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A08393 Summary:

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A08393 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         8393--A
                                                                Cal. No. 583
 
                               2009-2010 Regular Sessions
 
                   IN ASSEMBLY
 
                                      May 19, 2009
                                       ___________
 
        Introduced  by M. of A. WEINSTEIN, JOHN -- read once and referred to the
          Committee on Judiciary -- reported from committee, advanced to a third
          reading, amended and ordered reprinted, retaining  its  place  on  the
          order of third reading
 

        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:
 
     1    Section  1. Section 446 of the family court act is amended by adding a
     2  new closing paragraph to read as follows:
     3    In any proceeding pursuant to this article, a court shall not deny  an
     4  order of protection, or dismiss an application for such an order, solely
     5  on  the basis that the acts or events alleged are not relatively contem-
     6  poraneous with the date of the application  or  the  conclusion  of  the
     7  action.  The  duration  of  any temporary order shall not by itself be a
     8  factor in determining the length or issuance of any final order.

     9    § 2. Section 551 of the family court act is amended by  adding  a  new
    10  closing paragraph to read as follows:
    11    In  any proceeding pursuant to this article, a court shall not deny an
    12  order of protection, or dismiss an application for such an order, solely
    13  on the basis that the acts or events alleged are not relatively  contem-
    14  poraneous  with  the  date  of  the application or the conclusion of the
    15  action. The duration of any temporary order shall not  by  itself  be  a
    16  factor in determining the length or issuance of any final order.
    17    §  3.  Section  656 of the family court act is amended by adding a new
    18  closing paragraph to read as follows:
    19    In any proceeding pursuant to this article, a court shall not deny  an

    20  order of protection, or dismiss an application for such an order, solely
    21  on  the basis that the acts or events alleged are not relatively contem-
    22  poraneous with the date of the application  or  the  conclusion  of  the
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD11924-02-0
        A. 8393--A                          2
 
     1  action.  The  duration  of  any temporary order shall not by itself be a
     2  factor in determining the length or issuance of any final order.
     3    §  4.  Section  759 of the family court act is amended by adding a new
     4  closing paragraph to read as follows:

     5    In any proceeding pursuant to this article, a court shall not deny  an
     6  order of protection, or dismiss an application for such an order, solely
     7  on  the basis that the acts or events alleged are not relatively contem-
     8  poraneous with the date of the application  or  the  conclusion  of  the
     9  action.  The  duration  of  any temporary order shall not by itself be a
    10  factor in determining the length or issuance of any final order.
    11    § 5. The opening paragraph of subdivision 1  of  section  812  of  the
    12  family  court  act,  as  amended  by chapter 476 of the laws of 2009, is
    13  amended to read as follows:
    14    The family court and the criminal courts shall have concurrent  juris-
    15  diction  over  any  proceeding  concerning  acts  which would constitute

    16  disorderly conduct, harassment in the first degree,  harassment  in  the
    17  second  degree,  aggravated  harassment  in  the  second  degree, sexual
    18  misconduct, forcible touching, sexual abuse in the third degree,  sexual
    19  abuse  in  the  second degree as set forth in subdivision one of section
    20  130.60 of the penal law, stalking in the first degree, stalking  in  the
    21  second  degree,  stalking  in  the  third degree, stalking in the fourth
    22  degree, criminal mischief, menacing in the second  degree,  menacing  in
    23  the  third  degree, reckless endangerment, assault in the second degree,
    24  assault in the third degree or an attempted assault between  spouses  or
    25  former  spouses,  or  between parent and child or between members of the
    26  same family or household except that if  the  respondent  would  not  be
    27  criminally responsible by reason of age pursuant to section 30.00 of the

    28  penal  law, then the family court shall have exclusive jurisdiction over
    29  such proceeding. Notwithstanding a complainant's election to proceed  in
    30  family  court,  the criminal court shall not be divested of jurisdiction
    31  to hear a family offense proceeding pursuant to this section.    In  any
    32  proceeding  pursuant to this article, a court shall not deny an order of
    33  protection, or dismiss a petition, solely on the basis that the acts  or
    34  events  alleged  are not relatively contemporaneous with the date of the
    35  petition, the conclusion of the fact-finding or the  conclusion  of  the
    36  dispositional   hearing.  For  purposes  of  this  article,  "disorderly
    37  conduct" includes disorderly conduct not in a public place. For purposes
    38  of this article, "members of the same family or  household"  shall  mean
    39  the following:

    40    §  6. The opening paragraph of section 842 of the family court act, as
    41  amended by chapter 579 of the laws  of  2003,  is  amended  to  read  as
    42  follows:
    43    An  order  of protection under section eight hundred forty-one of this
    44  part shall set forth reasonable conditions of behavior  to  be  observed
    45  for  a period not in excess of two years by the petitioner or respondent
    46  or for a period not in excess of five years upon (i) a  finding  by  the
    47  court  on  the  record  of the existence of aggravating circumstances as
    48  defined in paragraph (vii) of subdivision (a) of section  eight  hundred
    49  twenty-seven  of  this  article;  or  (ii) a finding by the court on the
    50  record that the conduct alleged in the petition is  in  violation  of  a
    51  valid  order  of  protection.  Any  finding of aggravating circumstances
    52  pursuant to this section shall be stated on  the  record  and  upon  the

    53  order  of  protection.  The duration of any temporary order shall not by
    54  itself be a factor in determining the length or issuance  of  any  final
    55  order.  Any  order  of  protection issued pursuant to this section shall
    56  specify if an order of probation is in effect. Any order  of  protection
        A. 8393--A                          3
 
     1  issued  pursuant  to  this  section  may  require  the petitioner or the
     2  respondent:
     3    §  7.  Section 1056 of the family court act is amended by adding a new
     4  subdivision 6 to read as follows:
     5    6. In any proceeding pursuant to this article, a court shall not  deny
     6  an  order  of  protection,  or dismiss an application for such an order,
     7  solely on the basis that the acts or events alleged are  not  relatively

     8  contemporaneous  with  the  date of the application or the conclusion of
     9  the action. The duration of any temporary order shall not by itself be a
    10  factor in determining the length or issuance of any final order.
    11    § 8. Paragraph e of subdivision 3  of  section  240  of  the  domestic
    12  relations law, as amended by chapter 597 of the laws of 1998, is amended
    13  to read as follows:
    14    e.  No  order of protection may direct any party to observe conditions
    15  of behavior unless: (i) the party requesting the order of protection has
    16  served and filed an action, proceeding, counter-claim or written  motion
    17  and,  (ii) the court has made a finding on the record that such party is
    18  entitled to issuance of the order of protection which may result from  a
    19  judicial  finding  of  fact,  judicial acceptance of an admission by the

    20  party against whom the order was issued or  judicial  finding  that  the
    21  party  against  whom  the order is issued has given knowing, intelligent
    22  and voluntary consent to its issuance. The provisions of  this  subdivi-
    23  sion  shall  not  preclude  the  court from issuing a temporary order of
    24  protection upon the court's own motion or where a motion for such relief
    25  is made to the court, for good cause shown.  In any proceeding  pursuant
    26  to  this  article,  a  court  shall  not deny an order of protection, or
    27  dismiss an application for such an order, solely on the basis  that  the
    28  acts  or events alleged are not relatively contemporaneous with the date
    29  of the application or the conclusion of the action. The duration of  any
    30  temporary  order  shall  not  by  itself  be a factor in determining the

    31  length or issuance of any final order.
    32    § 9. This act shall take effect immediately and  shall  apply  to  all
    33  orders of protection pending or entered on or after such effective date.