NY State Senate Bill 2015-S5815A

Senate Bill S5815A

2015-2016 Legislative Session

Provides that where a temporary order of spousal support has not been issued the court may, in addition to issuing a temporary order of protection, issue an order for temporary spousal support

download bill text pdf

Archive: Last Bill Status - In Senate Committee Judiciary Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

Please enter your contact information

First Name

Last Name

Email Address

A valid email address is required.

Home address is used to determine the senate district in which you reside. Your support or opposition to this bill is then shared immediately with the senator who represents you.

Optional services from the NY State Senate:

Create an account. An account allows you to officially support or oppose key legislation, sign petitions with a single click, and follow issues, committees, and bills that matter to you. When you create an account, you agree to this platform's terms of participation.

Include a custom message for your Senator? (Optional)

Enter a message to your senator. Many New Yorkers use this to share the reasoning behind their support or opposition to the bill. Others might share a personal anecdote about how the bill would affect them or people they care about.

Actions

View Actions

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 09, 2016	print number 5815a
Jun 09, 2016	amend and recommit to judiciary
Jan 06, 2016	referred to judiciary
Jun 04, 2015	referred to judiciary

Bill Amendments

Original

A (Active)

2015-S5815 - Details

See Assembly Version of this Bill:: A7032
Current Committee:: Senate Judiciary
Law Section:: Family Court Act
Laws Affected:: Amd §§828 & 842, Fam Ct Act

2015-S5815 - Summary

Provides that where a temporary order of spousal support has not been issued the court may, in addition to issuing a temporary order of protection, issue an order for temporary spousal support.

2015-S5815 - Sponsor Memo

                                 BILL NUMBER:  S5815                Revised 02/26/16

 TITLE OF BILL :

An act to amend the family court act, in relation to orders for
temporary spousal support in conjunction with temporary and final
orders of protection in family court

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.

The Family Protection and Domestic Violence Intervention Act of 1994
(L. 1994, c. 222) provided authority for Family Courts, when issuing
orders of protection in family offense cases, to issue temporary
orders of child support. This has provided a needed life-saver to
petitioners in family offense cases at a particularly vulnerable point
in their lives, that is, when they are taking steps to escape alleged
domestic violence. Although separate child support proceedings, with
attendant notice to the support obligor and an opportunity to be
heard, are necessary for final orders of support to be issued, this
provision has proven invaluable in getting the process started quickly
with a temporary order in place.

Experience during the two decades under the statute has revealed a
significant gap - that is, that it does not provide a similar

emergency safety net to married petitioners in family offense
proceedings who do not have minor, dependent children. As the
Appellate Division, Third Department noted, in Matter of Childers v.
Childers, 260 A.D.2d 767 (3d Dept., 1999), child support, but not
spousal support, may be ordered in conjunction with the issuance of an
order of protection. As has been evident in cases in the Unified Court
System's Integrated Domestic Violence Courts, petitioners in need of
temporary spousal support are often older litigants in long-term
marriages, who are victims of domestic violence, frequently including
financial abuse. They frequently lack means of their own to cover
immediate expenses, particularly the expenses of relocation, as they
seek safe refuges from violence.

This measure, which would follow the law in at least 36 other
states,{1} would remedy this gap. It would amend sections 828 and 842
of the Family Court Act to provide authority for the Family Court,
when issuing temporary and final orders of protection, to order
temporary spousal maintenance. As is the case with temporary orders of
child support issued in conjunction with orders of protection, the
measure reflects the fact that financial disclosure will most often
not yet have taken place. It thus permits issuance of a temporary
order of spousal support "notwithstanding that information with
respect to income and assets of the respondent may be unavailable."
Additionally, as is the case with orders of child support, the measure
provides that the spousal maintenance matter be set down for further
proceedings under Article 4 of the Family Court Act.

