Senate Bill S6736

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6736
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                            September 20, 2019
                                ___________
 
 Introduced  by Sen. CARLUCCI -- read twice and ordered printed, and when
   printed to be committed to the Committee on Rules
 
 AN ACT to amend the family court act, in relation to factoring  domestic
   violence convictions into family court decisions regarding visitation,
   custody and parental rights and establishing the batterer intervention
   program

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Paragraphs (vii) and (viii) of subdivision (a)  of  section
 1046  of the family court act, paragraph (vii) as amended by chapter 432
 of the laws of 1993, paragraph (viii) as added by chapter  1015  of  the
 laws  of  1972, are amended and a new paragraph (ix) is added to read as
 follows:
   (vii) neither the privilege attaching to  confidential  communications
 between husband and wife, as set forth in section forty-five hundred two
 of  the  civil  practice  law  and  rules, nor the physician-patient and
 related privileges, as set forth in section forty-five hundred  four  of
 the civil practice law and rules, nor the psychologist-client privilege,
 as  set  forth in section forty-five hundred seven of the civil practice
 law and rules, nor the social worker-client privilege, as set  forth  in
 section  forty-five  hundred  eight of the civil practice law and rules,
 nor the rape crisis counselor-client privilege, as set forth in  section
 forty-five  hundred  ten of the civil practice law and rules, shall be a
 ground for excluding evidence which otherwise  would  be  admissible[.];
 AND
   (viii) proof of the "impairment of emotional health" or "impairment of
 mental  or  emotional  condition"  as  a  result of the unwillingness or
 inability of the respondent to exercise a minimum degree of care  toward
 a  child  may  include  competent  opinion  or  expert testimony and may
 include proof that such impairment lessened during  a  period  when  the
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD13826-01-9
              

