Family Law and Domestic Violence Legislative Update: 2008
Tuesday, August 05, 2008
- Organization: NY State Unified Court System
Family Law and Domestic Violence Legislative Update: 2008
Janet R. Fink, Deputy Counsel
New York State Unified Court System
The 2008 session of the New York State Legislature ended on June 24, 2008 with the passage of several significant measures affecting family law, as well as criminal law in the realm of domestic violence. These measures, many of which await action by the Governor, are summarized below and are available on-line at www.assembly.state.ny.us and www.senate.state.ny.us . Copies of bills, as well as status of action by the Governor, may also be obtained by calling 1 800 342 9860.
I. Measures Signed Into Law
A. Custody and Matrimonial Bills
1. Pre-nuptial Agreements [Laws of 2008, ch. 86]: This measure clarifies that the statute of limitations for commencing an action regarding a pre-nuptial agreement pursuant to Domestic Relations Law §250, which was added by Chapters 104 and 226 of the Laws of 2007, does not apply retroactively to an action regarding a prenuptial agreement or agreement relating to marriage that had been "previously barred by a court under the Civil Practice Law and Rules in effect immediately prior to" July 3, 2007, the effective date of the 2007 statute. Effective: May 21, 2008.
B. Juvenile Delinquency Bills
1. Alternatives to Detention in Juvenile Delinquency Cases, Study of the Effectiveness of Juvenile Services + Restrictions on Transfers of Employees from OCFS Facilities [Laws of 2008, ch. 57, Part DD, FF and II]: This measure, part of the language bill accompanying the Fiscal Year 2008 New York State Family Assistance Budget, amends Family Court Act §320.5 to prohibit detention of alleged juvenile delinquents unless "available alternatives to detention, including conditional release, would not be appropriate" and requires that courts state the facts and reasons for ordering detention. Incorporating an OCA Family Court Advisory and Rules Committee legislative proposal, electronic monitoring is included as an authorized form of conditional release "if such electronic monitoring would significantly reduce the substantial probability that the respondent would not return to court on the return date, or the serious risk that the respondent may before the return date commit an act that if committed by an adult would constitute a crime."
The measure also requires the New York State Office of Children and Family Services to contract with an outside researcher to conduct a "study of the effectiveness of juvenile services," including an examination of recidivism rates in residential and community-based programs, as well as program models utilized in other states. The study requires consideration of factors including, among others, "age, ethnicity and special needs (i.e., substance abuse, mental health, special education, health, etc.); service setting, criminal record and placement history (number of admission and discharges to and from programs, including modifications); and length of stay." An initial report describing the methodology is due to the Governor and Legislature on Jan. 15, 2009, an interim report is due Jan. 15, 2010 and a final report, containing findings and recommendations to improve services and reduce recidivism rates, is due Jan. 15, 2011.
Finally, since the budget restricted the ability of the NYS Office of Children and Family Services to close the Great valley and Pyramid House facilities, the measure prohibits OCFS from involuntarily transferring youth or employees from those facilities for the purposes of closing them, unless in conformity with the notice provisions in the budget. Effective: Apr. 1, 2008; NYS OCFS study provisions expire Mar. 31, 2011.
C. Domestic Violence Bills
1. Provision of Orders of Protection to Victims [Laws of 2008, ch. 56, Part D]: This measure, part of the language bill accompanying the Fiscal year 2008 New York Public Protection Budget, amends Criminal Procedure Law §§530.12, 530.13 and Family Court Act §842 to requires criminal and family courts issuing orders of protection to provide copies to state or local correctional or jail facilities where defendants or respondents are or will be detained or the supervising probation department or Division of Parole if defendants or respondents are or will be supervised. Executive Law §221-a is amended to provide domestic violence registry access to probation officers to "disclose and share" information, subject to the confidentiality laws applicable to the orders of protection. Effective: Apr. 1, 2008.
2. Disabling or Removing a Telephone to Prevent Emergency calls [Laws of 2008, ch. 69 ]: This measure adds disabling or removing a telephone in order to prevent a victim of a crime from calling for emergency assistance to the crime of criminal mischief in the fourth degree, a Class A misdemeanor.. Effective: 60 days after signing (Signed May 12, 2008).
3. Extension of Authorization for Referees and Judicial Hearing Officers to Issue Ex Parte Temporary Orders of Protection [Laws of 2008, ch. 216; A 11459/S 8303-a]: This measure provides a three-year extension to September 1, 20011 for the authorization for references to court attorney referees and judicial hearing officers to determine applications for ex parte temporary orders of protection that is contained in Judiciary Law §212(2)(n). This measure, which has permitted the night courts in the New York City Family Court to issue temporary orders of protection, has been expanded by the Family Court access bill, S 8665, supra, to permit such references during Family Court hours, as well as after 5PM. Effective: July 7, 2008; expiration: Sept. 1, 2011.
