Using Judicial Notice to Inform the Legal System in New York Family Court Proceedings Where Domestic Violence is Alleged

Abstract

There seems to be a fundamental disconnect between what we know and what we do. That is, between what we, as a society, know and what we, in our family courts, actually do. Throughout domestic violence literature and cases there is a trend of courts falling prey to misleading appearances and making assumptions based upon those appearances with disastrous results for victims of domestic violence. For advocates and attorneys specializing in domestic violence issues the situation is heartbreaking and frustrating. In some cases perhaps the court and attorneys involved all fall prey to the misleading appearances. Many attorneys and judges may simply be well meaning but unaware. What can be done to make courts and attorneys aware? Requiring education on domestic violence issues would require legislation that may be slow-moving or impossible to enact. Some judges and attorneys may seek out education while others may not. This paper explores how judicial notice may be used to inform judges and attorneys in New York Family Courts. In section II, the types of judicial notice will be discussed along with applicable rules, standards and examples. In section III a series of 15 domestic violence “facts” that likely meet the standard of judicial notice are presented. Section IV will argue that judicial notice of certain “facts” concerning domestic violence will 1) inform judges and attorneys, 2) further judicial economy by reducing the need for expert witnesses in some cases, 3) promote a more just approach and resolution in family court proceedings, and 4) provide expert-like information that may be otherwise unavailable to victims. Finally, section V will address the criticisms that may be directed at judicial notice of the types of facts cited in section III.