Bill Text: NY S04569 | 2017-2018 | General Assembly | Amended
Bill Title: Relates to orders for temporary spousal support in conjunction with temporary and final orders of protection in family court and calculation of maintenance cap in family and supreme court; increases the income cap.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2018-04-13 - PRINT NUMBER 4569A [S04569 Detail]
Download: New_York-2017-S04569-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 4569--A 2017-2018 Regular Sessions IN SENATE February 17, 2017 ___________ Introduced by Sen. SAVINO -- (at request of the Office of Court Adminis- tration) -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary -- recommitted to the Commit- tee on Judiciary 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 and the domestic relations law, in relation to orders for temporary spousal support in conjunction with temporary and final orders of protection in family court and calcu- lation of maintenance cap in family and supreme court The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Paragraph (d) of subdivision 2 of section 412 of the family 2 court act, as amended by chapter 269 of the laws of 2015, is amended to 3 read as follows: 4 (d) "income cap" shall mean up to and including one hundred [seventy-5five] eighty-four thousand dollars of the payor's annual income; 6 provided, however, beginning [January thirty-first] March first, two 7 thousand [sixteen] twenty and every two years thereafter, the income cap 8 amount shall increase by the sum of the average annual percentage chang- 9 es in the consumer price index for all urban consumers (CPI-U) as 10 published by the United States department of labor bureau of labor 11 statistics for the prior two years multiplied by the then income cap and 12 then rounded to the nearest one thousand dollars. The office of court 13 administration shall determine and publish the income cap. 14 § 2. The section heading of section 828 of the family court act, as 15 amended by chapter 222 of the laws of 1994, is amended and a new subdi- 16 vision 5 is added to read as follows: 17 Temporary order of protection; temporary [order] orders for child 18 support and spousal maintenance. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD06639-02-8S. 4569--A 2 1 5. Notwithstanding the provisions of section eight hundred seventeen 2 of this article, where a temporary order of spousal support has not 3 already been issued, the court may, in addition to the issuance of a 4 temporary order of protection pursuant to this section, issue an order 5 directing the parties to appear within seven business days of the issu- 6 ance of the order in the family court, in the same action, for consider- 7 ation of an order for temporary spousal support in accordance with arti- 8 cle four of this act. If the court directs the parties to so appear, the 9 court shall direct the parties to appear with information with respect 10 to income and assets, but a temporary order for spousal support may be 11 issued pursuant to article four of this act on the return date notwith- 12 standing the respondent's default upon notice and notwithstanding that 13 information with respect to income and assets of the petitioner or 14 respondent may be unavailable. 15 § 3. Section 842 of the family court act, as amended by chapter 526 16 and the closing paragraph as added by chapter 480 of the laws of 2013, 17 is amended to read as follows: 18 § 842. Order of protection. An order of protection under section eight 19 hundred forty-one of this part shall set forth reasonable conditions of 20 behavior to be observed for a period not in excess of two years by the 21 petitioner or respondent or for a period not in excess of five years 22 upon (i) a finding by the court on the record of the existence of aggra- 23 vating circumstances as defined in paragraph (vii) of subdivision (a) of 24 section eight hundred twenty-seven of this article; or (ii) a finding by 25 the court on the record that the conduct alleged in the petition is in 26 violation of a valid order of protection. Any finding of aggravating 27 circumstances pursuant to this section shall be stated on the record and 28 upon the order of protection. The court may also, upon motion, extend 29 the order of protection for a reasonable period of time upon a showing 30 of good cause or consent of the parties. The fact that abuse has not 31 occurred during the pendency of an order shall not, in itself, consti- 32 tute sufficient ground for denying or failing to extend the order. The 33 court must articulate a basis for its decision on the record. The dura- 34 tion of any temporary order shall not by itself be a factor in determin- 35 ing the length or issuance of any final order. Any order of protection 36 issued pursuant to this section shall specify if an order of probation 37 is in effect. Any order of protection issued pursuant to this section 38 may require the petitioner or the respondent: 39 (a) to stay away from the home, school, business or place of employ- 40 ment of any other party, the other spouse, the other parent, or the 41 child, and to stay away from any other specific location designated by 42 the court, provided that the court shall make a determination, and shall 43 state such determination in a written decision or on the record, whether 44 to impose a condition pursuant to this subdivision, provided further, 45 however, that failure to make such a determination shall not