Abuse Laws
New York
2001
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links by statute.
ARTICLE
8 - FAMILY OFFENSES PROCEEDINGS
Part 1.
Jurisdiction.
Part 2.
Preliminary procedure.
Part 3.
Hearing.
Part 4.
Orders.
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Sec. 812.
Procedures for family offense proceedings.
1. Jurisdiction.
The family court and the criminal courts shall have concurrent
jurisdiction over any proceeding concerning acts which would
constitute disorderly conduct, harassment in the first degree,
harassment in the second degree, aggravated harassment in the
second degree, stalking in the first degree, stalking in the
second degree, stalking in the third degree, stalking in the
fourth degree, menacing in the second degree, menacing in the
third degree, reckless endangerment, assault in the second degree,
assault in the third degree or an attempted assault between
spouses or former spouses, or between parent and child or between
members of the same family or household except that if the respondent
would not be criminally responsible by reason of age pursuant
to section 30.00 of the penal law, then the family court shall
have exclusive jurisdiction over such proceeding. Notwithstanding
a complainant`s election to proceed in family court, the criminal
court shall not be divested of jurisdiction to hear a family
offense proceeding pursuant to this section. For purposes of
this article, "disorderly conduct" includes disorderly conduct
not in a public place. For purposes of this article, "members
of the same family or household" shall mean the following:
(a)
persons related by consanguinity or affinity;
(b) persons
legally married to one another;
(c) persons
formerly married to one another; and
(d) persons
who have a child in common regardless whether such persons
have been married or have lived together at any time.
2. Information
to petitioner or complainant. The chief administrator of the
courts shall designate the appropriate persons, including, but
not limited to district attorneys, criminal and family court
clerks, corporation counsels, county attorneys, victims assistance
unit staff, probation officers, warrant officers, sheriffs,
police officers or any other law enforcement officials, to inform
any petitioner or complainant bringing a proceeding under this
article, before such proceeding is commenced, of the procedures
available for the institution of family offense proceedings,
including but not limited to the following:
(a)
That there is concurrent jurisdiction with respect to family
offenses in both family court and the criminal courts;
(b) That
a family court proceeding is a civil proceeding and is for
the purpose of attempting to stop the violence, end the family
disruption and obtain protection. Referrals for counseling,
or counseling services, are available through probation for
this purpose;
(c) That
a proceeding in the criminal courts is for the purpose of
prosecution of the offender and can result in a criminal conviction
of the offender;
(d) That
a proceeding or action subject to the provisions of this section
is initiated at the time of the filing of an accusatory instrument
or family court petition, not at the time of arrest, or request
for arrest, if any;
(f) That
an arrest may precede the commencement of a family court or
a criminal court proceeding, but an arrest is not a requirement
for commencing either proceeding; provided, however, that
the arrest of an alleged offender shall be made under the
circumstances described in subdivision four of section 140.10
of the criminal procedure law;
(g) That
notwithstanding a complainant`s election to proceed in family
court, the criminal court shall not be divested of jurisdiction
to hear a family offense proceeding pursuant to this section.
3. Official
responsibility. No official or other person designated pursuant
to subdivision two of this section shall discourage or prevent
any person who wishes to file a petition or sign a complaint
from having access to any court for that purpose.
4. Official
forms. The chief administrator of the courts shall prescribe
an appropriate form to implement subdivision two of this section.
5. Notice.
Every police officer, peace officer or district attorney investigating
a family offense under this article shall advise the victim
of the availability of a shelter or other services in the community,
and shall immediately give the victim written notice of the
legal rights and remedies available to a victim of a family
offense under the relevant provisions of the criminal procedure
law, the family court act and the domestic relations law. Such
notice shall be available in English and Spanish and, if necessary,
shall be delivered orally and shall include but not be limited
to the following statement:
"If
you are the victim of domestic violence, you may request that
the officer assist in providing for your safety and that of
your children, including providing information on how to obtain
a temporary order of protection. You may also request that the
officer assist you in obtaining your essential personal effects
and locating and taking you, or assist in making arrangement
to take you, and your children to a safe place within such officer`s
jurisdiction, including but not limited to a domestic violence
program, a family member`s or a friend`s residence, or a similar
place of safety. When the officer`s jurisdiction is more than
a single county, you may ask the officer to take you or make
arrangements to take you and your children to a place of safety
in the county where the incident occurred. If you or your children
are in need of medical treatment, you have the right to request
that the officer assist you in obtaining such medical treatment.
