Bill Text: NY S06423 | 2019-2020 | General Assembly | Introduced
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: (Passed) 2019-10-03 - SIGNED CHAP.335 [S06423 Detail]
Download: New_York-2019-S06423-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 6423 2019-2020 Regular Sessions IN SENATE June 10, 2019 ___________ Introduced by Sen. MONTGOMERY -- (at request of the Office of Court Administration) -- read twice and ordered printed, and when printed to be committed to the Committee on Rules 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 the spousal maintenance "cap" 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 added 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. 19 5. Notwithstanding the provisions of section eight hundred seventeen 20 of this article, where a temporary order of spousal support has not 21 already been issued, the court may, in addition to the issuance of a 22 temporary order of protection pursuant to this section, issue an order EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD10899-03-9S. 6423 2 1 directing the parties to appear within seven business days of the issu- 2 ance of the order in the family court, in the same action, for consider- 3 ation of an order for temporary spousal support in accordance with arti- 4 cle four of this act. If the court directs the parties to so appear, the 5 court shall direct the parties to appear with information with respect 6 to income and assets, but a temporary order for spousal support may be 7 issued pursuant to article four of this act on the return date notwith- 8 standing the respondent's default upon notice and notwithstanding that 9 information with respect to income and assets of the petitioner or 10 respondent may be unavailable. 11 § 3. Section 842 of the family court act, as amended by chapter 526 12 and the closing paragraph as added by chapter 480 of the laws of 2013, 13 is amended to read as follows: 14 § 842. Order of protection. An order of protection under section eight 15 hundred forty-one of this part shall set forth reasonable conditions of 16 behavior to be observed for a period not in excess of two years by the 17 petitioner or respondent or for a period not in excess of five years 18 upon (i) a finding by the court on the record of the existence of aggra- 19 vating circumstances as defined in paragraph (vii) of subdivision (a) of 20 section eight hundred twenty-seven of this article; or (ii) a finding by 21 the court on the record that the conduct alleged in the petition is in 22 violation of a valid order of protection. Any finding of aggravating 23 circumstances pursuant to this section shall be stated on the record and 24 upon the order of protection. The court may also, upon motion, extend 25 the order of protection for a reasonable period of time upon a showing 26 of good cause or consent of the parties. The fact that abuse has not 27 occurred during the pendency of an order shall not, in itself, consti- 28 tute sufficient ground for denying or failing to extend the order. The 29 court must articulate a basis for its decision on the record. The dura- 30 tion of any temporary order shall not by itself be a factor in determin- 31 ing the length or issuance of any final order. Any order of protection 32 issued pursuant to this section shall specify if an order of probation 33 is in effect. Any order of protection issued pursuant to this section 34 may require the petitioner or the respondent: 35 (a) to stay away from the home, school, business or place of employ- 36 ment of any other party, the other spouse, the other parent, or the 37 child, and to stay away from any other specific location designated by 38 the court, provided that the court shall make a determination, and shall 39 state such determination in a written decision or on the record, whether 40 to impose a condition pursuant to this subdivision, provided further, 41 however, that failure to make such a determination shall not affect the 42 validity of such order of protection. In making such determination, the 43 court shall consider, but shall not be limited to consideration of, 44 whether the order of protection is likely to achieve its purpose in the 45 absence of such a condition, conduct subject to prior orders of 46 protection, prior incidents of abuse, extent of past or present injury, 47 threats, drug or alcohol abuse, and access to weapons; 48 (b) to permit a parent, or a person entitled to visitation by a court 49 order or a separation agreement, to visit the child at stated periods; 50 (c) to refrain from committing a family offense, as defined in subdi- 51 vision one of section eight hundred twelve of this [act] article, or any 52 criminal offense against the child or against the other parent or 53 against any person to whom custody of the child is awarded, or from 54 harassing, intimidating or threatening such persons; 55 (d) to permit a designated party to enter the residence during a spec- 56 ified period of time in order to remove personal belongings not in issueS. 