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A07623 Summary:

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A07623 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          7623
 
                               2013-2014 Regular Sessions
 
                   IN ASSEMBLY
 
                                      May 28, 2013
                                       ___________
 
        Introduced  by  M. of A. WEINSTEIN -- (at request of the Office of Court
          Administration) -- read once and referred to the Committee on  Judici-
          ary
 
        AN  ACT to amend the family court act and the domestic relations law, in
          relation to non-respondent parents in child protective and  permanency
          proceedings in family court
 

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Section 651 of the family court act is amended by adding  a
     2  new subdivision (c-1) to read as follows:
     3    (c-1)  Where  a  proceeding  filed pursuant to article ten or ten-a of
     4  this act is pending at the same time as  a  proceeding  brought  in  the
     5  family  court  pursuant  to  this  article, the court presiding over the
     6  proceeding under article ten or ten-a of this act may jointly  hear  the
     7  hearing  on  the  custody and visitation petition under this article and
     8  the dispositional hearing on the  petition  under  article  ten  or  the
     9  permanency  hearing  under article ten-a of this act; provided, however,

    10  the court must determine the custody and visitation petition in  accord-
    11  ance with the terms of this article.
    12    §  2.  Section 1012 of the family court act is amended by adding three
    13  new subdivisions (l), (m) and (n) to read as follows:
    14    (l) "Parent" means a person who is recognized under the  laws  of  the
    15  state of New York to be the child's legal parent.
    16    (m)  "Relative" means any person who is related to the child by blood,
    17  marriage or adoption and who is not a parent, putative parent  or  rela-
    18  tive of a putative parent of the child.
    19    (n)  "Suitable  person"  means  any  person  who plays or has played a
    20  significant positive role in the child's life or  in  the  life  of  the
    21  child's family.

    22    §  3.  Subdivision 1, paragraph (a) of subdivision 2 and subdivision 3
    23  of section 1017 of the family court act, subdivision 1 and paragraph (a)
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD09934-05-3
        A. 7623                             2
 
     1  of subdivision 2 as amended by section 10 of part A of chapter 3 of  the
     2  laws  of  2005,  the  opening  paragraph  of subdivision 1 as separately
     3  amended by chapter 671 of the laws of 2005, subparagraphs (i)  and  (ii)
     4  of  paragraph (a) of subdivision 2 as amended and subdivision 3 as added
     5  by chapter 519 of the laws of 2008, are amended to read as follows:
     6    1. In any proceeding under this article,  when  the  court  determines

     7  that  a child must be removed from his or her home, pursuant to part two
     8  of this article, or placed, pursuant to section one thousand  fifty-five
     9  of this article[,]:
    10    (a)  the  court shall direct the local commissioner of social services
    11  to conduct an  immediate  investigation  to  locate  any  non-respondent
    12  parent of the child and any relatives of the child, including all of the
    13  child's grandparents, all [suitable] relatives or suitable persons iden-
    14  tified  by  any  respondent  parent or any non-respondent parent and any
    15  relative identified by a child over the age of five as  a  relative  who
    16  plays  or  has  played  a significant positive role in his or her life[,
    17  and].   The local commissioner shall  inform  them  in  writing  of  the

    18  pendency  of  the proceeding and of the opportunity for [becoming foster
    19  parents or for seeking custody or care] non-respondent parents  to  seek
    20  temporary  release  of  the child[, and that the child may be adopted by
    21  foster parents if attempts at reunification with the  birth  parent  are
    22  not  required  or  are unsuccessful] under this article or custody under
    23  article six of this act or  for  relatives  to  seek  to  become  foster
    24  parents  or  to  provide free care under this article or to seek custody
    25  pursuant to article six of this act; or for suitable persons  to  become
    26  foster  parents or provide free care under this article or to seek guar-
    27  dianship pursuant to article six of this act. Uniform statewide rules of

    28  court shall specify the contents  of  the  notice  consistent  with  the
    29  provisions  of  this  section. The local commissioner of social services
    30  shall [record] report the results of  such  investigation,  or  investi-
    31  gations  to the court and parties, including the attorney for the child.
    32  The local commissioner shall also record the  results  of  the  investi-
    33  gation  or investigations, including, but not limited to, the name, last
    34  known address, social security number, employer's address and any  other
    35  identifying information to the extent known regarding any non-respondent
    36  parent,  in  the uniform case record maintained pursuant to section four
    37  hundred nine-f of the social services  law.  For  the  purpose  of  this

    38  section,  "non-respondent  parent"  shall  include  a person entitled to
    39  notice of the pendency of the proceeding and of the right  to  intervene
    40  as  an interested party pursuant to subdivision (d) of section one thou-
    41  sand thirty-five of this article, and a non-custodial parent entitled to
    42  notice and the right to enforce visitation rights pursuant  to  subdivi-
    43  sion (e) of section one thousand thirty-five of this article.
    44    (b)  The  court  shall  also  direct  the local commissioner of social
    45  services to conduct an investigation to locate any  person  who  is  not
    46  recognized  to  be the child's legal parent and does not have the rights
    47  of a legal parent under the laws of the state of New York  but  who  (i)
    48  has  filed  with  a putative father registry an instrument acknowledging

    49  paternity of the child, pursuant to section 4-1.2 of the estates, powers
    50  and trusts law, or (ii) has a pending paternity petition, or  (iii)  has
    51  been  identified as a parent of the child by the child's other parent in
    52  a written sworn statement. The local  commissioner  of  social  services
    53  shall report the results of such investigation to the court and parties,
    54  including the attorney for the child.
    55    (c) The court shall determine:
        A. 7623                             3
 
