New York Criminal Lawyer Blog

In a lot of sex crimes these days, an expert lawyer says that there are many accused who suffer from a certain kind of mental abnormalities. Such case lets the court decide that such accused undergo certain treatment like the SORA. But in this case, the alleged named as Elias McFarland. However, in this case he keeps on appealing that such program is unconstitutional and that he would fight for his right.

According to the lawyer who became a part of the case, the court did not agree that the decision for the SORA is unconstitutional. It even scored him as a sex offender who is of high risk and falls as level 3 offender. But the defendant still continue to disagree and never stopped submitting written submissions to serve as additional support to what he is trying to prove. Another lawyer also believes that there is no valid reason at all to have his level 3 designation to be lowered for he was certainly considered as a high risk offender which means he is of great harm to the society.

At one point, it was questioned why the Attorney General’s office did not show up during the hearing. But as analyzed by a rep who is well experienced, such decline to appear just meant that they are confident already of the way they assess the risk levels of such offenders. It just means that there is no need for them to even show up for all the proposition is already well settled. All the facts were all outlined well and complete sets of evidence were are presented without any chance of being argued by others.

According to additional data that was gathered with minor defense lawyer, Elias McFarland is 76 years old and he was trying to prove that he is too old to still go through such punishments. But with the background of his heinous crimes, the court did not allow such to happen for him not to go through proper treatment for he is of high risk already to the society. There was even one criminal background of Elias which involved him striking a very old woman who is 86 years old. And she was even sexually abused by Elias at such an elderly age.

Such cases are important to help the citizens of New York to stay protected from such sex offenders and also help the offenders themselves to still have a chance to be treated and change their lives for the better. The risk assessment of sex offenders is very important and decided on properly and formally by the Court with the help of medical and psychology experts who are capable of analyzing what happens in the mental and other aspects of such offenders and why they are forced to do such heinous crimes to others who are innocent and helpless like minors and women in majority.

Continue reading "All Sex Offenders Regardless Of Age Should Pay For The Consequences" »

There are always questions on who are involved in a particular and who are not. Up to what extent can be a person’s participation for him to be considered as part of a crime? This particular case is all about these doubts and questions about a person’s participation in committing a crime.

According to a source, John Timlin was charged and indicted with second degree. But this was contested by Timlin because the nature of his involvement in the said crime. He was sentenced to three to nine years of imprisonment.

Based on facts, Timlin teamed up with Vincent Caruso in robbing the Giant Food Store. This happened on December 18, 1981. Both Timlin and Caruso went to the Giant Food Store on Main Street in the City of Binghamtom apparently to rob it with all its cash money. What’s unique about this case is that Caruso, who was the one who went inside the Giant Food Store did not declare a hold-up or robbery in the conventional way. What he did apparently was to write a note declaring robbery. What was written in the note was that Caruso had a hand gun and he is going to use it to kill anybody if they do not cooperate and give the cash that they have. The employee at the Giant Food Store complied with Caruso’s note, fearing he will kill anybody who doesn’t comply.

With reports, Caruso had taken $2,500 cash from Giant Food Store, left the store and entered the passenger’s side of the waiting vehicle. This is where Timlin enters the picture. Timlin is the driver of the get- away vehicle that was used in this robbery. According to testimonies by Caruso and other witnesses, Timlin never entered the Giant Food Store. He was not seen with Caruso when Caruso handed the Giant Food Store employee the alleged robbery note. Timlin was waiting in a nearby alley way all the time that Caruso was doing the robbery. The car was pulled-up by the police only minutes after Caruso and Timlin tried to get away.

This is where the dispute begins. Because Timlin was not actually with Caruso inside the giant Food Store during the robbery he was saying that he shouldn’t be charged with second or first degree robbery. But the court and the jury established that even though Timlin was not inside the food store when the robbery was taking place, his participation in making sure that Caruso gets away after getting the money was proof enough that he was an accessory or accomplice to the crime committed by Caruso. But it was not enough to convict Timlin of robbery in the first or second degree. The court indicted Timlin with robbery in the third degree.

