Section 711.3. Procedures.

(a) Notice to the superintendent.

(1) To ensure mutual agreement, the inmate and the intended spouse shall write to the superintendent expressing an intent to marry.

(2) The notices are to be recorded and filed in the inmate's guidance file[service unit folder].

(3) The superintendent shall designate an offender rehabilitation coordinator[counselor] to be responsible for processing the request, interviewing the inmate and intended spouse, and ensuring that the inmate has a valid marriage license and that administrative requirements have been fulfilled.

(b) Offender rehabilitation coordinator[Counselor]'s interviews.

(1) The offender rehabilitation coordinator[counselor] shall conduct an initial interview with the inmate to explain the entire marriage procedure, emphasizing that while the department will assist the inmate, the primary responsibility for making all arrangements and securing the necessary documents rests with the inmate and the intended spouse.

(2) The offender rehabilitation coordinator[counselor] shall explain that the temporary release program and the family reunion program operate independently of the marriage process and any applications or arrangements for those programs are likewise the responsibility of the inmate. An inmate who wishes to be married while on temporary release must conform to the procedures delineated in Subchapter A of Chapter XII of this Title. NOTE: For family reunion program purposes, legal spouses must be married for at least 12(twelve) months prior to submitting a family reunion program application; and both parties can not be himself/herself a resident of a New York State correctional facility.

(3) The offender rehabilitation coordinator[counselor] shall examine the inmate's entire folder, including the presentence report, paying particular attention to information which may present legal impediments to a marriage (e.g., the existence of a previous marriage).

(4) Subsequently, the offender rehabilitation coordinator[counselor] shall interview the intended spouse at the facility to explain the marriage process and the complications imposed by the inmate's confinement in a correctional facility. In the course of this interview, the offender rehabilitation coordinator[counselor] should advise the intended spouse to discuss with the inmate the circumstances surrounding his/her incarceration. The offender rehabilitation coordinator[counselor] shall inform the intended spouse of the inmate's parole eligibility date, conditional release date, and maximum expiration of sentence date.

(5) If the intended spouse refuses to participate in the offender rehabilitation coordinator[counselor]'s interview, the offender rehabilitation coordinator[counselor] shall explain that the interview is a part of the total procedure for processing marriage requests. The participation of the intended spouse shall be encouraged; however, a refusal to participate shall not be grounds for disallowing the marriage.

[(c) Chaplain's interview.

(1) Subsequent to the counselor's interviews, the inmate and the intended spouse may meet with the facility chaplain of their faith for the appropriate counseling and for the development of plans for the marriage ceremony.

(2) If the inmate and intended spouse cannot make plans that are acceptable to the chaplain, they shall assume the responsibility for further development of the plans for the marriage ceremony.]

(c[d]) [Reserved]

(d[e]) Application for marriage license.

(1) The inmate and the intended spouse must appear before a town, city or county clerk to apply for a marriage license. A marriage license is valid for 60 days from the date of validation.

(2) In some facilities, an official at the facility is designated a town clerk. In such cases, this person shall receive the application for the marriage license.

(3) At other facilities, the offender rehabilitation coordinator[counselor] or head clerk shall make every effort to get the local town, city or county clerk to either visit the facility or to designate a deputy in the facility community for the completion of the license application form.

(4) An inmate may choose to coordinate the application for a marriage license with a scheduled temporary release application if eligible under the guidelines of the temporary release program. The inmate must, however, conform to all the requirements of this directive, including but not limited to prior notification to the superintendent and participation in counseling.

(5) Under no circumstances will an inmate be allowed to proceed to the town, city or county clerk's office under escort by department personnel.

(6) The responsibility to determine whether a marriage can be contracted under the law rests with the town, city or county clerk. The license-issuing agency reviews competency and questions both parties regarding the legal dissolution of prior marriages.

(e[f]) Solemnization of the marriage.

(1) A marriage, whether it takes place in the facility or in the community, must be solemnized by either:

(i) a clergyperson or minister of any religion or a leader of the Society for Ethical Culture licensed to perform marriages in New York State;

(ii) a justice or judge of a court of record or a municipal court, or a police justice of a village or town; or

(iii) others as indicated in the Domestic Relations Law.

(2) If the marriage ceremony takes place within the facility, the inmate and the intended spouse may select two individuals to serve as witnesses, e.g., employees who are willing, inmates, relatives or friends.

(3) The ceremony will be limited to the participating partners, the official solemnizer and two witnesses who may be selected according to the inmate's wishes.

