NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A8572
SPONSOR: McMahon TITLE OF BILL:
An act to amend the family court act, in relation to orders of
protection in child abuse and neglect proceedings in family court
PURPOSE OR GENERAL IDEA OF BILL:
This measure would amend the opening paragraph of section 1056 of the
Family Court Act (FCA) and would add a new subdivision (4-a) to that
section to cure a serious problem confronting child victims of physical
and sexual violence in child protective cases: i.e. by extending the
extremely short duration of orders of protection against an individual
found to have abused or neglected a subject child who is not the child's
parent. The current maximum of two years in abuse and neglect cases is
far shorter than applicable periods for orders in family offense, custo-
dy, visitation, child support and paternity proceedings.
SUMMARY OF PROVISIONS:
Section 1 amends the opening paragraph of subdivision 1 of section 1056
of the family court act.
Section 2 adds a new subdivision 4-a to Section 1056 of the family court
act. Section 3 sets the effective date.
JUSTIFICATION:
Section 1056(1) of the FCA authorizes an order of protection against
respondent parents, persons legally responsible for a child's care and
such persons' spouses in child neglect and abuse proceedings to last
only as long as a child protective dispositional orders of supervision.
Dispositions in child protective cases include, inter alia, release of a
child under supervision for one year, subject to a maximum one-year
extension. Thus, orders of protection against a non-parent, or person
legally responsible for the child, may only last for one year, subject
to a one-year extension even in the most extreme cases of severe phys-
ical or sexual abuse. This leaves children vulnerable to continued harm
in their own homes, when the Family Court's supervision ends. The FCA
and Domestic Relations Law authorize far longer orders with respect to
identical allegations in other categories of cases, e.g., family offense
and custody proceedings.
This measure would remedy the problem. As the law does with orders of
protection in family offense cases, the new subdivision (4-a) provides
that orders of protection issued in child protective proceedings against
individuals who are not the parents of the child, but who were members
of the household at the time of the disposition, may last up to two
years or, upon findings of special circumstances, up to five years,
subject to an annual review.
The definition of special circumstances include physical injury or seri-
ous physical injury to the petitioner or acts constituting a sex offense
caused by the respondent, the use of a dangerous instrument against the
child by the respondent, a history of violations of prior orders of
protection by the respondent, prior convictions for crimes against the
child by the respondent or the exposure of any family or household
member to physical injury by the respondent which constitute an immedi-
ate and ongoing danger to the child, or any member of the child's family
or household. Such orders would be able to be extended upon annual judi-
cial review, modification or vacatur, with notice to all affected
parties. The total period of such order would be no more than two years,
or if there was a finding of special circumstances, five years from the
date of the initial order. This would give the child victim time to
heal: emotionally, psychologically and physically. FCA Article 10 is
designed to help and protect children from injury or mistreatment and to
safeguard their physical, mental and emotional wellbeing. Since the
Court is statutorily empowered to issue an order of protection until a
child's 18th birthday in a custody/visitation matter, it defies logic
that the Court would not have a similar power under a child
abuse/neglect proceeding.
This measure does not create a new class of orders of protection nor
does it impose any penalty or punitive action upon the respondent who
has been found to have committed the abuse or neglect after admission or
trial. Nor does it prevent a parent from contact with their biological
children. Provisions for time-limited orders subject to regular review
would, therefore, be consistent with the requirement for time-limited
orders with authorizations for periodic judicial review as established
by the Court of Appeals in Matter of Sheena D., 8 N.Y.3d 136 (2007).
This bill is critically important to effectuate the purpose of the child
protective article of the Family Court Act, that is "to help protect
children from injury or mistreatment and to help safeguard their phys-
ical, mental and emotional well-being." (FCA '51011)
PRIOR LEGISLATIVE HISTORY:
A7680 referred to Children & Families, S7446 passed Senate
2024: A7680 passed Assembly, S7466 referred to Children & Families
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None
EFFECTIVE DATE:
This measure would take effect 90 days after becoming law.
