Senate Bill S5696A

Signed By Governor

2009-2010 Legislative Session

Provides that orders of protection shall not be denied solely on the basis that the events alleged are not contemporaneous with the application therefor

download bill text pdf

Archive: Last Bill Status Via A8393 - Signed by Governor

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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Actions

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Aug 13, 2010	signed chap.341
Aug 03, 2010	delivered to governor
Jun 16, 2010	returned to assembly passed senate
May 27, 2010	3rd reading cal.613 substituted for s5696a
May 27, 2010	substituted by a8393a
May 26, 2010	advanced to third reading
May 25, 2010	2nd report cal.
May 24, 2010	1st report cal.613
Jan 26, 2010	reported and committed to codes
Jan 20, 2010	print number 5696a
Jan 20, 2010	amend and recommit to judiciary
Jan 06, 2010	referred to judiciary
May 28, 2009	referred to judiciary

Votes

- Jun 16, 2010 - Floor Vote
  A8393
  
  Aye
  
  61
  
  Nay
  
  0
  
  Absent
  
  0
  
  Excused
  
  1
  
  Abstained
  
  0
  - - Floor Vote: Jun 16, 2010
      
      aye (61)
      
      Adams
      
      Addabbo Jr.
      
      Alesi
      
      Aubertine
      
      Bonacic
      
      Breslin
      
      DeFrancisco
      
      Diaz
      
      Dilan
      
      Duane
      
      Espada
      
      Farley
      
      Flanagan
      
      Foley
      
      Fuschillo
      
      Golden
      
      Griffo
      
      Hannon
      
      Hassell-Thompson
      
      Huntley
      
      Johnson
      
      Johnson
      
      Klein
      
      Krueger
      
      Kruger
      
      LaValle
      
      Lanza
      
      Larkin
      
      Leibell
      
      Libous
      
      Little
      
      Marcellino
      
      Maziarz
      
      McDonald
      
      Montgomery
      
      Nozzolio
      
      Onorato
      
      Oppenheimer
      
      Padavan
      
      Parker
      
      Peralta
      
      Perkins
      
      Ranzenhofer
      
      Robach
      
      Saland
      
      Sampson
      
      Savino
      
      Schneiderman
      
      Serrano
      
      Seward
      
      Skelos
      
      Smith
      
      Squadron
      
      Stachowski
      
      Stavisky
      
      Stewart-Cousins
      
      Thompson
      
      Valesky
      
      Volker
      
      Winner
      
      Young
      
      excused (1)
      
      Morahan
  Jan 26, 2010 - Judiciary Committee Vote
  S5696A
  
  Aye
  
  18
  
  Nay
  
  0
  
  Aye with Reservations
  
  4
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  
  0
  - - Judiciary Committee Vote: Jan 26, 2010
      
      aye (18)
      
      Adams
      
      Bonacic
      
      Breslin
      
      DeFrancisco
      
      Dilan
      
      Espada
      
      Hassell-Thompson
      
      Klein
      
      Maziarz
      
      Nozzolio
      
      Onorato
      
      Perkins
      
      Ranzenhofer
      
      Sampson
      
      Savino
      
      Schneiderman
      
      Volker
      
      Winner
      
      aye wr (4)
      
      Diaz
      
      LaValle
      
      Lanza
      
      Saland
  May 24, 2010 - Codes Committee Vote
  S5696A
  
  Aye
  
  14
  
  Nay
  
  1
  
  Aye with Reservations
  
  1
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  
  0
  - - Codes Committee Vote: May 24, 2010
      
      aye (14)
      
      Bonacic
      
      Breslin
      
      DeFrancisco
      
      Duane
      
      Golden
      
      Huntley
      
      Klein
      
      Lanza
      
      Parker
      
      Perkins
      
      Sampson
      
      Schneiderman
      
      Squadron
      
      Volker
      
      nay (1)
      
      Flanagan
      
      aye wr (1)
      
      Saland

Bill Amendments

2009-S5696 - Details

See Assembly Version of this Bill:: A8393
Law Section:: Family Court Act
Laws Affected:: Amd §§446, 551, 656, 759, 812, 842 & 1056, Fam Ct Act; amd §240, Dom Rel L

2009-S5696 - Summary

Provides that orders of protection shall not be denied, in support proceedings, paternity proceedings, termination of parental rights proceedings, person in need of supervision proceedings, family offense proceedings and child protective proceedings, solely on the basis that the events alleged are not contemporaneous with the application therefor or the conclusion of the action.

