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

                                  4846

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            February 8, 2011
                               ___________

Introduced by M. of A. WRIGHT -- read once and referred to the Committee
  on Judiciary

AN  ACT  to  amend  the  family  court  act,  in  relation  to orders of
  protection in family offense proceedings; counseling for children

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

  Section  1. Section 842 of the family court act, as amended by chapter
222 of the laws of 1994, the opening paragraph as separately amended  by
chapters  325  and  341 of the laws of 2010, subdivisions (a), (b), (c),
(d) and (e) as amended and subdivision (j) as added by  chapter  483  of
the laws of 1995, subdivision (i) as added and subdivision (j) as relet-
tered  by chapter 253 of the laws of 2006, the second undesignated para-
graph as amended by chapter 325 of the laws of 2010, the third  undesig-
nated paragraph as amended by chapter 224 of the laws of 1994, the sixth
undesignated  paragraph as added by section 8 of part D of chapter 56 of
the laws of 2008, the seventh undesignated paragraph as amended by chap-
ter 326 of the laws of 2008 and the closing paragraph as added by  chap-
ter 73 of the laws of 2007, is amended to read as follows:
  S  842.  Order  of  protection.   An order of protection under section
eight hundred forty-one of this part shall set forth  reasonable  condi-
tions of behavior to be observed for a period not in excess of two years
by  the  petitioner  or respondent or for a period not in excess of five
years upon (i) a finding by the court on the record of the existence  of
aggravating  circumstances  as defined in paragraph (vii) of subdivision
(a) of section eight hundred twenty-seven of this  article;  or  (ii)  a
finding by the court on the record that the conduct alleged in the peti-
tion  is  in  violation  of  a valid order of protection. Any finding of
aggravating circumstances pursuant to this section shall  be  stated  on
the  record  and  upon the order of protection. The court may also, upon
motion, extend the order of protection for a reasonable period  of  time
upon  a  showing  of good cause or consent of the parties. The fact that

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03177-01-1
              

A. 4846                             2

abuse has not occurred during the pendency of an  order  shall  not,  in
itself,  constitute  sufficient  ground for denying or failing to extend
the order. The court must articulate a basis for  its  decision  on  the
record.  The  duration  of  any temporary order shall not by itself be a
factor in determining the length or issuance of any final  order.    Any
order  of protection issued pursuant to this section shall specify if an
order of probation is in effect. Any order of protection issued pursuant
to this section may require the petitioner or the respondent:
  (a) to stay away from the home, school, business or place  of  employ-
ment  of  any  other  party,  the other spouse, the other parent, or the
child, and to stay away from any other specific location  designated  by
the court, provided that the court shall make a determination, and shall
state such determination in a written decision or on the record, whether
to  impose  a  condition pursuant to this subdivision, provided further,
however, that failure to make such a determination shall not affect  the
validity  of such order of protection. In making such determination, the
court shall consider, but shall not  be  limited  to  consideration  of,
whether  the order of protection is likely to achieve its purpose in the
absence of  such  a  condition,  conduct  subject  to  prior  orders  of
protection,  prior incidents of abuse, extent of past or present injury,
threats, drug or alcohol abuse, and access to weapons;
  (b) to permit a parent, or a person entitled to visitation by a  court
order or a separation agreement, to visit the child at stated periods;
  (c)  to refrain from committing a family offense, as defined in subdi-
vision one of section eight hundred twelve of this [act] ARTICLE, or any
criminal offense against the  child  or  against  the  other  parent  or
against  any  person  to  whom  custody of the child is awarded, or from
harassing, intimidating or threatening such persons;
  (d) to permit a designated party to enter the residence during a spec-
ified period of time in order to remove personal belongings not in issue
in this proceeding or in any other proceeding or action under  this  act
or the domestic relations law;
  (e)  to  refrain  from  acts  of commission or omission that create an
unreasonable risk to the health, safety or welfare of a child;
  (f) to pay the reasonable counsel fees and disbursements  involved  in
obtaining  or enforcing the order of the person who is protected by such
order if such order is issued or enforced;
  (g) to require the respondent to participate in a batterer's education
program designed to help end violent behavior, which may include  refer-
ral to drug and alcohol counselling, and to pay the costs thereof if the
person  has  the means to do so, provided however that nothing contained
herein shall be deemed to require payment  of  the  costs  of  any  such
program by the petitioner, the state or any political subdivision there-
of; [and]
  (h)  to  provide,  either  directly  or by means of medical and health
insurance, for expenses incurred for medical care and treatment  arising
from the incident or incidents forming the basis for the issuance of the
order[.];
  (i)  1.  to  refrain  from  intentionally injuring or killing, without
justification, any companion animal the respondent knows  to  be  owned,
possessed,  leased,  kept  or  held  by  the petitioner or a minor child
residing in the household.
  2. "Companion animal", as used in this section, shall  have  the  same
meaning  as  in  subdivision  five of section three hundred fifty of the
agriculture and markets law.

