- Consolidated Laws - Family Court
PART 4
ORDERS
Section 841. Orders of disposition.
842. Order of protection.
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.
843. Rules of court.
844. Reconsideration and modification.
846. Petition; violation of court order.
846-a. Powers on failure to obey order.
847. Procedures for violation of orders of protection; certain
cases.
S 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.
S 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.
S 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.
S 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).
S 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.
S 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.
S 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.
S 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.
