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A06049 Summary:

BILL NOA06049
 
SAME ASSAME AS S04569
 
SPONSORMayer
 
COSPNSRWeinstein, Otis, Buchwald, Fahy
 
MLTSPNSR
 
Amd 412, 828 & 842, Fam Ct Act; amd 236, Dom Rel L
 
Relates to orders for temporary spousal support in conjunction with temporary and final orders of protection in family court and calculation of maintenance cap in family and supreme court; increases the income cap.
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A06049 Actions:

BILL NOA06049
 
02/22/2017referred to judiciary
03/07/2017reported referred to codes
03/22/2017reported
03/23/2017advanced to third reading cal.163
03/29/2017passed assembly
03/29/2017delivered to senate
03/29/2017REFERRED TO JUDICIARY
01/03/2018DIED IN SENATE
01/03/2018RETURNED TO ASSEMBLY
01/03/2018ordered to third reading cal.434
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A06049 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A6049
 
SPONSOR: Mayer
  TITLE OF BILL: An act to amend the family court act and the domestic relations law, in relation to orders for temporary spousal support in conjunction with temporary and final orders of protection in family court and calculation of maintenance cap in family and supreme court This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of his Family Court Advisory and Rules Committee. The Family Protection and Domestic Violence Intervention Act of 1994 (L. 1994, c. 222) provided authority for Family Courts, when issuing orders of protection in family offense cases, to issue temporary orders of child support. This has provided a needed life-saver to petitioners in family offense cases at a particularly vulnerable point in their lives, that is, when they are taking steps to escape alleged domestic violence. This provision has proven invaluable in getting the process started quickly with a temporary order in place. Experience during the two decades under the statute has revealed a significant gap - that is, that it does not provide an analogus safety net to married petitioners in family offense proceedings who do not have minor, dependent children. As the Appellate Division, Third Department noted, in Matter of Childers v. Childers, 260 A.D.2d 767 (3d Dept., 1999), child support, but not spousal support, may be ordered in conjunction with the issuance of an order of protection. As has been evident in cases in the Unified Court System's Integrated Domestic Violence Courts, petitioners in need of temporary spousal support are often older litigants in long-term marriages, who are victims of domes- tic violence, frequently including financial abuse. In many instances, they lack means of their own to cover immediate expenses, particularly the expenses of relocation, as they seek safe refuges from violence. This measure would remedy this gap. It would amend sections 828 and 842 of the Family Court Act to provide authority for the Family Court, when issuing temporary and final orders of protection, to direct the parties to appear, in the same action, within seven business days of the issu- ance of the temporary order of protection for consideration of an order of temporary spousal support. While the parties will be directed to appear with information with respect to income and assets, the measure permits issuance of a temporary order of spousal support on the return date "notwithstanding the respondent's default upon notice and notwith- standing that information with respect to income and assets of the peti- tioner or respondent may be unavailable." Upon making an order for temporary spousal support, the court shall set the spousal support matter down for determination of the final order. As was recognized by the Legislature in enacting recent legislation (L. 2013, c. 526), economic abuse is a significant form of domestic violence and is often inflicted upon elderly, vulnerable family members. See Memo in Support of A. 7400 (L. 2013, c. 526). As recently documented in Under the Radar: The New York State Elder Abuse Study: Final Report, financial abuse is the most common form of abuse reported by the elderly.{1} Even where financial abuse has not been alleged, a married family offense petitioner's lack of income or access to family assets may impede his or her ability to escape to a place of safety, free of domestic violence, and is frequently the reason many domestic violence victims return repeatedly to their abusers before being able to permanently extricate themselves from abusive situations. Often a victim needs a temporary life-line, some means of securing resources to tide him or her over while seeking a more long-term order in a Supreme or Family Court proceeding. This measure would thus provide much needed emergency relief. Finally, the measure would also amend Family Court Act § 412(10) and Domestic Relations Law § 236B(5-a)(b)(5) and § 236B(6)(b)(4) to fix the date of the biennial adjustment of the spousal maintenance "cap" at March 1st, rather than January 31st. It would commence the adjustment process in 2018, since the 2016 adjustment from $175,000 to $178,000 has already been made. This measure would conform the adjustment date to that already in effect for the child support income "cap," self-support reserve and poverty level. This measure, which would have no fiscal impact, would take effect 90 days after it shall have become a law. 2015-16 Legislative History: Senate 5815-A (Sen. Savino) (amended and recommitted to Judiciary) Assembly 7032-A (M. of A. Mayer) (PASSED) 2014 Legislative History: OCA 2014-80 Assembly 9465 (M. of A. Mayer) (reported ref to Codes) {1} See Under the Radar: The New York State Elder Abuse Study: Final Report (Lifespan & Cornell-Weill Medical Center, May 2011), available at: http://ocfs.ny.gov/maintreports/Under %20the%2ORadar%2005% 2012%2011%20final%2Oreport.pdf (reviewed Jan. 6, 2014).
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A06049 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          6049
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 22, 2017
                                       ___________
 
