Domestic Violence Legal Aspects
1. Contact with the police and courts.
- Be truthful.
- Make a strong statement for your side.
- Never admit anything against yourself before talking to a lawyer.
- Be accurate, use everything on your side you can. Don't make misstatements; they will be used against you. Don't lie.
- Make sure the police report or Domestic Incident Report (DIR) states accurately everything you want to say before you sign it. Once it is signed, it cannot be changed.
- Always tell your lawyer the truth.
- If you are in fear of the offender, request the responding officer(s) to file for an Order of Protection on your behalf.
- If you start something in court, finish it court. If you drop it, that history may be used against you in future court cases.
2. Help your attorney develop facts and evidence
- Document everything. Keep detailed notes date, time, incident.
- Take photos of injuries and property damage.
- Go to the hospital to document injuries.
- Call the police; insist on having a written report filed. Note the officer's name, precinct, contact information.
3. Orders of Protection
In Criminal Court
- Criminal charges must be filed against the offender.
- You will need to speak with the Assistant District Attorney.
In Family Court or Supreme Court
- You and the offender must be a current or ex-partner, or family member.
- Criminal charges do not have to filed but a petition depicting the abuse must be filed.
Orders of Protection are not in effect until the offender is served with the paperwork by a court official or a law enforcement official.
4. You can lose your children if you fail to follow through.
- It's a mistake to think “he/she only hits me, not the kids” 70% of abusers who hit their partners also hit their children. Witnessing a parent being abused is considered abusive to children.
- Child Protective Services can hold YOU responsible for staying with an abusive partner and knowingly put your children at risk.
This information is provided only as a guide if you need help seek professional legal advice.
Orders of Protection
What is an Order of Protection?
Is an official court paper signed by a judge that orders the perpetrator to stop verbally or physically abusing you. It may also direct the perpetrator to stay away from you, your home, your place of employment or school, your children and family.
It also may specify visitations at designated times and dictate circumstances.
You can petition for an Order of Protection in either a Criminal or Family Court.
In Criminal Court, charges must be filed against the perpetrator. Notify Law Officers that respond that you want to ask for an Order of Protection. You can also talk to the Assistant District Attorney in court to ask for an Order of Protection.
In Family Court, specific reasons must be listed and the perpetrator must be one of the following:
- Related by blood or marriage.
- The parent of child/children in common.
- Formerly an intimate partner.
You can file a petition in Erie County Family Court located at One Niagara Plaza in Buffalo. Petitions are filed on the Fourth Floor. You can ask to have an advocate assist you in filling out the paperwork, you may also hire an attorney. If you cannot afford an attorney, you can ask the judge for a referral to Legal Services.
If you feel you are in immediate danger, a temporary Order of Protection may be granted to you. You will have the right to see a judge the same day or the very next morning. Be prepared to wait.
If possible bring evidence of abuse (photos, medical and police reports) make sure you inform the clerk of all the details of the incident and any threats the perpetrator has made.
Be accurate in detailing the incident in the petition. Be truthful, but do not embellish what happened. If you are in fear of the perpetrator, be sure to express it in the documents and to the clerk.
If it is not an emergency situation, you will be given a return court date (or you will be notified by mail), at which both you and the perpetrator will appear before the judge.
Children are not permitted in Family Court Petition Offices or in the courtrooms. There is a free day care provided during court hours on the first floor. Child care is available on a first come first serve basis.
If you are granted an Order of Protection, it cannot be enforced until the perpetrator is served.
Carry a copy of your Order of Protection with you at all times. Provide copies of the Order to your local police department, your employer, your child's school if they are covered by it, and to your landlord.
This information is provided solely as a guideline and not meant to replace professional legal advice.