Senate Bill S3869A

2009-2010 Legislative Session

Relates to orders of protection in termination of parental rights proceedings, child protective proceedings and permanency hearings regarding children freed for adoption

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Archive: Last Bill Status - In Senate Committee Children And Families Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 02, 2010	print number 3869a
Jun 02, 2010	amend and recommit to children and families
Jan 06, 2010	referred to children and families
Apr 02, 2009	referred to children and families

Bill Amendments

2009-S3869 - Details

Current Committee:: Senate Children And Families
Law Section:: Family Court Act
Laws Affected:: Amd §§634, 1029, 1056 & 1089, Fam Ct Act; amd §384-b, Soc Serv L; amd §221-a, Exec L

2009-S3869 - Summary

Relates to orders of protection in termination of parental rights proceedings, child protective proceedings and permanency hearings regarding children freed for adoption.

2009-S3869 - Sponsor Memo

                                BILL NUMBER:S3869

TITLE OF BILL:
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 permanency hearings
regarding children freed for adoption

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Family
Court Advisory and Rules Committee.

This measure would amend the termination of parental rights and
permanent neglect statutes, section 634 of the Family Court Act and
section 384-b of the Social Services Law, to authorize Family Court,
for good cause after giving a birth parent notice and an opportunity
to be heard, to issue an order of protection in conjunction with an
order of disposition committing guardianship and custody of a child.
This order of protection may, among other its conditions, prohibit
the birth parent from contact with the child and the child's foster
or pre-adoptive parent. This measure also would amend section 1089 of
the Family Court Act to authorize issuance of such an order as part
of the disposition of a permanency hearing; and it would amend
section 1056 of the Family Court Act to add a condition to orders of
protection in child protective proceedings requiring respondent to

stay away from, inter alia, a "person with whom the child has been
paroled, remanded, placed or released by the court ..."

Additionally, this measure would permit orders of protection issued in
child protective proceedings against individuals related by blood or
marriage to the child or members of the child's household at the time
of the disposition to last for up to two years or, upon findings of
aggravating circumstances or a violation of an order of protection,
up to five years - as now is the case with orders of protection in
family offense cases. Such orders could be extended upon judicial
review, with notice to all affected parties, in the context of a
permanency hearing under Article 10-A of the Family Court Act or
other post-dispositional proceeding under Article 10. The duration of
orders against non-parents and former members of a household, pursuant
to section 1056(4) of the Family Court Act would be unchanged, but
this measure would explicitly permit the restrained party to return
to court for modification or vacatur of the order of protection upon
a showing of a substantial change of circumstances. Similarly, orders
of protection in permanent neglect and other termination of parental
rights proceedings would be permissible for periods of up to two
years or, upon findings of aggravating circumstances or a violation
of an order of protection
up to five years. Again, such orders could be extended in
conjunction with orders issued in freed-child permanency hearings

under Article 10-A of the Family Court Act. These provisions for
judicial review would, therefore, meet the criticisms voiced by the
Court of Appeals in Matter of Sheena D., 8 N.Y.3d 136 (2007),
regarding lengthy orders of protection not subject to judicial
scrutiny.

Finally, to optimize their effectiveness, the measure would require
all of these orders of protection to be entered onto the statewide
registry of orders of protection and warrants. The registry is an
invaluable tool both for law enforcement and the courts. With
1,709,734 orders of protection recorded, as of December 12, 2007,
and with the database connected to the comprehensive national
"Protection Order File" maintained by the National Crime Information
Center (Federal Bureau of Investigation), the registry helps assure
informed judgments at all stages of domestic violence cases. All
orders, including those in child protective, permanency, permanent
neglect and other termination of parental rights proceedings, must be
entered onto the registry in order for it to provide the protection
necessary for all victims of family violence. Law enforcement and
courts need confidence in the completeness and accuracy of the
responses to their inquiries regarding both the existence of
outstanding orders, including possibly conflicting orders, and the
parties' histories of orders of protection.

In most cases, conclusion of a termination of parental rights
proceeding marks the
beginning of a new phase for a child in foster care,"a significant
step toward a stable, permanent home, most often through adoption.
Sometimes, particularly in cases of kinship adoptions or mediated
agreements, permanency is achieved with the understanding, agreed
upon by everyone involved, that some contact would continue with the
child's birth family and that such contact would be in the child's
best interests. However, in some instances, continuing contact with
the birth family would endanger the child and destabilize the child's
new family. Indeed, in rare cases, stalking behavior by disturbed
birth parents has posed a serious impediment to the adoption of their
children, has caused prospective adoptive parents to become
ambivalent about whether to finalize the adoptions and has caused
serious upset and harm to the children themselves.
Unfortunately, since prospective adoptive or foster parents do not
meet the definition of family contained in Article 8 of the Family
Court Act, the current statutory structure provides no vehicle to
protect children and their new families short of a criminal
prosecution for a non-family offense.

An additional problem confronting both adult and child victims of
family violence in child protective cases is the heavy burden created
by the extremely short duration of orders of protection against
family members, a period far shorter than applicable periods for
orders in family offense, custody, visitation, child support and
paternity proceedings.
Subdivision one of section 1056 of the Family Court Act permits an

order of protection against respondent parents, persons legally
responsible and their spouses in child neglect and abuse proceedings
to last only as long as a child protective dispositional order.
Dispositions in child protective cases include, inter alia, release of
a child under supervision .for one year, subject to a one-year
extension, or placement of a child until the next permanency hearing.
Permanency hearings must be convened for children in foster care, as
well as children directly placed with relatives and other
individuals, once they have been in care for eight months and then
every six months thereafter. See Family Court Act §§1052, 1054, 1055,
1057, 1089. See Matter of Andrew Y, 44 A.D.3d 1063 (2d Dept., 2007);
Matter of Candace S., 38 A.D.3d 786 (2d Dept., 2007). These time
limits stand in sharp contrast to the duration limits of family
offense orders of protection, which were extended by the Legislature
in 2003 to up to two years or, if aggravating circumstances or a
violation of an order of protection are found, up to five years. See
Family Court Act §842 [L.2003, c. 579]. Orders of protection in
custody, visitation and other civil proceedings in Supreme and Family
Court may last for specified periods until the youngest child reaches
majority.

