What's an Intimate Relationship, Anyway? Expanding Access to the New York State Family Courts for Civil Orders of Protection
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Pace Law Review Volume 29 Issue 3 Spring 2009 Article 4 Recent Developments in New York Law April 2009 What's An Intimate Relationship, Anyway? Expanding Access to the New York State Family Courts for Civil Orders of Protection Jennifer Cranstoun Christopher O'Connor Tracey Alter Follow this and additional works at: https://digitalcommons.pace.edu/plr Part of the Civil Procedure Commons, and the Family Law Commons Recommended Citation Jennifer Cranstoun, Christopher O'Connor, and Tracey Alter, What's An Intimate Relationship, Anyway? Expanding Access to the New York State Family Courts for Civil Orders of Protection, 29 Pace L. Rev. 455 (2009) Available at: https://digitalcommons.pace.edu/plr/vol29/iss3/4 This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. \\server05\productn\P\PLR\29-3\PLR311.txt unknown Seq: 1 2-JUL-09 13:00 What’s an Intimate Relationship, Anyway? Expanding Access to the New York State Family Courts for Civil Orders of Protection Jennifer Cranstoun, Christopher O’Connor, & Tracey Alter* I. A Long and Winding Road Reaches the End—and a New Beginning When New York Governor David A. Paterson signed a new law into effect on July 21, 2008 that substantially expanded ac- cess for domestic violence victims seeking orders of protection in family court,1 his signature ended what had been an intense twenty-year lobbying effort.2 Up until then, New York State’s remarkably narrow family court access scheme had only in- cluded domestic violence victims legally related by blood, mar- riage, or having children in common,3 and bills to expand access, which were previously proposed and circulated in the * Jennifer Cranstoun, Esq. of the Pace Women’s Justice Center is the Senior Supervising Attorney at the Family Court Legal Program and a 1999 graduate of Pace University School of Law. Christopher O’Connor is a second-year law stu- dent at Pace University School of Law and was a Fall 2008 Extern in the Pace Family Court Legal Program. Tracey Alter, Esq. of the Pace Women’s Justice Center is the Director of the Pace Family Court Legal Program and a 1991 gradu- ate of Fordham University School of Law. The Pace Women’s Justice Center, dedi- cated to providing legal services to victims of domestic violence, is a nonprofit organization affiliated with Pace University School of Law. 1. See Expanded Access to Family Court Act, ch. 326, 2008 N.Y. Laws 326 (codified as amended in scattered sections of N.Y. FAM. CT. ACT, N.Y. CRIM. PROC. LAW, and N.Y. JUD. LAW). See also New York State Coalition Against Domestic Violence, Policy Updates, http://www.nyscadv.org/policyupdate08.htm (last visited Apr. 7, 2009) (referencing the new legislation as the “Expanded Access to Family Court” Act.). 2. See Joel Stashenko, Bill Passes to Expand Reach of Family Court’s Protec- tion Orders, N.Y. L.J., June 26, 2008, at 1, col. 3. 3. See N.Y. FAM. CT. ACT § 812(1)(a)-(d) (McKinney 1998) (current version at N.Y. FAM. CT. ACT § 812(1)(a)-(e) (McKinney Supp. 2009)); HELENE WEINSTEIN, N.Y. STATE ASSEMB., MEMORANDUM IN SUPPORT OF LEGISLATION, Assemb. 11707, 231st Sess. (2008); GEORGE H. WINNER, N.Y. STATE S., INTRODUCER’S MEMORAN- DUM IN SUPPORT, S. 8665, 231st Sess. (2008). 455 1 \\server05\productn\P\PLR\29-3\PLR311.txt unknown Seq: 2 2-JUL-09 13:00 456 PACE LAW REVIEW [Vol. 29:455 state legislature by victims’ rights activists and advocates for women’s rights, consistently fell short.4 Formerly, the law de- terred victims of domestic violence in dating and same-sex rela- tionships, as well as others considered “unrelated” under New York State law, from seeking orders of protection against their abusers because the only recourse available to these groups was to pursue prosecution in criminal court.5 The New York State Legislature has been regarded as a no- toriously slow-moving body in adapting with the times,6 but here it proved particularly glacial. Often, those in opposition to expanding access to the family court cited concerns over how a problematically broad access scheme could raise issues of judi- cial economy.7 Advocates for the new law and other analysts also believe that lingering political concern over what might be 4. See Stashenko, supra note 2. New York State Assemblywoman Helene Weinstein, the chairperson of the New York State Assembly’s Judiciary Commit- tee, was a regular co-sponsor of all similar past legislation and co-sponsored this successful effort with New York State Senator George H. Winner. See id. See also Assemb. 11707, 231st Sess. (N.Y. 2008); S. 8665, 231st Sess., 2008 N.Y. Laws 326. 