As was recognized by the Legislature in enacting recent legislation
(L. 2013, c. 526), economic abuse is a significant form of domestic
violence and is often inflicted upon elderly, vulnerable family
members. See Memo in Support of A. 7400 (L. 2013, c. 526). As recently
documented in Under the Radar: The New York State Elder Abuse Study:
Final Report, financial abuse is the most common form of abuse
reported by the elderly.{2} Even where financial abuse has not been
alleged, a married family offense petitioner's lack of income or
access to family assets may impede his or her ability to escape to a
place of safety, free of domestic violence, and is frequently the
reason many domestic violence victims return repeatedly to their
abusers before being able to permanently extricate themselves from
abusive situations. Often a victim needs a temporary life-line, some
means of securing resources to tide him or her over while seeking a
more long-term order in a Supreme or Family Court proceeding. This
measure would thus provide much needed emergency relief.

This measure, which would have no fiscal impact, would take effect 90
days after it shall have become a law.

{1} The American Bar Association Commission on Domestic and Sexual
Violence has identified the following states as explicitly authorizing
orders of temporary spousal support to be issued in conjunction with
civil protection orders: Alabama, Alaska, Arkansas, California,
Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky,
Louisiana, Maine, Maryland, Massachusetts, Minnesota, Mississippi,
Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico,
North Carolina, North Dakota, Ohio, Pennsylvania, South Carolina,
South Dakota, Tennessee, Texas, Utah, Vermont, West Virginia, and
Wyoming. See Domestic Violence Civil Protection Orders (CPOs) By State
(American Bar Association, (March, 2014), available at:
http://www.americanbar.org/content
/dam/aba/administrative/domestic_violencel
/Resources/statutorysummarycharts/ 2014%20CP0%20Availability%
20Chart.authcheckdam.pdf (reviewed Dec. 19, 2014).

{2} See Under the Radar: The New York State Elder Abuse Study: Final
Report (Lifespan & Cornell-Weill Medical Center, May 2011), available
at: http://ocfs.ny.gov/main/reports/
Under%20the%20Radar%2005%2012%2011%20final%2Oreport.pdf (reviewed Jan.
6, 2014).

 2014 LEGISLATIVE HISTORY :

OCA 2014-80
Assembly 9465 (M. of A. Mayer) (reported ref to Codes)

 2015-16 LEGISLATIVE HISTORY :

Senate 5815 (Sen. Savino) (ref to Judiciary)
Assembly 7032 (M. of A. Mayer) (reported ref to Codes)

2015-S5815 - Bill Text download pdf

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

                                  5815

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                              June 4, 2015
                               ___________

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, in relation to orders  for  tempo-
  rary spousal support in conjunction with temporary and final orders of
  protection in family court

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The section heading of section 828 of the family court act,
as amended by chapter 222 of the laws of 1994,  is  amended  and  a  new
subdivision 5 is added to read as follows:
  Temporary  order  of  protection;  temporary  [order] ORDERS for child
support AND SPOUSAL MAINTENANCE.
  5.NOTWITHSTANDING THE PROVISIONS OF SECTION EIGHT HUNDRED SEVENTEEN OF
THIS ARTICLE, WHERE A TEMPORARY ORDER OF SPOUSAL SUPPORT HAS NOT ALREADY
BEEN ISSUED, THE COURT MAY, IN ADDITION TO THE ISSUANCE OF  A  TEMPORARY
ORDER  OF PROTECTION PURSUANT TO THIS SECTION, ISSUE AN ORDER FOR TEMPO-
RARY SPOUSAL SUPPORT IN ACCORDANCE WITH ARTICLE FOUR OF  THIS  ACT.  THE
COURT  MAY  MAKE  AN ORDER FOR TEMPORARY SPOUSAL SUPPORT NOTWITHSTANDING
THAT INFORMATION WITH RESPECT TO INCOME AND ASSETS OF THE RESPONDENT MAY
BE UNAVAILABLE. UPON MAKING  AN  ORDER  FOR  TEMPORARY  SPOUSAL  SUPPORT
PURSUANT  TO  THIS  SUBDIVISION, THE COURT SHALL SET THE SPOUSAL SUPPORT
MATTER DOWN FOR FURTHER PROCEEDINGS IN ACCORDANCE WITH ARTICLE  FOUR  OF
THIS ACT.
  S 2. Section 842 of the family court act, as amended by chapter 526 of
the  laws  of  2013 and the closing paragraph as added by chapter 480 of
the laws of 2013, is amended to read as follows:
  S 842. Order of protection. 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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09771-01-5

