Relates to violations of orders of protection in family offense cases

This measure clarifies that the violation procedures and consequences prescribed by Family Court Act Article 8 apply to all orders of protection and temporary orders of protection issued in family offense, child support, paternity, child custody, visitation, divorce and other matrimonial proceedings. Additionally, consistent with chapter 579 of the Laws of 2003, this measure would amend section 841(c) of the Family Court Act to authorize Family Court to place a respondent on probation for up to two years or, where an order of protection pursuant to section 842 of the Act has been issued for five years, for up to five years. Since section 841 of the Family Court Act explicitly authorizes concurrent issuance of both an order of probation and an order of protection as a disposition of an Article 8 family offense proceeding, logic dictates that the duration of both orders should be equal. Clearly, the duration of probation supervision over a respondent in a family offense matter should be coextensive with the duration of the order of protection, that is, coextensive with the period of time determined by the Family Court as the period necessary to protect a victim of family violence from suffering further violence.

Violation procedures would be clarified by the incorporation by reference in sections 446, 551 and 656 of the Family Court Act of the following:

* the procedures contained in section 846 of the Family Court Act for filing a violation petition, serving notice upon, and, if necessary, apprehending the respondent, and obtaining either a determination in Family Court or a transfer of the matter to a criminal court;

* the remedies contained in section 846-a of the Family Court Act that are available to Family Court once a willful violation has been found; and

* the options contained in section 847 of the Family Court Act for a victim of an alleged act constituting a family offense to seek the filing of an accusatory instrument in a criminal court, as well as to file a new family offense petition or a violation petition.

Further, section 846-a of the Family Court Act would be amended to more clearly delineate Family Court's authority to impose sanctions upon a finding of a willful violation of an order of protection or temporary order of protection and to modify or issue a new order of protection or temporary order of protection. The Court's authority to place a violator on probation and to require, as a condition of probation, that the violator participate and pay the costs of a batterer's education program would be articulated - a recommendation consistent with the statutorily-required evaluation of the 1994 legislation by the New York State Office for the Prevention of Domestic Violence and Division of Criminal Justice Services. Where a violator already is on probation, the Court would be authorized to revoke or City the order of probation. Additionally, the Court's power to compel payment of legal fees and costs, fees and costs for the child's attorney, restitution and medical expenses would be clarified, as would be the Court's authority to suspend an order of visitation or require that visitation be supervised. None of these are new powers; all currently are exercised by the Courts. See; e.g., Matter of C.B. v. J.U., 5 Misc.3d 1004 (Sup. Ct., N.Y. Co., 2004)(supervised visitation ordered). Consolidating several scattered provisions, the measure also would enumerate the options available to the Court to commit a violator to jail for up to six months, revoke or suspend a firearms license and direct the surrender of firearms.

Finally, similar enforcement remedies would be enumerated in sections 240(3-d) and 252(10) of the Domestic Relations Law. While a 1999 amendment regarding matrimonial orders of protection included references to restitution, firearms license suspension and revocation, and firearms surrender, it did not clearly spell out the additional options available to Supreme Court upon a finding of a willful violation, ie.,probation, imposition of legal and medical fees and costs, suspension of visitation or a direction that visitation be supervised, and commitment to jail. See L. 1999, c. 606.

With increased issuance of temporary and permanent orders of protection in matrimonial proceedings resulting from the 1999 legislation, it would be helpful for the Domestic Relations Law to delineate specific sanctions available to Supreme Court for violations. Section 7(b) of Article 6 of the New York State Constitution accords to Supreme Court the powers of Family Court, thereby conferring authority upon Supreme Court to apply the provisions in Article 8 of the Family Court Act in matrimonial proceedings. However, explicit articulation in the Domestic Relations Law of the full range of powers of the Supreme Court with respect to violations of orders of protection and temporary orders of protection would add needed clarity to the statutory framework and would facilitate a more effective response to domestic violence incidents occurring in the context of matrimonial proceedings.

By clearly delineating procedures and remedies for violations of orders of protection and by authorizing Family Court probation periods to be coextensive with the duration of family offense orders of protection, this measure will significantly enhance the capacity of Family and Supreme Courts to provide strong civil remedies - meaningful alternatives to criminal prosecutions - for victims of domestic violence.

This measure, which would have no fiscal impact upon the State, would take effect 90 days after becoming a law.

2008 LEGISLATIVE HISTORY :

S.5887 (Rules)/A.8628 (reported to Codes Comm.)