4. Access to Family Court by Cohabiting and Dating Partners [Laws of 2008, ch. 326; S 8665]: This measure amends section 812 of the Family Court Act and section 530.11 of the Criminal Procedure Law to provide an expanded definition of "member of the same family or household" to include individuals involved in "intimate relationships," so that they will be able to avail themselves of the concurrent family and criminal court family offense jurisdiction. In addition to those covered by the existing definition (persons presently or formerly married, those who have a child in common and those related by consanguinity or affinity), the bill adds:
Persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time. Factors the court may consider in determining whether a relationship is an "intimate relationship" include but are not limited to: the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an "intimate relationship". In addition to expanding Family Court jurisdiction, this measure makes crimes involving individuals within its scope "family offenses," thus subjecting them to mandatory arrest [C.P.L. §140.10(4)], one year adjournments in contemplation of dismissal [C.P.L. §170.55], and the complainant notification and other provisions of C.P.L. §§530.11 and 530.12.
Judiciary Law §212(2) is expanded to permit the Chief Administrative Judge to authorize courts to permit references to court attorney referees and judicial hearing officers to determine ex parte applications for orders of protection during court hours, as well as after 5 PM. The NYS Office for the Prevention of Domestic Violence is required to develop curricula and "make available training" to judges, referees, judicial hearing officers, prosecutors and law enforcement regarding the new provisions, as well as "the necessity for timely service of orders of protection and family offense arrest warrants." NYS OPDV and the Division of Criminal Justice Services are required to submit a report to the Governor and Legislature within three years of enactment regarding "any effect upon police practices resulting from" the measure. Effective: July 21, 2008 (applicable to orders of protection pending and issued on or after that date); NYS OPDV training mandate expires Sept. 1, 2010.
5. Judicial Hearing Officer Pilot Programs [Laws of 2008, ch. 290; A 8781]: This measure provides a three-year extension of the pilot projects authorized by the Laws of 2002, ch. 219 ,for the Seventh and Eighth Judicial Districts (Rochester, Buffalo and surrounding areas) in which Judicial Hearing Officers are explicitly permitted to issue orders of protection in Family Court. Effective: July 21, 2008. Expiration: June 30, 2011.
D. Child Support Bills
1. Child Support Service Fee and Pass-through of Support [Laws of 2008, ch. 57, Part Z]: This measure, part of the language bill accompanying the Fiscal Year 2008 New York State Family Assistance Budget, implements the federal requirement that the State charge an annual service fee of $25 for each child support case in which $500 has been collected during the federal fiscal year, which starts on October 1st. This fee applies to custodial parents receiving child support services who have never received public assistance. If there are multiple non-custodial parents, each case is deemed a separate case for purposes of the fee, which is deducted from their payments to the custodial parents. In international cases, the fee "shall be imposed but may not be collected ... unless permitted by federal law or regulation."
The measure also increases the pass-through of child support received by the State under an assignment by a recipient of public assistance from $50 to $100, starting on Oct. 1, 2008, and for two or more children $200, starting on Jan. 1, 2010.
Finally, the statute provides that the assignments to child support agencies of support rights of recipients of family or safety net assistance applies only to support that accrues during the period in which they receive the assistance.
Effective: • service fee effective April 1, 2008 (but not before automated collection ;
• pass-through of $100 per month effective Oct. 1, 2008; pass-through of $200 per month for two or more children effective Jan. 1, 2010; • assignment of support rights for recipients of family or safety net assistance during time they receive assistance effective Oct. 1, 2009 (applicable to applicants on or after Oct. 1, 2009).
2. Criminal Non-support of a Child [Laws of 2008, ch. 70]: This measure adds "failure or refusal without lawful excuse" to provide support for a child under the age of 18 in violation of an order issued by a court of competent jurisdiction to the crimes of non-support of a child in the first and second degrees. A person is also guilty of the crime if he or she "voluntarily terminates his or her employment, voluntarily reduces his or her earning capacity, or fails to diligently seek employment." First degree criminal non-support, requiring a previous non-support conviction within the previous five years, is a Class E felony; second degree non-support is a Class A misdemeanor. [Failure or refusal without lawful excuse to support a child under 16, without regard to whether there had been a court order to do so, is already a part of the definition of both of those crimes. No criminal penalties are provided for non-support of a child between the ages of 18 and 21, although New York law makes parents and guardians liable for such support until the age of 21]. Effective: Nov. 1, 2008.
3. Determination of Mistake of Fact in Income Execution [Laws of 2008, ch. 94]: This measure, proposed by the OCA Advisory Committee on Civil Practice, amends section 5241(e) of the Civil Practice Law and Rules to provide that an application to Supreme Court to correct an error in an income execution for child support must be made by order to show cause or motion to the creditor in the action in which the judgment had been entered, instead of by petition. [The requirement that such applications to the Family Court must be made by petition remains unchanged]. Effective: May 27, 2008.
