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False Allegations Hurt Children!

False Allegations Hurt Children!

“When you are falsely accused (and intentionally for that matter) the pain can be crippling at times. 
That aside; I wish people cared about what their false allegations would do to the children involved. Even with the pain I suffered and the meds I now have to take on a daily basis, I would have given my life to take my children’s pain and fear of being taken from me away.” — Sara


WHAT CONSTITUTES A FAMILY OFFENSE?



The criminal behavior which has been “civilized” by Family Court Act Article 8 is defined in the penal laws.



This is a crucial aspect to determine whether or not a family offense petition makes out a prima facia case, and is too often overlooked when defending against a family offense petition. Many practitioners look solely to whether or not the alleged actions occurred.



More importantly, a judge is supposed to look at whether or not the petitioner can prove all the necessary elements of the family offense alleged and defined in the penal laws.

Each of the family offenses requires that the petitioner allege and prove intent or recklessness or a repeated course of conduct. A few of the family offenses require a prior such offense conviction.

The allegations in the family offense petition must be composed of the evidentiary facts that establish each element of the specific family offense being charged. In People v. Dumas, the court of appeals held that mere conclusory allegations in the petition are not sufficient. The petition cannot be based upon heresay either. To be able to determine if the petitioner meets the burden of presenting a prima facia case, the respondent should demand a bill of particulars. In People v. Hall, the court of appeals held that the bill of particulars must also constitute reasonable cause to believe the respondent committed the charged offense, or the petition must be dismissed. In People v. Alejandro, the court of appeals held that together, the petition and the bill of particulars must establish a prima facie case for the offenses charged. If they do not, the petition must be dismissed. It is important to note that in Kunz v. Kunz, the family court held that depositions are not allowed in a family offense proceeding.
In order to best determine whether the allegations of a family offense will establish a prima facie case for the offenses charged, or are defective, is the penal law for that offense: disorderly conduct is defined in penal law ß 240.20; harassment in the first degree is defined in penal law ß 240.25; harassment in the second degree is defined in penal law ß 240.26; aggravated harassment in the second degree is defined in penal law ß 240.30; aggravated assault is defined in penal law ß 120.12. Menacing in the first degree is defined in penal law ß 120.13; menacing in the second degree is defined in penal law ß 120.14; assault in the third degree is defined in penal law ß 120.00; assault in the second degree is defined in penal law ß 120.05; attempted assault is defined in penal law ß 110.00; and reckless endangerment can be either reckless endangerment in the first degree, which is defined in penal law ß 120.25, or reckless endangerment in the second degree, which is defined in penal law ß 120.20.
It is important to note that in People v. Webb, the appellate court held that it was the intent of the state legislature that sex abuse and child neglect are not to be prosecuted under an Article 8, but rather under Article 10. Nowhere are such offenses found within ß 812 of the Family Court Act. Often, though, Article 8 petitions have been filed for allegations of sex abuse and child neglect. Sometimes, the court issues orders of protection based on such allegations. 


However, it is the respondent’s responsibility to bring to the Courts attention that they do not have jurisdiction to hear such allegations under Article 8. Article 10 of the Family Court Act is the proper provision for such allegations and the petition must, pursuant to Article 10, be brought by the Department of Social Services and not the child’s other parent.


In Roofeh v. Roofeh, the Supreme Court held that an order of protection cannot be obtained to stop a respondent from smoking near the petitioner or the parties’ child pursuant to Family Court Act Article 8. Smoking is not a family offense as enumerated in the Family Court Act and defined in the Penal Laws. But, the court exercised its inherent power to issue orders safeguarding health and safety of husband and children and issued an order restricting the plaintiff’s smoking to only room of the house. Further, in Garrett v. Garrett, the appellate court held that an Article 8 petition cannot be filed against a respondent for her failure to help her spouse to regularize his immigration status. This too is not a family offense as enumerated in the Family Court Act and defined in the Penal Laws. In addition, in D.O. v. J.O., the family court held that an order of protection cannot be obtained because a respondent is habitually intoxicated, even when in the presence of the children. Again, this is not a family offense as enumerated in the Family Court Act and defined in the Penal Laws. However, such petitions have been filed and litigated in the Courts to date.