Continue reading "Timlin teamed up with Vincent Caruso in robbing the Giant Food Store." »

On September 17, 1992 the Family Court of Kings County, New York heard a disturbing case involving the two children, two boys and a girl who were possibly being abused by their father. The allegations of sexual abuse stated that the father pinched and squeezed the buttocks and genitals of the boy children. However, it was claimed that this handling occurred while they were wrestling and playing. The father stated that he did handle the boys, but it was in no way sexual. He stated that it was just horsing around type of behavior. He stated that he had grabbed the boys’ genitals and buttocks during wrestling, but that he had been similarly touched as a child and had not considered it wrong. He stated that he realizes that it “transgresses proper parental boundaries.” The professionals called upon to review this case state that in order for the touching to be considered sexual abuse, there must be an element of sexual gratification in the touching that does not appear to be evident in this case. The doctor who examined the children stated that she could not say with absolute certainty that the boys had been abused. She advised that there were perhaps inappropriate parental boundaries, but that is not abnormal. Many parents involve in interplay with their children especially in “early stages of development that consists of touching, squeezing, patting, and pinching various parts of the child’s body including buttocks and at times genitalia.” The doctor stated that the difference is that when the child is older, the same behavior is not acceptable. She stated that some parents lack the respect for the child’s right to privacy of his own person that the child should develop as it grows and matures. The parent therefore, continues with the same games only now the child or society perceives them as inappropriate. It is agreed that there seems to be a gray area in the parental child relationship that must be examined with extreme care in order that normal parental interactions are not erroneously defined as sexual abuse. By falsely identifying this behavior as sexual abuse, a parent /child relationship can be severely damaged.

Another aspect of this allegation that must be examined is the aspect that the mother may have coached the children to make the allegations. The allegations were made to a third party outside of the normal interactions in the home which is not normal. The mother stated that years before, she had made the children watch a video tape about reporting sexual abuse. The court officers have observed the mother’s displays of illogical thinking and reports of her being incoherent. The mother has publically accused the father of sexually abusing the boys and has refused to comply with court ordered visitations because she states that he is a sex abuser. It is difficult to determine if the alleged abuse actually occurred, or if during normal family type play, touching was engaged in that had nothing to do with sexual gratification. Since it is unable to determine the intent behind the touching, the court has no choice but to dismiss the sexual abuse allegations in this case. Not only was the court unable to find that there was intent involved. The timing of the allegations to fall shortly before the hearing of this custody case is suspect especially, since it is alleged that the contact was several years earlier. Something that they do consider has led to the some of the bad feelings that the children have towards their father is the ongoing domestic violence that the children observed growing up in the home.

The doctors all testified that these children stated that they had observed their father punching their mother on numerous occasions. They advised that they observed him hitting and kicking her and that on one occasion, he broke a guitar over her legs. There are no medical documents to verify these allegations, but all of the children have testified to the domestic abuse in the home. The children stated that there were nights that they were forced to flee the house in the darkness because of the physical aggression that their father was showing towards their mother. The children have demonstrated psychological scarring based on the pattern of domestic violence that they were exposed to in the home. They recalled several instances where the father took a gun and held it to the mother’s head and threatened to kill her. The psychologists who examined the children stated that the “amount of physical assault, violence, verbal obscenities and denigrating treatment the parents have exhibited towards each other have imprinted fear, apprehension, and anxiety in each of the children.” (Dr. Meltzer's expert testimony) The court feels that enough evidence exists to demonstrate that these situations did occur and that they had devastating effects upon the children of this couple.

The court found that the mother, a nurse, had accused the father of sexually abusing the children during the course of the divorce proceedings. However, the mother’s behavior in court was erratic to the point where the court required the mother to submit to a psychological evaluation. The psychological evaluation of the mother showed that she was suffering from a psychotic disorder that was characterized by her inability to have rational thought. The court personnel observed rapid mood swings and odd speech mannerisms exhibited by the mother. The mother also refused to take the children to therapy appointments because she felt that she was better equipped as a nurse to handle their problems at home. The mother’s house was noted to be in disarray with broken windows and bannisters. The children are frequently absent from school even when the parents were together. One child missed as many as 59 days of school in one school year.

