On spotting legal issues…..

Posted on by K

One thing I’ve learned to do pretty well as a paralegal is a spot a legal issue. I don’t necessarily know how to rectify the issue but, hey, identifying a problem is the first step to solving it, right? This skill has turned out to be a huge asset for me in my work with clients. It’s been really shocking for me to realize just how often people unaware of the law are taken advantage of. In my work at an organization providing free legal assistance, the clients are aware there is something a lawyer can do for them. That is why they call in the first place. At my field placement, this is not the case. My clients are often completely oblivious to any legal remedies available to them. One client that I have been working with for the past month presented with issues paying her bills. After speaking with her at length, I’ve come to realize that her current problems stem from an eviction that took place two years ago, an eviction that the client could have fought in court. While she may not have been able to retain her apartment, she could have bought herself time and that time would likely have made a world of difference for her. Unfortunately, my client wasn’t aware at the time that she could fight the eviction in court and no one told her. That fact got me thinking just how much better social workers might be able to serve their clients if they are trained to spot legal issues and have appropriate referrals for services.

I once attended a webinar taught by the Victim’s Right Law Center about issue spotting with victims of sexual assault during intake (thats a mouth full). The thing that the presenters really stressed was just how many facets there are to a client’s story, to their presenting problem. A young woman sexually assaulted on her college campus may present asking for assistance processing her attack and its effects on her life but when probed so many other issues, ones with legal remedies might present themselves.  She might say she feels horribly unsafe because she keeps getting messages from her perpetrator on Facebook. It might turn out she has an order of protection against her abuser from criminal court but she doesn’t understand it. It might not contain any provisions prohibiting him from contact via social media. It could though, she should contact the DA on the case. Maybe her perpetrator was her boyfriend. She might be eligible for a Family Court Order of Protection. She needs a family law attorney.  Does the client feel safe in her apartment? Maybe she wants to break her lease but can’t afford the fines. She needs a housing attorney.  Did she lose her job after she was assaulted because she was afraid to be there or because she was suffering psychological repercussions from the attack? She should speak with an attorney familiar with worker’s rights or one who knows the provisions of the VAWA act. What about school? What about her immigration status? You see where I am going with this.

I think it can be very easy for social workers to focus on their clinical work and miss other ways they can assist their clients. When you are working with clients that have no involvement in the court system, it can be difficult to recognize when a client should, in fact, get involved. Now, I’m not suggesting we all go out and study the law but I am suggesting we learn to notice more when our client’s rights are being violated. Sometimes we might be wrong, sometimes we/our clients might consult an attorney and learn there is absolutely nothing that can be done to assist them with their problem. There will be other times though; other times when our clients will be able to use the courts to their advantage and be all the better for it. If my client had known housing law remedies available to her, she never would have had to walk through the door to meet with me and, while I’m happy that I had the occasion to meet her, I would much happier if she had the financial security she deserves.

Taking a break from solving the mystery of the missing plane…..

Posted on by K

I’ve become so consumed with the missing Malaysian airplane that I have had no time to read any other news or even think of something else to write about here (priorities?), so I figured that I would write what I know. Through the course of my employment, I’ve learned a thing or two about filing Family Offense Petitions (FOP) in the Family Court of our state, some things that I feel might be useful for social workers working with domestic violence survivors and their families.

Why file an FOP?

Family Offense Petitions ask the Family Court to issue an Order of Protection (OP). They allege that the Petitioner has been a victim of family offenses. These offensesmust be perpetrated by anyone related by blood or marriage, a person the petitioner was or is married to or with whom they share a child or someone the petitioner is involved in an intimate relationship with, like dating. Family offenses in the state of New York include varying degrees of assault, harassment, stalking and sexual assault.

Why an Order of Protection from the Family Court instead of Criminal Court?

A person may have both an order of protection from the Criminal Court and the Family Court. A criminal OP comes as a result of criminal charges and a case brought by the District Attorney’s Office. The police would have to be involved to make the report the DA’s office. The case is not in control of the victim, it is the DA’s case. Many such cases (particularly first offenses) will get pled out and while an OP is usually part of that plea, it’s not always the case. In Family Court the victim has more control. It is their case. One does not have to have called the police during incidents, though police reports can be good evidence.  In Family Court, the petitioner has more control over the types of relief granted by the OP but it will require more court appearances.

