Domestic Abuse Laws
New York
2001
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ARTICLE 8 - FAMILY OFFENSES PROCEEDINGS
Part 1. Jurisdiction.
Part 2. Preliminary procedure.
Part 3. Hearing.
Part 4. Orders.
Sec. 812. Procedures for family offense proceedings.
1. Jurisdiction. The family court and the criminal courts shall have concurrent jurisdiction over any proceeding concerning acts which would constitute disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, stalking in the first degree, stalking in the second degree, stalking in the third degree, stalking in the fourth degree, menacing in the second degree, menacing in the third degree, reckless endangerment, assault in the second degree, assault in the third degree or an attempted assault between spouses or former spouses, or between parent and child or between members of the same family or household except that if the respondent would not be criminally responsible by reason of age pursuant to section 30.00 of the penal law, then the family court shall have exclusive jurisdiction over such proceeding. Notwithstanding a complainant`s election to proceed in family court, the criminal court shall not be divested of jurisdiction to hear a family offense proceeding pursuant to this section. For purposes of this article, "disorderly conduct" includes disorderly conduct not in a public place. For purposes of this article, "members of the same family or household" shall mean the following:
(a) persons related by consanguinity or affinity;
(b) persons legally married to one another;
(c) persons formerly married to one another; and
(d) persons who have a child in common regardless whether such persons have been married or have lived together at any time.
2. Information to petitioner or complainant. The chief administrator of the courts shall designate the appropriate persons, including, but not limited to district attorneys, criminal and family court clerks, corporation counsels, county attorneys, victims assistance unit staff, probation officers, warrant officers, sheriffs, police officers or any other law enforcement officials, to inform any petitioner or complainant bringing a proceeding under this article, before such proceeding is commenced, of the procedures available for the institution of family offense proceedings, including but not limited to the following:
(a) That there is concurrent jurisdiction with respect to family offenses in both family court and the criminal courts;
(b) That a family court proceeding is a civil proceeding and is for the purpose of attempting to stop the violence, end the family disruption and obtain protection. Referrals for counseling, or counseling services, are available through probation for this purpose;
(c) That a proceeding in the criminal courts is for the purpose of prosecution of the offender and can result in a criminal conviction of the offender;
(d) That a proceeding or action subject to the provisions of this section is initiated at the time of the filing of an accusatory instrument or family court petition, not at the time of arrest, or request for arrest, if any;
(f) That an arrest may precede the commencement of a family court or a criminal court proceeding, but an arrest is not a requirement for commencing either proceeding; provided, however, that the arrest of an alleged offender shall be made under the circumstances described in subdivision four of section 140.10 of the criminal procedure law;
(g) That notwithstanding a complainant`s election to proceed in family court, the criminal court shall not be divested of jurisdiction to hear a family offense proceeding pursuant to this section.
3. Official responsibility. No official or other person designated pursuant to subdivision two of this section shall discourage or prevent any person who wishes to file a petition or sign a complaint from having access to any court for that purpose.
4. Official forms. The chief administrator of the courts shall prescribe an appropriate form to implement subdivision two of this section.
5. Notice. Every police officer, peace officer or district attorney investigating a family offense under this article shall advise the victim of the availability of a shelter or other services in the community, and shall immediately give the victim written notice of the legal rights and remedies available to a victim of a family offense under the relevant provisions of the criminal procedure law, the family court act and the domestic relations law. Such notice shall be available in English and Spanish and, if necessary, shall be delivered orally and shall include but not be limited to the following statement:
"If you are the victim of domestic violence, you may request that the officer assist in providing for your safety and that of your children, including providing information on how to obtain a temporary order of protection. You may also request that the officer assist you in obtaining your essential personal effects and locating and taking you, or assist in making arrangement to take you, and your children to a safe place within such officer`s jurisdiction, including but not limited to a domestic violence program, a family member`s or a friend`s residence, or a similar place of safety. When the officer`s jurisdiction is more than a single county, you may ask the officer to take you or make arrangements to take you and your children to a place of safety in the county where the incident occurred. If you or your children are in need of medical treatment, you have the right to request that the officer assist you in obtaining such medical treatment. You may request a copy of any incident reports at no cost from the law enforcement agency. You have the right to seek legal counsel of your own choosing and if you proceed in family court and if it is determined that you cannot afford an attorney, one must be appointed to represent you without cost to you.You may ask the district attorney or a law enforcement officer to file a criminal complaint. You also have the right to file a petition in the family court when a family offense has been committed against you. You have the right to have your petition and request for an order of protection filed on the same day you appear in court, and such request must be heard that same day or the next day court is in session. Either court may issue an order of protection from conduct constituting a family offense which could include, among other provisions, an order for the respondent or defendant to stay away from you and your children. The family court may also order the payment of temporary child support and award temporary custody of your children. If the family court is not in session, you may seek immediate assistance from the criminal court in obtaining an order of protection.