2009-S5696 - Sponsor Memo

                                 BILL NUMBER:  S5696

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


 PURPOSE OF BILL :
Provides that orders of protection shall not be denied solely on the
basis that the events alleged and not relatively contemporaneous with
the date of the application or conclusion thereof.

 SUMMARY OF PROVISIONS OF BILL :
Sections 1,2,3,4 and 7 amend sections 446,551,656, 759 and 1056 of the
Family Court Act and section 8 amends section 240(3)(e) of the
Domestic Relations Law to provide that a court shall not deny an order
of protection or dismiss an application for the same, solely because
the acts alleged are not relatively contemporaneous with the filing of
the application or the conclusion of the action. In addition these
sections provide that the duration of any temporary order shall not by
itself determine the length or issuance of any final order.

Section 5 amends subdivision 1 of section 812 of the Family Court Act
by providing that a court shall not deny an order of protection or
dismiss a petition solely on the basis that the acts or events alleged
are not relatively contemporaneous with the date of the petition, the

conclusion of the fact-finding or the conclusion of any dispositional
hearing.

Section 6 amends section 842 Of the Family Court Act by providing that
the duration of any temporary order shall not by itself be a factor in
determining the length or issuance of any final order.

 JUSTIFICATION :
Our legislature has recognized that domestic violence is a crime of
enormous magnitude with effects on all New Yorkers, regardless of age,
race, or economic status and with long term and pervasive consequences
for victims, families, communities and society. Each year an estimated
400,000 domestic violence incidents are reported to law enforcement in
New York, approximately 300,000 calls are received by hotlines
throughout the State, and nearly 165,000 orders of protection were
issued in domestic violence cases in family, criminal and supreme
courts in 2007 alone. While the legislature has enacted various
measures to advance protections for victims of domestic abuse, it is
critical to ensure that these measures are not eroded and that victims
have access to meaningful protections from their abusers.

This legislation is intended to overturn a line of Appellate Division
cases that have attempted to institute a statute of limitations on
incidents of abuse that a victim of domestic violence may plead and
prove, where the legislature specifically did not institute one.

(See, Yoba v. Yoba, 183 AD.2d 418(1st Dept.,1992); Swersky v. Swersky,
299 AD.2d 540(2d Dept., 2002); Thomas v. Thomas, 32 AD.3d 521(2d
Dept., 2006); Matter of Ashley P., 31 AD.3d 767 (2d Dept., 2006);
Matter of Ann P. v. Nicholas C.P., 44 AD.3d 776 (2d Dept., 2007);
Matter of Hall v. Hall, 45 A.D.2d 842 (2d Dept., 2007); Matter of
Loriann Q. v. Frank R., 53 AD.3d 735 (3d Dept., 2008), denying civil
orders of protection as a primary, or as secondary basis, because the
incidents pled were not "relatively contemporaneous"). There is a
disturbing trend in the Family, Supreme and Integrated Domestic
Violence Courts of denying civil orders of protection where incidents
of abuse alleged are considered by the courts as not "relatively
contemporaneous" with the filing of the petition, the findings of
fact, or the dispositional stage of the proceeding, presumably in
reliance on the Appellate Division cases.  Furthermore, some trial
courts have been denying a final order of protection on the basis that
the temporary order of protection was in effect for too long. This
legislation is also intended to address such denials of final orders
of protection that are based on the duration of a temporary order
issued during the pendency of a case.

When the family offense statute was passed enabling people to apply
for civil orders of protection, the Legislature was mindful in not
requiring incidents of abuse to be pled within a particular period of
time.  This was based on the recognition that domestic violence is a
pattern of behavior aimed at controlling another person. In making
this avenue of relief available to victims of domestic violence, the
legislature recognized that domestic violence must be viewed as a
video as opposed to a snapshot. It is important for a court to hear
and consider the history of violence to craft a careful and meaningful
order that accomplishes the purpose of securing safety. Allegations
that are more remote in time can give the finder of fact an enormous
amount of information including how long the violent relationship has
lasted so the finder of fact can craft a meaningful order of
protection.  Experts in the area of domestic violence, national
government statistics and local statistics have clearly established
that domestic violence is a pattern that frequently spans the entire
relationship and to institute an artificial cut off date for which
incidents will or will not be considered by the court in making a
determination disregards the nationally established understanding of
domestic violence.

