Bill S5696A-2009

Provides that orders of protection shall not be denied solely on the basis that the events alleged are not contemporaneous with the application therefor

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.

Details

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

Meetings

Votes

VOTE: COMMITTEE VOTE: - Judiciary - Jan 26, 2010
Ayes (18): Sampson, Onorato, Schneiderman, Hassell-Thompson, Klein, Adams, Espada, Breslin, Dilan, Savino, Perkins, Maziarz, DeFrancisco, Volker, Bonacic, Winner, Nozzolio, Ranzenhofer
Ayes W/R (4): Diaz, Saland, LaValle, Lanza
VOTE: COMMITTEE VOTE: - Codes - May 24, 2010
Ayes (14): Schneiderman, Breslin, Duane, Parker, Huntley, Sampson, Klein, Perkins, Squadron, Volker, DeFrancisco, Bonacic, Golden, Lanza
Ayes W/R (1): Saland
Nays (1): Flanagan

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.

Text

STATE OF NEW YORK ________________________________________________________________________ 5696--A 2009-2010 Regular Sessions IN 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
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
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.

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