S T A T E O F N E W Y O R K
________________________________________________________________________
1440
2009-2010 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 7, 2009
___________
Introduced by M. of A. WRIGHT -- Multi-Sponsored by -- M. of A.
J. RIVERA -- read once and referred to the Committee on Children and
Families
AN ACT to amend the family court act and the social services law, in
relation to preventing the unnecessary removal of children from a
custodial parent who is the victim of domestic violence without
further evidence of neglect by such parent
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 1022 of the family court act is amended by adding a
new subdivision (g) to read as follows:
(G) THERE SHALL BE A PRESUMPTION THAT A CUSTODIAL PARENT OR PERSON
LEGALLY RESPONSIBLE FOR A CHILD IS A FIT PARENT AND CAPABLE OF RAISING
SUCH CHILD OR CHILDREN IN A SAFE AND APPROPRIATE MANNER. AN ALLEGATION
OR FINDING THAT THE CUSTODIAL PARENT OR PERSON LEGALLY RESPONSIBLE FOR
THE CHILD WAS THE VICTIM OF DOMESTIC VIOLENCE SHALL BE INSUFFICIENT TO
ESTABLISH AN IMMINENT RISK TO THE CHILD'S LIFE OR HEALTH WITHOUT FURTHER
EVIDENCE THAT THE CHILD HAS BEEN ABUSED OR NEGLECTED BY THE VICTIM OF
THE DOMESTIC VIOLENCE.
S 2. Section 1024 of the family court act is amended by adding a new
subdivision (a-1) to read as follows:
(A-1) THERE SHALL BE A PRESUMPTION THAT A CUSTODIAL PARENT OR PERSON
LEGALLY RESPONSIBLE FOR A CHILD IS A FIT PARENT AND CAPABLE OF RAISING
SUCH CHILD OR CHILDREN IN A SAFE AND APPROPRIATE MANNER. AN ALLEGATION
OR FINDING THAT THE CUSTODIAL PARENT OR PERSON LEGALLY RESPONSIBLE FOR
THE CHILD WAS THE VICTIM OF DOMESTIC VIOLENCE SHALL BE INSUFFICIENT TO
ESTABLISH AN IMMINENT RISK TO THE CHILD'S LIFE OR HEALTH WITHOUT FURTHER
EVIDENCE THAT THE CHILD HAS BEEN ABUSED OR NEGLECTED BY THE VICTIM OF
THE DOMESTIC VIOLENCE.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00030-01-9
A. 1440 2
S 3. Section 1028 of the family court act is amended by adding a new
subdivision (g) to read as follows:
(G) THERE SHALL BE A PRESUMPTION THAT A CUSTODIAL PARENT OR PERSON
LEGALLY RESPONSIBLE FOR A CHILD IS A FIT PARENT AND CAPABLE OF RAISING
SUCH CHILD OR CHILDREN IN A SAFE AND APPROPRIATE MANNER. AN ALLEGATION
OR FINDING THAT THE CUSTODIAL PARENT OR PERSON LEGALLY RESPONSIBLE FOR
THE CHILD WAS THE VICTIM OF DOMESTIC VIOLENCE SHALL BE INSUFFICIENT TO
ESTABLISH AN IMMINENT RISK TO THE CHILD'S LIFE OR HEALTH WITHOUT FURTHER
EVIDENCE THAT THE CHILD HAS BEEN ABUSED OR NEGLECTED BY THE VICTIM OF
THE DOMESTIC VIOLENCE.
