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Legal Options for Gay, Lesbian, Bisexual, Transgender (GLBT) Domestic and Intimate Partbner Violence Survivors in New York

June 30, 2010

Author: Amy Schwartz-Wallace

If I am a GLBT victim of intimate partner violence, can I go to a court for protection or get other legal assistance with my situation?

In New York, many different types of civil (non-criminal) or criminal legal relief may be available to help you.  However, because New York law doesn’t consistently recognize all GLBT relationships, certain legal protections may be challenging to obtain here.  These are discussed more fully below.   

Can I get an order of protection against my abuser? 

Yes, you may be able to get request a civil (non-criminal) and/or a criminal order of protection as part of a court case.  

How do I get an order of protection from a criminal court?   

The only way to get an order of protection from a criminal court is to file criminal charges against your abuser.  If your partner has committed crimes against you, you can file criminal charges against him/her based on these offenses and request that an order of protection be issued on your behalf by a judge.  Offenses against you can include, but are not limited to, threats, stalking, harassing communications, physical abuse or physical contact, threats to or actual use of a weapon, disorderly conduct, damage to or destruction of your property, or sexual abuse.  Often orders of protection are issued once your abuser has been arrested and arraigned by the court. If your criminal case is identified as a domestic violence case, you might also have it heard in a specialized criminal court in your community that addresses only domestic violence offenses.      
  

What if I don’t want to file criminal charges against my abusive partner? Can I go to Family Court to get a civil order of protection? 

Yes!  New York passed an important state law in 2008 which expanded the categories of abuse victims who could obtain protection in the Family Court.  As of July 21, 2008, you can seek an order of protection from Family Courts throughout the state if you are: legally married to or divorced from your abuser; or have a child in common with your abuser; or are/have been in an intimate relationship with your abuser; or if you and your abuser are related by blood or marriage.  If you meet this new relationship threshold, as well as other jurisdictional requirements, you can now get a civil order of protection from Family Court.  
If you have a child in common with your abusive partner, you could also seek an order of protection as part of a Family Court-based child custody or visitation, child support, paternity, or child welfare matter. If you and your abuser were legally married inside or outside of New York, you may also be able to request an order of protection as part of your divorce or dissolution proceedings in Supreme Court or in a spousal support proceeding in Family Court. 

You discussed different categories of relationships above.  What do you mean by “legally married to”, “have a child in common with”, or “are in an intimate relationship with” my abuser? 

Legally Married:  If you entered into a marriage with an opposite sex partner or a legal, civil same-sex marriage in Connecticut, California (before 11/08), Massachusetts, New Hampshire, Iowa, Washington D.C., Vermont or another country that has legalized this practice, you may be considered “legally married” to your partner.  Unfortunately, even if you have a legal civil union or a registered domestic partnership with your abusive partner, this is not likely to be considered a “marriage” in New York at this time. 

Child in Common:  This is where both partners have a legal relationship with their child, such as being the child’s birth (biological) parent, adoptive parent, or if you and the child’s birth parent are married or have a valid civil union.  If a child was born to you and your partner before or after your valid same-sex marriage or civil union, you might be considered to have a child in common even if there was no second-parent adoption. [1]   However, even if you have been an integral part of a child’s life as a parent and caregiver in all key ways, but you are not the child’s legal biological or adoptive parent and are not married to or in a civil union with the other parent, under current New York law and case law, it will be extremely difficult to gain recognition as that child’s legal parent with all the attendant rights and responsibilities.     

Intimate Relationship:  This is a new definition in the law and is intended to include people who are or were dating or romantically involved.  Parties need not be current or former cohabitants for the relationship to be considered “intimate.”   To help the court determine if a relationship is “intimate” in nature, the factors they may consider under the law can include: the nature and type of relationship (regardless of whether it has or had a sexual component); how often the parties interacted; the length of the relationship; or any other factors.  The law is not intended to provide protection to people with casual acquaintance or those who interact in ordinary business or social settings. 

Related by Blood or Marriage:  People related to you “by blood” are those family members with whom you share a common ancestor, such as a parent, sibling, or cousin.  To be related “by marriage” means that you are related to the blood or adoptive relatives of your parent or spouse, such as step-parents or in-laws.               

These are very complex, confusing, and quickly-evolving areas of law, so you must consult with an attorney to determine what your rights are regarding the legal recognition of your relationship with your partner and/or your child. 


What types of relief can an order of protection provide to me?

An order of protection is a legal document that can be issued in the Family Court, Criminal Court, or Supreme Court in which a Judge orders your abusive partner to comply with certain terms and conditions.  These conditions may include ordering your abusive partner to stay away from you, your home, school, business, or place of employment.  Among other provisions, an order of protection can provide protection for your animals or pets, direct your abuser to surrender weapons, order your abusive partner to have limited or no communication with you, direct that your partner refrain from committing any further offenses against you, and order your partner to participate in a batterer’s program and/or drug and alcohol counseling.  If you have children together, the order can limit or stop your abuser’s contact with the children or determine visitation or custody.  Family Court can issue orders of protection as a part of a family offense case, a custody or visitation case, a paternity case, or a child or spousal support case.  The Supreme Court also has the ability to issue an order of protection as a part of matrimonial proceedings.    