S. 5815                             2

upon (i) a finding by the court on the record of the existence of aggra-
vating 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 court may also, upon motion, extend
the order of protection for a reasonable period of time upon  a  showing
of  good  cause  or  consent of the parties. The fact that abuse has not
occurred during the pendency of an order shall not, in  itself,  consti-
tute  sufficient  ground for denying or failing to extend the order. The
court must articulate a basis for its decision on the record. The  dura-
tion of any temporary order shall not by itself be a factor in determin-
ing  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:
  (a) to stay away from the home, school, business or place  of  employ-
ment  of  any  other  party,  the other spouse, the other parent, or the
child, and to stay away from any other specific location  designated  by
the court, provided that the court shall make a determination, and shall
state such determination in a written decision or on the record, whether
to  impose  a  condition pursuant to this subdivision, provided further,
however, that failure to make such a determination shall not affect  the
validity  of such order of protection. In making such determination, the
court shall consider, but shall not  be  limited  to  consideration  of,
whether  the order of protection is likely to achieve its purpose in the
absence of  such  a  condition,  conduct  subject  to  prior  orders  of
protection,  prior incidents of abuse, extent of past or present injury,
threats, drug or alcohol abuse, and access to weapons;
  (b) to permit a parent, or a person entitled to visitation by a  court
order or a separation agreement, to visit the child at stated periods;
  (c)  to refrain from committing a family offense, as defined in subdi-
vision one of section eight hundred twelve of this [act] ARTICLE, or any
criminal offense against the  child  or  against  the  other  parent  or
against  any  person  to  whom  custody of the child is awarded, or from
harassing, intimidating or threatening such persons;
  (d) to permit a designated party to enter the residence during a spec-
ified period of time in order to remove personal belongings not in issue
in this proceeding or in any other proceeding or action under  this  act
or the domestic relations law;
  (e)  to  refrain  from  acts  of commission or omission that create an
unreasonable risk to the health, safety or welfare of a child;
  (f) to pay the reasonable counsel fees and disbursements  involved  in
obtaining  or enforcing the order of the person who is protected by such
order if such order is issued or enforced;
  (g) to require the respondent to participate in a batterer's education
program designed to help end violent behavior, which may include  refer-
ral to drug and alcohol counselling, and to pay the costs thereof if the
person  has  the means to do so, provided however that nothing contained
herein shall be deemed to require payment  of  the  costs  of  any  such
program by the petitioner, the state or any political subdivision there-
of;
  (h)  to  provide,  either  directly  or by means of medical and health
insurance, for expenses incurred for medical care and treatment  arising

S. 5815                             3

from the incident or incidents forming the basis for the issuance of the
order;
  (i)  1.  to  refrain  from  intentionally injuring or killing, without
justification, any companion animal the respondent knows  to  be  owned,
possessed,  leased,  kept  or  held  by  the petitioner or a minor child
residing in the household.
  2. "Companion animal", as used in this section, shall  have  the  same
meaning  as  in  subdivision  five of section three hundred fifty of the
agriculture and markets law;
  (j) 1. to promptly return specified identification  documents  to  the
protected  party,  in  whose  favor the order of protection or temporary
order of protection is issued; provided, however, that such  order  may:
(A)  include  any appropriate provision designed to ensure that any such
document is available for use as evidence in this proceeding, and avail-
able if necessary for legitimate use by  the  party  against  whom  such
order  is  issued; and (B) specify the manner in which such return shall
be accomplished.
  2. For purposes of this subdivision, "identification  document"  shall
mean  any of the following: (A) exclusively in the name of the protected
party: birth certificate, passport, social security card, health  insur-
ance  or  other  benefits  card, a card or document used to access bank,
credit or other financial accounts or records, tax returns, any driver's
license, and immigration documents including but not limited to a United
States permanent resident card and  employment  authorization  document;
and (B) upon motion and after notice and an opportunity to be heard, any
of  the  following, including those that may reflect joint use or owner-
ship, that the court determines  are  necessary  and  are  appropriately
transferred  to the protected party: any card or document used to access
bank, credit or other financial accounts or records,  tax  returns,  and
any other identifying cards and documents; and
  (k)  to  observe such other conditions as are necessary to further the
purposes of protection.
  The court may also award custody of the child, during the term of  the
order  of  protection  to  either  parent, or to an appropriate relative
within the second degree. Nothing in this section gives the court  power
to  place  or board out any child or to commit a child to an institution
or agency.
  Notwithstanding the provisions of section eight hundred  seventeen  of
this  article,  where a temporary order of child support has not already
been issued, the court may in addition to the issuance of  an  order  of
protection  pursuant to this section, issue an order for temporary child
support in an amount sufficient to meet the needs of the child,  without
a  showing of immediate or emergency need. The court shall make an order
for  temporary  child  support  notwithstanding  that  information  with
respect to income and assets of the respondent may be unavailable. Where
such information is available, the court may make an award for temporary
child  support  pursuant  to the formula set forth in subdivision one of
section four hundred thirteen of this act. Temporary orders  of  support
issued  pursuant  to  this  article  shall be deemed to have been issued
pursuant to section four hundred thirteen of this act.
  Upon making an order for temporary  child  support  pursuant  to  this
subdivision,  the  court shall advise the petitioner of the availability
of child support enforcement services by the support collection unit  of
the  local department of social services, to enforce the temporary order
and to assist in securing continued child support,  and  shall  set  the

