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

                                  8490

                          I N  A S S E M B L Y

                            January 17, 2014
                               ___________

Introduced  by  M. of A. 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.
              

                                                           LBD01261-05-4

A. 8490                             2

  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.
  (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.

A. 8490                             3

  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.