Besides an order of protection, are there other legal protections or services relief can assist me?

Despite some limitations in the law, you have access to many different legal options that could provide you with key supports and assistance to become safer or help you to break free of your relationship if you so choose.

Before you make any decisions about your next steps, it is critical that you reach out for support and information from an attorney and your local domestic violence program or GLBT organization with domestic violence-specific services.  Often the abuse increases and danger intensifies if your intimate partner discovers you are seeking out safety or support.  You will need to carefully plan for your safety during this potentially dangerous time.  Additionally, many of the options discussed below are in legal flux because of current marriage and relationship recognition-related court decisions, laws, and governmental policies.  You should consult with an attorney, especially one with experience in GLBT law, before you commence any type of legal action.  For a listing of New York and national-based programs that can provide you with more information and support, see resource list entitled, “Selected Resources Addressing Domestic Violence in New York’s LGBT Community” here.
   

Various Types of Services and Relief to Consider:

Connect with Domestic Violence Service Providers in Your Community:   By law, every county in New York is required to have residential (such as shelter) and non-residential domestic violence services (such as counseling, court accompaniment, and safety planning).  Many communities offer only one program, but some have several.  For a listing of programs in your community, click here.  Your local domestic violence program may provide such services as 24-hour hotline, counseling, court accompaniment, and emergency shelter.  If you have children, these programs will provide assistance to them as well.  A few domestic violence programs in New York even provide GLBT-specific services, such as support groups and counseling.  Additionally, a few GLBT organizations in New York offer domestic violence and/or sexual assault services.  For a listing of these, see section entitled, “Members of New York State LGBT Domestic Violence Network” in: “Selected Resources Addressing Domestic Violence in New York’s LGBT Community” found here.   

Most victims of intimate partner violence will never need emergency shelter and, often, utilize only domestic violence non-residential services, such as crisis hotlines, support and counseling.  However, if you need to leave your home because of the abuse and you are male or a trans-man, you may experience some difficulties.  Because domestic violence shelter services are shared living facilities that have been traditionally geared to serve the female victims, many domestic violence programs say that they do not have the right type of separate space to provide shelter to male victims.  This is not the case everywhere, so it is important to contact your local domestic violence provider to discuss your emergency housing options with them.  If physical space challenges at the local domestic violence program allegedly make it impossible for them to provide you with emergency shelter, you should request that the program secure you an alternative safe place to go.  You cannot and should not be automatically denied domestic violence services based upon your gender identity or expression or your sexual orientation.     

Dissolve Your Civil Union or Domestic Partnership:  If you and your abuser entered into a civil union or domestic partnership in another state or country, you could consider consulting with an attorney about dissolving that legal status.  If you entered into a domestic partnership in NY, the community in which it was registered can provide you with guidance about dissolution procedures.   

Pursue Divorce:  If you are legally married to your abuser, you may be able to access NY’s divorce laws to dissolve that relationship.  In a divorce proceeding, you must meet residency requirements and establish grounds in order to get a divorce in Supreme Court.  Once you’ve done that, you may then be able to equitably distribute (split up between the two of you) debts and assets of the marriage, obtain maintenance (also known as “alimony”), establish child custody and visitation, establish child support, and get an order of protection.  If you cannot afford one and are income-eligible, you may be entitled to have a free lawyer appointed to you to help you with the custody/visitation and order of protection aspects of your divorce case.  Be advised that if you bring an action against your abuser in the Supreme Court, you can ask the court to keep your contact information confidential from your abuser. 

Seek Financial Assistance and Employment Protections:  New York law provides many types of relief to help shore up insure victims’ economic stability well-being including:     

Crime Victim’s Board Assistance:  If you are the victim of a crime committed by your abuser, you may be able to apply to the Crime Victim’s Board for compensation of out-of-pocket expenses not covered by insurance or other resources.  For more information, click here.  

Public Assistance:  If you are in need of public assistance (welfare) benefits, you can apply for cash assistance, food stamps, and Medicaid.  You may also be able to take advantage of the Family Violence Option waiver protections.  For general information about the Family Violence Option, click here.

Unemployment Insurance Benefits:  If you leave a job due to domestic violence, you may qualify for unemployment insurance.  For more information, click here.

Unpaid Leave Time:  If you simply need time off to get an order of protection, pursue your rights as a crime victim, attend criminal proceedings or meet with the district attorney, it is a crime for your employer to fire or penalize you if you gave him/her at least 24 hours notice.  Further, per recent policy changes, you may also qualify for unpaid leave under the federal Family and Medical Leave Act (FMLA).     

