Bill Text: NY S07896 | 2017-2018 | General Assembly | Introduced
Bill Title: Relates to orders of protection in termination of parental rights proceedings, child protective proceedings and permanency hearings.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Engrossed - Dead) 2018-06-12 - referred to children and families [S07896 Detail]
Download: New_York-2017-S07896-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 7896 IN SENATE March 7, 2018 ___________ Introduced by Sen. AVELLA -- (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 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 The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The family court act is amended by adding a new section 2 634-a to read as follows: 3 § 634-a. Orders of protection and temporary orders of protection. (a) 4 Where the petitioner alleges that the respondent has committed a family 5 offense among the offenses enumerated in subdivision one of section 6 eight hundred twelve of this act against the child, the child's foster, 7 pre-adoptive or adoptive parent or parents or other members of the 8 household in which the child resides, the petitioner may seek an order 9 of protection against the respondent in writing, either in the petition, 10 by an order to show cause or by motion, upon notice to all parties, 11 including the attorney for the child. 12 (b) Where the court has a reasonable basis to believe that the 13 respondent has committed a family offense among the offenses enumerated 14 in subdivision one of section eight hundred twelve of this act against 15 the child, the child's foster, pre-adoptive or adoptive parent or 16 parents or other members of the household in which the child resides, 17 the court may, upon good cause, issue a temporary order of protection to 18 protect the child and the child's foster, pre-adoptive or adoptive 19 parent or parents and other designated members of the household in which 20 the child resides during the pendency of the proceeding under this arti- 21 cle or until further order of the court, whichever is earlier. Where the 22 order is granted on an emergency basis ex parte, all parties, including 23 the attorney for the child, shall be given notice and a prompt opportu- 24 nity to be heard. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD14766-01-8S. 7896 2 1 (c) Upon disposition on an adjudication of permanent neglect, where 2 the court, after giving all parties, including the attorney for the 3 child, notice and an opportunity to be heard, determines by a preponder- 4 ance of the evidence that a family offense among the offenses enumerated 5 in subdivision one of section eight hundred twelve of this act had been 6 committed and that good cause exists, the court may issue an order of 7 protection to protect the child and the child's foster, pre-adoptive or 8 adoptive parent or parents and other designated members of the household 9 in which the child resides. An order of protection issued under this 10 section may remain in effect for a period of up to five years. 11 (d) An order of protection or temporary order of protection issued 12 under this section may direct the respondent to observe reasonable 13 conditions that further the purposes of protection, which may include, 14 among others, that the respondent stay away from the child and from the 15 home, school, business or place of employment of the child or the 16 child's foster, pre-adoptive or adoptive parent or parents or other 17 designated members of the household in which the child resides. Prior to 18 issuing the order, the court shall inquire as to the existence of any 19 other orders of protection involving the parties. The court shall state 20 its reasons on the record for issuing the order. 21 (e) Prior to the expiration of the period of an order of protection or 22 temporary order of protection issued under this section, a motion or 23 order to show cause may be filed that alleges that the respondent 24 violated the terms and conditions of such order willfully and without 25 just cause. If, after giving notice and an opportunity to be heard to 26 all parties, including the attorney for the child, the court is satis- 27 fied by competent proof that the respondent violated the order of 28 protection or temporary order of protection willfully and without just 29 cause, the court may issue an order pursuant to section eight hundred 30 forty-two-a, eight hundred forty-six or eight hundred forty-six-a of 31 this act. 32 (f) The court may, upon motion, extend the order of protection for a 33 reasonable period of time upon a showing of good cause or consent of the 34 parties. The fact that a violation of the order has not been pleaded or 35 proven during the pendency of the order shall not constitute sufficient 36 ground for denying or failing to extend the order. The court must artic- 37 ulate a basis for its decision on the record. 38 § 2. Subdivision (a) of section 1029 of the family court act, as 39 amended by chapter 41 of the laws of 2010, is amended to read as 40 follows: 41 (a) [The] Where the petitioner alleges that the respondent has commit- 42 ted a family offense among the offenses enumerated in subdivision one of 43 section eight hundred twelve of this act against the child, the child's 44 parent or parents, the child's foster, pre-adoptive or adoptive parent 45 or parents or other members of the household in which the child resides, 46 the petitioner may seek a temporary order of protection against the 47 respondent in writing, either in the petition, by order to show cause or 48 by motion, upon notice to all parties, including the attorney for the 49 child. 