senate Bill S3140

2013-2014 Legislative Session

Relates to preventing the unnecessary removal of children from a custodial parent who is the victim of domestic violence

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 08, 2014 referred to children and families
Jan 30, 2013 referred to children and families

S3140 - Bill Details

See Assembly Version of this Bill:
A2657
Current Committee:
Law Section:
Family Court Act
Laws Affected:
Amd §§1022, 1024, 1028 & 1012, Fam Ct Act; amd §371, Soc Serv L
Versions Introduced in Previous Legislative Sessions:
2011-2012: S3314, A503
2009-2010: A1440

S3140 - Bill Texts

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Amends provisions of child protective proceedings to prevent the unnecessary removal of children from a custodial parent who is the victim of domestic violence.

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BILL NUMBER:S3140

TITLE OF BILL: An act to amend the family court act and the social
services law, in relation to preventing the unnecessary removal of
children from a custodial parent who is the victim of domestic
violence without further evidence of neglect by such parent

PURPOSE OR GENERAL IDEA OF BILL: To amend the Family Court Act to
prevent the unnecessary removal and placement of children into foster
care when the custodial parent or the legal guardian is a victim of
domestic violence, and there is no evidence of neglect by the battered
custodian.

SUMMARY OF SPECIFIC PROVISIONS:

Sections 1-3 amend the Family Court Act by adding an identical
paragraph to section 1022, section 1024 and section 1028. The
amendment establishes a rebuttable presumption that a parent or person
legally responsible for a child is a fit parent or custodian able to
safely raise his/her child. The amendment clarifies that an allegation
made to the court, or a finding made by the court, that the child's
custodial parent or the person legally responsible for the child is a
victim of domestic violence shall be insufficient evidence for the
court to determine that the child is at imminent risk of harm, and
should therefore be removed from his or her battered parent or
custodian.

Sections 4 and 5 amend section 371 of the social services law and
section 1012 of the family court act respectively, The amendment
expands the definition of a neglected child to exclude a child of a
custodial parent or a person legally responsible for the child who is
the victim of domestic violence unless it is established by the court
that, among other things, the child both experienced and was harmed by
the domestic violence.

JUSTIFICATION: To prevent further trauma to a child whose custodial
parent is a victim of domestic violence, this bill establishes a
presumption of fitness on the part of the battered custodial parent to
prevent the unnecessary removal of the child from the battered parent.

In a federal district court case, NICHOLSON V. WILLIAMS, 2002 U.S.
Dist, LEXUS 4820 (E.D.N.Y. Mar.11, 2002), Judge Weinstein concluded
that the policies and practices of the Administration for Children's
Services ("ACS") substantially infringed upon the constitutional
rights of battered women and their children, ACS practice denies these
mothers due process, it violates their fundamental liberty interest in
family integrity, and it infringes on a mother's liberty interest in
raising her children.

Many child psychologists agree that the removal of children from their
abused mothers actually harms children, who according to the NICHOLSON
decision, "are particularly sensitive to being separated from the
non-abusive parent." Often these children blame themselves for their
placement into foster care. By establishing a presumption in favor of
the battered parent, this legislation seeks to prevent routine and
unnecessary removals of children from their custodial parent. As Judge


Weinstein stated in NICHOLSON, "It desecrates fundamental precepts of
justice to blame a crime on a victim."

FISCAL IMPLICATIONS: There should be a cost savings to local social
services districts since this bill would reduce the number of
unnecessary placements of children in foster care, and instead
increase the provision of less costly, more cost-effective preventive
services for victims of domestic violence.

EFFECTIVE DATE: This bill would become effective immediately.

