NY State Senate Bill 2013-S4691

Senate Bill S4691

2013-2014 Legislative Session

Relates to the basis for removal of children; provides a safe harbor for a non-abusive spouse to report abuse while retaining custody of children

download bill text pdf

Archive: Last Bill Status - In Senate Committee Children And Families Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 08, 2014	referred to children and families
Apr 18, 2013	referred to children and families

2013-S4691 (ACTIVE) - Details

See Assembly Version of this Bill:: A8490
Current Committee:: Senate Children And Families
Law Section:: Family Court Act
Laws Affected:: Amd §§1012, 1017, 1022, 1027 & 1028, Fam Ct Act
Versions Introduced in Other Legislative Sessions:: 2011-2012: A10080
2015-2016: A2412
2017-2018: A4271, A9725
2019-2020: A5745, A6536
2021-2022: A4754
2023-2024: A5455

2013-S4691 (ACTIVE) - Summary

Relates to the basis for removal of children; provides a safe harbor for a non-abusive spouse to report abuse while retaining custody of children.

2013-S4691 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S4691

TITLE  OF BILL:   An act to amend the family court act, in relation to
the basis for removal of children

PURPOSE:  This bill would provide a safe harbor for abused parents and
their children in cases  of  domestic  abuse.  Abusive  parents  often
coerce  their victims into remaining silent about abuse by threatening
the removal of their children by Child  Protective  Services  if  they
report  it.  This  bill  is  intended to provide greater confidence to
responsible parents who are victims of domestic violence  by  allowing
them  to  report  the  abuse  without the fear of their children being
removed.

SUMMARY OF PROVISIONS:

Sections 1 and 2 of describe  the  legislative  intent  of  the  bill,
recount  the  struggles of the individual- "Melinda"- after whom it is
named, and explain the dilemma  that  parents  like  Melinda  face  in
reporting domestic abuse.

Section  3  adds  a  new subdivision (k) to section 1012 of the Family
Court Act to define "domestic abuse" as either (i) any act that  would
constitute  a  violation  of  the  Penal  Law  and  resulted in actual
physical or emotional injury or created a substantial risk of physical
or emotional harm; or  (ii)  any  other  abuse,  including  verbal  or

psychological  abuse,  that  resulted  in actual physical or emotional
injury or created a substantial risk of physical or emotional harm.

Section 4 adds a new subdivision 1-a to section  1017  of  the  Family
Court  Act.  This  new  subdivision would apply where both parents are
"respondents" (defendants) in the child placement proceeding. The bill
mandates the court in such a proceeding to deem one of the  respondent
parents  a  "non-respondent"  for purposes of the removal order if (1)
such respondent parent has been subjected to  domestic  abuse  by  the
other  respondent  spouse;  (2)  such  abused  respondent reported the
incident of domestic violence precipitating the  removal  hearing  (3)
such  abused  respondent  has  not  been  found  neglectful or abusive
towards the child or children at issue; and (4)  there  have  been  no
instances  of  sexual  crimes  or  murder,  or incidents involving the
disfigurement of the child or children at issue. If these factors  are
satisfied,  the  court  shall  award custody to such judicially deemed
non-respondent parent provided  that  such  custody  is  in  the  best
interest of the child.

Section  5  adds a new paragraph (vi) to section 1022(a) of the Family
Court Act, relating to preliminary child placement orders issued prior
to the filing of a petition, to require a court that determines that a
respondent parent is a non-respondent parent for reasons  set  out  in
section  1-a  to  issue  a  temporary  order of protection against the
respondent abuser. Section 6 adds a  new  paragraph  (vi)  of  section
1027(b)  of  the  Family  Court,  relating to placements orders issued
after filing of a petition, to likewise mandate the court to issue  an
order of protection against the abuser.

Section  7  amends subdivision (a) of section 1028 of the Family Court
Act, which  relates  to  the  procedure  for  applications  to  return


temporarily  removed children. Current law provides that a court shall
hold a hearing for the return of such a temporarily  removed  children
upon  good  cause shown. Section 7 provides that a basis for a court's
finding  of  good  cause  shall be its determination that a respondent
parent at the prior removal hearing was a non-respondent parent  under
the newly created section 1017 of the Family Court Act.

Section 8 establishes that the bill shall take effect immediately.

CURRENT  LAW:  It is protocol for Child Protective Services to respond
to child abuse by performing an emergency removal  of  the  child,  if
necessary,  and  commencing  legal proceedings to obtain a court order
removing the child  from  his  or  her  home.  These  proceedings  are
commenced  against  the  parents  of the child, including the innocent
parent who reported the abuse. Under current  law,  both  parents  are
then  deemed  "respondent"  parents  for  the purpose of the temporary
placement proceeding. Where both parents are respondents, the court is
directed to make a preliminary order awarding custody either (1) to  a
relative  or  other  suitable  person, or (2) in the absence of such a
person, to foster care. Such order  of  placement  remains  in  effect
until  a  final  determination  of  custody  is  made  at a permanency
hearing, unless the court vacates or modifies its preliminary order in
the interim.