5. See Stashenko, supra note 2. See also HELENE WEINSTEIN, N.Y. STATE AS- SEMB., MEMORANDUM IN SUPPORT OF LEGISLATION, Assemb. 11707, 231st Sess. (2008); GEORGE H. WINNER, N.Y. STATE S., INTRODUCER’S MEMORANDUM IN SUP- PORT, S. 8665, 231st Sess. (2008). By making Family Court accessible to these individuals, the victim’s safety is promoted by the expedited manner in which a family court order of protection can be obtained, by the focus on prevention of fu- ture abuse, and by the potential two- to five-year duration of orders of protection. N.Y. FAM. CT. ACT § 842 (McKinney Supp. 2009). Additionally, victims seeking protection in family court maintain a significant degree of control in the process by being able to choose a safe time to obtain the temporary order, help determine the relief sought, and ultimately decide whether to continue with the process. N.Y. FAM. CT. ACT § 812 (McKinney Supp. 2009). 6. See JEREMY M. CREELAN & LAURA M. MOULTON, BRENNAN CTR. FOR JUS- TICE, N.Y. UNIV. SCH. OF LAW, THE NEW YORK STATE LEGISLATIVE PROCESS: AN EVALUATION AND BLUEPRINT FOR REFORM 1 (2004), available at https://www.policy archive.org/bitstream/handle/10207/8774/34The%20New%20York%20State%20 Legislative%20Process-%20An%20Evaluation%20and%20Blueprint%20for%20Re- form.pdf?sequence=1 (“It has become something of a clich´e to bemoan Albany’s dysfunctional legislative process and the ‘three men in a room’ system of lawmak- ing. Virtually every major newspaper in New York State has editorialized for many years against the current system and its byproducts, including perennially late budgets, the lack of open deliberation and debate, empty seat voting, gridlock, costliness and inappropriate payments, incumbency protection, or the extent of control exercised by the two leaders.”). 7. N.Y. CITY COUNCIL, OVERSIGHT: OBTAINING ORDERS OF PROTECTION FOR VIC- TIMS OF DOMESTIC VIOLENCE: PROBLEMS & SOLUTIONS (2004), available at http:// webdocs.nyccouncil.info/attachments/63305.htm?CFID=2696206&CFTOKEN= 34714253. https://digitalcommons.pace.edu/plr/vol29/iss3/4 2 \\server05\productn\P\PLR\29-3\PLR311.txt unknown Seq: 3 2-JUL-09 13:00 2009] WHAT’S AN INTIMATE RELATIONSHIP 457 perceived as an implicit legislative endorsement of same-sex marriage historically impeded the bill’s passage.8 The question that arises then is what changed in 2008 to finally drive the bill to passage? Governor Paterson, a former state senator and lieutenant governor, has long been a staunch supporter of efforts to combat domestic violence.9 Moreover, Governor Paterson had the political expertise needed to per- suade the conservative leadership of the State Senate to en- dorse the bill’s passage.10 In fact, Governor Paterson told the New York Times just prior to the bill’s passage that he “person- ally took up the issue” with now-retired Senate Majority Leader Joseph Bruno, a long-time power player in Albany.11 Additionally, the coalition of activists and advocates that pushed for the change was larger and more organized than ever. In a letter prepared and sent to domestic violence advo- cates, activists, survivors, and community members throughout New York State in January 2008, the New York Statewide Coa- lition for Fair Access to Family Court emphasized the impor- tance of seeking the change: These victims [ineligible for family court access] often go without protection because, currently, the only other option is to involve law enforcement and hope that the abuser will be prosecuted and an order of pro- tection granted by the Criminal Court. This is not an option for many victims, especially given the very real risk of increased violence from their abuser [sic] if law enforcement becomes involved.12 8. See, e.g., Sarah E. Warne, Note, Rocks, Hard Places and Unconventional Domestic Violence Victims: Expanding Availability of Civil Orders of Protection in New York, 52 N.Y.L. SCH. L. REV. 279, 300 (2008). 9. Press Release, State of N.Y., New York State Enhances Domestic Violence Prevention Efforts (Oct. 25, 2007), available at http://www.ny.gov/governor/press/ 1025072_print.html; New York State, Learn More About Lt. Governor Paterson, http://www.ny.gov/ltgov/ (last visited Apr. 7, 2009). 10. Danny Hakim, Albany to Expand Domestic Violence Law to Include Dat- ing Relationships, N.Y. TIMES, July 10, 2008, at B3, available at http://www.ny- times.com/2008/07/10/nyregion/10domestic.html. 11. Id. 12. Letter from the N.Y. Statewide Coal. for Fair Access to Family Court (Jan. 2008), available at http://fairaccessnewyork.com/. Members of the coalition’s steer- ing committee include Day One, the Empire Justice Center, the Joint Public Af- fairs Committee for Older Adults, the New York State Coalition Against Domestic 3 \\server05\productn\P\PLR\29-3\PLR311.txt unknown Seq: 4 2-JUL-09 13:00 458 PACE LAW REVIEW [Vol.