affect the 46 validity of such order of protection. In making such determination, the 47 court shall consider, but shall not be limited to consideration of, 48 whether the order of protection is likely to achieve its purpose in the 49 absence of such a condition, conduct subject to prior orders of 50 protection, prior incidents of abuse, extent of past or present injury, 51 threats, drug or alcohol abuse, and access to weapons; 52 (b) to permit a parent, or a person entitled to visitation by a court 53 order or a separation agreement, to visit the child at stated periods; 54 (c) to refrain from committing a family offense, as defined in subdi- 55 vision one of section eight hundred twelve of this [act] article, or any 56 criminal offense against the child or against the other parent orS. 4569--A 3 1 against any person to whom custody of the child is awarded, or from 2 harassing, intimidating or threatening such persons; 3 (d) to permit a designated party to enter the residence during a spec- 4 ified period of time in order to remove personal belongings not in issue 5 in this proceeding or in any other proceeding or action under this act 6 or the domestic relations law; 7 (e) to refrain from acts of commission or omission that create an 8 unreasonable risk to the health, safety or welfare of a child; 9 (f) to pay the reasonable counsel fees and disbursements involved in 10 obtaining or enforcing the order of the person who is protected by such 11 order if such order is issued or enforced; 12 (g) to require the respondent to participate in a batterer's education 13 program designed to help end violent behavior, which may include refer- 14 ral to drug and alcohol counselling, and to pay the costs thereof if the 15 person has the means to do so, provided however that nothing contained 16 herein shall be deemed to require payment of the costs of any such 17 program by the petitioner, the state or any political subdivision there- 18 of; 19 (h) to provide, either directly or by means of medical and health 20 insurance, for expenses incurred for medical care and treatment arising 21 from the incident or incidents forming the basis for the issuance of the 22 order; 23 (i) 1. to refrain from intentionally injuring or killing, without 24 justification, any companion animal the respondent knows to be owned, 25 possessed, leased, kept or held by the petitioner or a minor child 26 residing in the household. 27 2. "Companion animal", as used in this section, shall have the same 28 meaning as in subdivision five of section three hundred fifty of the 29 agriculture and markets law; 30 (j) 1. to promptly return specified identification documents to the 31 protected party, in whose favor the order of protection or temporary 32 order of protection is issued; provided, however, that such order may: 33 (A) include any appropriate provision designed to ensure that any such 34 document is available for use as evidence in this proceeding, and avail- 35 able if necessary for legitimate use by the party against whom such 36 order is issued; and (B) specify the manner in which such return shall 37 be accomplished. 38 2. For purposes of this subdivision, "identification document" shall 39 mean any of the following: (A) exclusively in the name of the protected 40 party: birth certificate, passport, social security card, health insur- 41 ance or other benefits card, a card or document used to access bank, 42 credit or other financial accounts or records, tax returns, any driver's 43 license, and immigration documents including but not limited to a United 44 States permanent resident card and employment authorization document; 45 and (B) upon motion and after notice and an opportunity to be heard, any 46 of the following, including those that may reflect joint use or owner- 47 ship, that the court determines are necessary and are appropriately 48 transferred to the protected party: any card or document used to access 49 bank, credit or other financial accounts or records, tax returns, and 50 any other identifying cards and documents; and 51 (k) to observe such other conditions as are necessary to further the 52 purposes of protection. 53 The court may also award custody of the child, during the term of the 54 order of protection to either parent, or to an appropriate relative 55 within the second degree. Nothing in this section gives the court powerS. 4569--A 4 1 to place or board out any child or to commit a child to an institution 2 or agency. 3 Notwithstanding the provisions of section eight hundred seventeen of 4 this article, where a temporary order of child support has not already 5 been issued, the court may in addition to the issuance of an order of 6 protection pursuant to this section, issue an order for temporary child 7 support in an amount sufficient to meet the needs of the child, without 8 a showing of immediate or emergency need. The court shall make an order 9 for temporary child support notwithstanding that information with 10 respect to income and assets of the respondent may be unavailable. Where 11 such information is available, the court may make an award for temporary 12 child support pursuant to the formula set forth in subdivision one of 13 section four hundred thirteen of this act. Temporary orders of support 14 issued pursuant to this article shall be deemed to have been issued 15 pursuant to section four hundred thirteen of this act. 16 Upon making an order for temporary child support pursuant to this 17 subdivision, the court shall advise the petitioner of the availability 18 of child support enforcement services by the support collection unit of 19 the local department of social services, to enforce the temporary order 20 and to assist in securing continued child support, and shall set the 21 support matter down for further proceedings in accordance with article 22 four of this act. 23 Where the court determines that the respondent has employer-provided 24 medical insurance, the court may further direct, as part of an order of 25 temporary support under this subdivision, that a medical support 26 execution be issued and served upon the respondent's employer as 27 provided for in section fifty-two hundred forty-one of the civil prac- 28 tice law and rules. 