S T A T E O F N E W Y O R K
________________________________________________________________________
5215
2009-2010 Regular Sessions
I N A S S E M B L Y
February 11, 2009
___________
Introduced by M. of A. V. LOPEZ -- Multi-Sponsored by -- M. of A. COOK
-- read once and referred to the Committee on Children and Families
AN ACT to amend the family court act, in relation to the conduct of
child protective proceedings
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The family court act is amended by adding a new section
1046-a to read as follows:
S 1046-A. IN CAMERA TESTIMONY OF INFANTS. (A) DEFINITIONS. AS USED IN
THIS SECTION:
(I) "TESTIMONY IN CAMERA" MEANS THE TESTIMONY OF A VULNERABLE CHILD
TAKEN BY THE COURT IN A TESTIMONIAL ROOM OUTSIDE THE PRESENCE OF THE
RESPONDENT.
(II) "TESTIMONIAL ROOM" MEANS ANY ROOM, SEPARATE AND APART FROM THE
COURTROOM, WHICH IS FURNISHED COMFORTABLY AND LESS FORMALLY THAN A
COURTROOM.
(B) A CHILD'S TESTIMONY MAY BE TAKEN IN CAMERA ONLY WHERE THE COURT
HAS DETERMINED, PURSUANT TO SECTION ONE THOUSAND FORTY-SIX-B OF THIS
PART, THAT THE CHILD IS A VULNERABLE CHILD.
(C) THE IN CAMERA EXAMINATION AND CROSS-EXAMINATION OF A VULNERABLE
CHILD SHALL BE CONDUCTED IN THE SAME MANNER AS IF THE VULNERABLE CHILD
HAD TESTIFIED IN THE COURTROOM, WITH COUNSEL FOR RESPONDENT AND THE
CHILD'S LAW GUARDIAN PRESENT AND ABLE TO EXAMINE AND CROSS-EXAMINE THE
CHILD.
(D) RECORDING OF IN CAMERA TESTIMONY OF A CHILD. THE COURT SHALL NOT
TAKE THE TESTIMONY OF A CHILD IN ANY ACTION OR PROCEEDING BROUGHT UNDER
THIS ARTICLE UNLESS A STENOGRAPHIC RECORD OF SUCH TESTIMONY IS MADE. ANY
STENOGRAPHIC RECORD MADE PURSUANT TO THIS SUBDIVISION SHALL BE MADE
AVAILABLE TO COUNSEL AND THE CHILD'S LAW GUARDIAN.
S 2. The family court act is amended by adding a new section 1046-b to
read as follows:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08708-01-9
A. 5215 2
S 1046-B. VULNERABILITY HEARING. (A) DEFINITIONS. AS USED IN THIS
SECTION:
(I) "VULNERABLE CHILD" MEANS THE SUBJECT OF A PROCEEDING UNDER THIS
ARTICLE WHOM THE COURT HAS DECLARED TO BE VULNERABLE.
(II) "VULNERABILITY HEARING" MEANS A HEARING AT WHICH THE COURT DETER-
MINES IF THE CHILD IS A VULNERABLE CHILD WHOSE TESTIMONY WILL BE TAKEN
IN CAMERA, RATHER THAN IN OPEN COURT. SUCH MOTION, TOGETHER WITH
SUPPORTING PAPERS DEMONSTRATING THE NEED FOR THE RELIEF SOUGHT, MUST BE
MADE UPON REASONABLE NOTICE TO ALL OTHER PARTIES AND THE LAW GUARDIAN.
UNLESS ALL MATERIAL FACTS ALLEGED IN SUPPORT OF THE MOTION ARE UNCON-
TESTED, THE COURT SHALL CONDUCT A VULNERABILITY HEARING.
(B) ANY PARTY OR THE CHILD'S LAW GUARDIAN MAY APPLY TO THE COURT FOR
AN ORDER DECLARING THAT A CHILD IS A VULNERABLE CHILD AND THAT THE
CHILD'S TESTIMONY SHOULD BE TAKEN IN CAMERA. UNLESS ALL MATERIAL FACTS
ALLEGED IN SUPPORT OF THE MOTION ARE UNCONTESTED, THE COURT SHALL
CONDUCT A VULNERABILITY HEARING.
(C) THE CHILD WHO IS ALLEGED TO BE VULNERABLE MAY NOT BE COMPELLED TO
TESTIFY AT HIS OR HER VULNERABILITY HEARING. PRIOR STATEMENTS MADE BY
THE CHILD AS TO ANY ATTEMPT TO PREVENT, IMPEDE OR DETER THE CHILD FROM
COOPERATING IN THE INVESTIGATION OR FACT-FINDING HEARING SHALL BE ADMIS-
SIBLE AT THE VULNERABILITY HEARING, PROVIDED, HOWEVER, THAT A FINDING
THAT A CHILD IS VULNERABLE MAY NOT BE BASED SOLELY UPON SUCH PRIOR
STATEMENTS.
