Requires the court to consider a child's health and safety when making a decision regarding child custody and visitation; directs presumptions that may be made by the court and admissibility of certain evidence in such cases; requires court officials to take part in training to handle such cases regarding domestic violence and child abuse.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A5398A
SPONSOR: Hevesi TITLE OF BILL:
An act to amend the domestic relations law and the family court act, in
relation to establishing "Kyra's Law"
PURPOSE OR GENERAL IDEA OF BILL:
To protect children by ensuring courts assess any risk to their life and
safety 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 amends subparagraph 5 of paragraph (a-1) of subdi-
vision 1 of the domestic relations law to require that in child custody
or visitation proceedings in which a party alleges child abuse or domes-
tic violence, the court must first conduct a risk assessment regarding
the child's life and safety. Factors to be considered in such hearing
include, but are not limited to: allegations of domestic violence,
child abuse, child sexual abuse or incidents involving harm or risk of
harm to the child, prior reports of violence, access to firearms, valid
or prior orders of protection, threats to harm or kill self or others,
etc. If the court determines that limitations or restrictions relating
to the offending party's custody, visitation, or contact with the child
are necessary to avoid significant risk to the child, this section
requires a court to issue a temporary emergency order stating as such.
The section creates a rebuttable presumption that the court shall not
award sole or joint custody or unsupervised visitation to a party who
jeopardizes or may jeopardize the life or safety of the child. Further,
the section requires the court to state its findings on the record and
in writing, to support any future appeals of the court's decision-mak-
ing. Section 2 of the bill requires the state Office for the Prevention
of Domestic Violence, in coordination with OCA and in consultation with
statewide advocacy coalitions, attorneys, researchers and academics, to
develop a risk assessment tool to assist courts in assessing significant
risks to a child's life and safety.
Section 3 of the bill amends the domestic relations law to create a new
section 240-e to identify specific best interest of a child factors to
be given weighted consideration when the court issues temporary or final
custody or visitation orders; and requires in-depth training for judges,
referees, and other hearing officers presiding over child custody cases
where domestic violence or child abuse is alleged.
Section 4 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 5 of the bill amends the Family Court Act by creating a new
section 654 to ensure that the same protections as noted above are in
place for custody and visitation proceedings in Family Court.
Section 6 of the bill amends subdivision (a) of section 1112 of the
family court act to ensure a court's decision to grant or deny a tempo-
rary emergency order, or limitations or conditions to a parent's custody
or visitation set forth in temporary emergency orders, are appealable.
Section 7 is the effective date.
DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSION (IF APPLICABLE):
The amended version of the bill maintains the important policy goals of
the original but involves a substantial textual revision.
JUSTIFICATION:
This bill, known as "Kyra's Law," seeks to address the systemic weak-
nesses in the current law regarding child custody and visitation and the
failures of the court system to keep New York's children safe from
dangerous abusers.
Domestic violence can have very harmful effects on children. When there
is domestic violence in the home, children are at greater risk of being
abused or neglected. But even when they are not "directly" abused, chil-
dren who witness violence and abuse by one parent against another can be
affected in ways similar to children who are physically abused. Seeing
or hearing violence at home can hurt children emotionally, psychologi-
cally, and even physically due to the stress they suffer. Some abusers
who use coercive power and control tactics against their intimate part-
ners go so far as to use their children as pawns, even harming or
murdering them, to try to maintain control over or devastate their part-
ners.
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 in Nassau County Family Court, Kyra Franchetti's mother repeat-
edly pleaded with the court to acknowledge the risk of harm to Kyra. The
court dismissed these urgent pleas to protect Kyra and permitted unsu-
pervised visitation to proceed. In July 2016, Kyra was on an unsuper-
vised, court-sanctioned visit with her father in Virginia when he shot
her to death while she slept. He then set his house on fire and killed
himself. Kyra was only 28 months old.(1)
Tragically, countless children in New York have been injured or murdered
at the hands of a parent who is seeking to cause pain and trauma to
their intimate partner. Yet courts continue to 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. According to research by Professor
Joan S. Meier, Esq., of George Washington University Law School, in
conjunction with the National Institute of Justice, an analysis of more
than 2,000 court opinions across the country confirms "courts are skep-
tical of mothers' claims of abuse by fathers; this skepticism is great-
est when mothers claim child abuse."(2)
Moreover, there is now a specialized body of scientific research about
domestic violence and child abuse that was not available when custody
courts developed their present practices. Children exposed to domestic
violence and child abuse will live shorter lives and suffer a lifetime
of health and social problems.3 Most of the harm is not caused by the
immediate physical injuries, but from living with the fear and stress
abusers cause.