E. Child Welfare Bills
1. Adoption when Adoptive Parent Dies [Laws of 2008, ch. 160]: This measure adds new sections 113-a and 115-e to the Domestic Relations Law, which provide that the death of one of the prospective adoptive parents during the pendency of an adoption proceeding involving two prospective adoptive parents shall be reviewed by the court as a change of circumstance but shall not automatically invalidate a pre-adoption certification or require the filing of a new adoption petition. The statute provides that "[t]he deceased adoptive parent shall be considered one of the legal parents, unless the surviving adoptive parent requests otherwise." Public Health Law §4138(2) is amended to provide that the deceased adoptive parent's name must be included on the child's birth certificate unless otherwise requested by the surviving adoptive parent. Effective: July 7, 2008 (applicable to prospective adoptive parents who die after such date).
2. Substitution of "Birth Parent" for "Natural Parent" [Laws of 2008, ch.305]: Expanding upon Chapter 312 of the Laws of 2002, this measure substitutes the term "birth parent" for "natural parent" in additional provisions of the Domestic Relations Law, Social Services Law, Family Court Act, Surrogate's Court Procedure Act, Education Law, Estates, Powers and Trusts Law, Executive Law, Labor Law, Public Health Law, Public Authorities Law and Real Property Tax Law. Effective: July 21, 2008.
3. Full Faith and Credit for Adoption Orders From Foreign Countries [Laws of 2008, ch. 329]: This measure creates a new Domestic Relations Law §111-c, which provides that a final judgment of adoption granted by an executive, judicial or administrative body of a foreign country must be given full faith and credit without further petitions, proceedings or documentation where two conditions have been met:
• either adopting parent is a New York State resident, and
• "the validity of the foreign adoption has been verified by the granting of an IR-3 immigrant visa, or a successor immigrant visa, for the child by the US Citizenship and Immigration Services."
The bill further provides that a foreign adoption order may be "registered" with the judge or surrogate in the county where either adoptive parent resides. Either of the child's adoptive parents, a guardian or guardian ad litem may petition to register the order, which may (but need not) be submitted in combination with a petition for a name-change. Where the court finds that the adoption meets the above criteria, the court must issue:
a finding as to aspects of the foreign adoption, to wit, the names of the adoptive parents, the name or names and reported birth date of the adoptive child, the country of the adoptive child's birth, the country and date of the foreign adoption, the state residency of the adoptive parent or parents and adoptive child, and a finding as to the date and issuance of an IR-3 immigrant visa; and, the court shall issue an order of adoption to the party who has petitioned for such an order.
The judge or surrogate must "expedite the issuance of an order of adoption...in order to ensure minimal expense of time and money for the petitioning parties in attaining such order of adoption."
Finally, the measure adds a new section 4138-b to the Public Health Law, which requires that upon notification to a local registrar of the finalization or recognition of a foreign adoption, the registrar must issue a birth certificate for the child upon submission of proof that the adoptive parent or child is a New York State resident, a copy of the foreign order of adoption with a certified translation, evidence of the date and place of the child's birth and evidence of issuance of the IR-3 or successor visa. The new birth certificate must contain the child's name, sex, date of birth, time and place of birth, adoptive mother's maiden name and adoptive father's name. Effective: Oct. 19, 2008.
4. Institutional Child Abuse and Neglect [Laws of 2008, ch. 323]: This Governor's Program Bill creates new sections 412-a and 424-d of the Social Services Law providing broader definitions of impairments and prohibited conduct and establishing new procedures regarding reports of child abuse or maltreatment of children in residential facilities. Residential care is defined to include: placements ordered by the Family Court, facilities operated or certified by the NYS Office of Children and Family Services, facilities operated by or under contract with local social services districts, facilities operated or licensed by the NYS Office of Mental Health or Office of Mental Retardation and Developmental Disabilities, facilities certified by the NYS Office of Alcoholism and Substance Abuse Services, facilities approved for residential special education by the NYS Commissioner of Education or a special act school district for such services, facilities for the deaf or blind that are visited by the State Education Department. the NYS School for the Blind and NYS School for the Deaf.
