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

---

S3140-2013 Actions

• Jan 30, 2013: REFERRED TO CHILDREN AND FAMILIES

S3140-2013 Memo

BILL NUMBER:S3140

TITLE  OF  BILL:   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

PURPOSE OR GENERAL IDEA OF BILL:   To amend the Family  Court  Act  to
prevent  the unnecessary removal and placement of children into foster
care when the custodial parent or the legal guardian is  a  victim  of
domestic violence, and there is no evidence of neglect by the battered
custodian.

SUMMARY OF SPECIFIC PROVISIONS:

Sections  1-3  amend  the  Family  Court  Act  by  adding an identical
paragraph  to  section  1022,  section  1024  and  section  1028.  The
amendment establishes a rebuttable presumption that a parent or person
legally  responsible  for a child is a fit parent or custodian able to
safely raise his/her child. The amendment clarifies that an allegation
made to the court, or a finding made by the court,  that  the  child's
custodial  parent or the person legally responsible for the child is a
victim of domestic violence shall be  insufficient  evidence  for  the
court  to  determine  that  the child is at imminent risk of harm, and
should therefore be  removed  from  his  or  her  battered  parent  or
custodian.

Sections  4  and  5  amend  section 371 of the social services law and
section 1012 of the  family  court  act  respectively,  The  amendment
expands  the  definition  of a neglected child to exclude a child of a
custodial parent or a person legally responsible for the child who  is
the  victim of domestic violence unless it is established by the court
that, among other things, the child both experienced and was harmed by
the domestic violence.

JUSTIFICATION:  To prevent further trauma to a child  whose  custodial
parent  is  a  victim  of  domestic  violence, this bill establishes a
presumption of fitness on the part of the battered custodial parent to
prevent the unnecessary removal of the child from the battered parent.

In a federal district court case, NICHOLSON  V.  WILLIAMS,  2002  U.S.
Dist,  LEXUS  4820  (E.D.N.Y. Mar.11, 2002), Judge Weinstein concluded
that the policies and practices of the Administration  for  Children's
Services  ("ACS")  substantially  infringed  upon  the  constitutional
rights of battered women and their children, ACS practice denies these
mothers due process, it violates their fundamental liberty interest in
family integrity, and it infringes on a mother's liberty  interest  in
raising her children.

Many child psychologists agree that the removal of children from their
abused mothers actually harms children, who according to the NICHOLSON
decision,  "are  particularly  sensitive  to  being separated from the
non-abusive parent." Often these children blame themselves  for  their
placement  into foster care. By establishing a presumption in favor of
the battered parent, this legislation seeks  to  prevent  routine  and
unnecessary removals of children from their custodial parent. As Judge


Weinstein  stated in NICHOLSON, "It desecrates fundamental precepts of
justice to blame a crime on a victim."

FISCAL  IMPLICATIONS:   There should be a cost savings to local social
services  districts  since  this  bill  would  reduce  the  number  of
unnecessary  placements  of  children  in  foster  care,  and  instead
increase the provision of less costly, more cost-effective  preventive
services for victims of domestic violence.

EFFECTIVE DATE:  This bill would become effective immediately.

S3140-2013 Text

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

                                    3140

                         2013-2014 Regular Sessions

                              I N  SENATE

                              January 30, 2013
                                 ___________

  Introduced  by  Sen. KRUEGER -- read twice and ordered printed, and when
    printed to be committed 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:


   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD00639-01-3

 S. 3140                             2

    (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

 S. 3140                             3

  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.