Tragically, the courts have been slow to integrate this research.
This bill would permit parties in custody or visitation proceedings in
Supreme and Family courts to motion the court for a temporary emergency
order in relation to assessing risk to a child's life or safety. Such
risk assessment hearing would be held within 14 court days of the appli-
cation, except for good cause shown. Factors for the court to consider
during its assessment would include: allegations of domestic violence,
child abuse, child sexual abuse or incidents involving harm, or risk of
harm, to a child; prior police reports, domestic incident reports or
history of family offenses within the household; the parties' access to
firearms; relevant orders of protection; confinement of one party by the
other party; threats to harm or kill; or one party's concern about
future assaults from the other party. A risk assessment tool would be
developed by the Office for Prevention of Domestic Violence, in coordi-
nation with the Office of Court Administration and in conjunction with
other key entities, to assist the court in assessing such risk to a
child's life or safety.
Any temporary emergency order for custody or visitation issued by the
court would remain in effect until such time as either party applies for
revision for good cause shown, or if the court issues a final order. The
bill would create a rebuttable presumption that the court shall not
award sole or joint custody or unsupervised visitation in a temporary
emergency order to any party who jeopardizes or may jeopardize the life
or safety of the child. The court's decision-making would be stated on
the record and in writing, and both parties to the proceeding would have
the right to appeal to the appropriate appellate division.
If a party waives their right to such hearing, the court would notify
the party at that time that an application may be made at any future
time during the proceedings. Similarly, courts would be required to hold
an additional hearing for a temporary order of custody or visitation
whenever a party alleges that such order is needed to promote and
protect the best interest of the child pending entry of a final order.
The bill specifies that, when making a final determination of custody or
visitation based on the best interests of a child, the court must prior-
itize and promote the life of safety of the child, including preventing
direct physical and/or emotional harm to•the child and creating situ-
ations that may decrease the likelihood such child will engage in harm-
ful behaviors. Weighted consideration would be given to factors such as:
whether either party is more likely to ensure the life and safety of the
child; any allegations of domestic violence or child abuse; prior police
reports, domestic incident reports, commission of family offenses, or
orders of protection; whether either party has access to firearms; and
any previously made statements by the child about a party indicating
they are fearful or resistant to contact with one of the parties.
Research finds that courts often err in awarding child custody or visi-
tation to abusers due to the debunked theory of "parental alienation,"
the idea 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 parental alienation
VIRTUAL-
LY DOUBLE the courts' rejection of parents' abuse claims, causing non-
offending parents to lose custody to the parent accused of abuse. This
bill would prohibit the court from denying custody or visitation to a
party due to allegations that the child has become estranged from a
parent as a result of "parental alienation." Nor would the court be
permitted from ordering reunification treatment designed to repair a
party's relationship with a child due to parental alienation. Further,
the court would not be able to base custody or visitation decisions on
its presumption that a child's deficient or negative relationship with a
parent was caused by the other parent.
In any final order of custody or visitation where domestic violence or
child abuse is found, the bill would prohibit courts from awarding
shared parenting or joint legal custody, unless both parties' consent
and the court determines the parties can effectively communicate, coop-
erate with each other and make joint decisions concerning the child.
Currently, judges hearing custody and visitation cases must obtain
training in domestic violence every two years, not nearly enough to
understand the complexities and nuances of family violence. This bill
would expand those receiving such training to include referees and other
hearing officers, in addition to judges, and would require such individ-
uals to obtain a minimum of twenty hours of training in domestic
violence and child abuse every two years. The Office for Prevention of
Domestic Violence would contract with the New York State Coalition
Against Domestic Violence, which would have the authority to contract
with other not-for-profit organizations specializing in child abuse and
gender-based violence, to develop the training. Such training, which
would be updated at least once every two years, would include instruc-
tion on: relevant statutes and case law; the dynamics of domestic
violence and child abuse; abusive tactics and coercive control;
increased risk of violence during court proceedings; assessment of leth-
ality; etc. Training would be offered by the state agency and domestic
violence advocates, in consultation with the office of court adminis-
tration. Ten hours of continuing education training would be required
for judges, referees and other hearing officers every two years after
the initial foundational training.
PRIOR LEGISLATIVE HISTORY:
New bill
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
Undetermined
EFFECTIVE DATE:
The 90th 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.
1 https://kyrafranchetti.org/kyras-story/
2 Meier, Joan S. and Dickson, Sean and 08A39;Sullivan, Chris and Rosen,
Leora and Hayes, Jeffrey, Child Custody Outcomes in Cases Involving
Parental Alienation and Abuse Allegations (2019). GWU Law School Public
Law Research Paper No. 2019-56; GWU Legal Studies Research Paper No.