Employment Discrimination:  New York law prevents employers from discriminating against victims of domestic violence and GLBT victims are included in these protections.  Further, under state law in New York, employers are similarly prohibited from discriminating against you based upon your sexual orientation under the Sexual Orientation Non-Discrimination Act (SONDA).  For basic information about SONDA, click here.  SONDA does not protect people from discrimination based upon gender identity or expression.  

Divide Property and Debts: If you are not married to and divorcing from your abuser, you could also consider several legal remedies to divide the joint property or debts you and your partner acquired during your relationship.  You will want to consult with an attorney to discuss your range of legal remedies. 

Obtain Safe New Housing or Maintain Existing Housing:  State and federal law now provide numerous housing-related protections for victims of domestic violence:   

Housing Discrimination:  Some communities in NY (Monroe County & Westchester County) made housing-related discrimination toward victims of domestic violence illegal.  If you reside in Section 8 or public housing, you may also be able to access federal protection if you are a victim of domestic violence, dating violence, or stalking.  Remember, because of state law in New York, housing-related discrimination based upon your sexual orientation is illegal under the Sexual Orientation Non-Discrimination Act (SONDA).  For basic information about SONDA, click here.  SONDA does not protect people from discrimination based upon gender identity or expression.

Early Lease Termination:  Throughout New York State, if you rent or lease your housing accommodations and have an order of protection, you may be able to terminate the lease with your landlord early if you are not safe at home from your abuser despite the order of protection. 

Access Child and Spousal Support:  Abusers regularly undermine their victims’ financial stability and viability as part of domestic violence dynamics.  If you have a child in common with your abuser or are married, you might pursue a Family Court-based child or spousal support case.  Be advised that if you bring a child or spousal support case against your abuser in any New York Family Court, you can ask the court to keep your contact information confidential from your abuser.  
 
Establish Child Custody and Visitation:  If you and your abuser have a child in common, you may be able to bring a Family Court case to determine who the child will live with, parental decision-making authority, a visitation schedule, and settle other related issues.  If you cannot afford one and are income-eligible, you may be entitled to have a free lawyer appointed to you to help you establish custody or visitation.  Be advised that if you bring a custody or visitation case against your abuser in any New York Family Court, you can ask the court to keep your contact information confidential from your abuser.  
    
Access Mandatory Arrest & Primary Aggressor Law Protections:  New York law says that the police must arrest an intimate partner abuser when the police think that certain felony (more serious crimes) or misdemeanor-level (less serious crimes) offenses occurred or if an order of protection was violated.  At scenes where certain misdemeanor-level incidents took place and the police are having difficulty determining who may be the “offender” and who may be the “victim”, the police have to determine who was the “primary physical aggressor” so that they do not mistakenly arrest the victim.  Determining who is the “primary aggressor” is especially critical in GLBT intimate partner violence incidents as police may be particularly challenged by misinformation or stereotypes about sexual orientation or gender identity or expression. 
 
Access Specialized Integrated Domestic Violence (IDV) Courts:  If you have more than one Family Court, Supreme Court, or Criminal Court case pending involving domestic violence, your cases might be transferred and heard by the same judge in one of the specialized domestic violence courts located throughout the state.  In some IDV Courts, all your pending cases may even be heard by that same judge on the same day which can cut down on lengthy and multiple court appearances. 

Bring a Civil Action Against Your Abuser:  You may consider filing a civil action against your abuser, such as for assault, intentional infliction of emotional distress, trespass, or other offenses if you have proper cause.  Small Claims Court or other civil courts in your area may be able to assist with retrieving or getting compensation for property that your abuser has wrongfully retained or destroyed.  Be advised that if you bring an action against your abuser in any civil court in New York, by law you can ask the court to keep your contact information confidential from your abuser.   


What do I do if I need help? 

Contact your local domestic violence program or GLBT organization with domestic violence-specific services.  You could also try contacting a private attorney or legal services office for legal assistance.  More and more organizations, police agencies, and attorneys are becoming familiar with issues involving domestic violence in the GLBT community and can be very helpful to you.  For a listing of resources, see “Selected Resources Addressing Domestic Violence in New York’s LGBT Community” found here.
 
NOTICE and DISCLAIMER:  This information sheet is specifically intended to provide general information and is not intended to be used as a substitute for legal advice.  The state and national landscape regarding the legal rights of GLBT individuals and their families is a very complex, confusing, and quickly-evolving area of law.  This FAQ may not reflect current legal developments and you should not rely on this information sheet as a source of legal advice.  This information sheet is not a solicitation or an offer to represent you in any matter and does not create an attorney-client relationship with Empire Justice Center or any of its attorneys or advocates. 

End Notes:
[1] Case law and laws establishing parentage between a non-biological child and their parent are still evolving in NY.  You should consult with a knowledgeable attorney to discuss matters relating to the state of the law on relationship recognition and parentage as it relates to your family structure.
 

 





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