Reports of suspected abuse or maltreatment must be investigated by the NYS Office of Children and Family Services (or in the case of facilities covered by Mental Hygiene Law §45.07( c), the Commission on the Quality of Care and Advocacy for Persons with Disabilities) within 60 days to determine whether the report is indicated or unfounded, whether there is reason to suspect that the abuse or maltreatment was committed by child's parent or guardian, rather than a custodian of the child in a facility, whether it appears likely a crime was committed against the child and whether it appears that a regulation, statute or other requirement regarding care of the child was violated. Where a parent or guardian is suspected, a new report must be made to the State Central Registry of Abuse and Maltreatment, and where it appears likely that a crime was committed, law enforcement must be notified. Where statutes, regulations or other requirements have been violated, the facility director must be notified and a remedial plan must be implemented. Finally, "school-age child care workers" are added to the list of those mandated to report child abuse or maltreatment [Social Services Law §413]. Effective: July 21, 2008; §§2-4, 7-18 (including new SSL §§412-a + 424-d) effective Jan. 17, 2009 (180 days after July 21, 2008 signing].
F. Additional Criminal Bills
1. Aggravated Harassment: Display of Nooses [Laws of 2008, ch. 74]: This measure adds a new subdivision to the aggravated harassment statute that makes it a Class E felony to etch, paint, draw upon or otherwise place "a noose, commonly exhibited as a symbol of racism and intimidation, on any building or other real property, public or private, owned by any person, firm or corporation or any public agency or instrumentality, without express permission of the owner or operator of such building or real property." Effective: Nov. 1, 2008.
2. Injury to Elderly [Laws of 2008, ch. 68]: This measure elevates an assault causing physical injury from a Class A misdemeanor to a Class D felony where the victim is over 65 years of age and is more than ten years older than the accused. As an element of the crime, the victim's age must be proven beyond a reasonable doubt, but there is no requirement to prove that the accused knew or should have known the victim's age. [Note: restrictive placements for designated felonies involving serious physical injuries committed against elderly victims over 62 have long been required in Family Court. See Family Court Act §353.5(3). This measure adds physical injury to a victim over 65 to the crime of assault in the second degree, which is a designated felony where there has been a prior assault 2? finding]. Effective: June 30, 2008.
3. Physicians Assistants as Sexual Assault Forensic Examiners [Laws of 2008, ch. 292]:This measure amends Public Health Law §2805-I to authorize physician assistants, licensed pursuant to Education Law §6542, to act as sexual assault forensic examiners ("SAFE"), where they have been specially trained and certified as qualified in the forensic examination and preservation of forensic evidence in sexual assault cases. Effective: July 21, 2008.
II. Bills that Passed Both Houses and Await Governor's Action
A. Domestic Violence
1. Orders of Protection to Protect Pets [S 4541-a]: This measure, a part of a Family Court Advisory and Rules Committee proposal, provides the needed follow-up amendment to the 2006 statute authorizing orders of protection to protect pets [Laws of 2006, ch. 253]. That statute authorized all orders of protection, except matrimonial orders, to include conditions restraining individuals from intentionally injuring or killing companion animals or pets without justification. The provisions amending the juvenile delinquency, child support, paternity, custody, Persons in Need of Supervision, family offense and child protective articles of the Family Court Act all refer to companion animals "owned, possessed, kept, leased or held by the petitioner or a minor child residing in the household." However, in all except family offense, custody and parent-initiated PINS cases, the petitioner in these proceedings is a government entity, a prosecuting or presentment agency, not the alleged victim of family violence. This measure substitutes the phrase "person protected by the order" for "petitioner" and adds similar protection order conditions for orders of protection issued in matrimonial cases, pursuant to Domestic Relations Law §§240, 252. Effective: 90 days after signing.
2. Domestic Violence Shelter Services for Undocumented Immigrants [A 10228]: This measure amends Social Services Law §398-e to clarify that undocumented immigrants ("non-qualified aliens," under federal law and regulations) are entitled to receive residential services for victims of domestic violence. Current law provides eligibility for "protective services for adults and children," but its applicability to domestic violence shelter services and services to human trafficking victims has been unclear. While federal and state law preclude per diem reimbursement for domestic violence shelter services for "non-qualified aliens," federal law permits a state to enact a law authorizing payment of state and local funds for benefits for which the immigrants would otherwise be ineligible. See 8 U.S.C. §1621(2). This bill would provide that authorization. Effective: immediately upon signing.
B. Child Welfare: Neglect, Abuse, Guardianship and Adoption
1. Non-parent Guardianship and Custody [A 8358-b]: This measure amends the guardianship provisions of the Family Court Act to clarify that guardianship petitions may be granted for youth between the ages of 18 and 21 so long as they consent. It further establishes a new category of "permanent guardianship," which may be ordered, pursuant to either section 661(b) of the Family Court Act or sections 1701-1704 of the Surrogate's Court Procedure Act, if the court finds that it is in the best interests of a child:
• who has been freed for adoption, or
• whose parents would have been entitled to consent to or receive notice of an adoption but are both deceased.