2019-56. Available at SSRN: https://ssrn.com/abstract=3448062 or
http://dx.doLorg/10.2139/ssrn.3448062 (4) Ibid.
3 Vincent J. Felitti, Robert F. Anda, D. Nordenberg, D. F. Williamson,
AM Spitz, V. Edwards., MP Ross, at al. "The Relationship of Adult Health
Status to Childhood Abuse and Household Dysfunction." American Journal
of Preventive Medicine. 1998; 14:245- 258. Available at
https://www.ncbi.nlm.nih.gov/pubmed/9635069.
STATE OF NEW YORK
________________________________________________________________________
5398--A
2021-2022 Regular Sessions
IN ASSEMBLY
February 16, 2021
___________
Introduced by M. of A. HEVESI, SILLITTI, BARNWELL, DICKENS, FAHY, CLARK,
HUNTER, GALEF, LAVINE, SEAWRIGHT, SIMON, JACKSON, J. RIVERA, McDO-
NOUGH, MORINELLO, THIELE, BURDICK, K. BROWN, STIRPE, QUART, GONZALEZ-
ROJAS, DURSO, OTIS, LAWLER, BRABENEC, MANKTELOW, ANGELINO, COOK, GRIF-
FIN, GUNTHER, STERN, FRONTUS, McDONALD, JEAN-PIERRE, DeSTEFANO,
BLANKENBUSH, FERNANDEZ, RA, FITZPATRICK, PHEFFER AMATO, ANDERSON,
MIKULIN, L. ROSENTHAL, LALOR, LUPARDO, SIMPSON, EPSTEIN, KELLES,
SMITH, JENSEN, BURGOS, JONES, STECK, ZINERMAN, CRUZ, AUBRY, GOTTFRIED,
CUNNINGHAM, ABINANTI, HAWLEY -- read once and referred to the Commit-
tee on Judiciary -- recommitted to the Committee on Judiciary in
accordance with Assembly Rule 3, sec. 2 -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee
AN ACT to amend the domestic relations law and the family court act, in
relation to establishing "Kyra's Law"
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Short title. This act shall be known as and may be cited as
2 "Kyra's Law".
3 § 2. Subparagraph 5 of paragraph (a-1) of subdivision 1 of section 240
4 of the domestic relations law, as amended by chapter 295 of the laws of
5 2009, is amended to read as follows:
6 (5) Temporary emergency order. (i) Notwithstanding any other
7 provision of the law, upon the application of a party to an action
8 concerning custody of or a right to visitation with a child who alleges
9 that the other party to the proceeding has committed, has threatened to
10 commit, or is likely to commit an act of child abuse against such child,
11 or has committed, has threatened to commit, or is likely to commit an
12 act of domestic violence against the party making the allegation or a
13 family or household member of either party, as such family or household
14 member is defined in article eight of the family court act, the court
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD09163-02-2
A. 5398--A 2
1 shall hold a hearing to determine whether temporary limitations or
2 conditions on the custody or visitation rights of the party who is
3 alleged to have committed an act of child abuse against the child, or
4 committed an act of domestic violence against the party making the alle-
5 gation or a family or household member of either party is necessary to
6 avoid significant risk to the child's life or safety. The court shall
7 conduct an assessment of the best interests of the child to identify
8 significant risk to the child's life and safety, using a risk assessment
9 tool developed pursuant to clause (ii) of this subparagraph to evaluate
10 factors which shall include, but shall not be limited to:
11 (A) allegations of domestic violence, child abuse, child sexual abuse
12 or incidents involving harm, or risk of harm, to a child;
13 (B) prior police reports or domestic violence incident reports docu-
14 menting prior incidents involving child abuse or domestic violence, or
15 whether either party has been charged with an act which would constitute
16 disorderly conduct, unlawful dissemination or publication of an intimate
17 image, harassment in the first degree, harassment in the second degree,
18 aggravated harassment in the second degree, sexual misconduct, forcible
19 touching, sexual abuse in the third degree, sexual abuse in the second
20 degree as set forth in subdivision one of section 130.60 of the penal
21 law, stalking in the first degree, stalking in the second degree, stalk-
22 ing in the third degree, stalking in the fourth degree, criminal
23 mischief, menacing in the second degree, menacing in the third degree,
24 reckless endangerment, criminal obstruction of breathing or blood circu-
25 lation, strangulation in the second degree, strangulation in the first
26 degree, assault in the second degree, assault in the third degree, an
27 attempted assault, identity theft in the first degree, identity theft in
28 the second degree, identity theft in the third degree, grand larceny in
29 the fourth degree, grand larceny in the third degree, coercion in the
30 second degree or coercion in the third degree as set forth in subdivi-
31 sions one, two and three of section 135.60 of the penal law between
32 spouses or former spouses, or between party and child or between members
33 of the same family or household, regardless of the disposition;
34 (C) whether either party owns, possesses or has access to a firearm,
35 rifle or shotgun;
36 (D) decisions and reports on registries as required pursuant to
37 subparagraph three of this paragraph;
38 (E) confinement of a party or child by the other party;
39 (F) threats to harm or kill self or others, or threats to harm or kill
40 emotional support or comfort animals owned or possessed by self or
41 others, made by one party to the other party or child; and
42 (G) one party's concern about future assaults from the other party.
