BILL NUMBER: S8198

SPONSOR: BRISPORT
 
TITLE OF BILL:

An act to amend the family court act, in relation to records checks in
family offense cases involving custody of, or access to, children; and
to repeal certain provisions of such law relating thereto

2.  
SOURCE OF BILL:

This bill is being introduced at the request of the Unified Court
System.

3.  
PURPOSE OF BILL:

This bill ensures child safety in family offense cases by requiring the
Family Court to check the registry of orders of protection, the sex
offender registry, and records of child protective proceedings relating
to individuals who may be granted custody of a child as a condition of a
temporary or final order of protection.

              

4.  
SUMMARY OF PROVISIONS:

Section 1 of the bill amends the first undesignated paragraph of Family
Court Act § 842 to require a review of records in accordance with Family
Court Act § 651 prior to the issuance of a final order of protection in
which custody is awarded to either parent or a relative within the
second degree. Since Family Court Act § 828 provides that a temporary
order of protection "may contain any of the provisions authorized on the
making of an order of protection under section  
842," the language
added by this bill also applies to temporary orders of protection.

Section 2 of the bill repeals the eighth undesignated paragraph of Fami-
ly Court Act § 842 regarding orders to terminate leases or rental agree-
ments, since that paragraph has been rendered obsolete by the 2019
amendment of Real Property Law § 227-c, which established an administra-
tive procedure for terminating a lease in lieu of provisions requiring a
court order. See L. 2019, c. 694.

Section 3 of the bill provides for an effective date 30 days after
enactment.

5.  
JUSTIFICATION:

Ensuring the safety of a child when awarding custody as a condition of
an order of protection is as important as it is when awarding custody in
a Family Court custody proceeding under Article 6 of the Family Court
Act or as part of a matrimonial proceeding in Supreme Court under Domes-
tic Relations Law ("DRL") § 240. Therefore, in all of these proceedings,
courts should be subject to the same requirements to check the records
of individuals who may be granted custody.

To ensure that Supreme and Family Courts are fully informed prior to
issuing custody and visitation orders, chapter 595 of the Laws of 2008
amended Family Court Act § 651 and DRL § 240(1)(a) to require courts to
check the sex offender registry, the statewide registry of orders of
protection, and the New York State Unified Court System's own records of
child protective proceedings and warrants in all custody and visitation
proceedings. As the legislation's supporting memorandum indicated, the
law was prompted by a tragic case in which a Family Court Judge awarded
unsupervised visitation to a parent who, unbeknownst to the Court or the
attorney for the child, had been convicted of raping his 14-year old
niece and was a Level 2 registered sex offender. The father was subse-
quently arrested for raping the 12-year old daughter with whom he had
been granted visitation by the court.

In the message issued upon approval of chapter 595 of the Laws of 2008,
the Governor declared:

I fully support these new statutory amendments, which will ensure that
judges will have vital information to assist them in making these immen-
sely difficult and important decisions ... I have no doubt that the
changes made by this bill will protect children from being harmed by
persons who should not be given custody or unsupervised access to them.

Recognizing the vital nature of the information provided to Family and
Supreme Courts through a review of the domestic violence, sex offender
and Family Court databases, the Legislature, in 2015, expanded the
records review requirements to apply to the screening of non-respondent
parents, relatives and other "suitable persons" as potential custodial
resources for children in child abuse and neglect proceedings pursuant
to Family Court Act § 1017(2)  
L. 2015, C. 567.  However, the statutory
framework governing the Family Court still lacks a comparable records
review requirement for another context in which the Court renders deci-
sions regarding custody and visitation for which the information would
be essential, that is, family offense proceedings under Article 8 of the
Family Court.

This bill would correct this omission by applying the records-check
requirement to temporary and final orders of protection that include an
award of custody. Requiring the court to perform records checks is
particularly important at the temporary order of protection stage, since
most petitioners seeking temporary orders of protection ex parte are
unrepresented and lack full information to provide to the court. There
are no costs associated with this bill because the courts already have
an automated system in place for checking the records in other catego-
ries of proceedings, i.e., custody and visitation cases under Family
Court Act § 651 and child protective proceedings under Family Court Act
§ 1017. Further, the full incorporation by reference of Family Court Act
§ 651 ensures that in the rare cases in which the review is not feasible
but in which an emergency custody order is critical, subdivisions five
and six of section 651 would apply, thus permitting a temporary order of
custody with a prompt review of records afterwards.

Significantly, in cases in Family and Supreme Courts in which temporary
and final orders of protection in conjunction with custody orders are
issued pursuant to sections 655 and 656 of the Family Court Act or DRL
sections 240(3) and 252, the records review requirements of Family Court
Act § 651 and DRL section 240(1)(a) already apply, thus ensuring that
the courts will obtain vital information to inform their decisions when
issuing orders of protection in those proceedings. It is equally vital
to provide this information to the Family Court when its custody order
is contained solely in a temporary or final order of protection under
section 828 or 842 of the Family Court Act.

6.  
PRIOR LEGISLATIVE HISTORY:
This bill was first proposed by the Judiciary since 2021 but was not
introduced by either house.

7.  
FISCAL IMPLICATIONS:

This bill would have no meaningful fiscal impact.

8.  
EFFECTIVE DATE:
This bill would take effect 30 days after enactment.d