A petition for a permanent guardian may be filed by "any person on behalf of the infant or child" and must include specified documents and information, including, among others, certified copies of termination of parental rights orders or surrenders, the child's property and assets if known, the child's wishes "if appropriate," the suitability of the guardian to assume permanent care of the child, the recommendation of the authorized agency (if any) and the results of inspections of the proposed guardian's home and, if applicable, the child's progress in the home. The local social services district must perform an assessment of the prospective guardian's home and the NYS Office of Children and Family Services must perform criminal history and child abuse registry checks of the proposed guardian and any persons 18 years of age or older residing in the home, all of which must be included with the petition. See SCPA §1704. Upon appointment, the permanent guardian would have a right and responsibility to make decisions regarding the child's protection, "care and control," adoption, health care, education and physical custody. This authority includes providing any necessary consents to medical care, although not limiting the ability of the child to consent to medical care on his or her own behalf as permitted by law. See SCPA §1706(1). The appointment of a permanent guardian expires on the child's 18th birthday or, upon the child's consent, the child's 21st birthday. However, SCPA §1707(2) provides that the appointment may be vacated at an earlier date if the Court finds by clear and convincing evidence that:
the guardian failed to or is unable, unavailable or unwilling to provide proper care and custody of the infant or child, or that the guardianship is no longer in the best interests of the infant or child.
Additionally, a new Family Court Act §657 and a new Domestic Relations Law §74 are added to provide that non-parents who have lawful orders of guardianship or custody of children have specific authority to enroll them in school in the district in which the non-parents and children reside and to enroll them in employer based health insurance programs with the same rights and benefits as children covered by guardianship orders issued under section 1210 of the Civil Practice Law and Rules, Article 17 of the Surrogate's Court Procedure Act or sections 661 et seq. of the Family Court Act. Effective: 90 days after signing (sent to Governor July 25, 2008).
2. Neglect and Custody Proceedings [A 10808-a]: This measure amends Family Court Act §1017 to authorize children to be placed in the temporary custody of relatives and other suitable persons during the pendency of proceedings, to require that such relatives or other suitable persons consent to the jurisdiction of the court, to authorize the court to issue a temporary order of protection and to authorize the court to place the relative or suitable person under the supervision of the local social services district or authorized agency during the pendency of the child protective proceeding.
The bill amends Family Court Act §1052 to provide that an order of custody to a relative or other suitable person may be made as a disposition under a new section 1055-b of the Family Court Act, but may not be combined with any other dispositional orders. Thus, if custody is ordered under that section, no agency involvement or supervision is permissible. Family Court Act §1055-b requires that a custody or guardianship petition must have been filed under Article 6 of the Family Court Act and allows that petition to be heard as a consolidated proceeding with the Article 10 child protective dispositional hearing. The Court may grant the Article 6 custody or guardianship as the disposition of the Article 10 proceeding if it finds that:
• it is in the child's best interests and will give the child a "safe and permanent home;"
• the safety of the child "will not be jeopardized" if the respondent or respondents in the Article 10 proceeding are not under any supervision and receive no services; and
• all parties consent to the granting of custody or guardianship or, if ordered after a consolidated hearing, the Court either finds "extraordinary circumstances" if a parent "fails to contest" [sic: consent to??] the granting of guardianship or custody or, if a party other than the parent fails to consent to the custody or guardianship, that granting the order is in the child's best interests. The order may provide that the local social services district and child's attorney receive notice of, and be made parties to, any proceeding under Family Court Act Article 6 to modify the order of guardianship or custody. Similar provisions are added to Family Court Act §1089 to provide that, in a permanency hearing where "placement with a fit and willing relative " is the goal and where an Article 6 custody or guardianship petition has been filed, the Court may convene a consolidated hearing to determine the custody or guardianship petition together with the permanency hearing. If the Court determines that no agency supervision or involvement is necessary, the Court may grant the custody or guardianship as a disposition of the permanency hearing, thus terminating Article 10-A jurisdiction. The consent of the parties would obviate the need to prove "extraordinary circumstances," but in the case of foster parents, only those who have had the child in their care in excess of a year, would be able to give consent; short-term foster parents would be parties but would be heard only as to the child's best interests. As in Article 10 proceedings, the Court may require that the agency and child's attorney be given notice of, and be made parties to, any proceedings for modification of the custody or guardianship order.
If the Court determines that agency involvement is in the child's best interests, the Court may instead order a direct placement or order of custody to a relative or suitable person as a child protective disposition under Family Court Act §§1052(iii), 1055(a) or as a disposition in a permanency hearing under Family Court Act §1089. Such an order may include an order of supervision, with terms delineated regarding both the district or agency and the relative or suitable person, and/or an order of protection. As with temporary orders, the relative or suitable person must consent to the jurisdiction of the court. As with all placements, these orders require permanency hearings in accordance with Article 10-A of the Family Court Act. Family Court Act §1052 is further amended to prohibit combining any order of placement under Family Court Act §1055 with an order suspending judgment, pursuant to FCA §1053, or releasing a child to a parent or person legally responsible, pursuant to FCA §1054. Effective: 180 days after enactment.