43 Except for good cause shown, the hearing for such determination shall
44 commence within fourteen court days of the application for such hearing
45 and shall not be adjourned. Parties shall be noticed of their right to
46 the assistance of counsel at the initiation of such hearing. When the
47 parties first appear in court, the judge shall advise them before
48 proceeding of the right to be represented by counsel of his or her own
49 choosing, of the right to have an adjournment to confer with counsel,
50 and the right to obtain counsel fees and expenses, pursuant to section
51 two hundred thirty-seven of this article. During such hearing, compe-
52 tent, material and relevant evidence may be admitted, in addition to
53 evidence that may include or consist of hearsay and documents or photo-
54 graphs for which a proper foundation cannot be laid. If a party waives
55 his or her right to a hearing under this section, the court shall advise
56 such party at that time that, notwithstanding such waiver, an applica-
A. 5398--A 3
1 tion under this section may be made at any time during the pendency of
2 the proceedings.
3 (ii) The office for the prevention of domestic violence, in coordi-
4 nation with the office of court administration and in consultation with
5 the New York state coalition against domestic violence, the New York
6 state coalition against sexual assault, prevent child abuse New York,
7 victims of domestic violence, sexual assault, child abuse or child sexu-
8 al abuse, civil attorneys representing such victims in custody and visi-
9 tation proceedings, and researchers and academics with expertise in
10 developing risk assessment tools shall develop a risk assessment tool
11 for use by the court when assessing significant risk to child's life or
12 safety for the purposes of issuing a temporary emergency order. These
13 entities will review and, when appropriate, update the risk assessment
14 tool at least once every two years.
15 (iii) If the court determines that limitations or restrictions of a
16 party's custody, visitation or contact with the child are necessary to
17 avoid significant risk to the child's life or safety, the court shall
18 issue a temporary emergency order for custody or visitation stating as
19 such. Such order shall set forth conditions of custody or visitation
20 which may be revised by the court upon application by either party only
21 for good cause shown. Any order of the court under this section shall
22 terminate when the court makes a final order of custody or of visitation
23 concerning the child or children, unless the supreme court continues the
24 order to family court.
25 (iv) There shall be a rebuttable presumption that the court shall not
26 award, in a temporary emergency order for custody or visitation, sole or
27 joint custody or unsupervised visitation to a party who jeopardizes or
28 may jeopardize the life or safety of the child.
29 (v) The court shall state on the record, and in writing, its findings,
30 the factors considered in rendering its decision and the reasons for the
31 limitations or restrictions placed on a party's custody, visitation or
32 contact with such child.
33 (vi) All costs, including attorney and expert fees incurred by the
34 non-offending party and the child, to prepare for and participate in
35 such hearing shall be paid by the party who is found to have committed
36 child abuse or domestic violence, unless the offending party has insuf-
37 ficient means to fund such expenses.
38 (vii) If a party makes a good faith allegation based on a reasonable
39 belief supported by facts that a child is the victim of child abuse,
40 child neglect, or has been exposed to domestic violence, and if that
41 party acts lawfully and in good faith in response to that reasonable
42 belief to protect the child, seek treatment for the child or to protect
43 self, then that party shall not be deprived of custody, visitation or
44 contact with the child, or restricted in custody, visitation or contact,
45 based solely on that belief or the reasonable actions taken based on
46 that belief.
47 (viii) If the court does not make a finding that limitations or
48 restrictions on a party's custody or visitation with such child are
49 necessary to avoid significant risk to the child's life or safety, the
50 court shall hold an additional hearing whenever a party alleges that a
51 temporary order may be necessary to promote and protect the best inter-
52 est of the child pending entry of a final order.