Any incident of abuse that precipitates the filing for an order of
protection must be viewed in the context of the history of the pattern
of abuse suffered by the applicant and there is no statutory
requirement to limit incidents pled to be within a specific period of
time.

A family offense proceeding comprises a fact-finding stage and a
dispositional or sentencing phase. While the age of the incidents
might be a factor for consideration at the dispositional phase of the
proceedings, courts should not preclude applicants from the relief of
a civil order of protection, solely because an incident is considered
by some courts as too remote in time. The purpose of these civil
proceedings - as distinguished from criminal proceedings -- is
primarily to protect the physical and emotional safety of the victim,
as well as to end the family disruption (Section 812 (2)(b)).

 LEGISLATIVE HISTORY :
New bill, 2009.

 FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS :
None.

 EFFECTIVE DATE :
The act shall take effect immediately and shall apply to all orders of
protection pending or entered on or after such effective date.

2009-S5696 - Bill Text download pdf

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

                                  5696

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                              May 28, 2009
                               ___________

Introduced  by  Sen. SAMPSON -- read twice and ordered printed, and when
  printed to be committed to the Committee on Judiciary

AN ACT to amend the family court act and the domestic relations law,  in
  relation to the issuance of orders of protection

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

  Section 1. Section 446 of the family court act is amended by adding  a
new closing paragraph to read as follows:
  IN  ANY PROCEEDING PURSUANT TO THIS ARTICLE, A COURT SHALL NOT DENY AN
ORDER OF PROTECTION, OR DISMISS AN APPLICATION FOR SUCH AN ORDER, SOLELY
ON THE BASIS THAT THE ACTS OR EVENTS ALLEGED ARE NOT RELATIVELY  CONTEM-
PORANEOUS  WITH  THE  DATE  OF  THE APPLICATION OR THE CONCLUSION OF THE
ACTION. THE DURATION OF ANY TEMPORARY ORDER SHALL NOT  BY  ITSELF  BE  A
FACTOR IN DETERMINING THE LENGTH OR ISSUANCE OF ANY FINAL ORDER.
  S  2.  Section  551 of the family court act is amended by adding a new
closing paragraph to read as follows:
  IN ANY PROCEEDING PURSUANT TO THIS ARTICLE, A COURT SHALL NOT DENY  AN
ORDER OF PROTECTION, OR DISMISS AN APPLICATION FOR SUCH AN ORDER, SOLELY
ON  THE BASIS THAT THE ACTS OR EVENTS ALLEGED ARE NOT RELATIVELY CONTEM-
PORANEOUS WITH THE DATE OF THE APPLICATION  OR  THE  CONCLUSION  OF  THE
ACTION.  THE  DURATION  OF  ANY TEMPORARY ORDER SHALL NOT BY ITSELF BE A
FACTOR IN DETERMINING THE LENGTH OR ISSUANCE OF ANY FINAL ORDER.
  S 3. Section 656 of the family court act is amended by  adding  a  new
closing paragraph to read as follows:
  IN  ANY PROCEEDING PURSUANT TO THIS ARTICLE, A COURT SHALL NOT DENY AN
ORDER OF PROTECTION, OR DISMISS AN APPLICATION FOR SUCH AN ORDER, SOLELY
ON THE BASIS THAT THE ACTS OR EVENTS ALLEGED ARE NOT RELATIVELY  CONTEM-
PORANEOUS  WITH  THE  DATE  OF  THE APPLICATION OR THE CONCLUSION OF THE
ACTION. THE DURATION OF ANY TEMPORARY ORDER SHALL NOT  BY  ITSELF  BE  A
FACTOR IN DETERMINING THE LENGTH OR ISSUANCE OF ANY FINAL ORDER.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11924-01-9

