BILL NUMBER:S2599

TITLE OF BILL:
An act
to amend the penal law, in relation to
establishing a
presumption relating to custodial interference

PURPOSE:
The bill creates a rebuttable evidentiary
presumption that
the taking of a child in violation of a court order establishing
custody or visitation is known by the offender to be a wrongful
taking, and that service of such order pursuant to the "substitute
service" provisions of the Civil Practice Law and Rules shall
constitute actual knowledge by the offender of the existence of the
order.

SUMMARY OF PROVISIONS:
Section 1, subdivision 1 of the bill amends the
Penal Law by adding a new section 135.51 providing for presumption of
service.

Section 1, subdivision 2 of the bill states that the rebuttable
presumption established by subdivision one of this section shall not
apply where court order was served by publication.
              

EXISTING LAW:
Current law necessitates personal service.

JUSTIFICATION:
There is an increasing recognition among experts of the seriousness of
parental abduction and its long term negative consequences for
children. The federal Office of Juvenile Justice and Delinquency
Prevention, in its National Incidence Studies on Missing, Abducted,
Runaway and Thrownaway Children in America (NISMART), reports that
there are as many as 354,100 children abducted by a family member
each year.

Forty-six percent of parental abductions in the NISMART study involved
concealing the whereabouts of the child or taking the child out of
the state. Abduction is often a vengeful attack on the other parent.
Sometimes the abduction is another attempt by the abuser to control,
intimidate or harass the battered partner attempting to leave the
relationship. An abuser may also refuse to return a child after
visitation as a form of harassment or a means of continued access to
the abused parent. Abductions committed by an abusive parent are more
likely to involve violence or the use of force, placing the child in
greater jeopardy.

Although New York's custodial interference statute seeks to punish
parental abduction, the law is not comprehensive and is only
minimally effective. This is due to the difficult threshold needed to
secure a felony warrant, as such the warrant requires serving notice.
Under the current statute the abductor benefits from his or her
criminal conduct by hiding from the law.


In practice, in order for a victimized parent to access the national
resources of the FBI, a felony must be charged against the abducting
party. In order to establish the "wrongfulness" of the taking where
the abductor is a parent, the victim (the other parent) must show
that the taking violated an order of custody or visitation, or an
order of protection. Where no prior order exists, the victim must
obtain an order from a court of appropriate jurisdiction and serve it
upon the abductor. In cases where the abductor and the child have
fled, and cannot be located to allow for personal service of the
court's order, the victim is unable to allege a felony and is
therefore denied access to the FBI. This is a serious and often
tragic defect in the current statute, leaving the victim -- the
rightful custodian -- without the necessary investigative and police
resources to locate and recover the child, This bill remedies this
defect by including the other means of service currently provided for
in section 307 of the Civil Practice Law and Rules.

LEGISLATIVE HISTORY:
1997-98: S.816B/A.5942C -Passed Senate, Held in Assembly Codes Committee
1999-00: S.1830/A.4472 - Passed Senate, Held in Assembly Codes Committee
2001-02: S.4234/A.1862 - Passed Senate, Held in Assembly Codes Committee
2003-04: S.1923 - Passed Senate
2005-06: S.466  - Passed Senate
2007:    S.1076 - Passed Senate
2008:    S.1076 - Referred to Codes

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
First day of November after enactment.