Denuncia que la agredieron familiares de su ex pareja y resultó ser un vecino

viso at CUSTODIA PATERNA
El Juzgado de lo Penal ha condenado a una mujer a una multa como autora responsable de un delito de denuncia falsa en grado de tentativa después de que denunciara a dos familiares de su ex pareja de una supuesta agresión hacia ella y su hijo cuando en realidad había sido un vecino. La sentencia considera como hechos probados que el 8 de septiembre de 2010 fue remitido al Juzgado de Instrucción Número 4 de Palencia dos partes de lesiones confeccionados con fecha de 5 de septiembre de 2010 tanto de ella como de su hijo. Tras ser llamada a declarar en nov... more »

5 comments:

  1. Children's Bill of Rights

    WHEN PARENTS ARE NOT TOGETHER

    Every kid has rights, particularly when mom and dad are splitting up. Below are some things parents shouldn't forget -- and kids shouldn't let them -- when the family is in the midst of a break-up.

    You have the right to love both your parents. You also have the right to be loved by both of them. That means you shouldn't feel guilty about wanting to see your dad or your mom at any time. It's important for you to have both parents in your life, particularly during difficult times such as a break-up of your parents.

    You do not have to choose one parent over the other. If you have an opinion about which parent you want to live with, let it be known. But nobody can force you to make that choice. If your parents can't work it out, a judge may make the decision for them.

    You're entitled to all the feelings you're having. Don't be embarrassed by what you're feeling. It is scary when your parents break up, and you're allowed to be scared. Or angry. Or sad. Or whatever.

    You have the right to be in a safe environment. This means that nobody is allowed to put you in danger, either physically or emotionally. If one of your parents is hurting you, tell someone -- either your other parent or a trusted adult like a teacher.

    You don't belong in the middle of your parents' break-up. Sometimes your parents may get so caught up in their own problems that they forget that you're just a kid, and that you can't handle their adult worries. If they start putting you in the middle of their dispute, remind them that it's their fight, not yours.

    Grandparents, aunts, uncles and cousins are still part of your life. Even if you're living with one parent, you can still see relatives on your other parent's side. You'll always be a part of their lives, even if your parents aren't together anymore.

    You have the right to be a child. Kids shouldn't worry about adult problems. Concentrate on your school work, your friends, activities, etc. Your mom and dad just need your love. They can handle the rest.

    IT IS NOT YOUR FAULT AND DON'T BLAME YOURSELF.

    ----Special Concerns of Children Committee, March, 1998

    "Children's Bill of Rights" is a publication of the American Academy of Matrimonial Lawyers. © 1997 - 2001. All rights reserved. "Children's Bill of Rights" may be reproduced under the following conditions:

    It must be reproduced in its entirety with no additions or deletions, including the AAML copyright notice. It must be distributed free of charge. The AAML reserves the right to limit or deny the right of reproduction in its sole discretion.

    © 2013 AAML Florida. 3046 Hawks Glen Tallahassee, FL 32312 | 850-668-0614

    The hiring of a lawyer is an important decision that should not be based solely on advertisements. Before you decide, ask the attorney to send you free written information about their qualifications and experience. The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.
    http://www.aamlflorida.org/index.cfm?fuseaction=pages.tentips

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    Replies
    1. PRO SE RIGHTS:
      Sims v. Aherns, 271 SW 720 (1925) ~ "The practice of law is an occupation of common right."

      Brotherhood of Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1; v. Wainwright, 372 U.S. 335; Argersinger v. Hamlin, Sheriff 407 U.S. 425 ~ Litigants can be assisted by unlicensed laymen during judicial proceedings.

      Conley v. Gibson, 355 U.S. 41 at 48 (1957) ~ "Following the simple guide of rule 8(f) that all pleadings shall be so construed as to do substantial justice"... "The federal rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits." The court also cited Rule 8(f) FRCP, which holds that all pleadings shall be construed to do substantial justice.

      Davis v. Wechler, 263 U.S. 22, 24; Stromberb v. California, 283 U.S. 359; NAACP v. Alabama, 375 U.S. 449 ~ "The assertion of federal rights, when plainly and reasonably made, are not to be defeated under the name of local practice."

      Elmore v. McCammon (1986) 640 F. Supp. 905 ~ "... the right to file a lawsuit pro se is one of the most important rights under the constitution and laws."

      Federal Rules of Civil Procedures, Rule 17, 28 USCA "Next Friend" ~ A next friend is a person who represents someone who is unable to tend to his or her own interest.

      Haines v. Kerner, 404 U.S. 519 (1972) ~ "Allegations such as those asserted by petitioner, however inartfully pleaded, are sufficient"... "which we hold to less stringent standards than formal pleadings drafted by lawyers."

