Relates to establishment of a presumption of custodial interference

Summary of provisions

Section 1, subdivision 1 of the bill amends the Penal Law by adding a new section 135.51 providing for presumption of service.

Section 1, subdivision 2 of the bill states that the rebuttable presumption established by subdivision one of this section shall not apply where court order was served by publication.

Existing law

Current law necessitates personal service.

Justification

There is an increasing recognition among experts of the seriousness of parental abduction and its long term negative consequences for children. The federal Office of Juvenile Justice and Delinquency Prevention, in its National Incidence Studies on Missing, Abducted, Runaway and Thrownaway Children in America (NISMART), reports that there are as many as 354,100 children abducted by a family member each year.

Forty-six percent of parental abductions in the NISMART study involved concealing the whereabouts of the child or taking the child out of the state. Abduction is often a vengeful attack on the other parent. Sometimes the abduction is another attempt by the abuser to control, intimidate or harass the battered partner attempting to leave the relationship. An abuser may also refuse to return a child after visitation as a form of harassment or a means of continued access to the abused parent. Abductions committed by an abusive parent are more likely to involve violence or the use of force, placing the child in greater jeopardy.

Although New York's custodial interference statute seeks to punish parental abduction, the law is not comprehensive and is only minimally effective. This is due to the difficult threshold needed to secure a felony warrant, as such the warrant requires serving notice. Under the current statute the abductor benefits from his or her criminal conduct by hiding from the law.

In practice, in order for a victimized parent to access the national resources of the FBI, a felony must be charged against the abducting party. In order to establish the "wrongfulness" of the taking where the abductor is a parent, the victim (the other parent) must show that the taking violated an order of custody or visitation, or an order of protection. Where no prior order exists, the victim must obtain an order from a court of appropriate jurisdiction and serve it upon the abductor. In cases where the abductor and the child have fled, and cannot be located to allow for personal service of the court's order, the victim is unable to allege a felony and is therefore denied access to the FBI. This is a serious and often tragic defect in the current statute, leaving the victim -- the rightful custodian -- without the necessary investigative and police resources to locate and recover the child, This bill remedies this defect by including the other means of service currently provided for in section 307 of the Civil Practice Law and Rules.

Legislative history

1997-98: S.816B/A.5942C -Passed Senate, Held in Assembly Codes Committee 1999-00: S.1830/A.4472 - Passed Senate, Held in Assembly Codes Committee 2001-02: S.4234/A.1862 - Passed Senate, Held in Assembly Codes Committee 2003-04: S.1923 - Passed Senate 2005-06: S.466 - Passed Senate 2007: S.1076 - Passed Senate 2008: S.1076 - Referred to Codes

Fiscal implications

None.

Effective date

First day of November after enactment.