A. 4846                             3

  (j) to observe such other conditions as are necessary to  further  the
purposes of protection.
  The  court may also award custody of the child, during the term of the
order of protection to either parent,  or  to  an  appropriate  relative
within  the second degree. Nothing in this section gives the court power
to place or board out any child or to commit a child to  an  institution
or agency.
  THE  COURT  SHALL ORDER COUNSELING FOR CHILDREN WHEN ONE MEMBER OF THE
FAMILY OR HOUSEHOLD HAS BEEN CHARGED WITH OR FOUND TO HAVE  COMMITTED  A
FAMILY  OFFENSE AGAINST ANOTHER MEMBER OF THE FAMILY OR HOUSEHOLD, WHERE
THERE IS A DEMONSTRATED NEED FOR PSYCHOLOGICAL INTERVENTION, EVEN IF THE
CHILDREN WERE NOT THE DIRECT VICTIMS.
  Notwithstanding the provisions of section eight hundred  seventeen  of
this  article,  where a temporary order of child support has not already
been issued, the court may in addition to the issuance of  an  order  of
protection  pursuant to this section, issue an order for temporary child
support in an amount sufficient to meet the needs of the child,  without
a  showing of immediate or emergency need. The court shall make an order
for  temporary  child  support  notwithstanding  that  information  with
respect to income and assets of the respondent may be unavailable. Where
such information is available, the court may make an award for temporary
child  support  pursuant  to the formula set forth in subdivision one of
section four hundred thirteen of this act. Temporary orders  of  support
issued  pursuant  to  this  article  shall be deemed to have been issued
pursuant to section four hundred thirteen of this act.
  Upon making an order for temporary  child  support  pursuant  to  this
subdivision,  the  court shall advise the petitioner of the availability
of child support enforcement services by the support collection unit  of
the  local department of social services, to enforce the temporary order
and to assist in securing continued child support,  and  shall  set  the
support  matter  down for further proceedings in accordance with article
four of this act.
  Where the court determines that the respondent  has  employer-provided
medical  insurance, the court may further direct, as part of an order of
temporary  support  under  this  subdivision,  that  a  medical  support
execution  be  issued  and  served  upon  the  respondent's  employer as
provided for in section fifty-two hundred forty-one of the  civil  prac-
tice law and rules.
  In  any  proceeding in which an order of protection or temporary order
of protection or a warrant has been issued under this section, the clerk
of the court shall issue to the petitioner and respondent and his  coun-
sel and to any other person affected by the order a copy of the order of
protection  or  temporary  order of protection and ensure that a copy of
the order of protection or temporary order of protection be  transmitted
to  the  local  correctional facility where the individual is or will be
detained, the state or local correctional facility where the  individual
is  or  will  be imprisoned, and the supervising probation department or
division of parole where the individual is  under  probation  or  parole
supervision.
  Notwithstanding  the  foregoing provisions, an order of protection, or
temporary order of protection where applicable, may be entered against a
former spouse and persons who have a  child  in  common,  regardless  of
whether  such  persons  have  been married or have lived together at any
time, or against a member of the same family or household as defined  in
subdivision one of section eight hundred twelve of this article.

A. 4846                             4

  In addition to the foregoing provisions, the court may issue an order,
pursuant to section two hundred twenty-seven-c of the real property law,
authorizing the party for whose benefit any order of protection has been
issued  to terminate a lease or rental agreement pursuant to section two
hundred twenty-seven-c of the real property law.
  S 2. This act shall take effect immediately.