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

                                  3140

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            January 30, 2013
                               ___________

Introduced  by  Sen. KRUEGER -- read twice and ordered printed, and when
  printed to be committed to the Committee on Children and Families

AN ACT to amend the family court act and the  social  services  law,  in
  relation  to  preventing  the  unnecessary  removal of children from a
  custodial parent who  is  the  victim  of  domestic  violence  without
  further evidence of neglect by such parent

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

  Section 1. Section 1022 of the family court act is amended by adding a
new subdivision (g) to read as follows:
  (G) THERE SHALL BE A PRESUMPTION THAT A  CUSTODIAL  PARENT  OR  PERSON
LEGALLY  RESPONSIBLE  FOR A CHILD IS A FIT PARENT AND CAPABLE OF RAISING
SUCH CHILD OR CHILDREN IN A SAFE AND APPROPRIATE MANNER.  AN  ALLEGATION
OR  FINDING  THAT THE CUSTODIAL PARENT OR PERSON LEGALLY RESPONSIBLE FOR
THE CHILD WAS THE VICTIM OF DOMESTIC VIOLENCE SHALL BE  INSUFFICIENT  TO
ESTABLISH AN IMMINENT RISK TO THE CHILD'S LIFE OR HEALTH WITHOUT FURTHER
EVIDENCE  THAT  THE  CHILD HAS BEEN ABUSED OR NEGLECTED BY THE VICTIM OF
THE DOMESTIC VIOLENCE.
  S 2. Section 1024 of the family court act is amended by adding  a  new
subdivision (a-1) to read as follows:
  (A-1)  THERE  SHALL BE A PRESUMPTION THAT A CUSTODIAL PARENT OR PERSON
LEGALLY RESPONSIBLE FOR A CHILD IS A FIT PARENT AND CAPABLE  OF  RAISING
SUCH  CHILD OR CHILDREN IN A SAFE AND APPROPRIATE MANNER.  AN ALLEGATION
OR FINDING THAT THE CUSTODIAL PARENT OR PERSON LEGALLY  RESPONSIBLE  FOR
THE  CHILD  WAS THE VICTIM OF DOMESTIC VIOLENCE SHALL BE INSUFFICIENT TO
ESTABLISH AN IMMINENT RISK TO THE CHILD'S LIFE OR HEALTH WITHOUT FURTHER
EVIDENCE THAT THE CHILD HAS BEEN ABUSED OR NEGLECTED BY  THE  VICTIM  OF
THE DOMESTIC VIOLENCE.
  S  3.  Section 1028 of the family court act is amended by adding a new
subdivision (g) to read as follows:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00639-01-3