Finally, the importance of inclusion of orders of protection in child
protective proceedings on the registry cannot be overemphasized.
Domestic violence is often inextricably linked with child abuse and
victims of domestic violence in child abuse and neglect cases,
including victims who may be respondents in these proceedings,
require as
much protection from their abusers as in other proceedings. If a
child neglect proceeding is brought against an abuser, an order of
protection issued to protect both the abuse victim and the children
should provide as much protection as orders of protection issued in
family offense and all other cases - a precept that compels inclusion
of the order on the statewide domestic violence registry, and
consequently, on the federal "Protection Order File" as well. That
domestic violence and child abuse frequently coexist in homes has
been widely recognized, with estimates of the overlap ranging from
40% to 60%. Research has estimated that children are abused at a
rate 1,500 times higher than the national average in homes where
domestic violence is also present. Significantly, child sexual abuse
has also been closely correlated with domestic violence. Therefore,
inclusion of orders of protection in such cases on the registry will
significantly advance the Legislature's goal of providing an
integrated response in all family violence cases and of protecting
all victims of domestic abuse, both parents and children, from
suffering further violence.

The instant measure is designed to address the foregoing matters.

This measure, which would have no fiscal impact upon the State, would
take effect 90 days after becoming law.

2008 LEGISLATIVE HISTORY:

S.5847/Rules; A 8861-A/Codes.

2009-S3869 - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  3869

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                              April 2, 2009
                               ___________

Introduced  by  Sen.  MONTGOMERY  --  (at request of the Office of Court
  Administration) -- 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 regarding children freed for adoption

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Section 634 of the family court act, as amended by  chapter
666 of the laws of 1976, is amended to read as follows:
  S  634.  Commitment  of  guardianship and custody; further orders. The
court may enter an order under section six hundred  thirty-one  OF  THIS
ARTICLE  committing  the  guardianship  and  custody of the child to the
petitioner on such conditions, if any, as  it  deems  proper.  FOR  GOOD
CAUSE  SHOWN,  THE COURT MAY ISSUE AN ORDER OF PROTECTION TO PROTECT THE
CHILD AND THE CHILD'S FOSTER OR PRE-ADOPTIVE PARENT OR PARENTS AND OTHER
MEMBERS OF THE HOUSEHOLD IN WHICH  THE  CHILD  RESIDES.  THE  ORDER  MAY
DIRECT  THE RESPONDENT TO OBSERVE REASONABLE CONDITIONS THAT MY INCLUDE,
AMONG OTHERS, THAT THE RESPONDENT STAY AWAY FROM THE CHILD AND FROM  THE
HOME,  SCHOOL,  BUSINESS  OR  PLACE  OF  EMPLOYMENT  OF THE CHILD OR THE
CHILD'S FOSTER OR PRE-ADOPTIVE PARENT OR PARENTS OR OTHER MEMBERS OF THE
HOUSEHOLD IN WHICH THE CHILD RESIDES. PRIOR TO ISSUING  THE  ORDER,  THE
COURT  SHALL  INQUIRE  AS  TO  THE  EXISTENCE  OF  ANY  OTHER  ORDERS OF
PROTECTION INVOLVING THE PARTIES AND SHALL GIVE  THE  RESPONDENT  NOTICE
AND AN OPPORTUNITY TO BE HEARD. THE COURT SHALL STATE ITS REASONS ON THE
RECORD  FOR  ISSUING THE ORDER. AN ORDER OF PROTECTION ISSUED UNDER THIS
SECTION MAY REMAIN IN EFFECT FOR A PERIOD OF UP TO TWO YEARS OR, IF  THE
COURT  FINDS  AGGRAVATING CIRCUMSTANCES AS DEFINED IN PARAGRAPH (VII) OF
SUBDIVISION (A) OF SECTION EIGHT HUNDRED TWENTY-SEVEN OF THIS CHAPTER OR
IF THE COURT  FINDS  THAT  THE  RESPONDENT  HAS  VIOLATED  AN  ORDER  OF

