Lawyer Monthly Magazine - January 2019 Edition

the Court found that a same sex couple living together for as little as seven days constituted the sharing of a "common dwelling” under the Domestic Violence Act 3 . Once the standing requirement is met, the next question is what actions constitute domestic violence. Under the IDVA, a domestic violence action requires a finding of "abuse" to apply for an Order of Protection. Actions which are sufficient for the Court to grant an Order of Protection cover a wide range of behaviors. Initially, we consider “physical abuse”. “Physical abuse” includes any of these following actions: (i) knowing or reckless use of physical force, confinement or restraint; (ii) knowing repeated and unnecessary sleep deprivation; or (iii) knowing or reckless conduct which creates an immediate risk of physical harm and sexual abuse 4 . Other behavior which is sufficient for the Court to grant an Order of Protection is “harassment”. The IDVA defines this very broadly as conduct which is not necessary to accomplish a purpose that is reasonable under the circumstances, would cause a reasonable person distress, and does cause emotional distress to the petitioner. The IDVA gives 6 examples (meant to be illustrative and not all inclusive) of harassment. Those examples include: creating a disturbance at the victim’s place of work or school, repeatedly telephoning the victim’s place of work, home, or residence, repeatedly following the victim about in a public place or places, repeatedly keeping the victim under surveillance by remaining present outside his or her home school, work, car or other place occupied by the victim, peering through the victim’s windows, various forms of concealing or threatening to conceal a minor child from the petitioner, and threatening physical force, confinement, or restraint of one or more occasions. This also covers a wide range of behaviors 5 . The Interference with Personal Liberty of Another is also conduct which meets the criteria under the IDVA. This is defined as committing or threatening physical abuse, harassment, intimidation or willful deprivation, so as to compel another to engage in conduct from which she or he has a right to do, abstain or to refrain from doing. Lastly, there is willful deprivation which is defined as willfully denying a person, who, because of age, health or disability, requires medication, medical care, shelter, accessible shelter or services, food, therapeutic device or other physical assistance and thereby exposing that person to the risk of physical, mental or emotional harm. Since no one ever knows when or if the abuse will escalate or continue, if any of the above conduct set forth below are occurring in the household, it’s time to consider an Order of Protection. The IDVA is drafted in such a way as to allow an individual to obtain an Order of Protection to prevent the harm of physical abuse and/or to prevent continued or escalated imminent harm and/or physical abuse. A person who is experiencing any of the above conduct, should give serious consideration to obtaining an Order of Protection. Representing clients in this field can be difficult. There are clients who are so abused that they do not want to recognize the above conduct as abusive. Or there are others who are in denial and/or are embarrassed and humiliated by an abusive spouse and do not want to publicize the event. Over the years, I have found persons in this category include many professional persons. Others are afraid pursuing an Order of Protection will harm the spouse or ex-spouse or will cause them to lose their job, which will impact on child support and/ or maintenance. Often times it also takes a long time for a client or prospective client to open up and relay the abusive conduct. An experienced attorney must ask the right questions in the right manner for each person and if the signs are there, they need to pursue the matter in an empathetic and patient manner to promote the individual to open up about the abuse. However, even if the attorney is able to do that, often times the individual will not pursue the matter for the reasons set forth above. The process to obtain an Emergency Order of Protection involves the preparation of an Emergency Petition for the Order, which also sets forth the specific factual allegations which warrant the finding of abuse by a Judge under the Domestic Violence Act. The attorney must also prepare a proposed emergency Order of Protection, a summons for the Respondent and complete other necessary forms. The Petition must also include the remedies being requested of the Court, some of which are not available at hearings for Emergency Orders of Protection, but all remedies you want to pursue should be included here. Child custody and child support are two of the remedies not available in emergency orders, (only possession of the minor children is available). However, you should still request this remedy in order for the Court to hear it at the hearing on the interim and plenary order 6 . Evidence of abuse, as discussed above, is necessary to obtain an emergency, interim, or plenary Order of Protection. Good evidence can be marked on a person's body proving an act of physical abuse occurred. A person should be encouraged to take pictures of these marks. For such injury and other injuries, the individual should also be encouraged to obtain emergency care and/or care of a doctor and then there will be medical records as well as potential professional testimony available. Mental injury is more difficult to prove, but going to a mental health professional can also be utilized. Inquire if there are witnesses or cameras in public places where incidents took place. It is also important to encourage clients or potential clients to call the police at the 45 SUPER LAWYERS JAN 2019 www. lawyer-monthly .com

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