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
              

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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

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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.