Requires the court to consider a child's health and safety when making a decision regarding child custody and visitation; directs the court to review certain information as it relates to allegations of child abuse, domestic violence and child safety; requires the court to appoint an attorney to represent the child when credible allegations of serious risk to the child's safety have been made.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A6194
SPONSOR: Hevesi TITLE OF BILL:
An act to amend the domestic relations law, the family court act and the
civil practice law and rules, in relation to establishing "Kyra's Law"
PURPOSE OR GENERAL IDEA OF BILL:
To protect children by ensuring courts promote the safety of children in
child custody and visitation proceedings.
SUMMARY OF PROVISIONS:
Section 1 of the bill identifies the name of this legislation as "Kyra's
Law." Section 2 of the bill is a statement of legislative intent.
Section 3 of the bill amends subdivision 1 of section 240 of the domes-
tic relations law to require courts to conduct a prompt evidentiary
hearing upon the application by any party to a child custody or visita-
tion proceeding, or of an attorney for the child, asserting facially
credible allegations that, if true, would pose a substantial risk to the
child's safety and to determine whether temporary limitations or condi-
tions on the custody or visitation rights of a party are necessary to
avoid substantial risk to the child's safety. This section requires that
certain evidence presented to the court be considered during such hear-
ing, requires that the court's determination be in writing or on the
record, and provides a right of appeal. This section also creates a
rebuttable presumption that the court, in a temporary order of custody
or visitation, shall not award sole or joint custody or visitation that
is unsupervised or without sufficient protections of the child's safety
to a party who poses a substantial risk to the child's safety.
Section 4 of the bill amends the domestic relations law to create a new
section 240-e defines the terms "coercive control" and "victims of
domestic violence." This section provides that a court making a final
determination of custody and visitation based on the best interests of
the child shall prioritize and promote the safety of children and
requires that certain evidence presented to the court be considered.
This section also creates a rebuttable presumption that custody or visi-
tation that is unsupervised or without sufficient protections of the
child's safety shall not be awarded to a party who poses a substantial
risk to the child's safety. This section provides that where a party
asserts credible allegations regarding domestic violence, child abuse,
or substantial risk to the child's safety, the court shall not find that
protective behaviors to safeguard the child constitute failure to
support the child's relationship with the other party or that a child's
reluctance to interact with a party was caused by the other party.
Finally, this section requires the chief administrator of the courts to
promulgate rules mandating comprehensive training for judges, referees,
and other hearing officers who preside over child custody proceedings
in which one or more parties have alleged substantial risk to the
child's safety.
Section 5 of the bill amends subdivision (a) of section 70 of the domes-
tic relations law to ensure that the same protections as noted above are
in place regardless of whether the parents of the child have ever been
married.
Section 6 of the bill amends section 651 of the Family Court Act to
require the Office of Court Administration to update petitions to initi-
ate custody and visitation proceedings in a manner to permit petitioners
to identify findings or allegations of child abuse, domestic violence,
or a substantial risk to a child's safety.
Section 7 of the bill amends section 651 of the Family Court Act to
ensure that the same protections as noted above are in place for custody
and visitation proceedings in Family Court.
Sections 8 and 9 of the bill amend sections 1112 and 1114 of the family
court act to ensure a party's decision to appeal an initial or succes-
sive temporary order is permitted.
Sections 10 and 11 of the bill amend subdivision a of section 249 of the
family court act to ensure the court appoints an attorney to represent a
child in any proceeding under article 6 when credible allegations of
substantial risk to the child's safety have been made.
Section 12 of the bill amends rule 5521 of the civil practice law and
rules to ensure a party's decision to appeal an initial or successive
order is permitted.
Section 13 is the effective date.
JUSTIFICATION:
This legislation, known as "Kyra's Law," recognizes that the safety of
children is an integral element of their best interests. The bill
retains "the best interests of the child" standard while directing that
judicial decisions regarding custody of and access to children promote
the safety of children as a threshold matter.
