S T A T E O F N E W Y O R K
________________________________________________________________________
4335
2015-2016 Regular Sessions
I N A S S E M B L Y
January 30, 2015
___________
Introduced by M. of A. KOLB, MALLIOTAKIS, RAIA, STEC, GIGLIO, LUPINACCI,
McDONOUGH, HAWLEY, BROOK-KRASNY, MONTESANO, CROUCH, OAKS, FINCH,
PALMESANO, TEDISCO, WALTER, RA, CERETTO, CURRAN, PALUMBO -- Multi-
Sponsored by -- M. of A. BARCLAY, JOHNS, LOPEZ, MAGEE, McLAUGHLIN --
read once and referred to the Committee on Judiciary
AN ACT to amend the family court act and the judiciary law, in relation
to establishing a pilot program for the filing of petitions for tempo-
rary orders of protection by electronic means and for issuance of such
orders ex parte by audio-visual means; and to amend the executive law,
in relation to review and reports by the chief administrator of the
courts
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 153-c of the family court act, as added by chapter
416 of the laws of 1981, is amended to read as follows:
S 153-c. Temporary order of protection. (A) Any person appearing at
family court when the court is open requesting a temporary order of
protection under any article of this act shall be entitled to file a
petition without delay on the same day such person first appears at the
family court, and a hearing on that request shall be held on the same
day or the next day that the family court is open following the filing
of such petition.
(B) AS PROVIDED IN THIS SECTION, THE CHIEF ADMINISTRATOR OF THE
COURTS, WITH THE APPROVAL OF THE ADMINISTRATIVE BOARD OF THE COURTS, MAY
PROMULGATE RULES TO ESTABLISH AND IMPLEMENT A PILOT PROGRAM FOR THE
FILING OF PETITIONS FOR TEMPORARY ORDERS OF PROTECTION BY ELECTRONIC
MEANS AND FOR THE ISSUANCE OF SUCH ORDERS EX PARTE BY AUDIO-VISUAL MEANS
IN ORDER TO ACCOMMODATE LITIGANTS FOR WHOM ATTENDANCE AT COURT TO FILE
FOR, AND OBTAIN, EMERGENCY RELIEF WOULD CONSTITUTE AN UNDUE HARDSHIP OR
TO ACCOMMODATE LITIGANTS, FOR WHOM TRAVELING TO AND APPEARING IN THE
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02539-01-5
A. 4335 2
COURTHOUSE TO OBTAIN EMERGENCY RELIEF, CREATES A RISK OF HARM TO SUCH
LITIGANT.
(1) DEFINITIONS. AS USED IN THIS SECTION:
(I) "ELECTRONIC MEANS" MEANS ANY METHOD OF TRANSMISSION OF INFORMATION
BETWEEN COMPUTERS OR OTHER MACHINES DESIGNED FOR THE PURPOSE OF SENDING
AND RECEIVING SUCH TRANSMISSIONS, AND WHICH ALLOWS THE RECIPIENT TO
REPRODUCE THE INFORMATION TRANSMITTED IN A TANGIBLE MEDIUM OF
EXPRESSION.
(II) "INDEPENDENT AUDIO-VISUAL SYSTEM" MEANS AN ELECTRONIC SYSTEM FOR
THE TRANSMISSION AND RECEIVING OF AUDIO AND VISUAL SIGNALS, ENCOMPASSING
ENCODED SIGNALS, FREQUENCY DOMAIN MULTIPLEXING OR OTHER SUITABLE MEANS
TO PRECLUDE THE UNAUTHORIZED RECEPTION AND DECODING OF THE SIGNALS BY
COMMERCIALLY AVAILABLE TELEVISION RECEIVERS, CHANNEL CONVERTERS, OR
OTHER AVAILABLE RECEIVING DEVICES.
(III) "ELECTRONIC APPEARANCE" MEANS AN APPEARANCE IN WHICH ONE OR MORE
OF THE PARTIES ARE NOT PRESENT IN THE COURT, BUT IN WHICH, BY MEANS OF
AN INDEPENDENT AUDIO-VISUAL SYSTEM, ALL OF THE PARTICIPANTS ARE SIMUL-
TANEOUSLY ABLE TO SEE AND HEAR REPRODUCTIONS OF THE VOICES AND IMAGES OF
THE JUDGE, COUNSEL, PARTIES, WITNESSES, IF ANY AND OTHER PARTICIPANTS.