The forms you need to obtain an order of protection are available from the family court and the local criminal court (the addresses and telephone numbers shall be listed). The resources available in this community for information relating to domestic violence, treatment of injuries, and places of safety and shelters can be accessed by calling the following 800 numbers (the statewide English and Spanish language 800 numbers shall be listed and space shall be provided for local domestic violence hotline telephone numbers).
Filing a criminal complaint or a family court petition containing allegations that are knowingly false is a crime."
The division of criminal justice services in consultation with the state office for the prevention of domestic violence shall prepare the form of such written notice consistent with the provisions of this section and distribute copies thereof to the appropriate law enforcement officials pursuant to subdivision nine of section eight hundred fortyone of the executive law. Additionally, copies of such notice shall be provided to the chief administrator of the courts to be distributed to victims of family offenses through the family court at such time as such persons first come before the court and to the state department of health for distribution to all hospitals defined under article twenty-eight of the public health law. No cause of action for damages shall arise in favor of any person by reason of any failure to comply with the provisions of this subdivision except upon a showing of gross negligence or willful misconduct.
Sec. 813. Transfer to criminal court.
1. At any time prior to a finding on the petition the court may, with the consent of the petitioner and upon reasonable notice to the district attorney, who shall have an opportunity to be heard, order that any matter which is the subject of a proceeding commenced pursuant to this article be prosecuted as a criminal action in an appropriate criminal court if the court determines that the interests of justice so require.
2. The court may simultaneously with the transfer of any matter to the appropriate criminal court, issue or continue a temporary order of protection which, notwithstanding any other provision of law, shall continue in effect, absent action by the appropriate criminal court pursuant to subdivision three of section 530.12 of the criminal procedure law, until the defendant is arraigned upon an accusatory instrument filed pursuant to this section in such criminal court.
3. Nothing herein shall be deemed to limit or restrict a petitioner`s rights to proceed directly and without court referral in either criminal or family court, or both, as provided for in section one hundred fifteen of this act and section 100.07 of the criminal procedure law.
Sec. 814. Rules of court regarding concurrent jurisdiction.
The chief administrator of the courts pursuant to paragraph (e) of subdivision two of section two hundred twelve of the judiciary law shall promulgate rules to facilitate record sharing and other communication between the criminal and family courts, subject to applicable provisions of the criminal procedure law and the family court act pertaining to the confidentiality, expungement and sealing of records, where such courts exercise concurrent jurisdiction over family offense proceedings.
Sec. 814-a. Uniform forms.
The chief administrator of the courts, shall promulgate appropriate uniform temporary orders of protection and orders of protection forms, applicable to proceedings under this article, to be used throughout the state. Such forms shall be promulgated and developed in a manner to ensure the compatability of such forms with the statewide computerized registry established pursuant to section two hundred twenty-one-a of the executive law.
Sec. 815. Transcript of family offense proceedings; request by district attorney.
The court shall, upon the written request of a district attorney stating that such transcript is necessary in order to conduct a criminal investigation or prosecution involving the petitioner or respondent, provide a copy of the transcript of any proceedings under this article, to such district attorney. Such transcript shall not be redisclosed except as necessary for such investigation or prosecution.
Sec. 817. Support, paternity and child protection.
On its own motion and at any time in proceedings under this article, the court may direct the filing of a child protective petition under article ten of this chapter, a support petition under article four, or a paternity petition under article five of this act and consolidate the proceedings.
Sec. 818. Venue.
Proceedings under this article may be originated in the county in which the act or acts referred to in the petition allegedly occurred or in which the family or household resides or in which any party resides. For the purposes of this section, residence shall include a residential program for victims of domestic violence, as defined in subdivision four of section four hundred fifty-nine-a of the social services law, or a shelter for homeless persons.
Sec. 821. Originating proceedings.
1. A proceeding under this article is originated by the filing of a petition containing the following:
(a) An allegation that the respondent assaulted or attempted to assault his or her spouse, or former spouse, parent, child or other member of the same family or household or engaged in disorderly conduct, harassment, stalking, menacing or reckless endangerment toward any such person; and
(b) The relationship of the alleged offender to the petitioner;
(c) The name of each and every child in the family or household and the relationship of the child, if any, to the petitioner and to the respondent;
(d) A request for an order of protection or the use of the court`s conciliation procedures; and
(e) An allegation as to whether any accusatory instrument alleging an act specified in paragraph (a) of this subdivision has been verified with respect to the same act alleged in the petition. Appended to the copy of the petition provided to the petitioner shall be a copy of the notice described in subdivision five of section eight hundred twelve of this article.