S. 5696                             2

  S  4.  Section  759 of the family court act is amended by adding a new
closing paragraph to read as follows:
  IN  ANY PROCEEDING PURSUANT TO THIS ARTICLE, A COURT SHALL NOT DENY AN
ORDER OF PROTECTION, OR DISMISS AN APPLICATION FOR SUCH AN ORDER, SOLELY
ON THE BASIS THAT THE ACTS OR EVENTS ALLEGED ARE NOT RELATIVELY  CONTEM-
PORANEOUS  WITH  THE  DATE  OF  THE APPLICATION OR THE CONCLUSION OF THE
ACTION. THE DURATION OF ANY TEMPORARY ORDER SHALL NOT  BY  ITSELF  BE  A
FACTOR IN DETERMINING THE LENGTH OR ISSUANCE OF ANY FINAL ORDER.
  S  5.  The  opening  paragraph  of subdivision 1 of section 812 of the
family court act, as amended by chapter 326 of  the  laws  of  2008,  is
amended to read as follows:
  The  family court and the criminal courts shall have concurrent juris-
diction over any  proceeding  concerning  acts  which  would  constitute
disorderly  conduct,  harassment  in the first degree, harassment in the
second degree, aggravated harassment in the second degree,  stalking  in
the  first  degree, stalking in the second degree, stalking in the third
degree, stalking in the fourth degree, criminal  mischief,  menacing  in
the  second degree, menacing in the third degree, reckless endangerment,
assault in the  second  degree,  assault  in  the  third  degree  or  an
attempted  assault  between spouses or former spouses, or between parent
and child or between members of the same family or household except that
if the respondent would not be criminally responsible by reason  of  age
pursuant  to section 30.00 of the penal law, then the family court shall
have exclusive jurisdiction  over  such  proceeding.  Notwithstanding  a
complainant's  election  to  proceed in family court, the criminal court
shall not be divested of jurisdiction to hear a family offense  proceed-
ing  pursuant to this section.  IN ANY PROCEEDING PURSUANT TO THIS ARTI-
CLE, A COURT SHALL NOT DENY AN ORDER OF PROTECTION, OR DISMISS  A  PETI-
TION,  SOLELY  ON  THE  BASIS  THAT  THE  ACTS OR EVENTS ALLEGED ARE NOT
RELATIVELY CONTEMPORANEOUS WITH THE DATE OF THE PETITION, THE CONCLUSION
OF THE FACT-FINDING OR THE CONCLUSION OF ANY DISPOSITIONAL HEARING.  For
purposes  of  this  article,  "disorderly  conduct"  includes disorderly
conduct not in a public place.  For purposes of this  article,  "members
of the same family or household" shall mean the following:
  S  6. The opening paragraph of section 842 of the family court act, as
amended by chapter 579 of the laws  of  2003,  is  amended  to  read  as
follows:
  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 aggravating 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.  THE DURATION OF ANY TEMPORARY ORDER SHALL NOT BY
ITSELF BE A FACTOR IN DETERMINING THE LENGTH OR ISSUANCE  OF  ANY  FINAL
ORDER.  Any  order  of  protection issued pursuant to this section shall
specify if an order of probation is in effect. Any order  of  protection
issued  pursuant  to  this  section  may  require  the petitioner or the
respondent:
  S 7. Section 1056 of the family court act is amended by adding  a  new
subdivision 6 to read as follows:

S. 5696                             3

  6.  IN ANY PROCEEDING PURSUANT TO THIS ARTICLE, A COURT SHALL NOT DENY
AN ORDER OF PROTECTION, OR DISMISS AN APPLICATION  FOR  SUCH  AN  ORDER,
SOLELY  ON  THE BASIS THAT THE ACTS OR EVENTS ALLEGED ARE NOT RELATIVELY
CONTEMPORANEOUS WITH THE DATE OF THE APPLICATION OR  THE  CONCLUSION  OF
THE ACTION. THE DURATION OF ANY TEMPORARY ORDER SHALL NOT BY ITSELF BE A
FACTOR IN DETERMINING THE LENGTH OR ISSUANCE OF ANY FINAL ORDER.
  S  8.  Paragraph  e  of  subdivision  3 of section 240 of the domestic
relations law, as amended by chapter 597 of the laws of 1998, is amended
to read as follows:
  e. No order of protection may direct any party to  observe  conditions
of behavior unless: (i) the party requesting the order of protection has
served  and filed an action, proceeding, counter-claim or written motion
and, (ii) the court has made a finding on the record that such party  is
entitled  to issuance of the order of protection which may result from a
judicial finding of fact, judicial acceptance of  an  admission  by  the
party  against  whom  the  order was issued or judicial finding that the
party against whom the order is issued has  given  knowing,  intelligent
and  voluntary  consent to its issuance. The provisions of this subdivi-
sion shall not preclude the court from  issuing  a  temporary  order  of
protection upon the court's own motion or where a motion for such relief
is  made to the court, for good cause shown.  IN ANY PROCEEDING PURSUANT
TO THIS ARTICLE, A COURT SHALL NOT  DENY  AN  ORDER  OF  PROTECTION,  OR
DISMISS  AN  APPLICATION FOR SUCH AN ORDER, SOLELY ON THE BASIS THAT THE
ACTS OR EVENTS ALLEGED ARE NOT RELATIVELY CONTEMPORANEOUS WITH THE  DATE
OF  THE APPLICATION OR THE CONCLUSION OF THE ACTION. THE DURATION OF ANY
TEMPORARY ORDER SHALL NOT BY ITSELF  BE  A  FACTOR  IN  DETERMINING  THE
LENGTH OR ISSUANCE OF ANY FINAL ORDER.
  S  9.  This  act  shall take effect immediately and shall apply to all
orders of protection pending or entered on or after such effective date.