6423 3 1 in this proceeding or in any other proceeding or action under this act 2 or the domestic relations law; 3 (e) to refrain from acts of commission or omission that create an 4 unreasonable risk to the health, safety or welfare of a child; 5 (f) to pay the reasonable counsel fees and disbursements involved in 6 obtaining or enforcing the order of the person who is protected by such 7 order if such order is issued or enforced; 8 (g) to require the respondent to participate in a batterer's education 9 program designed to help end violent behavior, which may include refer- 10 ral to drug and alcohol counselling, and to pay the costs thereof if the 11 person has the means to do so, provided however that nothing contained 12 herein shall be deemed to require payment of the costs of any such 13 program by the petitioner, the state or any political subdivision there- 14 of; 15 (h) to provide, either directly or by means of medical and health 16 insurance, for expenses incurred for medical care and treatment arising 17 from the incident or incidents forming the basis for the issuance of the 18 order; 19 (i) 1. to refrain from intentionally injuring or killing, without 20 justification, any companion animal the respondent knows to be owned, 21 possessed, leased, kept or held by the petitioner or a minor child 22 residing in the household. 23 2. "Companion animal", as used in this section, shall have the same 24 meaning as in subdivision five of section three hundred fifty of the 25 agriculture and markets law; 26 (j) 1. to promptly return specified identification documents to the 27 protected party, in whose favor the order of protection or temporary 28 order of protection is issued; provided, however, that such order may: 29 (A) include any appropriate provision designed to ensure that any such 30 document is available for use as evidence in this proceeding, and avail- 31 able if necessary for legitimate use by the party against whom such 32 order is issued; and (B) specify the manner in which such return shall 33 be accomplished. 34 2. For purposes of this subdivision, "identification document" shall 35 mean any of the following: (A) exclusively in the name of the protected 36 party: birth certificate, passport, social security card, health insur- 37 ance or other benefits card, a card or document used to access bank, 38 credit or other financial accounts or records, tax returns, any driver's 39 license, and immigration documents including but not limited to a United 40 States permanent resident card and employment authorization document; 41 and (B) upon motion and after notice and an opportunity to be heard, any 42 of the following, including those that may reflect joint use or owner- 43 ship, that the court determines are necessary and are appropriately 44 transferred to the protected party: any card or document used to access 45 bank, credit or other financial accounts or records, tax returns, and 46 any other identifying cards and documents; and 47 (k) to observe such other conditions as are necessary to further the 48 purposes of protection. 49 The court may also award custody of the child, during the term of the 50 order of protection to either parent, or to an appropriate relative 51 within the second degree. Nothing in this section gives the court power 52 to place or board out any child or to commit a child to an institution 53 or agency. 54 Notwithstanding the provisions of section eight hundred seventeen of 55 this article, where a temporary order of child support has not already 56 been issued, the court may in addition to the issuance of an order ofS. 6423 4 1 protection pursuant to this section, issue an order for temporary child 2 support in an amount sufficient to meet the needs of the child, without 3 a showing of immediate or emergency need. The court shall make an order 4 for temporary child support notwithstanding that information with 5 respect to income and assets of the respondent may be unavailable. Where 6 such information is available, the court may make an award for temporary 7 child support pursuant to the formula set forth in subdivision one of 8 section four hundred thirteen of this act. Temporary orders of support 9 issued pursuant to this article shall be deemed to have been issued 10 pursuant to section four hundred thirteen of this act. 11 Upon making an order for temporary child support pursuant to this 12 subdivision, the court shall advise the petitioner of the availability 13 of child support enforcement services by the support collection unit of 14 the local department of social services, to enforce the temporary order 15 and to assist in securing continued child support, and shall set the 16 support matter down for further proceedings in accordance with article 17 four of this act. 18 Where the court determines that the respondent has employer-provided 19 medical insurance, the court may further direct, as part of an order of 20 temporary support under this subdivision, that a medical support 21 execution be issued and served upon the respondent's employer as 22 provided for in section fifty-two hundred forty-one of the civil prac- 23 tice law and rules. 