senate Bill S4785

2013-2014 Legislative Session

Provides that communications or contact between protected parties with a party against whom an order of protection is issued shall not affect the validity of such order

download bill text pdf

Sponsored By

Archive: Last Bill Status - In Committee


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

do you support this bill?

Actions

view actions (2)
Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 08, 2014 referred to children and families
Apr 24, 2013 referred to children and families

Co-Sponsors

S4785 - Bill Details

Current Committee:
Law Section:
Domestic Relations Law
Laws Affected:
Amd §§240 & 252, Dom Rel L; amd §§155, 168, 446, 551, 656, 759, 842, 846 & 1056, Fam Ct Act; amd §§140.10 & 530.12, CP L

S4785 - Bill Texts

view summary

Provides that communications or contact between protected parties with a party against whom an order of protection or temporary order of protection is issued shall not affect the validity of such order; requires notice thereof to be included in such orders; prohibits protected parties from being held to have violated an order of protection or a temporary order of protection.

view sponsor memo
BILL NUMBER:S4785

TITLE OF BILL: An act to amend the domestic relations law, the family
court act and the criminal procedure law, in relation to the scope of
orders of protection and temporary orders of protection

PURPOSE: This legislation will protect victims of domestic violence
from being charged with and prosecuted for violating their own order
of protection. It makes it clear that victims cannot be prosecuted for
violating orders of protection issued in their favor.

SUMMARY OF PROVISIONS: The bill amends sections of the Domes- tic
Relations Law, Family Court Act and the Criminal Procedure Law to
clarify that the protected party in whose favor the order of
protection or temporary order of protection is issued may not be held
to violate an order issued in his or her favor and that such protected
party may not be arrested for violating such an order.

The bill also amends sections of the Domestic Relations Law, Family
Court Act and the Criminal Procedure Law to include a notice in orders
of protection that makes it clear that the order of protection will
remain in effect even if the protected party has, or consents to have,
contact or communication with the restrained party and that the
protected party cannot be held to violate an order issued in his/her
favor nor can such party be arrested for violating such an order.

JUSTIFICATION: Presently in New York State, an Order of Protection
issued in response to domestic violence may require an abuser to abide
by various conditions aimed to protect the safety of the victim of
abuse. These conditions may include directing the abusive (restrained)
party to vacate the victim's (protected party's) home, stay away from
the victim and/or refrain from contacting the victim in any way
subject to the terms of court orders of visitation and custody. If
abusers violate this order, they are on notice that they will be
arrested and will face criminal penalties.

Victims of family offenses granted orders of protection in their favor
are being charged criminally For violating their own orders of
protection. If victims have or consent to have contact with their
abusers in any way, or if the abusers are back in the home despite the
direction to stay away from their victim, under this practice of
prosecuting the victim, victims are being arrested and prosecuted for
violating the terms of their own order of protection, contacting their
abuser or aiding and abetting the abuser to violate their own
protective order. In addition, some family court judges and referees
are discouraging victims from obtaining protections that they are
entitled to under the law by warning victims that they can be
prosecuted for violating orders of protection issued in their favor.

Aside from the due process concerns that such a practice of
prosecuting the victim raises, charging victims of domestic abuse with
violating their own protective orders is contrary to the intent and
purpose of orders of protection and domestic violence legislation.
Orders of protection in domestic abuse cases are intended to protect
victims from their abusers, not to prosecute the victim.


Orders of protection are critical to enhancing safety for victims of
domestic abuse. A practice of prosecuting or otherwise penalizing the
victim decreases victim safety by shilling responsibility for violence
away from abusers, emboldening abusers, deterring victims from calling
the police when abusers violate an order of protection and
discouraging victims from seeking legal protection from the courts.

This measure will protect victims of domestic abuse my making it clear
that the protected party cannot be held to violate orders of
protection issued in their favor.

LEGISLATIVE HISTORY: New bill.

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: Immediately and shall apply to all orders of
protection regardless of when such orders are issued, except for
sections of the bill that require addition of a notice on the order of
protection, which sections shall be effective on the sixtieth day
after the act becomes law and shall apply to orders issued on or after
such effective date.

view full text
download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4785

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                             April 24, 2013
                               ___________

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

AN ACT to amend the domestic relations law, the family court act and the
  criminal procedure  law,  in  relation  to  the  scope  of  orders  of
  protection and temporary orders of protection