3. Mandated Reporters of Child Abuse and Maltreatment [S 7536]: This measure, proposed by the New York State Office of Alcohol and substance Abuse Services (OASAS) adds "all persons credentialed by" OASAS as mandated reporters of child abuse and maltreatment pursuant to Section 413 of the Social Services Law, thereby including credentialed alcohol and substance abuse prevention professionals and specialists. This is an addition to the current requirements for substance abuse and alcoholism counselors, as well as social workers and licensed mental health counselors, to report child abuse and maltreatment. Effective: immediately upon signing.
4. Criminal Records of Foster and Adoptive Parents [S 7449]: In order to conform New York law to the requirement of the federal Adam Walsh Child Protection and Safety Act of 2006 [Public Law 109-248] that, effective October 1, 2008, prospective foster and adoptive parents be automatically ineligible if they have convictions for crimes enumerated in the federal Adoption and Safe Families Act, this measure repeals the rebuttable presumption in Social Services Law §378-a that had been enacted in Chapter 145 of the Laws of 2000. That presumption applied unless the prospective foster or adoptive parent demonstrated that a denial of eligibility "would create an unreasonable risk of harm to the physical or mental health of the child" and that approval of the prospective parent's application "will not place the child's safety in jeopardy and will be in the best interests of the child." Effective: Oct. 1, 2008.
5. Multi-disciplinary Child Protective Investigative Teams [A 7858-e]: This measure authorizes multi-disciplinary teams, established pursuant to Social Services Law §423 and approved by the NYS Office of Children and Family Services, to investigate all forms of child abuse and child fatalities. The definition of a multi-disciplinary team is expanded to include, but not be limited to: child protective services, prosecutors, law enforcement, physician or medical professional trained in forensic pediatrics, mental health professionals, victim advocates and, if one exists, a child advocacy center. Child protective workers, law enforcement and prosecutors must be involved in joint interviews of allegedly abused children but members of the team not responsible for the investigation need not participate in every investigation. Such other team members must provide services consistent with their agency's mission and "shall note their specific role in the team" in reports submitted by the team. The term "guidelines" is deleted from the provisions of Executive Law §642-a regarding "fair treatment of child victims as witnesses" and those provisions are amended to encourage the use of multi-disciplinary teams to minimize multiple interviews of child victims where practicable and where such teams exist. Effective: 180 days after signing.
6. Access by Child Protective Agencies to Criminal History Information [S 2978-a]: This measure amends Executive Law §835 to include child protective agencies conducting child protective investigations within the enumerated "qualified agencies" that may receive criminal history information from the NYS Division of Criminal Justice Services. The bill authorizes child protective agency managers or designated individuals with law enforcement backgrounds to obtain information on individuals 18 and older residing in the homes under investigation or named in the report. Such information must be kept confidential and is not subject to "public inspection," although no constraints are placed on its use in court proceedings. The measure contains an important caveat, that is, that "[c]hild protective service units shall not indicate a report solely based upon the existence of a conviction record." Effective: immediately upon signing [NYS OCFS and NYS DCJS are authorized and directed to promulgate implementing regulations on an emergency basis].
7. Consents to Receive Adoption Information [S 4630-c]: This bill requires that all birth parents in cases of authorized agency and private-placement adoptions, consents to adoption and surrenders of children (regardless of whether they are in foster care) must be given an "adoption information registry birth parent registration consent form." By consenting on the form, birth parents are enrolled in the adoption information registry maintained by the NYS Department of Health, pursuant to Public Health Law §4138-c, which means that, once their child reaches the age of 18, he or she may register with the registry to receive identifying information about them. The birth parent's consent is revocable at any time and a revocation by one birth parent automatically revokes the consent of the other parent. The clerk of court must send the form to the Department of Health, along with the birth records, and the form must be included in the adoption information registry record without fee. The Department of Health must promulgate the form. Failure of a birth parent to complete the form "has no effect on the finality of the consent to adoption." Effective: 90 days after signing (sent to Governor July 25, 2008).
8. False Child Abuse Reports [S 8615/A 5188-a]: This measure expands the crime of falsely reporting an incident in the third degree, a Class A misdemeanor, to include false reports of child abuse or maltreatment to an individual required by Social Services Law §413 to report to the NYS central register maintained pursuant to Social Services Law §422 with the intention to cause the mandated reporter to make such a report. The current crime, as defined in Penal Law §240.50(4), only includes false reports made directly to the NYS central register by the accused. Effective: 180 days after signing (sent to Governor July 25, 2008).
