Requires family court as part of an order of protection in a family offense proceeding to order counseling for children when one member of the family or household has been charged with or found to have committed a family offense against another member of the family or household, where there is a demonstrated need for psychological intervention, even if the children were not the direct victims.
STATE OF NEW YORK
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5516--A
2013-2014 Regular Sessions
IN SENATE
May 16, 2013
___________
Introduced by Sen. PARKER -- read twice and ordered printed, and when
printed to be committed to the Committee on Children and Families --
recommitted to the Committee on Children and Families 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 of
protection in family offense proceedings; counseling for children
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 842 of the family court act, as amended by chapter
2 526 of the laws of 2013, the closing paragraph as added by chapter 480
3 of the laws of 2013, is amended to read as follows:
4 § 842. Order of protection. An order of protection under section eight
5 hundred forty-one of this part shall set forth reasonable conditions of
6 behavior to be observed for a period not in excess of two years by the
7 petitioner or respondent or for a period not in excess of five years
8 upon (i) a finding by the court on the record of the existence of aggra-
9 vating circumstances as defined in paragraph (vii) of subdivision (a) of
10 section eight hundred twenty-seven of this article; or (ii) a finding by
11 the court on the record that the conduct alleged in the petition is in
12 violation of a valid order of protection. Any finding of aggravating
13 circumstances pursuant to this section shall be stated on the record and
14 upon the order of protection. The court may also, upon motion, extend
15 the order of protection for a reasonable period of time upon a showing
16 of good cause or consent of the parties. The fact that abuse has not
17 occurred during the pendency of an order shall not, in itself, consti-
18 tute sufficient ground for denying or failing to extend the order. The
19 court must articulate a basis for its decision on the record. The dura-
20 tion of any temporary order shall not by itself be a factor in determin-
21 ing the length or issuance of any final order. Any order of protection
22 issued pursuant to this section shall specify if an order of probation
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00641-02-4
S. 5516--A 2
1 is in effect. Any order of protection issued pursuant to this section
2 may require the petitioner or the respondent:
3 (a) to stay away from the home, school, business or place of employ-
4 ment of any other party, the other spouse, the other parent, or the
5 child, and to stay away from any other specific location designated by
6 the court, provided that the court shall make a determination, and shall
7 state such determination in a written decision or on the record, whether
8 to impose a condition pursuant to this subdivision, provided further,
9 however, that failure to make such a determination shall not affect the
10 validity of such order of protection. In making such determination, the
11 court shall consider, but shall not be limited to consideration of,
12 whether the order of protection is likely to achieve its purpose in the
13 absence of such a condition, conduct subject to prior orders of
14 protection, prior incidents of abuse, extent of past or present injury,
15 threats, drug or alcohol abuse, and access to weapons;
16 (b) to permit a parent, or a person entitled to visitation by a court
17 order or a separation agreement, to visit the child at stated periods;
18 (c) to refrain from committing a family offense, as defined in subdi-
19 vision one of section eight hundred twelve of this act, or any criminal
20 offense against the child or against the other parent or against any
21 person to whom custody of the child is awarded, or from harassing,
22 intimidating or threatening such persons;
23 (d) to permit a designated party to enter the residence during a spec-
24 ified period of time in order to remove personal belongings not in issue
25 in this proceeding or in any other proceeding or action under this act
26 or the domestic relations law;
27 (e) to refrain from acts of commission or omission that create an
28 unreasonable risk to the health, safety or welfare of a child;
29 (f) to pay the reasonable counsel fees and disbursements involved in
30 obtaining or enforcing the order of the person who is protected by such
31 order if such order is issued or enforced;
32 (g) to require the respondent to participate in a batterer's education
33 program designed to help end violent behavior, which may include refer-
34 ral to drug and alcohol counselling, and to pay the costs thereof if the
35 person has the means to do so, provided however that nothing contained
36 herein shall be deemed to require payment of the costs of any such
37 program by the petitioner, the state or any political subdivision there-
38 of;
39 (h) to provide, either directly or by means of medical and health
40 insurance, for expenses incurred for medical care and treatment arising
41 from the incident or incidents forming the basis for the issuance of the
42 order;
43 (i) 1. to refrain from intentionally injuring or killing, without
44 justification, any companion animal the respondent knows to be owned,
45 possessed, leased, kept or held by the petitioner or a minor child
46 residing in the household.