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

  Section 1. Paragraph b of subdivision 3 of section 240 of the domestic
relations law, as amended by chapter 597 of the laws of 1998, is amended
and a new paragraph i is added to read as follows:
  b. An order of protection entered pursuant to this  subdivision  shall
bear  in  a  conspicuous  manner,  on  the front page of said order, the
language "Order of protection issued pursuant  to  section  two  hundred
forty of the domestic relations law". The absence of such language shall
not  affect  the  validity  of such order. THE ORDER OF PROTECTION SHALL
ALSO CONTAIN THE FOLLOWING NOTICE: "THIS ORDER OF PROTECTION WILL REMAIN
IN EFFECT EVEN IF THE PROTECTED  PARTY  IN  WHOSE  FAVOR  THE  ORDER  OF
PROTECTION  OR  TEMPORARY ORDER OF PROTECTION IS ISSUED HAS, OR CONSENTS
TO HAVE, CONTACT OR COMMUNICATION WITH THE PARTY AGAINST WHOM THE  ORDER
IS  ISSUED. AN ORDER OF PROTECTION CAN ONLY BE MODIFIED OR TERMINATED BY
THE COURT. THE PROTECTED PARTY CANNOT BE HELD TO VIOLATE THIS ORDER  NOR
SHALL  SUCH  PARTY BE ARRESTED FOR VIOLATING THIS ORDER.". The presenta-
tion of a copy of such an order to any peace officer acting pursuant  to
his  or her special duties, or police officer, shall constitute authori-
ty, for that officer to arrest a person when that  person  has  violated
the  terms of such an order, and bring such person before the court and,
otherwise, so far as lies within the officer's power, to aid in securing
the protection such order was intended to afford.
  I. THE PROTECTED PARTY IN WHOSE  FAVOR  THE  ORDER  OF  PROTECTION  OR
TEMPORARY  ORDER OF PROTECTION IS ISSUED MAY NOT BE HELD TO VIOLATE SUCH

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10169-04-3

S. 4785                             2

AN ORDER NOR MAY SUCH PROTECTED PARTY BE  ARRESTED  FOR  VIOLATING  SUCH
ORDER.
  S  2.  Subdivision  2 of section 252 of the domestic relations law, as
added by chapter 349 of the laws of 1995, is amended and a new  subdivi-
sion 9-a is added to read as follows:
  2.  An  order of protection entered pursuant to this subdivision shall
bear in a conspicuous manner, on the  front  page  of  said  order,  the
language  "Order  of  protection  issued pursuant to section two hundred
fifty-two of the domestic relations law". The absence of  such  language
shall  not  affect  the validity of such order.  THE ORDER OF PROTECTION
SHALL ALSO CONTAIN THE FOLLOWING NOTICE: "THIS ORDER OF PROTECTION  WILL
REMAIN IN EFFECT EVEN IF THE PROTECTED PARTY IN WHOSE FAVOR THE ORDER OF
PROTECTION  OR  TEMPORARY ORDER OF PROTECTION IS ISSUED HAS, OR CONSENTS
TO HAVE, CONTACT OR COMMUNICATION WITH THE PARTY AGAINST WHOM THE  ORDER
IS  ISSUED. AN ORDER OF PROTECTION CAN ONLY BE MODIFIED OR TERMINATED BY
THE COURT. THE PROTECTED PARTY CANNOT BE HELD TO VIOLATE THIS ORDER  NOR
SHALL  SUCH  PARTY BE ARRESTED FOR VIOLATING THIS ORDER.". The presenta-
tion of a copy of such an order to any peace officer acting pursuant  to
his  or her special duties, or police officer, shall constitute authori-
ty, for that officer to arrest a person when that  person  has  violated
the  terms of such an order, and bring such person before the court and,
otherwise, so far as lies within the officer's power, to aid in securing
the protection such order was intended to afford.
  9-A.  THE PROTECTED PARTY IN WHOSE FAVOR THE ORDER  OF  PROTECTION  OR
TEMPORARY  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  3.  Section  155 of the family court act is amended by adding a new
subdivision 3 to read as follows:
  3. THE PROTECTED PARTY IN WHOSE  FAVOR  THE  ORDER  OF  PROTECTION  OR
TEMPORARY  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 4. Subdivision 3 of section 168 of the family court act, as added by
chapter 164 of the laws of 1989, is amended to read as follows:
  3.  Any order of protection or temporary order of protection issued by
the family court shall bear, in a conspicuous manner, the  language,  as
the  case  may  be,  "this  order constitutes an order of protection" or
"this order constitutes a temporary order of protection", on  the  front
page  of  said order.  The absence of such language shall not affect the
validity of such order. THE ORDER OF PROTECTION OR  TEMPORARY  ORDER  OF
PROTECTION  SHALL  ALSO  CONTAIN  THE  FOLLOWING  NOTICE: "THIS ORDER OF
PROTECTION WILL REMAIN IN EFFECT EVEN IF THE PROTECTED  PARTY  IN  WHOSE
FAVOR THE ORDER OF PROTECTION OR TEMPORARY ORDER OF PROTECTION IS ISSUED
HAS,  OR  CONSENTS  TO  HAVE,  CONTACT  OR  COMMUNICATION WITH THE PARTY
AGAINST WHOM THE ORDER IS ISSUED. AN ORDER OF  PROTECTION  CAN  ONLY  BE
MODIFIED  OR TERMINATED BY THE COURT. THE PROTECTED PARTY CANNOT BE HELD
TO VIOLATE THIS ORDER NOR SHALL SUCH PARTY  BE  ARRESTED  FOR  VIOLATING
THIS ORDER.".
  S  5.  Section  446 of the family court act is amended by adding a new
closing paragraph to read as follows:
  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. 4785                             3