53 (ix) With the exception of hearsay or other non-competent evidence,
54 the court may not refuse to consider, at further proceedings, evidence
55 presented during a hearing for a temporary emergency order or additional
56 evidence of domestic violence or child abuse presented in further
A. 5398--A 4
1 proceedings. The presentation of any facts or evidence at a hearing for
2 a temporary emergency order shall not preclude the presentation of any
3 facts or evidence.
4 (x) Nothing contained in this subparagraph shall be deemed in any way
5 to limit, restrict, expand or impair the rights of any party to file for
6 a modification of a temporary emergency order as is otherwise provided
7 by law.
8 (xi) Any party to a proceeding for a temporary emergency order pursu-
9 ant to this section shall have a right to appeal to the appropriate
10 appellate division. An appeal under this subdivision must be taken no
11 later than five days after the service by a party or the child's attor-
12 ney upon the appellant of any order from which the appeal is taken or
13 five days from receipt of the order by the appellant in court, whichever
14 is earliest.
15 (xii) Notwithstanding any other provision of the law, upon emergency
16 situations, including computer malfunctions, to serve the best interest
17 of the child, the court may issue a temporary emergency order for custo-
18 dy or visitation in the event that it is not possible to timely review
19 decisions and reports on registries as required pursuant to subparagraph
20 three of this paragraph.
21 § 3. The domestic relations law is amended by adding a new section
22 240-e to read as follows:
23 § 240-e. Custody and visitation; life and safety of the child. 1. For
24 the purposes of this section, the following terms shall have the follow-
25 ing meanings:
26 (a) "Parental alienation" means claims that a child has become
27 estranged from a parent or legal guardian as a result of psychological
28 manipulation by the other parent or legal guardian.
29 (b) "Victim of domestic violence" shall have the same meaning as
30 defined in section four hundred fifty-nine-a of the social services law.
31 (c) "Friendly parent" means the propensity of a parent or legal guard-
32 ian to actively support a child's contact and relationship with the
33 other parent or legal guardian, or the ability of such parent or legal
34 guardian to cooperate in, and resolve disputes, regarding matters
35 affecting such child.
36 2. Notwithstanding any other provision of law to the contrary, a court
37 making a final determination of custody or visitation based on the best
38 interests of a child pursuant to the provisions of this chapter shall
39 prioritize and promote the life and safety of such child when making
40 such determinations. Promoting the life and safety of a child shall
41 include preventing direct physical and/or emotional harm to such child.
42 3. Prior to the issuance of a final order of custody or visitation,
43 during its assessment of the best interests of the child, the court
44 shall determine the life and safety of the child who is the subject of
45 such order by considering all relevant factors and by giving weighted
46 consideration to those factors which affect the life and safety of such
47 child, which shall include, but not be limited to:
48 (a) whether either party is more likely to ensure the life and safety
49 of the child and whether either party jeopardizes the life or safety of
50 the child. There shall be a rebuttable presumption that custody or visi-
51 tation shall not be awarded to a party who jeopardizes the life or safe-
52 ty of the child;
53 (b) the impact of disrupting continuity in the child's home, environ-
54 ment and established parenting contacts;
55 (c) any allegations of domestic violence, child abuse or child sexual
56 abuse, or incidents involving harm, or risk of harm, to a child;
A. 5398--A 5
1 (d) prior police reports or domestic violence incident reports docu-
2 menting incidents involving child abuse or domestic violence, or whether
3 either party has been charged with an act which would constitute disor-
4 derly conduct, unlawful dissemination or publication of an intimate
5 image, harassment in the first degree, harassment in the second degree,
6 aggravated harassment in the second degree, sexual misconduct, forcible
7 touching, sexual abuse in the third degree, sexual abuse in the second
8 degree as set forth in subdivision one of section 130.60 of the penal
9 law, stalking in the first degree, stalking in the second degree, stalk-
10 ing in the third degree, stalking in the fourth degree, criminal
11 mischief, menacing in the second degree, menacing in the third degree,
12 reckless endangerment, criminal obstruction of breathing or blood circu-
13 lation, strangulation in the second degree, strangulation in the first
14 degree, assault in the second degree, assault in the third degree, an
15 attempted assault, identity theft in the first degree, identity theft in
16 the second degree, identity theft in the third degree, grand larceny in
17 the fourth degree, grand larceny in the third degree, coercion in the
18 second degree or coercion in the third degree as set forth in subdivi-
19 sions one, two and three of section 135.60 of the penal law between
20 spouses or former spouses, or between parent and child or between
21 members of the same family or household, regardless of the disposition;
22 (e) whether either party owns, possesses or has access to a firearm,
23 rifle or shotgun;
24 (f) whether either party is better able and more likely to attend to
25 the daily physical, emotional, developmental, educational and special
26 needs of the child; and
27 (g) any previously made statements by the child about a party indicat-
28 ing they are fearful of or resistant to having contact or visitation
29 with such party.