     1    [(a)]  (i)  whether  there  is  a [suitable] non-respondent parent [or
     2  other person related to the child], relative  or  suitable  person  with
     3  whom such child may appropriately reside; and

     4    [(b)]  (ii) in the case of a relative or suitable person, whether such
     5  [relative] individual seeks approval as a foster parent pursuant to  the
     6  social  services  law for the purposes of providing care for such child,
     7  or wishes to provide free care [and custody] for the  child  during  the
     8  pendency of any orders pursuant to this article.
     9    (a) where the court, after a review of the reports of the sex offender
    10  registry  established  and  maintained  pursuant  to section one hundred
    11  sixty-eight-b of the correction law, reports of the statewide  computer-
    12  ized  registry of orders of protection established and maintained pursu-
    13  ant to section two hundred twenty-one-a of the  executive  law,  related

    14  decisions  in  court  proceedings  under  this  article and all warrants
    15  issued under this act,  determines  that  the  child  may  appropriately
    16  reside  with  a  [suitable]  non-respondent  parent or other relative or
    17  [other] suitable person, either:
    18    (i) grant [an] a temporary order of custody or  guardianship  to  such
    19  non-respondent  parent,  [other]  relative  or  [other]  suitable person
    20  pursuant to a petition filed under  article  six  of  this  act  pending
    21  further order of the court, or at disposition of the proceeding, grant a
    22  final  order  of  custody or guardianship to such non-respondent parent,
    23  relative or suitable person pursuant to article  six  of  this  act  and

    24  section one thousand fifty-five-b of this article; or
    25    (ii)  [place]  temporarily  release the child directly [in the custody
    26  of] to such non-respondent parent[,  other]  or  temporarily  place  the
    27  child  with a relative or [other] suitable person pursuant to this arti-
    28  cle during the pendency of the proceeding or until further order of  the
    29  court,  whichever is earlier and conduct such other and further investi-
    30  gations as the court deems necessary. The court may direct  the  commis-
    31  sioner  of  social  services,  pursuant  to regulations of the office of
    32  children and family services, to commence an investigation of  the  home
    33  of  such non-respondent parent, relative or suitable person within twen-

    34  ty-four hours and to report the results to the court  and  the  parties,
    35  including  the  attorney  for the child. If the home of a non-respondent
    36  parent, relative or suitable person, is found unqualified as appropriate
    37  for the temporary release or placement of the child under this  article,
    38  the  local  commissioner shall report such fact and the reasons therefor
    39  to the court and the parties, including  the  attorney  for  the  child,
    40  forthwith; or
    41    (iii) remand or place the child, as applicable, with the local commis-
    42  sioner of social services and direct such commissioner to have the child
    43  reside  with such relative or [other] suitable person and further direct
    44  such commissioner pursuant to regulations of the office of children  and

    45  family  services, to commence an investigation of the home of such rela-
    46  tive or other suitable person within twenty-four  hours  and  thereafter
    47  approve  such  relative  or  other  suitable  person, if qualified, as a
    48  foster parent. If such home is found to be unqualified for approval, the
    49  local commissioner shall report such fact and the reasons thereafter  to
    50  the  court and the parties, including the attorney for the child, forth-
    51  with.
    52    3. An order [placing] temporarily releasing a child [with] to  a  non-
    53  respondent  parent  or  parents,  or  temporarily placing a child with a
    54  relative or relatives or other suitable person or  persons  pursuant  to
    55  subparagraph (ii) of paragraph (a) of subdivision two of this section or

    56  remanding  or  placing  a  child  with  a  local  commissioner of social
        A. 7623                             4
 
     1  services to reside with a relative or relatives or  suitable  person  or
     2  persons  as  foster  parents pursuant to subparagraph (iii) of paragraph
     3  (a) of subdivision two of this section may not  be  granted  unless  the
     4  [relative  or  other  suitable] person [consents] or persons to whom the
     5  child is released, remanded or placed submits to the jurisdiction of the
     6  court with respect to the child.  The [court] order shall set forth  the
     7  terms  and  conditions  applicable  to  such person or persons and child
     8  protective agency, social services official and duly  authorized  agency

     9  with  respect to the child and may [place the person with whom the child
    10  has been directly placed under supervision during the  pendency  of  the
    11  proceeding.  Such  supervision  shall be provided by a] include, but may
    12  not be limited to, a direction for such person or persons  to  cooperate
    13  in making the child available for court-ordered visitation with respond-
    14  ents,  siblings  and others and for appointments with the child's attor-
    15  ney, child  protective  agency,  social  services  official  [or],  duly
    16  authorized  agency,  clinician  or other individual or program providing
    17  services to the child during the pendency of the proceeding.  The  court
    18  also  may issue a temporary order of protection under subdivision (f) of

    19  section one thousand twenty-two, section one  thousand  twenty-three  or
    20  section  one thousand twenty-nine of this article and an order directing
    21  that services be provided pursuant to section one thousand fifteen-a  of
    22  this  part. [An order of supervision issued pursuant to this subdivision
    23  shall set forth the terms and conditions that the relative  or  suitable
    24  person  must  meet  and  the  actions  that the child protective agency,
    25  social services official or duly authorized agency must take to exercise
    26  such supervision.]
    27    § 4. Section 1022-a of the family court act, as added by  chapter  336
    28  of the laws of 1990, is amended to read as follows:
    29    §  1022-a. Preliminary orders; notice and appointment of counsel. At a

