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Husband’s Contact with Wife’s Attorney Not a Violation of Order of Protection Received by Wife

Violation-of-Order-of-Protection-Received-by-Wife

Judge Javier Vargas sitting in a Family Court in King County recently had an unusual case presented to him. The wife had received an Order of Protection against her husband. He was ordered to stay away from the wife’s home and work and prohibited from communicating with wife, including any third party contact. The wife alleged husband and his private investigator had violated the portion of the Order of Protection preventing third party contact. She claimed her husband and his private investigator had communicated with her attorney through e-mail. She claimed these e-mails constituted harassment and coercion which were violations of the no communications provision of the Order of Protection which she had.

The Husband’s Position

The husband’s attorney argued that there were no allegations that either he or his investigator contacted the wife.

The Judge’s Decision

Judge Vargas took note that even presuming the allegations made by the wife in her petition were true and correct, the husband’s contact communicating with the wife’s counsel did not amount to threats or intimidation against the wife. He found there was no basis to find this conduct by the husband’s attorney constituted harassment or a family offense against the wife. He further found the husband’s attorney and the husband’s investigator were not third parties who were prohibited from communicating pursuant to the court order. Judge Vargas ruled the husband’s communications amounted to “hard edge bargaining negotiations and were not violations of the Order of Protection“.

Elliot S. Schlissel is a father’s rights attorney representing fathers throughout the Metropolitan New York area. He can be reached for a free consultation at 800-344-6431 or Elliot@sdnylaw.com.

Orders of Protection

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Elliot S. Schlissel is a father’s rights lawyer.  Elliot has been representing fathers in child support hearings, custody proceedings, and all aspects of matrimonial law and family law for more than 35 years.  Elliot and his associates may be reached for consultation at 516-561-6645, 718-350-2802, or by email to schlissel.law@att.net.

 

Minimal Evidence Used To Prove Child Abuse Or Child Neglect By Child Protective Services (“CPS”)

When there are allegations of child abuse the level of evidence submitted by CPS workers and investigators can be minimal. Guardians, parents and grandparents are sometimes overwhelmed when they find they have so little power and ability to contradict and counteract the actions of CPS personnel.

Family Court Proceedings Regarding Child Abuse and Child Neglect

Individuals accused of child abuse find when they go into the Family Court and expect to be able to tell their story to a judge they are confronted by judges that don’t have the time and often don’t have the patience to listen to them. CPS spends four or five minutes making their presentation and the parent then gets about two or three minutes to rebut the presentation.

Guilty Until Proven Innocent

Orders of Protection are given to the children based on inaccurate statements by CPS workers. The parents, guardians and grandparents find they are guilty until proven innocent even if the allegations of child abuse or neglect are spurious, mistaken, inaccurate and untrue. Many months go by with Orders of Protection pending, and Child Protective Services workers regularly coming to the door, and the innocent family members often feel overwhelmed and shocked at how they are treated by the legal system. Many family members who are accused of child abuse come into my office and tell me they didn’t even get a chance to speak in court. The events took place without them even having the ability to say even one word. Unfortunately, this happens much too often.

CPS The Do-Gooders

There are dedicated people who work for CPS who rescue innocent children from abusive situations. These CPS workers deserve the public’s gratitude. Unfortunately, I see too many situations where CPS creates nightmares for families who are loving, good natured and provide wonderful homes and care for their children. Innocent family members are threatened that if they don’t cooperate with CPS their children will be removed from the home. I see situations on a regular basis where a child will get bruised while playing with his or her friends, go to the school nurse and not remember how the bruise came to be. The school nurse calls CPS and then CPS shows up in the middle of the night at the family’s home, insists on coming in, investigating the children, harassing the parents, and scaring them to death with an implied threat that they will lose their children.

I recommend to everyone who calls me on a CPS complaint to take it seriously and to make no statements to CPS workers without having an attorney present and not let them in their home. I make arrangements to meet with CPS workers either at my office or at their office for the purpose of reviewing the allegations against family members. I discuss with them in an intelligent manner, without intimidation, that they are going to remove children from the custody of their parents.