The mother’s mental illness was also addressed. It was determined by testimony that she was viewed as being manic-depressive and that she demonstrated, “disorganized thought, rapid speech and mood swings,” Sister Alice who is a social worker for the state of New York further testified that the mother’s mental illness is so overwhelming that is has impaired her ability to care for the children.

The social worker and the court officer noticed that she had difficulty acknowledging that there were other professionals who could perhaps offer care to her children that were beyond her ability. The court officer cited that the mother had a grandiose self-image that led her to question any and all care that her children may receive from others. It was described at pitting herself against the educators, psychiatrists, social workers, and the court in that she had refused to undergo psychiatric counseling either for herself and her children. She continues to substitute her own impaired judgment for that of trained professionals and the court. The court finds that she is neglectful based on impairment of emotional health because she refuses to pursue a course of therapy recommended by the qualified professionals of the court. The mother is distrustful of school officials and refused to let her children ride the school bus because she distrusts the school bus operator. Although the house is less than a mile from the school, the mother often claims an inability to bring them to school. However, when the children are at school, the mother drops in constantly interrupting their daily routine. The school has requested that she stay away. The court finds it difficult to understand how she can show up at the school repeatedly during the school day, but not be able to take the children to school at all on most days. The mother claims that the children refuse to go to school and that she cannot make them among other excuses. The mother is found to be mentally impaired and that impairment makes her neglectful of the children’s emotional and psychological wellbeing.

There is no question that the children are having difficulty in school based upon their absences. When they do attend school, they are often late and tired. Two of the children, despite being very smart are failing in school. One was held back in the fifth grade and another was in danger of being held back. The professionals that have contact with these children all believe that the children’s academic difficulties were due to the problems in their home. When the children refused to go to school, the mother would just let them stay home. The father, who worked nights was generally home during these incidents but failed to ensure that the children went to school. On one occasion, when the social worker came to check on the children, they were found sitting on the roof of the house. She stated that she believed that the mother’s mental issues kept her from being able to care sufficiently for the children.

The court finds, in conclusion that this is a family that is torn apart by physical violence and mental illness. The court decides that there is no credibility to the allegations of sexual abuse; since there is no way for them to prove intent. The court finds that the children do suffer from emotional and psychological impairment due to the domestic violence that is prevalent in the home.

The allegations of educational neglect are valid and are shown to be directed at both parents for failing to ensure that the children attend school on a regular basis. The court finds reason to charge this mother with neglect for the emotional and psychological impairment of the children resulting from her own mental illness.

Continue reading "The father stated that he did handle the boys, but it was in no way sexual" »

These days, it is very hard to trust others especially when it comes to leaving our kids with people who you can truly rely on. There are many cases these days where nannies and even babysitters are accused of committing sex crimes that involve the children of their own employers according to a lawyer. This goes the same for this case that is considered as an example here in this report for you to understand better the legal proceedings for such cases. The one involved here as the accused is James Watt.

As per the lawyer who studied this case, Watt was convicted of rape, sodomy and for putting into danger the welfare of a little child. The crimes involved in his case are considered very heinous since it was committed against innocent and helpless tiny girls who are under 11 years old. These kids according to their parents were entrusted to him since he operates a basement based daycare center in the community. The problem that made everything worse is that the daycare center was not registered.

All of the kids involved as victims gave their testimonies in detail even if it was really heinously specific in detail. The source backed this all up with formal medical evidence from experts done through proper medical examinations of the children. Many of them already showed suffering from diseases which are sexually transmitted. It was actually very sensitive to discuss but this could be a true learning experience for many and how they would be able to protect their children. The total number of crimes that was perpetrated against him includes twelve kids. This of course means that this case should be well investigated and be well prepared.
To add more formality and technicality on the investigation of this particular sex crime, the court got the service of a master psychologist by the name of Eileen Treacy. She is an expert in handling the sex abuse syndrome with kids. She interviewed seven of the kid victims and the result of her analysis led to the conviction of Watt being guilty of the crime. According to a juror with minor defense lawyer the reports were all asked to be gathered and presented to the court.