    30  hearing held pursuant to section [ten hundred] one  thousand  twenty-two
    31  of  this  [act] part at which the respondent is present, the court shall
    32  advise the respondent and any non-respondent parent who  is  present  of
    33  the  allegations  in  the application and shall appoint counsel for [the
    34  respondent pursuant to] each in  accordance  with  section  two  hundred
    35  sixty-two of this act [where the respondent is indigent], unless waived.
    36    § 5. Subparagraph (C) of paragraph (i) of subdivision (b) and subdivi-
    37  sion  (d)  of  section 1027 of the family court act, subparagraph (C) of
    38  paragraph (i) of subdivision (b) as amended by chapter 671 of  the  laws
    39  of 2005 and subdivision (d) as added by chapter 962 of the laws of 1970,
    40  are amended to read as follows:

    41    (C)  [in the custody of] with a relative or suitable person other than
    42  the respondent.
    43    (d) Upon such hearing, the court may, for good  cause  shown,  release
    44  the  child to [the custody of] his or her parent or other person legally
    45  responsible for his or her care, pending a final order  of  disposition,
    46  in  accord with subparagraph (ii) of paragraph (a) of subdivision two of
    47  section one thousand [fifty-four] seventeen of this article.
    48    § 6. The opening paragraph of subdivision (d) of section 1035  of  the
    49  family  court  act,  as  amended  by chapter 526 of the laws of 2003, is
    50  amended to read as follows:
    51    Where the respondent is not the child's parent, service of the summons
    52  and petition shall also be ordered on both of the child's parents; where

    53  only one of the child's  parents  is  the  respondent,  service  of  the
    54  summons  and petition shall also be ordered on the child's other parent.
    55  The summons and petition shall be accompanied by a notice of pendency of
    56  the child protective proceeding advising the parents or  parent  of  the
        A. 7623                             5
 
     1  right to appear and participate in the proceeding as an interested party
     2  intervenor for the purpose of seeking temporary and permanent release of
     3  the  child  under this article or custody of the child under article six
     4  of  this  act,  and to participate thereby in all arguments and hearings
     5  insofar as they affect the temporary release or  custody  of  the  child
     6  during  fact-finding  proceedings,  and  in  all phases of dispositional

     7  proceedings. The notice shall also advise the parent or parents  of  the
     8  right  to  counsel,  including assigned counsel, pursuant to section two
     9  hundred sixty-two of this act, and also indicate that:
    10    § 7. Subdivision (a) of section 1052  of  the  family  court  act,  as
    11  amended  by  chapter  519  of  the  laws  of 2008, is amended to read as
    12  follows:
    13    (a) At the conclusion of a dispositional hearing under  this  article,
    14  the  court  shall enter an order of disposition directing one or more of
    15  the following:
    16    (i) suspending judgment in accord with  section  one  thousand  fifty-
    17  three of this part; or
    18    (ii)  releasing  the  child  to  [the custody of his] a non-respondent
    19  parent or parents or [other person legally responsible] legal  custodian

    20  or  custodians  or guardian or guardians, who is not or are not respond-
    21  ents in the proceeding, in accord with section one  thousand  fifty-four
    22  of this part; or
    23    (iii) placing the child in accord with section one thousand fifty-five
    24  of this part; or
    25    (iv) making an order of protection in accord with section one thousand
    26  fifty-six of this part; or
    27    (v)  releasing  the  child to the respondent or respondents or placing
    28  the respondent or respondents under supervision, or both, in accord with
    29  section one thousand fifty-seven of this part; or
    30    (vi) granting custody of the child to a respondent parent or  parents,
    31  a  relative  or  relatives  or  a suitable person or persons pursuant to

    32  article six of this act and section one thousand  fifty-five-b  of  this
    33  part; or
    34    (vii)  granting  custody  of  the  child to a non-respondent parent or
    35  parents pursuant to article six of this act.
    36    However, the court shall not enter an order of  disposition  combining
    37  placement  of the child under paragraph (iii) of this subdivision with a
    38  disposition under paragraph (i) or (ii) of this  subdivision.  An  order
    39  granting  custody  of  the  child pursuant to paragraph (vi) or (vii) of
    40  this subdivision shall not be combined with any other disposition  under
    41  this subdivision.
    42    §  8. Section 1054 of the family court act, as amended by chapter 1039
    43  of the laws of 1973, subdivision (a) as amended by  chapter  41  of  the
    44  laws  of  2010 and subdivision (b) as amended by chapter 458 of the laws

    45  of 1989, is amended to read as follows:
    46    § 1054. Release to [custody of] non-respondent parent or [other person
    47  responsible for care; supervision or order of protection]  legal  custo-
    48  dian  or guardian.   (a) [If the] An order of disposition [releases] may
    49  release the child for a designated period of up  to  one  year  to  [the
    50  custody  of  his or her] a non-respondent parent or [other] parents or a
    51  person [legally responsible for his or her care] or persons who had been
    52  the child's legal custodian or guardian at the time of the filing of the

    53  petition, [the] and who is not or are not respondents in the  proceeding
    54  under  this  article. An order under this section may be extended upon a
    55  hearing for a period of up to one year for good cause.
        A. 7623                             6
 
     1    (b) The court may [place] require the  person  or  persons  to  [whose
     2  custody]  whom  the  child  is  released  under  [supervision of a] this
     3  section to submit to the jurisdiction of the court with respect  to  the
     4  child  for  the  period  of the disposition or an extension thereof. The
     5  order may include, but is not limited to, a direction for such person or

     6  persons  to  cooperate  in  making the child available for court-ordered
     7  visitation with respondents, siblings and others  and  for  appointments
     8  with  the  child's  attorney,  child protective agency [or of a], social
     9  services official or duly authorized agency, clinician or other individ-
    10  ual or program providing services to the  child.  The  order  shall  set
    11  forth  the  terms  and  conditions applicable to such non-respondent and
    12  child protective agency, social services official  and  duly  authorized
    13  agency with respect to the child.
    14    (c)  In conjunction with an order releasing the child to a non-respon-
    15  dent parent, legal custodian or guardian  under  this  subdivision,  the