co-Sponsors

2009-S5696A (ACTIVE) - Details

See Assembly Version of this Bill:: A8393
Law Section:: Family Court Act
Laws Affected:: Amd §§446, 551, 656, 759, 812, 842 & 1056, Fam Ct Act; amd §240, Dom Rel L

2009-S5696A (ACTIVE) - Summary

2009-S5696A (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S5696A

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


 PURPOSE OF BILL :
Provides that orders of protection shall not be denied solely on the
basis that the events alleged are not relatively contemporaneous with
the date of the application or conclusion thereof.

 SUMMARY OF PROVISIONS OF BILL :
Sections 1,2,3,4 and 7 amend sections 446,551,656,759 and 1056 of the
Family Court Act and section 8 amends section 240(3)(e) of the
Domestic Relations Law to provide that a court shall not deny an order
of protection or dismiss an application for the same, solely because
the acts alleged are not relatively contemporaneous with the filing of
the application or the conclusion of the action. In addition these
sections provide that the duration of any temporary order shall not by
itself determine the length or issuance of any final order.

Section 5 amends subdivision 1 of section 812 of the Family Court Act
by providing that a court shall not deny an order of protection or
dismiss a petition solely on the basis that the acts or events alleged
are not relatively contemporaneous with the date of the petition, the

conclusion of the fact-finding or the conclusion of any dispositional
hearing.

Section 6 amends section 842 Of the Family Court Act by providing that
the duration of any temporary order shall not by itself be a factor in
determining the length or issuance of any final order

 JUSTIFICATION :
Our legislature has recognized that domestic violence is a crime of
enormous magnitude with effects on all New Yorkers, regardless of age,
race, or economic status and with long term and pervasive consequences
for victims, families, communities and society. Each year an estimated
400,000 domestic violence incidents are reported to law enforcement in
New York, approximately 300,000 calls are received by hotlines
throughout the State, and nearly 165,000 orders of protection were
issued in domestic violence cases in family, criminal and supreme
courts in 2007 alone. While the legislature has enacted various
measures to advance protections for victims of domestic abuse, it is
critical to ensure that these measures are not eroded and that victims
have access to meaningful protections from their abusers.

This legislation is intended to overturn a line of Appellate Division
cases that have attempted to institute a statute of limitations on
incidents of abuse that a victim of domestic violence may plead and
prove, where the legislature specifically did not institute one.

(See,  YOBA V. YOBA , 183 A.D.2d 418(1st Dept.,1992);  SWERSKY V.
SWERSKY , 299 A.D.2d 540(2d Dept., 2002);  THOMAS V. THOMAS , 32
A.D.3d 521(2d Dept., 2006);  MATTER OF ASHLEY P. , 31 A.D. 3d 767 (2d
Dept., 2006);  MATTER OF ANN P.  V. NICHOLAS C.P. , 44 A.D.3d 776 (2d
Dept., 2007);  MATTER OF HALL V. HALL , 45 A.D.2d 842 (2d Dept.,
2007);  MATTER OF LORIANN O. V. FRANK R. , 53 A.D.3d 735 (3d Dept.,
2008), denying civil orders of protection as a primary, or as
secondary basis, because the incidents pled were not "relatively
contemporaneous"). There is a disturbing trend in the Family, Supreme
and Integrated Domestic Violence Courts of denying civil orders of
protection where incidents of abuse alleged are considered by the
courts as not "relatively contemporaneous" with the filing of the
petition, the findings of fact, or the dispositional stage of the
proceeding, presumably in reliance on the Appellate Division cases.
Furthermore, some trial courts have been denying a final order of
protection on the basis that the temporary order of protection was in
effect for too long. This legislation is also intended to address such
denials of final orders of protection that are based on the duration
of a temporary order issued during the pendency of a case.