Conclusion

Should you hear from CPS about a potential complaint, don’t let yourself become a victim. They have no right to come into your home no matter what they say. Advise the CPS worker that you are happy to cooperate with them, but you wish to retain counsel and your attorney will call them to deal with the issue. If they tell you that you are not entitled to an attorney, they are lying to you! You have a right to an attorney at every stage of the legal system in New York and the rest of the United States. Do not be intimidated, do not let them in your home. If you want to speak to them, speak to them at the front door. They have no right to search your home or investigate your home.father's rights advocate in New York

An Appeal of An Order of Protection May Continue After The Order Expires

father's rights attorney Long IslandThe New York State Court of Appeals, the highest court in New York, recently ruled that the appeal of an Order of Protection which was issued by the Family Court can continue even after the Order of Protection expires. The Court of Appeals unanimously rendered this decision because they held the order, even after it expires, can carry “significant enduring consequences.” The decision by the Court of Appeals allows individuals who are unfairly named in an Order of Protection to have the opportunity to move forward with their appeal even when the Order of Protection has expired. Court of Appeals Judge Abdus-Salaam wrote in the Court’s decision “the appeal is not moot if an appellate decision will eliminate readily ascertainable and legally significant enduring consequences that befall a party as a result of the order which the party seeks to appeal.”

The Actual Case

The name of this case is the Matter of Veronica P. v. Radcliff A.. Veronica P. filed an application in 2009 for an Order of Protection against her nephew Radcliff A. She claimed he grabbed and pushed her in her apartment located in Manhattan. They were both living in the apartment at the time. The Family Court in New York County ruled Radcliff’s actions constituted second degree harassment and it gave Veronica a two year Order of Protection. This Order of Protection required Radcliff to stay away from her and not assault, intimidate or threaten her. Radcliff brought an appeal. Unfortunately, during the pendency of his appeal, the protective order expired. This was due to the fact the protective order was only for two years and appeals can take much longer than two years to be heard by the Appellate Courts. Judge Abdus-Salaam wrote, in the Court’s decision, the very fact the Order of Protection was taken out against Radcliff may lead another Court to readily discern Radcliff committed the offense. In addition she stated “armed with that information, the Court in a future case may increase the severity of any applicable criminal sentence or civil judgment against respondent [Radcliff].”

Long Term Impact of Orders of Protection

Judge Abdus-Salaam also stated in her decision the unchallenged presence of the Order on Radcliff’s record might lead an opposing party in a future lawsuit to use this protective order to impeach Radcliff’s credibility. The protective order is also likely to increase the chances that Radcliff would be arrested if he is accused of similar conduct in the future. In addition, it also may cause Radcliff to receive harsher penalties in the future if accused of similar conduct.

Orders of Protection can create “severe stigma. It can impact on business contacts, social acquaintances and other members of an individual’s family.”

Judge Abdus-Salaam went on to state “perhaps more importantly, potential employers may ask respondent whether an Order of Protection has ever been entered against him, and he may be ethically or legally bound to answer in the affirmative, significantly curtailing his chances of getting a job.”

Conclusion

Many Family Court judges in the Metropolitan New York area grant Orders of Protection to women based on either false allegations, flimsy allegations, or greatly exaggerated allegations against men. The Court of Appeals’ ruling now gives men an ability to purge their record long after the Orders of Protection have expired. This is an excellent decision protecting men’s rightsfather's rights advocate on Long Island

Challenging Unfair Orders of Protection

father's rights attorney Long IslandA woman can simply go into court, make a presentation, and under certain circumstances, obtain an Order of Protection against you. You may find out about the Order of Protection when you get served by a sheriff with the order. So, what do you do? What you shouldn’t do, is violate the terms of that Order of Protection. Even if you feel it is based on false, inaccurate, or even made up allegations, you would be committing a criminal act if you were to violate an Order of Protection.

Taking Quick Action

Temporary Orders of Protection can be set aside if quick legal action is taken. In the event the accusations made against you are untrue, or there is insufficient evidence to support the allegations, you can be successful in setting aside Orders of Protection. In certain circumstances you may be able to show you were not even present when the alleged event took place. Alibi witnesses can be utilized in these situations to convince the court you were not involved in the alleged incident.