 S. 6736                             2
 
 child  was  in  the  care,  custody or supervision of a person or agency
 other than the respondent[.]; AND
   (IX)  PREVIOUS  CONVICTIONS  OF  DISORDERLY CONDUCT, HARASSMENT IN THE
 FIRST DEGREE, HARASSMENT IN THE SECOND DEGREE, AGGRAVATED HARASSMENT  IN
 THE  SECOND DEGREE, SEXUAL MISCONDUCT FORCIBLE TOUCHING, SEXUAL ABUSE IN
 THE THIRD DEGREE, SEXUAL ABUSE IN THE SECOND  DEGREE  AS  SET  FORTH  IN
 SUBDIVISION  ONE  OF  SECTION  130.60  OF THE PENAL LAW, STALKING IN THE
 FIRST DEGREE, STALKING IN THE  SECOND  DEGREE,  STALKING  IN  THE  THIRD
 DEGREE,  STALKING  IN  THE FOURTH DEGREE, CRIMINAL MISCHIEF, MENACING IN
 THE SECOND DEGREE, MENACING IN THE THIRD DEGREE, RECKLESS  ENDANGERMENT,
 STRANGULATION  IN  THE FIRST DEGREE, STRANGULATION IN THE SECOND DEGREE,
 CRIMINAL OBSTRUCTION OF BREATHING OR BLOOD CIRCULATION, ASSAULT  IN  THE
 SECOND  DEGREE, ASSAULT IN THE THIRD DEGREE, AN ATTEMPTED ASSAULT, COER-
 CION IN THE THIRD DEGREE AS SET FORTH IN SUBDIVISIONS ONE, TWO AND THREE
 OF SECTION 135.60 OF THE PENAL LAW BETWEEN SPOUSES OR FORMER SPOUSES, OR
 BETWEEN PARENT AND CHILD OR BETWEEN MEMBERS OF THE SAME FAMILY OR HOUSE-
 HOLD EXCEPT THAT IF THE RESPONDENT WOULD NOT BE  CRIMINALLY  RESPONSIBLE
 BY  REASON  OF  AGE PURSUANT TO SECTION 30.00 OF THE PENAL LAW, SHALL BE
 TAKEN INTO CONSIDERATION FOR ANY HEARING  DECIDING  ON  THE  VISITATION,
 CUSTODY, OR RIGHTS OF A PARENT WITH MANDATORY, BATTERER SPECIFIC REHABI-
 LITATIVE  MEASURES OF NO LESS THAN TWELVE MONTHS, SUCCESSFULLY COMPLETED
 BY THE RESPONDENT PRIOR TO A FINAL JUDGMENT; PROVIDED, HOWEVER, THAT  IN
 A  CASE  WHERE  A  PARTY  SEEKING CUSTODY AND/OR VISITATION WITH A CHILD
 UNDER THE  JURISDICTION  OF  THE  FAMILY  COURT  HAS  A  PRIOR  CRIMINAL
 CONVICTION FOR ANY ENUMERATED FAMILY OFFENSE UNDER SECTION EIGHT HUNDRED
 TWELVE  OF THIS ACT, ABSENT EXTRAORDINARY CIRCUMSTANCES, THE NON-OFFEND-
 ING PARENT SHALL BE GRANTED TEMPORARY CUSTODY DURING THE PENDENCY OF THE
 CASE; VISITATION WITH THE OFFENDING PARENT  SHALL  BE  SUPERVISED  BY  A
 PARTY DESIGNATED BY THE COURT; AND THE OFFENDING PARENT SHALL ATTEND AND
 SUCCESSFULLY  COMPLETE  A  MINIMUM TWENTY-SIX WEEK BATTERER INTERVENTION
 PROGRAM OR SESSIONS WITH A COURT APPROVED COUNSELOR.
   § 2. The family court act is amended by adding a new section 842-b  to
 read as follows:
   § 842-B. BATTERER INTERVENTION PROGRAM. 1. AS PART OF A FINAL ORDER OF
 PROTECTION PURSUANT TO SECTION EIGHT HUNDRED FORTY-TWO OF THIS PART, THE
 COURT  MAY ORDER THE DEFENDANT TO RECEIVE PROFESSIONAL DOMESTIC VIOLENCE
 COUNSELING FROM EITHER A PRIVATE SOURCE OR A  SOURCE  APPOINTED  BY  THE
 COURT,  AND  IN  SUCH  EVENT, REQUIRE THE DEFENDANT TO PROVIDE THE COURT
 WITH DOCUMENTATION OF ATTENDANCE.
   2. SUCH BATTERER INTERVENTION PROGRAM SHALL INCLUDE, BUT NOT BE LIMIT-
 ED TO, THE FOLLOWING COMPONENTS:
   (A) PERIODIC, ONGOING RISK ASSESSMENTS TO PROTECT THE  SAFETY  OF  THE
 VICTIM AND ANY CHILDREN;
   (B)  OFFENDER  ACCOUNTABILITY FOR THEIR ACTS OF DOMESTIC VIOLENCE AS A
 CENTRAL COMPONENT OF THE  PROGRAM,  REQUIRING  THAT  OFFENDERS  BE  HELD
 ACCOUNTABLE  FOR  THEIR  BEHAVIOR,  AND  PROVIDED  WITH  SERVICES GEARED
 TOWARDS BEHAVIORAL CHANGE;
   (C) INFORMATION AND EDUCATION CONCERNING  THE  TACTICS  OF  POWER  AND
 CONTROL  AND  THE UNDERSTANDING OF DOMESTIC VIOLENCE AS A DOMINATION AND
 CONTROL ISSUE;
   (D) A SWIFT AND CERTAIN COMPLIANCE PROTOCOL, INCLUDING  A  PROMPT  AND
 EFFECTIVE REVIEW BY THE COURT FOR NONCOMPLIANCE; AND
   (E) REGULAR REVIEWS OF THE PROGRAM AND COMPLIANCE AUDITS BY THE COURTS
 AND DESIGNATED DOMESTIC VIOLENCE ADVOCACY GROUPS.
   §  3.  This  act  shall take effect on the sixtieth day after it shall
 have become a law.