50 (i) Where the court has a reasonable basis to believe that the 51 respondent has committed a family offense among the offenses enumerated 52 in subdivision one of section eight hundred twelve of this act against 53 the child, the child's foster, pre-adoptive or adoptive parent or 54 parents or other members of the household in which the child resides, 55 the family court, upon [the application of any person who may originate56a proceeding under this article, for] good cause shown, may issue aS. 7896 3 1 temporary order of protection, before or after the filing of such peti- 2 tion, [which] to protect the child, the child's parent, the child's 3 foster, pre-adoptive or adoptive parent or parents and other designated 4 members of the household in which the child resides during the pendency 5 of the proceeding or until further order of the court, whichever is 6 earlier. 7 (ii) The order may contain any of the provisions authorized on the 8 making of an order of protection under section one thousand fifty-six of 9 this article. 10 (iii) Where the order is granted on an emergency basis ex parte, all 11 parties, including the attorney for the child, shall be given notice and 12 a prompt opportunity to be heard. 13 (iv) Prior to issuing a temporary order of protection under this 14 section, the court shall inquire as to the existence of any other orders 15 of protection involving the parties. 16 (v) If such order is granted before the filing of a petition and a 17 petition is not filed under this article within ten days from the grant- 18 ing of such order, the order shall be vacated. In any case where a peti- 19 tion has been filed and an attorney for the child has been appointed, 20 such attorney may make application for a temporary order of protection 21 pursuant to the provisions of this section. 22 § 3. Subdivision 2 of section 1056 of the family court act, as amended 23 by chapter 220 of the laws of 1989, is amended to read as follows: 24 2. [The] Where the petitioner alleges in writing that the respondent 25 has committed a family offense among the offenses enumerated in subdivi- 26 sion one of section eight hundred twelve of this act against the child, 27 the child's parent or parents, the child's foster, pre-adoptive or adop- 28 tive parent or parents or other members of the household in which the 29 child resides, the order of protection against the respondent may be 30 issued to protect such person or persons. Prior to issuing an order of 31 protection under this section, the court shall inquire as to the exist- 32 ence of any other orders of protection involving the parties. Where the 33 court [may also award] has determined, in accordance with the require- 34 ments of section one thousand seventeen, part two, section one thousand 35 fifty-two or section one thousand fifty-five of this article to release 36 a child to a non-respondent parent or to directly place or order custody 37 of the child, during the term of the temporary order of protection or 38 order of protection, as applicable, to [either parent, or to] an appro- 39 priate relative [within the second degree] or suitable person, the order 40 of release or custody may be included in the temporary order of 41 protection or order of protection, as applicable. Nothing in this 42 section gives the court power to place or board out any child or to 43 commit a child to an institution or agency. In making orders of 44 protection, the court shall so act as to insure that in the care, 45 protection, discipline and guardianship of the child his or her reli- 46 gious faith shall be preserved and protected. 47 § 4. Section 1072 of the family court act, as amended by chapter 1039 48 of the laws of 1973, the opening paragraph as amended by chapter 437 of 49 the laws of 2006, is amended to read as follows: 50 § 1072. Failure to comply with terms and conditions of supervision or 51 order of protection. 1. If, prior to the expiration of the period of an 52 order of supervision pursuant to section one thousand [fifty-four or one53thousand] fifty-seven of this article, a motion or order to show cause 54 is filed that alleges that a parent or other person legally responsible 55 for a child's care violated the terms and conditions of an order of 56 supervision issued under section one thousand [fifty-four or one thou-S. 7896 4 1sand] fifty-seven of this article, the period of the order of super- 2 vision shall be tolled pending disposition of the motion or order to 3 show cause. If, after hearing, the court is satisfied by competent proof 4 that the parent or other person violated the order of supervision will- 5 fully and without just cause, the court may: 6 (a) revoke the order of supervision [or of protection] and enter any 7 order that might have been made at the time the order of supervision [or8of protection] was made, or 9 (b) commit the parent or other person who willfully and without just 10 cause violated the order to jail for a term not to exceed six months. 11 2. Prior to the expiration of the period of an order of protection or 12 temporary order of protection issued pursuant to section one thousand 13 twenty-nine or one thousand fifty-six of this article, a motion or order 14 to show cause may be filed that alleges that the respondent violated the 15 terms and conditions of such order willfully and without just cause. 16 If, after giving all parties, including the attorney for the child, 17 notice and an opportunity to be heard, the court is satisfied by compe- 18 tent proof that the respondent violated the order of protection or 19 temporary order of protection willfully and without just cause, the 20 court may: 21 (a) revoke or modify the order of protection or temporary order of 22 protection and enter any order that might have been made at the time 23 such order had been issued, or 24 (b) issue an order in accordance with sections eight hundred forty- 25 two-a, eight hundred forty-six, eight hundred forty-six-a or one thou- 26 sand fifty-six-a of this act; provided, however, that a commitment under 27 this paragraph to a definite jail term as a result of a determination of 28 criminal contempt, whether or not such term has been suspended, must be 29 based upon proof beyond a reasonable doubt. 