You can also show the court the purpose of the Orders of Protection did not relate to the individual taking the order out against you fearing for her life, health, or well being. You may be able to show the other party’s application for the Order of Protection was part of a legal strategy involved in either a custody or divorce case. Sometimes, Orders of Protection are preliminarily taken out to get a step up on the other individual in these types of proceedings.

Fighting Orders of Protection

The best way to fight an Order of Protection is to hire a qualified, experienced attorney who handles divorce and family law cases. Attorneys who do this type of legal work are generally familiar with litigating issues involving Orders of Protection. At the time you interview a prospective attorney regarding an Order of Protection, you should discuss with him or her the level of experience they have in handling these types of proceedings.

Order of Protection proceedings can be brought either in the Family Court or in the Supreme Court during the course of a marital dispute. The sooner you contact a qualified Order of Protection defense lawyer, the more likely you will be able to succeed in getting it dismissed. father's rights advocate in New York

Knowledge of Order of Protection Sufficient Even When Service Was Improper

father's rights attorneyIn a case before Judge John Hecht, sitting in the Criminal Court of Kings County, he was presented with a situation where an Order of Protection, initially granted in the Family Court, was improperly served on man named Jakubowski. The service of the Order of Protection was made by the party who sought to be protected by the Order of Protection. This was in violation of the service of the Order of Protection requirements.

Violation of Stay Away Order of Protection

Criminal charges were brought against Jakubowski. He was charged with criminal contempt and harassment. The criminal complaint alleged that he had made a gesture indicating a throat slashing with his fingers which was in violation of the stay away Order of Protection granted by the Family Court. Defendant, Jakubowski, moved in Criminal Court to dismiss the proceeding based on facial insufficiency. His attorney claimed he did not have knowledge of the Order of Protection because it was served by a party in violation of the service requirements concerning an Order of Protection. Jakubowski’s attorney argued his client’s alleged improper throat slashing gesture did not amount to a threat of harm under §240-26(1) of the New York State Penal Law.

Knowledge of Order of Protection Enough

Judge Hecht, in his decision, stated the issue concerning the Order of Protection was whether or not Jakubowski had notice of its existence. The Judge’s decision was since Jakubowski had actual notice of the existence of the Order of Protection, even though it was improperly served, the criminal contempt allegation was valid. The Court took the position Jakubowski had knowledge of the existence of the Order of Protection and he intentionally disobeyed it. Even though the statute concerning the Order of Protection was not complied with due to the manner of the service, the actual knowledge of the existence of the Order of Protection by Jakubowski was sufficient to satisfy the allegations he had committed criminal contempt by violating the Order of Protection. The court also denied Jakubowski’s application to dismiss the harassment charge for facial insufficiency.

Conclusion

In the event an Order of Protection is taken out against you, and you become aware of the existence of the Order of Protection, you need to comply with its requirements. This is true even in the event it is not properly served upon you.

advocate for fathersElliot Schlissel is a father’s rights attorney representing fathers concerning Orders of Protection, child support, child visitation (parenting right issues), and all other issues concerning divorce and in Family Court proceedings.

Order of Protection Thrown Out

father's rights attorneyThe Appellate Division of the Second Department (an appeals court) in the State of New York recently vacated an order of protection obtained by a wife against her husband. The court ruled that the alleged disorderly conduct which took place inside the parties’ home did not sufficiently prove that the husband engaged in disorderly conduct which was intended to cause, or recklessly create, a risk of causing public inconvenience, annoyance or alarm.

The Story

Mr. and Mrs. Cassie were not getting along. Mrs. Cassie decided one day to pack up her husband’s bags and change the locks to the house. Mr. Cassie came home from work and found he could not get into his house. At some point one of his children let him in. Mr. and Mrs. Cassie had two daughters aged 16 and 17.

An argument ensued on the second floor of the parties’ home while the children were watching TV. Mrs. Cassie called the police alleging her husband had assaulted her. Mr. Cassie denied that he had assaulted her. He voluntarily left the marital residence.