  S  6.  Section  551 of the family court act is amended by adding a new
closing paragraph to read as follows:
  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 7. Section 656 of the family court act is amended by  adding  a  new
closing paragraph to read as follows:
  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 8. Section 759 of the family court act is amended by  adding  a  new
closing paragraph to read as follows:
  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 9. Section 842 of the family court act is amended by  adding  a  new
closing paragraph to read as follows:
  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 10. Section 846 of the family court act is amended by adding  a  new
subdivision (a-1) to read as follows:
  (A-1)  THE  PROTECTED  PARTY IN WHOSE FAVOR THE ORDER OF PROTECTION OR
TEMPORARY 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 11. Section 1056 of the family court act is amended by adding a  new
subdivision 7 to read as follows:
  7.  THE  PROTECTED  PARTY  IN  WHOSE  FAVOR THE ORDER OF PROTECTION OR
TEMPORARY 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 12. Subdivision 4 of section 140.10 of the criminal procedure law is
amended by adding  a  new  second  undesignated  paragraph  to  read  as
follows:
  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 13. Subdivisions 6 and 8 of section 530.12 of the criminal procedure
law, subdivision 6 as amended by chapter 164 of the laws  of  1989,  the
closing  paragraph  of subdivision 6 as added by chapter 222 of the laws
of 1994 and subdivision 8 as amended by section 81 of subpart B of  part
C of chapter 62 of the laws of 2011, are amended to read as follows:
  6.  An  order  of protection or a temporary order of protection issued
pursuant to subdivision one, two, three, four or five  of  this  section
shall  bear  in  a  conspicuous manner the term "order of protection" or
"temporary order of protection" as the case may be and a copy  shall  be
filed  by the clerk of the court with the sheriff's office in the county
in which the complainant resides, or, if the complainant resides  within
a  city,  with  the  police department of such city. The absence of such
language shall not affect the validity of such  order.    THE  ORDER  OF

S. 4785                             4

PROTECTION  OR  TEMPORARY  ORDER  OF  PROTECTION  SHALL ALSO CONTAIN THE
FOLLOWING NOTICE: "THIS ORDER OF PROTECTION WILL REMAIN IN  EFFECT  EVEN
IF  THE PROTECTED PARTY IN WHOSE FAVOR THE ORDER OF PROTECTION OR TEMPO-
RARY  ORDER OF PROTECTION IS ISSUED HAS, OR CONSENTS TO HAVE, CONTACT OR
COMMUNICATION WITH THE PARTY AGAINST WHOM THE ORDER IS ISSUED. AN  ORDER
OF  PROTECTION  CAN  ONLY  BE  MODIFIED  OR TERMINATED BY THE COURT. THE
PROTECTED PARTY CANNOT BE HELD TO VIOLATE  THIS  ORDER  NOR  SHALL  SUCH
PARTY  BE  ARRESTED  FOR VIOLATING THIS ORDER.". A copy of such order of
protection or temporary order of protection may from  time  to  time  be
filed  by  the  clerk  of  the court with any other police department or
sheriff's office having jurisdiction of the residence, work  place,  and
school  of  anyone intended to be protected by such order. A copy of the
order may also be filed by the complainant  at  the  appropriate  police
department  or  sheriff's  office  having  jurisdiction.  Any subsequent
amendment or revocation of such order shall be filed in the same  manner
as herein provided.
  Such  order of protection shall plainly state the date that such order
expires.
  8. 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 complainant and defendant and
defense counsel 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 department of corrections and community supervision where
the individual is under probation or parole supervision.  The  presenta-
tion  of  a  copy of such order or a warrant to any peace officer acting
pursuant to his or her special duties or police officer shall constitute
authority for him or her to arrest a person who has violated  the  terms
of  such order and bring such person before the court and, otherwise, so
far as lies within his or her power, to aid in securing  the  protection
such  order  was intended to afford.  THE PROTECTED PARTY IN WHOSE FAVOR
THE ORDER OF PROTECTION OR TEMPORARY 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 14. This act shall take effect immediately and shall  apply  to  all
orders  of protection regardless of when such orders were issued, except
that:
  (a) the amendments to paragraph b of subdivision 3 of section  240  of
the  domestic  relations law made by section one of this act, the amend-
ments to subdivision 2 of section 252 of the domestic relations law made
by section two of this act, the amendments to subdivision 3  of  section
168  of  the  family court act made by section four of this act, and the
amendments to subdivision 6 of section 530.12 of the criminal  procedure
law made by section thirteen of this act shall take effect on the sixti-
eth  day  after  this  act  shall  have become a law, and shall apply to
orders of protection issued on or after such effective date; and
  (b) the amendments to subdivision 4 of section 140.10 of the  criminal
procedure  law, made by section twelve of this act, shall not affect the
repeal of such subdivision, and shall be deemed repealed therewith.

Comments

Open Legislation comments facilitate discussion of New York State legislation. All comments are subject to moderation. Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity or hate speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Comment moderation is generally performed Monday through Friday.

By contributing or voting you agree to the Terms of Participation and verify you are over 13.