    16  court  may  also  issue  any or all of the following orders: an order of
    17  supervision of a respondent parent under section one thousand fifty-sev-
    18  en, an order directing that  services  be  provided  to  the  respondent
    19  parent  under  section one thousand fifteen-a or [may enter] an order of
    20  protection under section one thousand fifty-six[, or both] of this arti-
    21  cle. An order of  supervision  of  the  respondent  entered  under  this
    22  [section  shall  set  forth the terms and conditions of such supervision
    23  that the respondent must meet and the actions that the child  protective
    24  agency,  social services official or duly authorized agency must take to

    25  exercise such supervision] subdivision may be extended  upon  a  hearing
    26  for a period of up to one year for good cause.
    27    (d)  Except  as  provided  for herein, in any order issued pursuant to
    28  this section, the court may require the child protective agency to  make
    29  progress  reports to the court, the parties, and the child's attorney on
    30  the implementation of such order. Where  the  order  of  disposition  is
    31  issued  upon  the  consent of the parties and the child's attorney, such
    32  agency shall report to the court, the parties and the  child's  attorney
    33  no  later  than ninety days after the issuance of the order and no later
    34  than sixty days prior to the expiration of the order, unless  the  court
    35  determines  that  the facts and circumstances of the case do not require
    36  such report to be made.

    37    [(b) Rules of court shall define permissible terms and  conditions  of
    38  supervision  under  this  section.  The duration of any period of super-
    39  vision shall be for an initial period of no more than one year  and  the
    40  court  may at the expiration of that period, upon a hearing and for good
    41  cause shown, make successive extensions of such supervision of up to one
    42  year each.]
    43    § 9. The section heading and  subdivisions  (a)  and  (b)  of  section
    44  1055-b  of  the  family  court act, as amended by section 7 of part F of
    45  chapter 58 of the laws of 2010, are amended  and  two  new  subdivisions
    46  (a-1) and (a-2) are added to read as follows:
    47    Custody  or  guardianship with a parent or parents, relatives or suit-
    48  able persons pursuant to article six of this act  or  guardianship  with

    49  [such a person] relatives or suitable persons pursuant to article seven-
    50  teen  of  the surrogate's court procedure act.  (a) Custody or guardian-
    51  ship with respondent parent or parents, relatives or  suitable  persons.
    52  At  the  conclusion of the dispositional hearing under this article, the
    53  court may enter an order of disposition granting custody or guardianship
    54  of the child to a respondent parent or parents, as defined  in  subdivi-
    55  sion  (1)  of section one thousand twelve of this article, or a relative
    56  or relatives or other suitable person or  persons  [under]  pursuant  to
        A. 7623                             7
 
     1  article  six  of  this  act  or an order of guardianship of the child to

     2  [such] a relative or relatives or suitable person or persons under arti-
     3  cle seventeen of the surrogate's court procedure act  if  the  following
     4  conditions have been met:
     5    (i)  the  respondent parent or parents, relative or relatives or suit-
     6  able person or persons has or have filed a petition for custody or guar-
     7  dianship of the child pursuant to article six of this  act  or,  in  the
     8  case  of  a relative or relatives or suitable person or persons, a peti-
     9  tion for guardianship of the child under article seventeen of the surro-
    10  gate's court procedure act; and
    11    (ii) the court finds that granting  custody  or  guardianship  of  the
    12  child  to  [the  relative  or suitable] such person or persons is in the

    13  best interests of the child and that the safety of the child will not be
    14  jeopardized if the respondent or respondents under the child  protective
    15  proceeding  are  no  longer  under supervision or receiving services. In
    16  determining whether the best interests of the child will be promoted  by
    17  the  granting  of  guardianship of the child to a relative who has cared
    18  for the child as a foster parent, the court shall give due consideration
    19  to the permanency goal of the child, the relationship between the  child
    20  and  the  relative,  and  whether  the  relative and the social services
    21  district have entered into an agreement to provide kinship  guardianship
    22  assistance  payments  for  the  child to the relative under title ten of
    23  article six of the social services law, and, if so,  whether  the  fact-
    24  finding  hearing pursuant to section one thousand fifty-one of this part

    25  and a permanency hearing pursuant to section one thousand eighty-nine of
    26  this chapter [has] have occurred and whether  compelling  reasons  exist
    27  for  determining  that  the return home of the child and the adoption of
    28  the child are not in the best interests of the child and are, therefore,
    29  not appropriate permanency options; and
    30    (iii) the court finds that granting custody  or  guardianship  of  the
    31  child  to the respondent parent, relative or suitable person under arti-
    32  cle six of this act or granting guardianship of the child to  the  rela-
    33  tive  or  [other]  suitable person under article seventeen of the surro-
    34  gate's court procedure act will  provide  the  child  with  a  safe  and
    35  permanent home; and
    36    (iv)  all  parties  to  the child protective proceeding consent to the

    37  granting of custody or guardianship under article six of this act or the
    38  granting of guardianship under  article  seventeen  of  the  surrogate's
    39  court  procedure  act;  or  [(v)],  if  any of the parties object to the
    40  granting of custody or guardianship, the court has  made  the  following
    41  findings after a [consolidated] joint dispositional hearing on the child
    42  protective  petition  and  the petition under article six of this act or
    43  under article seventeen of the surrogate's court procedure act[;]:
    44    (A) if a relative or relatives or  suitable  person  or  persons  have
    45  filed  a  petition  for  custody or guardianship and a parent or parents
    46  fail to consent to the granting of [custody or guardianship under  arti-