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10382-01-9

S. 3869                             2

PROTECTION, A PERIOD OF UP TO FIVE YEARS. THE ORDER OF PROTECTION MAY BE
EXTENDED  CONCURRENTLY  WITH ANOTHER ORDER ISSUED UNDER ARTICLE TEN-A OF
THIS CHAPTER.
  S  2.  Subdivision  (a)  of  section  1029 of the family court act, as
amended by chapter 673 of the laws  of  1988,  is  amended  to  read  as
follows:
  (a) The family court, upon the application of any person who may orig-
inate a proceeding under this article, for good cause shown, may issue a
temporary  order of protection, before or after the filing of such peti-
tion, which may contain any of the provisions authorized on  the  making
of  an  order  of  protection  under  section [ten hundred] ONE THOUSAND
fifty-six OF THIS ARTICLE.   PRIOR  TO  ISSUING  A  TEMPORARY  ORDER  OF
PROTECTION  UNDER THIS SECTION, THE COURT SHALL INQUIRE AS TO THE EXIST-
ENCE OF ANY OTHER ORDERS OF PROTECTION INVOLVING THE  PARTIES.  If  such
order  is  granted before the filing of a petition and a petition is not
filed under this article within ten  days  from  the  granting  of  such
order, the order shall be vacated. In any case where a petition has been
filed  and  [a  law  guardian] AN ATTORNEY FOR THE CHILD appointed, such
[law guardian] ATTORNEY may make application for a  temporary  order  of
protection pursuant to the provisions of this section.
  S  3.  The  opening  paragraph  and paragraph (a) of subdivision 1 and
subdivision 4 of section 1056 of the family court act, the opening para-
graph of subdivision 1 as amended and subdivision 4 as added by  chapter
622  of  the  laws of 1990, paragraph (a) of subdivision 1 as amended by
chapter 483 of the laws of 1995, are amended to read as follows:
  The court may [make] ISSUE an order of protection in assistance or  as
a  condition  of  any  other order made under this part. [Such] PRIOR TO
ISSUING AN ORDER OF PROTECTION  UNDER  THIS  SECTION,  THE  COURT  SHALL
INQUIRE  AS TO THE EXISTENCE OF ANY OTHER ORDERS OF PROTECTION INVOLVING
THE PARTIES. AN order of protection [shall] ISSUED  UNDER  THIS  SECTION
MAY  remain in effect [concurrently with, shall expire no later than the
expiration date of, and] FOR A PERIOD OF UP TO  TWO  YEARS  OR,  IF  THE
COURT  FINDS  AGGRAVATING CIRCUMSTANCES AS DEFINED IN PARAGRAPH (VII) OF
SUBDIVISION (A) OF SECTION EIGHT HUNDRED TWENTY-SEVEN OF THIS CHAPTER OR
IF THE COURT  FINDS  THAT  THE  RESPONDENT  HAS  VIOLATED  AN  ORDER  OF
PROTECTION, A PERIOD OF UP TO FIVE YEARS. THE ORDER OF PROTECTION may be
extended  concurrently  with,  [such  other] ANOTHER order [made] ISSUED
under this [part] ARTICLE OR ARTICLE TEN-A OF THIS  CHAPTER,  except  as
provided  in  subdivision  four of this section. The order of protection
may set forth reasonable conditions of behavior to  be  observed  for  a
specified  time by a person who is before the court and is a parent or a
person legally responsible for the child's care or  the  spouse  of  the
parent  or  other  person  legally  responsible for the child's care, or
both. Such an order may require any such person
  (a) to stay away from the home, school, business or place  of  employ-
ment  of  the other spouse, parent or person legally responsible for the
child's care, PERSON WITH WHOM THE CHILD  HAS  BEEN  PAROLED,  REMANDED,
PLACED  OR RELEASED BY THE COURT or the child, and to stay away from any
other specific location designated by the court;
  4. The court may enter an order of  protection  independently  of  any
other  order  made under this part, against a person who was a member of
the child's household or a person  legally  responsible  as  defined  in
section  one  thousand  twelve  of this [chapter] ARTICLE, and who is no
longer a member of such household at the time of the disposition and who
is not related by blood or marriage to the child  or  a  member  of  the
child's  household.  An  order  of  protection  entered pursuant to this