        Introduced  by  M.  of  A.  MAYER, WEINSTEIN, OTIS -- (at request of the
          Office of Court Administration) --  read  once  and  referred  to  the
          Committee on Judiciary
 
        AN  ACT to amend the family court act and the domestic relations law, in
          relation to orders for temporary spousal support in  conjunction  with
          temporary  and  final  orders of protection in family court and calcu-
          lation of maintenance cap in family and supreme court
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section 1. Paragraph (d) of subdivision 2 of section 412 of the family
     2  court  act, as amended by chapter 269 of the laws of 2015, is amended to
     3  read as follows:
     4    (d) "income cap" shall mean up to and including one hundred  [seventy-
     5  five]  seventy-eight  thousand  dollars  of  the  payor's annual income;
     6  provided, however, beginning [January  thirty-first]  March  first,  two
     7  thousand  [sixteen]  eighteen and every two years thereafter, the income
     8  cap amount shall increase by the sum of the  average  annual  percentage
     9  changes  in  the consumer price index for all urban consumers (CPI-U) as
    10  published by the United States  department  of  labor  bureau  of  labor
    11  statistics for the prior two years multiplied by the then income cap and
    12  then  rounded  to  the nearest one thousand dollars. The office of court
    13  administration shall determine and publish the income cap.
    14    § 2. The section heading of section 828 of the family  court  act,  as
    15  amended  by chapter 222 of the laws of 1994, is amended and a new subdi-
    16  vision 5 is added to read as follows:
    17    Temporary order of protection;  temporary  [order]  orders  for  child
    18  support and spousal maintenance.
    19    5.  Notwithstanding  the provisions of section eight hundred seventeen
    20  of this article, where a temporary order  of  spousal  support  has  not
    21  already  been  issued,  the  court may, in addition to the issuance of a
    22  temporary order of protection pursuant to this section, issue  an  order
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD06639-01-7

