Provides that orders of protection shall not be denied, in support proceedings, paternity proceedings, termination of parental rights proceedings, person in need of supervision proceedings, family offense proceedings and child protective proceedings, solely on the basis that the events alleged are not contemporaneous with the application therefor or the conclusion of the action.

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S5696A-2009 Actions

• May 27, 2010: SUBSTITUTED BY A8393A
• May 26, 2010: ADVANCED TO THIRD READING
• May 25, 2010: 2ND REPORT CAL.
• May 24, 2010: 1ST REPORT CAL.613
• Jan 26, 2010: REPORTED AND COMMITTED TO CODES
• Jan 20, 2010: PRINT NUMBER 5696A
• Jan 20, 2010: AMEND AND RECOMMIT TO JUDICIARY
• Jan 6, 2010: REFERRED TO JUDICIARY
• May 28, 2009: REFERRED TO JUDICIARY

S5696A-2009 Meetings

Codes: May 24, 2010, Judiciary: Jan 26, 2010

S5696A-2009 Calendars

Active List: Jun 16, 2010 , Floor Calendar: May 25, 2010 , Floor Calendar: May 26, 2010 , Floor Calendar: May 27, 2010

S5696A-2009 Votes

S5696A-2009 Memo

 BILL NUMBER:  S5696A

 TITLE OF BILL :
An act to amend the family court act and the domestic relations law,
in relation to the issuance of orders of protection


 PURPOSE OF BILL :
Provides that orders of protection shall not be denied solely on the
basis that the events alleged are not relatively contemporaneous with
the date of the application or conclusion thereof.

 SUMMARY OF PROVISIONS OF BILL :
Sections 1,2,3,4 and 7 amend sections 446,551,656,759 and 1056 of the
Family Court Act and section 8 amends section 240(3)(e) of the
Domestic Relations Law to provide that a court shall not deny an order
of protection or dismiss an application for the same, solely because
the acts alleged are not relatively contemporaneous with the filing of
the application or the conclusion of the action. In addition these
sections provide that the duration of any temporary order shall not by
itself determine the length or issuance of any final order.

Section 5 amends subdivision 1 of section 812 of the Family Court Act
by providing that a court shall not deny an order of protection or
dismiss a petition solely on the basis that the acts or events alleged
are not relatively contemporaneous with the date of the petition, the
conclusion of the fact-finding or the conclusion of any dispositional
hearing.

Section 6 amends section 842 Of the Family Court Act by providing that
the duration of any temporary order shall not by itself be a factor in
determining the length or issuance of any final order

 JUSTIFICATION :
Our legislature has recognized that domestic violence is a crime of
enormous magnitude with effects on all New Yorkers, regardless of age,
race, or economic status and with long term and pervasive consequences
for victims, families, communities and society. Each year an estimated
400,000 domestic violence incidents are reported to law enforcement in
New York, approximately 300,000 calls are received by hotlines
throughout the State, and nearly 165,000 orders of protection were
issued in domestic violence cases in family, criminal and supreme
courts in 2007 alone. While the legislature has enacted various
measures to advance protections for victims of domestic abuse, it is
critical to ensure that these measures are not eroded and that victims
have access to meaningful protections from their abusers.

This legislation is intended to overturn a line of Appellate Division
cases that have attempted to institute a statute of limitations on
incidents of abuse that a victim of domestic violence may plead and
prove, where the legislature specifically did not institute one.

(See,  YOBA V. YOBA , 183 A.D.2d 418(1st Dept.,1992);  SWERSKY V.
SWERSKY , 299 A.D.2d 540(2d Dept., 2002);  THOMAS V. THOMAS , 32
A.D.3d 521(2d Dept., 2006);  MATTER OF ASHLEY P. , 31 A.D. 3d 767 (2d
Dept., 2006);  MATTER OF ANN P.  V. NICHOLAS C.P. , 44 A.D.3d 776 (2d
Dept., 2007);  MATTER OF HALL V. HALL , 45 A.D.2d 842 (2d Dept.,
2007);  MATTER OF LORIANN O. V. FRANK R. , 53 A.D.3d 735 (3d Dept.,
2008), denying civil orders of protection as a primary, or as
secondary basis, because the incidents pled were not "relatively
contemporaneous"). There is a disturbing trend in the Family, Supreme
and Integrated Domestic Violence Courts of denying civil orders of
protection where incidents of abuse alleged are considered by the
courts as not "relatively contemporaneous" with the filing of the
petition, the findings of fact, or the dispositional stage of the
proceeding, presumably in reliance on the Appellate Division cases.
Furthermore, some trial courts have been denying a final order of
protection on the basis that the temporary order of protection was in
effect for too long. This legislation is also intended to address such
denials of final orders of protection that are based on the duration
of a temporary order issued during the pendency of a case.

