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  • Abuse of Technology
  • Volume 14 | Spring 2009

case updates

The following are summaries of reported decisions involving domestic violence that we hope will be useful to practitioners. They are organized by topic. If you know of recent reported decisions that you would like to be included in future eNewsletters please send them to Rebecca Henry at Rebecca.Henry@americanbar.org.

EXPANDING “INTIMATE RELATIONSHIP”
IMMIGRATION PROTECTIONS AND FIRST AMENDMENT
FEDERAL GUN CONTROL ACT
DEFENSE DELAYS

EXPANDING “INTIMATE RELATIONSHIP”

R.M.W. v. G.M.M.
K.F. v. G.M.M.

2009 N.Y. Slip Op. 29038 (N.Y.Fam.Ct. 2009)

Holding: Father’s live-in girlfriend has a qualifying “intimate relationship” with father’s children and children’s mother, giving her standing to bring family offense petition against mother. Mother’s alleged behavior satisfies definition of “family offense” for purposes of motion to dismiss. Mother’s motions to dismiss are denied.

Summary:  Petitioner RMW and petitioner KF live together and have one child in common. Petitioner RMW is the biological father of the subject children and the respondent in both cases is the biological mother of the subject children. Both family offense petitions complain of the same incident that allegedly took place on August 24, 2008, at the home of the petitioners. It is alleged the respondent appeared at the petitioners residence, tried to force her way in, was yelling and using abusive language, then grabbed one of the subject children, pulled her out of the house and tried to force her into a car. Both RMW and KF then filed family offense petitions against GMM.

GMM filed motions to dismiss both petitions, asserting that the allegations contained in the petitions fail to spell out family offenses as those terms are defined by the Family Code and the Penal Law. The motion to dismiss petitioner KF's petition also challenged the Court's jurisdiction to hear the matter based upon the fact that the relationship between petitioner and respondent does not fall within the definition of and “intimate relationship” as required by law (FCA §812(1)).

The New York Family Court noted that the legislature had added a new subsection (e) to the criteria for an intimate relationship in July 2008, but concluded that “unfortunately, neither the statute, nor the legislative history which this Court has reviewed, sheds much light on how to define the term "intimate relationship".”  The Court noted that KF and GMM have a relationship in that they both have lived with the same man and had children with him, and in that they are parenting the same children. It went on to conclude:

In almost every context in the law, the term "intimate relationship" refers to some sort of sexual or emotional pairing. However, the language of subsection (e) makes it clear that a sexual relationship, current or past, is not necessary to fall under §812's widened umbrella. This, together with Legislature's lack of guidance in the definition of "intimate relationship", except for not requiring a sexual relationship, is interpreted by this Court as an invitation for the Courts to consider relationships of all kinds when invoking FCA §812(1)(e).


IMMIGRATION PROTECTIONS AND FIRST AMENDMENT

In re Marriage of Meredith
148 Wash.App. 887, 201 P.3d 1056 (Wash.App. Div. 2, 2009).

Holding: State Appeals Court held that civil protection order prohibiting husband from contacting any agency regarding wife's immigration status was overbroad and therefore violated husband's right to free speech and right to petition government. Remand to trial to re-draft protection order.

Summary:  When Anthony Meredith was about 37 years old and a Virginia Assistant Attorney General, he sought a foreign bride on the internet. He contacted a 16-year-old Colombian girl named Jazmin Muriel. When Muriel turned 18, she moved to Virginia and married Meredith. Less than 10 months after the wedding, then-pregnant Muriel fled to Washington State. Meredith petitioned for dissolution and the family court granted the petition to dissolve the unhappy and violent marriage, finding that Meredith committed domestic violence and that it was in the best interest of their daughter, Daliana, to remain with Muriel. Meredith appealed, challenging the family court’s domestic violence protection order and its parenting plan that limits his contact with Daliana.

After hearing extensive testimony and reviewing numerous declarations and exhibits, the family court entered orders in Muriel's favor. Finding that Meredith was not a credible witness and that Muriel was a credible witness, the family court concluded that Meredith had physically and sexually assaulted Muriel, causing great bodily harm or fear of such, and that the pattern of domestic violence could harm Daliana. It also found that Meredith's interest in Daliana was designed to gain control over Muriel and that he had taken several actions, including trying to have Muriel deported while pregnant and falsely reporting that Muriel abused Daliana, that were not in Daliana's best interest. In deciding Daliana's best interests, the family court found that Muriel is a good mother and that Daliana was healthy and well-cared for.