(D) IN DETERMINING WHETHER A CHILD IS VULNERABLE PURSUANT TO THIS
SECTION, THE COURT SHALL MAKE FINDINGS OF FACT, BASED UPON CLEAR AND
CONVINCING EVIDENCE, THAT THERE IS A CAUSAL RELATIONSHIP BETWEEN THE
EXISTENCE OF ANY ONE OR MORE OF THE FOLLOWING FACTORS AND THE DETERMI-
NATION THAT THE CHILD IS SO VULNERABLE AS TO REQUIRE HIS OR HER TESTIMO-
NY TO BE TAKEN IN CAMERA:
(I) THE ALLEGED ABUSE OR NEGLECT WAS PARTICULARLY HEINOUS OR WAS CHAR-
ACTERIZED BY AGGRAVATING CIRCUMSTANCES;
(II) THE CHILD IS PARTICULARLY SUSCEPTIBLE TO PSYCHOLOGICAL HARM
BECAUSE OF A PHYSICAL OR MENTAL CONDITION WHICH EXISTED PRIOR TO THE
ALLEGED ABUSE OR NEGLECT;
(III) THE ALLEGED ABUSE OR NEGLECT WAS AN ONGOING COURSE OF CONDUCT,
COMMITTED OVER AN EXTENDED PERIOD OF TIME;
(IV) A DEADLY WEAPON OR DANGEROUS INSTRUMENT WAS ALLEGEDLY USED IN THE
ABUSE OR NEGLECT;
(V) THE ALLEGED ABUSE OR NEGLECT INVOLVED SERIOUS PHYSICAL INJURY TO
THE CHILD;
(VI) THE RESPONDENT OR A PERSON ACTING ON BEHALF OF THE RESPONDENT,
MADE A THREAT, EXPRESS OR IMPLIED, OF PHYSICAL VIOLENCE TO THE CHILD OR
A THIRD PERSON IF THE CHILD WERE TO REPORT THE INCIDENT OR TO COOPERATE
IN THE INVESTIGATION OR PROSECUTION OF THE ALLEGED ABUSE OR NEGLECT OR
TO COOPERATE IN A FACT-FINDING HEARING PURSUANT TO THIS ARTICLE;
(VII) A WITNESS OTHER THAN THE CHILD HAS RECEIVED A THREAT OF PHYSICAL
VIOLENCE BY OR ON BEHALF OF THE RESPONDENT;
(VIII) THE RESPONDENT, AT THE TIME OF THE MOTION, IS LIVING IN THE
SAME HOUSEHOLD WITH THE CHILD, OR HAS READY ACCESS TO THE CHILD;
(IX) A COURT OF COMPETENT JURISDICTION HAS PREVIOUSLY ISSUED AN ORDER
THAT THE CHILD WAS ABUSED; OR
(X) EXPERT TESTIMONY SHOWS THAT THE CHILD WOULD BE PARTICULARLY
SUSCEPTIBLE TO PSYCHOLOGICAL HARM IF REQUIRED TO TESTIFY IN THE PHYSICAL
PRESENCE OF THE RESPONDENT.
(E) IF THE COURT FINDS THAT THE CHILD IS VULNERABLE AND THAT, UNDER
THE FACTS AND CIRCUMSTANCES OF THE CASE, THE RESPONDENT'S RIGHT TO DUE
A. 5215 3
PROCESS OF LAW WILL NOT BE IMPAIRED, IT MAY ENTER AN ORDER GRANTING THE
APPLICATION TO TAKE THE CHILD'S TESTIMONY IN CAMERA IN ACCORDANCE WITH
THE PROVISIONS SET FORTH IN SECTION ONE THOUSAND FORTY-SIX-A OF THIS
PART.
(F) AT ANY TIME DURING THE HEARING, THE COURT, AT THE REQUEST OF ANY
PARTY OR THE LAW GUARDIAN, OR ON ITS OWN MOTION, MAY DECLARE A CHILD TO
BE VULNERABLE WHERE THE COURT OBSERVES THAT A CHILD WHO HAS BEEN CALLED
TO TESTIFY IS SUFFERING SEVERE MENTAL OR EMOTIONAL HARM AND IS THEREFORE
PHYSICALLY OR MENTALLY UNABLE TO TESTIFY OR TO CONTINUE TO TESTIFY IN
THE PHYSICAL PRESENCE OF THE RESPONDENT. IF, UNDER THE FACTS AND CIRCUM-
STANCES OF THE CASE, THE RESPONDENT'S RIGHT TO DUE PROCESS OF LAW WILL
NOT BE IMPAIRED, THE COURT MAY TAKE THE CHILD'S TESTIMONY IN CAMERA IN
ACCORDANCE WITH THE PROVISIONS SET FORTH IN SECTION ONE THOUSAND FORTY-
SIX-A OF THIS PART.
S 3. This act shall take effect immediately and shall apply to
proceedings conducted on or after such date.