2010 Domestic Violence Legislative Update

August 19, 2010

Author: Amy Schwartz

The following is a summary of this session’s domestic violence-related bills that passed both houses of the New York State Legislature or were recently signed into law by Governor Paterson. This update is current as of August 17, 2010:

FAMILY OFFENSES & ORDERS OF PROTECTION

ELIMINATION OF MARITAL EXEMPTION IN “SEXUAL CONTACT” DEFINITION [A.9938-a (Paulin )/S.7702-a (Foley)]: Effective October 13, 2010, this law amends Penal Law Sections 130.00(3) & 260.31(2). It removes the existing marital exemption and further adds “emission of ejaculate by the actor upon any part of the victim, clothed or unclothed.” The “sexual contact” definition is used in numerous sexual offense-related penal laws, including Sexual Abuse in the 2nd and 3rd Degrees. In the domestic violence context here, both Sexual Abuse offenses are specifically enumerated family offenses. In addition to broadening the prescribed conduct, this law conclusively settles any legal question and overrides case law that prevents married victims of sexual violence from asserting a civil or criminal cause of action for these incidents. Re-passed Assembly 6/8/2010; Passed Senate 6/15/10; Signed by the Governor 7/15/10 into Laws of 2010, ch.193.

NEW FAMILY OFFENSES OF CRIMINAL OBSTRUCTION OF BREATHING/BLOOD CIRCULATION & STRANGULATION [A.10161-a (Lentol)/S.6987-a (Schneiderman)]: Effective November 11, 2010, this comprehensive bill that creates a new set of strangulation-related offenses crimes and family offenses. Also includes additional provisions related to wiretapping, DNA database collection, hate crimes, enhanced penalties and other restrictions. Passed Assembly 6/10/10; Passed Senate 6/7/10; Signed by the Governor 8/13/10 into Laws of 2010, ch.405.

ELECTRONIC TRANSMISSION OF OPs FOR SERVICE [A.10410 (Rosenthal)/S. 7289 (Sampson)]: Effective July 30, 2010, this law amends FCA Section 153-b and DRL Sections 240 & 252 and authorizes permanent statewide facsimile transmission or transmission by electronic means of orders of protection, temporary orders of protection, and any associated papers to facilitate service of process in Family Court and matrimonial actions. Passed Assembly 4/21/10; Passed Senate 6/16/10; Signed by the Governor 7/30/10 into Laws of 2010, ch.261.

NON-CONTEMPORANEOUS INCIDENTS [A.8393-a (Weinstein)/S.5696-a (Sampson)]: Effective August 13, 2010, this new law amends Family Court Act Sections 446, 551, 656, 759, 812, 842 & 1056, as well as Domestic Relations Law 240. Provides that orders of protection shall not be denied, in support, paternity, child custody and visitation, termination of parental rights, PINS, family offense, child welfare, and matrimonial proceedings, solely on the basis that the events alleged in the petition or at the conclusion of the action are “not contemporaneous.” This law was intended to trump numerous appellate decisions that incorrectly limited access to relief where the alleged or proven incidents of domestic violence did not occur contemporaneously with the petition or the end of the proceedings. This law became effective immediately upon signing and applies to all orders of protection that are pending or entered on or after August 13, 2010. Passed Assembly 3/16/10; Passed Senate 6/16/10; Signed by the Governor 8/13/10 into Laws of 2010, ch.341.

EXTENDING OPs FOR GOOD CAUSE OR UPON CONSENT [A.6195-a (Weinstein)/S.2972-a (Sampson)]: Effective August 13, 2010, this new law amends Family Court Act Section 842 and provides that orders of protection may be extended for good cause or upon parties’ consent. Further, if abuse has not occurred during the pendency of an order, this fact in and of itself. The bases for all decisions must be set forth on the record. This law became effective immediately upon signing and applies to all orders entered before the law’s effective date, and applies to all proceedings pending on or commenced on or after August 13, 2010. Passed Assembly 3/16/10; Passed Senate 6/16/10; Signed by the Governor 8/13/10 into Laws of 2010, ch.325.

REFEREES TO HEAR EX PARTE OPs BEFORE AND AFTER 5pm [A.10851-a (Weinstein)/S.8013 (Sampson)]: Effective August 13, 2010, this law replaces and adds Judiciary Law 212(2)(n) and, for 2 more years, grants the Court’s Chief Administrator the authority to allow referees to determine ex parte Family Court applications for an OP when the court is in session or after 5pm. Passed Assembly 5/26/10; Passed Senate 6/16/10; Signed by the Governor 8/13/10 into Laws of 2010, ch.363.

CONFIDENTIALITY

FREE UNLISTED/ALTERNATIVE PHONE LISTINGS FOR DV VICTIMS WITH OPs [A.6509-b (Rivera, N.)/S.5615-a (Parker)]: Effective December 11, 2010, this new law amends Public Service Law Section 91 and General Business Law Section 399-yy by providing victims with POPs a free unlisted local or cable telephone number or alternative/modified directory listing. Re-passed Assembly 4/8/10; Passed Senate 6/16/10; Signed by the Governor 8/13/10 into Laws of 2010, ch.327.

