Relates to orders of protection expiration dates and the duration of temporary orders of protection in juvenile delinquency cases; requires expiration dates for orders of protection under certain articles of the family court act to be plainly stated; provides that a temporary order of protection in juvenile delinquency cases may remain in effect for an initial period of up to thirty days and may be extended by the court for good cause, upon notice to the juvenile; provides that the juvenile has a right to counsel upon the extension of the order of protection.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A6545
SPONSOR: Davila TITLE OF BILL:
An act to amend the family court act, in relation to orders of
protection expiration dates and permissible duration of temporary orders
of protection in juvenile delinquency cases in family court
This is one in a series of measures being introduced at the request of
the Acting Chief Administrative Judge upon the recommendation of her
Family Court Advisory and Rules Committee.
It has long been established that as a matter of due process and funda-
mental fairness, all orders of protection - civil and criminal, tempo-
rary and final - must contain expiration dates in order to be enforcea-
ble through contempt, to provide clear notice to all parties and law
enforcement as to what constitutes a violation and to ensure necessary
periodic review. However, our Family Court Advisory and Rules Committee
has identified two significant gaps in the Family Court Act and is thus
proposing a measure to ensure complete clarity on this point.
First, the measure would amend subdivision one of section 154-c of the
Family Court Act to add orders of protection issued in proceedings under
Articles 3, 7, 10 and 10-A - that is, orders in juvenile delinquency,
Persons in Need of Supervision, child abuse and neglect and permanency
planning hearings - to the requirement that all orders "plainly state"
the dates that they expire. Section 154-c had been proposed in 1997 by
the Family Court Advisory and Rules Committee as part of a clarification
of the procedures to be followed by local criminal courts when Family
and Supreme Courts are closed. See L. 1997, c. 186. Its focus was sole-
ly upon the orders of protection included at that time in the statewide
registry of orders of protection established by the Family Protection
and Domestic Violence Intervention Act of 1994
L. 1994, c. 222, 224.
When child abuse and neglect orders of protection were added to the
domestic violence registry
L.2015, c. 492, a reference to Article 10
was not added to Family Court Act § 154-c(1); nor were orders of
protection not entered onto the registry, i.e., in juvenile delinquency,
Persons in Need of Supervision and permanency planning hearings,
included in that section, even though expiration dates a re just as
vital in each of those categories of cases.
Second, this would amend subdivision four of section 304.2 to include
the requirement for an expiration date in temporary and final orders in
juvenile delinquency cases, as well as to specifically address the dura-
tion of temporary orders of protection that are issued prior to the
filing of an accusatory instrument (petition). A temporary order in such
a case may last for an initial period of up to thirty days and may be
extended by the court for good cause for an additional period of up to
thirty days or for a period coincident with the period during which
local probation departments are attempting to adjust or divert the juve-
nile's case.1 If the juvenile successfully completes adjustment prior to
the expiration of the order, the probation service, presentment agency
or attorney for the child would be authorized to move to vacate the
temporary order of protection. One additional extension of up to 30 days
would be permitted upon a judicial finding of a compelling reason, which
must include a determination whether the presentment agency had made
diligent efforts to file a petition promptly and the reasons for any
delay.
Finally, while the initial request for a pre-petition temporary order of
protection may be made ex parte, any application for an extension of
such a temporary order of protection must be on notice to the juvenile.
The juvenile must be afforded an opportunity to be heard and a right to
counsel, including a right to appointment of an attorney for the child
pursuant to section 249 of the Family Court Act.
Often needed in cases of alleged teen dating abuse, including in cases
involving 16- and 17-year olds that are removed from Youth Parts with
referrals to local probation departments for adjustment, orders issued
prior to the filing of a petition implicate significant constitutional
rights of juveniles not yet formally accused of any act of juvenile
delinquency. This is especially true in light of the serious conse-
quences for violations of orders of protection. As Professor Merril
Sobie indicated, in the McKinney's Practice Commentaries to Family Court
Act § 304.2, "considerations of fairness and due process mandate that ex
parte orders be subject to adversarial review." It is critically impor-
tant that such orders be strictly time-limited, that an initial exten-
sion be for good cause and that a further extension must be justified by
a compelling reason, along with a showing by the presentment agency of
why an extension is needed notwithstanding diligent efforts to file a
juvenile delinquency petition on a timely basis. Due process consider-
ations compel all such extensions to be on notice to the juvenile, who
must be afforded an opportunity to be heard with counsel. Moreover, such
orders must be properly terminated, e.g., in cases in which the adjust-
ment process has ended successfully or where it has failed, but where
the presentment agency has declined to prosecute the case. With the
salutary trend toward increased utilization of the adjustment process -
and, at the same time, with the recent pandemic inevitably causing some
delays for the presentment agencies to quickly file juvenile delinquency
petitions involving non-detained youth - the need to carefully delineate
the permissible duration of pre-petition temporary orders of protection
has become ever-more vital.