S 4. Subparagraph (B) of paragraph (i) of subdivision 4-a of section
371 of the social services law, as amended by chapter 984 of the laws of
1981, is amended to read as follows:
(B) in providing the child with proper supervision or guardianship, by
unreasonably inflicting or allowing to be inflicted harm, or a substan-
tial risk thereof, including the infliction of excessive corporal
punishment; or by misusing a drug or drugs; or by misusing alcoholic
beverages to the extent that he loses self-control of his actions; or by
any other acts of a similarly serious nature requiring the aid of the
court; provided, however, that where the respondent is voluntarily and
regularly participating in a rehabilitative program, evidence that the
respondent has repeatedly misused a drug or drugs or alcoholic beverages
to the extent that he loses self-control of his actions shall not estab-
lish that the child is a neglected child in the absence of evidence
establishing that the child's physical, mental or emotional condition
has been impaired or is in imminent danger of becoming impaired as set
forth in THIS paragraph [(i) of this subdivision], AND PROVIDED FURTHER,
THAT A CHILD SHALL NOT BE FOUND TO BE A NEGLECTED CHILD ON THE GROUNDS
THAT THE CUSTODIAL PARENT OR PERSON LEGALLY RESPONSIBLE FOR SUCH CHILD
IS A VICTIM OF DOMESTIC VIOLENCE UNLESS: THE CHILD EXPERIENCED THE
DOMESTIC VIOLENCE; IT IS ESTABLISHED BY EXPERT TESTIMONY THAT THE
SUBJECT CHILD WAS HARMED BY THE DOMESTIC VIOLENCE AND THAT THE SAFETY
RISK TO THE CHILD OUTWEIGHS THE RISKS ASSOCIATED WITH BEING SEPARATED
FROM THE CHILD'S CUSTODIAL PARENT; AND THE VICTIM WAS PROVIDED WITH
PREVENTIVE SERVICES THAT ARE APPROPRIATE, ACCESSIBLE AND SAFE INCLUDING,
BUT NOT LIMITED TO, REMOVAL OF THE BATTERER, ARREST AND PROSECUTION OF
THE BATTERER, PROVISION OF SAFE HOUSING AND ALTERNATIVE FINANCIAL
SUPPORT, AND THE VICTIM FAILED TO UTILIZE SUCH SERVICES AND IT IS DETER-
MINED THAT THE CHILD HAS BEEN HARMED OR PUT AT RISK BY SUCH FAILURE; or
S 5. Subparagraph (B) of paragraph (i) of subdivision (f) of section
1012 of the family court act, as amended by chapter 984 of the laws of
1981, is amended to read as follows:
(B) in providing the child with proper supervision or guardianship, by
unreasonably inflicting or allowing to be inflicted harm, or a substan-
tial risk thereof, including the infliction of excessive corporal
punishment; or by misusing a drug or drugs; or by misusing alcoholic
beverages to the extent that he loses self-control of his actions; or by
any other acts of a similarly serious nature requiring the aid of the
court; provided, however, that where the respondent is voluntarily and
regularly participating in a rehabilitative program, evidence that the
respondent has repeatedly misused a drug or drugs or alcoholic beverages
to the extent that he loses self-control of his actions shall not estab-
lish that the child is a neglected child in the absence of evidence
establishing that the child's physical, mental or emotional condition
has been impaired or is in imminent danger of becoming impaired as set
forth in THIS paragraph [(i) of this subdivision], AND PROVIDED FURTHER,
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THAT A CHILD SHALL NOT BE FOUND TO BE A NEGLECTED CHILD ON THE GROUNDS
THAT THE CUSTODIAL PARENT OR PERSON LEGALLY RESPONSIBLE FOR SUCH CHILD
IS A VICTIM OF DOMESTIC VIOLENCE UNLESS: THE CHILD EXPERIENCED THE
DOMESTIC VIOLENCE AND THAT THE SAFETY RISK TO THE CHILD OUTWEIGHS THE
RISKS ASSOCIATED WITH BEING SEPARATED FROM THE CHILD'S CUSTODIAL PARENT;
IT IS ESTABLISHED BY EXPERT TESTIMONY THAT THE SUBJECT CHILD WAS HARMED
BY THE DOMESTIC VIOLENCE; AND THE VICTIM WAS PROVIDED WITH PREVENTIVE
SERVICES THAT ARE APPROPRIATE, ACCESSIBLE AND SAFE INCLUDING, BUT NOT
LIMITED TO, REMOVAL OF THE BATTERER, ARREST AND PROSECUTION OF THE
BATTERER, PROVISION OF SAFE HOUSING AND ALTERNATIVE FINANCIAL SUPPORT,
AND THE VICTIM FAILED TO UTILIZE SUCH SERVICES AND IT IS DETERMINED THAT
THE CHILD HAS BEEN HARMED OR PUT AT RISK BY SUCH FAILURE; or
S 6. This act shall take effect immediately.