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Housing Court

December 29th, 2013 · No Comments

Here at CourtReference, we spend a lot of time looking at court systems, so we get to see types of courts in some states that you may not have in your state – yet. Courts that specialize in a particular area of the law have been around for a long time. Examples are Family Court, Juvenile Court, Tax Court, and Probate Court.

But in the past few decades, courts that specialize in a single type of case have evolved. These highly specialized courts may be a separate court, or a division or program of court of more general jurisdiction. Examples include Commercial Courts, Water Courts, and Environmental Courts. Some specialized courts focus on a particular type of behavior and try to change it through treatment instead of jail; these include Drug Courts, Veterans Courts, Mental Health Courts, and Family Dependency Treatment Courts. Some are so highly specialized that they only exist in a few states (Gun Court) or a single state (Toll Court in Washington State).

Another very busy specialized court in some states is Housing Court. These courts resolve disputes between landlords and tenants, and may also hear code violation cases. As noted in our earlier post about evictions, most such disputes are handled by courts of general jurisdiction or by some local courts of limited geographic jurisdiction. But in areas with a high density of rental properties – and thus a high number of landlord-tenant interactions – a specialized court exists.

A prime example is in New York City, which has a Housing Court division of New York City Civil Court in each of the five New York City boroughs (Manhattan, Brooklyn, Queens, the Bronx, and Staten Island). New York City Housing Courts handle landlord/tenant disputes of any amount, and also handle housing code violations.

The Buffalo Housing Court handles eviction and code violation cases in New York State’s second-largest city, but New York – like most states – does not have housing courts operating statewide.

Massachusetts does have a statewide Housing Court  with five regional divisions that have jurisdiction in 11 of the state’s 14 counties. This court has jurisdiction not only over landlord/tenant disputes, but also over all other civil and criminal actions that involve the use of any real property. That means it handles not only evictions and code violations, but also small claims, personal injury cases, property damage, contracts, discrimination, and any other claim arising out of the use of real property.

Other Housing Courts are generally found only in a state’s larger cities. Some examples:

  • In Ohio, the Cleveland Municipal Housing Court and the Toledo Municipal Housing and Environmental Court both hear  code violation cases as well as landlord/tenant disputes and eviction cases.
  • In California, the San Francisco Superior Court’s Civil Division has a Real Propery/Housing Court that hears only landlord-tenant and wrongful foreclosure cases.
  • In Minnesota, Housing Courts are found in the populous counties of Hennepin (home of Minneapolis) and Ramsey (home of St. Paul).
  • In Connecticut, although there is no separate housing court, the Superior Court in each of the state’s six largest metropolitan areas has a specialized Housing Session that hears only landlord-tenant cases.

In summary, if you live in a small town, your eviction or code violation case is likely to be heard by a county or municipal court that hears many other types of cases. But if you live in a large metropolitan area, there’s a good chance that a specialized Housing Court will handle your case. Find out which courts are where, and what they do, at CourtReference.

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PART II – PRACTICAL ADVICE FOR DEFENDING AGAINST A PROTECTION ORDER

December 22nd, 2013 · No Comments

Last month I published  Beyond the Paperwork: Practical Advice for Obtaining a Protection Order  on this blog site.  This month, as promised, I would like to address some strategies for defending against an order of protection.

As noted in my previous article, there can be grave consequences if a protection order is filed against you.  For the purposes of this post, consider a “protection order” the same as a restraining order or no-contact order; the terminology changes depending on your jurisdiction and your relationship to the petitioner.

Protection orders must be issued by a court and are designed to prevent threats or acts of domestic violence, stalking, and harassment by limiting contact with the petitioner/victim.

Typically, the petitioner files for a temporary or emergency order of protection.  Only the petitioner is present at the initial hearing and the judge will either grant or deny the request.   The judge is likely to err on the side of caution based upon the petitioner’s sole testimony; temporary protection orders are usually granted.   A subsequent hearing is then scheduled (within two weeks) to determine if the temporary order should be continued indefinitely.  At that time the respondent/defendant can present evidence to counter the petitioner’s claims of threatening or violent behavior.