JUSTIFICATION:  This bill addresses a dilemma faced  by  many  parents
who  are  victims  of  domestic  violence. One parent in New York that
struggled with this dilemma is "Melinda," whose full name is not  used
to  protect  her  family's  privacy. Melinda is a woman suffering from
battered person syndrome as a result of over twenty years of  physical
and  psychological  abuse by her husband. Like many parents who suffer
from battered person syndrome, Melinda accepted  her  abuse  with  the
belief  that  her  children needed a father. Eventually, the abuse was
directed at the children, prompting Melinda to warn her  husband  that
she  would  go to the authorities if the abuse continued. In response,
Melinda's husband issued his own warning: that if she were  to  report
him, Child Protective Services would take their children away.

Unfortunately,   as  indicated  in  the  "Current  Law"  section,  her
husband's threat was not unfounded. Current law  does  not  adequately
protect  the interests of victims of domestic violence, who are deemed
virtual accomplices in the abuse despite often  being  the  party  who
reported  the  abuse in the first place. This is fundamentally unfair.
The law should not lend credence to the threats of abusers who  coerce
their  victims into remaining silent about domestic violence. Instead,
the law should allow good parents to report domestic violence with the
confidence that they will not be separated  from  their  children  for
doing  so. This bill achieves that goal while protecting the interests
of the child through several safeguards. First, where the court  deems
a  victim parent a "non-respondent" and awards custody to that parent,
the court shall issue a protection order against  the  abusive  parent
removing  such  parent  from  the  child's  home. Second, the court is
prohibited from awarding custody to a non-respondent parent where such
parent has been neglectful or where serious crimes such as  murder  or
sexual  crimes  have been committed. Third, the court shall only award
custody to the victim parent if it is in the  best  interests  of  the
child.  This  grant  of  judicial discretion will allow courts to take


into account other relevant circumstances not explicitly provided  for
in this bill.

LEGISLATIVE HISTORY: New bill.

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE:  This act shall take effect immediately.

2013-S4691 (ACTIVE) - Bill Text download pdf

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

                                  4691

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                             April 18, 2013
                               ___________

Introduced  by  Sen.  GOLDEN -- read twice and ordered printed, and when
  printed to be committed 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.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01261-04-3

S. 4691                             2

  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.
  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 1012 of the family court act is amended by adding a new
subdivision (1) to read as follows:
  (1) "DOMESTIC VIOLENCE" MEANS
  (I) ANY ACT WHICH WOULD CONSTITUTE  A  VIOLATION  OF  THE  PENAL  LAW,
INCLUDING,  BUT  NOT  LIMITED  TO, ACTS CONSTITUTING DISORDERLY CONDUCT,
HARASSMENT, AGGRAVATED HARASSMENT, SEXUAL MISCONDUCT, FORCIBLE TOUCHING,
SEXUAL ABUSE, STALKING, CRIMINAL MISCHIEF, MENACING, RECKLESS  ENDANGER-
MENT, KIDNAPPING, ASSAULT, ATTEMPTED ASSAULT, ATTEMPTED MURDER, CRIMINAL
OBSTRUCTION  OF  BREATHING  OR  BLOOD CIRCULATION, OR STRANGULATION, AND
THAT RESULTED IN ACTUAL PHYSICAL OR EMOTIONAL INJURY OR THAT  CREATED  A
SUBSTANTIAL RISK OF PHYSICAL OR EMOTIONAL HARM; OR
  (II)  ANY OTHER ABUSE, INCLUDING BUT NOT LIMITED TO VERBAL, EMOTIONAL,
OR PSYCHOLOGICAL ABUSE, THAT RESULTED IN ACTUAL  PHYSICAL  OR  EMOTIONAL
INJURY  OR THAT CREATED A SUBSTANTIAL RISK OF PHYSICAL OR EMOTIONAL HARM
TO SUCH PERSON OR SUCH PERSON'S CHILD.
  S 4. 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 HAS BEEN SUBJECTED TO DOMESTIC  VIOLENCE
BY THE OTHER RESPONDENT AND IF SO;
  (II)  WHETHER SUCH ABUSED RESPONDENT REPORTED THE INCIDENT OF DOMESTIC
VIOLENCE PRECIPITATING A REMOVAL ORDER OR HEARING UNDER THIS ARTICLE AND
IF SO;
  (III) WHETHER SUCH ABUSED RESPONDENT 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 AN ABUSED RESPONDENT AND REPORTED THE INCIDENT
OF DOMESTIC VIOLENCE PRECIPITATING THE ORDER OR HEARING UNDER THIS ARTI-
CLE,  THEN  THE COURT SHALL DEEM SUCH ABUSED RESPONDENT A NON-RESPONDENT
FOR PURPOSES OF THE REMOVAL ORDER OR HEARING; PROVIDED THAT, SUCH ABUSED
RESPONDENT 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 INTERESTS 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 AN ABUSED RESPONDENT WITHIN THE MEANING OF SUBPARA-
GRAPH (I) OF PARAGRAPH (A) OF THIS SUBDIVISION.

S. 4691                             3

  (D) THIS SUBDIVISION SHALL NOT APPLY TO INSTANCES  OF  SEXUAL  CRIMES,
MURDER  OR WHERE THERE HAVE BEEN PRIOR INCIDENTS INVOLVING DISFIGUREMENT
OF THE CHILD OR CHILDREN AT ISSUE.
  S  5.  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  6.  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.
  S 7. 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 8. This act shall take effect immediately.

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