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Keywords

intimate partner violence; orders of protection; family law; New York law; criminal law

Abstract

Intimate partner violence is a serious public health problem that affects people from all cultures, ethnicities, and socioeconomic backgrounds. Although courts have historically refused to get involved due to the intimate and private nature of these offenses, widespread reforms have led to some judicial intervention. Through the issuance of criminal orders of protection, courts have alleviated some of the difficulties associated with prosecuting cases of intimate partner violence and have provided immediate protection for victims. However, criminal orders of protection also pose significant challenges for defendants who live and co-parent with their accuser.

In New York, issuance of these orders is often a procedural default in criminal court, and their impact on criminal defendants can be significant, leaving many defendants—often people of color from low socioeconomic backgrounds—without a place to live. These orders are even more consequential for defendants who are parents, as they can effectively separate parents from their children and deprive them of their fundamental right to parent. In order to limit the consequences that stem from these criminal orders of protection, courts must be clear about the procedural protections and evidentiary standards required and must ensure that parent defendants are afforded these protections before issuing a criminal order of protection. Recently, the Supreme Court of the State of New York, Appellate Division, First Judicial Department, held in Crawford v. Ally that where a temporary order of protection would deprive a defendant of significant property or liberty interests, the court must hold an evidentiary hearing in order to protect the defendant’s due process rights. Although this decision was a step in the right direction, its vague language left room for judges to skirt the new requirements. This Note considers Crawford and its effect on parent defendants, positing that a legislative response that codifies the First Department’s recent decision would address some of the concerns surrounding criminal orders of protection and would ensure that parent defendants are afforded adequate protections when they are accused of intimate partner violence.

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