S T A T E   O F   N E W   Y O R K
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                                 5516--A

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              May 16, 2013
                               ___________

Introduced  by  Sen.  PARKER -- read twice and ordered printed, and when
  printed to be committed to the Committee on Children and  Families  --
  recommitted  to  the  Committee on Children and Families 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,  in  relation  to orders of
  protection in family offense proceedings; counseling for children

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

  Section  1. Section 842 of the family court act, as amended by chapter
526 of the laws of 2013, the closing paragraph as added by  chapter  480
of the laws of 2013, is amended to read as follows:
  S 842. Order of protection. 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 aggra-
vating 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 court may also,  upon  motion,  extend
the  order  of protection for a reasonable period of time upon a showing
of good cause or consent of the parties. The fact  that  abuse  has  not
occurred  during  the pendency of an order shall not, in itself, consti-
tute sufficient ground for denying or failing to extend the  order.  The
court  must articulate a basis for its decision on the record. The dura-
tion of any temporary order shall not by itself be a factor in determin-
ing the length or issuance of any final order. Any order  of  protection
issued  pursuant  to this section shall specify if an order of probation

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00641-02-4
              

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is in effect. Any order of protection issued pursuant  to  this  section
may require the petitioner or the respondent:
  (a)  to  stay away from the home, school, business or place of employ-
ment of any other party, the other spouse,  the  other  parent,  or  the
child,  and  to stay away from any other specific location designated by
the court, provided that the court shall make a determination, and shall
state such determination in a written decision or on the record, whether
to impose a condition pursuant to this  subdivision,  provided  further,
however,  that failure to make such a determination shall not affect the
validity of such order of protection. In making such determination,  the
court  shall  consider,  but  shall  not be limited to consideration of,
whether the order of protection is likely to achieve its purpose in  the
absence  of  such  a  condition,  conduct  subject  to  prior  orders of
protection, prior incidents of abuse, extent of past or present  injury,
threats, drug or alcohol abuse, and access to weapons;
  (b)  to permit a parent, or a person entitled to visitation by a court
order or a separation agreement, to visit the child at stated periods;
  (c) to refrain from committing a family offense, as defined in  subdi-
vision  one of section eight hundred twelve of this act, or any criminal
offense against the child or against the other  parent  or  against  any
person  to  whom  custody  of  the  child is awarded, or from harassing,
intimidating or threatening such persons;
  (d) to permit a designated party to enter the residence during a spec-
ified period of time in order to remove personal belongings not in issue
in this proceeding or in any other proceeding or action under  this  act
or the domestic relations law;
  (e)  to  refrain  from  acts  of commission or omission that create an
unreasonable risk to the health, safety or welfare of a child;
  (f) to pay the reasonable counsel fees and disbursements  involved  in
obtaining  or enforcing the order of the person who is protected by such
order if such order is issued or enforced;
  (g) to require the respondent to participate in a batterer's education
program designed to help end violent behavior, which may include  refer-
ral to drug and alcohol counselling, and to pay the costs thereof if the
person  has  the means to do so, provided however that nothing contained
herein shall be deemed to require payment  of  the  costs  of  any  such
program by the petitioner, the state or any political subdivision there-
of;
  (h)  to  provide,  either  directly  or by means of medical and health
insurance, for expenses incurred for medical care and treatment  arising
from the incident or incidents forming the basis for the issuance of the
order;
  (i)  1.  to  refrain  from  intentionally injuring or killing, without
justification, any companion animal the respondent knows  to  be  owned,
possessed,  leased,  kept  or  held  by  the petitioner or a minor child
residing in the household.
  2. "Companion animal", as used in this section, shall  have  the  same
meaning  as  in  subdivision  five of section three hundred fifty of the
agriculture and markets law;
  (j) 1. to promptly return specified identification  documents  to  the
protected  party,  in  whose  favor the order of protection or temporary
order of protection is issued; provided, however, that such  order  may:
(A)  include  any appropriate provision designed to ensure that any such
document is available for use as evidence in this proceeding, and avail-
able if necessary for legitimate use by  the  party  against  whom  such