When the family offense statute was passed enabling people to apply
for civil orders of protection, the Legislature was mindful in not
requiring incidents of abuse to be pled within a particular period of
time.  This was based on the recognition that domestic violence is a
pattern of behavior aimed at controlling another person. In making
this avenue of relief available to victims of domestic violence, the
legislature recognized that domestic violence must be viewed as a
video as opposed to a snapshot. It is important for a court to hear
and consider the history of violence to craft a careful and meaningful
order that accomplishes the purpose of securing safety. Allegations
that are more remote in time can give the finder of fact an enormous
amount of information including how long the violent relationship has
lasted so the finder of fact can craft a meaningful order of
protection.  Experts in the area of domestic violence, national
government statistics and local statistics have clearly established
that domestic violence is a pattern that frequently spans the entire
relationship and to institute an artificial cut off date for which
incidents will or will not be considered by the court in making a
determination disregards the nationally established understanding of
domestic violence.

Any incident of abuse that precipitates the filing for an order of
protection must be viewed in the context of the history of the pattern
of abuse suffered by the applicant and there is no statutory
requirement to limit incidents pled to be within a specific period of
time.

A family offense proceeding comprises a fact-finding stage and a
dispositional or sentencing phase. While the age of the incidents
might be a factor for consideration at the dispositional phase of the
proceedings, courts should not preclude applicants from the relief of
a civil order of protection, solely because an incident is considered
by some courts as too remote in time. The purpose of these civil
proceedings - as distinguished from criminal proceedings - is
primarily to protect the physical and emotional safety of the victim,
as well as to end the family disruption (Section 812 (2)(b)).

 LEGISLATIVE HISTORY :
2009 - A.8393/S.5696 - Passed Assembly/Senate Judiciary

 FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS :
None.

 EFFECTIVE DATE :
The act shall take effect immediately and shall apply to all orders of
protection pending or entered on or after such effective date.

2009-S5696A (ACTIVE) - Bill Text download pdf

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

                                 5696--A

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                              May 28, 2009
                               ___________

Introduced  by  Sen. SAMPSON -- read twice and ordered printed, and when
  printed to be committed to the Committee on Judiciary  --  recommitted
  to the Committee on Judiciary 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 and the domestic relations law,  in
  relation to the issuance of orders of protection

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

  Section 1. Section 446 of the family court act is amended by adding  a
new closing paragraph to read as follows:
  IN  ANY PROCEEDING PURSUANT TO THIS ARTICLE, A COURT SHALL NOT DENY AN
ORDER OF PROTECTION, OR DISMISS AN APPLICATION FOR SUCH AN ORDER, SOLELY
ON THE BASIS THAT THE ACTS OR EVENTS ALLEGED ARE NOT RELATIVELY  CONTEM-
PORANEOUS  WITH  THE  DATE  OF  THE APPLICATION OR THE CONCLUSION OF THE
ACTION. THE DURATION OF ANY TEMPORARY ORDER SHALL NOT  BY  ITSELF  BE  A
FACTOR IN DETERMINING THE LENGTH OR ISSUANCE OF ANY FINAL ORDER.
  S  2.  Section  551 of the family court act is amended by adding a new
closing paragraph to read as follows:
  IN ANY PROCEEDING PURSUANT TO THIS ARTICLE, A COURT SHALL NOT DENY  AN
ORDER OF PROTECTION, OR DISMISS AN APPLICATION FOR SUCH AN ORDER, SOLELY
ON  THE BASIS THAT THE ACTS OR EVENTS ALLEGED ARE NOT RELATIVELY CONTEM-
PORANEOUS WITH THE DATE OF THE APPLICATION  OR  THE  CONCLUSION  OF  THE
ACTION.  THE  DURATION  OF  ANY TEMPORARY ORDER SHALL NOT BY ITSELF BE A
FACTOR IN DETERMINING THE LENGTH OR ISSUANCE OF ANY FINAL ORDER.
  S 3. Section 656 of the family court act is amended by  adding  a  new
closing paragraph to read as follows:
  IN  ANY PROCEEDING PURSUANT TO THIS ARTICLE, A COURT SHALL NOT DENY AN
ORDER OF PROTECTION, OR DISMISS AN APPLICATION FOR SUCH AN ORDER, SOLELY
ON THE BASIS THAT THE ACTS OR EVENTS ALLEGED ARE NOT RELATIVELY  CONTEM-
PORANEOUS  WITH  THE  DATE  OF  THE APPLICATION OR THE CONCLUSION OF THE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11924-03-0

