Provides for the prompt retrieval of information regarding family court child protective proceedings, including warrants, as well as other information

To insure that Supreme and Family Courts are fully informed prior to issuing custody and visitation orders, chapter 595 of the Laws of 2008 requires them to check the sex offender registry, the statewide registry of orders of protection and warrants and the New York State Unified Court System's own records of child protective proceedings. In the course of preparing court staff to implement the new law, a few problems with the statutory language have become clear.

First, chapter 595 presumes that the statewide databases of orders of protection and warrants are in fact contained in and retrievable from one system, since it refers to the "statewide computerized registry of orders of protection and warrants established and maintained pursuant to section two hundred twenty-one-a of the executive law." Although the order of protection registry is a part of the New York State Police Information System ("NYSPIN"), which is attached to the federal National Crime Information Center warrant system, warrants are not readily accessible to the court system. Upon issuance, orders of protection are first entered onto the Unified Court System's computer system and are transmitted electronically to the NYSPIN system. Court staff regularly access information regarding orders of protection directly from the Court System's own computer system. Warrants, however, are neither entered by, nor accessible to, court staff and establishing a separate inquiry of the New York State Police Information System to obtain warrant information has proven problematic, especially in light of the fact that parties in Supreme and Family Court custody and visitation cases are not fingerprinted. As the Governor recognized in the message issued upon approval of chapter 595:

"I fully support these new statutory amendments, which will ensure that judges will have vital information to assist them in making these immensely 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.

There have been concerns raised about the feasibility of a court undertaking a comprehensive review of all outstanding warrants before making a custody or visitation decision. Such name-based checks will typically uncover multiple records of persons with similar names, none of whom may be the person seeking custody or visitation. Delaying a custody or visitation decision while these records are examined may not be in the best interest of the child.

To address this issue, the Legislature has proposed and agreed to pass, a chapter amendment that will limit the required warrant check to Family Court warrants."

Governor's Approval Memorandum No. 38, L.2008, c.595.

The instant measure thus incorporates this agreed-upon suggestion by replacing the warrant language with a requirement that the court check "related decisions and warrants in court proceedings initiated pursuant to article ten of the Family Court Act." Utilizing the Court System's own Family Court "Universal Case Management System," court staff are able, through a single inquiry process, to promptly retrieve information regarding Family Court child protective proceedings, including warrants, as well as information from the database of orders of protection from all courts statewide.

Second, the chapter 595 requirement that all databases be rechecked whenever a custody or visitation case is continued for a period in excess of one month will create an inordinate burden for the courts that may have the unintended effect of delaying proceedings and thus impeding fulfillment of the children's best interests. The sponsor's supporting memorandum for chapter 595 incorrectly implied that temporary orders of custody or visitation are only issued at the outset of the proceedings. The memorandum states:

"Usually, a temporary order of custody or visitation is requested early in the proceeding, frequently before the court and counsel have all the relevant facts."

N.Y.S. Assembly Memorandum in Support of Bill No. A.11657A. While temporary orders are indeed issued upon the initiation of proceedings, numerous successive temporary orders are frequently required during the pendency of each case. In light of the substantial preparation required by the parties prior to trial of these often lengthy matters, as well as the heavy case loads in the courts, particularly the Family Courts, custody and visitation proceedings are often adjourned several times, frequently for periods in excess of 30 days. Unlike the criminal history system maintained by the New York State Division of Criminal Justice Services, inquiries of the sex offender, orders of protection and Family Court databases cannot be on a "search and retain" basis; thus, follow-up information is not automatically transmitted and inquiries must be made anew in each case. In light of the huge volume of repeat inquiries necessitated by chapter 595, this measure replaces the one-month requirement with a mandate that, prior to issuance of a subsequent order, the databases be rechecked if more than 90 days have elapsed since they were last reviewed.

Finally, chapter 595 requires that, in cases in which an emergency order must be issued in the absence of reports from all three databases - very rare cases, in which one or more of the databases is down - the information must be obtained within 24 hours and transmitted to all counsel in the case (and to any pro se parties). However, no exceptions are made for evenings, weekends or holidays when neither Supreme nor Family Courts are in session. The New York City Family Court conducts limited evening sessions, but this is not the rule statewide. Using language commonly found in statutes applicable to the courts, this measure substitutes "no later than the next day the court is in session" for the 24-hour mandate. See Family Court Act §§153-c, 154-d, 307.3(4), 307.4(5), 320.2(1),729,812(5), 1022(b), 1026(c) and 1027(a); Criminal Procedure Law §§530.11(6), 530.12(3-b) and 725.05(7); Domestic Relations Law §§240(3) and 252(8); Social Services Law 417(2).

This measure, which would have no meaningful fiscal impact on the State, would take effect immediately.

2008 LEGISLATIVE HISTORY :

None. New proposal.