S. 3869                             3

subdivision may be for any period of time up to the  child's  eighteenth
birthday  and  upon  such  conditions  as [the court deems necessary and
proper to protect the health and safety of the  child  and  the  child's
caretaker] ARE AUTHORIZED BY SUBDIVISION ONE OF THIS SECTION. THE PERSON
RESTRAINED  BY THE ORDER OF PROTECTION MAY, UPON A SHOWING OF A SUBSTAN-
TIAL CHANGE OF CIRCUMSTANCES, MOVE FOR MODIFICATION OR  VACATUR  OF  THE
ORDER.
  S  4.  Clause (D) of subparagraph (viii) of paragraph 2 of subdivision
(d) of section 1089 of the family court act, as added by section  27  of
part A of chapter 3 of the laws of 2005, is amended to read as follows:
  (D)  The court may make an order of protection in the manner specified
by section one thousand fifty-six of this [act] CHAPTER in assistance or
as a condition of any other order made under this section. The order  of
protection  may  set  forth  reasonable  conditions  of  behavior  to be
observed for a specified period of time by a person before the court FOR
THE PROTECTION OF THE CHILD  AND  THE  CHILD'S  FOSTER  OR  PRE-ADOPTIVE
PARENT  OR PARENTS AND OTHER MEMBERS OF THE HOUSEHOLD IN WHICH THE CHILD
RESIDES. PRIOR TO ISSUING AN ORDER OF PROTECTION UNDER THIS SECTION, THE
COURT SHALL  INQUIRE  AS  TO  THE  EXISTENCE  OF  ANY  OTHER  ORDERS  OF
PROTECTION  INVOLVING  THE PARTIES AND THE CHILD. IN THE CASE OF A CHILD
FREED FOR ADOPTION, THE COURT, FOR GOOD CAUSE SHOWN, MAY ISSUE AN  ORDER
OF  PROTECTION  DIRECTING A PERSON WHOSE PARENTAL RIGHTS HAD BEEN TERMI-
NATED OR SURRENDERED TO OBSERVE REASONABLE CONDITIONS ENUMERATED THEREIN
IN ORDER TO PROTECT THE CHILD AND THE  CHILD'S  FOSTER  OR  PRE-ADOPTIVE
PARENT  OR PARENTS AND OTHER MEMBERS OF THE HOUSEHOLD IN WHICH THE CHILD
RESIDES. THE CONDITIONS MAY INCLUDE,  AMONG  OTHERS,  THAT  SUCH  PERSON
SHALL  STAY  AWAY  FROM THE CHILD AND FROM THE HOME, SCHOOL, BUSINESS OR
PLACE OF EMPLOYMENT OF THE CHILD OR THE CHILD'S FOSTER  OR  PRE-ADOPTIVE
PARENT  OR  PARENTS OR OTHER MEMBERS OF THE HOUSEHOLD IN WHICH THE CHILD
RESIDES. THE ORDER MAY ONLY  BE  ISSUED  AFTER  THE  PERSON  OR  PERSONS
RESTRAINED  BY THE ORDER HAVE BEEN GIVEN NOTICE AND AN OPPORTUNITY TO BE
HEARD. THE COURT SHALL STATE ITS REASONS ON THE RECORD FOR  ISSUING  THE
ORDER.
  S  5.  Section 384-b of the social services law is amended by adding a
new subdivision 13 to read as follows:
  13. FOR GOOD CAUSE SHOWN, THE COURT MAY ISSUE AN ORDER  OF  PROTECTION
TO  PROTECT  THE  CHILD AND THE CHILD'S FOSTER OR PRE-ADOPTIVE PARENT OR
PARENTS AND OTHER MEMBERS OF THE HOUSEHOLD IN WHICH THE  CHILD  RESIDES.
THE  ORDER  MAY  DIRECT  THE RESPONDENT TO OBSERVE REASONABLE CONDITIONS
THAT MAY INCLUDE, AMONG OTHERS, THAT THE RESPONDENT STAY AWAY  FROM  THE
CHILD  AND FROM THE HOME, SCHOOL, BUSINESS OR PLACE OF EMPLOYMENT OF THE
CHILD OR THE CHILD'S FOSTER OR PRE-ADOPTIVE PARENT OR PARENTS  OR  OTHER
MEMBERS  OF  THE  HOUSEHOLD IN WHICH THE CHILD RESIDES. PRIOR TO ISSUING
THE ORDER, THE COURT SHALL INQUIRE AS TO  THE  EXISTENCE  OF  ANY  OTHER
ORDERS OF PROTECTION INVOLVING THE PARTIES AND SHALL GIVE THE RESPONDENT
NOTICE AND AN OPPORTUNITY TO BE HEARD. THE COURT SHALL STATE ITS REASONS
ON THE RECORD FOR ISSUING THE ORDER. AN ORDER OF PROTECTION ISSUED UNDER
THIS SECTION MAY REMAIN IN EFFECT FOR A PERIOD OF UP TO TWO YEARS OR, IF
THE  COURT FINDS AGGRAVATING CIRCUMSTANCES AS DEFINED IN PARAGRAPH (VII)
OF SUBDIVISION (A) OF SECTION EIGHT HUNDRED TWENTY-SEVEN OF  THE  FAMILY
COURT  ACT  OR  IF  THE  COURT FINDS THAT THE RESPONDENT HAS VIOLATED AN
ORDER OF PROTECTION, A  PERIOD  OF  UP  TO  FIVE  YEARS.  THE  ORDER  OF
PROTECTION  MAY BE EXTENDED CONCURRENTLY WITH ANOTHER ORDER ISSUED UNDER
ARTICLE TEN-A OF THE FAMILY COURT ACT.
  S 6. Subdivision 1 of section 221-a of the executive law,  as  amended
by chapter 107 of the laws of 2004, is amended to read as follows:

S. 3869                             4

  1.  The  superintendent, in consultation with the division of criminal
justice services,  office  of  court  administration,  the  division  of
probation  and  correctional  alternatives,  the  state  office  for the
prevention of domestic violence and the division for women, shall devel-
op  a  comprehensive  plan  for  the  establishment and maintenance of a
statewide computerized registry  of  all  orders  of  protection  issued
pursuant  to articles four, five, six [and], eight, TEN AND TEN-A of the
family court act, SECTION THREE  HUNDRED  EIGHTY-FOUR-B  OF  THE  SOCIAL
SERVICES  LAW, section 530.12 of the criminal procedure law and, insofar
as they involve victims of domestic violence as defined by section  four
hundred  fifty-nine-a  of the social services law, section 530.13 of the
criminal procedure law and sections two hundred forty  and  two  hundred
fifty-two of the domestic relations law, and orders of protection issued
by  courts  of  competent  jurisdiction in another state, territorial or
tribal jurisdiction, special orders of  conditions  issued  pursuant  to
subparagraph  (i) or (ii) of paragraph (o) of subdivision one of section
330.20 of the criminal procedure law insofar as they involve a victim or
victims of domestic violence as defined by subdivision  one  of  section
four  hundred  fifty-nine-a  of  the social services law or a designated
witness or witnesses to such domestic violence, and all warrants  issued
pursuant  to  sections one hundred fifty-three and eight hundred twenty-
seven of the family court act, and arrest and bench warrants as  defined
in  subdivisions twenty-eight, twenty-nine and thirty of section 1.20 of
the criminal procedure law, insofar as such warrants pertain  to  orders
of protection or temporary orders of protection; provided, however, that
warrants issued pursuant to section one hundred fifty-three of the fami-
ly court act pertaining to articles three[,] AND seven [and ten] of such
act  and  section  530.13  of  the  criminal  procedure law shall not be
included in the registry. The superintendent shall establish  and  main-
tain  such  registry  for  the purposes of ascertaining the existence of
orders of protection,  temporary  orders  of  protection,  warrants  and
special  orders of conditions, and for enforcing the provisions of para-
graph (b) of subdivision four of section 140.10 of the  criminal  proce-
dure law.
  S  7.  This  act shall take effect on the ninetieth day after it shall
have become a law.

2009-S3869A (ACTIVE) - Details

Current Committee:: Senate Children And Families
Law Section:: Family Court Act
Laws Affected:: Amd §§634, 1029, 1056 & 1089, Fam Ct Act; amd §384-b, Soc Serv L; amd §221-a, Exec L

2009-S3869A (ACTIVE) - Summary

Relates to orders of protection in termination of parental rights proceedings, child protective proceedings and permanency hearings regarding children freed for adoption.