When the family offense statute was passed enabling people to apply
for civil orders of protection, the Legislature was mindful in not
requiring incidents of abuse to be pled within a particular period of
time.  This was based on the recognition that domestic violence is a
pattern of behavior aimed at controlling another person. In making
this avenue of relief available to victims of domestic violence, the
legislature recognized that domestic violence must be viewed as a
video as opposed to a snapshot. It is important for a court to hear
and consider the history of violence to craft a careful and meaningful
order that accomplishes the purpose of securing safety. Allegations
that are more remote in time can give the finder of fact an enormous
amount of information including how long the violent relationship has
lasted so the finder of fact can craft a meaningful order of
protection.  Experts in the area of domestic violence, national
government statistics and local statistics have clearly established
that domestic violence is a pattern that frequently spans the entire
relationship and to institute an artificial cut off date for which
incidents will or will not be considered by the court in making a
determination disregards the nationally established understanding of
domestic violence.

Any incident of abuse that precipitates the filing for an order of
protection must be viewed in the context of the history of the pattern
of abuse suffered by the applicant and there is no statutory
requirement to limit incidents pled to be within a specific period of
time.

A family offense proceeding comprises a fact-finding stage and a
dispositional or sentencing phase. While the age of the incidents
might be a factor for consideration at the dispositional phase of the
proceedings, courts should not preclude applicants from the relief of
a civil order of protection, solely because an incident is considered
by some courts as too remote in time. The purpose of these civil
proceedings - as distinguished from criminal proceedings - is
primarily to protect the physical and emotional safety of the victim,
as well as to end the family disruption (Section 812 (2)(b)).

 LEGISLATIVE HISTORY :
2009 - A.8393/S.5696 - Passed Assembly/Senate Judiciary

 FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS :
None.

 EFFECTIVE DATE :
The act shall take effect immediately and shall apply to all orders of
protection pending or entered on or after such effective date.

S5696A-2009 Text

                      S T A T E   O F   N E W   Y O R K
  ________________________________________________________________________

                                   5696--A

                         2009-2010 Regular Sessions

                              I N  SENATE

                                May 28, 2009
                                 ___________

  Introduced  by  Sen. SAMPSON -- read twice and ordered printed, and when
    printed to be committed to the Committee on Judiciary  --  recommitted
    to the Committee on Judiciary in accordance with Senate Rule 6, sec. 8
    --  committee  discharged,  bill amended, ordered reprinted as amended
    and recommitted to said committee

  AN ACT to amend the family court act and the domestic relations law,  in
    relation to the issuance of orders of protection

    THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
  BLY, DO ENACT AS FOLLOWS:


    Section 1. Section 446 of the family court act is amended by adding  a
  new closing paragraph to read as follows:

    IN  ANY PROCEEDING PURSUANT TO THIS ARTICLE, A COURT SHALL NOT DENY AN
  ORDER OF PROTECTION, OR DISMISS AN APPLICATION FOR SUCH AN ORDER, SOLELY
  ON THE BASIS THAT THE ACTS OR EVENTS ALLEGED ARE NOT RELATIVELY  CONTEM-
  PORANEOUS  WITH  THE  DATE  OF  THE APPLICATION OR THE CONCLUSION OF THE
  ACTION. THE DURATION OF ANY TEMPORARY ORDER SHALL NOT  BY  ITSELF  BE  A
  FACTOR IN DETERMINING THE LENGTH OR ISSUANCE OF ANY FINAL ORDER.
    S  2.  Section  551 of the family court act is amended by adding a new
  closing paragraph to read as follows:

    IN ANY PROCEEDING PURSUANT TO THIS ARTICLE, A COURT SHALL NOT DENY  AN
  ORDER OF PROTECTION, OR DISMISS AN APPLICATION FOR SUCH AN ORDER, SOLELY
  ON  THE BASIS THAT THE ACTS OR EVENTS ALLEGED ARE NOT RELATIVELY CONTEM-
  PORANEOUS WITH THE DATE OF THE APPLICATION  OR  THE  CONCLUSION  OF  THE
  ACTION.  THE  DURATION  OF  ANY TEMPORARY ORDER SHALL NOT BY ITSELF BE A
  FACTOR IN DETERMINING THE LENGTH OR ISSUANCE OF ANY FINAL ORDER.
    S 3. Section 656 of the family court act is amended by  adding  a  new
  closing paragraph to read as follows:

    IN  ANY PROCEEDING PURSUANT TO THIS ARTICLE, A COURT SHALL NOT DENY AN
  ORDER OF PROTECTION, OR DISMISS AN APPLICATION FOR SUCH AN ORDER, SOLELY
  ON THE BASIS THAT THE ACTS OR EVENTS ALLEGED ARE NOT RELATIVELY  CONTEM-
  PORANEOUS  WITH  THE  DATE  OF  THE APPLICATION OR THE CONCLUSION OF THE

   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD11924-03-0

 S. 5696--A                          2

  ACTION. THE DURATION OF ANY TEMPORARY ORDER SHALL NOT  BY  ITSELF  BE  A
  FACTOR IN DETERMINING THE LENGTH OR ISSUANCE OF ANY FINAL ORDER.
    S  4.  Section  759 of the family court act is amended by adding a new
  closing paragraph to read as follows:

    IN ANY PROCEEDING PURSUANT TO THIS ARTICLE, A COURT SHALL NOT DENY  AN
  ORDER OF PROTECTION, OR DISMISS AN APPLICATION FOR SUCH AN ORDER, SOLELY
  ON  THE BASIS THAT THE ACTS OR EVENTS ALLEGED ARE NOT RELATIVELY CONTEM-
  PORANEOUS WITH THE DATE OF THE APPLICATION  OR  THE  CONCLUSION  OF  THE
  ACTION.  THE  DURATION  OF  ANY TEMPORARY ORDER SHALL NOT BY ITSELF BE A
  FACTOR IN DETERMINING THE LENGTH OR ISSUANCE OF ANY FINAL ORDER.
    S 5. The opening paragraph of subdivision 1  of  section  812  of  the
  family  court  act,  as  amended  by chapter 476 of the laws of 2009, is
  amended to read as follows:

    The family court and the criminal courts shall have concurrent  juris-
  diction  over  any  proceeding  concerning  acts  which would constitute
  disorderly conduct, harassment in the first degree,  harassment  in  the
  second  degree,  aggravated  harassment  in  the  second  degree, sexual
  misconduct, forcible touching, sexual abuse in the third degree,  sexual
  abuse  in  the  second degree as set forth in subdivision one of section
  130.60 of the penal law, stalking in the first degree, stalking  in  the
  second  degree,  stalking  in  the  third degree, stalking in the fourth
  degree, criminal mischief, menacing in the second  degree,  menacing  in
  the  third  degree, reckless endangerment, assault in the second degree,
  assault in the third degree or an attempted assault between  spouses  or
  former  spouses,  or  between parent and child or between members of the
  same family or household except that if  the  respondent  would  not  be
  criminally responsible by reason of age pursuant to section 30.00 of the
  penal  law, then the family court shall have exclusive jurisdiction over
  such proceeding. Notwithstanding a complainant's election to proceed  in
  family  court,  the criminal court shall not be divested of jurisdiction
  to hear a family offense proceeding pursuant to this section.    IN  ANY
  PROCEEDING  PURSUANT TO THIS ARTICLE, A COURT SHALL NOT DENY AN ORDER OF
  PROTECTION, OR DISMISS A PETITION, SOLELY ON THE BASIS THAT THE ACTS  OR
  EVENTS  ALLEGED  ARE NOT RELATIVELY CONTEMPORANEOUS WITH THE DATE OF THE
  PETITION, THE CONCLUSION OF THE FACT-FINDING OR THE  CONCLUSION  OF  THE
  DISPOSITIONAL   HEARING.  For  purposes  of  this  article,  "disorderly
  conduct" includes disorderly conduct not in a public place. For purposes
  of this article, "members of the same family or  household"  shall  mean
  the following:

    S  6. The opening paragraph of section 842 of the family court act, as
  amended by chapter 579 of the laws  of  2003,  is  amended  to  read  as
  follows:

    An  order  of protection under section eight hundred forty-one of this
  part shall set forth reasonable conditions of behavior  to  be  observed
  for  a period not in excess of two years by the petitioner or respondent
  or for a period not in excess of five years upon (i) a  finding  by  the
  court  on  the  record  of the existence of aggravating circumstances as
  defined in paragraph (vii) of subdivision (a) of section  eight  hundred
  twenty-seven  of  this  article;  or  (ii) a finding by the court on the
  record that the conduct alleged in the petition is  in  violation  of  a
  valid  order  of  protection.  Any  finding of aggravating circumstances
  pursuant to this section shall be stated on  the  record  and  upon  the
  order  of  protection.  THE DURATION OF ANY TEMPORARY ORDER SHALL NOT BY
  ITSELF BE A FACTOR IN DETERMINING THE LENGTH OR ISSUANCE  OF  ANY  FINAL
  ORDER.  Any  order  of  protection issued pursuant to this section shall
  specify if an order of probation is in effect. Any order  of  protection

 S. 5696--A                          3

  issued  pursuant  to  this  section  may  require  the petitioner or the
  respondent:

    S  7.  Section 1056 of the family court act is amended by adding a new
  subdivision 6 to read as follows:

    6. IN ANY PROCEEDING PURSUANT TO THIS ARTICLE, A COURT SHALL NOT  DENY
  AN  ORDER  OF  PROTECTION,  OR DISMISS AN APPLICATION FOR SUCH AN ORDER,
  SOLELY ON THE BASIS THAT THE ACTS OR EVENTS ALLEGED ARE  NOT  RELATIVELY
  CONTEMPORANEOUS  WITH  THE  DATE OF THE APPLICATION OR THE CONCLUSION OF
  THE ACTION. THE DURATION OF ANY TEMPORARY ORDER SHALL NOT BY ITSELF BE A
  FACTOR IN DETERMINING THE LENGTH OR ISSUANCE OF ANY FINAL ORDER.
    S 8. Paragraph e of subdivision 3  of  section  240  of  the  domestic
  relations law, as amended by chapter 597 of the laws of 1998, is amended
  to read as follows:

    e.  No  order of protection may direct any party to observe conditions
  of behavior unless: (i) the party requesting the order of protection has
  served and filed an action, proceeding, counter-claim or written  motion
  and,  (ii) the court has made a finding on the record that such party is
  entitled to issuance of the order of protection which may result from  a
  judicial  finding  of  fact,  judicial acceptance of an admission by the
  party against whom the order was issued or  judicial  finding  that  the
  party  against  whom  the order is issued has given knowing, intelligent
  and voluntary consent to its issuance. The provisions of  this  subdivi-
  sion  shall  not  preclude  the  court from issuing a temporary order of
  protection upon the court's own motion or where a motion for such relief
  is made to the court, for good cause shown.  IN ANY PROCEEDING  PURSUANT
  TO  THIS  ARTICLE,  A  COURT  SHALL  NOT DENY AN ORDER OF PROTECTION, OR
  DISMISS AN APPLICATION FOR SUCH AN ORDER, SOLELY ON THE BASIS  THAT  THE
  ACTS  OR EVENTS ALLEGED ARE NOT RELATIVELY CONTEMPORANEOUS WITH THE DATE
  OF THE APPLICATION OR THE CONCLUSION OF THE ACTION. THE DURATION OF  ANY
  TEMPORARY  ORDER  SHALL  NOT  BY  ITSELF  BE A FACTOR IN DETERMINING THE
  LENGTH OR ISSUANCE OF ANY FINAL ORDER.
    S 9. This act shall take effect immediately and  shall  apply  to  all
  orders of protection pending or entered on or after such effective date.