Relates to proceedings in family court; requires all transcripts of proceedings or hearings in family court shall be provided to the parties within five days of such proceeding or hearing; requires attorneys for children shall meet monthly with both parents or guardians and submit a report, including, but not limited to each meeting, the non-confidential, substantive portion of any meetings and any communications with the parties and the child or children; increases the compensation of assigned counsel from $158 to $200 and the total amount of reimbursement from $10,000 to $20,000; authorizes the right of a trial by jury for matters of fact in family court proceedings.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A8361A
SPONSOR: Seawright TITLE OF BILL:
An act to amend the family court act, in relation to the timing of
proceedings; to amend the county law and the judiciary law, in relation
to the compensation of assigned counsel; and to amend the civil practice
law and rules, in relation to authorizing a trial by jury in family
court for trying matters of fact
PURPOSE OR GENERAL IDEA OF BILL:
"Mommy's Heart" Transparency in the Family Court System to Protect
Parental Rights
SUMMARY OF PROVISIONS:
Section 1: All Family Court proceedings must be put on the record and a
mandatory window of no more than five days is mandated for transcripts
to be provided to the parties following a proceeding or hearing. Back-
office deals off the record and dismissing one party from a hearing
while then continuing ex parte with the other party is prohibited.
Section 2: Establishment of an independent committee review of all
custody cases in the Family Court to assess how: much the Family Court
judges fail to follow the law, biased and prejudiced judges are toward
one party in a case, and, the extent to which judges fail to follow the
rules governing judicial conduct. Custody and visitation decisions
cannot be rendered based on ex parte and/or sua sponte orders, and the
prolific use by the abusive parent of temporary orders of protection
(TOPS), many via ex parte petitions, which get renewed by the Family
Court for years without due process, are precluded from being issued. No
TOP may last for more than two weeks, whereupon a fair and full eviden-
tiary hearing must be conducted to be able to extend a TOP for up to two
more weeks at a time and each time there must be a fair and full eviden-
tiary hearing for an extension. Any order of protection must provide
the explicit justification and nexus of facts to the need for the TOP,
along with the basis for which the TOP may be removed.
Section 3: The dollar cap and pay rate for 18B attorneys is hereby
increased to $20,000 per case and $200 per hour respectively. A commit-
tee is hereby established to review their effectiveness and to hold 18B
attorneys accountable for their actions. All 185 attorneys must send
copies of the detailed invoices they submit to the paying agency to the
parties they are representing or else they cannot get paid.
Section 4: All Attorneys for Children (AFC), if they want to work on
cases in New York State, are obligated to submit copies (un-redacted) of
all invoices each month they submit for payment, to the parties to the
respective case. Failing to do so will result in nonpayment. Privately
paid for AFC's are hereby forbidden to be used by the courts. AFC's are
required to meet equally with both parents or guardians (if such exist)
and each month provide an activity report to each parent or guardian and
the court of their activities in a case, including each meeting and
communication they have with the parties and children. The content of
the meetings with the children shall not be disclosed to the extent it
would violate attorney/client privilege, but the fact that a meeting or
communication took place with the children, and the substance of those
meetings or communications to the extent not breaching the
attorney/client privilege, shall be disclosed in a monthly activity
report and distributed as described below. Each such report shall be
distributed by the 10th of the month succeeding the month in which such
activities took place. The Office of the Attorney General of New York
shall establish a procedure for parties to file a complaint for
violations by AFC's of this provision within 60 days of the passage of
this bill and shall fully and expeditiously investigate any such
complaints.
Section 5: TRIAL BY JURY IN FAMILY COURT 1. Right to Jury Trial in Fami-
ly Court Cases: Notwithstanding any other provision of law, any party
involved in a dispute before the family court shall have the right to
request a trial by jury for determination of any factual issue. Such a
right shall be invoked in accordance with procedures established by the
appropriate judicial authority, but in no event shall a party be denied
this right if requested in a timely manner.