30 § 5. Clause (D) of subparagraph (viii) of paragraph 2 of subdivision 31 (d) of section 1089 of the family court act is amended by adding five 32 new items (I), (II), (III), (IV) and (V) to read as follows: 33 (I) Where the petitioner alleges in writing that the child's parent or 34 person legally responsible for the child's care has committed a family 35 offense among the offenses enumerated in subdivision one of section 36 eight hundred twelve of this act against the child, the child's foster, 37 pre-adoptive or adoptive parent or parents or other members of the 38 household in which the child resides, the petitioner may seek an order 39 of protection against such parent or person. Such an order may be sought 40 against a parent or person legally responsible for the child's care 41 against whom a child protective finding had been made under article ten 42 of this act or a family offense finding under article eight of this act 43 or against a parent determined to have committed a family offense in an 44 application for an order of protection under section six hundred thir- 45 ty-four-a of this act or section three hundred eighty-four-b of the 46 social services law. Notice of the application shall be given to all 47 parties, including the attorney for the child. Where the child has been 48 freed for adoption, the parent whose rights had been terminated or 49 surrendered and against whom the order is sought shall be given notice, 50 the right to intervene, the right to counsel, including appointed coun- 51 sel if indigent, and the right to be heard regarding the application. 52 (II) Where the court has a reasonable basis to believe that the 53 respondent has committed such a family offense against the child, the 54 child's foster, pre-adoptive or adoptive parent or parents or other 55 members of the household in which the child resides, the court may, upon 56 good cause, issue a temporary order of protection to protect the childS. 7896 5 1 and the child's foster, pre-adoptive or adoptive parent or parents and 2 other designated members of the household in which the child resides 3 during the pendency of the proceeding under this article or until 4 further order of the court, whichever is earlier. Where the order is 5 granted on an emergency basis ex parte, all parties, including the 6 attorney for the child, and respondent parent-intervenor, if any, shall 7 be given notice and a prompt opportunity to be heard. 8 (III) Upon issuance of a permanency hearing order under this subdivi- 9 sion, where the court, after giving all parties, including the attorney 10 for the child and parent-intervenor, if any, notice and an opportunity 11 to be heard, determines by a preponderance of the evidence that a family 12 offense among the offenses enumerated in subdivision one of section 13 eight hundred twelve of this act has been committed and that good cause 14 exists, the court may issue an order of protection to protect the child 15 and the child's foster, pre-adoptive or adoptive parent or parents and 16 other designated members of the household in which the child resides. An 17 order of protection issued under this paragraph may remain in effect for 18 a period of up to five years. 19 (IV) An order of protection or temporary order of protection issued 20 under this clause may direct the parent, person legally responsible for 21 the child's care or parent-intervenor, if any, to observe reasonable 22 conditions that further the purposes of protection and that may include, 23 among others, to stay away from the child and from the home, school, 24 business or place of employment of the child or the child's foster, 25 pre-adoptive or adoptive parent or parents or other designated members 26 of the household in which the child resides. Prior to issuing the order, 27 the court shall inquire as to the existence of any other orders of 28 protection involving the parties. The court shall state its reasons on 29 the record for issuing the order. 30 (V) Prior to the expiration of the period of an order of protection or 31 temporary order of protection issued under this section, a motion or 32 order to show cause may be filed that alleges that the person against 33 whom the order was issued violated the terms and conditions of such 34 order willfully and without just cause. If, after giving notice and an 35 opportunity to be heard to all parties, including the attorney for the 36 child, the court is satisfied by competent proof that such person 37 violated the order of protection or temporary order of protection will- 38 fully and without just cause, the court may issue an order pursuant to 39 section eight hundred forty-two-a, eight hundred forty-six, eight 40 hundred forty-six-a or one thousand fifty-six-a of this act; provided, 41 however, that a commitment under this paragraph to a definite jail term 42 as a result of a determination of criminal contempt, whether or not such 43 term has been suspended, must be based upon proof beyond a reasonable 44 doubt. 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. (a) Where the petitioner alleges that the respondent has committed 48 a family offense among the offenses enumerated in subdivision one of 49 section eight hundred twelve of the family court act against the child, 50 the child's foster, pre-adoptive or adoptive parent or parents or other 51 members of the household in which the child resides, the petitioner may 52 seek an order of protection against the respondent in writing, either in 53 the petition, by order to show cause or by motion, upon notice to all 54 parties, including the attorney for the child. 