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A05398 Summary:

BILL NOA05398A
 
SAME ASSAME AS S07425-A
 
SPONSORHevesi
 
COSPNSRSillitti, Barron, Barnwell, Dickens, Fahy, Clark, Hunter, Galef, Lavine, Seawright, Simon, Jackson, Rivera J, McDonough, Morinello, Thiele, Burdick, Brown K, Stirpe, Quart, Gonzalez-Rojas, Durso, Otis, Lawler, Brabenec, Manktelow, Angelino, Cook, Griffin, Gunther, Stern, Frontus, McDonald, Jean-Pierre, DeStefano, Blankenbush, Fernandez, Ra, Fitzpatrick, Pheffer Amato, Anderson, Mikulin, Rosenthal L, Lalor, Lupardo, Simpson, Epstein, Kelles, Smith, Jensen, Burgos, Jones, Steck, Zinerman, Cruz, Aubry, Gottfried, Cunningham, Abinanti, Hawley
 
MLTSPNSR
 
Amd §§240 & 70, add §240-e, Dom Rel L; add §654, amd §1112, Fam Ct Act
 
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.
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A05398 Actions:

BILL NOA05398A
 
02/16/2021referred to judiciary
01/05/2022referred to judiciary
05/18/2022amend (t) and recommit to judiciary
05/18/2022print number 5398a
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A05398 Memo:

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.
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A05398 Text:



 
                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.
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