2. Jury Selection and Composition: The selection and composition of the
jury for family court cases shall be consistent with the processes
utilized for civil trials in NYS Jurisdiction, unless otherwise speci-
fied. 3. Scope of Jury's Determination: In cases where a trial by jury
is requested, the jury's role shall be limited to making factual deter-
minations. Legal conclusions, and the application of those facts to the
relevant laws and standards, shall remain within the discretion of the
presiding judge. 4. Instructions to the Jury: The presiding judge shall
provide the jury with clear instructions concerning the factual issues
they are to decide, ensuring that their determination aligns with the
best interests of any involved minors or other relevant legal standards.
5. Implementation: The appropriate state agency shall develop and
implement guidelines and procedures for ensuring the right to a trial by
jury in family court proceedings, in consultation with stakeholders
including family law practitioners, child welfare experts, and other
relevant parties. 6. Effective Date: TBD..
DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSION (IF APPLICABLE):
Non-applicable.
JUSTIFICATION:
The State of New York's 2015 Integrity Investigation Report Card
released by The Center for Public Integrity in 2015 gave the State of
New York's Family Courts in the categories of "Judicial Accountability"
and "Ethics Enforcement Agencies" a failing grade of "F". Research shows
too many children are taken from the parent who is the victim of abuse
on the simple say so of the abusive parent, without the ability to fight
back and stand up for themselves.
Section 1- would eliminate one of the fundamental problems of how chil-
dren and parents are abused by the system and denied due process of law.
It is a widespread practice that needs to be fixed asap.
Section 2 - many TOPs are issued against the victim of extreme domestic
abuse and never against the abuser. It is appalling and this must be
stopped immediately, and this section would eliminate the denial of due
process and often arbitrary decisions of the Family Courts.
Section 3 - Many 18B attorneys seem to do little or nothing, stay on a
case for a few months, and then ask to withdraw, harming the parties
they represent, while billing the local jurisdiction for the maximum
number of hours allowed without validation of the work they claim to
have done. This section would greatly curtail the misconduct, ineffec-
tiveness and negligence of 18B attorneys.
Section 4 - All too often the AFCs are bought and paid for by a wealthy
parent and controlled by them as well. With transparency, the playing
field could be more balanced and parents and children will be better
protected. AFC's should be required to meet equally with both parents
and every month provide an activity report to each parent and the court
of their activities in a case to reduce the bias that goes on.
These steps would make a significant positive difference to improve an
unacceptable and abysmal score by the Family Courts for "Judicial
Accountability" and "Ethics Enforcement Agencies", protect those from
abuse and exploitation, and set a standard of excellence for New York
State.
PRIOR LEGISLATIVE HISTORY:
None.
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
To be determined.
EFFECTIVE DATE:
To be determined.
STATE OF NEW YORK
________________________________________________________________________
8361--A
2023-2024 Regular Sessions
IN ASSEMBLY
December 13, 2023
___________
Introduced by M. of A. SEAWRIGHT -- read once and referred to the
Committee on Judiciary -- recommitted to the Committee on Judiciary in
accordance with Assembly Rule 3, sec. 2 -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee
AN ACT to amend the family court act, in relation to the timing of
proceedings; to amend the county law and the judiciary law, in
relation to the compensation of assigned counsel; and to amend the
civil practice law and rules, in relation to authorizing a trial by
jury in family court for trying matters of fact
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The family court act is amended by adding a new section
2 169-a to read as follows:
3 § 169-a. Proceedings; transcript. In any proceeding or hearing
4 commenced pursuant to the social services law in which the family court
5 has exercised jurisdiction or pursuant to this chapter, all transcripts
6 of such proceedings or hearings shall be provided to each party to the
7 case within five days of such proceeding or hearing.
8 § 2. Section 249-b of the family court act is amended by adding a new
9 subdivision (c) to read as follows:
10 (c) 1. On or before the tenth day of the month next succeeding the
11 month in which any activities or communications occurred, all attorneys
12 for children shall submit un-redacted copies of invoices submitted for
13 pay to the parties of the respective cases and to the court. Failure to
14 submit such invoices shall result in nonpayment of such invoices.
15 2. Attorneys for children shall meet monthly with both parents or
16 guardians and submit a report, including, but not limited to each meet-
17 ing, the non-confidential, substantive portion of any meetings and any
18 communications with the parties and the child or children.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD13524-02-4
A. 8361--A 2
1 3. The attorney general shall establish a procedure for any party to
2 file a complaint for any violation by an attorney for children.
