2008 New York State Domestic Violence and Related Laws
The Following Bills Have Been Signed Into Law by the Governor:
False Reporting of Child Abuse (A.5188-a Bradley / S.8615 Saland)
Expands the crime of falsely reporting an incident in the third degree, to include false reports of child abuse or maltreatment to a mandated reporter, as defined in Social Services Law §413. Prior to this change, the law only applied in cases where false reports were made directly to the NYS central register.
Effective: February 1, 2009 Chapter 400
Probation Violations (A.11721 Aubrey / S.8128 Johnson)
Requires courts to respond to a probation department’s request for a probation warrant or issuance of a declaration of delinquency within 72 hours of receiving a report of an alleged incident. Also requires alleged violators to be brought before the court within 10 business days. All probation warrants must be entered into the statewide law enforcement electronic criminal justice network within 48 hours of being issued.
Effective: November 1, 2009 Chapter 652
Family Court Access (A.11707 Weinstein / S.8665 Winner)
Amends the criminal procedure law and the Family Court Act to allow more victims to seek an order of protection in Family Court. The new law expands the definition of family/household member to include victims who are or have been in an intimate relationship, regardless of whether they have lived with the abuser or whether the relationship is of a sexual nature. This will include LGBT and dating relationships (including teens). Mandatory arrest provisions will apply to these relationships when a crime has been committed. Previously, only individuals who are or have been married, share a child in common or are related by blood or marriage were eligible for an order of protection in Family Court.
Effective: July 21, 2008 Chapter 326
Custody/Child Abuse Allegation (A.7089-A Bing / S.6201-A Duane)
Prevents a parent from being penalized in custody and visitation decisions, when the parent made a good faith allegation that a child is the victim of abuse, neglect or domestic violence, or when the parent takes any subsequent actions to protect or seek treatment for the child. The law also requires the court to consider any allegations of abuse when determining visitation and prohibits granting custody to a parent who presents a substantial risk of harm to the child.
Effective: September 4, 2008 Chapter 538
Joint Property/Criminal Mischief (A.6308-A Weinstein / S.2061-A DeFrancisco)
Clarifies in penal law, specific to the crime of criminal mischief, that “property of another” applies to property that is jointly owned, allowing criminal mischief charges to be brought when two individuals jointly own property and one damages the property. This bill makes it clear that an abuser can no longer claim that, because he was a joint owner of property, he had the right to destroy the property. * In signing the new law, the Governor expressed concern that the language providing a defense to damaging property requires a co-owner to have given consent to such action. Given that a spouse or co-owner could damage or discard jointly-owned property for various innocent reasons, the Governor requested, and the Legislature has agreed, to amend the law during the next session to eliminate the rigid requirement of explicit consent from co-owners. (Approval Message #40)
Effective: November 1, 2008 Chapter 601
Safe Harbour For Sexually Exploited Children Act (A.5258-C Scarborough / S.3175-C Volker)
Consistent with the treatment of adult trafficking victims under New York’s 2007 Anti-trafficking Law, this law offers a supportive, service-based, non-criminal response to children who are “sexually exploited,” as defined by the new law. Requires social services districts to identify the use of existing youth services, and to the extent that funds are available, provide preventive services, such as short-term safe houses. Requires the Family Court, with certain exceptions, to treat a youth under age 18 as a Person In Need of Supervision (PINS), rather than a juvenile delinquent, when arrested for prostitution . Non-compliance by the youth may result in the case being converted back to a juvenile delinquency proceeding. The NYS Office of Children and Family Services is required to contract with an appropriate community agency to operate at least one safe house in NYS, in a location that can protect children in a geographic region of high need.
Effective: April 1, 2010 Chapter 569
Undocumented Alien Shelter Reimbursement (A.10228 Paulin / S.7185 Saland)
Makes undocumented immigrant victims of domestic violence eligible for domestic violence services in New York State. This change will allow domestic violence service providers to be reimbursed for residential services provided to these victims.
Effective: September 25, 2008 Chapter 584
Order of Protection/Supervision or Detention (budget bill)
Requires criminal and family courts to provide a copy of an order of protection to the state or local correctional or jail facility where a defendant/respondent will be detained or to the supervising probation department or Division of Parole. The new law also provides probation officers with access to the domestic violence order of protection registry, subject to appropriate confidentiality laws.