What goes in an FOP?

An FOP should contain VERY detailed accounts of the family offenses perpetrated against the survivor. A good jumping off point often mentioned is “First, Worst and Most Recent.”  Mention the place the incident occurred and the date (at the very least a month/season and year). Victims should include any injuries sustained in the incident, emotional and physical.

Here’s an example:

On or about January 8, 2014, Respondent and I were in the marital home when Respondent became very angry that I left the door open. Respondent lunged across the room and grabbed me by the  arm. He was screaming words to the effect of “Close this door right now or I will punch you in the face’  I felt very fearful of Respondent. When he released me,  I had bruises on my right arm. The bruises were present for a week and were so visible that I had to wear long sleeves to cover them. I felt very ashamed and embarrassed.From experience, I can say that it may be very helpful for a social worker to spend some time with your client (if they have it) creating this list of incidents. Your clients may have trouble recalling incidents or time frames, particularly in a long abusive marriage. They may also feel compelled to include things that aren’t necessarily family offenses that would dilute the strength of the petition, for example, they may want to include that their partner is cheating on them.  Thats terrible and certainly distressing but infidelity is not in and of itself an offense punishable in the Family Court.

An FOP can ask for various forms of relief. It can order the Respondent to stay away from Petitioner, to refrain for committing family offenses against them or contacting them even through third parties. It can order them out of the home the parties share. It can grant temporary custody and child support.  The Petitioner should indicate what relief they are looking for exactly to the clerk when they file.

How does one file an FOP?

To file an FOP, one must go to the petition room of the Family Court in their borough. The clerk will type up the FOP for them.  There is no filing fee.

What happens after it is filed?

The petitioner will be called before a judge. If the petition is filed in the morning, this will likely happen in the same day. If one files later in the day, one may have to return the following day to see the Judge. When before the judge, the judge may ask them to speak about the incidents alleged in their petition. One should answer the questions completely and truthfully. If the judge deems the petition sufficient cause to issue an OP, they will issue a temporary one. This TOP must be served on the Respondent for it to be in effect. Service must be carried out by a party that is over 18 and not involved in the action. One can ask a mutual friend or can go to their local police precinct to effectuate service.  The TOP will come with a summons, summoning the Respondent to the court at a future date. At the next court date, both parties, if they are low income, may request a court appointed attorney.

 

 Filing an FOP can be a very daunting process for our clients, one they are very reluctant to undertake  alone. Offering to accompany a client to court for this filing process can be the difference between them obtaining an OP or not. You can find out more information here. Another way our clients can get assistance with filing an FOP is by visiting the Family Justice Center of their borough. (Manhattan just opened theirs)

On My Least Favorite Sandwich…..

Posted on by K

Last week, I had the opportunity to attend a webinar (watch a webinar? … you know what I’m getting at) offered by the Battered Women’s Justice Project entitled the “The Child Custody/Child Protective Service Sandwich”.  The timing of such an offering was pretty amazing given that this issue has been on my mind a bit as of late (go figure). A couple of weeks ago, at my job, I received a call from a man stating that his sister was in an abusive relationship. This sister wanted to begin seeking services from a prominent domestic violence agency in the city but had some concerns. The caller’s friend, who is a social worker, had informed his sister about a licensed social worker’s mandated reporter status. The caller lamented that his sister was considering not seeking services (that ultimately might save her life…cough cough) because her children had witnessed one incident of abuse and, therefore, in speaking about this incident, she might trigger a mandated report. This is essentially the sandwich de jour; a sandwich, I must admit, I find incredibly hard to swallow. Its not an uncommon place for domestic violence victims to find themselves – sandwiched there in between Child Protective Services (CPS) and Family or Civil Court.

Domestic violence is a beast of a thing; its a dyad that only a survivor can understand. The decision to leave an abusive relationship is not an easy one. That decision, and research will back me up, increases the risk of death or serious injury exponentially; leaving is the most dangerous time for a victim and their children. Its not a decision to be entered in lightly.  Let’s just assume, for the sake of time, that a victim safely leaves their abuser and relocates to a shelter with the children. A clever abuser then heads to the family court and files for custody, or visitation, for an order of protection or to the civil court to file for divorce. Now the victim finds themself in a battle for the children, a battle they may not win without alleging that their abuser is, in fact, an abuser. The courts are inclined to believe that it is in the best interest of a child to have “parenting time” with both parents. If its not safe for a victim’s children and they believe that “parenting time” needs to be supervised, its their burden to prove why. As soon as one does that, they open themselves up to becoming pastrami, honey roasted turkey, the meat in an CPS and Court sandwich. The same thing would occur if their therapist at the shelter is mandated to make a report about your children witnessing abuse.