You may request a copy of any incident reports at no cost from
the law enforcement agency. You have the right to seek legal
counsel of your own choosing and if you proceed in family court
and if it is determined that you cannot afford an attorney,
one must be appointed to represent you without cost to you.
You may
ask the district attorney or a law enforcement officer to
file a criminal complaint. You also have the right to file
a petition in the family court when a family offense has been
committed against you. You have the right to have your petition
and request for an order of protection filed on the same day
you appear in court, and such request must be heard that same
day or the next day court is in session. Either court may
issue an order of protection from conduct constituting a family
offense which could include, among other provisions, an order
for the respondent or defendant to stay away from you and
your children. The family court may also order the payment
of temporary child support and award temporary custody of
your children. If the family court is not in session, you
may seek immediate assistance from the criminal court in obtaining
an order of protection.
The forms
you need to obtain an order of protection are available from
the family court and the local criminal court (the addresses
and telephone numbers shall be listed). The resources available
in this community for information relating to domestic violence,
treatment of injuries, and places of safety and shelters can
be accessed by calling the following 800 numbers (the statewide
English and Spanish language 800 numbers shall be listed and
space shall be provided for local domestic violence hotline
telephone numbers).
Filing a
criminal complaint or a family court petition containing allegations
that are knowingly false is a crime."
The division
of criminal justice services in consultation with the state
office for the prevention of domestic violence shall prepare
the form of such written notice consistent with the provisions
of this section and distribute copies thereof to the appropriate
law enforcement officials pursuant to subdivision nine of section
eight hundred fortyone of the executive law. Additionally, copies
of such notice shall be provided to the chief administrator
of the courts to be distributed to victims of family offenses
through the family court at suchtime as such persons first come
before the court and to the state department of health for distribution
to all hospitals defined under article twenty-eight of the public
health law. No cause of action for damages shall arise in favor
of any person by reason of any failure to comply with the provisions
of this subdivision except upon a showing of gross negligence
or willful misconduct.
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Sec.
813. Transfer to criminal court.
1.
At any time prior to a finding on the petition the court may,
with the consent of the petitioner and upon reasonable notice
to the district attorney, who shall have an opportunity to be
heard, order that any matter which is the subject of a proceeding
commenced pursuant to this article be prosecuted as a criminal
action in an appropriate criminal court if the court determines
that the interests of justice so require.
2.
The court may simultaneously with the transfer of any matter
to the appropriate criminal court, issue or continue a temporary
order of protection which, notwithstanding any other provision
of law, shall continue in effect, absent action by the appropriate
criminal court pursuant to subdivision three of section 530.12
of the criminal procedure law, until the defendant is arraigned
upon an accusatory instrument filed pursuant to this section
in such criminal court.
3.
Nothing herein shall be deemed to limit or restrict a petitioner`s
rights to proceed directly and without court referral in either
criminal or family court, or both, as provided for in section
one hundred fifteen of this act and section 100.07 of the criminal
procedure law.
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Sec.
814. Rules of court regarding concurrent jurisdiction.
The
chief administrator of the courts pursuant to paragraph (e)
of subdivision two of section two hundred twelve of the judiciary
law shall promulgate rules to facilitate record sharing and
other communication between the criminal and family courts,
subject to applicable provisions of the criminal procedure law
and the family court act pertaining to the confidentiality,
expungement and sealing of records, where such courts exercise
concurrent jurisdiction over family offense proceedings.
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Sec.
814-a. Uniform forms.
The chief
administrator of the courts, shall promulgate appropriate uniform
temporary orders of protection and orders of protection forms,
applicable to proceedings under this article, to be used throughout
the state. Such forms shall be promulgated and developed in
a manner to ensure the compatability of such forms with the
statewide computerized registry established pursuant to section
two hundred twenty-one-a of the executive law.
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Sec.
815. Transcript of family offense proceedings; request by district
attorney.
The
court shall, upon the written request of a district attorney
stating that such transcript is necessary in order to conduct
a criminal investigation or prosecution involving the petitioner
or respondent, provide a copy of the transcript of any proceedings
under this article, to such district attorney. Such transcript
shall not be redisclosed except as necessary for such investigation
or prosecution.
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Sec.
817. Support, paternity and child protection.
On
its own motion and at any time in proceedings under this article,
the court may direct the filing of a child protective petition
under article ten of this chapter, a support petition under
article four, or a paternity petition under article five of
this act and consolidate the proceedings.
