Senate Bill S7589A

                                BILL NUMBER:S7589A

TITLE OF BILL:
An act to amend the family court act, in relation to probation in child
support, juvenile delinquency, persons in need of supervision and family
offense proceedings

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.

Chapter 97 of the Laws of 2011 made far-reaching changes to the
provisions of Family Court Act § 176 regarding orders of probation in
family offense, child support, juvenile delinquency (JD) and persons in
need of supervision (PINS) proceedings.  Section 176, originally enacted
in 1933 and incorporated into the Family Court Act in 1962, had
"(t)hrough almost eighty years of experience...proven useful and uncon-
troversial." Sobie, Practice Commentaries, Family Court Act § 176
(McKinney's, 2011).  Unfortunately, the changes made by chapter 97 have
created significant controversy. They contradict other venue provisions
of the Family Court Act and have imposed substantial burdens upon adults
and juveniles subject to orders of probation, as well as upon the Family
Court. This measure is designed to ameliorate these problems.

First, as to JD and PINS cases in which the youth resides in a jurisdic-
tion other than that in which probation had been ordered, the measure
              

amends Family Court Act § 176(1) to require the court to transfer
probation supervision to the probation department in the jurisdiction of
the probationer's residence, including in cases in which the
probationer's relocation occurs subsequent to issuance of an order of
probation. In other cases involving orders of probation, the court would
have discretion to transfer probation supervision to the jurisdiction in
which the probationer resides. Importantly, the measure eliminates the
provision in the 2011 statute that placed responsibility upon probation-
ers, whether adult or juvenile, to request permission from the court to
relocate their residences and gave the court authority to rule upon such
requests. That provision is over-broad in the context of an adult proba-
tioner in a child support or family offense case and is particularly
inappropriate when applied to a JD or PINS case, where the probationer's
parents, not the juvenile probationer, control decisions regarding where
the family resides.

Second, the measure amends sections 171 and 175 of the Family Court Act
to indicate that its provisions regarding venue for all proceedings to
enforce or modify Family Court orders, including proceedings for
violations of probation, do not apply to probation-related proceedings
involving juveniles in PINS and JD proceedings.  Proceedings involving
juveniles placed on probation in such cases would instead be governed by
Family Court Act §176(2). That section is amended to provide that a
transfer of probation supervision to the jurisdiction in which the
probationer resides creates a rebuttable presumption that subsequent

proceedings regarding the probation order, including proceedings for a
probation violation or proceedings to extend the duration or modify the
conditions of probation, should be heard in the county providing the
supervision. The presumption would be rebutted if Family Court in the
jurisdiction providing the supervision "determines that there is a good
cause to return the proceeding" to the court that issued the order of
probation.

Significantly, the presumption would not apply to the wide range of
other post-dispositional proceedings in JD and PINS proceedings that are
unrelated to the order of probation, since petitioners and the Family
Courts in such cases retain discretion to exercise other venue options.
See, e.g., Family Court Act §§355.1, 761,762, 780. Family Court Act
174 provides that Family Court, upon good cause, may transfer venue to
any county in which a proceeding may have been filed and must transfer
venue if it had been improperly lodged. This measure thus resolves the
conflicting venue provisions by applying the presumption in favor of the
probationer's county of residence only to those JD and PINS proceedings
that pertain directly to the order of probation.

In limiting transfer of Family Court proceedings in JD and PINS cases to
those related specifically to the order of probation, the measure would
conform the statutory language to the construction given by the Court of
Appeals to analogous language applicable to post-dispositional criminal
proceedings. CPL §410.80(2), upon which the 2011 amendments to Family
Court Act § 176 were based, provides that once probation supervision
over a criminal defendant has been transferred, the court in the
probationer's county of residence "shall assume all powers and duties of
the sentencing court and shall have sole jurisdiction in the case..."
However, the Court of Appeals held, in People v. Mitchell, 15 N.Y.3d 93
(2010), that, although the phrase "sole jurisdiction" appears to divest
the sentencing court of jurisdiction over all post-dispositional
proceedings, the Legislature simply intended to transfer "the full range
of powers and duties necessary for the Judiciary to carry out its
responsibilities to enforce the terms and conditions of probationers,
and to deal with forfeitures and disabilities," but did not intend to
deprive the sentencing court of jurisdiction to rule upon post-judgment
motions under Article 440 of the CPL.

Moreover, in limiting the presumptive transfer provision to JD and PINS
cases, the measure leaves intact the venue provisions applicable in
family offense and child support cases. Family Court Act §818, for exam-
ple, provides that a petitioner in a family offense case may file in the
county where the offense allegedly occurred or in any county where any
of the parties reside, which may include a domestic violence shelter to
which a petitioner has fled for safety. Venue in child support
proceedings, pursuant to Family Court Act §419, may be in any county in
which a party resides and may be transferred by Family Court, upon
application, in accordance with CPLR article five.

Third, the measure eliminates an unnecessary burden and unfunded mandate
imposed upon Family Courts by the court records transfer provisions of

chapter 97 of the Laws of 2011. That statute requires Family Courts to
transfer all court records immediately upon a transfer of probation
supervision, even when there has been no probation violation or other
probation-related post-dispositional proceeding pending in the county
that is providing probation supervision and even when the records may
include years of litigation entirely unrelated to the order of
probation. In order to limit court records transfer requirements to
those records that are necessary for actual proceedings, the measure
amends Family Court Act § 173 to provide that where an action, includ-
ing, inter alia, an action to modify, extend or enforce an order of
probation, has been filed in a county other than the county that issued
the order, Family Court in the county in which the action has been filed
must request the record from the court that issued the order and that
court must transmit a copy of the record that pertains to the order of
probation forthwith "by electronic or other means." The measure thus
targets only the particular records that would be relevant to the pend-
ing proceeding, requires transmittal only at such time as the records
are actually needed by the court and patties and recognizes that an
increasing number of Family Courts are minimizing the use of paper
records through electronic scanning.

Finally, the measure treats New York City as one jurisdiction, rather
than as five individual counties, with respect to Family Court Act
176. The City's Department of Probation covers all five counties and is
thus able to transfer probation supervision internally without court
orders. Transfers of proceedings and records within the five courts that
comprise the New York City Family Court are likewise accomplished easi-
ly.

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

LEGISLATIVE HISTORY:
None. New proposal.