A separate order allowed Muriel to obtain a passport for Daliana and travel with her without Meredith's permission. The parenting plan gave Muriel primary custody and restricted Meredith's contact with Daliana. The family court also entered a permanent domestic violence protection order based on its finding that Meredith “committed domestic violence as defined in [state statute] and represents a credible threat to the physical safety of [Muriel].” In addition, the protection order restrained Meredith from

contacting any agency regarding Ms. Muriel's immigration status, including but not limited to the Department of Homeland Security (Citizenship and Immigration Services, Immigration and Customs Enforcement or Customs and Border Protection), the Executive Office of Immigration Review (the immigration court system), or the Department of State. Any contact that Mr. Meredith believes to be necessary must first be approved by this court through the undersigned judge/department.

After the family court entered the orders, Meredith filed a motion demanding that the judge recuse herself from the case because she supported an immigrant rights organization and showed bias toward Muriel. The family court denied this motion and awarded Muriel her attorney fees and costs.

On appeal, Meredith argued that the terms of the civil protection order barring him from “contacting any agency regarding Ms. Muriel's immigration status” were an unconstitional prior restraint on his rights to free speech and to petition the government for redress. The Appellate Court agreed, noting that the language of the order was not narrowly tailored to prohibit only unprotected speech. The Court vacated the order and remanded to the family court for modification.


FEDERAL GUN CONTROL ACT

United States v. Hayes
129 S.Ct. 1079 (U.S., 2009).

Holding:  The domestic relationship required to establish “a misdemeanor crime of domestic violence” as defined in 18 U.S.C. §922(g)(9), although it must be established beyond a reasonable doubt, need not be a defining element of the predicate offense.

Summary:  The federal Gun Control Act of 1968, 18 U.S.C. §921 et seq., prohibits possession of a firearm by any person convicted of a felony. In 1996, Congress extended the prohibition to include persons convicted of “a misdemeanor crime of domestic violence.” 

In 1994, Randy Edward Hayes was convicted of battery on his then-wife in 1994. Ten years later, police responding to a domestic violence call about Hayes and his girlfriend found firearms in the home and indicted Hayes, pursuant to §922(g)(9).  Hayes argued that the 1994 battery conviction did not trigger the federal ban on firearms, because it was not specifically on the charge of domestic violence, but rather, generic battery.  The U.S. Court of Appeals for the 4th Circuit agreed; however nine other circuits had interpreted the law in the opposite way.

Justice Ruth Bader Ginsberg, writing for the majority, sided with the majority of circuits. Noting that fewer than half the states have laws that specifically denominate domestic violence as an element of a crime, the Court found that excluding domestic abusers convicted under generic battery laws "would frustrate Congress's manifest purpose." Congress would not have enacted something that "would have been a dead letter in the majority of states from the very moment of its passage."


DEFENSE DELAYS

Vermont v. Brillon
129 S.Ct. 1283 (U.S., 2009).

Holding:  Delays caused by failure of assigned counsel to move defendant's case forward are not attributable to the State for speedy trial purposes. Assigned counsel, just as retained counsel, act on behalf of their clients, and delays sought by counsel are ordinarily attributable to the defendants they represent. Furthermore, defendants’ disruptive behavior is to be taken into account in overall balance.

Summary:  In July 2001, respondent Brillon was arrested on felony domestic assault and habitual offender charges. Nearly three years later, in June 2004, he was tried by jury, found guilty as charged, and sentenced to 12 to 20 years in prison. During the time between his arrest and his trial, at least six different attorneys were appointed to represent him. Brillon “fired” his first attorney, who served from July 2001 to February 2002. His third lawyer, who served from March 2002 until June 2002, was allowed to withdraw when he reported that Brillon had threatened his life. His fourth lawyer served from June 2002 until November 2002, when the trial court released him from the case. His fifth lawyer, assigned two months later, withdrew in April 2003. Four months thereafter, his sixth lawyer was assigned, and she took the case to trial in June 2004. The trial court denied Brillon’s motion to dismiss for want of a speedy trial.  The Vermont Supreme Court, however, reversed, holding that Brillon’s conviction must be vacated, and the charges against him dismissed, because the State did not accord him the speedy trial required by the Sixth Amendment.

The United States Supreme Court, however, found the Vermont Supreme Court erred in ranking assigned counsel essentially as state actors in the criminal justice system. The Court found particularly troubling that the defendant, a habitual domestic offender, had fired three lawyers, tried to get them to engage in unethical discovery, and had threatened one of his attorneys.  The Court said that this rule acknowledges that defendants may have incentive to employ delay as a “defense tactic,” and that, by delay, witnesses may become unavailable. Furthermore, this rule treats delays caused by private counsel and state-paid counsel the same.