47 2. "Companion animal", as used in this section, shall have the same
48 meaning as in subdivision five of section three hundred fifty of the
49 agriculture and markets law;
50 (j) 1. to promptly return specified identification documents to the
51 protected party, in whose favor the order of protection or temporary
52 order of protection is issued; provided, however, that such order may:
53 (A) include any appropriate provision designed to ensure that any such
54 document is available for use as evidence in this proceeding, and avail-
55 able if necessary for legitimate use by the party against whom such
S. 5516--A 3
1 order is issued; and (B) specify the manner in which such return shall
2 be accomplished.
3 2. For purposes of this subdivision, "identification document" shall
4 mean any of the following: (A) exclusively in the name of the protected
5 party: birth certificate, passport, social security card, health insur-
6 ance or other benefits card, a card or document used to access bank,
7 credit or other financial accounts or records, tax returns, any driver's
8 license, and immigration documents including but not limited to a United
9 States permanent resident card and employment authorization document;
10 and (B) upon motion and after notice and an opportunity to be heard, any
11 of the following, including those that may reflect joint use or owner-
12 ship, that the court determines are necessary and are appropriately
13 transferred to the protected party: any card or document used to access
14 bank, credit or other financial accounts or records, tax returns, and
15 any other identifying cards and documents; and
16 (k) to observe such other conditions as are necessary to further the
17 purposes of protection.
18 The court may also award custody of the child, during the term of the
19 order of protection to either parent, or to an appropriate relative
20 within the second degree. Nothing in this section gives the court power
21 to place or board out any child or to commit a child to an institution
22 or agency.
23 The court shall order counseling for children when one member of the
24 family or household has been charged with or found to have committed a
25 family offense against another member of the family or household, where
26 there is a demonstrated need for psychological intervention, even if the
27 children were not the direct victims.
28 Notwithstanding the provisions of section eight hundred seventeen of
29 this article, where a temporary order of child support has not already
30 been issued, the court may in addition to the issuance of an order of
31 protection pursuant to this section, issue an order for temporary child
32 support in an amount sufficient to meet the needs of the child, without
33 a showing of immediate or emergency need. The court shall make an order
34 for temporary child support notwithstanding that information with
35 respect to income and assets of the respondent may be unavailable. Where
36 such information is available, the court may make an award for temporary
37 child support pursuant to the formula set forth in subdivision one of
38 section four hundred thirteen of this act. Temporary orders of support
39 issued pursuant to this article shall be deemed to have been issued
40 pursuant to section four hundred thirteen of this act.
41 Upon making an order for temporary child support pursuant to this
42 subdivision, the court shall advise the petitioner of the availability
43 of child support enforcement services by the support collection unit of
44 the local department of social services, to enforce the temporary order
45 and to assist in securing continued child support, and shall set the
46 support matter down for further proceedings in accordance with article
47 four of this act.
48 Where the court determines that the respondent has employer-provided
49 medical insurance, the court may further direct, as part of an order of
50 temporary support under this subdivision, that a medical support
51 execution be issued and served upon the respondent's employer as
52 provided for in section fifty-two hundred forty-one of the civil prac-
53 tice law and rules.
54 In any proceeding in which an order of protection or temporary order
55 of protection or a warrant has been issued under this section, the clerk
56 of the court shall issue to the petitioner and respondent and his coun-
S. 5516--A 4
1 sel and to any other person affected by the order a copy of the order of
2 protection or temporary order of protection and ensure that a copy of
3 the order of protection or temporary order of protection be transmitted
4 to the local correctional facility where the individual is or will be
5 detained, the state or local correctional facility where the individual
6 is or will be imprisoned, and the supervising probation department or
7 the department of corrections and community supervision where the indi-
8 vidual is under probation or parole supervision.
9 Notwithstanding the foregoing provisions, an order of protection, or
10 temporary order of protection where applicable, may be entered against a
11 former spouse and persons who have a child in common, regardless of
12 whether such persons have been married or have lived together at any
13 time, or against a member of the same family or household as defined in
14 subdivision one of section eight hundred twelve of this article.
15 In addition to the foregoing provisions, the court may issue an order,
16 pursuant to section two hundred twenty-seven-c of the real property law,
17 authorizing the party for whose benefit any order of protection has been
18 issued to terminate a lease or rental agreement pursuant to section two
19 hundred twenty-seven-c of the real property law.
20 The protected party in whose favor the order of protection or tempo-
21 rary order of protection is issued may not be held to violate an order
22 issued in his or her favor nor may such protected party be arrested for
23 violating such order.
24 § 2. This act shall take effect immediately.