2. When family court is not in session, an arrest and initial appearance by the defendant or respondent may be in a criminal court, as provided in sections one hundred fifty-four-d and one hundred fifty-five of this act.
Sec. 821-a. Preliminary procedure.
1. Upon the filing of a petition under this article, the court shall advise the petitioner of the right to retain legal representation or if indigent, the right to have counsel appointed pursuant to section two hundred sixty-two of this act.
2. Upon the filing of a petition under this article, the court may:
(a) issue a summons pursuant to section eight hundred twenty-six of this part or issue a warrant pursuant to section eight hundred twenty-seven of this part;
(b) issue a temporary order of protection in favor of the petitioner and, where appropriate, the petitioner`s children or any other children residing in the petitioner`s household, pursuant to section eight hundred twenty-eight of this part.
3. Where the respondent is
brought before the court pursuant to a summons under section eight hundred
twenty-six of this part or a warrant issued under section eight hundred
twenty-seven of this part, or where a respondent voluntarily appears before
the court after such summons or warrant has been issued, the court shall:
(a) advise the parties of the right to retain legal representation or, if indigent, the right to have counsel appointed pursuant to section two hundred sixty-two of this act;
(b) advise the respondent of the allegations contained in the petition before the court; and
(c) provide the respondent with a copy of such petition; and the court may:
(i) order the release of the respondent on his or her own recognizance pending further appearances as required by the court;
(ii) direct that the respondent post bail in a manner authorized pursuant to section one hundred fifty-five-a of this act in an amount set by the court; or
(iii) issue a commitment order directing that the respondent be remanded to the custody of the county sheriff or other appropriate law enforcement official until such time as bail is posted as required by the court.
4. Where the court directs that the respondent post bail or that the respondent be committed to the custody of a law enforcement official as provided for herein, and the respondent fails to post bail or otherwise remains in custody, a hearing shall be held without unreasonable delay but in no event later than one hundred twenty hours after the arrest of the respondent or in the event that a Saturday, Sunday, or legal holiday occurs during such custody, one hundred forty-four hours after the arrest of the respondent, to determine upon material and relevant evidence whether sufficient cause exists to keep the respondent in custody. If the court determines that sufficient cause does not exist or if no hearing is timely held, the respondent shall immediately be released on the respondent`s own recognizance.
5.
(a) At such time as the petitioner first appears before the court, the court shall advise the petitioner that the petitioner may: continue with the hearing and disposition of such petition in the family court; or have the allegations contained therein heard in an appropriate criminal court; or proceed concurrently in both family and criminal court.(b) Where the petitioner seeks to have the petition heard and determined in the family court, the court shall set the matter down for further proceedings pursuant to the provisions of this article. Nothing herein shall be deemed to limit or restrict petitioner`s rights to seek to proceed directly in either criminal or family court, or both, as provided for in section one hundred fifteen of this act and section 100.07 of the criminal procedure law. 6. When both parties first appear before the court, the court shall inquire as to the existence of any other orders of protection involving the parties.
Sec. 822. Person who may originate proceedings.
(a) Any person in the relation
to the respondent of spouse, or former spouse, parent, child, or member of
the same family or household;
(b) A duly authorized agency,
association, society, or institution;
(c) A peace officer, acting
pursuant to his special duties, or a police officer;
(d) A person on the court`s own motion.
Sec. 823. Rules of court for preliminary procedure.
(a) Rules of court may authorize
the probation service
(i) to confer with any person seeking to file a petition, the potential petitioner and other interested persons concerning the advisability of filing a petition under this article, and
(ii) to attempt through conciliation and agreement informally to adjust suitable cases before a petition is filed over which the court apparently would have jurisdiction.
(b) The probation service
may not prevent any person who wishes to file a petition under this article
from having access to the court for that purpose.
(c) Efforts at adjustment
pursuant to rules of court under this section may not extend for a period
of more than two months without leave of a judge of the court, who may extend
the period for an additional sixty days. Two successive extensions may be
granted under this section.
(d) The probation service
may not be authorized under this section to compel any person to appear at
any conference, produce any papers, or visit any place.
(e) If agreement to cease offensive conduct is reached, it must be reduced to writing and submitted to the family court for approval. If the court approves it, the court without further hearing may thereupon enter an order of protection in accordance with the agreement, which shall be binding upon the respondent and shall in all respects be a valid order. The court record shall show that such order was made upon agreement.
Sec. 824. Admissibility of statements made during preliminary conference.
No statement made during a preliminary conference may be admitted into evidence at a fact-finding hearing under this act or in a criminal court at any time prior to conviction.
Sec. 825. Issuance of summons.
On the filing of a petition under this article, the court may cause a copy of the petition and a summons to be issued, requiring the respondent to appear at the court at a time and place to answer the petition.