S. 5815                             4

support  matter  down for further proceedings in accordance with article
four of this act.
  Where  the  court determines that the respondent has employer-provided
medical insurance, the court may further direct, as part of an order  of
temporary  support  under  this  subdivision,  that  a  medical  support
execution be  issued  and  served  upon  the  respondent's  employer  as
provided  for  in section fifty-two hundred forty-one of the civil prac-
tice law and rules.
  NOTWITHSTANDING THE PROVISIONS OF SECTION EIGHT HUNDRED  SEVENTEEN  OF
THIS ARTICLE, WHERE A TEMPORARY ORDER OF SPOUSAL SUPPORT HAS NOT ALREADY
BEEN  ISSUED,  THE COURT MAY, IN ADDITION TO THE ISSUANCE OF AN ORDER OF
PROTECTION PURSUANT TO THIS SECTION, ISSUE AN ORDER FOR TEMPORARY SPOUS-
AL SUPPORT IN ACCORDANCE WITH ARTICLE FOUR OF THIS ACT.   THE COURT  MAY
MAKE  AN ORDER FOR TEMPORARY SPOUSAL SUPPORT NOTWITHSTANDING THAT INFOR-
MATION WITH RESPECT TO INCOME  AND  ASSETS  OF  THE  RESPONDENT  MAY  BE
UNAVAILABLE. UPON MAKING AN ORDER FOR TEMPORARY SPOUSAL SUPPORT PURSUANT
TO THIS SUBDIVISION, THE COURT SHALL SET THE SPOUSAL SUPPORT MATTER DOWN
FOR FURTHER PROCEEDINGS IN ACCORDANCE WITH ARTICLE FOUR OF THIS ACT.
  In  any  proceeding in which an order of protection or temporary order
of protection or a warrant has been issued under this section, the clerk
of the court shall issue to the petitioner and respondent and his OR HER
counsel and to any other person affected by the  order  a  copy  of  the
order  of  protection or temporary order of protection and ensure that a
copy of the order of protection or temporary order of protection [be] IS
transmitted to the local correctional facility where the  individual  is
or  will be detained, the state or local correctional facility where the
individual is or will  be  imprisoned,  and  the  supervising  probation
department  or  the  department of corrections and community supervision
where the individual is under probation or parole supervision.
  Notwithstanding the foregoing provisions, an order of  protection,  or
temporary order of protection where applicable, may be entered against a
former  spouse  and  persons  who  have a child in common, regardless of
whether such persons have been married or have  lived  together  at  any
time,  or against a member of the same family or household as defined in
subdivision one of section eight hundred twelve of this article.
  In addition to the foregoing provisions, the court may issue an order,
pursuant to section two hundred twenty-seven-c of the real property law,
authorizing the party for whose benefit any order of protection has been
issued to terminate a lease or rental agreement pursuant to section  two
hundred twenty-seven-c of the real property law.
  The  protected  party in whose favor the order of protection or tempo-
rary order of protection is issued may not be held to violate  an  order
issued  in his or her favor nor may such protected party be arrested for
violating such order.
  S 3. This act shall take effect on the ninetieth day  after  it  shall
have become a law.