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Sec.
818. Venue.
Proceedings
under this article may be originated in the county in which
the act or acts referred to in the petition allegedly occurred
or in which the family or household resides or in which any
party resides. For the purposes of this section, residence shall
include a residential program for victims of domestic violence,
as defined in subdivision four of section four hundred fifty-nine-a
of the social services law, or a shelter for homeless persons.
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Sec. 821.
Originating proceedings.
1. A proceeding
under this article is originated by the filing of a petition
containing the following:
(a) An allegation that the respondent assaulted or attempted
to assault his or her spouse, or former spouse, parent, child
or other member of the same family or household or engaged in
disorderly conduct, harassment, stalking, menacing or reckless
endangerment toward any such person; and
(b) The
relationship of the alleged offender to the petitioner;
(c) The
name of each and every child in the family or household and
the relationship of the child, if any, to the petitioner and
to the respondent;
(d) A request
for an order of protection or the use of the court`s conciliation
procedures; and
(e) An allegation
as to whether any accusatory instrument alleging an act specified
in paragraph (a) of this subdivision has been verified with
respect to the same act alleged in the petition. Appended
to the copy of the petition provided to the petitioner shall
be a copy of the notice described in subdivision five of section
eight hundred twelve of this article.
2. When family
court is not in session, an arrest and initial appearance by
the defendant or respondent may be in a criminal court, as provided
in sections one hundred fifty-four-d and one hundred fifty-five
of this act.
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Sec. 821-a.
Preliminary procedure.
1. Upon the
filing of a petition under this article, the court shall advise
the petitioner of the right to retain legal representation or
if indigent, the right to have counsel appointed pursuant to
section two hundred sixty-two of this act.
2. Upon the
filing of a petition under this article, the court may:
(a) issue a summons pursuant to section eight hundred twenty-six
of this part or issue a warrant pursuant to section eight hundred
twenty-seven of this part;
(b) issue
a temporary order of protection in favor of the petitioner
and, where appropriate, the petitioner`s children or any other
children residing in the petitioner`s household, pursuant
to section eight hundred twenty-eight of this part.
3. Where the
respondent is brought before the court pursuant to a summons
under section eight hundred twenty-six of this part or a warrant
issued under section eight hundred twenty-seven of this part,
or where a respondent voluntarily appears before the court after
such summons or warrant has been issued, the court shall:
(a)
advise the parties of the right to retain legal representation
or, if indigent, the right to have counsel appointed pursuant
to section two hundred sixty-two of this act;
(b) advise
the respondent of the allegations contained in the petition
before the court; and
(c) provide
the respondent with a copy of such petition; and the court
may:
(i) order the release of the respondent on his or her own
recognizance pending further appearances as required by the
court;
(ii) direct
that the respondent post bail in a manner authorized pursuant
to section one hundred fifty-five-a of this act in an amount
set by the court; or
(iii)
issue a commitment order directing that the respondent be
remanded to the custody of the county sheriff or other appropriate
law enforcement official until such time as bail is posted
as required by the court.
4. Where the
court directs that the respondent post bail or that the respondent
be committed to the custody of a law enforcement official as
provided for herein, and the respondent fails to post bail or
otherwise remains in custody, a hearing shall be held without
unreasonable delay but in no event later than one hundred twenty
hours after the arrest of the respondent or in the event that
a Saturday, Sunday, or legal holiday occurs during such custody,
one hundred forty-four hours after the arrest of the respondent,
to determine upon material and relevant evidence whether sufficient
cause exists to keep the respondent in custody. If the court
determines that sufficient cause does not exist or if no hearing
is timely held, the respondent shall immediately be released
on the respondent`s own recognizance.
5.
(a)
At such time as the petitioner first appears before the court,
the court shall advise the petitioner that the petitioner may:
continue with the hearing and disposition of such petition in
the family court; or have the allegations contained therein
heard in an appropriate criminal court; or proceed concurrently
in both family and criminal court.
(b) Where
the petitioner seeks to have the petition heard and determined
in the family court, the court shall set the matter down for
further proceedings pursuant to the provisions of this article.
Nothing herein shall be deemed to limit or restrict petitioner`s
rights to seek to proceed directly in either criminal or family
court, or both, as provided for in section one hundred fifteen
of this act and section 100.07 of the criminal procedure law.