In the end, what was most important for the court is to offer utmost protection to the innocent victims of Watt. All of them have gone through so much trauma and abuse that this could bring negative effects to how they will handle the future ahead of them. And it is important that such a crime should not just go unpunished. It is also such a weak reason to use that he should not be convicted just because no one can say the exact dates of the sex crime and abuse that were committed. And hence, the Court made the right decision to convict and punish such a person as James Watt for pretending to love and care for kids just so he can take advantage of sexually abusing them.

Continue reading "Daycare Center Operator Abuses Kids Under 11" »

In February of 2007, a man returned to New York State to re-unite with his ex-girlfriend and the mother of his little girl. They had parted the summer of 2006 following a domestic violence situation. The court had issued an order of protection to keep this man away from his family. They agreed to have joint custody of their little girl.

When he moved back to New York, he moved in back in with his ex-girlfriend, the mother of his little girl. But it did not take long before the police were back out at their apartment. Three months after that, the little girl was back in emergency foster care following a horrific episode of domestic violence that occurred in the child’s presence. The neighbor in the apartment next door to theirs heard a fight, and a child screaming for help. In fact, the mother testified later at trial that the man had strangled her during an argument. She stated that her daughter had been behind the man crying and screaming for him to stop hurting her mommy. The man was arrested again, the woman was also arrested. There had been some houseguests in their home when the argument occurred and they started to fight. When the police came, they located a shoebox containing marijuana and other drug paraphernalia. The drugs were located in an area that would have been easily accessible for the small child. Both parents were charged based on the element of neglect involved in having harmful substances within her reach.

The little girl’s grandmother on her father’s side soon requested that the child be placed with her. Her application was denied, and she appealed the decision. While she was awaiting the appeal, the child’s mother had pled guilty to the neglect and had managed to get the child back.

Specifically at issue in this case is whether or not the father knew that the friends in the apartment had drugs. He admitted that he knew that they had drugs, but he had told the friends to leave their drugs in their car. His allegation that he thought that they had left their drugs in their car, was not believable to the judge in this case. The paternal grandmother’s application to be the child’s temporary foster mother is not relevant since the child has been reunited with her mother.

That only leaves the fathers charges. He is charged with neglect as it relates to strangling the child’s mother in front of her. He readily admits to this charge. As far as whether or not he was in violation of the order of protection, the answer is clear. He was at the apartment in violation of the stay away order. Basically, the court finds that the father’s contentions that he did not know that his friends had brought their drugs in to the house is not believable.

The father contends that the order of protection is not important because on its own, it would not be sufficient to establish neglect. The court agrees that on its own, it was not sufficient; however, when combined with the domestic violence in the child’s presence, the presence of drugs at the child’s level, all of these things together add up to a marked lack of parental judgment. All of the orders are affirmed.

Continue reading "In February of 2007, a man returned to New York State to re-unite with his ex-girlfriend and the mother of his little girl." »

The courts have ruled repeatedly that an act of domestic violence in the presence of within view of a child constitutes neglect. However, an isolated incident of domestic violence does not constitute a case of neglect. An incident is not isolated, though, when it is part of a pattern of conduct. A domestic violence incident is not isolated if it is done more than once.

In the situation at question, the mother’s testimony at a fact-finding hearing demonstrated that there was a clear pattern of conduct. So the father could not claim that it was an isolated incident. There was a pattern of conduct. The father appealed the finding from the fact-finding order of the Family Court of Queens County from August 3, 2009. In that hearing he was found to have neglected his children.

This court has reviewed all of the arguments. At special interest were the incidents of domestic violence outside the presence of the child which would have been insubstantial to the proof of neglect. The case in question was proved to be part of a pattern of conduct of domestic violence that is not isolate or perpetrated outside of the presence of the children in question.

The court in this case finds that the father’s contentions that the court needs to review these items at this point lacks merit. None of the father’s statements that are driven at reopening attention in regards to this case are substantial to encourage the court to order in any fashion other than to affirm the fact that he has neglected his children.