An investigation may be launched by CPS (or ACS in NYC… acronyms, ughh) and a victim may find themselves with an “indicated” report for neglect in failing to protect their children from witnessing abuse by leaving their abuser. This becomes much more complicated if victims end up reconciling with their abuser; on average it takes seven to nine attempts to leave an abusive relationship. As an advocate for domestic violence victims, I’ve seen this occur numerous times and, frankly, I find it troublesome.  To me, its a MASSIVE barrier to service for victims and services are what victims need as they exit an abusive relationship. This occurrence bothered advocates in West Virginia as well, I learned from my webinar. So much so, in fact, that they advocated for change; working together, lawyers, social workers and other interested parties were able to create CPS policy change in their state. Now CPS workers are no longer obligated to make an “indicated” report if they note that the non-abusive parent took reasonable steps to protect their children. This allows them to take into account plans and preparations made by the victim in assessing safety concerns. For a victim about to find themselves salami-ed, I think that’s a huge change. As social workers, it shows what we can do when we hear our clients and collaborate with other organizations and professions to advocate on their behalf.

To get us thinking…

Posted on by K

    Since I began working for an organization that provides free legal aid for domestic violence victims,  I’ve come to notice one definitive trend amongst those who seek our services — a reluctance to become engaged in a court proceeding. Yes, a lot of  our clients’ desire to avoid the courtroom stems from a fear of facing off with their abuser but I don’t think that is the sole reason. Another motivating factor is a fear of the court system itself, a mistrust in the system’s ability to provide the justice is was built to dispense.

“Justice is the truth in action” the wall of one particular courtroom in a  NYS Supreme Courthouse reads but the truth according to whom? Getting to the truth of the matter in court is not always so simple, even when one has a lawyer. There are rules and procedures for filing court documents, for having evidence admitted, for soliciting testimony. The regulations are endless and can vary between courts. It can be difficult for even the most veteran attorney to recall, but what if I don’t have an attorney? What happens to me then? Even the NYS Family Courts, which are said to “pro se” friendly, can be hard to navigate. If I do manage to file, serve the opposing party properly and make it to my initial court appearance, that is only the start. Take for example,  a child support case, what if my abuser works off the books, I have had no access to our bank accounts or tax returns and he is claiming to have no income? How is the truth about his income going to come out unless I know how to make my case?  How would I know how to make my case if I had not gone to law school? How will justice be carried out?

Beyond just procedural difficulties, the court is built on an air of authority. Yes, sir, no m’am. Its proper and its formal and its intimidating. You wait in long lines at the public entrance and enter through metal detectors; the security guards eyeing you with suspicion. The court staff is overworked and overwhelmed; getting straight answers to your questions can be difficult, if not impossible. You arrive at 9:30 am and don’t see a judge until three hours later; you are on the court’s schedule now, forget about making it to work today. You learn to speak only when you are spoken to, but  sometimes you are too nervous to say what you really need to say to the judge.  One client of ours who had represented herself in a proceeding lamented to me  “Everything happened so fast, I could never get a word in edgewise and even if I had, I didn’t know what to say. It never seemed like the right time to bring up what I had to say.”  Because it was “never the right time” to say what she needed to say, the client endured months of additional harassment that could have been stopped had she known to ask the judge to modify her Order of Protection.