CIVIL RIGHTS

CIVIL REMEDY FOR BIAS-MOTIVATED VIOLENCE AND INTIMIDATION [A.529 (Destito)/S.5923 (Parker)]: Effective August 31, 2010, this law adds a new Section 79-n to the Civil Rights Law and provides a civil cause of action remedy to redress bias-related violence and intimidation injuries sustained to both person and property where the offense was committed based upon gender (including gender identity and expression), race, color, religion, national origin, ancestry, religious practice, age, disability, or sexual orientation. Also includes an award for attorney’s fees to the prevailing party.

(Note: In the Governor’s Approval Memo# 7 for this law, he indicated civil litigation rules of the CPLR would apply to litigation under this statute and parties seeking redress must prove “ actual harm” caused by the bias-motivated violence and intimidation before damages may be collected, and imminent and irreparable harm must be demonstrated before injunctive relief can be granted per CPLR 6301. Additionally, the relief would not be available where existing discrimination laws already provide protection [such as in employment or housing] unless the plaintiff could show bias-related violence or intimidation in the discriminatory conduct).
Approval Memo #7 is available online at: http://public.leginfo.state.ny.us/menugetf.cgi.
Passed Assembly 4/21/10; Passed Senate 6/15/10; Signed by the Governor 7/30/10 into Laws of 2010, ch.22.

DIVORCE REFORM

NO-FAULT DIVORCE [A.9753-a (Bing)/S.3890-a (Hassell-Thompson)]: Effective October 12, 2010, this new law amends Domestic Relations Law Section 170 and adds a new ground for divorce where the “relationship between husband and wife has broken down irretrievably for a period of at least six months.” Under the law, no divorce judgment would be granted unless all other attendant matters are resolved including child custody and visitation, equitable distribution, spousal and child support, and counsel and expert fees. The law applies to matrimonial actions commenced on or after October 12, 2010. Passed Assembly 7/1/10; Passed Senate 6/15/10; Signed by the Governor 8/13/10 into Laws of 2010, ch.384.

MAINTENANCE GUIDELINES [A.10984-b (Paulin)/S.8390 (Hassell-Thompson)]: This law comprehensively amends the existing maintenance law in Domestic Relations Law Section 236 by:

1. Creating a new sub-section 5-a which establishes a process for determining the presumptive amount of temporary maintenance awards with enumerated deviation factors where the presumptive award would be unjust or inappropriate (i.e. domestic violence);
2. Amending subdivision 6 of part B of DRL Section 236 by supplementing existing factors for determining final or post-divorce maintenance awards;
3. Amending Part B of DRL Section 236 by adding a new subdivision 6-a directing the New York State Law Revision Commission to study and assess the economic consequences of divorce on married couples, to review the spousal maintenance laws and to submit a preliminary report within 9 months of its effective date, as well as a final report to the Legislature and the Governor with recommendations by December 31, 2011 (this section was effective immediately on August 13, 2010);
4. Amending subdivision 1(a) of Part B of DRL Section 236 to cross-reference the updated definition of and process for determining maintenance in subdivision 5-a;
5. Directing the Chief Administrator of the Courts to promulgate all rules necessary to implement the provisions of this act; and
6. Establishing the effective dates for the various new sections and amendments.

PAYMENT OF COUNSEL & EXPERT FEES IN DIVORCE ACTIONS [A.07569-a & A.11576 (chapter amendment) (Weinstein)/S. 4532-a & S.8391 (chapter amendment)(Sampson)]: Effective October 12, 2010, this new law amends Domestic Relations Law Sections 237 & 238 and provides for the payment of all counsel and expert fees in matrimonial actions by the more monied party to such action; adds actions to obtain maintenance or distribution of property after a foreign judgment of divorce to the actions for which such fees shall be awarded; directs the court to assure that each party is adequately represented; such actions shall also include actions to enforce a court order. The Chapter Amendment (A.11576/S.8391) modified the effective date from 120 days to 60 days after signing. Passed Assembly 5/18/10; Passed Senate 6/15/10; Effective date amended and then re-passed as a Chapter Amendment in both houses 7/1/10; Signed by the Governor 8/13/10 into Laws of 2010, ch.329 and ch.415 (chapter amendment).

PENSION EXEMPTION FROM AUTOMATIC ORDERS [A.8378-a (Weinstein)/S.5588-a (Sampson)]: Retroactively effective back to September 1, 2009, this law was a Chapter Amendment modifying the automatic order legislation from Laws of 2009, ch. 72. The amendment to Domestic Relations Law Section 236B(2)(b)(2) now exempts transfers of retirement plan assets from the restrictions upon transfers of assets upon the commencement of matrimonial actions where a party is receiving payments from the retirement plan (known as “pay status”). With this change, retirees may continue to receive retirement benefits even where a matrimonial proceeding was commenced. Passed Assembly 3/10/10; Passed Senate 2/8/10; Signed by the Governor on March 30, 2010 into Laws of 2010, ch. 32.

