S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5745
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 14, 2019
                                ___________
 
 Introduced by M. of A. GIGLIO, DeSTEFANO, LAWRENCE, McDONOUGH, MORINELLO
   -- 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 and the creation of "Melinda's Law"
 
   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".
   § 2. Legislative intent. The legislature  hereby  finds  and  declares
 that  in  cases of domestic violence, the abuse sometimes moves from the
 spouse to the children. Once the abusive spouse begins  to  over-discip-
 line  the  children,  the  abusive  spouse 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 chil-
 dren. 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 incidents without fear of having their children removed from  their
 custody.  The sequence of events above are an apt description of "Melin-
 da". Melinda is a woman suffering from domestic violence. She  had  been
 abused  by  her  husband over a   twenty year period. The abuse had seen
 verbal, psychological, and physical. She took the abuse  in  the  belief
 that  her children needed a father. Eventually the abuse was 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD06948-01-9

 A. 5745                             2
 
 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 than graduated to hitting his teenage son with a
 wooden rod that left welts. The abuse in this cycle of domestic violence
 is escalated over time when the abusive spouse believes that the  non-a-
 busive  spouse  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.
   § 3. Section 1012 of the family court act is amended by adding two new
 subdivisions (o) and (p) to read as follows:
   (O) "DOMESTIC VIOLENCE" MEANS:
   (I) ANY CONDUCT WHICH WOULD CONSTITUTE AN OFFENSE IN  THE  PENAL  LAW,
 AND CREATED A SUBSTANTIAL RISK OF PHYSICAL OR EMOTIONAL HARM, REGARDLESS
 OF WHETHER SUCH INJURY OCCURRED; OR
   (II)  ANY  OTHER ABUSE, INCLUDING BUT NOT LIMITED TO VERBAL, EMOTIONAL
 OR PSYCHOLOGICAL ABUSE, INCLUDING SLAPPING, THAT CREATES  A  SUBSTANTIAL
 RISK  OF  PHYSICAL  OR  EMOTIONAL  HARM  TO SUCH PERSON OR SUCH PERSON'S
 CHILD, REGARDLESS OF WHETHER SUCH HARM OCCURRED.
   (P) "VICTIM SPOUSE OR DOMESTIC PARTNER SUBJECTED TO DOMESTIC VIOLENCE"
 MEANS THE RESPONDENT SPOUSE OR DOMESTIC PARTNER WHO IS  THE  NON-ABUSIVE
 SPOUSE  OR DOMESTIC PARTNER, AND IS DETERMINED TO BE SUBJECTED TO DOMES-
 TIC VIOLENCE AS DEFINED BY SUBDIVISION (O) OF THIS SECTION.
   § 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 PERSON RELATED TO
 THE CHILD WITH WHOM SUCH CHILD MAY APPROPRIATELY RESIDE  UNDER  SUBDIVI-
 SION  ONE  OF THIS SECTION AND IF BOTH PARENTS ARE RESPONDENTS THE COURT
 SHALL FIRST 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  VICTIM  SPOUSE  OR  DOMESTIC PARTNER SUBJECTED TO
 DOMESTIC VIOLENCE REPORTED THE INCIDENT PRECIPITATING A REMOVAL ORDER OR
 HEARING UNDER THIS ARTICLE AND IF SO;
   (III) WHETHER SUCH VICTIM SPOUSE  OR  DOMESTIC  PARTNER  SUBJECTED  TO
 DOMESTIC  VIOLENCE  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 VICTIM SPOUSE OR DOMESTIC PARTNER SUBJECTED
 TO DOMESTIC VIOLENCE AND REPORTED THE INCIDENT PRECIPITATING  THE  ORDER
 OR  HEARING  UNDER  THIS  ARTICLE  THEN THE COURT SHALL DEEM SUCH VICTIM
 SPOUSE OR DOMESTIC PARTNER SUBJECTED TO DOMESTIC VIOLENCE A  NON-RESPON-
 DENT  FOR  PURPOSES OF THE REMOVAL ORDER OR HEARING; PROVIDED THAT, SUCH
 VICTIM SPOUSE OR DOMESTIC PARTNER SUBJECTED TO DOMESTIC VIOLENCE 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)  IF  A  DETERMINATION IS MADE THAT BOTH PARENTS REMAIN AS RESPOND-
 ENTS, THE COURT MAY THEN DETERMINE WHETHER THERE IS  A  SUITABLE  PERSON
 RELATED TO THE CHILD WITH WHOM SUCH CHILD MAY APPROPRIATELY RESIDE UNDER
 SUBDIVISION ONE OF THIS SECTION.
   (D)  THE COURT MAY CONDUCT IN CAMERA INTERVIEWS, BAR THE APPEARANCE OF
 THE RESPONDENT ABUSER OR TAKE ANY OTHER  STEPS  AS  IT  DEEMS  NECESSARY

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 WITHIN  ITS  STATUTORY AND CONSTITUTIONAL POWERS TO DETERMINE WHETHER OR
 NOT A RESPONDENT IS A VICTIM SPOUSE WITHIN THE MEANING  OF  SUBPARAGRAPH
 (I) OF PARAGRAPH (A) OF THIS SUBDIVISION.
   (E)  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.
   §  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.
   §  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.
   § 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.
   § 8. This act shall take effect immediately.