S. 3140                             2

  (G) THERE SHALL BE A PRESUMPTION THAT A  CUSTODIAL  PARENT  OR  PERSON
LEGALLY  RESPONSIBLE  FOR A CHILD IS A FIT PARENT AND CAPABLE OF RAISING
SUCH CHILD OR CHILDREN IN A SAFE AND APPROPRIATE MANNER.  AN  ALLEGATION
OR  FINDING  THAT THE CUSTODIAL PARENT OR PERSON LEGALLY RESPONSIBLE FOR
THE  CHILD  WAS THE VICTIM OF DOMESTIC VIOLENCE SHALL BE INSUFFICIENT TO
ESTABLISH AN IMMINENT RISK TO THE CHILD'S LIFE OR HEALTH WITHOUT FURTHER
EVIDENCE THAT THE CHILD HAS BEEN ABUSED OR NEGLECTED BY  THE  VICTIM  OF
THE DOMESTIC VIOLENCE.
  S  4.  Subparagraph (B) of paragraph (i) of subdivision 4-a of section
371 of the social services law, as amended by chapter 984 of the laws of
1981, is amended to read as follows:
  (B) in providing the child with proper supervision or guardianship, by
unreasonably inflicting or allowing to be inflicted harm, or a  substan-
tial  risk  thereof,  including  the  infliction  of  excessive corporal
punishment; or by misusing a drug or drugs;  or  by  misusing  alcoholic
beverages to the extent that he loses self-control of his actions; or by
any  other  acts  of a similarly serious nature requiring the aid of the
court; provided, however, that where the respondent is  voluntarily  and
regularly  participating  in a rehabilitative program, evidence that the
respondent has repeatedly misused a drug or drugs or alcoholic beverages
to the extent that he loses self-control of his actions shall not estab-
lish that the child is a neglected child  in  the  absence  of  evidence
establishing  that  the  child's physical, mental or emotional condition
has been impaired or is in imminent danger of becoming impaired  as  set
forth in THIS paragraph [(i) of this subdivision], AND PROVIDED FURTHER,
THAT  A  CHILD SHALL NOT BE FOUND TO BE A NEGLECTED CHILD ON THE GROUNDS
THAT THE CUSTODIAL PARENT OR PERSON LEGALLY RESPONSIBLE FOR  SUCH  CHILD
IS  A  VICTIM  OF  DOMESTIC  VIOLENCE  UNLESS: THE CHILD EXPERIENCED THE
DOMESTIC VIOLENCE; IT  IS  ESTABLISHED  BY  EXPERT  TESTIMONY  THAT  THE
SUBJECT  CHILD  WAS  HARMED BY THE DOMESTIC VIOLENCE AND THAT THE SAFETY
RISK TO THE CHILD OUTWEIGHS THE RISKS ASSOCIATED  WITH  BEING  SEPARATED
FROM  THE  CHILD'S  CUSTODIAL  PARENT;  AND THE VICTIM WAS PROVIDED WITH
PREVENTIVE SERVICES THAT ARE APPROPRIATE, ACCESSIBLE AND SAFE INCLUDING,
BUT NOT LIMITED TO, REMOVAL OF THE BATTERER, ARREST AND  PROSECUTION  OF
THE  BATTERER,  PROVISION  OF  SAFE  HOUSING  AND  ALTERNATIVE FINANCIAL
SUPPORT, AND THE VICTIM FAILED TO UTILIZE SUCH SERVICES AND IT IS DETER-
MINED THAT THE CHILD HAS BEEN HARMED OR PUT AT RISK BY SUCH FAILURE; or
  S 5. Subparagraph (B) of paragraph (i) of subdivision (f)  of  section
1012  of  the family court act, as amended by chapter 984 of the laws of
1981, is amended to read as follows:
  (B) in providing the child with proper supervision or guardianship, by
unreasonably inflicting or allowing to be inflicted harm, or a  substan-
tial  risk  thereof,  including  the  infliction  of  excessive corporal
punishment; or by misusing a drug or drugs;  or  by  misusing  alcoholic
beverages to the extent that he loses self-control of his actions; or by
any  other  acts  of a similarly serious nature requiring the aid of the
court; provided, however, that where the respondent is  voluntarily  and
regularly  participating  in a rehabilitative program, evidence that the
respondent has repeatedly misused a drug or drugs or alcoholic beverages
to the extent that he loses self-control of his actions shall not estab-
lish that the child is a neglected child  in  the  absence  of  evidence
establishing  that  the  child's physical, mental or emotional condition
has been impaired or is in imminent danger of becoming impaired  as  set
forth in THIS paragraph [(i) of this subdivision], AND PROVIDED FURTHER,
THAT  A  CHILD SHALL NOT BE FOUND TO BE A NEGLECTED CHILD ON THE GROUNDS
THAT THE CUSTODIAL PARENT OR PERSON LEGALLY RESPONSIBLE FOR  SUCH  CHILD

S. 3140                             3

IS  A  VICTIM  OF  DOMESTIC  VIOLENCE  UNLESS: THE CHILD EXPERIENCED THE
DOMESTIC VIOLENCE AND THAT THE SAFETY RISK TO THE  CHILD  OUTWEIGHS  THE
RISKS ASSOCIATED WITH BEING SEPARATED FROM THE CHILD'S CUSTODIAL PARENT;
IT  IS ESTABLISHED BY EXPERT TESTIMONY THAT THE SUBJECT CHILD WAS HARMED
BY THE DOMESTIC VIOLENCE; AND THE VICTIM WAS  PROVIDED  WITH  PREVENTIVE
SERVICES  THAT  ARE  APPROPRIATE, ACCESSIBLE AND SAFE INCLUDING, BUT NOT
LIMITED TO, REMOVAL OF THE  BATTERER,  ARREST  AND  PROSECUTION  OF  THE
BATTERER,  PROVISION  OF SAFE HOUSING AND ALTERNATIVE FINANCIAL SUPPORT,
AND THE VICTIM FAILED TO UTILIZE SUCH SERVICES AND IT IS DETERMINED THAT
THE CHILD HAS BEEN HARMED OR PUT AT RISK BY SUCH FAILURE; or
  S 6. This act shall take effect immediately.

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