(2) DEVELOPMENT OF A PILOT PROGRAM. A PLAN FOR A PILOT PROGRAM PURSU-
ANT TO THIS SECTION SHALL BE DEVELOPED BY THE CHIEF ADMINISTRATOR OF THE
COURTS OR HIS OR HER DELEGATE IN CONSULTATION WITH ONE OR MORE LOCAL
PROGRAMS PROVIDING ASSISTANCE TO VICTIMS OF DOMESTIC VIOLENCE, THE
OFFICE FOR THE PREVENTION OF DOMESTIC VIOLENCE, AND ATTORNEYS WHO REPRE-
SENT FAMILY OFFENSE PETITIONS. THE PLAN SHALL INCLUDE, BUT IS NOT
LIMITED TO:
(I) IDENTIFICATION OF ONE OR MORE FAMILY JUSTICE CENTERS OR ORGANIZA-
TIONS OR AGENCIES OR OTHER SITES OUTSIDE OF THE LOCAL FAMILY COURT THAT
ARE EQUIPPED WITH, OR HAVE ACCESS TO, AN INDEPENDENT AUDIO-VISUAL SYSTEM
AND ELECTRONIC MEANS FOR FILING DOCUMENTS THAT ARE COMPATIBLE WITH THE
EQUIPMENT IN THE LOCAL FAMILY COURT, WITH CONSIDERATION GIVEN TO THE
LOCATION OF SUCH SITE OR SITES AND AVAILABLE RESOURCES; AND
(II) IDENTIFICATION OF ONE OR MORE LICENSED AND CERTIFIED ORGANIZA-
TIONS, AGENCIES OR ENTITIES WITH ADVOCATES FOR VICTIMS OF DOMESTIC
VIOLENCE WHO ARE TRAINED, AND AVAILABLE TO ASSIST PETITIONERS IN PREPAR-
ING AND FILING PETITIONS FOR TEMPORARY ORDERS OF PROTECTION AND IN THEIR
ELECTRONIC APPEARANCES BEFORE THE FAMILY COURT TO OBTAIN SUCH ORDERS;
AND
(III) IDENTIFICATION OF THE EXISTING RESOURCES AVAILABLE IN LOCAL
FAMILY COURTS FOR THE IMPLEMENTATION AND OVERSIGHT OF THE PILOT PROGRAM;
AND
(IV) DELINEATION OF PROCEDURES FOR FILING OF THE PETITIONS AND DOCU-
MENTS, IF ANY, BY ELECTRONIC MEANS, SWEARING IN THE PETITIONERS AND ANY
WITNESSES, PREPARATION OF A VERBATIM TRANSCRIPTION OF TESTIMONY
PRESENTED AND A RECORD OF EVIDENCE ADDUCED AND PROMPT TRANSMISSION OF
ANY ORDERS ISSUED TO THE PETITIONERS; AND
(V) A TIMETABLE FOR IMPLEMENTATION OF THE PILOT PROGRAM AND PLAN FOR
INFORMING THE PUBLIC OF ITS AVAILABILITY; AND
(VI) A DESCRIPTION OF DATA TO BE COLLECTED IN ORDER TO EVALUATE AND,
IF NECESSARY, MAKE RECOMMENDATIONS FOR IMPROVEMENTS TO THE PILOT
PROGRAM.
(3) FILING BY ELECTRONIC MEANS. IN CONJUNCTION WITH AN ELECTRONIC
APPEARANCE UNDER THIS SECTION, PETITIONERS FOR EX PARTE TEMPORARY ORDERS
OF PROTECTION MAY, WITH THE ASSISTANCE OF TRAINED ADVOCATES, COMMENCE
THE PROCEEDINGS BY FILING PETITIONS BY ELECTRONIC MEANS.
A. 4335 3
(I) A PETITIONER WHO SEEKS A TEMPORARY ORDER OF PROTECTION EX PARTE BY
USE OF AN ELECTRONIC APPEARANCE MUST FILE A PETITION IN ADVANCE OF SUCH
APPEARANCE AND MAY DO SO BY ELECTRONIC MEANS. THE PETITIONER SHALL SET
FORTH THE CIRCUMSTANCES IN WHICH TRAVELING TO OR APPEARING IN THE COURT-
HOUSE WOULD CONSTITUTE AN UNDUE HARDSHIP, OR CREATE A RISK OF HARM TO
THE PETITIONER. IN GRANTING OR DENYING THE RELIEF SOUGHT BY THE PETI-
TIONER, THE COURT SHALL STATE THE NAMES OF ALL PARTICIPANTS, AND WHETHER
IT IS GRANTING OR DENYING AN APPEARANCE BY ELECTRONIC MEANS AND THE
BASIS FOR SUCH DETERMINATION; PROVIDED, HOWEVER, THAT NOTHING IN THIS
SECTION SHALL BE CONSTRUED TO COMPEL A PARTY TO FILE A PETITION OR OTHER
DOCUMENT BY ELECTRONIC MEANS OR TO TESTIFY BY MEANS OF AN ELECTRONIC
APPEARANCE.