30 4. (a) The court shall not presume that a child's deficient or nega-
31 tive relationship with a party was caused by the other party, nor shall
32 a party be given custody for the purpose of improving a deficient
33 relationship between the child and such party or in an attempt to reme-
34 diate a child's resistance to contact or visitation with a party.
35 (b) Allegations regarding parental alienation shall not be admissible
36 in any proceeding for custody or visitation and shall not be considered
37 in assessing a child's best interests.
38 (c) No psychological or medical theories or labels related to a
39 child's resistance to contact with a party shall be admitted into
40 evidence unless they are based on empirical proof of scientific reli-
41 ability and validity and generally accepted by the scientific and
42 professional community.
43 (d) No reunification treatment or any similar program designed to
44 repair a party's relationship with a child due to parental alienation
45 shall be ordered by the court without scientifically valid and generally
46 accepted proof of the effectiveness and therapeutic value of such treat-
47 ment or program; nor shall a treatment or program be ordered which is
48 predicated on separating a child from their primary caregiver.
49 (e) In cases involving domestic violence or child abuse, whether such
50 abuse has occurred or is occurring, a court shall not consider whether
51 either parent is a friendly parent.
52 5. In cases where the court has found a parent to be a victim of
53 domestic violence and/or where child abuse has occurred or is occurring:
54 (a) the court shall award joint legal custody only on consent of the
55 parties or where it has been determined that the parties can effectively
56 communicate, cooperate with each other, and make joint decisions
A. 5398--A 6
1 concerning the child; provided, however, that where final orders are on
2 the consent of the parties, in no event shall an order of joint legal
3 custody be awarded when there is an existing or prior full stay away
4 order of protection against a party on behalf of another party to the
5 proceeding or when there is an existing temporary order of protection
6 entered ex parte; and
7 (b) all costs, including attorney and expert fees, incurred by the
8 non-offending parent and the child, shall be paid by the parent who is
9 found to have committed child abuse or domestic violence, unless the
10 offending parent has insufficient means to pay such costs.
11 6. (a) Before judges, referees, or other hearing officers preside over
12 child custody proceedings in which one or more parties have alleged
13 domestic violence or child abuse, they shall complete at least twenty
14 hours of initial training for the handling of such cases. The office for
15 prevention of domestic violence shall, within amounts appropriated for
16 such purpose, contract exclusively with the New York state coalition
17 against domestic violence, and other nonprofit entities with whom it
18 subcontracts with expertise in child abuse or gender-based violence, to
19 develop such training. Such entity, or entities in partnership, shall
20 review and update the training at least once every two years. In
21 consultation with the office of court administration, such entities, or
22 entities in partnership, shall be responsible for providing such train-
23 ing to judges, referees, and other hearing officers handling child
24 custody proceedings. Such training shall include, but not be limited
25 to:
26 (1) a review of relevant statutes and case law pertaining to domestic
27 violence and child abuse;
28 (2) the dynamics and effects of domestic violence and child abuse,
29 including but not limited to, emotional, financial, physical, technolog-
30 ical and sexual abuse, and an understanding of the barriers and fears
31 associated with reporting domestic violence and child abuse and why
32 victims may not have documented evidence of abuse;
33 (3) tactics commonly used by one party to induce fear in, or dominate
34 or control a partner or child, including verbal, emotional, psycholog-
35 ical, and/or economic abuse; isolation; efforts to build trust and an
36 emotional connection with a child to support future manipulation;
37 exploitation; abuse; threats; controlling and harassing behaviors,
38 including monitoring of a partner's location and activities; use of
39 oppressive behavior designed to deprive a partner of their rights and
40 liberties and establishing a regime of domination in the partner's
41 personal life; litigation abuse; and demands for custody in order to
42 pressure the partner to return or punish the partner for leaving;
43 (4) knowledge of trauma, particularly as it relates to sexual abuse
44 and the risks posed to children and the long-term dangers and impacts
45 posed by the presence of adverse childhood experiences;
46 (5) the increased risk of escalating violence that occurs during child
47 custody proceedings and methods for assessing a child's safety during
48 custody and visitation proceedings, particularly in cases involving
49 domestic violence or child abuse;
50 (6) the assessment of legality or signs of lethal violence, and
51 instruction on the use of a risk assessment tool to assess risk to a
52 child's life or safety for the purpose of issuing a temporary emergency
53 order;
54 (7) education regarding the harm courts may cause children in child
55 custody cases where domestic violence or child abuse is present by rely-
56 ing on non-scientific theories such as parental alienation, parental
A. 5398--A 7
1 alienation syndrome, the friendly parent concept, or any other theory or
2 label that is not supported by scientific research and not generally
3 accepted by the scientific community;
4 (8) the investigation process once a law enforcement agency or a local
5 department of social services has received a report of suspected child
6 abuse, including the limitations of investigating reports of suspected
7 child abuse; and
8 (9) appropriate experience and qualifications of child custody evalu-
9 ators and mental health treatment providers.