Effective: April 1, 2008 Chapter 56, Part D
Preventing Emergency Call (A.614 Paulin / S.2452 Saland)
Makes it a crime to prevent a person from communicating a request for emergency assistance by intentionally disabling or removing communication equipment, such as a telephone or teletypewriter device (TTY). The new crime was added to criminal mischief in the fourth degree, making it a class A misdemeanor.
Effective: July 6, 2008 Chapter 69
Custody/Registries Check (A.11657-A Weinstein / S.8569-A DeFrancisco)
Requires judges to review the following records, prior to issuing a permanent or successive temporary order of custody or visitation:
- reports of the sex offender registry
- reports of the statewide computerized registry of orders of protection
- any related Article 10 decisions from child abuse and neglect proceedings
The law does not require these checks for an initial temporary order of custody. However, checks must be completed when a subsequent order is issued after more than one month has passed since the first temporary order. The law also requires the Office of Children and Family Services (OCFS), in conjunction with the Office of Court Administration, to conduct a study assessing the feasibility of connecting court computers to the OCFS computer system for the purpose of accessing the State Central Register of Child Abuse and Maltreatment (SCR).
* In signing the new law, the Governor noted that several concerns had been raised over the limitations and problems involved in using information from the SCR. He requested that, in addition to examining technological feasibility, OCFS include in the study an analysis of any policy or programmatic concerns that would result if access to SCR records was granted. (Approval Message #38)
Effective: March 24, 2009 Chapter 595
Child Protective Services/Criminal History Records (A.4425-A Mayersohn / S.2978-A Robach)
Provides child protective services personnel with access to the criminal history records of individuals named in a report of suspected child abuse or individuals living in the home of a child suspected of being abused or maltreated. The law authorizes access for a local child protective agency manager or a person with law enforcement background that is designated by the local social services commissioner. If a conviction record is found in the NYS Division of Criminal Justice Services’ criminal history records, the new law specifies that child protective services “shall not indicate a report” solely on the basis of such conviction.
Effective: September 25, 2008 Chapter 602
Custody/Military Law (A.8722-A Ortiz / S.5860-A Rath)
Prohibits a permanent change in custody, and establishes standards and procedures for a temporary change in custody, while a parent is activated, deployed, or temporarily assigned to military service. If a temporary change is sought, a law guardian must be appointed to represent the child. The law provides guidance for facilitating contact while the military parent is away, establishing a parenting schedule when the parent is on leave and reviewing circumstances when the parent returns, to determine if there should be a change or modification to the custody order.
Effective: March 24, 2009 Chapter 576
Child Abuse/Multidisciplinary Teams (A.7858-E Destito / S.5482-E Griffo)
Seeks more efficient delivery of services to victims by improving the collaboration of local multidisciplinary teams that investigate child abuse and maltreatment. The law expands team membership, clarifies member participation, and encourages joint interviews of child victims to minimize trauma. Clarifies the types of cases that a team may investigate by replacing the current generic reference to “cases involving serious abuse of children” with language that references the Family Court Act definition of an abused child, and specifically adds cases involving sexual abuse or the death of a child.
Effective: March 24, 2009 Chapter 574
Mandated Reporters/Alcohol and Substance Abuse Professionals (A.10664 Ortiz / S.7536 Kruger)
Expands the list of professionals required to report suspected child abuse or maltreatment to include “all persons credentialed by the office of alcoholism and substance abuse services.” Substance abuse counselors and alcoholism counselors are already mandated reporters. The new law includes more recent credentials offered by the Office of Alcoholism and Substance Abuse Services, including, prevention professional and prevention specialist.
Effective: July 21, 2008 Chapter366
Aggravated Harassment/Digital Technologies (A.9673 Flanagan / S.7994 Spano)
Clarifies that any written communication “transmitted or delivered” with the intent to cause annoyance or alarm constitutes aggravated harassment. The definition of “written communication” is expanded to include newer digital technologies, such as compact disc and DVD recordings.
