By Heath Hardman, Albany Government Law Review
The fields of social science and psychology continue to make advances in human understanding, and courts sometimes make use of this information. But how can attorneys broaden their access to this information when representing victims of domestic violence? One way is by requesting that a court take judicial notice of certain legislative facts concerning domestic violence. While an attorney can support this request by citing scholarly sources, the court, in its discretion, need not grant the request. Citing legislative materials, such as sponsor’s memos, letters and statements of support, and bill jackets may increase an attorney’s chances of moving a court to take judicial notice of a legislative fact. After all, if the legislature cites the fact as part of its justification in enacting a law, and the court is required to enforce the law, surely the fact is compelling. Indeed, some courts have in fact cited the legislature’s reliance on certain facts when taking judicial notice of legislative facts or relying on them for decision making.
Continue reading “Trickle-Down Empowerment: How The New York State Legislature Can Empower Attorneys Who Advocate For Victims of Domestic Violence by Incorporating Social Science Findings When Justifying New Legislation”
By Alaina Bergerstock, Albany Government Law Review
Research shows that a victim of domestic violence is more likely to end up dead if the batterer has a gun in his possession. The Department of Justice reports that of all domestic abuse cases that ended in death, two-thirds of the victims were killed by guns. On August 1, 2011 Governor Andrew Cuomo signed domestic violence firearm protection legislation. The purpose of the law is to ensure that individuals convicted of domestic violence related misdemeanors in New York State are prevented from purchasing firearms. Continue reading “New York’s Domestic Violence Firearm Protection Law – Is it Enough?”
By Rebekah Addy, Albany Government Law Review
On July 24, 2011, the New York Legislature enacted the Marriage Equality Act, which permits marriage between persons of the same-sex and provides that valid same-sex marriages entered into outside of New York will be recognized and treated the same as in-state marriages. The New York State Bar Association (“NYSBA”) “has long supported the new law” stating that it is a “triumph for equality” granting “important protections and legal rights” to same-sex couples. However, NYSBA president Vincent E. Doyle III also noted that “many areas of the law are unclear” and “there are many open issues about how the law will be applied.” In light of that recognition, NYSBA produced a Marriage Equality FAQ brochure developed by a panel of legal experts, dated July 18, 2011, seeking to help “couples, attorneys and others navigate the new legal landscape.” Continue reading “Dissolution of Out-of-State Civil Unions in New York: Dickerson v. Thompson”
Written by Jennifer Jack, Albany Government Law Review Member
In October, New York State became the last state in the country to enact a no-fault statute, which went into effect on October 12th, 2010. New York amended the Domestic Relations Law with the addition of § 170(7), which allows for divorce where “[t]he relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath.” The legislature has articulated that generally a marriage is determined to be “irretrievably broken” and able to become the basis for a no-fault divorce if “either or both parties are unable or refuse to cohabit and there are no prospects for reconciliation.” In order to make this determination, the standard of “irretrievably broken” is determined by an examination of all the “facts and circumstances, as well as the factors underlying the determination.” To be deemed to have considered all the facts the court must examine the “subjective state of mind of the parties, because the central inquiry relates to the state of mind of the parties toward the marriage relationship.” Therefore, any evidence that indicates the “viability of the marriage” becomes admissible. In New York this evidence can be established through a statement under oath of either spouse.
Continue reading “No-Fault Divorce: An Examination of the Unintended Consequences of New York’s New Law”