Sec. 826. Service of summons.
(a) Unless the court issues
a warrant pursuant to section eight hundred twenty-seven of this part, service
of a summons and petition shall be made by delivery of a true copy thereof
to the person summoned at least twenty-four hours before the time stated
therein for appearance. If so requested by the respondent, the court shall
not proceed with the hearing or proceeding earlier than three days after
such service.
(b) If after reasonable effort, personal service is not made, the court may at any stage in the proceedings make an order providing for substituted service in the manner provided for substituted service in civil process in courts of record.
Sec. 827. Issuance of warrant; certificate of warrant.
(a) The court may issue a
warrant, directing that the respondent be brought before the court, when
a petition is presented to the court under section eight hundred twenty-one
and it appears that
(i) the summons cannot be served; or
(ii) the respondent has failed to obey the summons; or
(iii) the respondent is likely to leave the jurisdiction; or
(iv) a summons, in the court`s opinion, would be ineffectual; or
(v) the safety of the petitioner is endangered; or
(vi) the safety of a child is endangered; or
(vii) aggravating circumstances exist which require the immediate arrest of the respondent. For the purposes of this section aggravating circumstances shall mean physical injury or serious physical injury to the petitioner caused by the respondent, the use of a dangerous instrument against the petitioner by the respondent, a history of repeated violations of prior orders of protection by the respondent, prior convictions for crimes against the petitioner by the respondent or the exposure of any family or household member to physical injury by the respondent and like incidents, behaviors and occurrences which to the court constitute an immediate and ongoing danger to the petitioner, or any member of the petitioner`s family or household.
(b) The petitioner may not
serve a warrant upon the respondent, unless the court itself grants such
permission upon the application of the petitioner. The clerk of the court
may issue to the petitioner or to the representative of an incorporated
charitable or philanthropic society having a legitimate interest in the family
a certificate stating that a warrant for the respondent has been issued by
the court. The presentation of such certificate by said petitioner or
representative to any peace officer, acting pursuant to his special duties,
or police officer authorizes him to arrest the respondent and take him to
court.
(c) A certificate of warrant
expires ninety days from the date of issue but may be renewed from time to
time by the clerk of the court.
(d) Rules of court shall provide that a record of all unserved warrants be kept and that periodic reports concerning unserved warrants be made.
Sec. 828. Temporary order of protection; temporary order for child support.
1.
(a) Upon the filing of a petition or counter-claim under this article, the court for good cause shown may issue a temporary order of protection, which may contain any of the provisions authorized on the making of an order of protection under section eight hundred forty-two, provided that the court shall make a determination, and the court shall state such determination in a written decision or on the record, whether to impose a condition pursuant to this subdivision, provided further, however, that failure to make such a determination shall not affect the validity of such order of protection. In making such determination, the court shall consider, but shall not be limited to consideration of, whether the temporary order of protection is likely to achieve its purpose in the absence of such a condition, conduct subject to prior orders of protection, prior incidents of abuse, extent of past or present injury, threats, drug or alcohol abuse, and access to weapons.
(b) Upon the filing of a petition under this article, or as soon thereafter as the petitioner appears before the court, the court shall advise the petitioner of the right to proceed in both the family and criminal courts, pursuant to the provisions of section one hundred fifteen of this act.
2. A temporary order of protection is not a finding of wrongdoing.
3. The court may issue or extend a temporary order of protection ex parte or on notice simultaneously with the issuance of a warrant, directing that the respondent be arrested and brought before the court, pursuant to section eight hundred twenty-seven of this article.
4. Notwithstanding the provisions of section eight hundred seventeen of this article the court may, together with a temporary order of protection issued pursuant to this section, issue an order for temporary child support, in an amount sufficient to meet the needs of the child, without a showing of immediate or emergency need. The court shall make an order for temporary child support notwithstanding that information with respect to income and assets of the respondent may be unavailable. Where such information is available, the court may make an award for temporary child support pursuant to the formula set forth in subdivision one of section four hundred thirteen of this act. An order making such award shall be deemed to have been issued pursuant to article four of this act. Upon making an order for temporary child support pursuant to this subdivision, the court shall advise the petitioner of the availability of child support enforcement services by the support collection unit of the local department of social services, to enforce the temporary order and to assist in securing continued child support, and shall set the support matter down for further proceedings in accordance with article four of this act.
Where the court determines that the respondent has employer-provided medical insurance, the court may further direct, as part of an order of temporary support under this subdivision, that a medical support execution be issued and served upon the respondent`s employer as provided for in section fifty-two hundred forty-one of the civil practice law and rules.
Sec. 832. Definition of "fact-finding hearing".
When used in this article, "fact-finding hearing" means a hearing to determine whether the allegations of a petition under section eight hundred twenty-one are supported by a fair preponderance of the evidence.