6. When both parties first appear before the court, the court
shall inquire as to the existence of any other orders of protection
involving the parties.
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Sec.
822. Person who may originate proceedings.
(a)
Any person in the relation to the respondent of spouse, or former
spouse, parent, child, or member of the same family or household;
(b)
A duly authorized agency, association, society, or institution;
(c)
A peace officer, acting pursuant to his special duties, or a
police officer;
(d)
A person on the court`s own motion.
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Sec. 823.
Rules of court for preliminary procedure.
(a) Rules
of court may authorize the probation service
(i)
to confer with any person seeking to file a petition, the potential
petitioner and other interested persons concerning the advisability
of filing a petition under this article, and
(ii) to
attempt through conciliation and agreement informally to adjust
suitable cases before a petition is filed over which the court
apparently would have jurisdiction.
(b) The probation
service may not prevent any person who wishes to file a petition
under this article from having access to the court for that
purpose.
(c) Efforts
at adjustment pursuant to rules of court under this section
may not extend for a period of more than two months without
leave of a judge of the court, who may extend the period for
an additional sixty days. Two successive extensions may be granted
under this section.
(d) The probation
service may not be authorized under this section to compel any
person to appear at any conference, produce any papers, or visit
any place.
(e) If agreement
to cease offensive conduct is reached, it must be reduced to
writing and submitted to the family court for approval. If the
court approves it, the court without further hearing may thereupon
enter an order of protection in accordance with the agreement,
which shall be binding upon the respondent and shall in all
respects be a valid order. The court record shall show that
such order was made upon agreement.
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Sec.
824. Admissibility of statements made during preliminary conference.
No
statement made during a preliminary conference may be admitted
into evidence at a fact-finding hearing under this act or in
a criminal court at any time prior to conviction.
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Sec.
825. Issuance of summons.
On
the filing of a petition under this article, the court may cause
a copy of the petition and a summons to be issued, requiring
the respondent to appear at the court at a time and place to
answer the petition.
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Sec. 826.
Service of summons.
(a) Unless
the court issues a warrant pursuant to section eight hundred
twenty-seven of this part, service of a summons and petition
shall be made by delivery of a true copy thereof to the person
summoned at least twenty-four hours before the time stated therein
for appearance. If so requested by the respondent, the court
shall not proceed with the hearing or proceeding earlier than
three days after such service.
(b) If after
reasonable effort, personal service is not made, the court may
at any stage in the proceedings make an order providing for
substituted service in the manner provided for substituted service
in civil process in courts of record.
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Sec. 827.
Issuance of warrant; certificate of warrant.
(a) The court
may issue a warrant, directing that the respondent be brought
before the court, when a petition is presented to the court
under section eight hundred twenty-one and it appears that
(i)
the summons cannot be served; or
(ii) the
respondent has failed to obey the summons; or
(iii) the
respondent is likely to leave the jurisdiction; or
(iv) a summons,
in the court`s opinion, would be ineffectual; or
(v) the
safety of the petitioner is endangered; or
(vi) the
safety of a child is endangered; or
(vii) aggravating
circumstances exist which require the immediate arrest of
the respondent. For the purposes of this section aggravating
circumstances shall mean physical injury or serious physical
injury to the petitioner caused by the respondent, the use
of a dangerous instrument against the petitioner by the respondent,
a history of repeated violations of prior orders of protection
by the respondent, prior convictions for crimes against the
petitioner by the respondent or the exposure of any family
or household member to physical injury by the respondent and
like incidents, behaviors and occurrences which to the court
constitute an immediate and ongoing danger to the petitioner,
or any member of the petitioner`s family or household.
(b) The petitioner
may not serve a warrant upon the respondent, unless the court
itself grants such permission upon the application of the petitioner.
The clerk of the court may issue to the petitioner or to the
representative of an incorporated charitable or philanthropic
society having a legitimate interest in the family a certificate
stating that a warrant for the respondent has been issued by
the court. The presentation of such certificate by said petitioner
or representative to any peace officer, acting pursuant to his
special duties, or police officer authorizes him to arrest the
respondent and take him to court.
(c) A certificate
of warrant expires ninety days from the date of issue but may
be renewed from time to time by the clerk of the court.
(d) Rules
of court shall provide that a record of all unserved warrants
be kept and that periodic reports concerning unserved warrants
be made.
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Sec. 828.
Temporary order of protection; temporary order for child support.
1.