Effective: December 3, 2008 Chapter 510
Order of Protection/Pets (A.8855-A Rosenthal / S.4541-A Kruger)
Amends the 2006 law that authorized the inclusion of companion animals or pets in criminal or family court orders of protection to now include orders issued in Supreme Court matrimonial cases. In addition, the new law changes the language referring to “petitioner” to read “the person protected by the order” in orders of protection issued under sections of the Family Court Act where the government or prosecutor, rather than the victim, petitions the court (i.e., child support, juvenile delinquency, etc.).
Effective: July 6, 2008 Chapter 532
Free Credit Report Freeze (A.8634-D Pheffer / S.5543-E Fuscillo)
Allows victims of domestic violence to protect their credit reports by placing, or temporarily lifting, a freeze on their credit report, without charge. To be eligible, victims must have an order of protection, a DIR (domestic incident report), a police report, or a signed affidavit from a service provider. Prohibits credit reporting agencies from sharing with any third party the basis for the requested freeze.
Effective: August 5, 2008 Chapter 406
Judicial Hearing Officer Pilot Program (A.8781 John / S.5938 Nozzolio)
Extends for three more years, until July 21, 2011, the use of judicial hearing officers to issue orders of protection in the Family Courts of the seventh and eighth judicial districts, when application for an order occurs after 5:00 P.M. These districts include the counties of western New York. Currently, Monroe and Erie counties are utilizing this option.
Effective: July 21, 2008 Chapter 290
Judicial Hearing Officer/Referee Extension (A.11459 Weinstein/ S.8303-A Defrancisco)
Extends for another three years, until September 1, 2011, the use of judicial hearing officers (JHO) and referees to issue orders of protection in New York City Family Courts, when application for an order occurs after 5:00 P.M.
Effective: July 7, 2008 Chapter 216
Physicians Assistants/Sexual Assault Forensic Examiners (A.10395-AGottfried / S.7629 Hannon)
Authorizes licensed physician assistants to act as sexual assault forensic examiners when they have been trained and certified in the examination and preservation of forensic evidence in sexual assault cases.
Effective: July 21, 2008 Chapter 292
New York State Domestic Violence Advisory Council Membership (A.10489-A Seminario / S.7437-A Kruger)
Adds two new members to enhance the effectiveness of the New York State Domestic Violence Advisory Council: the Department of Correctional Services and the Division of Parole. Both agencies enforce orders of protection against individuals under their supervision work with abusers and victims who are incarcerated or who are released under parole supervision, and deal with victim safety in the community.
Effective: July 7, 2008 Chapter 255
The following bills have been vetoed by the Governor:
Forensic Exam Reimbursement (A.5206-B Paulin /S.5052-A Saland)
Provides for the NYS Office of Victim Services (OVS) to directly reimburse hospitals and child advocacy centers for forensic assessment of possible child abuse victims.
Veto message supported the use of child abuse pediatricians for child abuse exams, but raised concerns about expanding direct provider reimbursement by OVS (traditionally, a direct reimbursement mechanism for crime victims). The message referenced potential unintended consequences, such as a gap between when the bill will be implemented in 2008 and when the state will certify child abuse pediatricians in 2010. Another unintended effect noted is the potential cost that could occur as a result of the bill’s broad language, which includes every case reported to the child abuse registry, in addition to examinations requested by law enforcement personnel or by the hospital treating the child. In considering reimbursement to health care providers for these examinations, the Governor proposed taking more direct steps to do so through enhancing private insurance or government health benefit programs.
Victim Service Notification (A.9641 Gunther / S.6906 Volker)
Requires the courts to inform victims of the opportunity to register a telephone number with the state's victim notification system and requires notification when a criminal ex-parte order of protection or summons has been served. Also requires local law enforcement or any government agency responsible for serving ex parte orders of protection to record service in a law enforcement database/electronic record keeping system.
Veto message supported the intent of the bill to provide timely notice to victims when an order of protection has been served, but notes major flaws in the bill. The bill is unclear as to how the current order of protection registry would connect with the current VINE victim notification system, what the role of court clerks would be, and ultimately, how victims would be notified. Further, the bill only applies to criminal court, leaving Family Court cases without a remedy. The veto message directs OPDV to work with the Legislature, and other relevant agencies, to develop effective ways to address the problems posed by victim notification.