2015-S5815A (ACTIVE) - Details

See Assembly Version of this Bill:: A7032
Current Committee:: Senate Judiciary
Law Section:: Family Court Act
Laws Affected:: Amd §§828 & 842, Fam Ct Act

2015-S5815A (ACTIVE) - Summary

Provides that where a temporary order of spousal support has not been issued the court may, in addition to issuing a temporary order of protection, issue an order for temporary spousal support.

2015-S5815A (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S5815A

 TITLE OF BILL :  An act to amend the family court act, in relation to
orders for temporary spousal support in conjunction with temporary and
final orders of protection in family court

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Family
Court Advisory and Rules Committee.

The Family Protection and Domestic Violence Intervention Act of 1994
(L. 1994, c. 222) provided authority for Family Courts, when issuing
orders of protection in family offense cases, to issue temporary
orders of child support. This has provided a needed life-saver to
petitioners in family offense cases at a particularly vulnerable point
in their lives, that is, when they are taking steps to escape alleged
domestic violence. This provision has proven invaluable in getting the
process started quickly with a temporary order in place.

Experience during the two decades under the statute has revealed a
significant gap - that is, that it does not provide an analagous
safety net to married petitioners in family offense proceedings who do
not have minor, dependent children. As the Appellate Division, Third
Department noted, in Matter of Childers v. Childers, 260 A.D.2d 767
(3d Dept., 1999), child support, but not spousal support, may be
ordered in conjunction with the issuance of an order of protection.

As has been evident in cases in the Unified Court System's Integrated
Domestic Violence Courts, petitioners in need of temporary spousal
support are often older litigants in long-term marriages, who are
victims of domestic violence, frequently including financial abuse.
They frequently lack means of their own to cover immediate expenses,
particularly the expenses of relocation, as they seek safe refuges
from violence.

This measure would remedy this gap. It would amend sections 828 and
842 of the Family Court Act to provide authority for the Family Court,
when issuing temporary and final orders of protection, to direct the
parties to appear, in the same action, within seven business days of
the issuance of the temporary order of protection for consideration of
an order of temporary spousal support. While the parties will be
directed to appear with information with respect to income and assets,
the measure permits issuance of a temporary order of spousal support
on the return date "notwithstanding the respondent's default upon
notice and notwithstanding that information with respect to income and
assets of the petitioner or respondent may be unavailable." Upon
making an order for temporary spousal support, the court shall set the
spousal support matter down for determination of the final order.

As was recognized by the Legislature in enacting recent legislation
(L. 2013, c. 526), economic abuse is a significant form of domestic
violence and is often inflicted upon elderly, vulnerable family
members. See Memo in Support of A. 7400 (L. 2013, c. 526). As recently
documented in Under the Radar: The New York State Elder Abuse Study:
Final Report, financial abuse is the most common form of abuse
reported by the elderly.* Even where financial abuse has not been
alleged, a married family offense petitioner's lack of income or
access to family assets may impede his or her ability to escape to a
place of safety, free of domestic violence, and is frequently the
reason many domestic violence victims return repeatedly to their
abusers before being able to permanently extricate themselves from
abusive situations. Often a victim needs a temporary life-line, some
means of securing resources to tide him or her over while seeking a
more long-term order in a Supreme or Family Court proceeding. This
measure would thus provide much needed emergency relief.


This measure, which would have no fiscal impact, would take effect 90
days after it shall have become a law.

 2014 LEGISLATIVE HISTORY :

OCA 2014-80
Assembly 9465 (M. of A. Mayer) (reported ref to Codes)

 2015-16 LEGISLATIVE HISTORY :

Senate 5815 (Sen. Savino) (ref to Judiciary)
Assembly 7032 (M. of A. Mayer) (reported ref to Codes)


*See Under the Radar: The New York State Elder Abuse Study: Final
Report (Lifespan & Cornell-Weill Medical Center, May 2011), available
at:  http://ocfs.ny.gov/mainireports/Under%20the%20Radar%2005%2012%201
I %20final%20report.pdf (reviewed Jan. 6, 2014).

