S T A T E   O F   N E W   Y O R K
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                                  10080

                          I N  A S S E M B L Y

                               May 3, 2012
                               ___________

Introduced  by  M.  of A. ESPINAL, GRAF -- read once and referred to the
  Committee on Children and Families

AN ACT to amend the family court act,  in  relation  to  the  basis  for
  removal of children

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. This act shall be known and  may  be  cited  as  "Melinda's
law".
  S  2.  Legislative  intent.  The legislature hereby finds and declares
that in cases of battered spouse syndrome the abuse sometimes moves from
the spouse to the children. Once the abusive spouse begins to  over-dis-
cipline  the children, they will often use threats or the removal of the
children by child protective services as a means to  compel  subjugation
from  the  non-abusive spouse.  In addition, the abusive spouse prevents
the reporting of such incidents to child protective services  by  making
the  non-abusive  spouse an accomplice in this abuse. Under this threat,
children  are  subjected  to  escalating  abuse  that  could  have  been
prevented  if  the  non-abusive  spouse had a safe harbor to report such
abuse at the early stages without fear of losing their children. By this
act the legislature intends to take such  tool  away  from  the  abusive
spouse  by  providing  the non-abusive spouse a way to report such inci-
dents without fear of having their children removed from their custody.
  The sequence of events above are an apt description of "Melinda".
  Melinda is a woman suffering from battered women's syndrome.  She  has
been abused by her husband over a twenty year period. The abuse had been
verbal,  psychological,  and  physical.  She  has taken the abuse in the
belief that her children needed a father.
  Recently the abuse has been transferred to the  children.  It  started
with  excessive  spanking, locking a young teenager in the basement, and
pushing a five year old to the ground.
  Melinda confronted her husband and put herself between her husband and
her children resulting in a black-eye (to Melinda).
  She told her husband that she would not let him hit the  children  and
would call the police and have him arrested.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD15512-02-2

