Senate Bill S4389

                                 BILL NUMBER:  S4389

 TITLE OF BILL :
An act to amend the domestic relations law, the family court act and
the executive law, in relation to the issuance of orders of custody
and visitation


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 Domestic Relations Law ,the Family Court
Act and the Executive Law to implement a chapter amendment to chapter
595 of the Laws of 2008, in relation to issuance of custody and
visitation orders, to make minor modifications to three provisions
thereof.

To insure that Supreme and Family Courts are fully informed prior to
issuing custody and visitation orders, chapter 595 of the Laws of 2008
requires them to check the sex offender registry, the statewide
registry of orders of protection and warrants and the New York State
Unified Court System's own records of child protective proceedings.
In the course of preparing court staff to implement the new law, a few
problems with the statutory language have become clear.

              

First, chapter 595 presumes that the statewide databases of orders of
protection and warrants are in fact contained in and retrievable from
one system, since it refers to the "statewide computerized registry of
orders of protection and warrants established and maintained pursuant
to section two hundred twenty-one-a of the executive law."  Although
the order of protection registry is a part of the New York State
Police Information System ("NYSPIN"), which is attached to the federal
National Crime Information Center warrant system, warrants are not
readily accessible to the court system. Upon issuance, orders of
protection are first entered onto the Unified Court System's computer
system and are transmitted electronically to the NYSPIN system.  Court
staff regularly access information regarding orders of protection
directly from the Court System's own computer system.  Warrants,
however, are neither entered by, nor accessible to, court staff and
establishing a separate inquiry of the New York State Police
Information System to obtain warrant information has proven
problematic, especially in light of the fact that parties in Supreme
and Family Court custody and visitation cases are not fingerprinted.
As the Governor recognized in the message issued upon approval of
chapter 595:

"I fully support these new statutory amendments, which will ensure
that judges will have vital information to assist them in making these
immensely difficult and important decisions ... I have no doubt that
the changes made by this bill will protect children from being harmed
by persons who should not be given custody or unsupervised access to
them.

There have been concerns raised about the feasibility of a court
undertaking a comprehensive review of all outstanding warrants before
making a custody or visitation decision. Such name-based checks will
typically uncover multiple records of persons with similar names, none
of whom may be the person seeking custody or visitation.  Delaying a
custody or visitation decision while these records are examined may
not be in the best interest of the child.

To address this issue, the Legislature has proposed and agreed to
pass, a chapter amendment that will limit the required warrant check
to Family Court warrants."

Governor's Approval Memorandum No. 38, L.2008, c.595.

The instant measure thus incorporates this agreed-upon suggestion by
replacing the warrant language with a requirement that the court check
"related decisions and warrants in court proceedings initiated
pursuant to article ten of the Family Court Act." Utilizing the Court
System's own Family Court "Universal Case Management System," court
staff are able, through a single inquiry process, to promptly retrieve
information regarding Family Court child protective proceedings,
including warrants, as well as information from the database of orders
of protection from all courts statewide.

Second, the chapter 595 requirement that all databases be rechecked
whenever a custody or visitation case is continued for a period in
excess of one month will create an inordinate burden for the courts
that may have the unintended effect of delaying proceedings and thus
impeding fulfillment of the children's best interests. The sponsor's
supporting memorandum for chapter 595 incorrectly implied that
temporary orders of custody or visitation are only issued at the
outset of the proceedings. The memorandum states:

"Usually, a temporary order of custody or visitation is requested
early in the proceeding, frequently before the court and counsel have
all the relevant facts."

N.Y.S. Assembly Memorandum in Support of Bill No. A.11657A. While
temporary orders are indeed issued upon the initiation of proceedings,
numerous successive temporary orders are frequently required during
the pendency of each case. In light of the substantial preparation
required by the parties prior to trial of these often lengthy matters,
as well as the heavy case loads in the courts, particularly the Family
Courts, custody and visitation proceedings are often adjourned several
times, frequently for periods in excess of 30 days. Unlike the
criminal history system maintained by the New York State Division of
Criminal Justice Services, inquiries of the sex offender, orders of
protection and Family Court databases cannot be on a "search and
retain" basis; thus, follow-up information is not automatically
transmitted and inquiries must be made anew in each case. In light of
the huge volume of repeat inquiries necessitated by chapter 595, this
measure replaces the one-month requirement with a mandate that, prior
to issuance of a subsequent order, the databases be rechecked if more
than 90 days have elapsed since they were last reviewed.

Finally, chapter 595 requires that, in cases in which an emergency
order must be issued in the absence of reports from all three
databases - very rare cases, in which one or more of the databases is
down - the information must be obtained within 24 hours and
transmitted to all counsel in the case (and to any pro se parties).
However, no exceptions are made for evenings, weekends or holidays
when neither Supreme nor Family Courts are in session. The New York
City Family Court conducts limited evening sessions, but this is not
the rule statewide. Using language commonly found in statutes
applicable to the courts, this measure substitutes "no later than the
next day the court is in session" for the 24-hour mandate. See Family
Court Act §§153-c, 154-d, 307.3(4), 307.4(5), 320.2(1),729,812(5),
1022(b), 1026(c) and 1027(a); Criminal Procedure Law §§530.11(6),
530.12(3-b) and 725.05(7); Domestic Relations Law §§240(3) and 252(8);
Social Services Law 417(2).

This measure, which would have no meaningful fiscal impact on the
State, would take effect immediately.

 2008 LEGISLATIVE HISTORY :

None. New proposal.