3 § 3. Subdivisions 1 and 2 of section 722-b of the county law, as
4 amended by section 1 of part GG of chapter 56 of the laws of 2023, are
5 amended to read as follows:
6 1. All counsel assigned in accordance with a plan of a bar association
7 conforming to the requirements of section seven hundred twenty-two of
8 this article whereby the services of private counsel are rotated and
9 coordinated by an administrator shall at the conclusion of the represen-
10 tation receive for representation of a person in all cases governed by
11 this article, including all representation in an appellate court,
12 compensation at a rate of [one] two hundred [fifty-eight] dollars per
13 hour for time expended in court before a magistrate, judge or justice
14 and [one] two hundred [fifty-eight] dollars per hour for time reasonably
15 expended out of court, and shall receive reimbursement for expenses
16 reasonably incurred. Counsels shall provide the party to whom the
17 attorneys represent, with a copy of their itemized, nonredacted,
18 invoices on a monthly basis within ten days following the month in which
19 services are incurred.
20 2. Except as provided in subdivision three of this section, compen-
21 sation for time expended in providing representation pursuant to subdi-
22 vision one of this section shall not exceed [ten] twenty thousand
23 dollars.
24 § 4. Subdivision 3 of section 35 of the judiciary law, as amended by
25 section 3 of part GG of chapter 56 of the laws of 2023, is amended to
26 read as follows:
27 3. a. No counsel assigned pursuant to this section shall seek or
28 accept any fee for representing the person for whom he or she is
29 assigned without approval of the court as herein provided. Whenever it
30 appears that such person is financially able to obtain counsel or make
31 partial payment for the representation, counsel may report this fact to
32 the court and the court may terminate the assignment or authorize
33 payment, as the interests of justice may dictate, to such counsel. Coun-
34 sel assigned hereunder shall at the conclusion of the representation
35 receive compensation at a rate of [one] two hundred [fifty-eight]
36 dollars per hour for time expended in court, and [one] two hundred
37 [fifty-eight] dollars per hour for time reasonably expended out of
38 court, and shall receive reimbursement for expenses reasonably incurred.
39 b. For representation upon a hearing, compensation and reimbursement
40 shall be fixed by the court wherein the hearing was held and such
41 compensation shall not exceed [ten] twenty thousand dollars. For repre-
42 sentation in an appellate court, compensation and reimbursement shall be
43 fixed by such court and such compensation shall not exceed [ten] twenty
44 thousand dollars. In extraordinary circumstances the court may provide
45 for compensation in excess of the foregoing limits.
46 § 5. The civil practice law and rules is amended by adding a new
47 section 4101-a to read as follows:
48 § 4101-a. Determination of factual issue; family court. 1. Notwith-
49 standing any other provision of law, any party involved in a dispute
50 before the family court shall have the right to request a trial by jury
51 for determination of any factual issue. Such a right shall be invoked in
52 accordance with procedures established by the appropriate judicial
53 authority, but in no event shall a party be denied this right if
54 requested in a timely manner.
55 2. The selection and composition of the jury for family court cases
56 shall be consistent with the processes pursuant to this article.
A. 8361--A 3
1 3. In cases where a trial by jury is requested, the jury's role shall
2 be limited to making factual determinations. Legal conclusions, and the
3 application of those facts to the relevant laws and standards, shall
4 remain within the discretion of the presiding judge.
5 4. The presiding judge shall provide the jury with clear instructions
6 concerning the factual issues they are to decide, ensuring that any
7 determination aligns with the best interests of any involved minors or
8 other relevant legal standards.
9 5. The office of court administration, in consultation with stakehold-
10 ers including, but not limited to, family law practitioners, child
11 welfare experts, and other relevant parties, shall develop and implement
12 guidelines and procedures for ensuring the right to a trial by jury in
13 family court proceedings.
14 § 6. This act shall take effect on the one hundred eightieth day after
15 it shall have become a law. Effective immediately, the addition, amend-
16 ment and/or repeal of any rule or regulation necessary for the implemen-
17 tation of this act on its effective date are authorized to be made and
18 completed on or before such effective date.
