Relates to orders of protection in termination of parental rights proceedings, child protective proceedings and permanency hearings regarding children freed for adoption.
STATE OF NEW YORK
________________________________________________________________________
5202--A
2013-2014 Regular Sessions
IN SENATE
May 14, 2013
___________
Introduced by Sen. FELDER -- (at request of the Office of Court Adminis-
tration) -- 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, the social services law and the
executive law, in relation to orders of protection in termination of
parental rights proceedings, child protective proceedings and perman-
ency hearings regarding children freed for adoption
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 634 of the family court act, as amended by chapter
2 666 of the laws of 1976, is amended to read as follows:
3 § 634. Commitment of guardianship and custody; further orders. The
4 court may enter an order under section six hundred thirty-one of this
5 article committing the guardianship and custody of the child to the
6 petitioner on such conditions, if any, as it deems proper. For good
7 cause shown, the court may issue a temporary order of protection or,
8 upon disposition, an order of protection to protect the child and the
9 child's foster or pre-adoptive parent or parents and other designated
10 members of the household in which the child resides. The order may
11 direct the respondent to observe reasonable conditions that may include,
12 among others, that the respondent stay away from the child and from the
13 home, school, business or place of employment of the child or the
14 child's foster or pre-adoptive parent or parents or other designated
15 members of the household in which the child resides. Prior to issuing
16 the order, the court shall inquire as to the existence of any other
17 orders of protection involving the parties and shall give the respondent
18 notice and an opportunity to be heard. The court shall state its reasons
19 on the record for issuing the order. An order of protection issued under
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD09912-02-4
S. 5202--A 2
1 this section may remain in effect for a period of up to five years or
2 until the youngest child in the household in which the child resides
3 reaches the age of eighteen years of age, whichever is earlier. A
4 violation of an order issued under this section may be addressed in
5 accordance with subdivision two of section one thousand seventy-two of
6 this chapter.
7 § 2. Subdivision (a) of section 1029 of the family court act, as
8 amended by chapter 41 of the laws of 2010, is amended to read as
9 follows:
10 (a) The family court, upon the application of any person who may orig-
11 inate a proceeding under this article, for good cause shown, may issue a
12 temporary order of protection, before or after the filing of such peti-
13 tion, which may contain any of the provisions authorized on the making
14 of an order of protection under section one thousand fifty-six of this
15 article and must conform to all of the requirements of that section.
16 Prior to issuing a temporary order of protection under this section, the
17 court shall inquire as to the existence of any other orders of
18 protection involving the parties. If such order is granted before the
19 filing of a petition and a petition is not filed under this article
20 within ten days from the granting of such order, the order shall be
21 vacated. In any case where a petition has been filed and an attorney for
22 the child has been appointed, such attorney may make application for a
23 temporary order of protection pursuant to the provisions of this
24 section.
25 § 3. The opening paragraph and paragraph (a) of subdivision 1, and
26 subdivisions 2 and 4 of section 1056 of the family court act, the open-
27 ing paragraph and paragraph (a) of subdivision 1 as amended by chapter
28 526 of the laws of 2013, subdivision 2 as amended by chapter 220 of the
29 laws of 1989 and subdivision 4 as added by chapter 622 of the laws of
30 1990, are amended to read as follows:
31 The court may [make] issue an order of protection in assistance or as
32 a condition of any other order made under this part. [Such] Prior to
33 issuing an order of protection under this section, the court shall
34 inquire as to the existence of any other orders of protection involving
35 the parties. Except as provided in subdivision four of this section, an
36 order of protection [shall] issued under this section may remain in
37 effect [concurrently with, shall expire no later than the expiration
38 date of, and] for a period of up to two years or, if the court finds
39 aggravating circumstances as defined in paragraph (vii) of subdivision
40 (a) of section eight hundred twenty-seven of this act or if the court
41 finds that the respondent has violated an order of protection, a period
42 of up to five years. The order of protection may be extended concurrent-
43 ly with, [such other] another order [made] issued under this [part,
44 except as provided in subdivision four of this section] article or arti-
45 cle ten-A of this act. The order of protection may set forth reasonable
46 conditions of behavior to be observed for a specified time by a person
47 who is before the court and is a parent or a person legally responsible
48 for the child's care or the spouse of the parent or other person legally
49 responsible for the child's care, or both. Such an order may require any
50 such person:
51 (a) to stay away from the home, school, business or place of employ-
52 ment of the other spouse, parent or person legally responsible for the
53 child's care, person with whom the child has been remanded, placed or
54 released by the court or the child, and to stay away from any other
55 specific location designated by the court;
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1 2. [The] Where the court [may also] has determined, in accordance with
2 the requirements of section one thousand seventeen or part two of this
3 article or, as applicable, sections one thousand fifty-two and one thou-
4 sand fifty-five of this article, to award custody of the child, during
5 the term of the temporary order of protection or order of protection, as
6 applicable, to [either] a non-respondent parent, or to an appropriate
7 relative [within the second degree] or suitable person, the award of
8 custody may be included in the order of protection or temporary order of
9 protection, as applicable. Nothing in this section gives the court
10 power to place or board out any child or to commit a child to an insti-
11 tution or agency. In making orders of protection, the court shall so act
12 as to insure that in the care, protection, discipline and guardianship
13 of the child his or her religious faith shall be preserved and
14 protected.
