S T A T E O F N E W Y O R K
________________________________________________________________________
1415
2009-2010 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 7, 2009
___________
Introduced by M. of A. WRIGHT -- read once and referred to the Committee
on Judiciary
AN ACT to amend the family court act, in relation to orders of
protection in family offense proceedings; counseling for children
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 842 of the family court act, as amended by chapter
222 of the laws of 1994, the opening paragraph as amended by chapter 579
of the laws of 2003, subdivisions (a), (b), (c), (d) and (e) as amended
and subdivision (j) as added by chapter 483 of the laws of 1995, subdi-
vision (i) as added and subdivision (j) as relettered by chapter 253 of
the laws of 2006, the third undesignated paragraph as amended by chapter
224 of the laws of 1994, the sixth undesignated paragraph as added by
section 8 of part D of chapter 56 of the laws of 2008, the seventh
undesignated paragraph as amended by chapter 326 of the laws of 2008 and
the closing paragraph as added by chapter 73 of the laws of 2007, is
amended to read as follows:
S 842. Order of protection. An order of protection under section eight
hundred forty-one of this part shall set forth reasonable conditions of
behavior to be observed for a period not in excess of two years by the
petitioner or respondent or for a period not in excess of five years
upon (i) a finding by the court on the record of the existence of aggra-
vating circumstances as defined in paragraph (vii) of subdivision (a) of
section eight hundred twenty-seven of this article; or (ii) a finding by
the court on the record that the conduct alleged in the petition is in
violation of a valid order of protection. Any finding of aggravating
circumstances pursuant to this section shall be stated on the record and
upon the order of protection. Any order of protection issued pursuant to
this section shall specify if an order of probation is in effect. Any
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00177-01-9
A. 1415 2
order of protection issued pursuant to this section may require the
petitioner or the respondent:
(a) to stay away from the home, school, business or place of employ-
ment of any other party, the other spouse, the other parent, or the
child, and to stay away from any other specific location designated by
the court, provided that the court shall make a determination, and shall
state such determination in a written decision or on the record, whether
to impose a condition pursuant to this subdivision, provided further,
however, that failure to make such a determination shall not affect the
validity of such order of protection. In making such determination, the
court shall consider, but shall not be limited to consideration of,
whether the order of protection is likely to achieve its purpose in the
absence of such a condition, conduct subject to prior orders of
protection, prior incidents of abuse, extent of past or present injury,
threats, drug or alcohol abuse, and access to weapons;
(b) to permit a parent, or a person entitled to visitation by a court
order or a separation agreement, to visit the child at stated periods;
(c) to refrain from committing a family offense, as defined in subdi-
vision one of section eight hundred twelve of this act, or any criminal
offense against the child or against the other parent or against any
person to whom custody of the child is awarded, or from harassing,
intimidating or threatening such persons;
(d) to permit a designated party to enter the residence during a spec-
ified period of time in order to remove personal belongings not in issue
in this proceeding or in any other proceeding or action under this act
or the domestic relations law;
(e) to refrain from acts of commission or omission that create an
unreasonable risk to the health, safety or welfare of a child;
(f) to pay the reasonable counsel fees and disbursements involved in
obtaining or enforcing the order of the person who is protected by such
order if such order is issued or enforced;
(g) to require the respondent to participate in a batterer's education
program designed to help end violent behavior, which may include refer-
ral to drug and alcohol counselling, and to pay the costs thereof if the
person has the means to do so, provided however that nothing contained
herein shall be deemed to require payment of the costs of any such
program by the petitioner, the state or any political subdivision there-
of; [and]
(h) to provide, either directly or by means of medical and health
insurance, for expenses incurred for medical care and treatment arising
from the incident or incidents forming the basis for the issuance of the
order[.];
(i) 1. to refrain from intentionally injuring or killing, without
justification, any companion animal the respondent knows to be owned,
possessed, leased, kept or held by the petitioner or a minor child
residing in the household.
2. "Companion animal", as used in this section, shall have the same
meaning as in subdivision five of section three hundred fifty of the
agriculture and markets law.
(j) to observe such other conditions as are necessary to further the
purposes of protection.
The court may also award custody of the child, during the term of the
order of protection to either parent, or to an appropriate relative
within the second degree. Nothing in this section gives the court power
to place or board out any child or to commit a child to an institution
A. 1415 3
or agency. The court may also upon the showing of special circumstances
extend the order of protection for a reasonable period of time.
THE COURT SHALL ORDER COUNSELING FOR CHILDREN WHEN ONE MEMBER OF THE
FAMILY OR HOUSEHOLD HAS BEEN CHARGED WITH OR FOUND TO HAVE COMMITTED A
FAMILY OFFENSE AGAINST ANOTHER MEMBER OF THE FAMILY OR HOUSEHOLD, WHERE
THERE IS A DEMONSTRATED NEED FOR PSYCHOLOGICAL INTERVENTION, EVEN IF THE
CHILDREN WERE NOT THE DIRECT VICTIMS.
Notwithstanding the provisions of section eight hundred seventeen of
this article, where a temporary order of child support has not already
been issued, the court may in addition to the issuance of an order of
protection pursuant to this section, issue an order for temporary child
support in an amount sufficient to meet the needs of the child, without
a showing of immediate or emergency need. The court shall make an order
for temporary child support notwithstanding that information with
respect to income and assets of the respondent may be unavailable. Where
such information is available, the court may make an award for temporary
child support pursuant to the formula set forth in subdivision one of
section four hundred thirteen of this act. Temporary orders of support
issued pursuant to this article shall be deemed to have been issued
pursuant to section four hundred thirteen of this act.
Upon making an order for temporary child support pursuant to this
subdivision, the court shall advise the petitioner of the availability
of child support enforcement services by the support collection unit of
the local department of social services, to enforce the temporary order
and to assist in securing continued child support, and shall set the
support matter down for further proceedings in accordance with article
four of this act.
Where the court determines that the respondent has employer-provided
medical insurance, the court may further direct, as part of an order of
temporary support under this subdivision, that a medical support
execution be issued and served upon the respondent's employer as
provided for in section fifty-two hundred forty-one of the civil prac-
tice law and rules.
In any proceeding in which an order of protection or temporary order
of protection or a warrant has been issued under this section, the clerk
of the court shall issue to the petitioner and respondent and his coun-
sel and to any other person affected by the order a copy of the order of
protection or temporary order of protection and ensure that a copy of
the order of protection or temporary order of protection be transmitted
to the local correctional facility where the individual is or will be
detained, the state or local correctional facility where the individual
is or will be imprisoned, and the supervising probation department or
division of parole where the individual is under probation or parole
supervision.
Notwithstanding the foregoing provisions, an order of protection, or
temporary order of protection where applicable, may be entered against a
former spouse and persons who have a child in common, regardless of
whether such persons have been married or have lived together at any
time, or against a member of the same family or household as defined in
subdivision one of section eight hundred twelve of this article.
In addition to the foregoing provisions, the court may issue an order,
pursuant to section two hundred twenty-seven-c of the real property law,
authorizing the party for whose benefit any order of protection has been
issued to terminate a lease or rental agreement pursuant to section two
hundred twenty-seven-c of the real property law.
S 2. This act shall take effect immediately.