Enacts provisions relating to domestic violence; requiring attorneys for children to receive training or education in domestic violence

Summary of Provisions: Section 1 of the bill would amend Family Court Act (FCA) § 249-b to require the chief administrator of the courts to promulgate rules to provide that each person appointed to be an attorney for a child shall complete a training program, which would include the effects of domestic violence on children and the relationship between domestic violence and custody, visitation and child support. Such a training program would be developed with the input of and in consulta- tion with the Office for the Prevention of Domestic Violence.

Section 2 of the bill would amend Domestic Relations Law (DRL) 240(1)(a) to require that, where allegations of domestic violence or child abuse are raised and established by a preponderance of the evidence, a court must state on the record how findings, facts and circumstances of domestic violence or child abuse factored into the court's determination of custody or visitation.

Sections 3, 4, and 5 of the bill would amend Criminal Procedure Law (CPL) § 530.11(1), FCA § 812(1) and FCA § 821(1)(a), respectively, to add the crimes of sexual misconduct, forcible touching, sexual abuse in the third degree and sexual abuse in the second degree as set forth in Penal Law § 130.60(1) to those family offenses for which a victim may obtain an order of protection in family court, and subjecting these offenses to mandatory arrest and reporting requirements of CPL § 140.10.

Section 6 of the bill would amend CPL § 140.10(5) to provide that a report of a domestic violence incident involving an individual known by the law enforcement officer to be under probation or parole supervision

must be transmitted by the officer to the supervising probation or parole agency as soon as practicable.

Sections 7 and 8 of the bill would amend CPL § 160.55(1)(a) and CPL 160.55(1)(d), respectively, to provide that palmprints and fingerprints concerning an arrest for harassment in the second degree against a member of the same family or household will be retained and that records and papers of arrest and prosecution may be made available to certain qualified agencies in cases in which the defendant is convicted of harassment in the second degree against a member of the same family or household.

Section 9 of the bill would amend CPL § 170.10(4) to add a new paragraph (e) to provide that the Court inform the defendant that the records and papers in the arrest and prosecution of a conviction of harassment in the second degree against a member of the same family or household shall be accessible for law enforcement purposes.

Section 10 of the bill would amend CPL § 160.55(2) to provide that when a defendant has been found guilty of harassment in the second degree against a member of the same family or household, the clerk of the court shall include notification of such disposition to the Division of Crimi- nal Justice Services.

Section 11 of the bill would amend CPL § 170.10 by adding a new subdivi- sion 8-a to provide notice to a defendant that he or she was alleged to have committed harassment in the second degree against a member of the same family or household and creates a procedure for determining if the offense was committed against a member of the same family or household.

Sections 12 and 13 of the bill would amend CPL § 530.12(5) and CPL 530.13(4), respectively, to provide that, upon conviction of a class A misdemeanor and issuance of an order of protection, such order of protection may be extended during the period of the defendant's incar- ceration.

Section 14 of the bill would provide that, consistent with available resources, the Division of Human Rights shall develop training programs in conjunction with the Office for the Prevention of Domestic Violence to implement certain changes to the Human Rights Law.

Section 15 of the bill would provide that it shall take effect 90 days after enactment; however sections 7, 8, and 10 would take effect in 120 days and apply to convictions on and after such date and sections 9 and 11 would take effect 30 days after enactment.

Existing Law: FCA § 249-b requires the chief administrator of courts to promulgate court rules prescribing workload standards for attorneys for children.

DRL § 240(1) requires that, with respect to child custody or visitation determinations in matrimonial actions, where allegations of domestic

violence or child abuse are established by a preponderance of the evidence, courts must consider the effects of such domestic violence or child abuse in making the custody or visitation determination.

CPL § 530.11 provides that criminal court and family court shall have concurrent jurisdiction over certain crimes, including, for example, disorderly conduct, harassment, menacing and stalking, when the crime is committed between members of the same family or household.

FCA § 812 provides that family court and criminal court shall have concurrent jurisdiction over certain crimes, including, for example, disorderly conduct, harassment, menacing and stalking, when the crime is committed between members of the same family or household.

FCA § 821 provides that a family offense proceeding may commence upon the filing of a petition alleging, that a respondent engaged in certain criminal conduct against a household or family member, including, for example, disorderly conduct, harassment, stalking and menacing.

CPL § 140.10(4) provides that a law enforcement officer must arrest an individual where the officer has reasonable cause to believe he or she has committed an offense enumerated in CPL § 530.11(1) against a member of the same family or household.