2015-S5815A (ACTIVE) - Bill Text download pdf

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

                                 5815--A

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                              June 4, 2015
                               ___________

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 -- recommitted to the  Commit-
  tee 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, in relation to orders for tempo-
  rary spousal support in conjunction with temporary and final orders of
  protection in family court

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The section heading of section 828 of the family court act,
as  amended  by  chapter  222  of the laws of 1994, is amended and a new
subdivision 5 is added to read as follows:
  Temporary order of protection;  temporary  [order]  ORDERS  for  child
support AND SPOUSAL SUPPORT.
  5.NOTWITHSTANDING THE PROVISIONS OF SECTION EIGHT HUNDRED SEVENTEEN OF
THIS ARTICLE, WHERE A TEMPORARY ORDER OF SPOUSAL SUPPORT HAS NOT ALREADY
BEEN  ISSUED,  THE COURT MAY, IN ADDITION TO THE ISSUANCE OF A TEMPORARY
ORDER OF PROTECTION PURSUANT TO THIS SECTION, ISSUE AN  ORDER  DIRECTING
THE  PARTIES TO APPEAR WITHIN SEVEN BUSINESS DAYS OF THE ISSUANCE OF THE
ORDER IN THE FAMILY COURT, IN THE SAME ACTION, FOR CONSIDERATION  OF  AN
ORDER  FOR  TEMPORARY SPOUSAL SUPPORT IN ACCORDANCE WITH ARTICLE FOUR OF
THIS ACT.  IF THE COURT DIRECTS THE PARTIES  TO  SO  APPEAR,  THE  COURT
SHALL  DIRECT  THE  PARTIES  TO  APPEAR WITH INFORMATION WITH RESPECT TO
INCOME AND ASSETS, BUT A TEMPORARY  ORDER  OF  SPOUSAL  SUPPORT  MAY  BE
ISSUED  PURSUANT TO ARTICLE FOUR OF THIS ACT ON THE RETURN DATE NOTWITH-
STANDING THE RESPONDENT'S DEFAULT UPON NOTICE AND  NOTWITHSTANDING  THAT
INFORMATION  WITH  RESPECT  TO  INCOME  AND  ASSETS OF THE PETITIONER OR
RESPONDENT MAY BE UNAVAILABLE.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09771-07-6

S. 5815--A                          2

  S 2. Section 842 of the family court act, as amended by chapter 526 of
the laws of 2013 and the closing paragraph as added by  chapter  480  of
the laws of 2013, is amended to read as follows:
  S 842. Order of protection. 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 aggra-
vating 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 court may also,  upon  motion,  extend
the  order  of protection for a reasonable period of time upon a showing
of good cause or consent of the parties. The fact  that  abuse  has  not
occurred  during  the pendency of an order shall not, in itself, consti-
tute sufficient ground for denying or failing to extend the  order.  The
court  must articulate a basis for its decision on the record. The dura-
tion of any temporary order shall not by itself be a factor in determin-
ing 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:
  (a)  to  stay away from the home, school, business or place of employ-
ment of any other party, the other spouse,  the  other  parent,  or  the
child,  and  to stay away from any other specific location designated by
the court, provided that the court shall make a determination, and shall
state such determination in a written decision or on the record, whether
to impose a condition pursuant to this  subdivision,  provided  further,
however,  that failure to make such a determination shall not affect the
validity of such order of protection. In making such determination,  the
court  shall  consider,  but  shall  not be limited to consideration of,
whether the order of protection is likely to achieve its purpose in  the
absence  of  such  a  condition,  conduct  subject  to  prior  orders of
protection, prior incidents of abuse, extent of past or present  injury,
threats, drug or alcohol abuse, and access to weapons;
  (b)  to permit a parent, or a person entitled to visitation by a court
order or a separation agreement, to visit the child at stated periods;
  (c) to refrain from committing a family offense, as defined in  subdi-
vision one of section eight hundred twelve of this [act] ARTICLE, or any
criminal  offense  against  the  child  or  against  the other parent or
against any person to whom custody of the  child  is  awarded,  or  from
harassing, intimidating or threatening such persons;
  (d) to permit a designated party to enter the residence during a spec-
ified period of time in order to remove personal belongings not in issue
in  this  proceeding or in any other proceeding or action under this act
or the domestic relations law;
  (e) to refrain from acts of commission  or  omission  that  create  an
unreasonable risk to the health, safety or welfare of a child;
  (f)  to  pay the reasonable counsel fees and disbursements involved in
obtaining or enforcing the order of the person who is protected by  such
order if such order is issued or enforced;
  (g) to require the respondent to participate in a batterer's education
program  designed to help end violent behavior, which may include refer-
ral to drug and alcohol counselling, and to pay the costs thereof if the