2009-S3869A (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S3869A

TITLE OF BILL:

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 permanency hearings
regarding children freed for adoption

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Family
Court Advisory and Rules Committee.

This measure would amend the termination of parental rights and
permanent neglect statutes, Family Court Act §634 and Social Services
Law §384-b, to add authority for Family Court, for good cause shown
after giving the birth parent notice and an opportunity to be heard,
to issue an order of protection in conjunction with an order of
disposition committing guardianship and custody of a child. This
order of protection may, among other conditions, prohibit the birth
parent from contact with the child and the child's foster or
pre-adoptive parent and may last for a period of up to five years or
the date on which the youngest child turns eighteen, whichever is
earlier. Second, the measure would amend Family Court Act §1089 to
authorize such an order to be issued as part of the disposition of a

permanency hearing. Third, the measure would amend Family Court Act
§1056 to add a condition to orders of protection in child protective
proceedings requiring respondent to stay away, inter alia, from a
"person with whom the child has been paroled, remanded, placed or
released by the court..."

That children and their new families are sometimes in critical need of
these protections is clear from experience in numerous cases. Family
Courts have had cases in which disturbed birth parents, whose rights
had been terminated, have contacted children at their schools,
followed them home from school, accosted children when playing
outside their homes, called them repeatedly on their cell-phones and
scared them at home upon having a third party knock on their door as
a pretext. While not frequent, such instances cry out for legal
remedies. Families in such situations should not be forced to pursue
criminal prosecutions as their only means of obtaining relief to keep
their children and families safe.

Fourth, as with orders of protection in family offense cases, orders
of protection issued in child protective proceedings against
individuals who are related by blood or marriage to the child or who
were members of the child's household at the time of the disposition
would be authorized to last up to two years or, upon findings of
aggravating circumstances or a violation of an order of protection,
up to five years. Such orders could be extended upon judicial review,

with notice to all affected parties, in the context of a permanency
hearing under Article 10-A of the Family Court Act or other
post dispositional proceeding under Article 10. The duration of orders
against non-parents and former members of the household, pursuant to
section 1056(4) of the Family Court Act would be unchanged, but the
measure would explicitly permit the restrained party to return to
court for modification or vacatur of the order of protection upon a
showing of a substantial change of circumstances. Concomitantly,
orders of protection in permanent neglect and other termination of
parental rights proceedings would be authorized for periods of up to
five years. These provisions for time-limited orders would,
therefore, meet criticisms voiced by the Court of
Appeals in Matter of Sheena D., 8 N.Y.3d 136 (2007), regarding
lengthy orders of protection not subject to judicial scrutiny.

Finally, to optimize their effectiveness, the measure would require
all of these orders of protection to be entered onto the statewide
registry of orders of protection and warrants. The registry,
established pursuant to the Family Protection and Domestic Violence
Intervention Act of 1994 [L. 1994, cc. 222,224], has become an
invaluable tool both for law enforcement and the courts. With well
over two million orders of protection in the database,(1) and with the
database connected to the comprehensive national "Protection Order
File" maintained by the National Crime Information Center (Federal
Bureau of Investigation), the registry helps to assure informed
judgments at all stages of domestic violence cases. Significantly,
legislation enacted in 2008 and amended in 2009 requires the registry
to be checked in all Family and Supreme Court cases of child custody
and visitation, thus making the registry a critically important
resource in these cases as well. See L. 2008, c. 595; L. 2009, c.
295. All orders, including those in child protective, permanency,
permanent neglect and other termination of parental rights
proceedings, must be entered onto the registry in order for it to
provide the protection necessary for all victims of family violence.
Law enforcement and courts must have confidence in the completeness
and accuracy of the responses to their inquiries regarding both the
existence of outstanding orders, including possibly conflicting
orders, and the parties' histories of orders of protection.

The importance of inclusion of these orders on the registry cannot be
overemphasized. Domestic violence is often inextricably linked with
child abuse and victims of domestic violence in child abuse and
neglect cases, including victims who may be respondents in these
proceedings, require as much protection from their abusers as in
other proceedings.(2) If a child neglect proceeding is brought against
the abuser, the order of protection issued to protect both the abuse
victim and the children should provide as much protection as orders
of protection issued in family offense and all other cases - a
precept that compels inclusion of the order on the statewide domestic
violence registry and, consequently, on the Federal "Protection Order
File" as well. That domestic violence and child abuse frequently
coexist in homes has been widely recognized, with estimates of the

overlap ranging from 40% to 60%.(3) Research has estimated that
children are abused at a rate 1,500 times higher than the national
average in homes where
domestic violence is also present.(4) Significantly, child sexual abuse
has also been closely correlated with domestic violence.(5) Therefore,
inclusion of orders of protection in such cases on the registry will
significantly advance the Legislature's goal of providing an
integrated response in all family violence cases and of protecting
all victims of domestic abuse, both parents and children, from
suffering further violence.

This measure, which would have no fiscal impact upon the State, would
take effect 90 days after becoming law.

2008 LEGISLATIVE HISTORY:

Senate 5847/Rules; Assembly 8861-A/Codes.

2009-10 Legislative History:

OCA 2009-31
Senate 3869 (Sen. Montgomery) (Ref to Children & Families

FOOTNOTES:

(1) Source: NYS Office of Court Administration Division of Technology.