(4) If the marriage is to be solemnized in the facility by someone other than the facility chaplain, the assigned offender rehabilitation coordinator[counselor] should assist the inmate in recruiting the clergyman, minister, or civil official chosen to perform the ceremony.

(5) if the facility chaplain officiates at the ceremony, he or she may not accept any fee or honorarium.

(6) There must be an interval of 24 hours between the date that the marriage license is issued and the date of the marriage ceremony (Domestic Relations Law, section 13-b).

(f[g]) Responsibility for expense incurred. The marriage license fee and other expenses incurred for solemnization of the marriage shall be the responsibility of the inmate and the intended spouse.

(g[h]) The offender rehabilitation coordinator[counselor] assigned will notify the superintendent in writing upon completion of the solemnization of the marriage providing the information required in subdivision (i) of this section.

(h[i]) Notification of marriage to central office. By the Monday of the last full week of the month,[.] [T]the Director of Ministerial and Family Services shall be advised in writing, by the superintendent, of the various facts concerning the marriage ceremony (i.e., names and addresses of partners, date of ceremony, name and address of church, witnesses and officiating chaplain, clergyperson or civil official).

1. Statutory Authority

Sections 112 of Correction Law empowers the Commissioner of DOCCS to promulgate rules and regulations that are deemed necessary in order to maintain safe, secure and orderly operations within the Department that are not in conflict with any state statutes.

2. Legislative Objective

By vesting the Commissioner with this rulemaking authority the legislature intended the Commissioner to promulgate such rules and regulations that are consistent with the Department’s mission to enhance public safety by providing programs and services that address the needs of inmates so they can return to their communities better prepared to lead successful and crime-free lives. Consistent with the Department’s mission, the “Marriages During Confinement” rules were promulgated provide appropriate assistance to inmates who wish to become married.

3. Needs and Benefits

This proposed rulemaking was determined to be necessary in order to update a job title, and to also make clarifications or modification to existing procedure in order to meet the goals as stated above, while maintaining institutional and public safety, and efficiency of operations. A brief statement regarding the needs and benefits of specific amendments follows:

The amendments 711.3(a)(2) and (3), 711.3(b), 711.3(d)(3) and(4), 711.3(f)(4), and 711.3(g) update an employee job title.

An amendment to 711.3(b)(2) provides clarification regarding the existing Family Reunion Program.

711.3(c), chaplains interview is deleted.

711.3 9(d) through 711.3(i) are renumbered 711.3(c) through 711.3 (h).

An amendment to 711.3(h) sets the timing for the notification of marriage.

4. Costs

a. To agency, state and local government: No discernable costs are anticipated.

b. Cost to private regulated parties: None. The proposed rule changes do not apply to private parties.

c. This cost analysis is based upon the fact that the rule change is being made to clarify existing procedures and make technical corrections. No additional or new procedures, or additional staff are needed to implement the proposed changes.

5. Paperwork

There are no new reports, forms or paperwork that would be required as a result of amending these rules.

6. Local Government Mandates

There are no new mandates imposed upon local governments by these proposals. The proposed amendments do not apply to local governments.

7. Duplication

These proposed amendments do not duplicate any existing State or Federal requirement.

8. Alternatives

DOCCS considered the alternative of not promulgating this rule. However, DOCCS decided that this rule making was important in order for staff and inmates to have increased clarity with regard to the policy for marriages during confinement.

9. Federal Standards

There are no minimum standards of the Federal government for this or a similar subject area.

10. Compliance Schedule

The Department of Corrections and Community Supervision will achieve compliance with the proposed rules immediately.

A rural area flexibility analysis is not required for this proposal since it will not impose any adverse economic impact or reporting, recordkeeping or other compliance requirements on rural areas. This proposal is intended to ensure that the Inmate Grievance Program policy is in compliance with applicable laws and standards by allowing inmates the use of the Inmate Grievance Program as a means of reporting complaints of sexual abuse or sexual harassment, while ensuring that any failure to file a timely grievance will not be a bar to seeking legal review.

A regulatory flexibility analysis is not required for this proposal since it will not impose any adverse economic impact or reporting, record keeping or other compliance requirements on small businesses or local governments. This proposal is intended to ensure that the Inmate Grievance Program policy is in compliance with applicable laws and standards by allowing inmates the use of the Inmate Grievance Program as a means of reporting complaints of sexual abuse or sexual harassment, while ensuring that any failure to file a timely grievance will not be a bar to seeking legal review.

A job impact statement is not submitted because this proposed rule will have no adverse impact on jobs or employment opportunities. This proposal updates a job title and clarifies existing procedures.