Bill A503-2011

Relates to preventing the unnecessary removal of children from a custodial parent who is the victim of domestic violence

Amends provisions of child protective proceedings to prevent the unnecessary removal of children from a custodial parent who is the victim of domestic violence.

Details

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  • Jan 4, 2012: referred to children and families
  • Jan 5, 2011: referred to children and families

Text

STATE OF NEW YORK ________________________________________________________________________ 503 2011-2012 Regular Sessions IN ASSEMBLY (PREFILED) January 5, 2011 ___________
Introduced by M. of A. WRIGHT -- Multi-Sponsored by -- M. of A. J. RIVERA -- read once and referred to the Committee on Children and Families AN ACT to amend the family court act and the social services law, in relation to preventing the unnecessary removal of children from a custodial parent who is the victim of domestic violence without further evidence of neglect by such parent THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 1022 of the family court act is amended by adding a new subdivision (g) to read as follows: (G) THERE SHALL BE A PRESUMPTION THAT A CUSTODIAL PARENT OR PERSON LEGALLY RESPONSIBLE FOR A CHILD IS A FIT PARENT AND CAPABLE OF RAISING SUCH CHILD OR CHILDREN IN A SAFE AND APPROPRIATE MANNER. AN ALLEGATION OR FINDING THAT THE CUSTODIAL PARENT OR PERSON LEGALLY RESPONSIBLE FOR THE CHILD WAS THE VICTIM OF DOMESTIC VIOLENCE SHALL BE INSUFFICIENT TO ESTABLISH AN IMMINENT RISK TO THE CHILD'S LIFE OR HEALTH WITHOUT FURTHER EVIDENCE THAT THE CHILD HAS BEEN ABUSED OR NEGLECTED BY THE VICTIM OF THE DOMESTIC VIOLENCE. S 2. Section 1024 of the family court act is amended by adding a new subdivision (a-1) to read as follows: (A-1) THERE SHALL BE A PRESUMPTION THAT A CUSTODIAL PARENT OR PERSON LEGALLY RESPONSIBLE FOR A CHILD IS A FIT PARENT AND CAPABLE OF RAISING SUCH CHILD OR CHILDREN IN A SAFE AND APPROPRIATE MANNER. AN ALLEGATION OR FINDING THAT THE CUSTODIAL PARENT OR PERSON LEGALLY RESPONSIBLE FOR THE CHILD WAS THE VICTIM OF DOMESTIC VIOLENCE SHALL BE INSUFFICIENT TO ESTABLISH AN IMMINENT RISK TO THE CHILD'S LIFE OR HEALTH WITHOUT FURTHER EVIDENCE THAT THE CHILD HAS BEEN ABUSED OR NEGLECTED BY THE VICTIM OF THE DOMESTIC VIOLENCE.
S 3. Section 1028 of the family court act is amended by adding a new subdivision (g) to read as follows: (G) THERE SHALL BE A PRESUMPTION THAT A CUSTODIAL PARENT OR PERSON LEGALLY RESPONSIBLE FOR A CHILD IS A FIT PARENT AND CAPABLE OF RAISING SUCH CHILD OR CHILDREN IN A SAFE AND APPROPRIATE MANNER. AN ALLEGATION OR FINDING THAT THE CUSTODIAL PARENT OR PERSON LEGALLY RESPONSIBLE FOR THE CHILD WAS THE VICTIM OF DOMESTIC VIOLENCE SHALL BE INSUFFICIENT TO ESTABLISH AN IMMINENT RISK TO THE CHILD'S LIFE OR HEALTH WITHOUT FURTHER EVIDENCE THAT THE CHILD HAS BEEN ABUSED OR NEGLECTED BY THE VICTIM OF THE DOMESTIC VIOLENCE. S 4. Subparagraph (B) of paragraph (i) of subdivision 4-a of section 371 of the social services law, as amended by chapter 984 of the laws of 1981, is amended to read as follows: (B) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substan- tial risk thereof, including the infliction of excessive corporal punishment; or by misusing a drug or drugs; or by misusing alcoholic beverages to the extent that he loses self-control of his actions; or by