    47  cle  six  of  this  act  or] the [granting of guardianship under article
    48  seventeen of the surrogate's court procedure act]  petition,  the  court
    49  finds  that the relative or relatives or suitable person or persons have
    50  demonstrated that extraordinary circumstances exist that support  grant-
    51  ing  an order of custody or guardianship to the relative or relatives or
    52  suitable person or persons and that the granting of the order will serve
    53  the child's best interests; or
    54    (B) if a relative or relatives or  suitable  person  or  persons  have
    55  filed  a petition for custody or guardianship and a party other than the
    56  parent or parents fail to consent to the granting of [custody or guardi-

        A. 7623                             8

     1  anship under article six of this act or] the petition [granting of guar-
     2  dianship under article seventeen  of  the  surrogate's  court  procedure
     3  act], the court finds that granting custody or guardianship of the child
     4  to  the  relative  or  relatives or suitable person or persons is in the
     5  best interests of the child; or
     6    (C) if a respondent parent has filed  a  petition  for  custody  under
     7  article  six  of  this  act and a party who is not a parent of the child
     8  objects to the granting of the petition, the court finds either that the
     9  objecting party has failed to establish extraordinary circumstances, or,

    10  if the objecting party has established extraordinary circumstances, that
    11  granting custody to the petitioning respondent parent would  nonetheless
    12  be in the child's best interests; or
    13    (D)  if  a  respondent  parent  has filed a petition for custody under
    14  article six of this act and the other parent objects to the granting  of
    15  the  petition,  the court finds that granting custody to the petitioning
    16  respondent parent is in the child's best interests.
    17    (a-1) Custody and visitation petition of non-respondent  parent  under
    18  article  six of this act. Where a proceeding filed by the non-respondent
    19  parent pursuant to article six of this act is pending at the  same  time
    20  as  a  proceeding  brought in the family court pursuant to this article,

    21  the court presiding over the proceeding under this article  may  jointly
    22  hear  the  dispositional  hearing on the child protective petition under
    23  this article and the hearing on  the  custody  and  visitation  petition
    24  under  article  six of this act; provided however, the court must deter-
    25  mine the non-respondent parent's custody and visitation  petition  filed
    26  under article six of this act in accordance with the terms of that arti-
    27  cle.
    28    (a-2)  Custody  and visitation petition of non-respondent parent under
    29  section two hundred  forty  of  the  domestic  relations  law.  Where  a
    30  proceeding  brought  in  the  supreme court involving the custody of, or
    31  right to visitation with, any child of a marriage is pending at the same

    32  time as a proceeding brought in the family court pursuant to this  arti-
    33  cle,  the  court  presiding  over  the proceeding under this article may
    34  jointly hear the dispositional hearing on the child protective  petition
    35  under article ten of this act and, upon referral from the supreme court,
    36  the  hearing  to  resolve  the  matter  of  custody or visitation in the
    37  proceeding pending in the supreme court;  provided  however,  the  court
    38  must  determine  the non-respondent parent's custodial rights in accord-
    39  ance with the terms of paragraph (a) of subdivision one of  section  two
    40  hundred forty of the domestic relations law.
    41    (b)  An  order  made in accordance with the provisions of this section
    42  shall set forth the required findings as described in subdivision (a) of

    43  this section where applicable, including, if the guardian and the  local
    44  department  of social services have entered into an agreement to provide
    45  kinship guardianship assistance payments for the child to  the  relative
    46  under  title ten of article six of the social services law, that a fact-
    47  finding hearing pursuant to section one thousand fifty-one of this  part
    48  and a permanency hearing pursuant to section one thousand eighty-nine of
    49  this  chapter  has  occurred,  and the compelling reasons that exist for
    50  determining that the return home of the child and the  adoption  of  the
    51  child are not in the best interests of the child and are, therefore, not
    52  appropriate  permanency  options for the child, and shall constitute the
    53  final disposition of the child  protective  proceeding.  Notwithstanding
    54  any other provision of law, the court shall not issue an order of super-

    55  vision nor may the court require the local department of social services
    56  to  provide  services  to  the  respondent  or respondents when granting
        A. 7623                             9
 
     1  custody or guardianship pursuant to article six of this act  under  this
     2  section  or  granting guardianship under article seventeen of the surro-
     3  gate's court procedure act.
     4    §  10.  Section 1057 of the family court act, as amended by chapter 41
     5  of the laws of 2010, is amended to read as follows:
     6    § 1057. [Supervision] Release  of  the  child  to  the  respondent  or
     7  respondents; supervision of the respondent or respondents.
     8    (a)  The  court may release the child to the respondent or respondents
     9  for a period of up to one year, which may be extended pursuant to subdi-

    10  vision (d) of this section.
    11    (b) In conjunction with an order releasing a child under this  section
    12  or  an  order  under paragraph (ii), (iii) or (iv) of subdivision (a) of
    13  section one thousand fifty-two of this part, the  court  may  place  the
    14  respondent or respondents under supervision of a child protective agency
    15  or  of a social services official or duly authorized agency. An order of
    16  supervision entered under this section shall set  forth  the  terms  and
    17  conditions  of  such supervision that the respondent or respondents must
    18  meet and the actions that the child protective agency,  social  services
    19  official  or  duly  authorized  agency must take to exercise such super-
    20  vision.
    21    (c) Except as provided for herein, in any  order  issued  pursuant  to

    22  subdivision  (a) or (b) of this section, the court may require the child
    23  protective agency to make progress reports to the  court,  the  parties,
    24  and the child's attorney on the implementation of such order.  Where the
    25  order  of  disposition is issued upon the consent of the parties and the
    26  child's attorney, such agency shall report to the court, the parties and
    27  the child's attorney no later than ninety days after the issuance of the
    28  order[, unless] and no later than sixty days prior to the expiration  of
    29  the  order, unless the court determines that the facts and circumstances
    30  of the case do not require such report to  be  made.    [Rules]  Uniform
    31  statewide  rules  of court shall define permissible terms and conditions
    32  of supervision of the respondent or respondents under this section.