(II) NOTHING IN THIS SECTION SHALL AFFECT OR CHANGE ANY EXISTING LAWS
GOVERNING THE SERVICE OF PROCESS, INCLUDING REQUIREMENTS FOR PERSONAL
SERVICE, OR THE SEALING AND CONFIDENTIALITY OF COURT RECORDS IN FAMILY
COURT PROCEEDINGS, OR ACCESS TO COURT RECORDS BY THE PARTIES TO SUCH
PROCEEDINGS.
(4) (I) ALL ELECTRONIC APPEARANCES BY PETITIONERS SEEKING TEMPORARY
ORDERS OF PROTECTION EX PARTE UNDER THIS SECTION SHALL BE STRICTLY
VOLUNTARY AND THE CONSENT OF SUCH PETITIONERS SHALL BE GIVEN ON THE
RECORD AT THE COMMENCEMENT OF EACH APPEARANCE.
(II) APPEARANCES TAKEN THROUGH THE USE OF AN ELECTRONIC APPEARANCE
UNDER THIS SECTION SHALL BE RECORDED AND PRESERVED FOR TRANSCRIPTION.
DOCUMENTARY EVIDENCE, IF ANY, REFERRED TO BY A PARTY OR WITNESS OR THE
COURT MAY BE TRANSMITTED AND SUBMITTED AND INTRODUCED BY ELECTRONIC
MEANS.
S 2. Subdivision 2 of section 212 of the judiciary law is amended by
adding a new paragraph (t) to read as follows:
(T) HAVE THE POWER TO ESTABLISH PILOT PROGRAMS FOR THE FILING OF
PETITIONS FOR TEMPORARY ORDERS OF PROTECTION BY ELECTRONIC MEANS AND FOR
THE ISSUANCE OF SUCH ORDERS BY AUDIO-VISUAL MEANS PURSUANT TO SUBDIVI-
SION (B) OF SECTION ONE HUNDRED FIFTY-THREE-C OF THE FAMILY COURT ACT.
THE CHIEF ADMINISTRATOR SHALL MAINTAIN AN UP-TO-DATE AND PUBLICLY-AVAIL-
ABLE LISTING OF THE SITES, IF ANY, AT WHICH SUCH APPLICATIONS FOR EX
PARTE TEMPORARY ORDERS OF PROTECTION MAY BE FILED, AND AT WHICH ELEC-
TRONIC APPEARANCES IN SUPPORT OF SUCH APPLICATIONS MAY BE SOUGHT, IN
ACCORDANCE WITH SUCH SECTION ONE HUNDRED FIFTY-THREE-C OF THE FAMILY
COURT ACT. IN DEVELOPING SUCH PILOT PROGRAM, THE CHIEF ADMINISTRATOR
SHALL STRIVE FOR A PROGRAM THAT IS REGIONALLY DIVERSE, AND TAKES INTO
CONSIDERATION, AMONG OTHER THINGS, THE AVAILABILITY OF PUBLIC TRANSPOR-
TATION, POPULATION DENSITY AND THE AVAILABILITY OF FACILITIES FOR
CONDUCTING SUCH PROGRAM.
S 3. Section 648 of the executive law, as added by chapter 893 of the
laws of 1986, is amended to read as follows:
S 648. Review; report and implementation. 1. The chief administrator
of the unified court system shall review court practices, procedures,
services, regulations and laws to determine the adequacy and appropri-
ateness of its services with respect to crime victims, including victims
with special needs, particularly the elderly, disabled or victims of
child abuse, domestic violence, SEX TRAFFICKING or sex-related offenses.
Such review shall include reasonable opportunity for public comment and
consultation with crime victims or their representatives, and may
include public hearings.
2. After the review, and not later than two hundred seventy days after
the effective date of this section, AND NO LATER THAN TWO HUNDRED SEVEN-
TY DAYS AFTER THE EFFECTIVE DATE OF THE CHAPTER OF THE LAWS OF TWO THOU-
A. 4335 4
SAND FIFTEEN WHICH AMENDED THIS SECTION, AND EVERY FIVE YEARS THEREAFT-
ER, the chief administrator of the unified court system shall submit a
report to the governor and the legislature, setting forth the findings
of the review, including a description of the services provided by the
components of the unified court system and recommendations for changes
in its procedures, services, regulations and laws to improve its
services to crime victims and to establish and implement fair treatment
standards for crime victims.
3. Subject to the direction of the chief administrator, the components
of the unified court system shall expeditiously implement the recommen-
dations of its report.
S 4. Severability clause. If any clause, sentence, paragraph, subdivi-
sion, section or part of this act shall be adjudged by a court of compe-
tent jurisdiction to be invalid, such judgment shall not affect, impair
or invalidate the remainder thereof, but shall be confined in its opera-
tion to the clause, sentence, paragraph, subdivision, section or part
thereof directly involved in the controversy in which such judgment
shall have been rendered. It is hereby declared to be the intent of the
legislature that this act would have been enacted even if such invalid
provisions had not been included herein.
S 5. This act shall take effect March 1, 2016.