(2) Victims of domestic violence may not be charged with child neglect
by reason of their children's exposure to domestic violence, unless
they have failed to exercise a minimum degree of care and unless the
child is thereby placed in imminent risk of impairment. Nicholson v.
Scoppetta, 3 N.Y.3d 357 (2004). However, there are respondents in
neglect and abuse proceedings, who are themselves also victims of
family offenses, who should be able to obtain protection for
themselves and their children without the burden of initiating
separate family offense proceedings in order to obtain this relief.

(3) See "The Impact of Domestic Violence on Children: A Report to the
President of the American Bar Association" (Amer. Bar Assoc., 1994),
p. 18; "Diagnostic and Treatment Guidelines on Domestic Violence"
(Amer. Medical Assoc.,1992). See also M, Fields, "The Impact of Spouse
Abuse on Children, and its Relevance in Custody and Visitation
Decisions in New York State," 3 Cornell J. of Law and Pub. Policy
222, 224 (1994); A. Jones, Next Time She'll be Dead 84 (1994)
[citing, E. Stark and A. Flitcraft, "Women and Children at Risk: A
Feminist Perspective on Child Abuse," 18 Int'l' J.
Health Services 1:97 (1988); L. McKibben, et a/., "Victimization of
Mothers of Abused Children: A Controlled Study," 84 Pediatrics#3
(1989); L. Walker, The Battered Woman Syndrome 59 (1984)].

(4) "The Violence Against Women Act of 1990: Hearings on S. 2754,"
Senate Committee on the Judiciary, Report 1-545, 101st Cong., 2d
Sess. 37 (1990)[cited in J. Zorza, "Woman Battering: A Major Cause of
Homelessness," Clearinghouse Review (Special Issue, 1991)].

(5) L. Hoff, Battered Women as Survivors 240 (1990); M. Roy, Children in
the Crossfire 89-90 (1988); Hewitt and Friedrich, "Effects of
Probable Sexual Abuse on Preschool Children," in M.Q. Patton, ed.,
Family Sexual Abuse 59-74 (1991) [cited in J. Zorza, supra, at
424-425].

2009-S3869A (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 3869--A

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                              April 2, 2009
                               ___________

Introduced  by  Sen.  MONTGOMERY  --  (at request of the Office of Court
  Administration) -- read twice and ordered printed, and when printed to
  be committed to the Committee on Children and Families --  recommitted
  to  the  Committee  on Children and Families in accordance with Senate
  Rule  6,  sec.  8  --  committee  discharged,  bill  amended,  ordered
  reprinted as amended and recommitted to said committee

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 regarding children freed for adoption

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. Section 634 of the family court act, as amended by chapter
666 of the laws of 1976, is amended to read as follows:
  S 634. Commitment of guardianship and  custody;  further  orders.  The
court  may  enter  an order under section six hundred thirty-one OF THIS
ARTICLE committing the guardianship and custody  of  the  child  to  the
petitioner  on  such  conditions,  if  any, as it deems proper. FOR GOOD
CAUSE SHOWN, THE COURT MAY ISSUE AN ORDER OF PROTECTION TO  PROTECT  THE
CHILD AND THE CHILD'S FOSTER OR PRE-ADOPTIVE PARENT OR PARENTS AND OTHER
MEMBERS  OF  THE  HOUSEHOLD  IN  WHICH  THE CHILD RESIDES. THE ORDER MAY
DIRECT THE RESPONDENT TO OBSERVE REASONABLE CONDITIONS THAT MY  INCLUDE,
AMONG  OTHERS, THAT THE RESPONDENT STAY AWAY FROM THE CHILD AND FROM THE
HOME, SCHOOL, BUSINESS OR PLACE  OF  EMPLOYMENT  OF  THE  CHILD  OR  THE
CHILD'S FOSTER OR PRE-ADOPTIVE PARENT OR PARENTS OR OTHER MEMBERS OF THE
HOUSEHOLD  IN  WHICH  THE CHILD RESIDES. PRIOR TO ISSUING THE ORDER, THE
COURT SHALL  INQUIRE  AS  TO  THE  EXISTENCE  OF  ANY  OTHER  ORDERS  OF
PROTECTION  INVOLVING  THE  PARTIES AND SHALL GIVE THE RESPONDENT NOTICE
AND AN OPPORTUNITY TO BE HEARD. THE COURT SHALL STATE ITS REASONS ON THE
RECORD FOR ISSUING THE ORDER. AN ORDER OF PROTECTION ISSUED  UNDER  THIS
SECTION  MAY REMAIN IN EFFECT FOR A PERIOD OF UP TO TWO YEARS OR, IF THE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10382-04-0