55 (b) Where the court has a reasonable basis to believe that the 56 respondent has committed a family offense among the offenses enumeratedS. 7896 6 1 in subdivision one of section eight hundred twelve of the family court 2 act against the child, the child's foster, pre-adoptive or adoptive 3 parent or parents or other members of the household in which the child 4 resides, the court may, upon good cause, issue a temporary order of 5 protection to protect the child and the child's foster, pre-adoptive or 6 adoptive parent or parents and other designated members of the household 7 in which the child resides during the pendency of the proceeding under 8 this article or until further order of the court, whichever is earlier. 9 Where the order is granted on an emergency basis ex parte, all parties, 10 including the attorney for the child, shall be given notice and a prompt 11 opportunity to be heard, 12 (c) Upon disposition on an adjudication terminating parental rights, 13 where the court, after giving all parties, including the attorney for 14 the child, notice and an opportunity to be heard, determines by a 15 preponderance of the evidence that a family offense among the offenses 16 enumerated in subdivision one of section eight hundred twelve of the 17 family court act had been committed and that good cause exists, the 18 court may issue an order of protection to protect the child and the 19 child's foster, pre-adoptive or adoptive parent or parents and other 20 designated members of the household in which the child resides. An order 21 of protection issued under this paragraph may remain in effect for a 22 period of up to five years. 23 (d) An order of protection or temporary order of protection issued 24 under this subdivision may direct the respondent to observe reasonable 25 conditions that further the purposes of protection, which may include, 26 among others, that the respondent stay away from the child and from the 27 home, school, business or place of employment of the child or the 28 child's foster, pre-adoptive or adoptive parent or parents or other 29 designated members of the household in which the child resides. Prior to 30 issuing the order, the court shall inquire as to the existence of any 31 other orders of protection involving the parties. The court shall state 32 its reasons on the record for issuing the order. 33 (e) Prior to the expiration of the period of an order of protection or 34 temporary order of protection issued under this subdivision, a motion or 35 order to show cause may be filed that alleges that the respondent 36 violated the terms and conditions of such order willfully and without 37 just cause. If, after giving notice and an opportunity to be heard to 38 all parties, including the attorney for the child, the court is satis- 39 fied by competent proof that the respondent violated the order of 40 protection or temporary order of protection willfully and without just 41 cause, the court may issue an order pursuant to section eight hundred 42 forty-two-a, eight hundred forty-six or eight hundred forty-six-a of the 43 family court act; provided, however, that a commitment under this para- 44 graph to a definite jail term as a result of a determination of criminal 45 contempt, whether or not such term has been suspended, must be based 46 upon proof beyond a reasonable doubt. 47 § 7. Subdivision 1 of section 221-a of the executive law, as amended 48 by chapter 492 of the laws of 2015, is amended to read as follows: 49 1. The superintendent, in consultation with the division of criminal 50 justice services, office of court administration, and the office for the 51 prevention of domestic violence, shall develop a comprehensive plan for 52 the establishment and maintenance of a statewide computerized registry 53 of all orders of protection issued pursuant to articles four, five, six, 54 eight [and], ten and ten-a of the family court act, section three 55 hundred eighty-four-b of the social services law, section 530.12 of the 56 criminal procedure law and, insofar as they involve victims of domesticS. 7896 7 1 violence as defined by section four hundred fifty-nine-a of the social 2 services law, section 530.13 of the criminal procedure law and sections 3 two hundred forty and two hundred fifty-two of the domestic relations 4 law, and orders of protection issued by courts of competent jurisdiction 5 in another state, territorial or tribal jurisdiction, special orders of 6 conditions issued pursuant to subparagraph (i) or (ii) of paragraph (o) 7 of subdivision one of section 330.20 of the criminal procedure law inso- 8 far as they involve a victim or victims of domestic violence as defined 9 by subdivision one of section four hundred fifty-nine-a of the social 10 services law or a designated witness or witnesses to such domestic 11 violence, and all warrants issued pursuant to sections one hundred 12 fifty-three and eight hundred twenty-seven of the family court act, and 13 arrest and bench warrants as defined in subdivisions twenty-eight, twen- 14 ty-nine and thirty of section 1.20 of the criminal procedure law, inso- 15 far as such warrants pertain to orders of protection or temporary orders 16 of protection; provided, however, that warrants issued pursuant to 17 section one hundred fifty-three of the family court act pertaining to 18 articles three and seven of such act and section 530.13 of the criminal 19 procedure law shall not be included in the registry. The superintendent 20 shall establish and maintain such registry for the purposes of ascer- 21 taining the existence of orders of protection, temporary orders of 22 protection, warrants and special orders of conditions, and for enforcing 23 the provisions of paragraph (b) of subdivision four of section 140.10 of 24 the criminal procedure law. 25 § 8. This act shall take effect on the ninetieth day after it shall 26 have become a law.