any other acts of a similarly serious nature requiring the aid of the court; provided, however, that where the respondent is voluntarily and regularly participating in a rehabilitative program, evidence that the respondent has repeatedly misused a drug or drugs or alcoholic beverages to the extent that he loses self-control of his actions shall not estab- lish that the child is a neglected child in the absence of evidence establishing that the child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as set forth in THIS paragraph [(i) of this subdivision], AND PROVIDED FURTHER, THAT A CHILD SHALL NOT BE FOUND TO BE A NEGLECTED CHILD ON THE GROUNDS THAT THE CUSTODIAL PARENT OR PERSON LEGALLY RESPONSIBLE FOR SUCH CHILD IS A VICTIM OF DOMESTIC VIOLENCE UNLESS: THE CHILD EXPERIENCED THE DOMESTIC VIOLENCE; IT IS ESTABLISHED BY EXPERT TESTIMONY THAT THE SUBJECT CHILD WAS HARMED BY THE DOMESTIC VIOLENCE AND THAT THE SAFETY RISK TO THE CHILD OUTWEIGHS THE RISKS ASSOCIATED WITH BEING SEPARATED FROM THE CHILD'S CUSTODIAL PARENT; AND THE VICTIM WAS PROVIDED WITH PREVENTIVE SERVICES THAT ARE APPROPRIATE, ACCESSIBLE AND SAFE INCLUDING, BUT NOT LIMITED TO, REMOVAL OF THE BATTERER, ARREST AND PROSECUTION OF THE BATTERER, PROVISION OF SAFE HOUSING AND ALTERNATIVE FINANCIAL SUPPORT, AND THE VICTIM FAILED TO UTILIZE SUCH SERVICES AND IT IS DETER- MINED THAT THE CHILD HAS BEEN HARMED OR PUT AT RISK BY SUCH FAILURE; or S 5. Subparagraph (B) of paragraph (i) of subdivision (f) of section 1012 of the family court act, as amended by chapter 984 of the laws of 1981, is amended to read as follows: (B) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substan- tial risk thereof, including the infliction of excessive corporal punishment; or by misusing a drug or drugs; or by misusing alcoholic beverages to the extent that he loses self-control of his actions; or by any other acts of a similarly serious nature requiring the aid of the court; provided, however, that where the respondent is voluntarily and regularly participating in a rehabilitative program, evidence that the respondent has repeatedly misused a drug or drugs or alcoholic beverages to the extent that he loses self-control of his actions shall not estab- lish that the child is a neglected child in the absence of evidence establishing that the child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as set forth in THIS paragraph [(i) of this subdivision], AND PROVIDED FURTHER,
THAT A CHILD SHALL NOT BE FOUND TO BE A NEGLECTED CHILD ON THE GROUNDS THAT THE CUSTODIAL PARENT OR PERSON LEGALLY RESPONSIBLE FOR SUCH CHILD IS A VICTIM OF DOMESTIC VIOLENCE UNLESS: THE CHILD EXPERIENCED THE DOMESTIC VIOLENCE AND THAT THE SAFETY RISK TO THE CHILD OUTWEIGHS THE RISKS ASSOCIATED WITH BEING SEPARATED FROM THE CHILD'S CUSTODIAL PARENT; IT IS ESTABLISHED BY EXPERT TESTIMONY THAT THE SUBJECT CHILD WAS HARMED BY THE DOMESTIC VIOLENCE; AND THE VICTIM WAS PROVIDED WITH PREVENTIVE SERVICES THAT ARE APPROPRIATE, ACCESSIBLE AND SAFE INCLUDING, BUT NOT LIMITED TO, REMOVAL OF THE BATTERER, ARREST AND PROSECUTION OF THE BATTERER, PROVISION OF SAFE HOUSING AND ALTERNATIVE FINANCIAL SUPPORT, AND THE VICTIM FAILED TO UTILIZE SUCH SERVICES AND IT IS DETERMINED THAT THE CHILD HAS BEEN HARMED OR PUT AT RISK BY SUCH FAILURE; or S 6. This act shall take effect immediately.

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