S. 3869--A                          2

COURT FINDS AGGRAVATING CIRCUMSTANCES AS DEFINED IN PARAGRAPH  (VII)  OF
SUBDIVISION (A) OF SECTION EIGHT HUNDRED TWENTY-SEVEN OF THIS CHAPTER OR
IF  THE  COURT  FINDS  THAT  THE  RESPONDENT  HAS  VIOLATED  AN ORDER OF
PROTECTION, A PERIOD OF UP TO FIVE YEARS. THE ORDER OF PROTECTION MAY BE
EXTENDED  CONCURRENTLY  WITH ANOTHER ORDER ISSUED UNDER ARTICLE TEN-A OF
THIS CHAPTER.
  S 2. Subdivision (a) of section 1029  of  the  family  court  act,  as
amended  by  chapter  41  of  the  laws  of  2010, is amended to read as
follows:
  (a) The family court, upon the application of any person who may orig-
inate a proceeding under this article, for good cause shown, may issue a
temporary order of protection, before or after the filing of such  peti-
tion,  which  may contain any of the provisions authorized on the making
of an order of protection under section one thousand fifty-six  OF  THIS
ARTICLE.    PRIOR  TO ISSUING A TEMPORARY ORDER OF PROTECTION UNDER THIS
SECTION, THE COURT SHALL INQUIRE AS TO THE EXISTENCE OF ANY OTHER ORDERS
OF PROTECTION INVOLVING THE PARTIES. If such order is granted before the
filing of a petition and a petition is  not  filed  under  this  article
within  ten  days  from  the  granting of such order, the order shall be
vacated. In any case where a petition has been filed and an attorney for
the child has been appointed, such attorney may make application  for  a
temporary  order  of  protection  pursuant  to  the  provisions  of this
section.
  S 3. The opening paragraph and paragraph  (a)  of  subdivision  1  and
subdivision 4 of section 1056 of the family court act, the opening para-
graph  of subdivision 1 as amended and subdivision 4 as added by chapter
622 of the laws of 1990, paragraph (a) of subdivision 1  as  amended  by
chapter 483 of the laws of 1995, are amended to read as follows:
  The  court may [make] ISSUE an order of protection in assistance or as
a condition of any other order made under this  part.  [Such]  PRIOR  TO
ISSUING  AN  ORDER  OF  PROTECTION  UNDER  THIS SECTION, THE COURT SHALL
INQUIRE AS TO THE EXISTENCE OF ANY OTHER ORDERS OF PROTECTION  INVOLVING
THE  PARTIES.  AN  order of protection [shall] ISSUED UNDER THIS SECTION
MAY remain in effect [concurrently with, shall expire no later than  the
expiration  date  of,  and]  FOR  A PERIOD OF UP TO TWO YEARS OR, IF THE
COURT FINDS AGGRAVATING CIRCUMSTANCES AS DEFINED IN PARAGRAPH  (VII)  OF
SUBDIVISION (A) OF SECTION EIGHT HUNDRED TWENTY-SEVEN OF THIS CHAPTER OR
IF  THE  COURT  FINDS  THAT  THE  RESPONDENT  HAS  VIOLATED  AN ORDER OF
PROTECTION, A PERIOD OF UP TO FIVE YEARS. THE ORDER OF PROTECTION may be
extended concurrently with, [such other]  ANOTHER  order  [made]  ISSUED
under  this  [part]  ARTICLE OR ARTICLE TEN-A OF THIS CHAPTER, except as
provided in subdivision four of this section. The  order  of  protection
may  set  forth  reasonable  conditions of behavior to be observed for a
specified time by a person who is before the court and is a parent or  a
person  legally  responsible  for  the child's care or the spouse of the
parent or other person legally responsible  for  the  child's  care,  or
both. Such an order may require any such person
  (a)  to  stay away from the home, school, business or place of employ-
ment of the other spouse, parent or person legally responsible  for  the
child's  care,  PERSON  WITH  WHOM THE CHILD HAS BEEN PAROLED, REMANDED,
PLACED OR RELEASED BY THE COURT or the child, and to stay away from  any
other specific location designated by the court;
  4.  The  court  may  enter an order of protection independently of any
other order made under this part, against a person who was a  member  of
the  child's  household  or  a  person legally responsible as defined in
section one thousand twelve of this [chapter] ARTICLE,  and  who  is  no