    33    (d) The duration of any period of release of the child to the respond-
    34  ent or respondents or supervision of the respondent  or  respondents  or
    35  both  shall be for an initial period of no more than one year [and the].
    36  The court may at the expiration of that period, upon a hearing  and  for
    37  good cause shown, [make successive extensions of] extend such release or
    38  supervision or both for a period of up to one year [each].
    39    § 11. The section heading and subdivisions (a), (b) and (c) of section
    40  1089-a  of  the  family  court act, as amended by section 8 of part F of
    41  chapter 58 of the laws of 2010, are amended  and  two  new  subdivisions
    42  (a-1) and (a-2) are added to read as follows:

    43    Custody  or guardianship with a parent or parents, a relative or rela-
    44  tives or a suitable person or persons pursuant to article  six  of  this
    45  act  or  guardianship of a relative or relatives or a suitable person or
    46  persons pursuant to article seventeen of the surrogate's court procedure
    47  act. (a) Where the permanency plan is placement with a fit  and  willing
    48  relative or a respondent parent, the court may issue an order of custody
    49  or  guardianship in response to a petition filed by a respondent parent,
    50  relative or suitable person seeking custody or guardianship of the child
    51  under article six of this act or an order of guardianship of  the  child
    52  under  article  seventeen of the surrogate's court procedure act [at]. A

    53  petition for custody or guardianship may be heard jointly with a perman-
    54  ency hearing held pursuant to this article [and terminate]. An order  of
    55  custody  or guardianship issued in accordance with this subdivision will
    56  result in termination of all pending  orders  issued  pursuant  to  this
        A. 7623                            10
 
     1  article or article ten of this act if the following conditions have been
     2  met:
     3    (i)  the court finds that granting custody to the respondent parent or
     4  parents, relative or relatives or suitable person or persons or  guardi-
     5  anship  of  the child to the relative or relatives or suitable person or

     6  persons is in the best interests of the child and that  the  termination
     7  of  the order placing the child pursuant to article ten of this act will
     8  not jeopardize the safety of the child. In determining whether the  best
     9  interests  of the child will be promoted by the granting of guardianship
    10  of the child to a relative who has cared  for  the  child  as  a  foster
    11  parent, the court shall give due consideration to the permanency goal of
    12  the  child,  the  relationship  between  the child and the relative, and
    13  whether the relative and the local department of  social  services  have
    14  entered  into  an  agreement  to provide kinship guardianship assistance
    15  payments for the child to the relative under title ten of article six of
    16  the social services law, and, if  so,  whether  a  fact-finding  hearing
    17  pursuant to section one thousand fifty-one of this chapter has occurred,

    18  and  whether  compelling  reasons  exist for determining that the return
    19  home of the child and the adoption of the child  are  not  in  the  best
    20  interests  of  the  child and are, therefore, not appropriate permanency
    21  options; and
    22    (ii) the court finds that granting custody to the respondent parent or
    23  parents, relative or relatives or suitable person or persons or  guardi-
    24  anship  of  the child to the relative or relatives or suitable person or
    25  persons will provide the child with a safe and permanent home; and
    26    (iii) the parents, the attorney for the child, the local department of
    27  social services, and the foster parent of the child  who  has  been  the
    28  foster parent for the child for one year or more consent to the issuance
    29  of  an order of custody or guardianship under article six of this act or

    30  the granting of guardianship under article seventeen of the  surrogate's
    31  court procedure act and the termination of the order of placement pursu-
    32  ant to this article or article ten of this act; or [(iv)], if any of the
    33  parties object to the granting of custody or guardianship, the court has
    34  made  the following findings after a [consolidated] joint hearing on the
    35  permanency of the child and the petition under article six of  this  act
    36  or article seventeen of the surrogate's court procedure act[;]:
    37    (A)  if  a  relative  or  relatives or suitable person or persons have
    38  filed a petition for custody or guardianship and  a  parent  or  parents
    39  fail  to consent to the granting of [custody or guardianship under arti-

    40  cle six of this act or] the  [granting  of  guardianship  under  article
    41  seventeen  of  the  surrogate's court procedure act] petition, the court
    42  finds that the relative or relatives or suitable person or persons  have
    43  demonstrated  that extraordinary circumstances exist that support grant-
    44  ing an order of custody or guardianship under article six of this act or
    45  the granting of guardianship under article seventeen of the  surrogate's
    46  court  procedure  act to the relative or relatives or suitable person or
    47  persons and that the granting of the order will serve the  child's  best
    48  interests; or
    49    (B)  if  a  relative  or  relatives or suitable person or persons have
    50  filed a petition for custody or guardianship and the local department of

    51  social services, the attorney for the child, or the foster parent of the
    52  child who has been the foster parent for the child for one year or  more
    53  [fail  to  consent]  objects to the granting of [custody or guardianship
    54  under article six of this act or  the  granting  of  guardianship  under
    55  article  seventeen of the surrogate's court procedure act] the petition,
    56  the court finds that granting custody or guardianship of  the  child  to
        A. 7623                            11
 