Sec. 833. Definition of "dispositional hearing".
When used in this article, "dispositional hearing" means in the case of a petition under this article a hearing to determine what order of disposition should be made.
Sec. 834. Evidence.
Only competent, material and relevant evidence may be admitted in a fact-finding hearing; only material and relevant evidence may be admitted in a dispositional hearing.
Sec. 835. Sequence of hearings.
(a) Upon completion of the fact-finding hearing, the dispositional hearing may commence immediately after the required findings are made.
(b) Reports prepared by the probation service for use by the court at any time prior to the making of an order of disposition shall be deemed confidential information furnished to the court which the court in a proper case may, in its discretion, withhold from or disclose in whole or in part to the law guardian, counsel, party in interest, or other appropriate person. Such reports may not be furnished to the court prior to the completion of a fact-finding hearing, but may be used in a dispositional hearing.
Sec. 836. Adjournments.
(a) The court may adjourn a fact-finding hearing or a dispositional hearing for good cause shown on its own motion or on motion of either party.
(b) At the conclusion of a fact-finding hearing and after it has made findings required before a dispositional hearing may commence, the court may adjourn the proceedings to enable it to make inquiry into the surroundings, conditions, and capacities of the persons involved in the proceedings.
Sec. 838. Petitioner and respondent may have friend or relative present.
Unless the court shall find it undesirable, the petitioner shall be entitled to a non-witness friend, relative, counselor or social worker present in the court room. This section does not authorize any such person to take part in the proceedings. However, at any time during the proceeding, the court may call such person as a witness and take his or her testimony. Unless the court shall find it undesirable, the respondent shall be entitled to a non-witness friend, relative, counselor or social worker present in the court room in the event such respondent is not represented by legal counsel. This section does not authorize any such person to take part in the proceedings. However, at any time during the proceeding, the court may call such person as a witness and take his or her testimony.
Sec. 841. Orders of disposition.
At the conclusion of a dispositional hearing under this article, the court may enter an order:
(a) dismissing the petition, if the allegations of the petition are not established; or(b) suspending judgment for a period not in excess of six months; or
(c) placing the respondent on probation for a period not exceeding one year, and requiring respondent to participate in a batterer`s education program designed to help end violent behavior, which may include referral to drug and alcohol counseling, and to pay the costs thereof if respondent has the means to do so, provided however that nothing contained herein shall be deemed to require payment of the costs of any such program by the petitioner, the state or any political subdivision thereof; or
(d) making an order of protection in accord with section eight hundred forty-two of this part; or
(e) directing payment of restitution in an amount not to exceed ten thousand dollars. An order of restitution may be made in conjunction with any order of disposition authorized under subdivisions (b), (c), or (d) of this section. In no case shall an order of restitution be issued where the court determines that the respondent has already paid such restitution as part of the disposition or settlement of another proceeding arising from the same act or acts alleged in the petition before the court.
No order of protection may direct any party to observe conditions of behavior unless the party requesting the order of protection has served and filed a petition or counter-claim in accordance with section one hundred fifty-four-b of this act.
Nothing in this section shall preclude the issuance of a temporary order of protection ex parte, pursuant to section eight hundred twenty-eight of this article. Nothing in this section shall preclude the issuance of both an order of probation and an order of protection as part of the order of disposition.
Notwithstanding the foregoing provisions, an order of protection, or temporary order of protection where applicable, may be entered against a former spouse and persons who have a child in common, regardless whether such persons have been married or have lived together at any time.
Sec. 842. Order of protection.
An order of protection under section eight hundred forty-one of this part may set forth reasonable conditions of behavior to be observed for a period not in excess of one year by the petitioner or respondent or for a period not in excess of three years upon a finding by the court on the record of the existence of aggravating circumstances as defined in paragraph (vii) of subdivision (a) of section eight hundred twenty-seven of this act. Such finding of aggravating circumstances shall be stated upon the order of protection. Such order shall specify if an order of probation is in effect. Such an order may require the petitioner or the respondent:
(a) to stay away from the home, school, business or place of employment of any other party, the other spouse, the other parent, or the child, and to stay away from any other specific location designated by the court, provided that the court shall make a determination, and shall state such determination in a written decision or on the record, whether to impose a condition pursuant to this subdivision, provided further, however, that failure to make such a determination shall not affect the validity of such order of protection. In making such determination, the court shall consider, but shall not be limited to consideration of, whether the order of protection is likely to achieve its purpose in the absence of such a condition, conduct subject to prior orders of protection, prior incidents of abuse, extent of past or present injury, threats, drug or alcohol abuse, and access to weapons;(b) to permit a parent, or a person entitled to visitation by a court order or a separation agreement, to visit the child at stated periods;
(c) to refrain from committing a family offense, as defined in subdivision one of section eight hundred twelve of this act, or any criminal offense against the child or against the other parent or against any person to whom custody of the child is awarded, or from harassing, intimidating or threatening such persons;
(d) to permit a designated party to enter the residence during a specified period of time in order to remove personal belongings not in issue in this proceeding or in any other proceeding or action under this act or the domestic relations law;
(e) to refrain from acts of commission or omission that create an unreasonable risk to the health, safety or welfare of a child;
(f) to pay the reasonable counsel fees and disbursements involved in obtaining or enforcing the order of the person who is protected by such order if such order is issued or enforced;
(g) to require the respondent to participate in a batterer`s education program designed to help end violent behavior, which may include referral to drug and alcohol counselling, and to pay the costs thereof if the person has the means to do so, provided however that nothing contained herein shall be deemed to require payment of the costs of any such program by the petitioner, the state or any political subdivision thereof; and
(h) to provide, either directly or by means of medical and health insurance, for expenses incurred for medical care and treatment arising from the incident or incidents forming the basis for the issuance of the order.
