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.
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 »
The Violence Against Women Act Ignores Half the Problem ~ By Anna Rittgers
ReplyDeleteThe 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.
PRO SE RIGHTS:
ReplyDeleteSims 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."