Relates to the creation of Melinda's Law in relation to the basis for removal of children

Summary of provisions

Section 1 of this bill provides that this act will be known as "Melinda's Law."

Section 2 of this bill provides for the legislative intent. Threats by the abusive spouse to call Child Protective Services are often used as a means to compel subjugation from the non-abusive spouse. This was the case for Melinda. The abuse she and her children suffered at the hands of her husband was horrific, and her husband used the threat of her children being taken away from her to keep her in the abusive relationship.

Section 3 of this bill amends section 1012 of the Family Court Act, adding a new subdivision (1) to define "domestic violence." "Domestic violence" is defined as any conduct which would constitute an offense in the penal law, and created a substantial risk of physical or emotional harm regardless of whether such injury occurred, or any other abuse that creates a substantial risk of physical or emotional harm to such person or such person's child, regardless of whether such harm occurred, including but not limited to verbal, emotional or psychological abuse, including slapping. A new subdivision (m) is also added to define "victim spouse or domestic partner subjected to domestic violence." This is defined as the respondent spouse or domestic partner who is the non-abusive spouse or domestic partner, and is determined to be subjected to domestic violence as defined by the previous subdivision (1).

Section 4 of this bill amends section 1017 of the Family Court Act by adding a new subdivision 1-a to provide for procedure determining whether there is a suitable person related to the child for custody purposes in the case of domestic violence.

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, 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 t o take into account other relevant circumstances not explicitly provided for in this bill.

Legislative history

2014: S.4691 - Referred to Children and Families 2013: S.4691 - Referred to Children and Families

Fiscal implications

None to the State

Effective date

This act shall take effect immediately.