CPL § 140.10(5) provides that a law enforcement officer must prepare and file a written report of a crime between members of the same family or household, whether or not an arrest is made.

CPL § 160.55 provides that, where a criminal action or proceeding has been terminated against a defendant by way of the defendant's conviction of a traffic infraction or violation, other than certain enumerated violations, records of such criminal action or proceeding shall be sealed.

CPL § 530.12(5) provides for the issuance and maximum duration of orders of protection issued in family offense cases.

CPL § 530.13(4) provides for the issuance and maximum duration of orders of protection in cases other than family offenses.

Justification: Domestic violence is a crime of enormous magnitude that affects all New Yorkers-regardless of age, race, or economic status-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, and approximately 300,000 calls are received by hotlines throughout the State. Nearly 165,000 orders of protection were issued in domestic violence cases in family, criminal and supreme courts in 2007 alone.

In New York and around the nation, several high profile domestic violence cases have renewed focus on the effects of domestic violence on victims, children and our communities. In addition, some studies have

indicated an increased risk of abusive conduct during difficult finan- cial times. The stresses of an economic downturn might also make it more difficult for victims of domestic violence to take the steps they need to get and stay safe.

While New York vigorously responds to domestic violence, with over 550 police departments, 200 emergency rooms, 150 domestic violence service providers, 99 domestic violence hotlines and 1,000 specialized courts, improvements can be made to hold offenders accountable, support victims of domestic violence and protect our children from exposure to and involvement in domestic violence situations. This bill will implement legislative changes that will strengthen New York's support for victims and their children while holding offenders accountable.

* Protecting Children from Harmful Exposure to Domestic Violence

Children exposed to domestic violence often suffer psychological, behav- ioral and academic challenges. In 1996, the legislature recognized the harmful effects of domestic violence on children and established domes- tic violence as a factor that courts must consider in child custody and visitation proceedings. Thirteen years later, studies indicate that the presence of domestic violence often has little impact on custody and visitation determinations. This bill would require courts to state on the record how the findings, facts and circumstances of domestic violence or child abuse were factored into the custody or visitation determination, where such abuse was established by a preponderance of the evidence. In addition, this bill would require that attorneys for children be trained on the dynamics of domestic violence so they can better counsel and represent their clients.

* Holding Offenders Accountable

New York recognizes certain crimes as offenses that may be committed within a family setting, and enumerates those offenses in FCA § 812. When a crime is recognized as a family offense, victims are eligible to petition for orders of protection in family court. These orders of protection are listed on a state-wide registry and the police must arrest an individual where there is reasonable cause to believe that the individual has committed a designated family offense. Currently, New York does not include sex crimes within those designated as "family offenses," even though there is a high correlation between domestic violence and sexual assault. This bill would allow evidence of certain sex crimes committed against members of the same family or household to be heard in family court order of protection proceedings, while ensuring that mandatory arrest applies and that orders of protection are filed with the statewide registry.

Law enforcement is not currently required to notify supervisory agen- cies, such as the supervising probation department or the New York State Division of Parole, when a probationer or parolee is involved in a domestic incident. Law enforcement officers are required to complete a domestic incident report when they respond to any domestic call. This

bill would require the law enforcement officer to transmit a domestic incident report to the supervisory probation department or New York State Division of Parole when the alleged abuser is known to be on probation or parole. Since such supervising agencies frequently impose the condition that a probationer or parolee report any contact with law enforcement, this bill would assist the agencies in enforcing this condition, thereby ensuring that offenders are held accountable.

Most domestic violence cases are initially charged as misdemeanors, but many ultimately plead down to harassment charges, which are violations and subject to sealing. This process prohibits law enforcement from accessing the records and papers pertaining to these convictions result- ing in limited access to information crucial to charging decisions, such as whether an offense was part of a course of conduct and who was the primary aggressor. This bill would allow a defendant to obtain a non- criminal disposition, when all parties deem that outcome to be appropri- ate, while ensuring that law enforcement has a complete understanding of the nature of the domestic violence history for any future incidents.

Orders of protection are crucial to the safety of victims. It is impor- tant that these protections be made available while a defendant is incarcerated and upon release. This bill provides greater protections to victims by adding the length of incarceration to the maximum expiration date previously allowed for orders of protections issued in misdemeanor and violation cases.

Budgetary Implications: This bill is not expected to have a material impact on State finances.

Effective Date: This bill would take effect 90 days after it becomes a law; provided that sections 7, 8 and 10 would take effect 120 days after enactment and apply to convictions on and after that date and sections 9 and 11 would take effect 30 days after enactment.