      Jenkins v. McKeithen, 395 U.S. 411, 421 (1959); Picking v. Pennsylvania R. Co., 151 Fed 2nd 240; Pucket v. Cox, 456 2nd 233 ~ Pro se pleadings are to be considered without regard to technicality; pro se litigants' pleadings are not to be held to the same high standards of perfection as lawyers.

      Maty v. Grasselli Chemical Co., 303 U.S. 197 (1938) ~ "Pleadings are intended to serve as a means of arriving at fair and just settlements of controversies between litigants. They should not raise barriers which prevent the achievement of that end. Proper pleading is important, but its importance consists in its effectiveness as a means to accomplish the end of a just judgment."

      NAACP v. Button, 371 U.S. 415); United Mineworkers of America v. Gibbs, 383 U.S. 715; and Johnson v. Avery, 89 S. Ct. 747 (1969) ~ Members of groups who are competent nonlawyers can assist other members of the group achieve the goals of the group in court without being charged with "unauthorized practice of law."

      Picking v. Pennsylvania Railway, 151 F.2d. 240, Third Circuit Court of Appeals ~ The plaintiff's civil rights pleading was 150 pages and described by a federal judge as "inept". Nevertheless, it was held "Where a plaintiff pleads pro se in a suit for protection of civil rights, the Court should endeavor to construe Plaintiff's Pleadings without regard to technicalities."

      Puckett v. Cox, 456 F. 2d 233 (1972) (6th Cir. USCA) ~ It was held that a pro se complaint requires a less stringent reading than one drafted by a lawyer per Justice Black in Conley v. Gibson (see case listed above, Pro Se Rights Section).

      Roadway Express v. Pipe, 447 U.S. 752 at 757 (1982) ~ "Due to sloth, inattention or desire to seize tactical advantage, lawyers have long engaged in dilatory practices... the glacial pace of much litigation breeds frustration with the Federal Courts and ultimately, disrespect for the law."

      Sherar v. Cullen, 481 F. 2d 946 (1973) ~ "There can be no sanction or penalty imposed upon one because of his exercise of Constitutional Rights."

      Schware v. Board of Examiners, United State Reports 353 U.S. pages 238, 239. ~ "The practice of law cannot be licensed by any state/State."

      Delete
  2. It's human nature to seek out a partner in life, and to possibly marry and have children. Unfortunately the matrimonial establishment, as we are all aware, is being methodically torn down by a demoralized society. Sadly the divorce rate is still on the rise and the foundation of marriage is being devalued and is crumbling. As adults we learn to adapt and move on when divorce attacks our lives but for children this is another story. They are the real victims of divorce and unfortunately they will suffer dearly from our selfishness and in most cases follow the same path of destruction if not worse.
    As a nation we have been granted certain civil rights by our constitution. Through the years it has been amended to better the lives of many Americans. The two most notable changes have come to Women in the 1920s and with African Americans in the 1960s. These rights were long overdue for both segments of our nation but thankfully we realized our mistakes and corrected them. This was not an easy journey for either of these crusades but through dedication and perseverance the bells of liberty rang loudly and victory was achieved.
    Unfortunately we have reached yet another fork in the road and with that comes another challenge to the American people. "We've worked hard for women's rights, but we have to watch out that the pendulum doesn't swing the other way" says Ruthie J. of the Reach FM. Ironically the pendulum has already swung far to one side and this time the male gender is being demonized by erroneous and fraudulent information. Males are being portrayed as callus, uncaring, and without emotion. We are being taught that men represent 95% of abuse in this nation against women. These and many other false statistics are being recklessly strewn throughout society and none of it is true. Yes, women are being abused by men that is a fact. striking a woman is abhorrent to the highest degree and should be dealt with appropriately but men are abused at an equal rate and they are being ignored. According to a study by the Center for Disease Control men represent 38% of domestic violence related injuries. Compound that with the fact that only 0.9% of men report abuse verses 8.5% of women and I think we have a pretty equal degree of violence between partners.
    The cornerstone of this "abuse" is VAWA the Violence Against Women Act. It was passed into law by Bill Clinton in 1994 and has been extended by every subsequent President. This law funnels Billions of dollars into discriminatory education and propaganda that violates men's civil rights. Many times DVIs or Domestic Violence Injunctions are used as a tool in divorce, child custody or just vengeance against a partner, most often against males. This is because the system of acquiring a DVI is simple and requires no evidence, witnesses or prior police reports. Just the word of an alleged victim making a claim of abuse. The repercussions of these orders are devastating and many times result in a violation, arrest and complete destruction of one's life. Even in cases when they are dismissed, a serious blemish remains on the falsely accused forever; how does that look to potential employers who almost always perform background checks prior to employment? This must be stopped and a better system of protecting all victims of domestic violence should be put in place.
    I hope to help bring awareness to gender discrimination and help provide support for men who are abused. There are programs to help women of abuse but nothing for men. My website will provide more information on the facts, my personal experiences and the stories of those who have been victims of this heinous tactic of relationship vengeance. Men and women should truly have equal rights and currently the scales are unjustly tilted. Let's work together to end domestic violence and not vilify one gender as inherently abusive. "United we stand, divided we fall" A powerful statement that we must never forget.

