We are also equipped to help clients navigate divorces or child custody cases where domestic violence is a factor. Our attorneys can support you by:

  • Helping you collect evidence to support your claims in court
  • Advising you on your legal options for protection and/or separating from an abuser
  • Filing motions to enforce existing court orders

To schedule a free consultation, please reach out to our legal team online or via telephone (516) 406-8381.