     1  the  relative  or relatives or suitable person or persons is in the best
     2  interests of the child; or
     3    (C)  if  a  respondent  parent  has filed a petition for custody under

     4  article six of this act and a party who is not a  parent  of  the  child
     5  objects to the granting of the petition, the court finds either that the
     6  objecting party has failed to establish extraordinary circumstances, or,
     7  if the objecting party has established extraordinary circumstances, that
     8  granting  custody to the petitioning respondent parent would nonetheless
     9  be in the child's best interests; or
    10    (D) if a respondent parent has filed  a  petition  for  custody  under
    11  article  six  of  this  act and the other parent fails to consent to the
    12  granting of the petition, the court finds that granting custody  to  the
    13  petitioning respondent parent is in the child's best interests.
    14    (a-1)  Custody  and visitation petition of non-respondent parent under

    15  article six of this act. Where a proceeding filed  by  a  non-respondent
    16  parent  pursuant  to article six of this act is pending at the same time
    17  as a proceeding brought in the family court pursuant  to  this  article,
    18  the  court  presiding over the proceeding under this article may jointly
    19  hear the permanency hearing and the hearing on the custody  and  visita-
    20  tion petition under article six of this act; provided however, the court
    21  must  determine the non-respondent parent's custody petition filed under
    22  article six of this act in accordance with the terms of that article.
    23    (a-2) Custody and visitation petition of non-respondent  parent  under
    24  section  two  hundred  forty  of  the  domestic  relations  law. Where a

    25  proceeding brought in the supreme court involving  the  custody  of,  or
    26  right to visitation with, any child of a marriage is pending at the same
    27  time  as a proceeding brought in the family court pursuant to this arti-
    28  cle, the court presiding over the  proceeding  under  this  article  may
    29  jointly  hear the permanency hearing and, upon referral from the supreme
    30  court, the hearing to resolve the matter of custody or visitation in the
    31  proceeding pending in the supreme court;  provided  however,  the  court
    32  must  determine  the non-respondent parent's custodial rights in accord-
    33  ance with the terms of paragraph (a) of subdivision one of  section  two
    34  hundred forty of the domestic relations law.

    35    (b)  An  order  made in accordance with the provisions of this section
    36  shall set forth the required findings as described in subdivision (a) of
    37  this section, where applicable, including, if  the  guardian  and  local
    38  department  of social services have entered into an agreement to provide
    39  kinship guardianship assistance payments for the child to  the  relative
    40  under  title ten of article six of the social services law, that a fact-
    41  finding hearing pursuant to section one thousand fifty-one of this chap-
    42  ter and a permanency hearing pursuant to section  one  thousand  eighty-
    43  nine  of  this  part has occurred, and the compelling reasons that exist
    44  for determining that the return home of the child are not  in  the  best
    45  interests  of  the  child and are, therefore, not appropriate permanency

    46  options for the child, and shall result in the termination of any orders
    47  in effect pursuant to article ten of this act or pursuant to this  arti-
    48  cle.  Notwithstanding  any  other  provision of law, the court shall not
    49  issue an order of supervision  nor  may  the  court  require  the  local
    50  department  of  social services to provide services to the respondent or
    51  respondents when granting custody or guardianship  pursuant  to  article
    52  six of this act under this section or the granting of guardianship under
    53  article  seventeen  of the surrogate's court procedure act in accordance
    54  with this section.
    55    (c) As part of the order granting  custody  or  guardianship  [to  the
    56  relative or suitable person] in accordance with this section pursuant to
        A. 7623                            12
 

     1  article  six  of  this act or the granting of guardianship under article
     2  seventeen of the surrogate's court procedure act, the court may  require
     3  that  the  local  department of social services and the attorney for the
     4  child receive notice of, and be made parties to, any subsequent proceed-
     5  ing  to  modify the order of custody or guardianship granted pursuant to
     6  the article six proceeding; provided, however, if the guardian  and  the
     7  local  department  of  social services have entered into an agreement to
     8  provide kinship guardianship assistance payments for the  child  to  the
     9  relative  under title ten of article six of the social services law, the
    10  order must require that the local department of social services and  the
    11  attorney  for  the  child receive notice of, and be made parties to, any
    12  such subsequent proceeding involving  custody  or  guardianship  of  the
    13  child.

    14    §  12.  Paragraph  (a) of subdivision 1 of section 240 of the domestic
    15  relations law, as amended by chapter 476 of the laws of 2009, is amended
    16  to read as follows:
    17    (a) In any action or proceeding brought (1) to annul a marriage or  to
    18  declare  the nullity of a void marriage, or (2) for a separation, or (3)
    19  for a divorce, or (4) to obtain, by a writ of habeas corpus or by  peti-
    20  tion and order to show cause, the custody of or right to visitation with
    21  any  child  of  a  marriage, the court shall require verification of the
    22  status of any child of the marriage with respect to such child's custody
    23  and support, including any prior orders,  and  shall  enter  orders  for
    24  custody  and  support  as,  in the court's discretion, justice requires,
    25  having regard to the circumstances of the case  and  of  the  respective

    26  parties  and  to  the  best  interests  of  the child and subject to the
    27  provisions of subdivision one-c of this section. Where either  party  to
    28  an  action  concerning  custody of or a right to visitation with a child
    29  alleges in a sworn petition or complaint or  sworn  answer,  cross-peti-
    30  tion,  counterclaim  or  other  sworn responsive pleading that the other
    31  party has committed an act of domestic violence against the party making
    32  the allegation or a family or household member of either party, as  such
    33  family  or  household  member  is defined in article eight of the family
    34  court act, and such allegations are proven by  a  preponderance  of  the
    35  evidence,  the  court must consider the effect of such domestic violence
    36  upon the best interests of the child, together with such other facts and
    37  circumstances as the court deems relevant in making a direction pursuant