S. 5815--A                          3

person has the means to do so, provided however that  nothing  contained
herein  shall  be  deemed  to  require  payment of the costs of any such
program by the petitioner, the state or any political subdivision there-
of;
  (h)  to  provide,  either  directly  or by means of medical and health
insurance, for expenses incurred for medical care and treatment  arising
from the incident or incidents forming the basis for the issuance of the
order;
  (i)  1.  to  refrain  from  intentionally injuring or killing, without
justification, any companion animal the respondent knows  to  be  owned,
possessed,  leased,  kept  or  held  by  the petitioner or a minor child
residing in the household.
  2. "Companion animal", as used in this section, shall  have  the  same
meaning  as  in  subdivision  five of section three hundred fifty of the
agriculture and markets law;
  (j) 1. to promptly return specified identification  documents  to  the
protected  party,  in  whose  favor the order of protection or temporary
order of protection is issued; provided, however, that such  order  may:
(A)  include  any appropriate provision designed to ensure that any such
document is available for use as evidence in this proceeding, and avail-
able if necessary for legitimate use by  the  party  against  whom  such
order  is  issued; and (B) specify the manner in which such return shall
be accomplished.
  2. For purposes of this subdivision, "identification  document"  shall
mean  any of the following: (A) exclusively in the name of the protected
party: birth certificate, passport, social security card, health  insur-
ance  or  other  benefits  card, a card or document used to access bank,
credit or other financial accounts or records, tax returns, any driver's
license, and immigration documents including but not limited to a United
States permanent resident card and  employment  authorization  document;
and (B) upon motion and after notice and an opportunity to be heard, any
of  the  following, including those that may reflect joint use or owner-
ship, that the court determines  are  necessary  and  are  appropriately
transferred  to the protected party: any card or document used to access
bank, credit or other financial accounts or records,  tax  returns,  and
any other identifying cards and documents; and
  (k)  to  observe such other conditions as are necessary to further the
purposes of protection.
  The court may also award custody of the child, during the term of  the
order  of  protection  to  either  parent, or to an appropriate relative
within the second degree. Nothing in this section gives the court  power
to  place  or board out any child or to commit a child to an institution
or agency.
  Notwithstanding the provisions of section eight hundred  seventeen  of
this  article,  where a temporary order of child support has not already
been issued, the court may in addition to the issuance of  an  order  of
protection  pursuant to this section, issue an order for temporary child
support in an amount sufficient to meet the needs of the child,  without
a  showing of immediate or emergency need. The court shall make an order
for  temporary  child  support  notwithstanding  that  information  with
respect to income and assets of the respondent may be unavailable. Where
such information is available, the court may make an award for temporary
child  support  pursuant  to the formula set forth in subdivision one of
section four hundred thirteen of this act. Temporary orders  of  support
issued  pursuant  to  this  article  shall be deemed to have been issued
pursuant to section four hundred thirteen of this act.

