Relates to probation in child support, delinquency, persons in need of supervision and family offense proceedings

Chapter 97 of the Laws of 2011 made far-reaching changes to the provisions of Family Court Act § 176 regarding orders of probation in family offense, child support, juvenile delinquency (JD) and persons in need of supervision (PINS) proceedings. Section 176, originally enacted in 1933 and incorporated into the Family Court Act in 1962, had "(t)hrough almost eighty years of experience...proven useful and uncon- troversial." Sobie, Practice Commentaries, Family Court Act § 176 (McKinney's, 2011). Unfortunately, the changes made by chapter 97 have created significant controversy. They contradict other venue provisions of the Family Court Act and have imposed substantial burdens upon adults and juveniles subject to orders of probation, as well as upon the Family Court. This measure is designed to ameliorate these problems.

First, as to JD and PINS cases in which the youth resides in a jurisdic- tion other than that in which probation had been ordered, the measure amends Family Court Act § 176(1) to require the court to transfer probation supervision to the probation department in the jurisdiction of the probationer's residence, including in cases in which the probationer's relocation occurs subsequent to issuance of an order of probation. In other cases involving orders of probation, the court would have discretion to transfer probation supervision to the jurisdiction in which the probationer resides. Importantly, the measure eliminates the provision in the 2011 statute that placed responsibility upon probation- ers, whether adult or juvenile, to request permission from the court to relocate their residences and gave the court authority to rule upon such requests. That provision is over-broad in the context of an adult proba- tioner in a child support or family offense case and is particularly inappropriate when applied to a JD or PINS case, where the probationer's parents, not the juvenile probationer, control decisions regarding where the family resides.

Second, the measure amends sections 171 and 175 of the Family Court Act to indicate that its provisions regarding venue for all proceedings to enforce or modify Family Court orders, including proceedings for violations of probation, do not apply to probation-related proceedings involving juveniles in PINS and JD proceedings. Proceedings involving juveniles placed on probation in such cases would instead be governed by Family Court Act §176(2). That section is amended to provide that a transfer of probation supervision to the jurisdiction in which the probationer resides creates a rebuttable presumption that subsequent

proceedings regarding the probation order, including proceedings for a probation violation or proceedings to extend the duration or modify the conditions of probation, should be heard in the county providing the supervision. The presumption would be rebutted if Family Court in the jurisdiction providing the supervision "determines that there is a good cause to return the proceeding" to the court that issued the order of probation.

Significantly, the presumption would not apply to the wide range of other post-dispositional proceedings in JD and PINS proceedings that are unrelated to the order of probation, since petitioners and the Family Courts in such cases retain discretion to exercise other venue options. See, e.g., Family Court Act §§355.1, 761,762, 780. Family Court Act 174 provides that Family Court, upon good cause, may transfer venue to any county in which a proceeding may have been filed and must transfer venue if it had been improperly lodged. This measure thus resolves the conflicting venue provisions by applying the presumption in favor of the probationer's county of residence only to those JD and PINS proceedings that pertain directly to the order of probation.

In limiting transfer of Family Court proceedings in JD and PINS cases to those related specifically to the order of probation, the measure would conform the statutory language to the construction given by the Court of Appeals to analogous language applicable to post-dispositional criminal proceedings. CPL §410.80(2), upon which the 2011 amendments to Family Court Act § 176 were based, provides that once probation supervision over a criminal defendant has been transferred, the court in the probationer's county of residence "shall assume all powers and duties of the sentencing court and shall have sole jurisdiction in the case..." However, the Court of Appeals held, in People v. Mitchell, 15 N.Y.3d 93 (2010), that, although the phrase "sole jurisdiction" appears to divest the sentencing court of jurisdiction over all post-dispositional proceedings, the Legislature simply intended to transfer "the full range of powers and duties necessary for the Judiciary to carry out its responsibilities to enforce the terms and conditions of probationers, and to deal with forfeitures and disabilities," but did not intend to deprive the sentencing court of jurisdiction to rule upon post-judgment motions under Article 440 of the CPL.

Moreover, in limiting the presumptive transfer provision to JD and PINS cases, the measure leaves intact the venue provisions applicable in family offense and child support cases. Family Court Act §818, for exam- ple, provides that a petitioner in a family offense case may file in the county where the offense allegedly occurred or in any county where any of the parties reside, which may include a domestic violence shelter to which a petitioner has fled for safety. Venue in child support proceedings, pursuant to Family Court Act §419, may be in any county in which a party resides and may be transferred by Family Court, upon application, in accordance with CPLR article five.

Third, the measure eliminates an unnecessary burden and unfunded mandate imposed upon Family Courts by the court records transfer provisions of

chapter 97 of the Laws of 2011. That statute requires Family Courts to transfer all court records immediately upon a transfer of probation supervision, even when there has been no probation violation or other probation-related post-dispositional proceeding pending in the county that is providing probation supervision and even when the records may include years of litigation entirely unrelated to the order of probation. In order to limit court records transfer requirements to those records that are necessary for actual proceedings, the measure amends Family Court Act § 173 to provide that where an action, includ- ing, inter alia, an action to modify, extend or enforce an order of probation, has been filed in a county other than the county that issued the order, Family Court in the county in which the action has been filed must request the record from the court that issued the order and that court must transmit a copy of the record that pertains to the order of probation forthwith "by electronic or other means." The measure thus targets only the particular records that would be relevant to the pend- ing proceeding, requires transmittal only at such time as the records are actually needed by the court and patties and recognizes that an increasing number of Family Courts are minimizing the use of paper records through electronic scanning.

Finally, the measure treats New York City as one jurisdiction, rather than as five individual counties, with respect to Family Court Act 176. The City's Department of Probation covers all five counties and is thus able to transfer probation supervision internally without court orders. Transfers of proceedings and records within the five courts that comprise the New York City Family Court are likewise accomplished easi- ly.

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

Legislative history

None. New proposal.