Bill S3140-2013

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.

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  • Jan 8, 2014: REFERRED TO CHILDREN AND FAMILIES
  • Jan 30, 2013: REFERRED TO CHILDREN AND FAMILIES

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.


Text

STATE OF NEW YORK ________________________________________________________________________ 3140 2013-2014 Regular Sessions IN 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:
(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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