Bill Text: NY A07032 | 2015-2016 | General Assembly | Amended
Bill Title: Provides that where a temporary order of spousal support has not been issued the court may, in addition to issuing a temporary order of protection, issue an order for temporary spousal support.
Spectrum: Partisan Bill (Democrat 4-0)
Status: (Engrossed - Dead) 2016-06-16 - REFERRED TO RULES [A07032 Detail]
Download: New_York-2015-A07032-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 7032--A 2015-2016 Regular Sessions IN ASSEMBLY 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: 1 Section 1. The section heading of section 828 of the family court act, 2 as amended by chapter 222 of the laws of 1994, is amended and a new 3 subdivision 5 is added to read as follows: 4 Temporary order of protection; temporary [order] orders for child 5 support and spousal support. 6 5.Notwithstanding the provisions of section eight hundred seventeen of 7 this article, where a temporary order of spousal support has not already 8 been issued, the court may, in addition to the issuance of a temporary 9 order of protection pursuant to this section, issue an order directing 10 the parties to appear within seven business days of the issuance of the 11 order in the family court, in the same action, for consideration of an 12 order for temporary spousal support in accordance with article four of 13 this act. If the court directs the parties to so appear, the court 14 shall direct the parties to appear with information with respect to 15 income and assets, but a temporary order of spousal support may be 16 issued pursuant to article four of this act on the return date notwith- 17 standing the respondent's default upon notice and notwithstanding that 18 information with respect to income and assets of the petitioner or 19 respondent may be unavailable. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD09771-06-6A. 7032--A 2 1 § 2. Section 842 of the family court act, as amended by chapter 526 of 2 the laws of 2013 and the closing paragraph as added by chapter 480 of 3 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 23 is in effect. Any order of protection issued pursuant to this section 24 may require the petitioner or the respondent: 25 (a) to stay away from the home, school, business or place of employ- 26 ment of any other party, the other spouse, the other parent, or the 27 child, and to stay away from any other specific location designated by 28 the court, provided that the court shall make a determination, and shall 29 state such determination in a written decision or on the record, whether 30 to impose a condition pursuant to this subdivision, provided further, 31 however, that failure to make such a determination shall not affect the 32 validity of such order of protection. In making such determination, the 33 court shall consider, but shall not be limited to consideration of, 34 whether the order of protection is likely to achieve its purpose in the 35 absence of such a condition, conduct subject to prior orders of 36 protection, prior incidents of abuse, extent of past or present injury, 37 threats, drug or alcohol abuse, and access to weapons; 38 (b) to permit a parent, or a person entitled to visitation by a court 39 order or a separation agreement, to visit the child at stated periods; 40 (c) to refrain from committing a family offense, as defined in subdi- 41 vision one of section eight hundred twelve of this [act] article, or any 42 criminal offense against the child or against the other parent or 43 against any person to whom custody of the child is awarded, or from 44 harassing, intimidating or threatening such persons; 45 (d) to permit a designated party to enter the residence during a spec- 46 ified period of time in order to remove personal belongings not in issue 47 in this proceeding or in any other proceeding or action under this act 48 or the domestic relations law; 49 (e) to refrain from acts of commission or omission that create an 50 unreasonable risk to the health, safety or welfare of a child; 51 (f) to pay the reasonable counsel fees and disbursements involved in 52 obtaining or enforcing the order of the person who is protected by such 53 order if such order is issued or enforced; 54 (g) to require the respondent to participate in a batterer's education 55 program designed to help end violent behavior, which may include refer- 56 ral to drug and alcohol counselling, and to pay the costs thereof if theA. 7032--A 3 1 person has the means to do so, provided however that nothing contained 2 herein shall be deemed to require payment of the costs of any such 3 program by the petitioner, the state or any political subdivision there- 4 of; 5 (h) to provide, either directly or by means of medical and health 6 insurance, for expenses incurred for medical care and treatment arising 7 from the incident or incidents forming the basis for the issuance of the 8 order; 9 (i) 1. to refrain from intentionally injuring or killing, without 10 justification, any companion animal the respondent knows to be owned, 11 possessed, leased, kept or held by the petitioner or a minor child 12 residing in the household. 13 2. "Companion animal", as used in this section, shall have the same 14 meaning as in subdivision five of section three hundred fifty of the 15 agriculture and markets law; 16 (j) 1. to promptly return specified identification documents to the 17 protected party, in whose favor the order of protection or temporary 18 order of protection is issued; provided, however, that such order may: 19 (A) include any appropriate provision designed to ensure that any such 20 document is available for use as evidence in this proceeding, and avail- 21 able if necessary for legitimate use by the party against whom such 22 order is issued; and (B) specify the manner in which such return shall 23 be accomplished. 