29 Notwithstanding the provisions of section eight hundred seventeen of 30 this article, where a temporary order of spousal support has not already 31 been issued, the court may, in addition to the issuance of an order of 32 protection pursuant to this section, issue an order directing the 33 parties to appear within seven business days of the issuance of the 34 order in the family court, in the same action, for consideration of an 35 order for temporary spousal support in accordance with article four of 36 this act. If the court directs the parties to so appear, the court shall 37 direct the parties to appear with information with respect to income and 38 assets, but a temporary order for spousal support may be issued pursuant 39 to article four of this act on the return date notwithstanding the 40 respondent's default upon notice and notwithstanding that information 41 with respect to income and assets of the petitioner or respondent may be 42 unavailable. 43 In any proceeding in which an order of protection or temporary order 44 of protection or a warrant has been issued under this section, the clerk 45 of the court shall issue to the petitioner and respondent and his or her 46 counsel and to any other person affected by the order a copy of the 47 order of protection or temporary order of protection and ensure that a 48 copy of the order of protection or temporary order of protection [be] is 49 transmitted to the local correctional facility where the individual is 50 or will be detained, the state or local correctional facility where the 51 individual is or will be imprisoned, and the supervising probation 52 department or the department of corrections and community supervision 53 where the individual is under probation or parole supervision. 54 Notwithstanding the foregoing provisions, an order of protection, or 55 temporary order of protection where applicable, may be entered against a 56 former spouse and persons who have a child in common, regardless ofS. 4569--A 5 1 whether such persons have been married or have lived together at any 2 time, or against a member of the same family or household as defined in 3 subdivision one of section eight hundred twelve of this article. 4 In addition to the foregoing provisions, the court may issue an order, 5 pursuant to section two hundred twenty-seven-c of the real property law, 6 authorizing the party for whose benefit any order of protection has been 7 issued to terminate a lease or rental agreement pursuant to section two 8 hundred twenty-seven-c of the real property law. 9 The protected party in whose favor the order of protection or tempo- 10 rary order of protection is issued may not be held to violate an order 11 issued in his or her favor nor may such protected party be arrested for 12 violating such order. 13 § 4. Subparagraph 5 of paragraph (b) of subdivision 5-a of part B of 14 section 236 of the domestic relations law, as amended by chapter 269 of 15 the laws of 2015, is amended to read as follows: 16 (5) "Income cap" shall mean up to and including one hundred [seventy-17five] eighty-four thousand dollars of the payor's annual income; 18 provided, however, beginning [January thirty-first] March first, two 19 thousand [sixteen] twenty and every two years thereafter, the income cap 20 amount shall increase by the sum of the average annual percentage chang- 21 es in the consumer price index for all urban consumers (CPI-U) as 22 published by the United States department of labor bureau of labor 23 statistics for the prior two years multiplied by the then income cap and 24 then rounded to the nearest one thousand dollars. The office of court 25 administration shall determine and publish the income cap. 26 § 5. Subparagraph 4 of paragraph (b) of subdivision 6 of part B of 27 section 236 of the domestic relations law, as amended by chapter 269 of 28 the laws of 2015, is amended to read as follows: 29 (4) "Income cap" shall mean up to and including one hundred [seventy-30five] eighty-four thousand dollars of the payor's annual income; 31 provided, however, beginning [January thirty-first] March first, two 32 thousand [sixteen] twenty and every two years thereafter, the income cap 33 amount shall increase by the sum of the average annual percentage chang- 34 es in the consumer price index for all urban consumers (CPI-U) as 35 published by the United States department of labor bureau of labor 36 statistics for the prior two years multiplied by the then income cap and 37 then rounded to the nearest one thousand dollars. The office of court 38 administration shall determine and publish the income cap. 39 § 6. This act shall take effect on the ninetieth day after it shall 40 have become a law.