10 (b) Once initial training requirements have been met, judges, refer-
11 ees, and other hearing officers presiding over child custody proceedings
12 in which one or more parties have alleged domestic violence or child
13 sexual abuse shall complete at least ten hours of training every two
14 years in order to remain eligible to handle such proceedings.
15 § 4. Subdivision (a) of section 70 of the domestic relations law, as
16 amended by chapter 457 of the laws of 1988, is amended to read as
17 follows:
18 (a) (i) Where a minor child is residing within this state, either
19 parent may apply to the supreme court for a writ of habeas corpus to
20 have such minor child brought before such court; and on the return ther-
21 eof, the court, on due consideration, may award the natural guardian-
22 ship, charge and custody of such child to either parent for such time,
23 under such regulations and restrictions, and with such provisions and
24 directions, as the case may require, and may at any time thereafter
25 vacate or modify such order. In all cases there shall be no prima facie
26 right to the custody of the child in either parent, but the court shall
27 determine solely what is for the best interest of the child, and what
28 will best promote its welfare and happiness, and make award accordingly.
29 Where either party to an action concerning custody of or a right to
30 visitation with a child alleges that the other party has committed an
31 act of child abuse against such child, or committed an act of domestic
32 violence against the party making the allegation or a family or house-
33 hold member of either party, as such family or household is defined in
34 article eight of the family court act, the court must first, before
35 considering any other best interest factors, hold a hearing to determine
36 whether temporary limitations or conditions on the custody or visitation
37 rights of the party who is alleged to have committed an act of child
38 abuse against the child, or committed an act of domestic violence
39 against the party making the allegation or a family or household member
40 of either party is necessary to avoid significant risk to the child's
41 life or safety, as described pursuant to subdivision five of section two
42 hundred forty of this chapter.
43 (ii) Notwithstanding any other provision of law to the contrary, a
44 court making a determination that limitations or restrictions of a
45 party's custody, visitation or contact with the child are necessary to
46 avoid significant risk to the child's life or safety shall issue a
47 temporary emergency order for custody or visitation stating as such.
48 (iii) Notwithstanding any other provision of law to the contrary,
49 prior to the issuance of a temporary emergency order of custody or visi-
50 tation, the court shall conduct an assessment of the best interests of
51 the child to identify significant risk to the life or safety of the
52 child who is the subject of such order by considering the factors
53 described in section two hundred forty of this chapter.
54 (iv) Notwithstanding any other provision of law to the contrary, a
55 court making a final determination of custody or visitation based on the
56 best interests of a child pursuant to the provisions of this chapter
A. 5398--A 8
1 shall prioritize and promote the life and safety of such child when
2 making such determinations. Promoting the safety of a child shall
3 include preventing direct physical and/or emotional harm to such child.
4 Prior to the issuance of a final order of custody or visitation, during
5 its assessment of the best interests of the child, the court shall
6 determine the safety of the child who is the subject of such order by
7 considering all relevant factors and by giving weighted consideration to
8 those factors which affect the life and safety of such child, pursuant
9 to subdivision three of section two hundred forty-d of this chapter.
10 (v) In making a decision pursuant to paragraph (i) of this subdivi-
11 sion, the court shall be bound by the presumptions and admissibility
12 described pursuant to section two hundred forty-d of this chapter.
13 Further, the court shall not take into consideration whether either
14 party is married, was formerly married or has ever been married to the
15 other party or anyone else.
16 (vi) In cases where the court has found a party to be a victim of
17 domestic violence and/or where child abuse has occurred or is occurring,
18 the court shall award joint legal custody only on consent of the parties
19 or where it has been determined that the parties can effectively commu-
20 nicate, cooperate with each other, and make joint decisions concerning
21 the child; provided, however, that where final orders are on the consent
22 of the parties, in no event shall an order of joint legal custody be
23 awarded when there is an existing or prior full stay away order of
24 protection against a party on behalf of another party to the proceeding
25 or when there is an existing temporary order of protection entered ex
26 parte and all costs, including attorney and expert fees, incurred by the
27 non-offending parent and the child, shall be paid by the parent who is
28 found to have committed child abuse or domestic violence, unless the
29 offending parent has insufficient means to pay such costs.