    Thank you,
    Tom Lemons
    Founder, www.falsedvireports.com

    ReplyDelete
  3. The Violence Against Women Act Ignores Half the Problem ~ By Anna Rittgers

    The 2011 Violence Against Women Reauthorization Act (VAWA) provides funding for programs to address domestic violence and will expand the act’s provisions to include services for gays and lesbians. Theoretically, male victims of violence are eligible for help, too. But did you know that? I thought not.

    The problem with reauthorizing VAWA is that doing so would perpetuate the notion that domestic violence is something that happens only to women. While it is true that VAWA has evolved over time and now ensures that male victims of partner violence can avail themselves of VAWA benefits and services, the very name of the act implies otherwise. It is quite likely that a male victim would not know he can seek help, given the name of the act.

    The image of the abuser is almost always a guy. But this simply isn’t the case. One of the pioneers of the study of family violence was sociologist Richard J. Gelles. Gelles wrote a seminal 1999 article for the old Women’s Quarterly, then a publication of the Independent Women’s Forum, on the “hidden victims” of violence.[i] Gelles admitted that 25 years earlier he had overlooked something important when, in the course of doing research, he meet a couple he called Faith and Alan. Faith had been beaten by boyfriends, her ex-husband, and her husband. Faith’s troubles became the focus of Gelles’s article. Gelles barely noted Faith’s violence towards men, which included breaking Alan’s bones and stabbing a man while he read the newspaper. Faith’s violence merited a mere footnote.

    We know more about intimate violence directed at men than we did when Gelles wrote his article. But for cultural reasons, it is very difficult for male victims of domestic violence to seek help. Men are seen to be physically stronger than women, and so he should be able to just “take it.” Furthermore, domestic violence awareness campaigns are horribly one-sided, and almost always portray males as the aggressor and females as victim. Police are often hardwired to view men as the perpetrator. If a man calls 911 for help when he’s being attacked by his spouse or partner, he is often subject to arrest, even if he is the only one with physical injuries.

    For seventeen years, there has been unequal treatment before the law. Female aggressors are keenly aware of this unequal justice, and a 2010 study on men who sustain abuse at the hands of their female partners discovered that 67.2% reported their female aggressors made false allegations of spousal abuse. [ii] Of those with children, 48.9% of the men reported that their partners made false allegations of child abuse.[iii] In other words, VAWA’s myopic view of who perpetrates domestic violence gives female abusers an additional avenue to torment their spouses.

    The name of the Act itself makes it clear that the law’s focus is to address violence against women in particular, not the general problem of domestic violence. The specialized training that judges and law enforcement officers receive ignores the reality that women are as likely as men to be perpetrators of violence. This creates a justice system that treats male aggressors more harshly than female aggressors of the same crime.

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  4. Dear Friends,

    One in six Americans know someone who has been falsely accused of domestic violence. The silver bullets in divorce, false allegations are sometimes used to obtain child custody. This despicable act removes fit and loving parents from the lives of their children.

    Please take a moment, as soon as possible, and speak out for the millions of children who are missing a falsely accused parent. And do it for the parents who are grieving for their children, stolen with a lie.

    Find your senators here:
    http://www.senate.gov/general/contact_information/senators_cfm.cfm

    Take note of their party affiliation and phone number.

    If your senator is a Republican, call, and ask them to support Sen. Grassley's Substitute Amendment to VAWA.

    If your senator is a Democrat, call, and ask them to demand changes to Sen. Leahy's VAWA (S. 1925), to curb false allegations of domestic violence.

    Do it For the Children, Stolen with a Lie

    Thank you for taking a stand for affected families everywhere.

    ReplyDelete

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