24 2. For purposes of this subdivision, "identification document" shall 25 mean any of the following: (A) exclusively in the name of the protected 26 party: birth certificate, passport, social security card, health insur- 27 ance or other benefits card, a card or document used to access bank, 28 credit or other financial accounts or records, tax returns, any driver's 29 license, and immigration documents including but not limited to a United 30 States permanent resident card and employment authorization document; 31 and (B) upon motion and after notice and an opportunity to be heard, any 32 of the following, including those that may reflect joint use or owner- 33 ship, that the court determines are necessary and are appropriately 34 transferred to the protected party: any card or document used to access 35 bank, credit or other financial accounts or records, tax returns, and 36 any other identifying cards and documents; and 37 (k) to observe such other conditions as are necessary to further the 38 purposes of protection. 39 The court may also award custody of the child, during the term of the 40 order of protection to either parent, or to an appropriate relative 41 within the second degree. Nothing in this section gives the court power 42 to place or board out any child or to commit a child to an institution 43 or agency. 44 Notwithstanding the provisions of section eight hundred seventeen of 45 this article, where a temporary order of child support has not already 46 been issued, the court may in addition to the issuance of an order of 47 protection pursuant to this section, issue an order for temporary child 48 support in an amount sufficient to meet the needs of the child, without 49 a showing of immediate or emergency need. The court shall make an order 50 for temporary child support notwithstanding that information with 51 respect to income and assets of the respondent may be unavailable. Where 52 such information is available, the court may make an award for temporary 53 child support pursuant to the formula set forth in subdivision one of 54 section four hundred thirteen of this act. Temporary orders of support 55 issued pursuant to this article shall be deemed to have been issued 56 pursuant to section four hundred thirteen of this act.A. 7032--A 4 1 Upon making an order for temporary child support pursuant to this 2 subdivision, the court shall advise the petitioner of the availability 3 of child support enforcement services by the support collection unit of 4 the local department of social services, to enforce the temporary order 5 and to assist in securing continued child support, and shall set the 6 support matter down for further proceedings in accordance with article 7 four of this act. 8 Where the court determines that the respondent has employer-provided 9 medical insurance, the court may further direct, as part of an order of 10 temporary support under this subdivision, that a medical support 11 execution be issued and served upon the respondent's employer as 12 provided for in section fifty-two hundred forty-one of the civil prac- 13 tice law and rules. 14 Notwithstanding the provisions of section eight hundred seventeen of 15 this article, where a temporary order of spousal support has not already 16 been issued, the court may, in addition to the issuance of an order of 17 protection pursuant to this section, issue an order directing the 18 parties to appear within seven business days of the issuance of the 19 order in the family court, in the same action, for consideration of an 20 order for temporary spousal support in accordance with article four of 21 this act. If the court directs the parties to so appear, the court 22 shall direct the parties to appear with information with respect to 23 income and assets, but a temporary order of spousal support may be 24 issued pursuant to article four of this act on the return date notwith- 25 standing the respondent's default upon notice and notwithstanding that 26 information with respect to income and assets of the petitioner or 27 respondent may be unavailable. 28 In any proceeding in which an order of protection or temporary order 29 of protection or a warrant has been issued under this section, the clerk 30 of the court shall issue to the petitioner and respondent and his or her 31 counsel and to any other person affected by the order a copy of the 32 order of protection or temporary order of protection and ensure that a 33 copy of the order of protection or temporary order of protection [be] is 34 transmitted to the local correctional facility where the individual is 35 or will be detained, the state or local correctional facility where the 36 individual is or will be imprisoned, and the supervising probation 37 department or the department of corrections and community supervision 38 where the individual is under probation or parole supervision. 39 Notwithstanding the foregoing provisions, an order of protection, or 40 temporary order of protection where applicable, may be entered against a 41 former spouse and persons who have a child in common, regardless of 42 whether such persons have been married or have lived together at any 43 time, or against a member of the same family or household as defined in 44 subdivision one of section eight hundred twelve of this article. 45 In addition to the foregoing provisions, the court may issue an order, 46 pursuant to section two hundred twenty-seven-c of the real property law, 47 authorizing the party for whose benefit any order of protection has been 48 issued to terminate a lease or rental agreement pursuant to section two 49 hundred twenty-seven-c of the real property law. 50 The protected party in whose favor the order of protection or tempo- 51 rary order of protection is issued may not be held to violate an order 52 issued in his or her favor nor may such protected party be arrested for 53 violating such order. 54 § 3. This act shall take effect on the ninetieth day after it shall 55 have become a law.