S. 5696--A                          2

ACTION. THE DURATION OF ANY TEMPORARY ORDER SHALL NOT  BY  ITSELF  BE  A
FACTOR IN DETERMINING THE LENGTH OR ISSUANCE OF ANY FINAL ORDER.
  S  4.  Section  759 of the family court act is amended by adding a new
closing paragraph to read as follows:
  IN ANY PROCEEDING PURSUANT TO THIS ARTICLE, A COURT SHALL NOT DENY  AN
ORDER OF PROTECTION, OR DISMISS AN APPLICATION FOR SUCH AN ORDER, SOLELY
ON  THE BASIS THAT THE ACTS OR EVENTS ALLEGED ARE NOT RELATIVELY CONTEM-
PORANEOUS WITH THE DATE OF THE APPLICATION  OR  THE  CONCLUSION  OF  THE
ACTION.  THE  DURATION  OF  ANY TEMPORARY ORDER SHALL NOT BY ITSELF BE A
FACTOR IN DETERMINING THE LENGTH OR ISSUANCE OF ANY FINAL ORDER.
  S 5. The opening paragraph of subdivision 1  of  section  812  of  the
family  court  act,  as  amended  by chapter 476 of the laws of 2009, is
amended to read as follows:
  The family court and the criminal courts shall have concurrent  juris-
diction  over  any  proceeding  concerning  acts  which would constitute
disorderly conduct, harassment in the first degree,  harassment  in  the
second  degree,  aggravated  harassment  in  the  second  degree, sexual
misconduct, forcible touching, sexual abuse in the third degree,  sexual
abuse  in  the  second degree as set forth in subdivision one of section
130.60 of the penal law, stalking in the first degree, stalking  in  the
second  degree,  stalking  in  the  third degree, stalking in the fourth
degree, criminal mischief, menacing in the second  degree,  menacing  in
the  third  degree, reckless endangerment, assault in the second degree,
assault in the third degree or an attempted assault between  spouses  or
former  spouses,  or  between parent and child or between members of the
same family or household except that if  the  respondent  would  not  be
criminally responsible by reason of age pursuant to section 30.00 of the
penal  law, then the family court shall have exclusive jurisdiction over
such proceeding. Notwithstanding a complainant's election to proceed  in
family  court,  the criminal court shall not be divested of jurisdiction
to hear a family offense proceeding pursuant to this section.    IN  ANY
PROCEEDING  PURSUANT TO THIS ARTICLE, A COURT SHALL NOT DENY AN ORDER OF
PROTECTION, OR DISMISS A PETITION, SOLELY ON THE BASIS THAT THE ACTS  OR
EVENTS  ALLEGED  ARE NOT RELATIVELY CONTEMPORANEOUS WITH THE DATE OF THE
PETITION, THE CONCLUSION OF THE FACT-FINDING OR THE  CONCLUSION  OF  THE
DISPOSITIONAL   HEARING.  For  purposes  of  this  article,  "disorderly
conduct" includes disorderly conduct not in a public place. For purposes
of this article, "members of the same family or  household"  shall  mean
the following:
  S  6. The opening paragraph of section 842 of the family court act, as
amended by chapter 579 of the laws  of  2003,  is  amended  to  read  as
follows:
  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 aggravating 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.  THE DURATION OF ANY TEMPORARY ORDER SHALL NOT BY
ITSELF BE A FACTOR IN DETERMINING THE LENGTH OR ISSUANCE  OF  ANY  FINAL
ORDER.  Any  order  of  protection issued pursuant to this section shall
specify if an order of probation is in effect. Any order  of  protection

