Relates to orders of protection in matrimonial proceedings and to violation of orders of protection and temporary orders of protection and probation in matrimonial and family court proceedings

The Family Protection and Domestic Violence Intervention Act of 1994 was accompanied by .a legislative finding that "there are few more prevalent or more serious problems confronting the families and households of New York than domestic violence. ...The victims of family offenses must be entitled to the fullest protections of the civil and criminal laws." L. 1994, c. 222, § 1. To that end, concurrent civil and criminal jurisdiction was provided both for initial issuance and for enforcement of orders of protection. In addition to enhancing criminal penalties for violations of orders of protection, subsequent amendments strengthened civil enforcement remedies, both in Family and Supreme Courts, most recently, the firearms license and surrender remedies contained in the recently enacted "SAFE" Act. See, e.g., L. 1996, c. 644; L. 1999, c. 606, 635; L. 2013, c. 1. However, fragmentation and gaps in the civil enforcement provisions of both the Family Court Act and the Domestic Relations Law impede fulfillment of the promise of the 1994 legislation as well as the effectiveness of later enactments.

The instant measure would amend the Family Court Act and the Domestic Relations Law to ensure equity and provide a clear road map for civil enforcement of orders of protection in both Family and Supreme Courts. The measure clarifies that all of the violation procedures and consequences in Article B of the Family Court Act govern violations of orders of protection and temporary orders of protection issued in family offense, child support, paternity, child custody, visitation, divorce and other matrimonial proceedings, thus building upon incorporation in the SAFE Act of firearms license and suspension remedies into these provisions of the Family Court Act and Domestic Relations Law. Significantly, the measure would incorporate conditions of orders of protection contained in Family Court family offense and custody provisions that were omitted from the conditions enumerated for orders of protection in matrimonial orders of protection, specifically, conditions regarding participation in batterers' education programs and compensation for medical care and treatment.

Additionally, consistent with chapter 579 of the Laws of 2003, this measure would amend Family Court Act § 841(c) to authorize Family Court to place a respondent on probation for a period of up to two years or, where an order of protection pursuant to Family Court Act 842 has been issued for five years, a period of up to five years. Since Family Court Act § 841 explicitly authorizes concurrent issuance of both an order of probation and an order of protection as a disposition of an Article 8 family offense proceeding, consistency in the law dictates that the duration of both orders should be the same. Indeed, when the Family Court Act was first enacted in 1962, both the

duration of probation and of orders of protection were set at one year. See L. 1962, c. 686. Clearly, the duration of probation supervision over a respondent in a family offense matter should be coextensive with the duration of the order of protection, i.e., coextensive with the period of time determined by the Court as the period necessary to protect a victim of family violence from suffering further violence.

Violation procedures would be clarified by the incorporation by reference in sections 430, 446-a, 550, 552, 655 and 656-a of the Family Court Act of the following:

*procedures contained in Family Court Act § 846 for filing a violation petition, serving notice upon, and, if necessary, apprehending the respondent, and obtaining either a determination in Family Court or a transfer of the matter to a criminal court;

*remedies contained in Family Court Act §§ 842-a and 846-a that are available to the Family Court once a willful violation of an order of protection or temporary order of protection has been found;* and

*options contained in Family Court Act § 847 for a victim of an alleged act constituting a family offense to seek the filing of an accusatory instrument in a criminal court**, as well as to file a new family offense petition or a violation petition.

Further, section 846-a of the Family Court Act would be amended to more clearly delineate the powers of Family Court to impose sanctions upon finding a willful violation of an order of protection or temporary order of protection and to modify or issue a new order of protection or temporary order of protection. judicial authority to place a violator on probation and to require, as a condition of probation, inter alia, that the violator participate in and pay the costs of a batterer's education program would be set forth - consistent with the statutorily-required evaluation of the 1994 legislation by the State Office for the Prevention of Domestic Violence and Division of Criminal Justice Services. Where a violator already is on probation, the Court could revoke or modify the order of probation and order any other remedy. Additionally, this measure would clarify the Court's power to compel payment of the protected party's legal fees and costs, fees and costs for the child's attorney, restitution and medical expenses, as well as the Court's authority to suspend an order of visitation or require that visitation be supervised. None of these are new powers; all are powers currently exercised by the Courts. See, e.g., Matter of C.B. v. J.U., 5 Misc.3d 1004 (Sup. Ct., N.Y. Co., 2004)(Unrep.) (supervised visitation ordered).

Finally, consolidating several provisions, the measure also would enumerate options available to a Court to commit a violator to jail for up to six months per violation, revoke or suspend a firearms license, hold a violator ineligible to receive a firearms license and direct surrender of firearms. A similar enumeration of enforcement remedies would be added to section 240(3-d) and incorporated by reference in section 252(9] of the Domestic Relations Law. With increased issuance of temporary and permanent orders of protection in matrimonial proceedings, specificity in the Domestic Relations Law as

to the consequences for violations is absolutely critical. Section 7(b) of Article 6 of the State Constitution grants Supreme Court the powers of Family Court, thereby conferring upon it authority to apply the provisions in Article 8 of the Family Court Act in matrimonial proceedings. However, explicit articulation in the Domestic Relations Law of the full range of powers of Supreme Court with respect to violations of orders of protection and temporary orders of protection would add needed clarity to the statutory framework and facilitate a more effective response to domestic violence incidents occurring in the context of matrimonial proceedings.

By prescribing procedures and remedies for violations of orders of protection and by authorizing Family Court probation periods to be coextensive with the duration of family offense orders of protection, this measure will significantly enhance the courts' capacity to provide strong civil remedies - meaningful alternatives to criminal prosecutions - to protect victims of domestic violence and provide accountability for their abusers.

This measure, which would have no fiscal impact upon the State, would take effect 90 days after becoming a law and apply to violations of orders of protection and temporary orders of protection committed on or after such date.

Legislative History:

None. New proposal.

* In child support and paternity cases, these remedies would be available in addition to those already provided for violations of child support orders pursuant to Article 4, Part 5 of the Family Court Act, ** This option is, of course, circumscribed by considerations of prosecutorial discretion and, if the elements of the crime alleged are identical to those alleged in a Family Court violation petition, by constitutional double jeopardy principles. See United States v. Dixon, 509 U.S. 688 (1993); People v. Wood, 95 N.Y.2d 509 (2000); People v Arnold,174 Misc.2d 585 (Sup. CL, Kings Co., 1997). Pursuant to chapter 125 of the Laws of 1999, a complainant's election to proceed in Family Court does not divest a criminal court of jurisdiction to proceed.