Despite its shortcomings, the court system is, of course, a magnificent tool that can provide our social work clients will invaluable relief. An order from a court can be the difference between a family keeping their apartment or becoming homeless; it can provide safety for a mother and her children who have long suffered abuse; it can allow someone who is wrongfully accused to go free; it can give a crime victim back their peace of mind. The question is though, how can we help our clients to navigate the court system so they can obtain court orders to their benefit? How can we make it easier for them? We can try to find them a lawyer by contacting  Legal Services: NYC,  New York Legal Assistance Group or The Legal Aid Society on their behalf. When thats not possible,  as a  last resort, we can sit with them and look for  the proper court forms on Ecourts perhaps. While we are not lawyers and cannot give advice, two heads might prove to be better than one in determining how to fill in the court papers. At the very least, we should  be able to deduce what information the client will need to have with them when they file or attend a hearing.  Maybe its more a matter of helping out clients to work out the logistics…  Can we help them to arrange days off with their employers so that they can attend  their court hearings and wait just as long as it takes? Maybe we can  map out the court’s location, find out where to file or look into what courtroom and which floor their hearing will be held? Just easing some of the initial anxiety of even getting themselves to the courthouse may be extremely helpful. Could we go with them for moral support? This way the client will know that even when they are standing alone in front the judge, there is someone who has their back sitting a few rows behind.  Maybe it all comes down to advocacy again. Can we change the system and help it to become more user friendly? Can we build trust in the court system and improve outcomes?

This is an issue I think of a lot when I go over to the courthouse and, to be honest, I really just end up with more questions than solutions (as you may have noticed) but  I’m thinking about it, and now maybe you are too…I guess thats a start.

PS. Check out this interesting article about the immigrant population and their fear of justice system….

Court Proceedings Lost in Translation

Posted on by K

Recently, I found myself stuck in a courtroom waiting on a judge’s signature in the midst of a trial. During said trial, a witness required a court interpreter in order to give his testimony. The interpreter’s role was to relay questions being asked of the witness (in his primary language) as well as the witness’ responses to these questions to the courtroom (in English). The interpreter also relayed translation of discussions that occurred between the opposing party and the judge. As an observer who didn’t speak the primary language of the witness, I found myself engrossed by the interactions between interpreter and witness. How do we know what that the witness is understanding the questions or that they are being interpreted correctly if no one else here speaks that language? Why did the interpreter and witness just have a back and forth exchange when no one was talking to them? Are they talking about me sitting in the back of the courtroom?

It’s a fascinating thing, watching a court interpreter at work. To me, its mind boggling how fast their brains must take in information in one language, translate and then spit it out in a completely different one.  Sometimes the translations seem be happening simultaneously as the words are flowing from the person who is speaking, as if the interpreter is a mind reader!  As fascinated  and impressed as I am with an interpreter’s skill set, I also can not help but feel concerned with the whole process.  How can the witness focus with two people speaking at the same time? How can they completely tune out the English if its their secondary language? Do they trust the interpreter’s translation?

As it turns out, my concerns are not necessarily unfounded. Well, all my concerns except the one about the witness mocking me to the interpreter… I think.   According to a report written in 2011 by the Immigration Court Observation Project, (ICOP) interpretation in immigration courts was determined to be real issue. Interpretations services in many ways appeared to be inadequate.  For example, only statements made to or from the respondent are translated for them causing confusion about what is occurring in the proceedings. It was observed in a number of cases that translation  did not always occur in the proper dialect or, even more disturbing, proper language for the respondent to understand. Despite court interpreters being held to a professional standard of conduct, many appeared to disavow this code.  These issues are not unique to immigration court. At one seminar I attended for work, a domestic violence survivor advocate spoke about these issues plaguing survivors’ experiences in family or matrimonial court as well. In addition, she created awareness that in smaller communities there is an increased probability of the survivor knowing her interpreter. This could cause the survivor to feel intimidated or embarrassed during their testimony which could, in turn, affect its quality.

In thinking about this issue, I wondered how, as a social worker, I could assist clients for whom English is not their primary language when they must make a court appearance. It seems to me, the best course of action would be to prepare our clients prior to their court date, empowering them with knowledge. Our clients should know they are entitled to a court interpreter in their primary language even if they also speak English. They  have a right to a proper translation of their court proceeding. They must be encouraged to raise any concerns about interpretations or the person carrying out the interpretation with their lawyers or, if they are not represented, with the judge.

Another way for social workers to get involved with this issue is through advocacy. Barrier Free Living is working to ensure that domestic violence survivors with hearing impairments are provided with adequate American Sign Language interpreters.  The New York Immigration Coalition  works for justice for immigrants. The Vera Institute of Justice strives to increase fairness in the justice system in numerous ways, this could become one.

Any thoughts?