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Legal Options for Lesbian,Gay, Bisexual, Transgender, and Queer (LGBTQ) Survivors of Domestic and Intimate Partner Violence in New York

December 29, 2017

Author: Amy Schwartz-Wallace| Milo Primeaux


I am a LGBTQ 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. Even though same-sex marriages are now recognized and fully honored in New York, the state law may still not consistently recognize all kinds LGBTQ relationships, so certain legal protections may be challenging to obtain.  These are discussed more fully below.    


Can I get an order of protection against my abuser? 

Yes, you can 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 certain crimes against you, you can file criminal charges against them based on these offenses and request that a judge issue an order of protection on your behalf.  Offenses/crimes against you can include, but are not limited to: threats, stalking, harassing communications, identity theft, monetary theft, 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. Most often, an order of protection is issued once your abuser has been arrested and arraigned by the court. If the 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.  A decade ago, New York passed an important state law expanding the categories of abuse victims who could obtain protection in the Family Court. 


What kinds of people will the Family Court issue a civil order of protection against? Is it limited to just a partner or spouse?

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

  • you and your abuser are related by blood or marriage 

If you meet one of these relationship thresholds, as well as other jurisdictional requirements, you can seek an order of protection from Family Court.   

Here are details about each category, so you know if any apply to you:

 

Legally Married:  You are legally married if you entered into a marriage with a different-sex or same-sex partner in the United States--or in one of the growing number of foreign countries that have legalized same-sex marriage.   Under the current state of the law, it is not yet clear that having a marital equivalent relationship (such as civil union comprehensive domestic partnership) would allow a court to consider you and your partner “legally married”.  However, at the very least, you may qualify as having an “intimate relationship” as described below.  NOTE:  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 proceedings in Supreme Court or in a spousal support proceeding in Family Court. 

 

Child in Common:  You and your partner both have a legal relationship with your child, such as being the child’s biological or adoptive parent, or if you and the child’s biological parent were married or in a marital equivalent relationship (civil union or comprehensive domestic partnership) at the time of the child’s birth. Under important recent case law, you may also have a child in common if you and your partner agreed to conceive and parent your child together.  Consult with an attorney about how this new case law may apply to you.  NOTE:  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.

 

Intimate Relationship:  This includes people who are or were in dating relationships or romantically involved. Your relationship can be considered an “intimate relationship” even if you have not lived together in the same place or have not had a sexual relationship. To help the court determine if a relationship is “intimate” in nature, the court would look at: 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 protect people in casual acquaintance (who barely know each other), or people who interact in ordinary business or social settings (such as friends, landlord-tenants, or co-workers). 

 

Related by Blood or Marriage:  A person you share a common ancestor with is related to you “by blood,” such as a parent, child, sibling, or cousin. You are related to someone “by marriage” if they are married to one of your blood or adoptive relatives (like a step-parent, or aunt or uncle), or if your partner is related to them by blood or adoption (such as your in-laws, who are your partner’s parents).

 

These are very complex, confusing, and quickly-evolving areas of law, so you should 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 the order of protection, a Judge orders your abuser to comply with certain terms and conditions. These conditions may include ordering your abuser 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 their weapons, order your abuser to have limited or no communication with you, direct that your abuser to refrain from committing any further offenses against you, return important documents, and/or order your abuser to participate in a batterer’s program and/or drug and alcohol counseling.  If you have children, the order can limit or stop your abuser’s contact with the children or determine visitation or custody for children in common.  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 that 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 LGBTQ organization with domestic violence-specific services.  Often the abuse increases and danger intensifies if your abuser discovers you are seeking out safety or support.  You will need to carefully plan for your safety during this potentially dangerous time. You should consult with an attorney, especially one with experience in LGBTQ 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” at:  http://www.empirejustice.org/New/DomesticViolence/DomesticViolence3.html

   

 

Various Types of Services and Relief to Consider

 

Connect with Domestic Violence Service Providers in Your Community:  By law, every county in New York must have residential services (such as a domestic violence shelter) and non-residential services (such as counseling, court accompaniment, and safety planning) for survivors of intimate partner violence.  Many communities offer only one program, but some have several. 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. For a listing of programs in your community, go to: https://www.nyscadv.org/find-help/program-directory.html.