15 4. The court may enter an order of protection independently of any
16 other order made under this part, against a [person] respondent who is
17 or was [a member of the child's household or] a person legally responsi-
18 ble for the child's care as defined in section one thousand twelve of
19 this [chapter] article, and who is [no longer a member of such household
20 at the time of the disposition and who is] not [related by blood or
21 marriage to] a parent of the child [or a member of the child's house-
22 hold]. An order of protection entered pursuant to this subdivision may
23 be for any period of time up to the [child's] eighteenth birthday of the
24 youngest child in the child's household and upon such conditions as [the
25 court deems necessary and proper to protect the health and safety of the
26 child and the child's caretaker] are authorized by subdivision one of
27 this section. The person restrained by the order of protection may, upon
28 a showing of a substantial change of circumstances, move for modifica-
29 tion or vacatur of the order.
30 § 4. Section 1072 of the family court act, as amended by chapter 1039
31 of the laws of 1973 and the opening paragraph as amended by chapter 437
32 of the laws of 2006, is amended to read as follows:
33 § 1072. Failure to comply with terms and conditions of supervision or
34 order of protection.
35 1. If, prior to the expiration of the period of an order of super-
36 vision pursuant to section one thousand fifty-four or one thousand
37 fifty-seven of this article, a motion or order to show cause is filed
38 that alleges that a parent or other person legally responsible for a
39 child's care violated the terms and conditions of an order of super-
40 vision issued under section one thousand fifty-four or one thousand
41 fifty-seven of this article, the period of the order of supervision
42 shall be tolled pending disposition of the motion or order to show
43 cause. If, after hearing, the court is satisfied by competent proof that
44 the parent or other person violated the order of supervision willfully
45 and without just cause, the court may:
46 (a) revoke the order of supervision [or of protection] and enter any
47 order that might have been made at the time the order of supervision or
48 of protection was made, or
49 (b) commit the parent or other person who willfully and without just
50 cause violated the order to jail for a term not to exceed six months.
51 2. Prior to the expiration of the period of an order of protection or
52 temporary order of protection issued pursuant to section six hundred
53 thirty-four of this act, or section one thousand twenty-nine, one thou-
54 sand fifty-six or one thousand eighty-nine of this article or subdivi-
55 sion thirteen of section three hundred eighty-four-b of the social
56 services law, a motion or order to show cause may be filed that alleges
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1 that a respondent parent or other person legally responsible for a
2 child's care violated the terms and conditions of such order willfully
3 and without just cause. If, after hearing, the court is satisfied by
4 competent proof that the parent or other person violated the order of
5 protection or temporary order of protection willfully and without just
6 cause, the court may:
7 (a) revoke or modify the order of protection or temporary order of
8 protection and enter any order that might have been made at the time
9 such order had been issued, or
10 (b) issue an order in accordance with section eight hundred
11 forty-two-a or eight hundred forty-six-a of this act.