(i) to observe such other conditions as are necessary to further the purposes of protection.
The court may also award custody of the child, during the term of the order of protection to either parent, or to an appropriate relative within the second degree. Nothing in this section gives the court power to place or board out any child or to commit a child to an institution or agency. The court may also upon the showing of special circumstances extend the order of protection for a reasonable period of time.
Notwithstanding the provisions of section eight hundred seventeen of this article, where a temporary order of child support has not already been issued, the court may in addition to the issuance of an order of protection pursuant to this section, issue an order for temporary child support in an amount sufficient to meet the needs of the child, without a showing of immediate or emergency need. The court shall make an order for temporary child support notwithstanding that information with respect to income and assets of the respondent may be unavailable. Where such information is available, the court may make an award for temporary child support pursuant to the formula set forth in subdivision one of section four hundred thirteen of this act. Temporary orders of support issued pursuant to this article shall be deemed to have been issued pursuant to section four hundred thirteen of this act.
Upon making an order for temporary child support pursuant to this subdivision, the court shall advise the petitioner of the availability of child support enforcement services by the support collection unit of the local department of social services, to enforce the temporary order and to assist in securing continued child support, and shall set the support matter down for further proceedings in accordance with article four of this act.
Where the court determines that the respondent has employer-provided medical insurance, the court may further direct, as part of an order of temporary support under this subdivision, that a medical support execution be issued and served upon the respondent`s employer as provided for in section fifty-two hundred forty-one of the civil practice law and rules.
Notwithstanding the foregoing provisions, an order of protection, or temporary order of protection where applicable, may be entered against a former spouse and persons who have a child in common, regardless whether such persons have been married or have lived together at any time.
Sec. 842-a. Suspension and revocation of a license to carry, possess, repair or dispose of a firearm or firearms pursuant to section 400.00 of the penal law and ineligibility for such a license; order to surrender firearms.
1. Mandatory and permissive suspension of firearms license and ineligibility for such a license upon the issuance of a temporary order of protection. Whenever a temporary order of protection is issued pursuant to section eight hundred twenty-eight of this article:
(a) the court shall suspend any such existing license possessed by the respondent, order the respondent ineligible for such a license, and order the immediate surrender of any or all firearms owned or possessed where the court receives information that gives the court good cause to believe that:(i) the respondent has a prior conviction of any violent felony offense as defined in section 70.02 of the penal law;(ii) the respondent has previously been found to have willfully failed to obey a prior order of protection and such willful failure involved
(A) the infliction of serious physical injury, as defined in subdivision ten of section 10.00 of the penal law,(B) the use or threatened use of a deadly weapon or dangerous instrument as those terms are defined in subdivisions twelve and thirteen of section 10.00 of the penal law, or
(C) behavior constituting any violent felony offense as defined in section 70.02 of the penal law; or
(iii) the respondent has a prior conviction for stalking in the first degree as defined in section 120.60 of the penal law, stalking in the second degree as defined in section 120.55 of the penal law, stalking in the third degree as defined in section 120.50 of the penal law or stalking in the fourth degree as defined in section 120.45 of such law; and
(b) the court may where the court finds a substantial risk that the respondent may use or threaten to use a firearm unlawfully against the person or persons for whose protection the temporary order of protection is issued, suspend any such existing license possessed by the respondent, order the respondent ineligible for such a license, and order the immediate surrender of any or all firearms owned or possessed.