        A. 6049                             2
 
     1  directing  the parties to appear within seven business days of the issu-
     2  ance of the order in the family court, in the same action, for consider-
     3  ation of an order for temporary spousal support in accordance with arti-
     4  cle four of this act. If the court directs the parties to so appear, the
     5  court  shall  direct the parties to appear with information with respect
     6  to income and assets, but a temporary order for spousal support  may  be
     7  issued  pursuant to article four of this act on the return date notwith-
     8  standing the respondent's default upon notice and  notwithstanding  that
     9  information  with  respect  to  income  and  assets of the petitioner or
    10  respondent may be unavailable.
    11    § 3. Section 842 of the family court act, as amended  by  chapter  526
    12  and  the  closing paragraph as added by chapter 480 of the laws of 2013,
    13  is amended to read as follows:
    14    § 842. Order of protection. An order of protection under section eight
    15  hundred forty-one of this part shall set forth reasonable conditions  of
    16  behavior  to  be observed for a period not in excess of two years by the
    17  petitioner or respondent or for a period not in  excess  of  five  years
    18  upon (i) a finding by the court on the record of the existence of aggra-
    19  vating circumstances as defined in paragraph (vii) of subdivision (a) of
    20  section eight hundred twenty-seven of this article; or (ii) a finding by
    21  the  court  on the record that the conduct alleged in the petition is in
    22  violation of a valid order of protection.  Any  finding  of  aggravating
    23  circumstances pursuant to this section shall be stated on the record and
    24  upon  the  order  of protection. The court may also, upon motion, extend
    25  the order of protection for a reasonable period of time upon  a  showing
    26  of  good  cause  or  consent of the parties. The fact that abuse has not
    27  occurred during the pendency of an order shall not, in  itself,  consti-
    28  tute  sufficient  ground for denying or failing to extend the order. The
    29  court must articulate a basis for its decision on the record. The  dura-
    30  tion of any temporary order shall not by itself be a factor in determin-
    31  ing  the  length or issuance of any final order. Any order of protection
    32  issued pursuant to this section shall specify if an order  of  probation
    33  is  in  effect.  Any order of protection issued pursuant to this section
    34  may require the petitioner or the respondent:
    35    (a) to stay away from the home, school, business or place  of  employ-
    36  ment  of  any  other  party,  the other spouse, the other parent, or the
    37  child, and to stay away from any other specific location  designated  by
    38  the court, provided that the court shall make a determination, and shall
    39  state such determination in a written decision or on the record, whether
    40  to  impose  a  condition pursuant to this subdivision, provided further,
    41  however, that failure to make such a determination shall not affect  the
    42  validity  of such order of protection. In making such determination, the
    43  court shall consider, but shall not  be  limited  to  consideration  of,
    44  whether  the order of protection is likely to achieve its purpose in the
    45  absence of  such  a  condition,  conduct  subject  to  prior  orders  of
    46  protection,  prior incidents of abuse, extent of past or present injury,
    47  threats, drug or alcohol abuse, and access to weapons;
    48    (b) to permit a parent, or a person entitled to visitation by a  court
    49  order or a separation agreement, to visit the child at stated periods;
    50    (c)  to refrain from committing a family offense, as defined in subdi-
    51  vision one of section eight hundred twelve of this act, or any  criminal
    52  offense  against  the  child  or against the other parent or against any
    53  person to whom custody of the  child  is  awarded,  or  from  harassing,
    54  intimidating or threatening such persons;
    55    (d) to permit a designated party to enter the residence during a spec-
    56  ified period of time in order to remove personal belongings not in issue

