Relates to allegations in family offense petitions.
TITLE OF BILL: An act to amend the family court act and the domestic relations law, in relation to service of orders of protection in family and supreme court proceedings and allegations in family offense petitions
This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of her Family Court Advisory and Rules Committee.
Of all the changes to the domestic violence laws in New York State during the past two decades, one of the most helpful has been introduction of a presumption in favor of law enforcement service of civil orders of protection and associated documents. Parties protected by temporary or final orders of protection in Supreme and Family Courts do not, unless they so request, bear the burden of arranging for service; nor do they - or the friends or family members they may enlist for that purpose - face the danger inherent in personal service in volatile domestic violence cases. However, three provisions in the statutory framework regarding service have engendered confusion. It is the aim of this measure to eliminate that confusion and, at the same time, to amend the family offense petition requirements to conform to recent legislation.
First, the measure would amend Family Court Act § 153-b and Domestic Relations Law §240 to clarify that chapter 261 of the Laws of 2010 did not alter the requirements for personal service or the presumption in favor of law enforcement personal service of temporary orders of protection, orders of protection and the accompanying petitions, summonses and other documents. As its supporting memorandum made clear, chapter 261 simply provided that, in order to expedite the service process, courts may electronically transmit the documents to law enforcement officials so that they may serve them promptly. See NYS Assembly Memorandum in Support of A.10410. Chapter 261 did not, as some have erroneously suggested, abrogate the requirement of personal service by permitting electronic service directly upon the parties. In fact, it merely made permanent and statewide what had been a temporary authorization for pilot projects for electronic transmittal of documents to law enforcement for service in nine counties. See L. 2007, c. 330.
Second, the measure would address a problem that has arisen in light of the interpretation by law enforcement in New York City of the requirement in Family Court Act §826(a) that, unless a warrant has been issued, service of a summons and petition in a family offense case must be made at least 24 hours before the date indicated for the initial appearance. The section provides for an adjournment of three days upon request of the respondent, which clearly protects the due process rights of a respondent, including any case in which the 24-hour requirement has not been met. However, as the Family Court, Bronx County, noted, in Grant v. Pugh, 25 Misc.3d 417 (Fam. Ct., Bronx Co., 2009), police officers have relied upon Family Court Act §826 to preclude any service of documents less than 24 hours before the court appearance, thus "forcing petitioners alleging domestic
violence, sufficient to get an ex parte exclusion order from the court, to go home to the respondent whom the court has ordered excluded from the home." 25 Misc.3d, at 420. That Court held that the fact that service of the documents, as well as a temporary order of protection, may have been made less than 24 hours before the court date should not render the service invalid or the temporary order of protection ineffective; it should simply entitle the respondent to avail himself or herself of the right to request an adjournment. Consistent with the court's interpretation, this measure would clarify that where a respondent has requested an adjournment of a family offense proceeding, the court may continue or grant a temporary order of protection to protect the petitioner during the adjournment period. In this way, alleged victims of domestic violence would not be left vulnerable during what is generally recognized as the most dangerous period of time for them - the period immediately surrounding the initiation of litigation, especially court proceedings seeking to exclude alleged abusers while the due process rights of the alleged abusers to adequate notice and an opportunity to prepare a defense would be fully protected.
Finally, this measure would conform Family Court Act §821 to a recent amendment to Family Court Act §812. Chapter 405 of the Laws of 2010 added strangulation and criminal obstruction of breathing and blood circulation to the list of family offenses for which family and criminal courts exercise concurrent jurisdiction, but failed to add these new crimes to the family offenses that may be alleged in a petition brought under Article 8 of the Family Court Act. Several cases have resulted in summary dismissals of family offense petitions that failed to allege family offenses enumerated in Family Court Act § 821, underscoring the importance of enumerating all offenses listed in Family Court Act §812 in Family Court Act §821 as well. See, e.g., Brennan v. Anesi, 283 A.D.2d 693 (3d Dept. 2001); Jones v. Roper. 187 A.D.2d 593 (2d Dept. 1992); Matter of Paulette PG v. Evan CG, 26 Misc.3d 323 (Fam. Ct., Bronx Co., 2009). This measure, therefore, would add strangulation and criminal obstruction of breathing and blood circulation to the possible allegations set forth in Family Court Act .821.
This measure would have no fiscal impact upon the State, and would take effect immediately.
