Legislative Memorandum 

Empire Justice Memo of Support: Guard the Safety and Welfare of Abuse Victims and Their Children

A.6195-A/S.2972-A

Family Court Act §842 has long-provided victims of domestic violence with orders of protection that have helped to curtail frightening violence, threats, and intimidation by their abusers.  For many victims and their children, these orders of protection worked as specifically intended—they prevented new abusive conduct and relatively “kept the peace” during their tenure.  Under New York law these orders are subject to expiration dates.  As these expiration dates fast approach, certain victims are extremely concerned and anxious about a recurrence of abuse once they are no longer subject to the order’s protective reach.  These victims may have ongoing contact with their abusers, such as pending litigation or child-related contact and fear new violence and family disruption.  Abusers may have been incarcerated due to domestic violence and the release date ignites fear of new contact and the potential for violence.  Recognizing these victim concerns years ago, the Legislature previously provided that orders of protection may be extended for a reasonable period of time upon the showing of “special circumstances.”       

Since its inception, the current law offers some relief but its vague drafting has generally resulted in confusion and debate among courts and litigants about whether orders may truly be extended, how such extension should be procedurally accomplished, and upon what circumstances.  One court openly questioned whether a hearing was warranted before an order could be extended.  J.G. v. B.G. (11/18/99 N.Y.L.J. 36, (col. 3)  Anecdotally, victims reported limited or no success showing that “special circumstances” existed for such an extension where the order of protection was actually effective and there were few or no new incidences of abuse or intimidation during its pendency.  Further, the law did not define the term “special circumstances” thereby leaving interpretation to the courts.  To date, however, there are only two published trial court rulings from one Family Court judge on Long Island and no appellate case law interpreting this section of the statute.  As a result of these challenges, the law has not been well-used.  It has long been clear that this provision required modification in order to better implement the Legislature’s laudable and important goal of extending orders of protection where such relief was warranted. 

A.6195-A/S.2972-A is such a fix.  By changing the standard of proof from “special circumstances” to “good cause shown,” the level and nature of the evidence required for this showing is more consistent with other burdens of proof also found in Article 8.  Further, the bill makes it clear that such relief must be commenced upon motion and the basis of a court’s final decision regarding extension must be articulated on the record.  The bill also makes it clear that an order may also be granted in situations where the parties mutually consent.  Finally, in evaluating the proof presented, the bill also states that where abuse has not occurred during the pendency of the order, this fact, in and of itself, shall not alone be determinative for a court to deny or dismiss the request for relief.  As a result of this particular provision, courts shall be required to examine the family’s past history and present circumstances and victims of domestic violence and their children will not be forced to endure a terrible new incident of abuse or intimidation in order to establish the grounds necessary for an extended order of protection.             

Empire Justice Center applauds the Assembly and Senate for passing this bill in 2010.  We now urge the Governor to guard the safety and welfare of abuse victims and their children by now signing A.6195-A/S.2972-A into law.  

07/12/10