        A. 6049                             3
 
     1  in  this  proceeding or in any other proceeding or action under this act
     2  or the domestic relations law;
     3    (e)  to  refrain  from  acts  of commission or omission that create an
     4  unreasonable risk to the health, safety or welfare of a child;
     5    (f) to pay the reasonable counsel fees and disbursements  involved  in
     6  obtaining  or enforcing the order of the person who is protected by such
     7  order if such order is issued or enforced;
     8    (g) to require the respondent to participate in a batterer's education
     9  program designed to help end violent behavior, which may include  refer-
    10  ral to drug and alcohol counselling, and to pay the costs thereof if the
    11  person  has  the means to do so, provided however that nothing contained
    12  herein shall be deemed to require payment  of  the  costs  of  any  such
    13  program by the petitioner, the state or any political subdivision there-
    14  of;
    15    (h)  to  provide,  either  directly  or by means of medical and health
    16  insurance, for expenses incurred for medical care and treatment  arising
    17  from the incident or incidents forming the basis for the issuance of the
    18  order;
    19    (i)  1.  to  refrain  from  intentionally injuring or killing, without
    20  justification, any companion animal the respondent knows  to  be  owned,
    21  possessed,  leased,  kept  or  held  by  the petitioner or a minor child
    22  residing in the household.
    23    2. "Companion animal", as used in this section, shall  have  the  same
    24  meaning  as  in  subdivision  five of section three hundred fifty of the
    25  agriculture and markets law;
    26    (j) 1. to promptly return specified identification  documents  to  the
    27  protected  party,  in  whose  favor the order of protection or temporary
    28  order of protection is issued; provided, however, that such  order  may:
    29  (A)  include  any appropriate provision designed to ensure that any such
    30  document is available for use as evidence in this proceeding, and avail-
    31  able if necessary for legitimate use by  the  party  against  whom  such
    32  order  is  issued; and (B) specify the manner in which such return shall
    33  be accomplished.
    34    2. For purposes of this subdivision, "identification  document"  shall
    35  mean  any of the following: (A) exclusively in the name of the protected
    36  party: birth certificate, passport, social security card, health  insur-
    37  ance  or  other  benefits  card, a card or document used to access bank,
    38  credit or other financial accounts or records, tax returns, any driver's
    39  license, and immigration documents including but not limited to a United
    40  States permanent resident card and  employment  authorization  document;
    41  and (B) upon motion and after notice and an opportunity to be heard, any
    42  of  the  following, including those that may reflect joint use or owner-
    43  ship, that the court determines  are  necessary  and  are  appropriately
    44  transferred  to the protected party: any card or document used to access
    45  bank, credit or other financial accounts or records,  tax  returns,  and
    46  any other identifying cards and documents; and
    47    (k)  to  observe such other conditions as are necessary to further the
    48  purposes of protection.
    49    The court may also award custody of the child, during the term of  the
    50  order  of  protection  to  either  parent, or to an appropriate relative
    51  within the second degree. Nothing in this section gives the court  power
    52  to  place  or board out any child or to commit a child to an institution
    53  or agency.
    54    Notwithstanding the provisions of section eight hundred  seventeen  of
    55  this  article,  where a temporary order of child support has not already
    56  been issued, the court may in addition to the issuance of  an  order  of

        A. 6049                             4
 
     1  protection  pursuant to this section, issue an order for temporary child
     2  support in an amount sufficient to meet the needs of the child,  without
     3  a  showing of immediate or emergency need. The court shall make an order
     4  for  temporary  child  support  notwithstanding  that  information  with
     5  respect to income and assets of the respondent may be unavailable. Where
     6  such information is available, the court may make an award for temporary
     7  child support pursuant to the formula set forth in  subdivision  one  of
     8  section  four  hundred thirteen of this act. Temporary orders of support
     9  issued pursuant to this article shall be  deemed  to  have  been  issued
    10  pursuant to section four hundred thirteen of this act.
    11    Upon  making  an  order  for  temporary child support pursuant to this
    12  subdivision, the court shall advise the petitioner of  the  availability
    13  of  child support enforcement services by the support collection unit of
    14  the local department of social services, to enforce the temporary  order
    15  and  to  assist  in  securing continued child support, and shall set the
    16  support matter down for further proceedings in accordance  with  article
    17  four of this act.
    18    Where  the  court determines that the respondent has employer-provided
    19  medical insurance, the court may further direct, as part of an order  of
    20  temporary  support  under  this  subdivision,  that  a  medical  support
    21  execution be  issued  and  served  upon  the  respondent's  employer  as
    22  provided  for  in section fifty-two hundred forty-one of the civil prac-
    23  tice law and rules.
    24    Notwithstanding the provisions of section eight hundred  seventeen  of
    25  this article, where a temporary order of spousal support has not already
    26  been  issued,  the court may, in addition to the issuance of an order of
    27  protection pursuant to  this  section,  issue  an  order  directing  the
    28  parties  to  appear  within  seven  business days of the issuance of the
    29  order in the family court, in the same action, for consideration  of  an
    30  order  for  temporary spousal support in accordance with article four of
    31  this act. If the court directs the parties to so appear, the court shall
    32  direct the parties to appear with information with respect to income and
    33  assets, but a temporary order for spousal support may be issued pursuant
    34  to article four of this act  on  the  return  date  notwithstanding  the
    35  respondent's  default  upon  notice and notwithstanding that information
    36  with respect to income and assets of the petitioner or respondent may be
    37  unavailable.
    38    In any proceeding in which an order of protection or  temporary  order
    39  of protection or a warrant has been issued under this section, the clerk
    40  of the court shall issue to the petitioner and respondent and his or her
    41  counsel  and  to  any  other  person affected by the order a copy of the
    42  order of protection or temporary order of protection and ensure  that  a
    43  copy of the order of protection or temporary order of protection [be] is
    44  transmitted  to  the local correctional facility where the individual is
    45  or will be detained, the state or local correctional facility where  the
    46  individual  is  or  will  be  imprisoned,  and the supervising probation
    47  department or the department of corrections  and  community  supervision
    48  where the individual is under probation or parole supervision.
    49    Notwithstanding  the  foregoing provisions, an order of protection, or
    50  temporary order of protection where applicable, may be entered against a
    51  former spouse and persons who have a  child  in  common,  regardless  of
    52  whether  such  persons  have  been married or have lived together at any
    53  time, or against a member of the same family or household as defined  in
    54  subdivision one of section eight hundred twelve of this article.
    55    In addition to the foregoing provisions, the court may issue an order,
    56  pursuant to section two hundred twenty-seven-c of the real property law,