LEGISLATIVE HISTORY: None. New proposal.
EFFECTIVE DATE: Immediately.
STATE OF NEW YORK ________________________________________________________________________ 4302 2011-2012 Regular Sessions IN SENATE March 28, 2011 ___________Introduced by Sen. SAVINO -- (at request of the Office of Court Adminis- tration) -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary AN ACT to amend the family court act and the domestic relations law, in relation to service of orders of protection in family and supreme court proceedings and allegations in family offense petitions THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision (e) of section 153-b of the family court act, as added by chapter 261 of the laws of 2010, is amended to read as follows: (e) Notwithstanding any other provision of law, FOR THE PURPOSES OF SECTION ONE HUNDRED SIXTY-EIGHT OF THIS ARTICLE AND TO ENSURE EXPEDITED SERVICE BY PEACE AND POLICE OFFICERS IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION, all orders of protection and temporary orders of protection issued pursuant to this act, along with THE SUMMONS, PETITION AND any associated papers
[that may]TO be served simultaneously, may [, for the purposes of section one hundred sixty-eight of this article,]be transmitted by facsimile transmission or electronic means [and may be transmitted by facsimile transmission or electronic means for expedited service in accordance with the provisions of this section]TO A PEACE OR POLICE OFFICER, OR, IN THE CITY OF NEW YORK, TO A DESIGNATED REPRESEN- TATIVE OF THE POLICE DEPARTMENT OF THE CITY OF NEW YORK. For purposes of this section, "facsimile transmission" and "electronic means" shall be as defined in subdivision (f) of rule twenty-one hundred three of the civil practice law and rules. NOTHING IN THIS SUBDIVISION SHALL ALTER OR LIMIT THE REQUIREMENTS FOR SERVICE UNDER THIS SECTION AND THE CIVIL PRACTICE LAW AND RULES. S 2. Paragraph (a) of subdivision 1 of section 821 of the family court act, as amended by chapter 476 of the laws of 2009, is amended to read as follows:EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD10141-01-1 S. 4302 2
(a) An allegation that the respondent assaulted or attempted to assault his or her spouse, or former spouse, parent, child or other member of the same family or household or engaged in disorderly conduct, harassment, sexual misconduct, forcible touching, sexual abuse in the third degree, sexual abuse in the second degree as set forth in subdivi- sion one of section 130.60 of the penal law, stalking, criminal mischief, menacing
[or], reckless endangerment, CRIMINAL OBSTRUCTION OF BREATHING OR BLOOD CIRCULATION OR STRANGULATION toward any such person; S 3. Subdivision (a) of section 826 of the family court act, as amended by chapter 222 of the laws of 1994, is amended to read as follows: (a) Unless the court issues a warrant pursuant to section eight hundred twenty-seven of this part, service of a summons and petition shall be made by delivery of a true copy thereof to the person summoned at least twenty-four hours before the time stated therein for appear- ance. If so requested by the respondent, the court shall not proceed with the hearing or proceeding earlier than three days after such service. WHEN AN ADJOURNMENT IS GRANTED ON REQUEST OF THE RESPONDENT, THE COURT MAY CONTINUE OR GRANT A TEMPORARY ORDER OF PROTECTION. S 4. Paragraph b of subdivision 3-a of section 240 of the domestic relations law, as added by chapter 261 of the laws of 2010, is amended to read as follows: b. Notwithstanding any other provision of law, all orders of protection and temporary orders of protection filed and entered along with any associated papers [that may]TO be served simultaneously may be transmitted by facsimile transmission or electronic means [for]TO A PEACE OR POLICE OFFICER OR, IN THE CITY OF NEW YORK, TO A DESIGNATED REPRESENTATIVE OF THE POLICE DEPARTMENT OF THE CITY OF NEW YORK IN ORDER TO ENSURE expedited service BY PEACE AND POLICE OFFICERS in accordance with the provisions of this subdivision. For purposes of this subdivi- sion, "facsimile transmission" and "electronic means" shall be as defined in subdivision (f) of rule twenty-one hundred three of the civil practice law and rules. NOTHING IN THIS SUBDIVISION SHALL ALTER OR LIMIT THE REQUIREMENTS FOR SERVICE UNDER THIS SECTION AND THE CIVIL PRACTICE LAW AND RULES. S 5. This act shall take effect immediately.