Provides that orders of protection shall not be denied solely on the basis that the events alleged are not contemporaneous with the application therefor

Summary of provisions of bill

Sections 1, 2, 3, 4 and 7 amend sections 446, 551, 656, 759 and 1056 of the Family Court Act and section 8 amends section 240(3)(e) of the Domestic Relations Law to provide that a court shall not deny an order of protection or dismiss an application for the same, solely because the acts alleged are not relatively contemporaneous with the filing of the application or the conclusion of the action. In addition these sections provide that the duration of any temporary. final order.

Section 5 amends subdivision 1 of section 812 of the Family Court Act by providing that a court shall not deny an order of protection or dismiss a petition solely on the basis that the acts or events alleged are not relatively contemporaneous with the date of the petition, the conclusion of the fact-finding or the conclusion of any dispositional hearing.

Section 6 amends section 842 Of the Family Court Act by providing that the duration of any temporary order shall not by itself be a factor in determining the length or issuance of any final order

Justification

Our legislature has recognized that domestic violence is a crime of enormous magnitude with effects on all New Yorkers, regardless of age, race, or economic status and with long term and pervasive consequences for victims, families, communities and society. Each year an estimated 400,000 domestic violence incidents are reported to law enforcement in New York, approximately 300,000 calls are received by hotlines throughout the State, and nearly 165,000 orders of protection were issued in domestic violence cases in family, criminal and supreme courts in 2007 alone. While the legislature has enacted various measures to advance protections for victims of domestic abuse, it is critical to ensure that these measures are not eroded and that victims have access to meaningful protections from their abusers.

This legislation is intended to overturn a line of Appellate Division cases that have attempted to institute a statute of limitations on incidents of abuse that a victim of domestic violence may plead and prove, where the legislature specifically did not institute one. (See, Yoba v. Yoba, 183 A.D.2d 418(1g Dept.,1992); Swersky v. Swersky, 299 A.D.2d 540(2d Dept., 2002); Thomas v. Thomas, 32 A.D.3d 521(2d Dept., 2006); Matter of Ashley P., 31 A.D.3d 767 (2d Dept., 2006); Matter of Ann P. v. Nicholas C.F., 44 A.D.3d 776 (2d Dept., 2007); Matter of Hall v. Hall, 45 A.D.2d 842 (2d Dept., 2007); Matter of Loriann Q. v. Frank R., 53 AD.3d 735 (3d Dept., 2008), denying civil orders of protection as a primary, or as secondary basis, because the incidents pled were not "relatively contemporaneous"). There is a disturbing trend in the Family, Supreme and Integrated

Domestic Violence Courts of denying civil orders of protection where incidents of abuse alleged are considered by the courts as not "relatively contemporaneous" with the filing of the petition, the findings of fact, or the dispositional stage of the proceeding, presumably in reliance on the Appellate Division cases. Furthermore, some trial courts have been denying a final order of protection on the basis that the temporary order of protection was in effect for too long. This legislation is also intended to address such denials of final orders of protection that are based on the duration of a temporary order issued during the pendency of a case.

When the family offense statute was passed enabling people to apply for civil orders of protection, the Legislature was mindful in not requiring incidents of abuse to be pled within a particular period of time. This was based on the recognition that domestic violence is a pattern of behavior aimed at controlling another person. In making this avenue of relief available to victims of domestic violence, the legislature recognized that domestic violence must be viewed as a video as opposed to a snapshot. It is important for a court to hear and consider the history of violence to craft a careful and meaningful order that accomplishes the purpose of securing safety. Allegations that are more remote in time can give the finder of fact an enormous amount of information including how long the violent relationship has lasted so the finder of fact can craft a meaningful order of protection. Experts in the area of domestic violence, national government statistics and local statistics have clearly established that domestic violence is a pattern that frequently spans the entire relationship and to institute an artificial cut off date for which incidents will or will not be considered by the court in making a determination disregards the nationally established understanding of domestic violence.

Any incident of abuse that precipitates the filing for an order of protection must be viewed in the context of the history of the pattern of abuse suffered by the applicant and there is no statutory requirement to limit incidents pled to be within a specific period of time.

A family offense proceeding comprises a fact-finding stage and a dispositional or sentencing phase. While the age of the incidents might be a factor for consideration at the dispositional phase of the proceedings, courts should not preclude applicants from the relief of a civil order of protection, solely because an incident is considered by some courts as too remote in time. The purpose of these civil proceedings - as distinguished from criminal proceedings -- is primarily to protect the physical and emotional safety of the victim, as well as to end the family disruption (Section 812 (2)(b)).

Legislative history

2009 -A.8393/S.5696 Passed Assembly/S. Judi.

Fiscal implications for state and local governments

None.

Effective date

The act shall take effect immediately and shall apply to all orders of protection pending or entered on or after such effective date,