2. Mandatory and permissive revocation or suspension of firearms license and ineligibility for such a license upon the issuance of an order of protection. Whenever an order of protection is issued pursuant to section eight hundred forty-one of this part:
(a) the court shall revoke any such existing license possessed by the respondent, order the respondent ineligible for such a license, and order the immediate surrender of any or all firearms owned or possessed where the court finds that the conduct which resulted in the issuance of the order of protection involved(i) the infliction of serious physical injury, as defined in subdivision ten of section 10.00 of the penal law,(ii) the use or threatened use of a deadly weapon or dangerous instrument as those terms are defined in subdivisions twelve and thirteen of section 10.00 of the penal law, or
(iii) behavior constituting any violent felony offense as defined in section 70.02 of the penal law; and
(b) the court may, where the court finds a substantial risk that the respondent may use or threaten to use a firearm unlawfully against the person or persons for whose protection the order of protection is issued,
(i) revoke any such existing license possessed by the respondent, order the respondent ineligible for such a license and order the immediate surrender of any or all firearms owned or possessed or(ii) suspend or continue to suspend any such existing license possessed by the respondent, order the respondent ineligible for such a license, and order the immediate surrender of any or all firearms owned or possessed.
3. Mandatory and permissive revocation or suspension of firearms license and ineligibility for such a license upon a finding of a willful failure to obey an order of protection. Whenever a respondent has been found, pursuant to section eight hundred forty-six-a of this part to have willfully failed to obey an order of protection issued by this court or an order of protection issued by a court of competent jurisdiction in another state, territorial or tribal jurisdiction, in addition to any other remedies available pursuant to section eight hundred forty-six-a of this part:
(a) the court shall revoke any such existing license possessed by the respondent, order the respondent ineligible for such a license, and order the immediate surrender of any or all firearms owned or possessed where the willful failure to obey such order involves(i) the infliction of serious physical injury, as defined in subdivision ten of section 10.00 of the penal law,(ii) the use or threatened use of a deadly weapon or dangerous instrument as those terms are defined in subdivisions twelve and thirteen of section 10.00 of the penal law, or
(iii) behavior constituting any violent felony offense as defined in section 70.02 of the penal law; or
(iv) behavior constituting stalking in the first degree as defined in section 120.60 of the penal law, stalking in the second degree as defined in section 120.55 of the penal law, stalking in the third degree as defined in section 120.50 of the penal law or stalking in the fourth degree as defined in section 120.45 of such law; and
(b) the court may where the court finds a substantial risk that the respondent may use or threaten to use a firearm unlawfully against the person or persons for whose protection the order of protection was issued,
(i) revoke any such existing license possessed by the respondent, order the respondent ineligible for such a license, whether or not the respondent possesses such a license, and order the immediate surrender of any or all firearms owned or possessed or(ii) suspend any such existing license possessed by the respondent, order the respondent ineligible for such a license, and order the immediate surrender of any or all firearms owned or possessed.
4. Suspension. Any suspension order issued pursuant to this section shall remain in effect for the duration of the temporary order of protection or order of protection, unless modified or vacated by the court.
5. Surrender.
(a) Where an order to surrender one or more firearms has been issued, the temporary order of protection or order of protection shall specify the place where such firearms shall be surrendered, shall specify a date and time by which the surrender shall be completed and, to the extent possible, shall describe such firearms to be surrendered and shall direct the authority receiving such surrendered firearms to immediately notify the court of such surrender.(b) The prompt surrender of one or more firearms pursuant to a court order issued pursuant this section shall be considered a voluntary surrender for purposes of subparagraph (f) of paragraph one of subdivision a of section 265.20 of the penal law. The disposition of any such firearms shall be in accordance with the provisions of subdivision six of section 400.05 of the penal law.
(c) The provisions of this section shall not be deemed to limit, restrict or otherwise impair the authority of the court to order and direct the surrender of any or all pistols, revolvers, rifles, shotguns or other firearms owned or possessed by a respondent pursuant to this act.
6. Notice.
(a) Where an order of revocation, suspension or ineligibility has been issued pursuant to this section, any temporary order of protection or order of protection issued shall state that such firearm license has been suspended or revoked or that the respondent is ineligible for such license, as the case may be.(b) The court revoking or suspending the license, ordering the respondent ineligible for such license, or ordering the surrender of any firearm shall immediately notify the statewide registry of orders of protection and the duly constituted police authorities of the locality of such action.
(c) The court revoking or suspending the license or ordering the defendant ineligible for such license shall give written notice thereof without unnecessary delay to the division of state police at its office in the city of Albany.
(d) Where an order of revocation, suspension, ineligibility, or surrender is modified or vacated, the court shall immediately notify the statewide registry of orders of protection and the duly constituted police authorities of the locality concerning such action and shall give written notice thereof without unnecessary delay to the division of state police at its office in the city of Albany.