Kyra Franchetti, a toddler, was ordered by the court to have unsuper-
vised visits with her father, despite repeated reports and eyewitness
accounts of his anger and rage issues, suicidal ideation, stalking and
history of coercive tactics and abuse. During two years of child custody
hearings, Kyra Franchetti's mother repeatedly pleaded with the court to
acknowledge the risk of harm to Kyra. In July.2016, Kyra was on an unsu-
pervised, court-ordered visit with her abusive father in Virginia when
he shot Kyra to death while she slept. He then set his house on fire and
killed himself. Kyra was only 2 years old.
Too often, courts throughout the United States discount or minimize the
risks posed in cases where domestic violence is present, dismissing
allegations of domestic violence or child abuse as an attempt by one
parent to win custody from the other. Too many abusers who used coercive
power and control tactics against their intimate partners go so far as
to use their children as pawns, even harming or murdering them, to try
to maintain control over or devastate their former partners. Tragically,
numerous children in New York have been injured or murdered at the hands
of a parent seeking to cause pain and trauma to their intimate partner.
This bill would require Family and Supreme courts to conduct a prompt
evidentiary hearing upon the application by any party to a child custody
or visitation proceeding, or of an attorney for the child, asserting
facially credible allegations that, if true, would pose a substantial
risk to the child's safety and to determine whether temporary limita-
tions or conditions on the custody or visitation rights of a party are
necessary to avoid substantial risk to the child's safety. Such assess-
ment of substantial risk would include, but not be limited to, consider-
ing a party's history of domestic violence, child abuse, Incidents
involving harm or substantial risk to the safety of the child; police
reports, including domestic incident reports; and other known risk
factors.
The bill also specifies that, when making a final determination of
custody or visitation based on the best interests of a child, the court
must prioritize and promote the safety of the child. The court would
consider several factors, including a party's history of domestic
violence, child abuse, or incidents involving harm to a child or
substantial risk to the safety of the child; police reports, such as
domestic incident reports or orders of protection; commission of family
offenses; whether either party has used or threatened to use a weapon or
dangerous instrument; threats to harm or kill the child, the other
parent, others or companion animals; sexual abuse or other sexual
offenses against the child or other parent; and other factors indicating
potential substantial risk to a child's safety.
Research finds that courts have often erred in awarding child custody or
visitation to abusers due to the debunked theory that when parents
allege that a child is not safe with the offending parent, they are
doing so illegitimately to alienate the child from such parent. In fact,
cross-claims of such alienation virtually double the courts' rejection
of parents' abuse claims, causing non-offending parents to lose custody
to the parent accused of abuse. When a party asserts credible allega-
tions of domestic violence, child abuse or significant risk to a child's
safety, this bill would prohibit the court from finding that protective
behaviors to safeguard the child that were engaged in by the party
making such allegations constitute failure to support the child's
relationship with the offending party.
To ensure courts are well-equipped to conduct evidentiary hearings to
assess child safety, this bill would expand current judicial training
requirements to include referees and other hearing officers, as well as
judges, and would require such individuals to obtain comprehensive
training in domestic violence, child abuse and child neglect, followed
by supplemental training every two years. The chief administrator of the
courts would promulgate and enforce rules for such training, which would
be developed and offered by the Office of Court Administration. Such
training, which would b.e updated at least once every two years, would
include instruction on trauma-informed judicial practices; the dynamics
and effects of domestic violence, coercive control, and child abuse;
lethality risk factors; tactics used by abuse partners; and the
distinction between inappropriate interference with the child-parent
relationship and protective parenting in the the context of domestic
violence and child abuse.
PRIOR LEGISLATIVE HISTORY:
2021-2022: A5398; 2023-2024: A3346
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
Undetermined
EFFECTIVE DATE:
The 270th day after it shall have become law; effective immediately, the
addition, amendment and/or repeal of any rule or regulation necessary
for the implementation of this act on its effective date are authorized
to made and completed on or before such effective date.