30 (vii) Before judges, referees and other hearing officers preside over
31 child custody proceedings in which one or more parties have alleged
32 domestic violence or child abuse, they shall complete initial training
33 for the handling of such cases as described pursuant to section two
34 hundred forty-d of this chapter. Once initial training requirements have
35 been met, judges, referees and other hearing officers shall complete
36 additional training every two years as described pursuant to section two
37 hundred forty-d of this chapter.
38 § 5. The family court act is amended by adding a new section 654 to
39 read as follows:
40 § 654. Temporary order of custody or of visitation. (a) Notwithstand-
41 ing any other provision of the law, upon the application of either party
42 to an action concerning custody of or a right to visitation with a child
43 who alleges that the other party has committed an act of child abuse
44 against such child, or committed an act of domestic violence against the
45 party making the allegation or a family or household member of either
46 party, as such family or household member is defined in article eight of
47 the family court act, the court shall hold a hearing to determine wheth-
48 er temporary limitations or conditions on the custody or visitation
49 rights of the party who is alleged to have committed an act of child
50 abuse against the child, or committed an act of domestic violence
51 against the party making the allegation or a family or household member
52 of either party is necessary to avoid significant risk to the child's
53 life or safety, in accordance with subparagraph five of paragraph (a-1)
54 of subdivision one of section two hundred forty of the domestic
55 relations law. If the court determines that limitations or restrictions
56 of a party's custody, visitation or contact with the child are necessary
A. 5398--A 9
1 to avoid significant risk to the child's life or safety, the court shall
2 issue a temporary emergency order for custody or visitation stating as
3 such, in accordance with clause (iii) of subparagraph five of paragraph
4 (a-1) of subdivision one of section two hundred forty of the domestic
5 relations law.
6 (b) Such temporary order of custody or of visitation may be taken as
7 of right to the appellate division of the supreme court. Pending the
8 determination of such appeal, such order shall be stayed where the
9 effect of such order would be to discharge the child, if the family
10 court or the court before which such appeal is pending finds that such a
11 stay is necessary to avoid significant risk to the child's life or safe-
12 ty. A preference in accordance with rule five thousand five hundred
13 twenty-one of the civil practice law and rules shall be afforded, with-
14 out the necessity of a motion, for appeals under article three; parts
15 one and two of article six; articles seven, ten, and ten-A of this act;
16 and sections three hundred fifty-eight-a, three hundred eighty-three-c,
17 three hundred eighty-four, and three hundred eighty-four-b of the social
18 services law. An appeal under this subdivision must be taken no later
19 than five days after the service by a party or the child's attorney upon
20 the appellant of any order from which the appeal is taken, five days
21 from receipt of the order by the appellant in court.
22 § 6. Subdivision a of section 1112 of the family court act, as amended
23 by section 28 of part A of chapter 3 of the laws of 2005, is amended to
24 read as follows:
25 a. An appeal may be taken as of right from any order of disposition
26 and, in the discretion of the appropriate appellate division, from any
27 other order under this act. An appeal from an intermediate or final
28 order in a case involving abuse or neglect, the decision to grant or
29 deny a temporary emergency order, as determined pursuant to section six
30 hundred fifty-four of this act, or a temporary emergency order issued to
31 avoid significant risk to the child's life or safety, as determined
32 pursuant to section six hundred fifty-four of this act, may be taken as
33 of right to the appellate division of the supreme court. Pending the
34 determination of such appeal, such order shall be stayed where the
35 effect of such order would be to discharge the child, if the family
36 court or the court before which such appeal is pending finds that such a
37 stay is necessary to avoid imminent risk to the child's life or health.
38 A preference in accordance with rule five thousand five hundred twenty-
39 one of the civil practice law and rules shall be afforded, without the
40 necessity of a motion, for appeals under article three; parts one and
41 two of article six; articles seven, ten, and ten-A of this act; and
42 sections three hundred fifty-eight-a, three hundred eighty-three-c,
43 three hundred eighty-four, and three hundred eighty-four-b of the social
44 services law.
45 § 7. This act shall take effect on the ninetieth day after it shall
46 have become a law. Effective immediately, the addition, amendment and/or
47 repeal of any rule or regulation necessary for the implementation of
48 this act on its effective date are authorized to be made on or before
49 such effective date.
