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2010 Domestic Violence Legislative Update

November 23, 2010

Author: Amy Schwartz-Wallace

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 September 8, 2010:

NEW LAWS

Family Offenses & Orders of Protection

SERVICE OF EXTENSIONS AND VIOLATIONS OF ORDERS OF PROTECTION PAPERS [A.11100 (Weinstein)/S.8058 (Hassell-Thompson)]:  Effective August 30, 2010, this law amends Family Court Act Section 153-b and DRL 240(3-a) and provides litigants with the same options for police and peace office service of default, extended or modified orders of protection, as well as the petitions and their accompanying papers.   This law now explicitly provides the same access to service of these other common order of protection proceedings as has been traditionally available for original orders and their pleadings.  This law enhances similar legislation from 2007, as well as brings NY into greater compliance with federal requirements under the Violence Against Women Act by making it clear that service of all order of protection-related papers is available at no cost to the litigants.
Passed Assembly 5/5/10; Passed Senate 6/29/10; Signed by the Governor 8/30/10 into Laws of 2010, ch.446

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 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 TO LAW ENFORCEMENT FOR PERSONAL 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 or electronic transmission of orders of protection, temporary orders of protection, and any associated papers from courts to law enforcement to facilitate personal service of process in Family Court and matrimonial actions.  (Note:  this law does not authorize non-personal or alternative service of process on a party and merely provides a quicker method of transferring papers from court for personal service to be conducted by law enforcement.)
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 specifically 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 were far away in time by 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 cannot for the basis of a denial or dismissal.  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 Section 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

ISSUING OPs FOR WITNESSES IN FAMILY COURT JUVENILE DELINQUENCY CASES [A.1870-a (Pheffer)/S.5421 (Sampson)]:  Effective November 28 , 2010 this law amends Family Court Act Section 352.3 by providing that witnesses be granted an order of protection against the respondent upon a showing that the respondent did, or is likely to, intimidate, or attempt to intimidate, said witness. 
Passed Assembly 2/22/10; Passed Senate 6/24/10; Signed by the Governor 8/30/10 into Laws of 2010, ch.421

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.  These services are not being mandated under the law and communications companies the option of offering these protective measures to their customers.      
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.

Temporary and permanent maintenance provisions are effective on October 12, 2010 and apply to those matrimonial actions commended on or after that date.        
Passed both the Senate and the Assembly on 6/30/10; Signed by the Governor 8/13/10 into Laws of 2010, ch.371

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.  

Passed Assembly 5/26/10; Passed Senate 6/16/10, Signed by the Governor 7/15/10 into Laws of 2010, ch.182

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 are 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 Section 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 Governor on 4/14/10 into Laws of 2010, ch. 41

Housing

PROTECTIONS FOR TENANTS FLEEING RENT-REGULATED UNITS DUE TO DV [A.2365-a (O’Donnell)/S.3317-a (Oppenheimer)]:  Effective August 30, 2010, the law amends NYC Administrative Code 26-403 & 26-504; Section 5 of the Emergency Tenant Protection Act of 1974; Section 2 of the Emergency Housing Rent Control Law; and Section 1 of Chapter 21 of 1962 by providing certain victims of domestic violence who have to flee their rent-controlled or rent-stabilized apartments with eviction protections.  While this law is not geographically restricted, as a practical matter, it will almost exclusively impact tenants living in New York City and in the Emergency Tenant Protection Act (ETPA) jurisdictions of Westchester, Rockland and Nassau Counties because it applies only to tenants living in rent-regulated housing (i.e. housing units subject to Rent Control or Rent Stabilization).  Technically, the rent control program still covers a very small number of residential units built in Albany, Erie, Nassau and Westchester counties that are still occupied by tenants associated with the original pre-1947 occupants.  Outside New York City, the ETPA protects tenants in Nassau, Westchester and Rockland counties living in certain types of apartments built before 1974 that are located in localities which have adopted the ETPA protections.  The EPTA protections may also be limited by the localities’ application of EPTA only to buildings of a certain size.  
Passed Assembly 5/5/10; Passed Senate 6/29/10; Signed by the Governor on 8/30/10 into Laws of 2010, ch. 422

