New York Divorce Lawyer & Attorney : Clement Law Firm : Family Law Serving Manhattan, Westchester County, Brooklyn, Queens, Bronx, New York City

I previously wrote about custody of dogs in divorce actions.

Now, there is a trend to issue orders of protection in favor of pets. The New York Times reported that in one case in Connecticut, a golden retriever was granted an order of protection against one half of a divorcing couple.

As the police tell it, Cassandra Reynolds pulled up in the driveway of her ex-husband’s home in South Windsor to pick up a few belongings.

A dispute ensued. Her ex-husband’s golden retriever approached her, so she kicked it, the police said. The dog yelped. Ms. Reynolds was arrested.

That was on Sept. 23. The next day, a Superior Court judge ordered Ms. Reynolds, 39, to stay away from her ex-husband and his new wife. The judge also ordered her to stay at least 100 yards away from Riley, the golden retriever — or face up to five years in prison and a fine of up to $5,000.

Not surprisingly, pets, like people, are victims of domestic violence. According to the Times, there is legislation pending in other states, including New York, to allow courts to issue orders of protection in favor of animals. While this may be a noble and even necessary measure, I wonder if there is better way to accomplish the same goal.

As one police officer pointed out, “In a dispute, people tend to fixate on things they know will harm the other person.” Let me preface, my next statement, by saying I am a dog lover and owner. That said, is the case of directing anger against the dog in the incident described in the Times article, much different from smashing the windshield of the spouses car? Aren’t both acts really just displaced anger designed to hurt or terrorize the spouse?

Wouldn’t a better solution be to read and write orders of protection issued in cases of domestic violence broadly to protect both the person and the property of the person? Isn’t the symbolic act of violence directed to the property or pets of a person a threat which should be included in any protective order?

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Lindsay Loans’ parents divorce highlights one of the problems with the family law system in New York. As highlighted in Newsday, while the parties’ divorce is heard in the Supreme Court, other issues are being heard in the Family Court.

The fact that two courts have jurisdiction to hear and decide some of the issues could lead not only to inconsistent rulings, but also to added confusion, delays and strategic "shopping" for judges, not to mention, increase litigation costs.
 
Newsday provided gave this short synopsis of the Lohan divorce and custody case:

In December of 2005, Michael and Dina Lohan signed a separation agreement. The fight had been heated and [Justice Robert] Ross had shown little sympathy for Michael. In August of that year, Ross wrote in a decision that "for all the defendant's professed interest in his children, his criminal ping-pongs back and forth between cases reflect extraordinary selfishness and gimmicky schemes."

For Dina, he had only praise, saying the care she gave to Lindsay was "a parent's dedication and love for a child."

So perhaps it was no surprise that when Michael wanted to spend more time with his two youngest children, he decided to try his luck before another judge. When he was released from prison in March after serving nearly two years on assault and other charges, Michael filed a petition in Family Court for expanded visitation.

In June, Dina filed a new action for divorce in Supreme Court.

I have personally represented litigants who have related matters pending in three courts: a divorce action in the Supreme Court; an order of protection issued out of the Family Court, and a violation of the order of protection in Criminal Court. This multiple forum scenario gives three different judges opportunity to render a decision inconsistent with other findings in the case.   In an extreme case, a party could have been found guilty of violating an order of protection that should not have been granted.  The acts could even be found to be insufficient to establish a cause of action for cruel and inhuman treatment for divorce.

Some counties have introduced a specialized court where the judge is equipped to handle cases when there is a pending divorce, criminal and family court matter pending. This good idea. There would be one judge who would be wholly aware of all facets of the case. The potential of inconsistent findings and forum shopping is eliminated.

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In order to permit a victim of domestic violence to relocate to a safe location unknown to his/her abuser, a new law has been enacted in New York to permit a person who has obtained an order of protection to also obtain an order permitting him/her to terminate his/her residential apartment lease. This new law would allow the victim to move to a safe location and free him/her of any future financial obligation to the landlord.

In order to terminate the lease, the victim must show that:

• There remains a substantial risk of harm if the victim remains in the present residence;
• The risk could be substantially reduced be the relocation;
• The landlord refused to voluntarily consent to the lease termination; and
• The victim is acting in good faith.

This is an important measure to protect the most vulnerable victims of domestic abuse. It is not enough to simply give a victim of domestic violence an order of protection if the abuser knows where the victim lives; too often, orders of protection are violated. Victims would constantly feel the need to “look over his/her shoulder”  unless they can get a fresh start away from their abusers. 

Since the lease termination order requires a judicial approval, it is unlikely to be abused. The landlord’s inconvenience and expense of re-letting an apartment, palls in comparison to the need to provide a safe home to a battered person.

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