12 § 5. Clause (D) of subparagraph (viii) of paragraph 2 of subdivision
13 (d) of section 1089 of the family court act, as added by section 27 of
14 part A of chapter 3 of the laws of 2005, is amended to read as follows:
15 (D) [The] In the case of a child who has not been freed for adoption,
16 the court may make an order of protection in the manner specified by
17 section one thousand fifty-six of this act in assistance or as a condi-
18 tion of any other order made under this section. The order of protection
19 may set forth reasonable conditions of behavior to be observed for a
20 specified period of time by a person before the court for the protection
21 of the child and the child's foster or pre-adoptive parent or parents
22 and other designated members of the household in which the child
23 resides. Prior to issuing an order of protection under this section, the
24 court shall inquire as to the existence of any other orders of
25 protection involving the parties and the child. In the case of a child
26 freed for adoption, the court, for good cause shown, may issue an order
27 of protection directing a person whose parental rights had been termi-
28 nated or surrendered to observe reasonable conditions enumerated therein
29 in order to protect the child and the child's foster or pre-adoptive
30 parent or parents and other designated members of the household in which
31 the child resides. The conditions may include, among others, that such
32 person shall stay away from the child and from the home, school, busi-
33 ness or place of employment of the child or the child's foster or pre-a-
34 doptive parent or parents or other designated members of the household
35 in which the child resides. The order may only be issued after the
36 person or persons restrained by the order have been given notice and an
37 opportunity to be heard. The court shall state its reasons on the record
38 for issuing the order. In the case of a child freed for adoption or for
39 whom a termination of parental rights proceeding is pending, the court
40 may issue an order of protection or temporary order of protection, as
41 applicable, in accordance with subdivision thirteen of section three
42 hundred eighty-four-b of the social services law. A violation of an
43 order issued under this section may be addressed in accordance with
44 subdivision two of section one thousand seventy-two of this act.
45 § 6. Section 384-b of the social services law is amended by adding a
46 new subdivision 14 to read as follows:
47 14. For good cause shown, the court may issue a temporary order of
48 protection or, upon disposition, an order of protection to protect the
49 child and the child's foster or pre-adoptive parent or parents and other
50 designated members of the household in which the child resides. The
51 order may direct the respondent to observe reasonable conditions that
52 may include, among others, that the respondent stay away from the child
53 and from the home, school, business or place of employment of the child
54 or the child's foster or pre-adoptive parent or parents or other desig-
55 nated members of the household in which the child resides. Prior to
56 issuing the order, the court shall inquire as to the existence of any
S. 5202--A 5
1 other orders of protection involving the parties and shall give the
2 respondent notice and an opportunity to be heard. The court shall state
3 its reasons on the record for issuing the order. An order of protection
4 issued under this section may remain in effect for a period of up to
5 five years or until the youngest child in the household in which the
6 child resides reaches the age of eighteen years of age, whichever is
7 earlier. A violation of an order issued under this section may be
8 addressed in accordance with subdivision two of section one thousand
9 seventy-two of the family court act.
10 § 7. Subdivision 1 of section 221-a of the executive law, as separate-
11 ly amended by sections 14 and 67 of part A of chapter 56 of the laws of
12 2010, is amended to read as follows:
13 1. The superintendent, in consultation with the division of criminal
14 justice services, the office of court administration, and the office for
15 the prevention of domestic violence, shall develop a comprehensive plan
16 for the establishment and maintenance of a statewide computerized regis-
17 try of all orders of protection issued pursuant to articles four, five,
18 six [and], eight, ten and ten-A of the family court act, section three
19 hundred eighty-four-b of the social services law, section 530.12 of the
20 criminal procedure law and, insofar as they involve victims of domestic
21 violence as defined by section four hundred fifty-nine-a of the social
22 services law, section 530.13 of the criminal procedure law and sections
23 two hundred forty and two hundred fifty-two of the domestic relations
24 law, and orders of protection issued by courts of competent jurisdiction
25 in another state, territorial or tribal jurisdiction, special orders of
26 conditions issued pursuant to subparagraph (i) or (ii) of paragraph (o)
27 of subdivision one of section 330.20 of the criminal procedure law inso-
28 far as they involve a victim or victims of domestic violence as defined
29 by subdivision one of section four hundred fifty-nine-a of the social
30 services law or a designated witness or witnesses to such domestic
31 violence, and all warrants issued pursuant to sections one hundred
32 fifty-three and eight hundred twenty-seven of the family court act, and
33 arrest and bench warrants as defined in subdivisions twenty-eight, twen-
34 ty-nine and thirty of section 1.20 of the criminal procedure law, inso-
35 far as such warrants pertain to orders of protection or temporary orders
36 of protection; provided, however, that warrants issued pursuant to
37 section one hundred fifty-three of the family court act pertaining to
38 articles three[,] and seven [and ten] of such act and section 530.13 of
39 the criminal procedure law shall not be included in the registry. The
40 superintendent shall establish and maintain such registry for the
41 purposes of ascertaining the existence of orders of protection, tempo-
42 rary orders of protection, warrants and special orders of conditions,
43 and for enforcing the provisions of paragraph (b) of subdivision four of
44 section 140.10 of the criminal procedure law.
45 § 8. This act shall take effect on the ninetieth day after it shall
46 have become a law.