 

A few domestic violence programs in New York even provide LGBTQ-specific services, such as support groups and counseling.  Additionally, several LGBTQ 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”: http://www.empirejustice.org/New/DomesticViolence/DomesticViolence3.html     


Most victims of intimate partner violence will never need emergency shelter and, often, utilize only domestic violence non-residential services, such as crisis hotlines, court accompaniment, support and counseling.  However, sometimes you need to leave your home because of the abuse.


By state and federal law, you cannot and should not be automatically denied domestic violence services based upon your gender identity or expression or your sexual orientation. That means a domestic violence program cannot turn you away or offer you limited services because you are male or transgender.    Even if they may be unable to provide you with residential services (which can happen if they are at capacity), the local domestic violence shelter provider should not deny you access to their non-residential program.        

 

Pursue Divorce:  If you are legally married to your abuser, you can access NY’s divorce laws to dissolve that relationship.  A divorce can: dissolve your legal relationship, equitably distribute (split up between the two of you) marital debts and property, grant maintenance (also known as “alimony”), establish child custody and visitation, establish child support, and award an order of protection.  If you cannot afford an attorney and are low-income, you may be entitled to have a free lawyer appointed 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.     

 

Dissolve Your Civil Union or Domestic Partnership:  If you and your abuser entered into a marital equivalent legal relationship (like civil union or comprehensive domestic partnership) in another state or country, you should be able to have that legal relationship dissolved in New York.  If you and your partner obtained a civil union or domestic partnership in another state, you must consult with an attorney about dissolving that legal status here, especially as some states converted these relationships to marriages during the national fight for marriage equality.  You will want to get legal advice to determine the nature of your own legal relationship.  If you entered into a domestic partnership in New York, the community in which it was registered can provide you with guidance about dissolution procedures.   

 

Seek Financial Assistance and Employment Protections:  New York law provides many types of relief to help ensure 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, go to: https://ovs.ny.gov/.    

 

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, go to: http://www.empirejustice.org/library/FactSheet.pdf.

 

Unemployment Insurance Benefits:  If you leave a job due to domestic violence, you may qualify for unemployment insurance.  For more information, go to: http://www.labor.ny.gov/ui/claimantinfo/domesticviolenceanduibenefits.shtm.

 

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 illegal for your employer to fire or penalize you if you gave him/her at least 24 hours notice. You may also qualify for unpaid leave under the federal Family and Medical Leave Act (FMLA).      

 

Employment Discrimination:  It is illegal in New York for employers to discriminate against victims of domestic violence, including those from the LGBTQ communities. Under the New York State Human Rights Law, it is also illegal for employers to discriminate against you based upon your sexual orientation, sex (including gender identity and transgender status), or disability (including gender dysphoria).

 

 

Divide Property and Debts: You may have legal options for dividing  property or debts that you and your partner jointly 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:  Local, state, and federal laws provide many housing-related protections for victims of domestic violence:    

 

Housing Discrimination:  New York laws also prohibit housing discrimination against domestic violence victims in public or private housing.  New York also has protections from eviction based upon your status as a victim of domestic violence.  If you reside in Section 8 or public housing, you may also be able to access federal protections if you are a victim of domestic violence, dating violence, or stalking.

Under the New York State Human Rights Law, it is also illegal for landlords to discriminate against you in private or public housing based upon your sexual orientation, sex (including gender identity and transgender status), or disability (including gender dysphoria).

 

Early Lease Termination:  Throughout New York State, if you rent or lease your housing 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 try to ruin their victims’ financial stability and viability as part of domestic violence dynamics. If you are married to or have a child in common with your abuser, then you can pursue a Family Court-based child or spousal support case.  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 can bring a Family Court case to determine who the child will live with, who has parental decision-making authority, set a visitation schedule, and settle other related issues.  You may be entitled to a free, court-appointed lawyer to help you with your case if you cannot afford an attorney and are income-eligible. 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 felonies (more serious crimes) or misdemeanors (less serious crimes) 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 LGBTQ 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 taken or destroyed.  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 LGBTQ 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 LGBTQ 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” at:  http://www.empirejustice.org/New/DomesticViolence/DomesticViolence3.html

 

 

 

 

Copyright © December 2017 Empire Justice Center

 

  

 

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 LGBTQ 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. 


 



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Legal Options for LGBTQ Survivors of Domestic & Intimate Partner Violence in NY

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