As a respondent, once you are served, you must abide by the terms of the protection order until the continuation hearing. It does not matter if the temporary order was based upon false or misleading testimony-do NOT contact the petitioner under any circumstances.  You could face charges for contempt of court or violation of a protection order, with penalties that include fines and/or incarceration.   Any communication with the petitioner before your hearing will all but guarantee a more permanent and restrictive protection order set against you.   If others are included in the no contact order (children, other relatives, friends, co-workers) do not make any overtures to them either.

Alternatively, if the petitioner/victim violates the order by reaching out to you, do NOT respond in any way or by any medium.  Document any of the petitioner’s attempts to communicate and be prepared to share this information with the court and your attorney, should you retain one.    This is a two-way street; no contact means no contact, and both parties must strictly adhere to the terms of the order.  If you can demonstrate that the petitioner has made efforts to contact you, such evidence may negate the claim of fear or imminent danger from you.

If possible, hire an attorney to represent you.  This is a contested hearing (to continue the protection order), with potentially devastating legal, professional and personal ramifications.  If you cannot afford to retain counsel, seek out any low or no cost legal clinics or advocates that may be able to assist or advise you.  Use CourtReference to help you begin your search: select your State and County, then choose the “Legal Aid, Lawyer Referral option from the Court Resource Category menu.   You may also find links to your local and State Bar Associations under that option offering additional referral services.

In your search you will find many legal and social services advocating for victims of domestic violence.  This is a compelling problem for the legal system, and it is understandable that the prevailing public policy is one of prevention and protection.

But, sadly, there are instances of false reporting of domestic violence.  The claim is often used for strategic advantage in a divorce or custody dispute, or as a retaliatory gesture in a contentious breakup.  It is difficult to refute a claim of “fear” of imminent danger, but it is not futile. You must rally all available defenses to challenge the alleged threats or acts identified in the  petition for the temporary order.  These will be the same “facts” that are presented at the continuation hearing.

The petition lists specific acts used to justify the creation and continuation of the order.  Evaluate each  incident and prepare your responses and defenses.  Were your actions or behaviors mischaracterized? Particularly for the most egregious offenses alleged, do you have evidence that could rebut the petitioner’s account or perception?  If you have witnesses that were present at or around the time of the alleged incident(s), their supporting testimony will be critial in advancing your defense.  Evidence that contradicts or discredits the petitioner’s claims of threatening behavior may also include:  electronic recordings (video, phone, social media posts, etc.), written witness statements, medical records, phone logs, arrest and conviction records, and law enforcement incident reports.  Any credible information you can offer to show that no threatening or violent acts occurred may result in the dismissal of the order.

As mentioned earlier, overtures made by the petitioner after the filing will cast doubt on his or her actual fear of  harm from you.  Document any communication initiated by the petitioner, particularly any expressions of remorse or regret, or offers to “negotiate” a less harsh contact ban between you.

After preparing your defenses to each incident alleged, anticipate the petitioner’s evidence and testimony.  Does the petitioner have credible witnesses to support the claims asserted?  If a witness is not believable, do have additional information to impeach his or her character or reputation?    What physical evidence can the petitioner present to support continuing the order?  As the respondent, you have a right to subpoena any records presented with the original order, and can also compel appearances by the petitioner’s witnesses-including those who have provided written testimony, but who may be reluctant to appear in court.

Regarding your own witness testimony, prepare yourself and those supporting you.  Practice what you want to say and what you believe to be your most compelling and persuasive arguments.   Make sure your witnesses are comfortable and confident in their testimony.  Confirm your witnesses’ availability, and provide transportation or directions to the courthouse if needed.

I will reiterate what I stated in last month’s blog article about demeanor and appearance.  Do dress for court with some formality; observe courtroom protocol and show respect for the judge and court personnel.  Speak only to the judge unless directed otherwise.  Interrupt no one.  Speak slowly and clearly, and give complete answers.   If you do not understand a question, ask for clarification or simply state that you do not understand.  If you or the petitioner  require translation services, be sure to request that well in advance of  the continuation hearing.  In fact, if English is not the petitioner’s first language, it is possible that some of the alleged incidents were not accurately translated in the protection order application or in the charging papers or incident report.  If you believe this may be the case, challenge the interpretation and reliability of the initial translations at the hearing.

