Relates to the basis for removal of children; provides a safe harbor for a non-abusive spouse to report abuse while retaining custody of children

Summary of provisions

Sections 1 and 2 of describe the legislative intent of the bill, recount the struggles of the individual- "Melinda"- after whom it is named, and explain the dilemma that parents like Melinda face in reporting domestic abuse.

Section 3 adds a new subdivision (k) to section 1012 of the Family Court Act to define "domestic abuse" as either (i) any act that would constitute a violation of the Penal Law and resulted in actual physical or emotional injury or created a substantial risk of physical or emotional harm; or (ii) any other abuse, including verbal or psychological abuse, that resulted in actual physical or emotional injury or created a substantial risk of physical or emotional harm.

Section 4 adds a new subdivision 1-a to section 1017 of the Family Court Act. This new subdivision would apply where both parents are "respondents" (defendants) in the child placement proceeding. The bill mandates the court in such a proceeding to deem one of the respondent parents a "non-respondent" for purposes of the removal order if (1) such respondent parent has been subjected to domestic abuse by the other respondent spouse; (2) such abused respondent reported the incident of domestic violence precipitating the removal hearing (3) such abused respondent has not been found neglectful or abusive towards the child or children at issue; and (4) there have been no instances of sexual crimes or murder, or incidents involving the disfigurement of the child or children at issue. If these factors are satisfied, the court shall award custody to such judicially deemed non-respondent parent provided that such custody is in the best interest of the child.

Section 5 adds a new paragraph (vi) to section 1022(a) of the Family Court Act, relating to preliminary child placement orders issued prior to the filing of a petition, to require a court that determines that a respondent parent is a non-respondent parent for reasons set out in section 1-a to issue a temporary order of protection against the respondent abuser. Section 6 adds a new paragraph (vi) of section 1027(b) of the Family Court, relating to placements orders issued after filing of a petition, to likewise mandate the court to issue an order of protection against the abuser.

Section 7 amends subdivision (a) of section 1028 of the Family Court Act, which relates to the procedure for applications to return

temporarily removed children. Current law provides that a court shall hold a hearing for the return of such a temporarily removed children upon good cause shown. Section 7 provides that a basis for a court's finding of good cause shall be its determination that a respondent parent at the prior removal hearing was a non-respondent parent under the newly created section 1017 of the Family Court Act.

Section 8 establishes that the bill shall take effect immediately.

Current law

It is protocol for Child Protective Services to respond to child abuse by performing an emergency removal of the child, if necessary, and commencing legal proceedings to obtain a court order removing the child from his or her home. These proceedings are commenced against the parents of the child, including the innocent parent who reported the abuse. Under current law, both parents are then deemed "respondent" parents for the purpose of the temporary placement proceeding. Where both parents are respondents, the court is directed to make a preliminary order awarding custody either (1) to a relative or other suitable person, or (2) in the absence of such a person, to foster care. Such order of placement remains in effect until a final determination of custody is made at a permanency hearing, unless the court vacates or modifies its preliminary order in the interim.

Justification

This bill addresses a dilemma faced by many parents who are victims of domestic violence. One parent in New York that struggled with this dilemma is "Melinda," whose full name is not used to protect her family's privacy. Melinda is a woman suffering from battered person syndrome as a result of over twenty years of physical and psychological abuse by her husband. Like many parents who suffer from battered person syndrome, Melinda accepted her abuse with the belief that her children needed a father. Eventually, the abuse was directed at the children, prompting Melinda to warn her husband that she would go to the authorities if the abuse continued. In response, Melinda's husband issued his own warning: that if she were to report him, Child Protective Services would take their children away.

Unfortunately, as indicated in the "Current Law" section, her husband's threat was not unfounded. Current law does not adequately protect the interests of victims of domestic violence, who are deemed virtual accomplices in the abuse despite often being the party who reported the abuse in the first place. This is fundamentally unfair. The law should not lend credence to the threats of abusers who coerce their victims into remaining silent about domestic violence. Instead, the law should allow good parents to report domestic violence with the confidence that they will not be separated from their children for doing so. This bill achieves that goal while protecting the interests of the child through several safeguards. First, where the court deems a victim parent a "non-respondent" and awards custody to that parent, the court shall issue a protection order against the abusive parent removing such parent from the child's home. Second, the court is prohibited from awarding custody to a non-respondent parent where such parent has been neglectful or where serious crimes such as murder or sexual crimes have been committed. Third, the court shall only award custody to the victim parent if it is in the best interests of the child. This grant of judicial discretion will allow courts to take

into account other relevant circumstances not explicitly provided for in this bill.

Legislative history

New bill.

Fiscal implications

None.

Effective date

This act shall take effect immediately.