Volume I Issue
3 September/October 2000Inside this issue:
Divorce Myths
Stalking Law
The following addresses some of the myths about divorce in New York State. One of the reasons why these myths abound is that every state has different laws regarding divorce. In some states you do not need grounds for divorce. In New York, grounds are needed. You cannot get a divorce in New York due to “irreconcilable differences.” Grounds are reasons as to why the court should grant the divorce. For example, common grounds for divorce are cruel and inhuman treatment and/or abandonment.
In this state, it is not necessary for the other party to agree to the divorce. The court can grant a divorce even though the other party would like to stay married.
While you do not necessarily need a lawyer to get a divorce, it does make things a lot easier, as there is a lot or paperwork that needs to be completed in order to get a divorce. Besides Neighborhood Legal Services, Volunteer Lawyers Project and Legal Aid also provide divorce representation to those who meet certain income guidelines. There is no right to an attorney in a divorce proceeding, which means that there are no court-appointed lawyers for the parties in divorce proceedings.
Further issues of the newsletter will discuss other issues regarding divorce proceedings.
STALKING LAW Part II
by: Jennifer DeCarli,
Domestic Violence Legal Coordinator,
Greater Upstate Law Project
Although domestic violence advocates were thrilled to finally have a stalking law in New York, it is an extremely complicated law. It is important to read the law carefully. The law can be found at Section 120.45 - 120.60 in New York’s Penal Law. Since this law criminalizes new types of behavior and recognizes that stalking is an important weapon utilized by batterers to maintain power and control over their victims, advocates must be familiar with this new law in order to effectively advocate for domestic violence victims. The following provides answers to frequently asked questions regarding New York’s new stalking law.
* Is stalking a family offense?
YES. Both Family Court and criminal court have concurrent jurisdiction over the four new degrees of stalking. This means that a domestic violence victim who meets the relationship requirement for Family Court can file a family offense petition alleging that a family or household member is stalking her. Additionally, since all four degrees of stalking are family offenses as well as misdemeanors or felonies, law enforcement must make an arrest if they have probable cause to believe stalking has been committed between family and or household members (i.e. - share a child in common, related by blood, marriage or previously married). Remember, many law enforcement agencies have gone beyond New York’s family and or household member definition and mandate arrest in additional domestic violence situations as well (i.e. - boyfriend/girlfriend, ex-boyfriend/ex-girlfriend).
* Does the new law require that the victim fear physical injury?
NO. The lowest degree of stalking is stalking 4th, which is a Class B misdemeanor. Stalking 4th contains three different subsections and the elements contained in the stalking 4th subsections do not require that a victim fear physical injury. A victim must fear either: material harm to her physical health, safety or property, material harm to her mental or emotional health or fear that her employment, business or career is threatened. It is important to know that material harm is not defined in the penal law or case law. Thus, one must assume a common sense definition of “material harm” - something that is substantial but not necessarily measurable. A victim should be able to explain how this behavior is affecting her life.
* Does the new law recognize that a stalker often targets a victim’s friends and family members in addition to the victim?
YES. Since stalkers often use a victim’s family and or friends as another means to threaten her, such as threatening her mother or a new boyfriend, the new law covers these behaviors as well. For example, stalking fourth criminalizes behavior that is likely to cause reasonable fear of material harm to the physical health, safety or property of the victim, a victim’s “immediate family member” or a third party acquaintance of the victim.
* Does the new law provide increased penalties for “repeat and chronic” stalkers?
YES. The new law “bumps up” the offender to a higher degree of stalking when he has been previously convicted of stalking in the past, when there are multiple victims, when weapons are used and/or physical injury or a specified sexual offense is committed and when he has been previously convicted of a “specified predicate crime” against the victim and/or a victim’s “immediate family member” in the past (“specified predicate crime” and “immediate family member” are defined in the law). The above is a general overview of New York’s new stalking law. Please feel free to call Jennifer DeCarli at (716) 454 - 6500 ext. 655 if you would like further information.
“. . . stalking is an important weapon utilized by batterers to maintain power and control over their victims . . .”
HOW CAN YOU HELP TO COMBAT DOMESTIC VIOLENCE?
Now would be an excellent opportunity to do whatever you can to increase domestic violence awareness, such as:
- Conducting programs and meetings
- Providing a forum for sharing thoughts, ideas and experiences
- Distributing reading materials and viewing important films and videos
- Inviting guest speakers to come and educate staff members and clients
FEEDBACK
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Neighborhood Legal Services, Inc., Volunteer Lawyers Project, and Haven House have received a grant from the U.S. Department of Justice to provide holistic legal services to victims of domestic violence. This program, funded under the Violence Against Women Act (VAWA), is intended to provide civil legal services to women who are transitioning out of violent relationships and who need assistance with multiple civil legal problems. Income restrictions apply. Eligible clients not only can receive legal assistance with family and matrimonial problems, but with other civil legal problems as well, such as public assistance, SSI, housing, etc. While Neighborhood Legal Services, Inc., cannot provide assistance with immigration or bankruptcy problems under this grant, clients can be referred to Volunteer Lawyers Project for help.
To refer clients to our program, write or call Neighborhood Legal Services, Inc., and ask for the Domestic Violence voice mail box.
This bi-monthly newsletter is published by Haven House, Neighborhood Legal Services, Inc., and Volunteer Lawyers Project, Inc., to provide information to the community and to agencies regarding the civil legal services available to victims of domestic violence in Erie County. Your feedback and suggestions for future articles are welcome. You can reach us at Neighborhood Legal Services, Inc., 295 Main St., Rm. 495, Buffalo, NY 14203, ATTN: Domestic Violence Newsletter, or by email at snosenchuck@ nls.org.
Neighborhood Legal Services, Inc. (NLS) is a not-for-profit agency located in Buffalo, New York. NLS provides free civil legal services to persons with low-income and persons with disabilities through its Housing, Family, Public Benefits, and Disability Units. It also provides a wide range of technical assistance and support services, primarily under its disability-related grants.
CONTACT INFORMATION:
Neighborhood Legal Services, Inc. 847-0650
Volunteer Lawyers Project 847-0662
Haven House 884-6002
Domestic Violence Newsletter
Editor: Sharon L. Nosenchuck, Esq.
Layout Assistant: Josie K. Lipsitz
Neighborhood Legal Services, Inc.
295 Main Street
Room 495
Buffalo, NY 14203
Phone: 716-847-0650
Fax: 716-847-0227
Email: snosenchuck@nls.org
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