S T A T E O F N E W Y O R K
________________________________________________________________________
6423
2019-2020 Regular Sessions
I N S E N A T E
June 10, 2019
___________
Introduced by Sen. MONTGOMERY -- (at request of the Office of Court
Administration) -- read twice and ordered printed, and when printed to
be committed to the Committee on Rules
AN ACT to amend the family court act and the domestic relations law, in
relation to orders for temporary spousal support in conjunction with
temporary and final orders of protection in family court and calcu-
lation of the spousal maintenance "cap"
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Paragraph (d) of subdivision 2 of section 412 of the family
court act, as added by chapter 269 of the laws of 2015, is amended to
read as follows:
(d) "income cap" shall mean up to and including one hundred [seventy-
five] EIGHTY-FOUR thousand dollars of the payor's annual income;
provided, however, beginning [January thirty-first] MARCH FIRST, two
thousand [sixteen] TWENTY and every two years thereafter, the income cap
amount shall increase by the sum of the average annual percentage chang-
es in the consumer price index for all urban consumers (CPI-U) as
published by the United States department of labor bureau of labor
statistics for the prior two years multiplied by the then income cap and
then rounded to the nearest one thousand dollars. The office of court
administration shall determine and publish the income cap.
§ 2. The section heading of section 828 of the family court act, as
amended by chapter 222 of the laws of 1994, is amended and a new subdi-
vision 5 is added to read as follows:
Temporary order of protection; temporary [order] ORDERS for child
support AND SPOUSAL MAINTENANCE.
5. NOTWITHSTANDING THE PROVISIONS OF SECTION EIGHT HUNDRED SEVENTEEN
OF THIS ARTICLE, WHERE A TEMPORARY ORDER OF SPOUSAL SUPPORT HAS NOT
ALREADY BEEN ISSUED, THE COURT MAY, IN ADDITION TO THE ISSUANCE OF A
TEMPORARY ORDER OF PROTECTION PURSUANT TO THIS SECTION, ISSUE AN ORDER
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10899-03-9
S. 6423 2
DIRECTING THE PARTIES TO APPEAR WITHIN SEVEN BUSINESS DAYS OF THE ISSU-
ANCE OF THE ORDER IN THE FAMILY COURT, IN THE SAME ACTION, FOR CONSIDER-
ATION OF AN ORDER FOR TEMPORARY SPOUSAL SUPPORT IN ACCORDANCE WITH ARTI-
CLE FOUR OF THIS ACT. IF THE COURT DIRECTS THE PARTIES TO SO APPEAR, THE
COURT SHALL DIRECT THE PARTIES TO APPEAR WITH INFORMATION WITH RESPECT
TO INCOME AND ASSETS, BUT A TEMPORARY ORDER FOR SPOUSAL SUPPORT MAY BE
ISSUED PURSUANT TO ARTICLE FOUR OF THIS ACT ON THE RETURN DATE NOTWITH-
STANDING THE RESPONDENT'S DEFAULT UPON NOTICE AND NOTWITHSTANDING THAT
INFORMATION WITH RESPECT TO INCOME AND ASSETS OF THE PETITIONER OR
RESPONDENT MAY BE UNAVAILABLE.
§ 3. Section 842 of the family court act, as amended by chapter 526
and the closing paragraph as added by chapter 480 of the laws of 2013,
is amended to read as follows:
§ 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
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] ARTICLE, 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
S. 6423 3
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
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.
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
S. 6423 4
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.
NOTWITHSTANDING THE PROVISIONS OF SECTION EIGHT HUNDRED SEVENTEEN OF
THIS ARTICLE, WHERE A TEMPORARY ORDER OF SPOUSAL 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 DIRECTING THE
PARTIES TO APPEAR WITHIN SEVEN BUSINESS DAYS OF THE ISSUANCE OF THE
ORDER IN THE FAMILY COURT, IN THE SAME ACTION, FOR CONSIDERATION OF AN
ORDER FOR TEMPORARY SPOUSAL SUPPORT IN ACCORDANCE WITH ARTICLE FOUR OF
THIS ACT. IF THE COURT DIRECTS THE PARTIES TO SO APPEAR, THE COURT SHALL
DIRECT THE PARTIES TO APPEAR WITH INFORMATION WITH RESPECT TO INCOME AND
ASSETS, BUT A TEMPORARY ORDER FOR SPOUSAL SUPPORT MAY BE ISSUED PURSUANT
TO ARTICLE FOUR OF THIS ACT ON THE RETURN DATE NOTWITHSTANDING THE
RESPONDENT'S DEFAULT UPON NOTICE AND NOTWITHSTANDING THAT INFORMATION
WITH RESPECT TO INCOME AND ASSETS OF THE PETITIONER OR RESPONDENT MAY BE
UNAVAILABLE.
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 OR HER
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] IS
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 individual 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,
S. 6423 5
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.
§ 4. Subparagraph 5 of paragraph (b) of subdivision 5-a of part B of
section 236 of the domestic relations law, as amended by chapter 269 of
the laws of 2015, is amended to read as follows:
(5) "Income cap" shall mean up to and including one hundred [seventy-
five] EIGHTY-FOUR thousand dollars of the payor's annual income;
provided, however, beginning [January thirty-first] MARCH FIRST, two
thousand [sixteen] TWENTY and every two years thereafter, the income cap
amount shall increase by the sum of the average annual percentage chang-
es in the consumer price index for all urban consumers (CPI-U) as
published by the United States department of labor bureau of labor
statistics for the prior two years multiplied by the then income cap and
then rounded to the nearest one thousand dollars. The office of court
administration shall determine and publish the income cap.
§ 5. Subparagraph 4 of paragraph (b) of subdivision 6 of part B of
section 236 of the domestic relations law, as amended by chapter 269 of
the laws of 2015, is amended to read as follows:
(4) "Income cap" shall mean up to and including one hundred [seventy-
five] EIGHTY-FOUR thousand dollars of the payor's annual income;
provided, however, beginning [January thirty-first] MARCH FIRST, two
thousand [sixteen] TWENTY and every two years thereafter, the income cap
amount shall increase by the sum of the average annual percentage chang-
es in the consumer price index for all urban consumers (CPI-U) as
published by the United States department of labor bureau of labor
statistics for the prior two years multiplied by the then income cap and
then rounded to the nearest one thousand dollars. The office of court
administration shall determine and publish the income cap.
§ 6. This act shall take effect immediately.