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  Her  husband  responded  that  if  she called the police, her children
would be taken away from her by Child Protective Services.
  The husband recently graduated to hitting his teenage son with a wood-
en rod leaving welts.
  The  abuse  in  this cycle of domestic violence is escalated over time
when the abuser believes that the non-abusive  parent  or  caretaker  is
afraid to report such abuse, under the fear of losing their children.
  By  creating a safe harbor under Melinda's Law we have the opportunity
to prevent the escalation of abuse to both the  spouse  victim  and  the
children who are the victims of domestic violence.
  S  3.  Section 1017 of the family court act is amended by adding a new
subdivision 1-a to read as follows:
  1-A. (A) IN DETERMINING WHETHER THERE  IS  A  SUITABLE  NON-RESPONDENT
PARENT  OR  OTHER  PERSON  RELATED TO THE CHILD WITH WHOM SUCH CHILD MAY
APPROPRIATELY RESIDE UNDER SUBDIVISION ONE OF THIS SECTION AND  IF  BOTH
PARENTS ARE RESPONDENTS THE COURT SHALL INQUIRE AS TO THE FOLLOWING:
  (I)  WHETHER  EITHER  RESPONDENT SUFFERS FROM BATTERED SPOUSE SYNDROME
AND IF SO;
  (II) WHETHER SUCH BATTERED SPOUSE REPORTED THE INCIDENT  PRECIPITATING
A REMOVAL ORDER OR HEARING UNDER THIS ARTICLE AND IF SO;
  (III)  WHETHER  SUCH BATTERED SPOUSE HAS BEEN NEGLECTFUL OR ABUSIVE IN
THEIR BEHAVIOR TOWARDS THE CHILD OR CHILDREN AT ISSUE.
  (B) IF THE COURT SHALL DETERMINE UNDER PARAGRAPH (A) OF THIS  SUBDIVI-
SION  THAT  A  RESPONDENT IS A BATTERED SPOUSE AND REPORTED THE INCIDENT
PRECIPITATING THE ORDER OR HEARING UNDER THIS  ARTICLE  THEN  THE  COURT
SHALL  DEEM  SUCH  BATTERED  SPOUSE A NON-RESPONDENT FOR PURPOSES OF THE
REMOVAL ORDER OR HEARING; PROVIDED THAT, SUCH  BATTERED  SPOUSE  IS  NOT
NEGLECTFUL OR ABUSIVE IN THEIR BEHAVIOR TOWARDS THE CHILD OR CHILDREN AT
ISSUE.  IF  THE  COURT  SO  FINDS, THE COURT SHALL AWARD CUSTODY TO SUCH
NON-RESPONDENT PARENT PROVIDED THAT SUCH CUSTODY IS IN THE  BEST  INTER-
ESTS OF THE CHILD OR CHILDREN.
  (C)  THE COURT MAY CONDUCT IN CAMERA INTERVIEWS, BAR THE APPEARANCE OF
THE RESPONDENT ABUSER OR TAKE ANY OTHER  STEPS  AS  IT  DEEMS  NECESSARY
WITHIN  ITS  STATUTORY AND CONSTITUTIONAL POWERS TO DETERMINE WHETHER OR
NOT A RESPONDENT IS A BATTERED SPOUSE WITHIN THE MEANING OF SUBPARAGRAPH
(I) OF PARAGRAPH (A) OF THIS SUBDIVISION.
  (D) THIS SUBDIVISION SHALL NOT APPLY TO INSTANCES  OF  SEXUAL  CRIMES,
MURDER  OR  WHERE THERE HAS BEEN PRIOR INCIDENTS INVOLVING DISFIGUREMENT
OF THE CHILD OR CHILDREN AT ISSUE.
  S 4. Paragraphs (vi) and (vii) of subdivision (a) of section  1022  of
the  family  court  act are renumbered paragraphs (vii) and (viii) and a
new paragraph (vi) is added to read as follows:
  (VI) IF THE COURT SHALL DETERMINE, PURSUANT TO  SUBDIVISION  ONE-A  OF
SECTION  ONE THOUSAND SEVENTEEN OF THIS ARTICLE THAT A RESPONDENT PARENT
IS A NON-RESPONDENT FOR THE REASONS GIVEN THEREUNDER,  THE  COURT  SHALL
ISSUE  A  TEMPORARY  ORDER  OF  PROTECTION AGAINST THE RESPONDENT ABUSER
PURSUANT TO PARAGRAPH (V) OF THIS SUBDIVISION.
  S 5. Subdivision (b) of section  1027  of  the  family  court  act  is
amended by adding a new paragraph (vi) to read as follows:
  (VI)  IF  THE  COURT SHALL DETERMINE, PURSUANT TO SUBDIVISION ONE-A OF
SECTION ONE THOUSAND SEVENTEEN OF THIS ARTICLE THAT A RESPONDENT  PARENT
IS  A  NON-RESPONDENT  FOR THE REASONS GIVEN THEREUNDER, THE COURT SHALL
ISSUE A TEMPORARY ORDER OF  PROTECTION  AGAINST  THE  RESPONDENT  ABUSER
PURSUANT TO PARAGRAPH (V) OF THIS SUBDIVISION.

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  S  6.  Subdivision  (a)  of  section  1028 of the family court act, as
amended by chapter 41 of the  laws  of  2010,  is  amended  to  read  as
follows:
  (a) Upon the application of the parent or other person legally respon-
sible  for  the  care  of a child temporarily removed under this part or
upon the application of the child's attorney for an order returning  the
child,  the  court  shall  hold a hearing to determine whether the child
should be returned (i) unless there  has  been  a  hearing  pursuant  to
section  one thousand twenty-seven of this article on the removal of the
child at which the parent or other person legally  responsible  for  the
child's  care  was  present and had the opportunity to be represented by
counsel, or (ii) upon good cause shown, WHICH SHALL INCLUDE A FINDING BY
THE COURT, AT ANY TIME IN THE PROCEEDINGS, THAT A RESPONDENT PARENT IS A
NON-RESPONDENT PURSUANT TO SECTION ONE THOUSAND SEVENTEEN OF THIS  ARTI-
CLE.  Except  for  good  cause  shown, such hearing shall be held within
three court days of the application and shall  not  be  adjourned.  Upon
such  hearing,  the  court  shall grant the application, unless it finds
that the return presents an imminent risk to the child's life or health.
If a parent or other person legally responsible for the care of a  child
waives his or her right to a hearing under this section, the court shall
advise  such  person  at that time that, notwithstanding such waiver, an
application under this section may  be  made  at  any  time  during  the
pendency of the proceedings.
  S 7. This act shall take effect immediately.