Trafficking

MOTION TO VACATE PROSTITUTION CONVICTIONS AGAINST TRAFFICKING VICTIMS [A.7670 (Gottfried)/S.4429 (Duane]:  Effective August 13, 2010, this new law adds a provision to Criminal Procedure Law Section 440.10 and allows a defendant victim of trafficking or sex trafficking to bring a motion to vacate a conviction and dismiss an accusatory instrument where the arresting charge was under Penal Law Sections 240.37 (loitering for the purpose of engaging in a prostitution offense) or 230.00 (prostitution).  In order to qualify for relief, the individual must no longer be a trafficking victim or has sought supportive services in place.  The law also states that official state or federal documentation of the individual’s status as a victim of trafficking or sex trafficking creates a rebuttable presumption that said victim’s participation in the offense was the result of being trafficked.  However, the law provides that such official documentation of the victim’s status is not required for success on the motion.     
Passed Assembly 3/8/2010; Passed Senate 6/15/10; Signed by the Governor on 8/13/10 into Laws of 2010, ch. 332

 
BILLS THAT WERE VETOED BY THE GOVERNOR 

Confidentiality

ADDRESS CONFIDENTIALITY PROGRAM [A.10180 (Weinstein)/S.7379 (Adams)]:  Adds a new section 108 to the Executive Law by creating an address confidentiality program for receipt and forwarding of mail and for service of process at the NYS Office of the Secretary of State. (Note: a similar bill was passed in 2009 but vetoed by the Governor for a variety of fiscal and clarity reasons.)  While he believed in the legislation’s overall goal, this bill was vetoed on August 13, 2010 both because of its fiscal implications (estimated at $5 million dollars) on the administrating state agency (the Department of the State) and because of a difference of opinion between the Governor and the Legislature on the definition of “victim of domestic violence.”   The Governor determined that the bill’s language was overly broad and would provide relief to a variety of victims who experienced too wide a variety of crimes against them.      
Passed Assembly 3/16/10; Passed Senate 6/16/10; Vetoed by the Governor on 8/13/10 in Veto Message #6764.

Economic Justice

ANTI-DISCRIMINATION PROTECTIONS IN HOUSING, EDUCATION, AND PUBLIC ACCOMODATIONS FOR DV VICTIMS [A.9020-a (Destito)/S.5999-a (Hassell-Thompson)]:  Amends Executive Law Sections 292(34) and 296 by prohibiting housing-related discrimination, as well as discrimination in education and public accommodations against victims of domestic violence.  The bill was vetoed by the Governor on August 13, 2010 based upon a difference of opinion between the Governor and the Legislature on the definition of “victim of domestic violence.” While he believed in the legislation’s overall goal, the Governor determined that the bill’s language was overly broad and would provide relief to a variety of victims who experienced too wide a variety of crimes against them.      
Passed Assembly 3/16/10; Passed Senate 6/16/10; Vetoed by the Governor on 8/13/10 in Veto Message #6759

EXPANDED ANTI-DISCRIMINATION IN EMPLOYMENT PROTECTIONS FOR DV VICTIMS [A.9018-a (John)/S.6000-a (Hassell-Thompson)]:  Amends Executive Law Sections 292(34) and 296 by enhancing and expanding existing employment-related discrimination protections for victims, including providing limited reasonable accommodations (i.e. leave time for medical attention, to obtain legal services, or seek shelter). The bill was vetoed by the Governor on August 13, 2010 based upon a difference of opinion between the Governor and the Legislature on the definition of “victim of domestic violence.” While he believed in the legislation’s overall goal, the Governor determined that the bill’s language was overly broad and would provide relief to a variety of victims who experienced too wide a variety of crimes against them.      
Passed Assembly 3/16/10; Passed Senate 6/16/10; Vetoed by the Governor on 8/13/10 in Veto Message #6760

COURT TRANSCRIPTS FOR HOMICIDE VICTIMS’ FAMILY MEMBERS [A.3514-a (Gianaris)/S.7852 (Addabbo]:  Adds a new section 380.75 to the Criminal Procedure Law and provides a homicide victim’s family member a copy of the proceedings/trial transcript where the defendant was convicted of such crime.  The cost of this transcript will be charged to the county or NYC. This bill was vetoed on August 13, 2010 because of its fiscal implications on counties and the City of New York, in violation of Executive Order #17.   
Passed Assembly 2/23/10; Passed Senate 6/15/10; Vetoed by the Governor on 8/13/10 in Veto Message #6749

 





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