S. 3869--A                          3

longer a member of such household at the time of the disposition and who
is  not  related  by  blood  or marriage to the child or a member of the
child's household. An order  of  protection  entered  pursuant  to  this
subdivision  may  be for any period of time up to the child's eighteenth
birthday and upon such conditions as  [the  court  deems  necessary  and
proper  to  protect  the  health and safety of the child and the child's
caretaker] ARE AUTHORIZED BY SUBDIVISION ONE OF THIS SECTION. THE PERSON
RESTRAINED BY THE ORDER OF PROTECTION MAY, UPON A SHOWING OF A  SUBSTAN-
TIAL  CHANGE  OF  CIRCUMSTANCES, MOVE FOR MODIFICATION OR VACATUR OF THE
ORDER.
  S 4. Clause (D) of subparagraph (viii) of paragraph 2  of  subdivision
(d)  of  section 1089 of the family court act, as added by section 27 of
part A of chapter 3 of the laws of 2005, is amended to read as follows:
  (D) The court may make an order of protection in the manner  specified
by section one thousand fifty-six of this [act] CHAPTER in assistance or
as  a condition of any other order made under this section. The order of
protection may  set  forth  reasonable  conditions  of  behavior  to  be
observed for a specified period of time by a person before the court FOR
THE  PROTECTION  OF  THE  CHILD  AND  THE CHILD'S FOSTER OR PRE-ADOPTIVE
PARENT OR PARENTS AND OTHER MEMBERS OF THE HOUSEHOLD IN WHICH THE  CHILD
RESIDES. PRIOR TO ISSUING AN ORDER OF PROTECTION UNDER THIS SECTION, THE
COURT  SHALL  INQUIRE  AS  TO  THE  EXISTENCE  OF  ANY  OTHER  ORDERS OF
PROTECTION INVOLVING THE PARTIES AND THE CHILD. IN THE CASE OF  A  CHILD
FREED  FOR ADOPTION, THE COURT, FOR GOOD CAUSE SHOWN, MAY ISSUE AN ORDER
OF PROTECTION DIRECTING A PERSON WHOSE PARENTAL RIGHTS HAD  BEEN  TERMI-
NATED OR SURRENDERED TO OBSERVE REASONABLE CONDITIONS ENUMERATED THEREIN
IN  ORDER  TO  PROTECT  THE CHILD AND THE CHILD'S FOSTER OR PRE-ADOPTIVE
PARENT OR PARENTS AND OTHER MEMBERS OF THE HOUSEHOLD IN WHICH THE  CHILD
RESIDES.  THE  CONDITIONS  MAY  INCLUDE,  AMONG OTHERS, THAT SUCH PERSON
SHALL STAY AWAY FROM THE CHILD AND FROM THE HOME,  SCHOOL,  BUSINESS  OR
PLACE  OF  EMPLOYMENT OF THE CHILD OR THE CHILD'S FOSTER OR PRE-ADOPTIVE
PARENT OR PARENTS OR OTHER MEMBERS OF THE HOUSEHOLD IN WHICH  THE  CHILD
RESIDES.  THE  ORDER  MAY  ONLY  BE  ISSUED  AFTER THE PERSON OR PERSONS
RESTRAINED BY THE ORDER HAVE BEEN GIVEN NOTICE AND AN OPPORTUNITY TO  BE
HEARD.  THE  COURT SHALL STATE ITS REASONS ON THE RECORD FOR ISSUING THE
ORDER.
  S 5. Section 384-b of the social services law is amended by  adding  a
new subdivision 13 to read as follows:
  13.  FOR  GOOD CAUSE SHOWN, THE COURT MAY ISSUE AN ORDER OF PROTECTION
TO PROTECT THE CHILD AND THE CHILD'S FOSTER OR  PRE-ADOPTIVE  PARENT  OR
PARENTS  AND  OTHER MEMBERS OF THE HOUSEHOLD IN WHICH THE CHILD RESIDES.
THE ORDER MAY DIRECT THE RESPONDENT  TO  OBSERVE  REASONABLE  CONDITIONS
THAT  MAY  INCLUDE, AMONG OTHERS, THAT THE RESPONDENT STAY AWAY FROM THE
CHILD AND FROM THE HOME, SCHOOL, BUSINESS OR PLACE OF EMPLOYMENT OF  THE
CHILD  OR  THE CHILD'S FOSTER OR PRE-ADOPTIVE PARENT OR PARENTS OR OTHER
MEMBERS OF THE HOUSEHOLD IN WHICH THE CHILD RESIDES.  PRIOR  TO  ISSUING
THE  ORDER,  THE  COURT  SHALL  INQUIRE AS TO THE EXISTENCE OF ANY OTHER
ORDERS OF PROTECTION INVOLVING THE PARTIES AND SHALL GIVE THE RESPONDENT
NOTICE AND AN OPPORTUNITY TO BE HEARD. THE COURT SHALL STATE ITS REASONS
ON THE RECORD FOR ISSUING THE ORDER. AN ORDER OF PROTECTION ISSUED UNDER
THIS SECTION MAY REMAIN IN EFFECT FOR A PERIOD OF UP TO TWO YEARS OR, IF
THE COURT FINDS AGGRAVATING CIRCUMSTANCES AS DEFINED IN PARAGRAPH  (VII)
OF  SUBDIVISION  (A) OF SECTION EIGHT HUNDRED TWENTY-SEVEN OF THE FAMILY
COURT ACT OR IF THE COURT FINDS THAT  THE  RESPONDENT  HAS  VIOLATED  AN
ORDER  OF  PROTECTION,  A  PERIOD  OF  UP  TO  FIVE  YEARS. THE ORDER OF

S. 3869--A                          4

PROTECTION MAY BE EXTENDED CONCURRENTLY WITH ANOTHER ORDER ISSUED  UNDER
ARTICLE TEN-A OF THE FAMILY COURT ACT.
  S  6.  Subdivision 1 of section 221-a of the executive law, as amended
by chapter 107 of the laws of 2004, is amended to read as follows:
  1. The superintendent, in consultation with the division  of  criminal
justice  services,  office  of  court  administration,  the  division of
probation and  correctional  alternatives,  the  state  office  for  the
prevention of domestic violence and the division for women, shall devel-
op  a  comprehensive  plan  for  the  establishment and maintenance of a
statewide computerized registry  of  all  orders  of  protection  issued
pursuant  to articles four, five, six [and], eight, TEN AND TEN-A of the
family court act, SECTION THREE  HUNDRED  EIGHTY-FOUR-B  OF  THE  SOCIAL
SERVICES  LAW, section 530.12 of the criminal procedure law and, insofar
as they involve victims of domestic violence as defined by section  four
hundred  fifty-nine-a  of the social services law, section 530.13 of the
criminal procedure law and sections two hundred forty  and  two  hundred
fifty-two of the domestic relations law, and orders of protection issued
by  courts  of  competent  jurisdiction in another state, territorial or
tribal jurisdiction, special orders of  conditions  issued  pursuant  to
subparagraph  (i) or (ii) of paragraph (o) of subdivision one of section
330.20 of the criminal procedure law insofar as they involve a victim or
victims of domestic violence as defined by subdivision  one  of  section
four  hundred  fifty-nine-a  of  the social services law or a designated
witness or witnesses to such domestic violence, and all warrants  issued
pursuant  to  sections one hundred fifty-three and eight hundred twenty-
seven of the family court act, and arrest and bench warrants as  defined
in  subdivisions twenty-eight, twenty-nine and thirty of section 1.20 of
the criminal procedure law, insofar as such warrants pertain  to  orders
of protection or temporary orders of protection; provided, however, that
warrants issued pursuant to section one hundred fifty-three of the fami-
ly court act pertaining to articles three[,] AND seven [and ten] of such
act  and  section  530.13  of  the  criminal  procedure law shall not be
included in the registry. The superintendent shall establish  and  main-
tain  such  registry  for  the purposes of ascertaining the existence of
orders of protection,  temporary  orders  of  protection,  warrants  and
special  orders of conditions, and for enforcing the provisions of para-
graph (b) of subdivision four of section 140.10 of the  criminal  proce-
dure law.
  S  7.  This  act shall take effect on the ninetieth day after it shall
have become a law.

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Velmanette Montgomery

Archive: Last Bill Status - In Senate Committee Children And Families Committee

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