In many cases, it is difficult for a person to understand that incidents that occur within hearing of a child constitute neglect. A parent who threatens to kill the other parent is in effect neglecting the mental wellbeing of the child. Any act of outright domestic violence, hitting, slapping, pinching, verbal abuse, all constitute a criminal act. If they are done in front of a child then it constitutes neglect.

Continue reading "The courts have ruled repeatedly that an act of domestic violence in the presence of within view of a child constitutes neglect" »

One of the ugliest truths about domestic violence, separation and divorce is the effect these things have with the children involved. They are often times ignored, their feelings and sense of identity compromised because of the violence happening inside their homes. In a child’s perception, home is supposed to be the safest place for him. That is why if this is compromised by any reason, the child’s sense of security is altered and he becomes sceptical of his surroundings all the time which is not healthy for his emotional and intellectual growth.

This case does not only involve one child but all of the victim and the defendant’s children. Being an adult doesn’t mean you have already overcome the trauma you suffered from living in a house where violence is a daily occurrence. But the thing about this case is that the complaint of domestic violence is not actually the main thing. The main issue that the couple is facing is the custody battle for their youngest daughter. There is also an issue about so called “brainwashing” of the child by the mother. The father is accusing his ex-wife who is also the mother of his children of brainwashing or mind conditioning their youngest daughter against him. As a result, the daughter now doesn’t want to even spend some time with the father. The father claims that this very odd since he and the daughter before had a pretty good relationship before this whole proceeding began.

The court finds this case especially troubling because of the odd behaviour of both the mother and the father. The court, upon lengthy observation has established that the mother can be very controlling of the people around her. She can be very deceitful. She can be manipulating times and her behaviour as well as her actions and opinions are highly regarded by their youngest daughter. The grandmother from the mother’s side also has the same behaviour. There was this one time when during court interview and questioning when the grandmother complained of high blood pressure. This meant the questioning was stopped and delayed for some time. The same reasoning was exhibited by the mother when it was her turned to be questioned by the court.

With this type of behaviour by the father is also affected. The problem is the father doesn’t see the effect of his ex-wife’s behaviour on him. He feels agitated most of the time and left with no choice but to inflict physical harm to his wife thus the case on domestic violence which resulted in the divorce proceedings and custody case.

This particular case was a long and hard fought battle. There were interviews conducted to a lot of witnesses including their friends and religious affiliates. It was a lengthy process that affected the children so much. As much as the court wanted to make it short for the children, determining the right course of action for their own well being is what the law wants to achieve in this process. It is a fact that the parents were able to raise adult children already but it doesn’t mean that what they did in raising them were correct. It is still being determined by the court whether the domestic violence complaint is true of not given the observed behaviour of the mother or the ex-wife.

Continue reading "One of the ugliest truths about domestic violence, separation and divorce is the effect these things have with the children involved" »

On September 29, 2008, a petition was put before the Family Court of Tioga County to have a certain child classified as a neglected child under Family Law. What would this mean and how did it come about?

The child was born in 2005. In 2007, his biological parents began living together, and were later married. On April 16, 2008, a report was filed alleging that the husband had committed domestic violence against his wife twice, in the presence of the child.

After an investigation, the individual who filed the petition explained that because the domestic violence had been committed in the child’s presence, the husband neglected his child. Also, reports showed that the husband had a history of neglect against other children who were formerly in his household. He had also sexually abused the child of a woman he had lived with, and no longer had parental rights to two of his biological children. He also had a long history of violence involving the women in his past relationships.

During the hearing, after the charges were presented by the petitioner, the man’s lawyers did not object and instead asked that they “move straight to a dispositional hearing”. After the discussion, the Family Court found that the father had neglected his child issued a permanent order of protection which prevented him from ever having any contact with the child. The father appealed against the allegation and the order of protection.