A final point about demeanor at your hearing.  Since you are defending yourself against claims of potentially violent or threatening behavior, you must demonstrate contrary qualities of  calmness and restraint.   How you conduct yourself at the hearing will weigh heavily upon the judge; keep this foremost in your mind even if you are offended and outraged by the allegations leveled against you.

It is shameless that protection orders are used as retaliatory tools in relationships or for strategic gain in family court.  But never dismiss these charges as  trifling, or ignore a temporary order and allow it to continue indefinitely by default due to your inaction.  You stand to lose significant rights as well as your reputation and status if the order stands.

Did you know that you may lose your right to possess a firearm if you are the subject of a restraining order?  Regardless of whether you need a gun for employment (e.g., law enforcement, military), you will forfeit that right in many states and under the federal Violence Against Women Act you will lose the your right to have a gun or ammunition for the duration of the protection order. Also be aware that a protection order is a part of the public record and is generally accessible to anyone from your state court records provider.  Potentially your current or future employment could be impacted by this protection order information, as many employers and prospective employers routinely perform background checks.   When you submit to a credit check to purchase a home, secure a credit card, or rent an apartment, this disclosure could adversely affect your application.   In a divorce, the perception of being a violent spouse could influence support and maintenance decisions, and certainly affect custody assignment and visitation of minor children.

I am sure you can imagine just how damaging the  label of  “abuser” could be to your professional  and personal life.  Don’t let a false claim destroy your reputation.   If you are facing such an accusation, I implore you to use any and all resources to seek dismissal of the protection order.  And good luck!

 

 

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Who is a Friend of the Court?

November 29th, 2013 · No Comments

Actually, the correct question is “What is a Friend of the Court?” The Friend of the Court we’re describing here is not a person. There is a different type of “friend of the court” who can be a person – or a group or organization – who files a brief in an appellate court case. If they are not a party to the case, they are an amicus curiae (Latin for “friend of the court”). They may be providing additional information to help the court take a broader view of the issue on appeal, or they may be providing additional legal arguments for one side or the other. Either way, they must ask and receive the court’s permission to have their position considered. And they only operate in appellate courts, most notably in the United States Supreme Court.

Since CourtReference’s information is all about trial courts, we want to introduce you to the other Friend of the Court – the one that’s not translated from Latin, which doesn’t need the court’s permission, and which exists only in Michigan. This Friend of the Court is an office in the Family Division of Circuit Court in every Michigan county. It assists the court with custody, support, and parenting issues in divorce cases involving minor children. By providing investigation, mediation, and enforcement services, it also assists the parties in the case.

The Friend of the Court reviews divorce case files to insure that custody, support, and parenting time are adequate and are being carried out according the court’s orders. It also makes reports and recommendations to the court, and provides information to the parties. In many Michigan counties, the Friend of the Court provides forms and mediation services. Forms, publications, parenting time and custody guidelines, and the support formula come from the Friend of the Court Bureau, a state agency that oversees county Friend of the Court offices and provides training for Friend of the Court staff.

The Michigan State Disbursement Unit (a division of the Department of Human Services) is responsible for collecting all child support payments and disbursing them to the custodial parent. But local Friend of the Court offices manage the associated details including address changes, requests for modification, setting up income withholding, and collection of additional fees due to the Circuit Court. Some local Friend of the Court offices collect child support payments and forward them to the Disbursement Unit.

Both the Michigan State Disbursement Unit’s list of Friend of the Court offices and the Michigan Courts website have contact information for each county office.

The Friend of the Court Handbook has details about the Friend of the Court offices’ operations and services that apply statewide. Detailed information about local offices can be found on those offices’ websites. Most Michigan county Friend of the Court offices have a website, and they’re all linked on CourtReference’s Guide to Michigan Courts – Self Help and Legal Resources page. Check the “Michigan Multiple County” section for links to the 13th Circuit Court Friend of the Court and the office serving Baraga, Houghton, and Keweenaw Counties. Check the individual county sections for links to single-county offices.

Friend of the Court websites in smaller counties may have contact information only, or a general description of the office such at that found in Arenac County. Larger county office websites may have extensive content, such as the Ingham County office’s with its video introduction and links to forms, forms help, FAQ, office map, and additional resources.

 

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