(a)
Upon the filing of a petition or counter-claim under this article,
the court for good cause shown may issue a temporary order of
protection, which may contain any of the provisions authorized
on the making of an order of protection under section eight
hundred forty-two, provided that the court shall make a determination,
and the court 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 temporary 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) Upon
the filing of a petition under this article, or as soon thereafter
as the petitioner appears before the court, the court shall
advise the petitioner of the right to proceed in both the
family and criminal courts, pursuant to the provisions of
section one hundred fifteen of this act.
2. A temporary
order of protection is not a finding of wrongdoing.
3. The court
may issue or extend a temporary order of protection ex parte
or on notice simultaneously with the issuance of a warrant,
directing that the respondent be arrested and brought before
the court, pursuant to section eight hundred twenty-seven of
this article.
4. Notwithstanding
the provisions of section eight hundred seventeen of this article
the court may, together with a temporary order of protection
issued 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. An order making such award shall
be deemed to have been issued pursuant to article four 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 practice law and rules.
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Sec.
832. Definition of "fact-finding hearing".
When
used in this article, "fact-finding hearing" means a hearing
to determine whether the allegations of a petition under section
eight hundred twenty-one are supported by a fair preponderance
of the evidence.
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Sec.
833. Definition of "dispositional hearing".
When
used in this article, "dispositional hearing" means in the case
of a petition under this article a hearing to determine what
order of disposition should be made.
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Sec.
834. Evidence.
Only
competent, material and relevant evidence may be admitted in
a fact-finding hearing; only material and relevant evidence
may be admitted in a dispositional hearing.
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Sec. 835.
Sequence of hearings.
(a) Upon completion
of the fact-finding hearing, the dispositional hearing may commence
immediately after the required findings are made.
(b) Reports
prepared by the probation service for use by the court at any
time prior to the making of an order of disposition shall be
deemed confidential information furnished to the court which
the court in a proper case may, in its discretion, withhold
from or disclose in whole or in part to the law guardian, counsel,
party in interest, or other appropriate person. Such reports
may not be furnished to the court prior to the completion of
a fact-finding hearing, but may be used in a dispositional hearing.
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Sec.
836. Adjournments.
(a)
The court may adjourn a fact-finding hearing or a dispositional
hearing for good cause shown on its own motion or on motion
of either party.
(b)
At the conclusion of a fact-finding hearing and after it has
made findings required before a dispositional hearing may commence,
the court may adjourn the proceedings to enable it to make inquiry
into the surroundings, conditions, and capacities of the persons
involved in the proceedings.
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Sec.
838. Petitioner and respondent may have friend or relative present.
Unless
the court shall find it undesirable, the petitioner shall be
entitled to a non-witness friend, relative, counselor or social
worker present in the court room. This section does not authorize
any such person to take part in the proceedings. However, at
any time during the proceeding, the court may call such person
as a witness and take his or her testimony. Unless the court
shall find it undesirable, the respondent shall be entitled
to a non-witness friend, relative, counselor or social worker
present in the court room in the event such respondent is not
represented by legal counsel. This section does not authorize
any such person to take part in the proceedings. However, at
any time during the proceeding, the court may call such person
as a witness and take his or her testimony.
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Sec. 841.
Orders of disposition.
At the conclusion
of a dispositional hearing under this article, the court may
enter an order:
(a)
dismissing the petition, if the allegations of the petition
are not established; or
(b) suspending
judgment for a period not in excess of six months; or
(c) placing
the respondent on probation for a period not exceeding one
year, and requiring respondent to participate in a batterer`s
education program designed to help end violent behavior, which
may include referral to drug and alcohol counseling, and to
pay the costs thereof if respondent 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 thereof;
or
(d) making
an order of protection in accord with section eight hundred
forty-two of this part; or
(e) directing
payment of restitution in an amount not to exceed ten thousand
dollars. An order of restitution may be made in conjunction
with any order of disposition authorized under subdivisions
(b), (c), or (d) of this section. In no case shall an order
of restitution be issued where the court determines that the
respondent has already paid such restitution as part of the
disposition or settlement of another proceeding arising from
the same act or acts alleged in the petition before the court.
No order of
protection may direct any party to observe conditions of behavior
unless the party requesting the order of protection has served
and filed a petition or counter-claim in accordance with section
one hundred fifty-four-b of this act.