The Court of Appeals has repeatedly emphasized the necessity of includ-
ing expiration dates and regular judicial review for all categories of
orders of protection. In Matter of Sheena D., 8 N.Y.3d 136 (2007), the
Court of Appeals held that the Family Court lacked authority to issue an
order of protection without an expiration date and without a mechanism
for periodic review. Further, in People v. McLemore, 4 N.Y.3d 821, 822
(2005), the Court explained that "the purpose of fixing expiration dates
in orders of protection is 'to provide certainty for defendants, the
protected victims and witnesses, and law enforcement authorities who may
be called to enforce' the orders," citing its ruling in People v.
Nieves, 2 N.Y.3d 310, 317 (2004). Moreover, with reference to Criminal
Procedure Law § 530.13(5), which, like Family Court Act § 154-c(1),
requires orders of protection to "plainly state the date that such order
expires," the Appellate Division, Third Department, in People v. Cord-
well, 11 A.D.3d 731 (3rd Dept., 2004), stated that the provision "makes
clear that the expiration date is a crucial portion of the order of
protection." Accord, People v. Muchuca, 43 Misc.3d 122 ( Crim. Ct., NY
Co., 2014)(Unrep.).
The constitutional implications of not clearly delineating expiration
dates in orders of protection and, in particular, of not explicitly
delimiting the extension criteria and duration of temporary orders
issued against juveniles not yet charged are unquestionably serious.
Enactment of this measure would rectify these significant gaps in the
Family Court Act.
This measure would take effect immediately.
Family Court Act § 308.1(9) provides that the adjustment period may last
for an initial period of up to three months, which may be extended by
the Family Court for an additional period of up to two months.
LEGISLATIVE HISTORY 2021-22:
A7649 (MA Davila)
Passed
OCA-15(R1)
STATE OF NEW YORK
________________________________________________________________________
6545
2023-2024 Regular Sessions
IN ASSEMBLY
April 14, 2023
___________
Introduced by M. of A. DAVILA -- (at request of the Office of Court
Administration) -- read once and referred to the Committee on Children
and Families
AN ACT to amend the family court act, in relation to orders of
protection expiration dates and permissible duration of temporary
orders of protection in juvenile delinquency cases in family court
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 1 of section 154-c of the family court act, as
2 added by chapter 186 of the laws of 1997, is amended to read as follows:
3 1. Expiration dates. Any order of protection or temporary order of
4 protection issued under articles three, four, five, six [and], seven,
5 eight, ten and ten-A of this act shall plainly state the date that such
6 order expires.
7 § 2. Subdivision 4 of section 304.2 of the family court act, as added
8 by chapter 683 of the laws of 1984, is amended to read as follows:
9 (4) A temporary order of protection issued or extended after the
10 filing of a petition under this article shall contain an expiration date
11 and may remain in effect until an order of disposition is entered.
12 a. A temporary order of protection issued prior to the filing of a
13 petition under this article may remain in effect for an initial period
14 of up to thirty days and may be extended by the court for an additional
15 period of up to thirty days upon good cause or, where the juvenile's
16 case is being adjusted pursuant to section 308.1 of this article, for a
17 period coinciding with such adjustment. If the juvenile successfully
18 completes adjustment prior to the expiration of the order, the probation
19 service, presentment agency or attorney for the child may move to vacate
20 such temporary order of protection upon such successful completion.
21 b. A temporary order of protection issued under this section may be
22 extended for one additional period of up to thirty days upon a finding
23 by the court of a compelling reason. Where the case is not being
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD09756-02-3
A. 6545 2
1 adjusted or where efforts to adjust the case have been terminated unsuc-
2 cessfully, the court must also determine whether the presentment agency
3 has made diligent efforts to file the petition and the reasons for any
4 delay.
5 c. Any application for an extension of a temporary order of protection
6 under this section shall be on notice to the juvenile, who shall have an
7 opportunity to be heard and shall have a right to counsel pursuant to
8 section two hundred forty-nine of this act.
9 § 3. This act shall take effect immediately.