        A. 6049                             5
 
     1  authorizing the party for whose benefit any order of protection has been
     2  issued  to terminate a lease or rental agreement pursuant to section two
     3  hundred twenty-seven-c of the real property law.
     4    The  protected  party in whose favor the order of protection or tempo-
     5  rary order of protection is issued may not be held to violate  an  order
     6  issued  in his or her favor nor may such protected party be arrested for
     7  violating such order.
     8    § 4. Subparagraph 5 of paragraph (b) of subdivision 5-a of part  B  of
     9  section  236 of the domestic relations law, as amended by chapter 269 of
    10  the laws of 2015, is amended to read as follows:
    11    (5) "Income cap" shall mean up to and including one hundred  [seventy-
    12  five]  seventy-eight  thousand  dollars  of  the  payor's annual income;
    13  provided, however, beginning [January  thirty-first]  March  first,  two
    14  thousand  [sixteen]  eighteen and every two years thereafter, the income
    15  cap amount shall increase by the sum of the  average  annual  percentage
    16  changes  in  the consumer price index for all urban consumers (CPI-U) as
    17  published by the United States  department  of  labor  bureau  of  labor
    18  statistics for the prior two years multiplied by the then income cap and
    19  then  rounded  to  the nearest one thousand dollars. The office of court
    20  administration shall determine and publish the income cap.
    21    § 5. Subparagraph 4 of paragraph (b) of subdivision 6  of  part  B  of
    22  section  236 of the domestic relations law, as amended by chapter 269 of
    23  the laws of 2015, is amended to read as follows:
    24    (4) "Income cap" shall mean up to and including one hundred  [seventy-
    25  five]  seventy-eight  thousand  dollars  of  the  payor's annual income;
    26  provided, however, beginning [January  thirty-first]  March  first,  two
    27  thousand  [sixteen]  eighteen and every two years thereafter, the income
    28  cap amount shall increase by the sum of the  average  annual  percentage
    29  changes  in  the consumer price index for all urban consumers (CPI-U) as
    30  published by the United States  department  of  labor  bureau  of  labor
    31  statistics for the prior two years multiplied by the then income cap and
    32  then  rounded  to  the nearest one thousand dollars. The office of court
    33  administration shall determine and publish the income cap.
    34    § 6. This act shall take effect on the ninetieth day  after  it  shall
    35  have become a law.
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