S. 5516--A                          3

order  is  issued; and (B) specify the manner in which such return shall
be accomplished.
  2.  For  purposes of this subdivision, "identification document" shall
mean any of the following: (A) exclusively in the name of the  protected
party:  birth certificate, passport, social security card, health insur-
ance or other benefits card, a card or document  used  to  access  bank,
credit or other financial accounts or records, tax returns, any driver's
license, and immigration documents including but not limited to a United
States  permanent  resident  card and employment authorization document;
and (B) upon motion and after notice and an opportunity to be heard, any
of the following, including those that may reflect joint use  or  owner-
ship,  that  the  court  determines  are necessary and are appropriately
transferred to the protected party: any card or document used to  access
bank,  credit  or  other financial accounts or records, tax returns, and
any other identifying cards and documents; and
  (k) to observe such other conditions as are necessary to  further  the
purposes of protection.
  The  court may also award custody of the child, during the term of the
order of protection to either parent,  or  to  an  appropriate  relative
within  the second degree. Nothing in this section gives the court power
to place or board out any child or to commit a child to  an  institution
or agency.
  THE  COURT  SHALL ORDER COUNSELING FOR CHILDREN WHEN ONE MEMBER OF THE
FAMILY OR HOUSEHOLD HAS BEEN CHARGED WITH OR FOUND TO HAVE  COMMITTED  A
FAMILY  OFFENSE AGAINST ANOTHER MEMBER OF THE FAMILY OR HOUSEHOLD, WHERE
THERE IS A DEMONSTRATED NEED FOR PSYCHOLOGICAL INTERVENTION, EVEN IF THE
CHILDREN WERE NOT THE DIRECT VICTIMS.
  Notwithstanding the provisions of section eight hundred  seventeen  of
this  article,  where a temporary order of child support has not already
been issued, the court may in addition to the issuance of  an  order  of
protection  pursuant to this section, issue an order for temporary child
support in an amount sufficient to meet the needs of the child,  without
a  showing of immediate or emergency need. The court shall make an order
for  temporary  child  support  notwithstanding  that  information  with
respect to income and assets of the respondent may be unavailable. Where
such information is available, the court may make an award for temporary
child  support  pursuant  to the formula set forth in subdivision one of
section four hundred thirteen of this act. Temporary orders  of  support
issued  pursuant  to  this  article  shall be deemed to have been issued
pursuant to section four hundred thirteen of this act.
  Upon making an order for temporary  child  support  pursuant  to  this
subdivision,  the  court shall advise the petitioner of the availability
of child support enforcement services by the support collection unit  of
the  local department of social services, to enforce the temporary order
and to assist in securing continued child support,  and  shall  set  the
support  matter  down for further proceedings in accordance with article
four of this act.
  Where the court determines that the respondent  has  employer-provided
medical  insurance, the court may further direct, as part of an order of
temporary  support  under  this  subdivision,  that  a  medical  support
execution  be  issued  and  served  upon  the  respondent's  employer as
provided for in section fifty-two hundred forty-one of the  civil  prac-
tice law and rules.
  In  any  proceeding in which an order of protection or temporary order
of protection or a warrant has been issued under this section, the clerk
of the court shall issue to the petitioner and respondent and his  coun-

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sel and to any other person affected by the order a copy of the order of
protection  or  temporary  order of protection and ensure that a copy of
the order of protection or temporary order of protection be  transmitted
to  the  local  correctional facility where the individual is or will be
detained, the state or local correctional facility where the  individual
is  or  will  be imprisoned, and the supervising probation department or
the department of corrections and community supervision where the  indi-
vidual is under probation or parole supervision.
  Notwithstanding  the  foregoing provisions, an order of protection, or
temporary order of protection where applicable, may be entered against a
former spouse and persons who have a  child  in  common,  regardless  of
whether  such  persons  have  been married or have lived together at any
time, or against a member of the same family or household as defined  in
subdivision one of section eight hundred twelve of this article.
  In addition to the foregoing provisions, the court may issue an order,
pursuant to section two hundred twenty-seven-c of the real property law,
authorizing the party for whose benefit any order of protection has been
issued  to terminate a lease or rental agreement pursuant to section two
hundred twenty-seven-c of the real property law.
  The protected party in whose favor the order of protection  or  tempo-
rary  order  of protection is issued may not be held to violate an order
issued in his or her favor nor may such protected party be arrested  for
violating such order.
  S 2. This act shall take effect immediately.