24 Notwithstanding the provisions of section eight hundred seventeen of 25 this article, where a temporary order of spousal support has not already 26 been issued, the court may, in addition to the issuance of an order of 27 protection pursuant to this section, issue an order directing the 28 parties to appear within seven business days of the issuance of the 29 order in the family court, in the same action, for consideration of an 30 order for temporary spousal support in accordance with article four of 31 this act. If the court directs the parties to so appear, the court shall 32 direct the parties to appear with information with respect to income and 33 assets, but a temporary order for spousal support may be issued pursuant 34 to article four of this act on the return date notwithstanding the 35 respondent's default upon notice and notwithstanding that information 36 with respect to income and assets of the petitioner or respondent may be 37 unavailable. 38 In any proceeding in which an order of protection or temporary order 39 of protection or a warrant has been issued under this section, the clerk 40 of the court shall issue to the petitioner and respondent and his or her 41 counsel and to any other person affected by the order a copy of the 42 order of protection or temporary order of protection and ensure that a 43 copy of the order of protection or temporary order of protection [be] is 44 transmitted to the local correctional facility where the individual is 45 or will be detained, the state or local correctional facility where the 46 individual is or will be imprisoned, and the supervising probation 47 department or the department of corrections and community supervision 48 where the individual is under probation or parole supervision. 49 Notwithstanding the foregoing provisions, an order of protection, or 50 temporary order of protection where applicable, may be entered against a 51 former spouse and persons who have a child in common, regardless of 52 whether such persons have been married or have lived together at any 53 time, or against a member of the same family or household as defined in 54 subdivision one of section eight hundred twelve of this article. 55 In addition to the foregoing provisions, the court may issue an order, 56 pursuant to section two hundred twenty-seven-c of the real property law,S. 6423 5 1 authorizing the party for whose benefit any order of protection has been 2 issued to terminate a lease or rental agreement pursuant to section two 3 hundred twenty-seven-c of the real property law. 4 The protected party in whose favor the order of protection or tempo- 5 rary order of protection is issued may not be held to violate an order 6 issued in his or her favor nor may such protected party be arrested for 7 violating such order. 8 § 4. Subparagraph 5 of paragraph (b) of subdivision 5-a of part B of 9 section 236 of the domestic relations law, as amended by chapter 269 of 10 the laws of 2015, is amended to read as follows: 11 (5) "Income cap" shall mean up to and including one hundred [seventy-12five] eighty-four thousand dollars of the payor's annual income; 13 provided, however, beginning [January thirty-first] March first, two 14 thousand [sixteen] twenty and every two years thereafter, the income cap 15 amount shall increase by the sum of the average annual percentage chang- 16 es in the consumer price index for all urban consumers (CPI-U) as 17 published by the United States department of labor bureau of labor 18 statistics for the prior two years multiplied by the then income cap and 19 then rounded to the nearest one thousand dollars. The office of court 20 administration shall determine and publish the income cap. 21 § 5. Subparagraph 4 of paragraph (b) of subdivision 6 of part B of 22 section 236 of the domestic relations law, as amended by chapter 269 of 23 the laws of 2015, is amended to read as follows: 24 (4) "Income cap" shall mean up to and including one hundred [seventy-25five] eighty-four thousand dollars of the payor's annual income; 26 provided, however, beginning [January thirty-first] March first, two 27 thousand [sixteen] twenty and every two years thereafter, the income cap 28 amount shall increase by the sum of the average annual percentage chang- 29 es in the consumer price index for all urban consumers (CPI-U) as 30 published by the United States department of labor bureau of labor 31 statistics for the prior two years multiplied by the then income cap and 32 then rounded to the nearest one thousand dollars. The office of court 33 administration shall determine and publish the income cap. 34 § 6. This act shall take effect immediately.
