In my over 20 years of advocating on behalf of domestic violence victims, I have found that the biggest obstacle to obtaining an order of protection is where my client has primarily alleged a one-time incident and there was no clear act of violence. Without an actual assault or injury, my client is normally limited to attempting to prove that the respondent committed an act of harassment. However, the law is clear that isolated incident cannot support a finding of harassment. Penal Law § 240.26 states that “[a] person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person … [h]e or she engages in a course of conduct … which alarm[s] or seriously annoy[s] such other person and which serve[s] no legitimate purpose.”
Incidents of domestic violence are rarely limited in scope. In most cases, the offending party will act in a multitude of ways such as yelling, cursing, intimidating, and threatening the victim and/or her family. The question is therefore whether a multi-layered incident is the one-time incident that will not support a finding of harassment or whether if presented appropriately, it will make out a course of conduct. The challenge then is how to present the one-time incident.
The Appellate Division in Marvin I. v Raymond I., 193 AD3d 1279 (3rd Dept 2021) recently clarified that “a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose can support such a finding.” In Marvin I., the paternal grandfather used his truck and that of a friend to block the path of the car of the father and his children. The father then went to speak to the grandfather whereupon the grandfather simply smiled and put his hand on his rifle. When the father took out his phone to call 911 and take photographs, the grandfather drove off in such a manner that the father had to move quicky to get out of the way. Family Court found that the grandfather engaged in a course of conduct and the Appellate Division, even though this was a one-time incident, agreed.
Counsel for the petitioner in Marvin I made sure to present evidence regarding each aspect of the incident such that instead of it being seen as one incident, it was viewed as a series of separate incidents, i.e., the blocking of the car; the pointing to the rifle; and finally, the reckless driving that required the father to move quickly out of the way.
Just recently, I had the opportunity to utilize this approach in proving a course of conduct from a one-time incident. When I initially reviewed my client’s family offense petition, I read a simple one-time incident of the children’s father coming to her home to see the children uninvited after 11 p.m. and yelling and making threats when his request to see his children was rebuffed. I then interviewed my client and was able to break down the incident into separate components, i.e., the father’s refusing to leave, his yelling such that he woke up the children and caused neighbors to come out of their homes and his threat to burn the home down. When my client credibly testified to each separate act, Family Court found that she demonstrated a course of conduct, and the Court awarded her an order of protection.
The key to representing domestic violence victims is to take a careful history of the relationship between the parties. Victims rarely reveal the entirety of the incidents and often leave off important details, failing to recognize certain acts as being acts of domestic violence. I have amended many family petitions after delving into the history of the parties and thereafter, successfully litigated the matter and obtained an order of protection. In this case, what could have been discounted as a one-time incident not worthy of a family offense finding resulted instead in a finding of harassment and an order of protection. My client was able to obtain an order of protection before the father’s conduct lead to actual violence and injury.