Senate Bill S4302A

                                BILL NUMBER:S4302

TITLE OF BILL:
An act
to amend the family court act and the domestic relations law, in
relation to service of orders of protection in family and supreme court
proceedings and allegations in family offense petitions

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.

Of all the changes to the domestic violence laws in New York State
during the past two decades, one of the most helpful has been
introduction of a presumption in favor of law enforcement service of
civil orders of protection and associated documents. Parties
protected by temporary or final orders of protection in Supreme and
Family Courts do not, unless they so request, bear the burden of
arranging for service; nor do they - or the friends or family members
they may enlist for that purpose - face the danger inherent in
personal service in volatile domestic violence cases. However, three
provisions in the statutory framework regarding service have
engendered confusion. It is the aim of this measure to eliminate that
confusion and, at the same time, to amend the family offense petition
requirements to conform to recent legislation.

              

First, the measure would amend Family Court Act § 153-b and Domestic
Relations Law §240 to clarify that chapter 261 of the Laws of 2010
did not alter the requirements for personal service or the
presumption in favor of law enforcement personal service of temporary
orders of protection, orders of protection and the accompanying
petitions, summonses and other documents. As its supporting
memorandum made clear, chapter 261 simply provided that, in order to
expedite the service process, courts may electronically transmit the
documents to law enforcement officials so that they may serve
them promptly. See NYS Assembly Memorandum in Support of A.10410.
Chapter 261 did not, as some have erroneously suggested, abrogate the
requirement of personal service by permitting electronic service
directly upon the parties. In fact, it merely made permanent and
statewide what had been a temporary authorization for pilot projects
for electronic transmittal of documents to law enforcement for
service in nine counties. See L. 2007, c. 330.

Second, the measure would address a problem that has arisen in light
of the interpretation by law enforcement in New York City of the
requirement in Family Court Act §826(a) that, unless a warrant has
been issued, service of a summons and petition in a family offense
case must be made at least 24 hours before the date indicated for the
initial appearance. The section provides for an adjournment of three
days upon request of the respondent, which clearly protects the due
process rights of a respondent, including any case in which the
24-hour requirement has not been met. However, as the Family Court,
Bronx County, noted, in Grant v. Pugh, 25 Misc.3d 417 (Fam. Ct.,
Bronx Co., 2009), police officers have relied upon Family Court Act
§826 to preclude any service of documents less than 24 hours before
the court appearance, thus "forcing petitioners alleging domestic


violence, sufficient to get an ex parte exclusion order from the
court, to go home to the respondent whom the court has ordered
excluded from the home." 25 Misc.3d, at 420. That Court held that the
fact that service of the documents, as well as a temporary order of
protection, may have been made less than 24 hours before the court
date should not render the service invalid
or the temporary order of protection ineffective;
it should simply entitle the respondent to avail himself or herself of
the right to request an adjournment. Consistent with the court's
interpretation, this measure would clarify that where a respondent
has requested an adjournment of a family offense proceeding, the court
may continue or grant a temporary order of protection to protect the
petitioner during the adjournment period. In this way, alleged
victims of domestic violence would not be left vulnerable during what
is generally recognized as the most dangerous period of time for them
- the period immediately surrounding the initiation of litigation,
especially court proceedings seeking to exclude alleged abusers -
while the due process rights of the alleged abusers to adequate
notice and an opportunity to prepare a defense would be fully
protected.

Finally, this measure would conform Family Court Act §821 to a
recent amendment to Family Court Act §812. Chapter 405 of the Laws
of 2010 added strangulation and criminal obstruction of breathing and
blood circulation to the list of family offenses for which family and
criminal courts exercise concurrent jurisdiction, but failed to add
these new crimes to the family offenses that may be alleged in a
petition brought under Article 8 of the Family Court Act. Several
cases have resulted in summary dismissals of family offense petitions
that failed to allege family offenses enumerated in
Family Court Act § 821, underscoring the importance of enumerating all
offenses listed in Family Court Act §812 in Family Court Act §821 as
well. See, e.g., Brennan v. Anesi, 283 A.D.2d 693 (3d Dept. 2001);
Jones v. Roper. 187 A.D.2d 593 (2d Dept. 1992);
Matter of Paulette PG v. Evan CG, 26 Misc.3d 323 (Fam. Ct., Bronx Co.,
2009). This measure, therefore, would add strangulation and criminal
obstruction of breathing and blood circulation to the possible
allegations set forth in Family Court Act .821.

This measure would have no fiscal impact upon the State, and would
take effect immediately.

LEGISLATIVE HISTORY:
None. New proposal.

EFFECTIVE DATE:
Immediately.