Mrs. Cassie went to the Brooklyn Family Court. She obtained an Order of Protection based on a decision by Judge Anthony Cannataro that determined that Mr. Cassie had committed the family offense of disorderly conduct.

Mr. Cassie appealed.

The Appeal

In his appeal, Mr. Cassie claimed his wife did not make out a prima facie case for disorderly conduct. The Appellate Court agreed. The decision of the Appellate Division was that the disorderly conduct had to have some sort of public inconvenience, annoyance or alarm. Since this event took place in the family’s home, there was no reckless disregard that might cause public harm. The court found Mrs. Cassie did not prove her case.

The Appellate Court overruled the family court decision and allowed Mr. Cassie back into his house.

About the Author

assistance for fathersElliot Schlissel, Esq. is a father’s rights attorney practicing throughout the metropolitan New York area.

Online Relationship No Basis For Order Of Protection

father's rights order of protectionJudge Heppner, who sits in Brooklyn Family Court, recently ruled an online relationship which ended in a contentious business relationship was not sufficient to meet the standard of an “intimate relationship” requiring the issuance of an Order of Protection by the Family Court in New York. Judge Heppner found the case law establishing an intimate relationship in New York could not be met by a casual online relationship. Judge Heppner found there was not a basis for granting an Order of Protection.

The Relationship

The parties met online and exchanged emails over a period of several months. Shannon and Michael had numerous conversations involving a variety of subjects including Michael’s carpentry skills. Shannon had asked Michael to make several small repairs at her residence. Shannon eventually filed a Family Offense Petition requesting an Order of Protection.

New York Family Court Act section 8.12(e) states “Family offenses which give rise to Orders of Protection can be applied to 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.” Judge Heppner found the internet communication between Shannon and Michael rendered them “casual acquaintances” and “ordinary fraternization between two individuals in business social context” did not give rise to a relationship envisioned by the legislature related to Orders of Protection in the Family Court.”

Judge Heppner kept the temporary Order of Protection in place for two weeks at the end of the case. She took this action to give Shannon an opportunity to go to the District Attorney’s office for the purpose of pursuing a criminal action against Michael. It should be noted when the Family Court lacks jurisdiction because the parties are not related or they do not have an intimate relationship between them, an individual can still go to the District Attorney’s office and request criminal charges be brought against the other individual and an Order of Protection be granted by the Criminal Court related to these criminal charges.father's rights help

Custody Modified: Father Given Custody

father's rights attorneysIn a recent case, Judge Stacy Bennett, a Family Court Judge now sitting in the Supreme Court in Nassau County granted a father a modification of a previous custody order.  The modification granted him the physical custody of his daughter.

In this case the father claimed the mother had been engaged in “vicious behavior” which included repeated false accusations of sexual abuse by the father. These accusations were unfounded. In spite of the fact that they were unfounded they resulted in an eventual alienation of the parties’ daughter.

On three previous occasions the Court had dismissed family offense petitions brought by the mother alleging physical sexual abuse by the father.  The Court had also vacated temporary orders of protection in this situation.  A Court appointed forensic evaluator, in his report, recommended custody be transferred from the mother to the father. Judge Stacy Bennett agreed with the forensic evaluators findings. She felt the evidence established the mother would continue to make the reports of sexual abuse. She found the mother was “unwilling and unable to promote a healthy relationship between the father and the child. This put the child at risk of emotional damage.”

Best Interest of Children To Give Father Custody

            The Court found the best interest of the child would be to modify the previous custody order and change custody from the mother to the father. The Judge found that the mother was unfit to continue to act as her daughter’s custodial parent.

Guilty Until Proven Innocent

            Fathers, for decades, have found themselves guilty until proven innocent of false charges of child abuse. This decision is a step in the right direction!

About the Author’s Law Firm

            The Law Offices of Schlissel DeCorpo
have represented thousands of fathers in child custody and visitation proceedings throughout the Metropolitan, New York area during the last 35 years.  We offer free consultations and our phones are monitored 24/7.custody and child support assistance for fathers