Relates to service of orders of protection including applications to extend and petitions for violations of orders of protection and temporary orders of protection

Section 153-b of the Family Court Act, enacted in 1994 and amended in 1995, provided important assistance to litigants seeking temporary and final orders of protection by permitting them the option of having peace and police officers serve the orders and accompanying pleadings. See L. 1994, c. 46; L. 1995, c.429. These litigants are often in the midst of serious emergencies, may be seeking protection from dangerous situations, and have neither the wherewithal, nor the economic resources, to arrange for service by a non-party over the age of 18, as required by section 2103(a) of the Civil Practice Law and Rules. Many are not represented by counsel, at least at the early stages of the litigation. In fact, it has been estimated that 75% of the total caseload of the New York City Family Court involves self-represented litigants. Since orders of protection are not enforceable until served, this assistance is critical to victim safety, as well as to advancing the litigation and assuming jurisdiction over the alleged abuser. Coupled with Family Court Act §153-c, which provides litigants with quick access to the court for the purposes of obtaining temporary relief, service of pleadings and orders by law enforcement has been critical to the effectiveness of the Family Court's response to cases of domestic violence.

This assistance was intended for all stages of Family Court proceedings regarding orders of protection, specifically when orders are extended and when petitions alleging violations are filed. However, there are reports that law enforcement are declining to serve orders of protection or temporary orders of protection issued in later stages of proceedings, such as violations. Again, the nature of the litigation dictates the need for concerns for victim safety, as litigants may be in situations of acute danger. If they elect to prosecute violations criminally, they would necessarily have the benefit of law enforcement assistance and involvement. The fact that they may elect to prosecute civilly instead should not deprive them of needed assistance in serving the papers. Family Court Act §846(c), incorporating Family Court Act §826 by reference, requires attempted personal service prior to substituted service being ordered. Additionally, extended orders, like initial orders of protection, are

not enforceable until served and if in personam jurisdiction had not yet been obtained over the respondent, personal service may be necessary. The Family Court Advisory and Rules Committee, therefore, is submitting a proposal that clarifies that litigants have the same options of peace and police officer service for orders and temporary orders and legal papers issued in later stages of family offense proceedings including service of extended orders and for petitions alleging violations of orders of protection as they have for original orders and accompanying pleadings.

The proposal also makes it clear that such service must be available without fee to the litigants. The provision prohibiting fees from being charged by police and peace officers for service of all orders of protection, whether issued upon default, temporary, modified, final, or extended as well as associated petitions and summonses, emphasizes legislation enacted in 2007 at the recommendation of the New York State Office for the Prevention of Domestic Violence. That statute amended section 8011 of the Civil Practice Law and Rules to prohibit sheriffs from charging the statutory $45 fee and any mileage fees for service of orders of protection and related orders or papers when service has been directed by the court. See L. 2007, c. 36. Recognizing that victims of domestic violence are charged no fees for service of criminal orders of protection and related documents, the statute was intended to ensure compliance a statewide policy and practice that would create equity between criminal and civil options, support safety for domestic violence victims, and be consistent with New York's proactive, aggressive response to domestic violence. McKinney's 2007 Session Laws of New York, c. 36, New York State Memorandum in Support of Senate bill S4020, p. 1560. Like the 2007 amendment, the Committee's proposal is essential to ensure compliance by New York State with Federal law. The Federal Violence Against Women Act requires all states in receipt of Federal funding under the STOP Formula Grant Program under the Act to:

certify that their laws, policies, and practices do not require, in connection with the prosecution of any misdemeanor or felony domestic violence offense, or in connection with the filing, issuance, registration, or service of a protection order, or a petition for a protection order, to protect a victim of domestic violence, stalking, or sexual assault, that the victim bear the costs associated with the filing of criminal charges against the offender, or the costs associated with the filing, issuance, registration, or service of a warrant, protection order, petition for a protection order, or witness subpoena, whether issued inside or outside the State, tribal, or local jurisdiction[.] 42 U.S.C.A. §3796hh(c)(4).

Lifting the burden from victims of domestic violence of arranging for service of orders of protection has proven to be essential to the effort to make civil prosecution in Family Court an effective avenue of relief. Clarification that this same opportunity for law

enforcement service with respect to all orders and petitions for violations of orders, is equally critical to that end.

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

2010 LEGISLATIVE HISTORY:

None. New proposal.