S. 5696--A                          3

issued  pursuant  to  this  section  may  require  the petitioner or the
respondent:
  S  7.  Section 1056 of the family court act is amended by adding a new
subdivision 6 to read as follows:
  6. IN ANY PROCEEDING PURSUANT TO THIS ARTICLE, A COURT SHALL NOT  DENY
AN  ORDER  OF  PROTECTION,  OR DISMISS AN APPLICATION FOR SUCH AN ORDER,
SOLELY ON THE BASIS THAT THE ACTS OR EVENTS ALLEGED ARE  NOT  RELATIVELY
CONTEMPORANEOUS  WITH  THE  DATE OF THE APPLICATION OR THE CONCLUSION OF
THE ACTION. THE DURATION OF ANY TEMPORARY ORDER SHALL NOT BY ITSELF BE A
FACTOR IN DETERMINING THE LENGTH OR ISSUANCE OF ANY FINAL ORDER.
  S 8. Paragraph e of subdivision 3  of  section  240  of  the  domestic
relations law, as amended by chapter 597 of the laws of 1998, is amended
to read as follows:
  e.  No  order of protection may direct any party to observe conditions
of behavior unless: (i) the party requesting the order of protection has
served and filed an action, proceeding, counter-claim or written  motion
and,  (ii) the court has made a finding on the record that such party is
entitled to issuance of the order of protection which may result from  a
judicial  finding  of  fact,  judicial acceptance of an admission by the
party against whom the order was issued or  judicial  finding  that  the
party  against  whom  the order is issued has given knowing, intelligent
and voluntary consent to its issuance. The provisions of  this  subdivi-
sion  shall  not  preclude  the  court from issuing a temporary order of
protection upon the court's own motion or where a motion for such relief
is made to the court, for good cause shown.  IN ANY PROCEEDING  PURSUANT
TO  THIS  ARTICLE,  A  COURT  SHALL  NOT DENY AN ORDER OF PROTECTION, OR
DISMISS AN APPLICATION FOR SUCH AN ORDER, SOLELY ON THE BASIS  THAT  THE
ACTS  OR EVENTS ALLEGED ARE NOT RELATIVELY CONTEMPORANEOUS WITH THE DATE
OF THE APPLICATION OR THE CONCLUSION OF THE ACTION. THE DURATION OF  ANY
TEMPORARY  ORDER  SHALL  NOT  BY  ITSELF  BE A FACTOR IN DETERMINING THE
LENGTH OR ISSUANCE OF ANY FINAL ORDER.
  S 9. This act shall take effect immediately and  shall  apply  to  all
orders of protection pending or entered on or after such effective date.

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Senate Bill S5696A

Signed By Governor

Sponsored By

Archive: Last Bill Status Via A8393 - Signed by Governor

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Votes

Jun 16, 2010 - Floor Vote

Floor Vote: Jun 16, 2010

Jan 26, 2010 - Judiciary Committee Vote

Judiciary Committee Vote: Jan 26, 2010

May 24, 2010 - Codes Committee Vote

Codes Committee Vote: May 24, 2010

Bill Amendments

2009-S5696 - Details

2009-S5696 - Summary

2009-S5696 - Sponsor Memo

2009-S5696 - Bill Text download pdf

co-Sponsors

2009-S5696A (ACTIVE) - Details

2009-S5696A (ACTIVE) - Summary

2009-S5696A (ACTIVE) - Sponsor Memo

2009-S5696A (ACTIVE) - Bill Text download pdf

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Senate Bill S5696A

Signed By Governor

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Sponsored By

John L. Sampson

Archive: Last Bill Status Via A8393 - Signed by Governor

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Votes

Bill Amendments

2009-S5696 - Details

2009-S5696 - Summary

2009-S5696 - Sponsor Memo

2009-S5696 - Bill Text download pdf

co-Sponsors

Diane J. Savino

2009-S5696A (ACTIVE) - Details

2009-S5696A (ACTIVE) - Summary

2009-S5696A (ACTIVE) - Sponsor Memo

2009-S5696A (ACTIVE) - Bill Text download pdf

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