7. Hearing. The respondent shall have the right to a hearing before the court regarding any revocation, suspension, ineligibility or surrender order issued pursuant to this section, provided that nothing in this subdivision shall preclude the court from issuing any such order prior to a hearing. Where the court has issued such an order prior to a hearing, it shall commence such hearing within fourteen days of the date such order was issued.
8. Nothing in this section shall delay or otherwise interfere with the issuance of a temporary order of protection.
Sec. 843. Rules of court.
Rules of court shall define permissible terms and conditions of any order issued under section eight hundred forty-one, paragraphs (b), (c) and (d).
Sec. 844. Reconsideration and modification.
For good cause shown, the family court may after hearing reconsider and modify any order issued under paragraphs (b), (c) and (d) of section eight hundred forty-one.
Sec. 846. Petition; violation of court order.
Proceedings under this part shall be originated by the filing of a petition containing an allegation that the respondent has failed to obey a lawful order of this court or an order of protection issued by a court of competent jurisdiction of another state, territorial or tribal jurisdiction.
(a) Persons who may originate proceedings. The original petitioner, or any person who may originate proceedings under section eight hundred twenty-two of this article, may originate a proceeding under this part.(b) Issuance of summons.
(i) Upon the filing of a petition under this part, the court may cause a copy of the petition and summons to be issued requiring the respondent to show cause why respondent should not be dealt with in accordance with section eight hundred forty-six-a of this part. The summons shall include on its face, printed or typewritten in a size equal to at least eight point bold type, a notice warning the respondent that a failure to appear in court may result in immediate arrest, and that, after an appearance in court, a finding that the respondent willfully failed to obey the order may result in commitment to jail for a term not to exceed six months, for contempt of court. The notice shall also advise the respondent of the right to counsel, and the right to assigned counsel, if indigent.(ii) Upon the filing of a petition under this part alleging a violation of a lawful order of this or any other court, as provided in this section, the court may, on its own motion, or on motion of the petitioner:
(A) hear the violation petition and take such action as is authorized under this article; or(B) retain jurisdiction to hear and determine whether such violation constitutes contempt of court, and transfer the allegations of criminal conduct constituting such violation to the district attorney for prosecution pursuant to section eight hundred thirteen of this article; or
(C) transfer the entire proceeding to the criminal court pursuant to section eight hundred thirteen of this article.
(c) Service of summons. Upon issuance of a summons, the provisions of section eight hundred twenty-six of this article shall apply, except that no order of commitment may be entered upon default in appearance by the respondent if service has been made pursuant to subdivision (b) of such section.
(d) Issuance of warrant. The court may issue a warrant, directing that the respondent be arrested and brought before the court, pursuant to section eight hundred twenty-seven of this article.
Sec. 846-a. Powers on failure to obey order.
If a respondent is brought before the court for failure to obey any lawful order issued under this article or an order of protection issued by a court of competent jurisdiction of another state, territorial or tribal jurisdiction in a proceeding and if, after hearing, the court is satisfied by competent proof that the respondent has willfully failed to obey any such order, the court may modify an existing order to add reasonable conditions of behavior to the existing order of protection, make a new order of protection in accordance with section eight hundred forty-two, may order the forfeiture of bail in a manner consistent with article five hundred forty of the criminal procedure law if bail has been ordered pursuant to this act, may order the respondent to pay the petitioner`s reasonable and necessary counsel fees in connection with the violation petition where the court finds that the violation of its order was willful, and may commit the respondent to jail for a term not to exceed six months. Such commitment may be served upon certain specified days or parts of days as the court may direct, and the court may, at any time within the term of such sentence, revoke such suspension and commit the respondent for the remainder of the original sentence, or suspend the remainder of such sentence. If the court determines that the willful failure to obey such order involves violent behavior constituting the crimes of menacing, reckless endangerment, assault or attempted assault and if such a respondent is licensed to carry, possess, repair and dispose of firearms pursuant to section 400.00 of the penal law, the court may also immediately revoke such license and may arrange for the immediate surrender and disposal of any firearm such respondent owns or possesses. If the willful failure to obey such order involves the infliction of serious physical injury as defined in subdivision ten of section 10.00 of the penal law or the use or threatened use of a deadly weapon or dangerous instrument, as those terms are defined in subdivisions twelve and thirteen of section 10.00 of the penal law, such revocation and immediate surrender and disposal of any firearm owned or possessed by respondent shall be mandatory, pursuant to subdivision eleven of section 400.00 of the penal law.
Sec. 847. Procedures for violation of orders of protection; certain cases.
An assault, attempted assault or other family offense as defined in section eight hundred twelve of this article which occurs subsequent to the issuance of an order of protection under this article shall be deemed a new offense for which the petitioner may file a petition alleging a violation of an order of protection or file a new petition alleging a new family offense and may seek to have an accusatory instrument filed in a criminal court, as authorized by section one hundred fifteen of this act.