S. 5815--A                          4

  Upon making an order for temporary  child  support  pursuant  to  this
subdivision,  the  court shall advise the petitioner of the availability
of child support enforcement services by the support collection unit  of
the  local department of social services, to enforce the temporary order
and  to  assist  in  securing continued child support, and shall set the
support matter down for further proceedings in accordance  with  article
four of this act.
  Where  the  court determines that the respondent has employer-provided
medical insurance, the court may further direct, as part of an order  of
temporary  support  under  this  subdivision,  that  a  medical  support
execution be  issued  and  served  upon  the  respondent's  employer  as
provided  for  in section fifty-two hundred forty-one of the civil prac-
tice law and rules.
  NOTWITHSTANDING THE PROVISIONS OF SECTION EIGHT HUNDRED  SEVENTEEN  OF
THIS ARTICLE, WHERE A TEMPORARY ORDER OF SPOUSAL SUPPORT HAS NOT ALREADY
BEEN  ISSUED,  THE COURT MAY, IN ADDITION TO THE ISSUANCE OF AN ORDER OF
PROTECTION PURSUANT TO  THIS  SECTION,  ISSUE  AN  ORDER  DIRECTING  THE
PARTIES  TO  APPEAR  WITHIN  SEVEN  BUSINESS DAYS OF THE ISSUANCE OF THE
ORDER IN THE FAMILY COURT, IN THE SAME ACTION, FOR CONSIDERATION  OF  AN
ORDER  FOR  TEMPORARY SPOUSAL SUPPORT IN ACCORDANCE WITH ARTICLE FOUR OF
THIS ACT.  IF THE COURT DIRECTS THE PARTIES  TO  SO  APPEAR,  THE  COURT
SHALL  DIRECT  THE  PARTIES  TO  APPEAR WITH INFORMATION WITH RESPECT TO
INCOME AND ASSETS, BUT A TEMPORARY  ORDER  OF  SPOUSAL  SUPPORT  MAY  BE
ISSUED  PURSUANT TO ARTICLE FOUR OF THIS ACT ON THE RETURN DATE NOTWITH-
STANDING THE RESPONDENT'S DEFAULT UPON NOTICE AND  NOTWITHSTANDING  THAT
INFORMATION  WITH  RESPECT  TO  INCOME  AND  ASSETS OF THE PETITIONER OR
RESPONDENT MAY BE UNAVAILABLE.
  In any proceeding in which an order of protection or  temporary  order
of protection or a warrant has been issued under this section, the clerk
of the court shall issue to the petitioner and respondent and his OR HER
counsel  and  to  any  other  person affected by the order a copy of the
order of protection or temporary order of protection and ensure  that  a
copy of the order of protection or temporary order of protection [be] IS
transmitted  to  the local correctional facility where the individual is
or will be detained, the state or local correctional facility where  the
individual  is  or  will  be  imprisoned,  and the supervising probation
department or the department of corrections  and  community  supervision
where the individual is under probation or parole supervision.
  Notwithstanding  the  foregoing provisions, an order of protection, or
temporary order of protection where applicable, may be entered against a
former spouse and persons who have a  child  in  common,  regardless  of
whether  such  persons  have  been married or have lived together at any
time, or against a member of the same family or household as defined  in
subdivision one of section eight hundred twelve of this article.
  In addition to the foregoing provisions, the court may issue an order,
pursuant to section two hundred twenty-seven-c of the real property law,
authorizing the party for whose benefit any order of protection has been
issued  to terminate a lease or rental agreement pursuant to section two
hundred twenty-seven-c of the real property law.
  The protected party in whose favor the order of protection  or  tempo-
rary  order  of protection is issued may not be held to violate an order
issued in his or her favor nor may such protected party be arrested  for
violating such order.
  S  3.  This  act shall take effect on the ninetieth day after it shall
have become a law.

Comments

Open Legislation is a forum for New York State legislation. All comments are subject to review and community moderation is encouraged.

Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity, hate or toxic speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Attempts to intimidate and silence contributors or deliberately deceive the public, including excessive or extraneous posting/posts, or coordinated activity, are prohibited and may result in the temporary or permanent banning of the user. Comment moderation is generally performed Monday through Friday. By contributing or voting you agree to the Terms of Participation and verify you are over 13.

Create an account. An account allows you to sign petitions with a single click, officially support or oppose key legislation, and follow issues, committees, and bills that matter to you. When you create an account, you agree to this platform's terms of participation.