Bill Text: NY A08490 | 2013-2014 | General Assembly | Introduced
Bill Title: Relates to the basis for removal of children; provides a safe harbor for a non-abusive spouse to report abuse while retaining custody of children.
Spectrum: Strong Partisan Bill (Republican 17-1)
Status: (Introduced - Dead) 2014-04-29 - held for consideration in children and families [A08490 Detail]
Download: New_York-2013-A08490-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
8490
I N A S S E M B L Y
January 17, 2014
___________
Introduced by M. of A. GRAF -- read once and referred to the Committee
on Children and Families
AN ACT to amend the family court act, in relation to the basis for
removal of children
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. This act shall be known and may be cited as "Melinda's
2 law".
3 S 2. Legislative intent. The legislature hereby finds and declares
4 that in cases of battered spouse syndrome the abuse sometimes moves from
5 the spouse to the children. Once the abusive spouse begins to over-dis-
6 cipline the children, they will often use threats or the removal of the
7 children by child protective services as a means to compel subjugation
8 from the non-abusive spouse. In addition, the abusive spouse prevents
9 the reporting of such incidents to child protective services by making
10 the non-abusive spouse an accomplice in this abuse. Under this threat,
11 children are subjected to escalating abuse that could have been
12 prevented if the non-abusive spouse had a safe harbor to report such
13 abuse at the early stages without fear of losing their children. By this
14 act the legislature intends to take such tool away from the abusive
15 spouse by providing the non-abusive spouse a way to report such inci-
16 dents without fear of having their children removed from their custody.
17 The sequence of events above are an apt description of "Melinda".
18 Melinda is a woman suffering from battered women's syndrome. She has
19 been abused by her husband over a twenty year period. The abuse had been
20 verbal, psychological, and physical. She has taken the abuse in the
21 belief that her children needed a father.
22 Recently the abuse has been transferred to the children. It started
23 with excessive spanking, locking a young teenager in the basement, and
24 pushing a five year old to the ground.
25 Melinda confronted her husband and put herself between her husband and
26 her children resulting in a black-eye (to Melinda).
27 She told her husband that she would not let him hit the children and
28 would call the police and have him arrested.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01261-05-4
A. 8490 2
1 Her husband responded that if she called the police, her children
2 would be taken away from her by Child Protective Services.
3 The husband recently graduated to hitting his teenage son with a wood-
4 en rod leaving welts.
5 The abuse in this cycle of domestic violence is escalated over time
6 when the abuser believes that the non-abusive parent or caretaker is
7 afraid to report such abuse, under the fear of losing their children.
8 By creating a safe harbor under Melinda's Law we have the opportunity
9 to prevent the escalation of abuse to both the spouse victim and the
10 children who are the victims of domestic violence.
11 S 3. Section 1012 of the family court act is amended by adding a new
12 subdivision (1) to read as follows:
13 (1) "DOMESTIC VIOLENCE" MEANS
14 (I) ANY ACT WHICH WOULD CONSTITUTE A VIOLATION OF THE PENAL LAW,
15 INCLUDING, BUT NOT LIMITED TO, ACTS CONSTITUTING DISORDERLY CONDUCT,
16 HARASSMENT, AGGRAVATED HARASSMENT, SEXUAL MISCONDUCT, FORCIBLE TOUCHING,
17 SEXUAL ABUSE, STALKING, CRIMINAL MISCHIEF, MENACING, RECKLESS ENDANGER-
18 MENT, KIDNAPPING, ASSAULT, ATTEMPTED ASSAULT, ATTEMPTED MURDER, CRIMINAL
19 OBSTRUCTION OF BREATHING OR BLOOD CIRCULATION, OR STRANGULATION, AND
20 THAT RESULTED IN ACTUAL PHYSICAL OR EMOTIONAL INJURY OR THAT CREATED A
21 SUBSTANTIAL RISK OF PHYSICAL OR EMOTIONAL HARM; OR
22 (II) ANY OTHER ABUSE, INCLUDING BUT NOT LIMITED TO VERBAL, EMOTIONAL,
23 OR PSYCHOLOGICAL ABUSE, THAT RESULTED IN ACTUAL PHYSICAL OR EMOTIONAL
24 INJURY OR THAT CREATED A SUBSTANTIAL RISK OF PHYSICAL OR EMOTIONAL HARM
25 TO SUCH PERSON OR SUCH PERSON'S CHILD.
26 S 4. Section 1017 of the family court act is amended by adding a new
27 subdivision 1-a to read as follows:
28 1-A. (A) IN DETERMINING WHETHER THERE IS A SUITABLE NON-RESPONDENT
29 PARENT OR OTHER PERSON RELATED TO THE CHILD WITH WHOM SUCH CHILD MAY
30 APPROPRIATELY RESIDE UNDER SUBDIVISION ONE OF THIS SECTION, AND IF BOTH
31 PARENTS ARE RESPONDENTS, THE COURT SHALL INQUIRE AS TO THE FOLLOWING:
32 (I) WHETHER EITHER RESPONDENT HAS BEEN SUBJECTED TO DOMESTIC VIOLENCE
33 BY THE OTHER RESPONDENT AND IF SO;
34 (II) WHETHER SUCH ABUSED RESPONDENT REPORTED THE INCIDENT OF DOMESTIC
35 VIOLENCE PRECIPITATING A REMOVAL ORDER OR HEARING UNDER THIS ARTICLE AND
36 IF SO;
37 (III) WHETHER SUCH ABUSED RESPONDENT HAS BEEN NEGLECTFUL OR ABUSIVE IN
38 THEIR BEHAVIOR TOWARDS THE CHILD OR CHILDREN AT ISSUE.
39 (B) IF THE COURT SHALL DETERMINE UNDER PARAGRAPH (A) OF THIS SUBDIVI-
40 SION THAT A RESPONDENT IS AN ABUSED RESPONDENT AND REPORTED THE INCIDENT
41 OF DOMESTIC VIOLENCE PRECIPITATING THE ORDER OR HEARING UNDER THIS ARTI-
42 CLE, THEN THE COURT SHALL DEEM SUCH ABUSED RESPONDENT A NON-RESPONDENT
43 FOR PURPOSES OF THE REMOVAL ORDER OR HEARING; PROVIDED THAT, SUCH ABUSED
44 RESPONDENT IS NOT NEGLECTFUL OR ABUSIVE IN THEIR BEHAVIOR TOWARDS THE
45 CHILD OR CHILDREN AT ISSUE. IF THE COURT SO FINDS, THE COURT SHALL AWARD
46 CUSTODY TO SUCH NON-RESPONDENT PARENT PROVIDED THAT SUCH CUSTODY IS IN
47 THE BEST INTERESTS OF THE CHILD OR CHILDREN.
48 (C) THE COURT MAY CONDUCT IN CAMERA INTERVIEWS, BAR THE APPEARANCE OF
49 THE RESPONDENT ABUSER, OR TAKE ANY OTHER STEPS AS IT DEEMS NECESSARY
50 WITHIN ITS STATUTORY AND CONSTITUTIONAL POWERS TO DETERMINE WHETHER OR
51 NOT A RESPONDENT IS AN ABUSED RESPONDENT WITHIN THE MEANING OF SUBPARA-
52 GRAPH (I) OF PARAGRAPH (A) OF THIS SUBDIVISION.
53 (D) THIS SUBDIVISION SHALL NOT APPLY TO INSTANCES OF SEXUAL CRIMES,
54 MURDER OR WHERE THERE HAVE BEEN PRIOR INCIDENTS INVOLVING DISFIGUREMENT
55 OF THE CHILD OR CHILDREN AT ISSUE.
A. 8490 3
1 S 5. Paragraphs (vi) and (vii) of subdivision (a) of section 1022 of
2 the family court act are renumbered paragraphs (vii) and (viii) and a
3 new paragraph (vi) is added to read as follows:
4 (VI) IF THE COURT SHALL DETERMINE, PURSUANT TO SUBDIVISION ONE-A OF
5 SECTION ONE THOUSAND SEVENTEEN OF THIS ARTICLE THAT A RESPONDENT PARENT
6 IS A NON-RESPONDENT FOR THE REASONS GIVEN THEREUNDER, THE COURT SHALL
7 ISSUE A TEMPORARY ORDER OF PROTECTION AGAINST THE RESPONDENT ABUSER
8 PURSUANT TO PARAGRAPH (V) OF THIS SUBDIVISION.
9 S 6. Subdivision (b) of section 1027 of the family court act is
10 amended by adding a new paragraph (vi) to read as follows:
11 (VI) IF THE COURT SHALL DETERMINE, PURSUANT TO SUBDIVISION ONE-A OF
12 SECTION ONE THOUSAND SEVENTEEN OF THIS ARTICLE THAT A RESPONDENT PARENT
13 IS A NON-RESPONDENT FOR THE REASONS GIVEN THEREUNDER, THE COURT SHALL
14 ISSUE A TEMPORARY ORDER OF PROTECTION AGAINST THE RESPONDENT ABUSER
15 PURSUANT TO PARAGRAPH (V) OF THIS SUBDIVISION.
16 S 7. Subdivision (a) of section 1028 of the family court act, as
17 amended by chapter 41 of the laws of 2010, is amended to read as
18 follows:
19 (a) Upon the application of the parent or other person legally respon-
20 sible for the care of a child temporarily removed under this part or
21 upon the application of the child's attorney for an order returning the
22 child, the court shall hold a hearing to determine whether the child
23 should be returned (i) unless there has been a hearing pursuant to
24 section one thousand twenty-seven of this article on the removal of the
25 child at which the parent or other person legally responsible for the
26 child's care was present and had the opportunity to be represented by
27 counsel, or (ii) upon good cause shown, WHICH SHALL INCLUDE A FINDING BY
28 THE COURT, AT ANY TIME IN THE PROCEEDINGS, THAT A RESPONDENT PARENT IS A
29 NON-RESPONDENT PURSUANT TO SECTION ONE THOUSAND SEVENTEEN OF THIS ARTI-
30 CLE. Except for good cause shown, such hearing shall be held within
31 three court days of the application and shall not be adjourned. Upon
32 such hearing, the court shall grant the application, unless it finds
33 that the return presents an imminent risk to the child's life or health.
34 If a parent or other person legally responsible for the care of a child
35 waives his or her right to a hearing under this section, the court shall
36 advise such person at that time that, notwithstanding such waiver, an
37 application under this section may be made at any time during the
38 pendency of the proceedings.
39 S 8. This act shall take effect immediately.