The father also claimed that the Family Court did not strictly follow the requirements of the law during his first appearance at court. In reviewing this case, the Court of Appeals found that although the charges brought against the father were not recited, the Family Court made sure that the man had a lawyer present and that he was told about future proceedings. He was also allowed to ask questions about the petition so that he could understand what it was about. Therefore, the Court of Appeals found that although the Family Court made a mistake in this part, the error is not important enough that the decision should be reversed.

Next, the father claimed that the Family Court’s decision to find him guilty of neglecting his child was improper because the evidence used was documentation about past abuse and neglect only. However, in cases involving domestic violence, evidence that one child is abused or neglected is enough to prove that another is also abused or neglected. While it is not the only basis for determining if a child is neglected or not, in this case, the father’s long history of past neglect proves that he does not understand his duties of parenthood. Therefore, in this case, proof that he had abused or neglected his other child is enough to prove that he had abused or neglected this child.

The law defines neglect as any act which harms or puts in immediate harm, a child’s physical, mental, or emotional condition, as a result of the parent or guardian’s failure to exercise a minimum degree of care. Thus, the Court of Appeals arrived at its decision to ignore the father’s appeal.

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New York has noticed that increasingly steps have to be taken to protect victims of domestic violence not just from the abusers themselves, but from prejudice from others. One example of prejudice against the victims of domestic violence is in housing. Frequently, victims of domestic violence find themselves evicted from their homes because of the disturbances that are caused by the very violence that they are victims of. The victims of domestic violence are not just victimized by their abusers, but often by the communities that claim to be helping them.

On January 5, 2006, the Federal Violence Against women and Department of Justice Reauthorization Act of 2005 (VAWA 2005) were signed into law in an attempt to solve the problem of landlords trying to evict the victims of domestic violence because of the acts of the abusers. On April 1, 2008, a long time victim of documented domestic violence was involved in a dispute with her abuser at the location where the victim maintains a residency. Her apartment, which also happens to be a New York Housing Authority property, is not shared by her ex-boyfriend who has abused her since November of 2006.

The property manager of the apartments that she now lives in has filed a claim to have her evicted claiming that her violent episodes are a threat to her neighbors. The claim also states that she stabbed her ex-boyfriend during the April 1 incident. The victim maintains that her ex-boyfriend assaulted her on April 1 and during the altercation, they fell into a glass mirror. The glass fell around both of them, but she never intentionally stabbed him. She maintains that she is a victim of domestic violence and as such deserves the protection of the law to not be evicted based on circumstances that are beyond her control.

While the history of domestic violence between these two individuals is well documented, it may not be used to show that the victim is violent and capable of stabbing her assailant, they can be used to document the pattern of domestic abuse that exists between these two people.

The property manager alleges that the victim gave her assailant access to the building on numerous occasions. She stated that on several occasions when the building security refused to allow the victim’s assailant onto the property, that the victim became irate. She would scream and yell and used obscenities until he was allowed in. The courts point out that part of the pattern of domestic violence is the erratic behavior by the victims. The victims often react in ways that seem odd from the outside. The court takes the stand that the victim’s behavior highlights her as a victim of domestic violence rather than as a person who deliberately tries to cause a problem on the premises. It is not unusual for a victim of domestic violence to change their minds repeatedly about prosecuting their attackers. It is just all typical of the cycle of domestic violence.

The victim’s motion for summary judgment is granted. The court finds that the victim is a protected party under VAWA 2005 and therefore forbids the government housing authority from terminating her tenancy.

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A 25-year old woman entered into marriage without knowing what's in there for her. Sources said her marriage has a history of domestic offense perpetrated by the husband upon the wife. No longer able to take the abusive acts, the wife filed a case against her husband, which resulted to the husband being committed to incarceration for one hundred and eighty days.

The wife obtained an order of protection for one year prohibiting her husband from assaulting, menacing, harassing or recklessly endangering her and their children. With her husband in imprisoned, the wife thought she was safe. To her disbelief, one night, her husband escaped jail, went to her house, and harassed and annoyed her by moving her car out of the driveway to a towing zone. The husband also threatened to kill his wife and their children. The husband, according to sources, climbed into the wife's window from the fire escape, but when their 15-year-old son saw his father enter the residence, he chased his father out of the residence. Because there was also threat of harm and abuse to their children, the wife also obtained a protective order for her husband to stay away from their children.

