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UPDATE: Governor Signs Probation Transfer Fix

UPDATE:

Thank you to Governor Cuomo for increasing the safety and security of victims of domestic violence by signing several new bills into law.  By enacting L.2012, Ch.470, the Governor recognized and ameliorated the probation transfer-related venue concerns raised by Empire Justice Center (see letter below) in both family offense (Family Court Act §818) and child support (Family Court Act §419) cases.  Additionally, the Governor enacted a law increasing the maximum length of stay in residential domestic violence programs from 135 day to 180 days those families who need housing and support services in L.2012, Ch.459.

Governor Andrew Cuomo
Executive Chamber
State Capitol
Albany, NY 12224

VIA Email

Dear Governor Cuomo,

Chapter 97 of the Laws of 2011 made considerable changes to Family Court Act §176’s provisions addressing inter-county probation.  While the law’s laudable goal was to streamline probation transfer operations from one county to another in a variety of Family Court matters, the sweeping amendments imposed negative venue-related consequences upon certain litigants. 

In family offense proceedings, Family Court Act §818 states that a petitioner may file in the county where the offensive conduct allegedly occurred, or in any county where any of the parties reside, including where the victim resides in a domestic violence or homeless shelter.  Under the 2011 statutory scheme, however, if a respondent was placed on probation after a finding of a family offense or upon violation of an order of protection and that respondent relocated with an approved probation transfer, the respondent-probationer’s new home county would be the only available venue for any subsequent proceedings.  For example, if the probationer now lives in Long Island and violates an order of protection issued in Monroe County Family Court, the victim would be required to travel significant distance at considerable expense in order to hold the abuser accountable.  Without question, some victims will not have the financial resources or the ability to litigate a case outside of their home county. Geographic prohibitions may mean that victims and their children may not have access to legal counsel or to an attorney for the child who is well-acquainted with the family’s case history.    

Requiring victims to travel and litigate matters solely in the abuser’s county of residence also increases the potential for further violence and abuse.  Probation sentences are generally imposed upon those offenders who pose significant risk to their families or require heightened law enforcement agency monitoring.  Requiring these same victims to travel to this type of abuser’s community is both unfair and, likely, dangerous.  This is of particular concern as the victim’s trusted safety net of local police agencies, family, friends, and domestic violence advocates is not portable.

Similarly, pursuant to Family Court Act §419, child support proceedings may be venued in any county in which a party resides and may be transferred by Family Court, in accordance with CPLR Article 5.  Because the 2011 amendments may strip venue from the originating court, any further child support-related proceedings would be heard in the probationer’s county of residence, rather than the county where the other parent, or even the child, resides.       
 
Passed by the Senate and Assembly in June 2012, A.10415a/S.7589a ameliorates certain problems caused by the 2011 amendment by leaving existing applicable venue provisions intact.  Empire Justice Center believes the bill strikes a reasonable balance between the administration of probation, judicial discretion, and the rights and needs of domestic violence victims and parents.          

We urge the Governor to protect choice of venue by signing A.10415a/S.7589a into law.

Most Sincerely,

Amy Schwartz
Senior Staff Attorney

October 4, 2012