Nothing in
this section shall preclude the issuance of a temporary order
of protection ex parte, pursuant to section eight hundred twenty-eight
of this article. Nothing in this section shall preclude the
issuance of both an order of probation and an order of protection
as part of the order of disposition.
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
whether such persons have been married or have lived together
at any time.
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Sec. 842.
Order of protection.
An order of
protection under section eight hundred forty-one of this part
may set forth reasonable conditions of behavior to be observed
for a period not in excess of one year by the petitioner or
respondent or for a period not in excess of three years upon
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 act. Such finding
of aggravating circumstances shall be stated upon the order
of protection. Such order shall specify if an order of probation
is in effect. Such an order may require the petitioner or the
respondent:
(a)
to stay away from the home, school, business or place of employment
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 subdivision
one of section eight hundred twelve of this act, 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 specified
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 referral
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 thereof; 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) 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 may also upon the showingof
special circumstances extend the order of protection for a reasonable
period of time.
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 practice law and rules.
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
whether such persons have been married or have lived together
at any time.
(back to top)
Sec.
842-a. Suspension and revocation of a license to carry,
possess, repair or dispose of a firearm or firearms pursuant
to section 400.00 of the penal law and ineligibility for such
a license; order to surrender firearms.
1. Mandatory
and permissive suspension of firearms license and ineligibility
for such a license upon the issuance of a temporary order of
protection. Whenever a temporary order of protection is issued
pursuant to section eight hundred twenty-eight of this article:
(a)
the court shall suspend any such existing license possessed
by the respondent, order the respondent ineligible for such
a license, and order the immediate surrender of any or all firearms
owned or possessed where the court receives information that
gives the court good cause to believe that:
(i)
the respondent has a prior conviction of any violent felony
offense as defined in section 70.02 of the penal law;
(ii) the
respondent has previously been found to have willfully failed
to obey a prior order of protection and such willful failure
involved
(A)
the infliction of serious physical injury, as defined in
subdivision ten of section 10.00 of the penal law,
(B)
the use or threatened use of a deadly weapon or dangerous
instrument as those terms are defined in subdivisions
twelve and thirteen of section 10.00 of the penal law,
or
(C)
behavior constituting any violent felony offense as defined
in section 70.02 of the penal law; or
(iii)
the respondent has a prior conviction for stalking in the
first degree as defined in section 120.60 of the penal law,
stalking in the second degree as defined in section 120.55
of the penal law, stalking in the third degree as defined
in section 120.50 of the penal law or stalking in the fourth
degree as defined in section 120.45 of such law; and
(b) the
court may where the court finds a substantial risk that the
respondent may use or threaten to use a firearm unlawfully
against the person or persons for whose protection the temporary
order of protection is issued, suspend any such existing license
possessed by the respondent, order the respondent ineligible
for such a license, and order the immediate surrender of any
or all firearms owned or possessed.
2. Mandatory
and permissive revocation or suspension of firearms license
and ineligibility for such a license upon the issuance of an
order of protection. Whenever an order of protection is issued
pursuant to section eight hundred forty-one of this part:
(a)
the court shall revoke any such existing license possessed by
the respondent, order the respondent ineligible for such a license,
and order the immediate surrender of any or all firearms owned
or possessed where the court finds that the conduct which resulted
in the issuance of the order of protection involved
(i)
the infliction of serious physical injury, as defined in subdivision
ten of section 10.00 of the penal law,
(ii) the
use or threatened use of a deadly weapon or dangerous instrument
as those terms are defined in subdivisions twelve and thirteen
of section 10.00 of the penal law, or
(iii)
behavior constituting any violent felony offense as defined
in section 70.02 of the penal law; and
(b) the
court may, where the court finds a substantial risk that the
respondent may use or threaten to use a firearm unlawfully
against the person or persons for whose protection the order
of protection is issued,
(i)
revoke any such existing license possessed by the respondent,
order the respondent ineligible for such a license and order
the immediate surrender of any or all firearms owned or possessed
or
(ii) suspend
or continue to suspend any such existing license possessed
by the respondent, order the respondent ineligible for such
a license, and order the immediate surrender of any or all
firearms owned or possessed.