Fearing for her life and that of her two children, the wife then filed another complaint in court to have her husband incarcerated. The husband refuted the complaint and argued that the family court cannot impose consecutive commitments. But the court held that because of the remarkable and significant impact domestic violence has over a family and the public in general, it is absurd not to allow courts to impose consecutive commitment orders for only up to six months only. In this scenario, the perpetrator will be free from bars and return to harass the victim.

Courts are of the opinion that the Family Court Act was enacted to set a procedure and provide specific remedies to cases of domestic violence. The Act provides that acts of domestic violence do not happen in just one occasion, but also on separate, distinct and repeated occasions. Acts of domestic violence also do not just happen in the homes but also on streets and public spaces. It usually affects the wife and the children. Often times, children who witness acts of domestic violence take the violent acts outside of the homes and transmit the violence to other kids. These children usually end up bullying other kids outside their homes. On the part of wives who are victims of domestic violence, most of them suffer post-traumatic stress disorder and experience severe depression and anxiety. These major mental illness often results to homicidal or suicidal behaviors. In this case, the wife had a history of psychiatric hospitalization as a result of her husband's abusive behavior.

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There a lot of stories out there about men and women who couldn’t get over a relationship. Some just can’t accept the truth that the relationship is over and that their ex-partners are ready to move on. Because of their “non-acceptance” of the truth some or even more are resorting to violent behaviour. These violent behaviours can be really life threatening that extends not only to the victim herself but to her friends, family and acquaintances as well.

Let’s take this case as an example. The victim and the defendant have been in a romantic relationship for years. After the victim ended the relationship some time ago, the defendant contacted her and practically pleaded to meet her and possibly talk; spend some time together. The victim took pity and seeing that it’s perfectly alright to meet agreed to see the defendant. They met on June 15, 2007. After talking, the victim went home and went about her other plans for that evening. She went back to her apartment, freshened up and went down to go out and meet a friend. As the victim was leaving her apartment the defendant who was hiding close by suddenly appeared and confronted the victim. He was agitated and angry with the idea that his ex-girlfriend was going out that night to meet someone else. He was shouting and pacing around and accusing the victim of being a “slut” for going out with other people.

The victim tried to get out of the situation by trying to walk away. Unfortunately the defendant would not let her. Instead he grabbed her hands and twisted it behind her back. The victim was in pain this time as the defendant tried to get her celphone. When he was able to get her phone he dialled the victim’s friend and shouted at him over the receiver saying he and the victim are already engaged to be married and that they are having an intimate sexual relationship at the moment. He did this and dialled the victim’s friend twice. Angry, frustrated and scared, the victim tried harder to free herself. The defendant assaulted her more and even exposed her in front of the public by pulling down her tube top, exposing her naked upper body. After that the defendant grabbed her car keys and drove away. The next morning, he drove back her car and asked her not to report any of what happened the night before. He also promised that it will never happen again. The victim agreed.

After some time another incident of assault and violence occurred, this time the victim was already with her friend having a nice quiet time together when the defendant saw them. It was at the victim’s place of residence and it just so happened that the defendant drove pass by and saw his ex girlfriend together with her friend at the sidewalk. There were a lot of confrontations between the two men. Fortunately the police already arrived before any serious physical violence happened.

The victim asked the court for an order of protection against the defendant as she feared for her safety. The court granted her request and plenty of times this was violated by the defendant. The defendant even tried sending the victim several text messages and even asked his mother to send her text messages asking her not to press charges as this will be bad for the defendant’s record as a police officer.

The victim naturally pressed charges because these things should not go on unpunished. It is very fortunate that there are lawyers like New York attorneys who are always ready to help in these dire situations.

