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

                                 7032--A

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                             April 20, 2015
                               ___________

Introduced  by M. of A. MAYER, WEINSTEIN -- (at request of the Office of
  Court Administration) -- read once and referred to  the  Committee  on
  Judiciary  --  recommitted to the Committee on Judiciary in accordance
  with Assembly Rule 3, sec. 2 -- reported and referred to the Committee
  on Codes -- 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.
                                                           LBD09771-06-6

              

A. 7032--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

A. 7032--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.

A. 7032--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.