    38  to this section and state on the record how  such  findings,  facts  and
    39  circumstances  factored  into  the  direction.  If a parent makes a good
    40  faith allegation based on a reasonable belief supported  by  facts  that
    41  the child is the victim of child abuse, child neglect, or the effects of
    42  domestic violence, and if that parent acts lawfully and in good faith in
    43  response  to  that reasonable belief to protect the child or seek treat-
    44  ment for the child, then that parent shall not be deprived  of  custody,
    45  visitation  or contact with the child, or restricted in custody, visita-
    46  tion or contact, based solely on that belief or the  reasonable  actions
    47  taken  based  on that belief. If an allegation that a child is abused is
    48  supported by a preponderance of  the  evidence,  then  the  court  shall
    49  consider  such  evidence of abuse in determining the visitation arrange-

    50  ment that is in the best interest of the child, and the court shall  not
    51  place a child in the custody of a parent who presents a substantial risk
    52  of  harm  to that child, and shall state on the record how such findings
    53  were factored into the determination.  Where a proceeding filed pursuant
    54  to article ten or ten-a of the family court act is pending at  the  same
    55  time  as a proceeding brought in the supreme court involving the custody
    56  of, or right to visitation with, any child  of  a  marriage,  the  court
        A. 7623                            13
 
     1  presiding  over  the proceeding under article ten or ten-a of the family
     2  court act may jointly hear the dispositional  hearing  on  the  petition
     3  under  article  ten or the permanency hearing under article ten-a of the

     4  family  court act and, upon referral from the supreme court, the hearing
     5  to resolve the matter of custody or visitation in the proceeding pending
     6  in the supreme court; provided however, the court must determine custody
     7  or visitation in accordance with the terms of this section.
     8    An order directing the payment of  child  support  shall  contain  the
     9  social  security  numbers of the named parties. In all cases there shall
    10  be no prima facie right to the custody of the child  in  either  parent.
    11  Such direction shall make provision for child support out of the proper-
    12  ty  of  either or both parents. The court shall make its award for child
    13  support pursuant to subdivision one-b of this  section.  Such  direction
    14  may  provide  for  reasonable  visitation  rights to the maternal and/or

    15  paternal grandparents of any child of the parties. Such direction as  it
    16  applies  to  rights of visitation with a child remanded or placed in the
    17  care of a person, official, agency or institution  pursuant  to  article
    18  ten of the family court act, or pursuant to an instrument approved under
    19  section three hundred fifty-eight-a of the social services law, shall be
    20  enforceable  pursuant  to  part eight of article ten of the family court
    21  act and sections three hundred fifty-eight-a and three  hundred  eighty-
    22  four-a of the social services law and other applicable provisions of law
    23  against any person having care and custody, or temporary care and custo-
    24  dy,  of the child. Notwithstanding any other provision of law, any writ-
    25  ten application or motion to the court for the establishment,  modifica-
    26  tion  or  enforcement  of  a child support obligation for persons not in

    27  receipt of public assistance and care must contain either a request  for
    28  child  support enforcement services which would authorize the collection
    29  of the support  obligation  by  the  immediate  issuance  of  an  income
    30  execution  for  support  enforcement  as  provided  for by this chapter,
    31  completed in the manner specified in section one hundred eleven-g of the
    32  social services law; or a statement that the applicant has  applied  for
    33  or  is  in  receipt  of such services; or a statement that the applicant
    34  knows of the availability of such services, has declined  them  at  this
    35  time  and  where  support  enforcement  services pursuant to section one
    36  hundred eleven-g of the social services law have been declined that  the
    37  applicant  understands  that  an  income  deduction  order may be issued
    38  pursuant to subdivision (c) of section fifty-two  hundred  forty-two  of

    39  the civil practice law and rules without other child support enforcement
    40  services  and that payment of an administrative fee may be required. The
    41  court shall provide a  copy  of  any  such  request  for  child  support
    42  enforcement  services  to the support collection unit of the appropriate
    43  social services district any time it directs payments to be made to such
    44  support collection unit. Additionally, the  copy  of  any  such  request
    45  shall  be accompanied by the name, address and social security number of
    46  the parties; the date and place of the parties' marriage; the  name  and
    47  date  of birth of the child or children; and the name and address of the
    48  employers and income payors of the party  from  whom  child  support  is
    49  sought  or  from  the  party  ordered  to pay child support to the other
    50  party. Such direction may require the payment of a sum or sums of  money

    51  either directly to the custodial parent or to third persons for goods or
    52  services furnished for such child, or for both payments to the custodial
    53  parent  and  to  such  third persons; provided, however, that unless the
    54  party seeking or receiving child support has applied for or is receiving
    55  such services, the court shall not direct such payments to  be  made  to
    56  the  support  collection  unit,  as  established  in section one hundred
        A. 7623                            14
 
     1  eleven-h of the social services law. Every order directing  the  payment
     2  of support shall require that if either parent currently, or at any time
     3  in  the  future,  has  health  insurance  benefits available that may be
     4  extended  or  obtained  to  cover  the child, such parent is required to
     5  exercise the option of additional coverage in favor of  such  child  and

     6  execute  and  deliver  to  such  person any forms, notices, documents or
     7  instruments necessary to assure timely payment of any  health  insurance
     8  claims for such child.
     9    §  13.  This  act  shall  take effect on the one hundred eightieth day
    10  after it shall have become a law.