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In this child advocacy hearing, the child is represented by their own attorney. The parents have their own representation, and Clinton County Department of Social Services is also represented. Lastly, the child’s great aunt who wants to get custody of him is represented. The child’s great aunt has filed a petition stating that his parents are incapable of caring for him and that she wants to have full custody. His great Aunt contends that the child was born with a disease called gastroschisis. Gastroschisis is a life threatening condition wherein he must be monitored intensely and daily medical care is a necessity. The great aunt maintains that she has the time and resources to provide this care and his parents do not. Further, she maintains that because of domestic violence inside the home between the parents, that the child would be better served if he was in her care.

The great aunt filed her petition on November 9, 2010. On November 10, 2010 the Court directed the Clinton County Department of Social Services to conduct an investigation into the parental care of this child. The report was turned in on November 16, 2010 and was seven pages.

The report conducted by the Clinton County Department of Social Services shows that on December 26, 2008 there was a report of domestic violence concerning the parents of the child. The reported stated that they did not find any reason to believe that the parents were not adequately providing for the needs of the child.

The attorney for the child in support of the great aunt’s motion for custody presented an affidavit that showed the child was recently released from the hospital. It would appear that the child was released to his parents after a month long hospitalization due to life threatening complications from his illness. The child’s attorney stated that the child’s father has abused his mother under domestic violence statutes both before and after the birth of the child. This attorney provided reasonable basis for the domestic violence claims against the parents in her motion.

Clinton County Department of Social Services argues that the attorney for the child’s written request is broad and not well thought out. It seems to be an attempt to gain more information rather than a source of information on its own. Clinton County Department of Social Services maintains that the information that the child’s attorney is “fishing” for does not exist.

Secondly, the Clinton County Department of Social Services states that they have conducted a thorough investigation into the circumstances of this family and find that the child is being adequately cared for by his mother. The Court maintains that while the report created by the Clinton County Department of Social Services was thorough, and that they have the right to make the determination that he is well cared for, the attorney for the child is entitled to disagree with their presumption of adequate care. In fact the Court stated, “. . . the fact that the Clinton County Department of Social Services concludes something is true does not require the rest of the world to accept their conclusion.”

Thirdly, the Clinton County Department of Social Services argues that the attorney for the child has enough information and that this motion should be denied. The Court rules that the Clinton County Department of Social Services does not have the authority to decide when any attorney for the child has all of the information that they would or should deem necessary. The Court states that it is the attorney for the child’s responsibility to always seek more information in behalf of their client. The Clinton County Department of Social Services does not have the authority to set limits on an attorney preparing the best case that they can for their client.

In accordance with these findings, the Court orders that the child shall be turned over to his great aunt for care. On December 29, 2010 the Clinton County Department of Social Services must provide the court with certified copies of the indicated report dated December 26, 2008 which found that the parents were not providing adequate guardianship. This is in light of the fact that this report was mentioned in the Clinton County Department of Social Services investigation report dated November 16, 2010, but not produced into evidence at this hearing. The Court requests that all other reports, photographs, or other information that the Clinton County Department of Social Services possesses in support of the November 16, 2010 report, should also be produced for review by this court.

Any and all appeals to this finding must be made within thirty days of receipt of this order in court by the person who decides to appeal. An appeal can also be made thirty-five days from the mailing of the order to the person who desires an appeal, (if it has been mailed by the clerk of the court.) or thirty days after the person has been served (in an official capacity, by an officer of the court) or a party involved. A law guardian is considered an officer of the court for the purposes of providing service of a judge.

It is always difficult for a court to decide that circumstances exist which would necessitate the placing of a child into the custody of a non-parent over the objection of the parents. This is especially true if the child has special needs that need to be met. In this case, the domestic violence in the home added increased stress to the already stressful situation of caring for a child who has a debilitating illness.

The Court was called upon to examine two main arguments. First was whether or not extraordinary circumstances exist which make it reasonable to award custody of this child to a non-parent guardian over the objection of the parent.

Secondly, if the extraordinary circumstances do exist, is the great aunt the best option of persons to take custody of the child? The Court took in to account the domestic violence issues as they are relevant to both issues. The Court also found it relevant that neither parent objected to the Court giving custody of their son to the great aunt.

It is therefore granted that custody is turned over to the great aunt pending any future appeals to this hearing.

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