C. Custody, Matrimonial and Child Support Proceedings
1. Custody Cases Involving Allegations of Abuse [S 6201-a]: This measure provides that if a parent makes a "good faith" allegation, based upon facts, that a child is a victim of child abuse or neglect or has been affected by domestic violence and if the parent "acts lawfully and in good faith in response to that belief to protect the child or seek treatment for the child," a court may not deprive the parent of visitation, custody or contact with the child "based solely on that belief or the reasonable actions taken based on that belief." If the parent's allegation is supported by a preponderance of the evidence, the court must take that evidence into account in determining the child's best interests regarding visitation and "shall not place a child in the custody of a parent who presents a substantial risk of harm to that child." Effective: immediately upon signing.
2. Custody Cases Involving a Party or Parties in Active Service in the Military [A 8722-a]: This measure adds a new section 75-l, contained in (but not a part of) the Uniform Child Custody Jurisdiction and Enforcement Act, which prohibits a court from issuing or modifying any permanent orders of custody "based on the fact that the parent is activated, deployed or temporarily assigned to military service, which would in any way affect or change a previous judgment or order regarding custody of that parent's child or children..." The court may only issue a temporary order modifying or amending custody upon clear and convincing evidence that it would be in the child's or children's best interests. An attorney for the child must be appointed in any proceeding for such a temporary order. In entering a temporary order, the court must consider and, if feasible and in the child or children's best interests, provide for contact between the child or children and the member of the military by "webcam, telephone or other available means." If the parent has a leave of not more than three months, the court "shall consider the best interest of the child when establishing a parenting schedule." If a temporary order has been issued, there must be a hearing held upon the parent's return from active military service at which the court must determine whether a change of circumstances indicates the need for a change, modification or amendment of the order. The measure further provides that "[a]ny relevant provisions" of the Service Member's Civil Relief Act applies to proceedings under Domestic Relations Law §75-l. A corresponding amendment is made in a new section 253 of the Military Law. Effective: 180 days after signing.
3. Domestic Violence, Sex Offender and Court Records Checking Requirements [A 11657-a]: This measure requires courts, prior to issuing any temporary, permanent or successive custody or visitation orders, to review the statewide domestic violence registry, the sex offender registry and "related decisions" in child abuse and neglect proceedings in court. The court must notify the attorneys, self-represented parties and attorneys for children of the results of the review. However, in emergency situations where the information from these sources is not available on a timely basis, the court may issue a temporary emergency order to '"serve the best interest of the child" pending review of the information within 24 hours. Upon such review and notification of counsel and parties, the court may then issue temporary or permanent orders. Checks must be performed anew where successive orders have been issued that last in excess of 30 days. The NYS Office of Children and Family Services, in conjunction with the NYS Office of Court Administration, is required to conduct a study of the feasibility of connecting court computer systems to the OCFS "Connections" system that includes the state central registry of child abuse and maltreatment. A report with recommendations must be submitted to the Governor and Legislature by January 1, 2009. Effective: 120 days after enactment.
4. Correcting Judgment Levies [A 8527-a]: This measure provides that spousal support, maintenance (alimony) and child support payments, among other categories, as well as $2500 of any bank account containing these and other exempt payments that were deposited directly or electronically within the past 45 days, are exempt from being taken to satisfy a judgment. Judgment debtors must be notified that they may seek reimbursement if exempt funds are levied. Forms for debtors to utilize, as well as procedures for claiming exemptions, are provided. Effective: Jan. 1st after signing.
D. Juvenile Justice
1. Exploited Youth [A 5258-c/S 3175-c]: Following enactment in 2007 of comprehensive legislation regarding human trafficking of adults [Laws of 2007, ch. 74], this measure provides protection and services for juvenile trafficking victims. It amends Family Court Act §311.4 of the Family Court Act to establish a rebuttable presumption that, upon the juvenile's motion, a Person in Need of Supervision petition must be substituted for a juvenile delinquency petition for a juvenile who has been arrested for the crime of prostitution but who appears to be a victim of a "severe form of trafficking," as defined in the federal Trafficking Victim Protection Act of 2000 [22 U.S.C.A. §7105( c)]. The Family Court need not grant the substitution if any of the following criteria are demonstrated:
• the youth does not meet the federal criteria,
• the youth had a prior PINS adjudication that resulted in a placement with the local social services department or
• the youth had a prior adjudication for a prostitution offense under Article 230 of the Penal Law; or
• the youth "expresses a current unwillingness to cooperate with specialized services for sexually exploited youth[.]"
If the Court does not grant the substitution, it must state its findings of fact in writing and make them part of the record. If a PINS petition is substituted but the juvenile subsequently "is not in substantial compliance with a lawful order of the court," the Court may substitute a juvenile delinquency petition. The PINS definition in Family Court Act §712(a) is expanded to include prostitution [Penal Law §230.00] and loitering for the purposes of prostitution [Penal Law §240.37]. Further, an allegation that a juvenile "has been the victim of sexual exploitation, as defined in Social Services Law §447-a" is added to the PINS petition provisions of Family Court Act §732(a).