3. Mandatory
and permissive revocation or suspension of firearms license
and ineligibility for such a license upon a finding of a willful
failure to obey an order of protection. Whenever a respondent
has been found, pursuant to section eight hundred forty-six-a
of this part to have willfully failed to obey an order of protection
issued by this court or an order of protection issued by a court
of competent jurisdiction in another state, territorial or tribal
jurisdiction, in addition to any other remedies available pursuant
to section eight hundred forty-six-a of this part:
(a)
the court shall revoke any such existing license possessed by
the respondent, order the respondent ineligible for such a license,
and order the immediate surrender of any or all firearms owned
or possessed where the willful failure to obey such order involves
(i)
the infliction of serious physical injury, as defined in subdivision
ten of section 10.00 of the penal law,
(ii) the
use or threatened use of a deadly weapon or dangerous instrument
as those terms are defined in subdivisions twelve and thirteen
of section 10.00 of the penal law, or
(iii)
behavior constituting any violent felony offense as defined
in section 70.02 of the penal law; or
(iv) behavior
constituting stalking in the first degree as defined in
section 120.60 of the penal law, stalking in the second
degree as defined in section 120.55 of the penal law, stalking
in the third degree as defined in section 120.50 of the
penal law or stalking in the fourth degree as defined in
section 120.45 of such law; and
(b) the
court may where the court finds a substantial risk that the
respondent may use or threaten to use a firearm unlawfully
against the person or persons for whose protection the order
of protection was issued,
(i)
revoke any such existing license possessed by the respondent,
order the respondent ineligible for such a license, whether
or not the respondent possesses such a license, and order
the immediate surrender of any or all firearms owned or possessed
or
(ii) suspend
any such existing license possessed by the respondent, order
the respondent ineligible for such a license, and order
the immediate surrender of any or all firearms owned or
possessed.
4. Suspension.
Any suspension order issued pursuant to this section shall remain
in effect for the duration of the temporary order of protection
or order of protection, unless modified or vacated by the court.
5. Surrender.
(a)
Where an order to surrender one or more firearms has been issued,
the temporary order of protection or order of protection shall
specify the place where such firearms shall be surrendered,
shall specify a date and time by which the surrender shall be
completed and, to the extent possible, shall describe such firearms
to be surrendered and shall direct the authority receiving such
surrendered firearms to immediately notify the court of such
surrender.
(b) The
prompt surrender of one or more firearms pursuant to a court
order issued pursuant this section shall be considered a voluntary
surrender for purposes of subparagraph (f) of paragraph one
of subdivision a of section 265.20 of the penal law. The disposition
of any such firearms shall be in accordance with the provisions
of subdivision six of section 400.05 of the penal law.
(c) The
provisions of this section shall not be deemed to limit, restrict
or otherwise impair the authority of the court to order and
direct the surrender of any or all pistols, revolvers, rifles,
shotguns or other firearms owned or possessed by a respondent
pursuant to this act.
6. Notice.
(a)
Where an order of revocation, suspension or ineligibility has
been issued pursuant to this section, any temporary order of
protection or order of protection issued shall state that such
firearm license has been suspended or revoked or that the respondent
is ineligible for such license, as the case may be.
(b) The
court revoking or suspending the license, ordering the respondent
ineligible for such license, or ordering the surrender of
any firearm shall immediately notify the statewide registry
of orders of protection and the duly constituted police authorities
of the locality of such action.
(c) The
court revoking or suspending the license or ordering the defendant
ineligible for such license shall give written notice thereof
without unnecessary delay to the division of state police
at its office in the city of Albany.
(d) Where
an order of revocation, suspension, ineligibility, or surrender
is modified or vacated, the court shall immediately notify
the statewide registry of orders of protection and the duly
constituted police authorities of the locality concerning
such action and shall give written notice thereof without
unnecessary delay to the division of state police at its office
in the city of Albany.
7. Hearing.
The respondent shall have the right to a hearing before the
court regarding any revocation, suspension, ineligibility or
surrender order issued pursuant to this section, provided that
nothing in this subdivision shall preclude the court from issuing
any such order prior to a hearing. Where the court has issued
such an order prior to a hearing, it shall commence such hearing
within fourteen days of the date such order was issued.
8. Nothing
in this section shall delay or otherwise interfere with the
issuance of a temporary order of protection.
(back to top)
Sec.
843. Rules of court.
Rules
of court shall define permissible terms and conditions of any
order issued under section eight hundred forty-one, paragraphs
(b), (c) and (d).
(back to top)
Sec.
844. Reconsideration and modification.
For
good cause shown, the family court may after hearing reconsider
and modify any order issued under paragraphs (b), (c) and (d)
of section eight hundred forty-one.
(back to top)
Sec. 846.