CHILD SUPPORT

LOW INCOME SUPPORT OBLIGATION AND PERFORMANCE IMPROVEMENT ACT [S.5570-a (Hassell-Thompson) /A.8952 (Weinstein)]: Effective October 13, 2010, this comprehensive law makes numerous changes to existing child support statutes:

1. Amends Tax Law §§606 and 697 to allow the NYS Department of Taxation and Finance to share information necessary to evaluate the impact of the Noncustodial Parent Earned Income Tax Credit;
2. Amends Tax Law §§171-a and 171-h and requires employers to report the availability of employer-sponsored family health insurance as part of the Quarterly Wage report and the New Hires report;
3. Amends FCA §451 and DRL §236-B(9)(b) to conform the language governing the modification of child support orders so that both the FCA and the DRL provisions would each provide for a "substantial change in circumstances" as a basis for modification of an order of child support. Unless litigants specifically “opt out”, affords all litigants standing to apply for a modification without showing a change in circumstances where either (a) three years have passed or (b) there is a 15% change in either party’s gross income. Also provides that incarceration would not be a bar to finding a substantial change in circumstances, except where the incarceration is the result of non-payment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment;
4. Adds a news FCA §437-a and authorizes the Family Court to require a non-custodial parent to seek employment or work training/counseling if unemployed at the time the support order is established, unless the parent is in receipt of SSI or SSD;
5. Amends Social Services Law §111-h and states that where the Family Court directs the respondent to participate in a work program and the program triggers the parent’s child support payments, the Support Collection Unit would be barred from filing a petition to modify the child support order for 1 year;
6. Amends FCA §440 and DRL §236-B(7) to require all orders contain notice information about the right to modify such order.

VOTING PROTECTIONS

AMENDMENT TO SPECIAL BALLOTS FOR DV VICTIMS [A.3910A (Gabryszak)/S.1535-A (Morahan)]: Effective April 14, 2010, this new law modifies the 1996 statute (Election Law Section 11-306) authorizing domestic violence victims to cast paper ballots at the Board of Elections, rather than having to appear at their assigned polling places for elections. The law now specifically allows victims of domestic violence to obtain protection where: (1) the victim or a member of their “family or household” has left their home due to the violence; and (2) the flight from the home was a result of the threat of physical or emotional harm toward the individual or toward a member of their family or household. “Members of the same household or family” is defined as including a current or former spouse, persons related by blood or marriage, person with whom the victim has a child in common, or a person in a current or former “intimate relationship.” (Note: this new definition of victim of domestic violence does not mirror the existing definitions of “victim of domestic violence” presently contained in the FCA, CPL, or SSL and it is not the same as the definition now contained in Election Law 5-508.) Passed Assembly 3/16/2010; Passed Senate 3/22/10; Signed by the Governor 4/14/10 into Laws of 2010, ch. 38.

COURT ORDERS PROVIDING FOR THE CONFIDENTIALITY OF DV VICTIMS’ ELECTION RECORDS [A.9368 (Gabryszak)/S.5945-a (Foley)]: Effective May 5, 2010, this new section 5-508 of the Election Law allows a domestic violence victim to make application to the Supreme Court of the county in which said victim is registered to vote for an order to keep their election registration records confidential. Where granted, the election registration records must be kept separate from other records and not be made available for inspection or copying except by election officials where such records within the scope of their official duties and are pertinent and necessary to the performance of their official duties. In determining access to this confidentiality protection, the law defined “victim of domestic violence” to include a current or former spouse, persons related by blood or marriage, person with whom the victim has a child in common, or a person in a current or former “intimate relationship” (akin to FCA 812). Further, the individual must also have been the victim of a violent felony, disorderly conduct, harassment in the first or second degree, aggravated harassment in the second or third degree, stalking in the fourth degree, criminal mischief, menacing in the second or third degree, reckless endangerment, assault in the third degree or an attempted assault, and such acts resulted in actual physical or emotional injury or created a substantial risk of physical or emotional harm to the victim or the victim’s child. (Note: this new definition does not fully mirror the existing definitions of “victim of domestic violence” contained in the FCA, CPL, or SSL and only includes victimization by certain enumerated crimes.) Passed Assembly 4/21/2010; Passed Senate 3/17/10; Signed by the Governor 5/5/10 into Laws of 2010, ch. 73.

ATTORNEYS FOR THE CHILD

RENAMING “ATTORNEY FOR THE CHILD” [A.7805-b (Weinstein) /S.5461-b (Schneiderman)]: Effective April 14, 2010, amends CPLR Section 1101, Domestic Relation Law Sections 75-f, 76-f, 112-b, 113, 115-b, 240 & 254; Executive Law Sections 503 & 508; Judicial Law Sections 35 & 35-a; Public Health Law Sections 2306 & 2782; Social Services Law Sections 358-a, 372, 383-c, 384, 384-a, 384-b, 409-e, 409-f & 422; and the Family Court Act generally. Replaces the term "law guardian" with the term "attorney for the child" to more accurately reflect the attorney's role. Passed Assembly 3/8/2010; Passed Senate 3/15/10; Signed by the Governor4/14/10 into Laws of 2010, ch. 41.