The Safe Harbor for Sexually Exploited Youth Act, a new Title 8, is added to the Social Services Law. Social Services Law §447-a(1) defines a "sexually exploited child" as a child under 18 who has been subject to sexual exploitation as a victim of sex trafficking [Penal Law §230.34] or sexual abuse [Family Court Act 1012(e)(iii)] or engaged in conduct described in the following statutes: prostitution or loitering for the purposes of prostitution [Penal Law §§230.00, 240.37], compelling prostitution [Penal Law §230.33] or sexual performance by a child [Article 263 of the Penal Law]. Juveniles fitting within this definition are eligible for specialized services, including:
• short-term safe houses approved by the NYS Office of Children and Family Services;
• advocates in the short-term safe houses to work with and accompany youth to court;
• safe houses providing long-term housing and comprehensive services for sexually exploited youth, both as dispositions in PINS cases and for youth who are not the subjects of PINS petitions but who access the services voluntarily; and
• community-based programs providing therapeutic, educational, vocational, health and transitional services to sexually exploited youth.
All social services districts are required to include services for sexually exploited youth in its multi-year consolidated child welfare services plans based upon an annual determination of the local level of need. The districts, "to the extent that funds are available," must provide preventive services, including a short-term safe house or approved runaway and homeless youth program, approved respite or crisis intervention program and other community-based programs. These services are to be made available "to the extent possible provided by law" to youth on a voluntary basis, in juvenile delinquency and PINS cases (including cases diverted without petitions), as conditions of adjournments in contemplation of dismissal in criminal cases, as part of Family Court Act Article 10 child protective proceedings or upon referral by social services districts. Districts may utilize existing services so long as the staff is given OCFS-approved training to address the needs of sexually exploited youth and provide "a safe, secure and appropriate environment" for the youth. Programs may be provided on a regional basis, so long as they are "readily accessible" to the youth, and contracts with not-for-profit agencies may be utilized. The NYS Office of Children and Family Services is required to contract with an appropriate not-for-profit agency to operate at least one safe house in an area of high need. Further, to the extent funds (including federal grants) are available, local districts, in conjunction with law enforcement, may contract with a non-profit agency to provide local or regional training to law enforcement on the provisions of the new statute and on identifying and working with sexually exploited youth. Effective: April 1, 2010 (note: long planning period).
E. Criminal Law
1. Aggravated Harassment: Digital Transmission [A 9673]: This measure adds transmission or delivery of a written communication designed to cause annoyance or alarm to the crime of aggravated harassment in the second degree, a Class A misdemeanor. The definition of written communication is expanded to include a "recording," as the term is defined in Penal Law §275.00(6), that is, "an original phonograph record, disc, tape, audio or video cassette, wire, film, or any other medium in which sounds, images, or both sounds and images are or can be recorded or otherwise stored, or a copy or reproduction that duplicates in whole or in part the original." Effective: 90 days after signing.
2. Criminal Mischief [A 6308-a]: This measure, similar to a Family Court Advisory and Rules Committee measure proposed in 2007, adds a new section 145.13 to the Criminal Procedure Law to define "property of another" to include property jointly or co-owned by the accused and another person. Criminal mischief had been added by Chapter 541 of the Laws of 2007 to the list of family offenses for which there is concurrent jurisdiction in family and criminal courts. However, the crime of criminal mischief would not lie if the alleged abuser co-owned or jointly owned the property alleged to have been vandalized. This measure provides that "[i]t shall be no defense that one believes that he or she has a reasonable ground or right to damage such property because he or she owns such property along with another person unless such other person has given his or her consent to damage such property." Effective: Nov. 1 after signing.
3. Luring a Child [A 8488-a]: This measure creates a new Penal Law §120.70, establishing a new crime of "luring a child," which is a sex offense requiring the offender to register pursuant to Article 6-C (section 168 et seq.) of the Corrections Law. A person may be found guilty of the crime when he or she lures a child less than 17 years of age into "a motor vehicle, aircraft, watercraft, isolated area, building, or part thereof, for the purpose of committing any of the following offenses:" murder in the first or second degree, a felony sex offense, kidnapping in the first degree, promoting or compelling prostitution, sex trafficking, incest or use of a child in a sexual performance or promotion of a sexual performance by a child. The new crime of luring a child is a Class E felony, but if the underlying offense that the offender intended to commit is a Class A or Class B felony, then the crime of luring a child would be a Class B or Class C felony, respectively. Effective: 60 days after signing (sent to Governor July 25, 2008).