Petition; violation of court order.
Proceedings
under this part shall be originated by the filing of a petition
containing an allegation that the respondent has failed to obey
a lawful order of this court or an order of protection issued
by a court of competent jurisdiction of another state, territorial
or tribal jurisdiction.
(a)
Persons who may originate proceedings. The original petitioner,
or any person who may originate proceedings under section eight
hundred twenty-two of this article, may originate a proceeding
under this part.
(b) Issuance
of summons.
(i)
Upon the filing of a petition under this part, the court may
cause a copy of the petition and summons to be issued requiring
the respondent to show cause why respondent should not be
dealt with in accordance with section eight hundred forty-six-a
of this part. The summons shall include on its face, printed
or typewritten in a size equal to at least eight point bold
type, a notice warning the respondent that a failure to appear
in court may result in immediate arrest, and that, after an
appearance in court, a finding that the respondent willfully
failed to obey the order may result in commitment to jail
for a term not to exceed six months, for contempt of court.
The notice shall also advise the respondent of the right to
counsel, and the right to assigned counsel, if indigent.
(ii) Upon
the filing of a petition under this part alleging a violation
of a lawful order of this or any other court, as provided
in this section, the court may, on its own motion, or on
motion of the petitioner:
(A)
hear the violation petition and take such action as is authorized
under this article; or
(B)
retain jurisdiction to hear and determine whether such
violation constitutes contempt of court, and transfer
the allegations of criminal conduct constituting such
violation to the district attorney for prosecution pursuant
to section eight hundred thirteen of this article; or
(C)
transfer the entire proceeding to the criminal court pursuant
to section eight hundred thirteen of this article.
(c) Service
of summons. Upon issuance of a summons, the provisions of
section eight hundred twenty-six of this article shall apply,
except that no order of commitment may be entered upon default
in appearance by the respondent if service has been made pursuant
to subdivision (b) of such section.
(d) Issuance
of warrant. The court may issue a warrant, directing that
the respondent be arrested and brought before the court, pursuant
to section eight hundred twenty-seven of this article.
(back to top)
Sec.
846-a. Powers on failure to obey order.
If
a respondent is brought before the court for failure to obey
any lawful order issued under this article or an order of protection
issued by a court of competent jurisdiction of another state,
territorial or tribal jurisdiction in a proceeding and if, after
hearing, the court is satisfied by competent proof that the
respondent has willfully failed to obey any such order, the
court may modify an existing order to add reasonable conditions
of behavior to the existing order of protection, make a new
order of protection in accordance with section eight hundred
forty-two, may order the forfeiture of bail in a manner consistent
with article five hundred forty of the criminal procedure law
if bail has been ordered pursuant to this act, may order the
respondent to pay the petitioner`s reasonable and necessary
counsel fees in connection with the violation petition where
the court finds that the violation of its order was willful,
and may commit the respondent to jail for a term not to exceed
six months. Such commitment may be served upon certain specified
days or parts of days as the court may direct, and the court
may, at any time within the term of such sentence, revoke such
suspension and commit the respondent for the remainder of the
original sentence, or suspend the remainder of such sentence.
If the court determines that the willful failure to obey such
order involves violent behavior constituting the crimes of menacing,
reckless endangerment, assault or attempted assault and if such
a respondent is licensed to carry, possess, repair and dispose
of firearms pursuant to section 400.00 of the penal law, the
court may also immediately revoke such license and may arrange
for the immediate surrender and disposal of any firearm such
respondent owns or possesses. If the willful failure to obey
such order involves the infliction of serious physical injury
as defined in subdivision ten of section 10.00 of the penal
law or the use or threatened use of a deadly weapon or dangerous
instrument, as those terms are defined in subdivisions twelve
and thirteen of section 10.00 of the penal law, such revocation
and immediate surrender and disposal of any firearm owned or
possessed by respondent shall be mandatory, pursuant to subdivision
eleven of section 400.00 of the penal law.
(back to top)
Sec. 847.
Procedures for violation of orders of protection; certain cases.
An assault,
attempted assault or other family offense as defined in section
eight hundred twelve of this article which occurs subsequent
to the issuance of an order of protection under this article
shall be deemed a new offense for which the petitioner may file
a petition alleging a violation of an order of protection or
file a new petition alleging a new family offense and may seek
to have an accusatory instrument filed in a criminal court,
as authorized by section one hundred fifteen of this act. (back to top) |
