Rpld S240 sub 1-b (e) & (f), amd Dom Rel L, generally; amd SS358-a, 384-a, 384-b, 398, 398-d, 111-h & 111-b,
Soc Serv L; amd Fam Ct Act, generally
Makes numerous modifications to provisions of various laws relating to child custody matters; provides for shared parenting custody; for parenting time rather than visitation; mediation and counseling in matrimonial actions involving children; sanctions for interference with parenting time; provides for equality in the burden of child support between parents; bases child support on net income exclusive of income and FICA taxes; provides that child support ceases at age 18; requires contract support collection agents to be audited; deals with DNA evidence when question of paternity; increases parental access to information.
STATE OF NEW YORK
________________________________________________________________________
4559
2009-2010 Regular Sessions
IN ASSEMBLY
February 5, 2009
___________
Introduced by M. of A. KOLB, CROUCH, FINCH, WALKER, ALESSI -- Multi-
Sponsored by -- M. of A. CALHOUN, GIGLIO, JORDAN -- read once and
referred to the Committee on Judiciary
AN ACT to amend the domestic relations law, in relation to establishing
a presumption of shared parenting of minor children in matrimonial
proceedings; to amend the domestic relations law, the social services
law and the family court act, in relation to changing the denotation
of visitation to parenting time; to amend the domestic relations law,
in relation to matrimonial actions involving custody of children; and
in relation to the obligations of child support; to amend the social
services law, in relation to audits of support collection fiscal
agents; to amend the family court act, in relation to opening all
family court proceedings to the public; to amend the family court act,
in relation to the review of evidence; to amend the family court act,
in relation to DNA evidence when question of paternity; to amend the
domestic relations law, in relation to parental access to information;
to amend the family court act and the social services law, in relation
to the payment of child support; and to repeal paragraphs (e) and (f)
of subdivision 1-b of section 240 of the domestic relations law relat-
ing to child support
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Legislative findings and intent. The legislature hereby
2 finds that, in cases of child custody, the court's paramount concern is
3 always the best interests of the child. Shared parenting, where both
4 parents share as equally as possible in the legal responsibility, living
5 experience, and physical care of the child, has been found to be in the
6 child's best interests in certain circumstances. Where the relationship
7 between the parent and child is free from domestic violence, abuse,
8 neglect and other harmful circumstances, shared parenting is beneficial
9 to both parent and child. This legislation seeks to encourage courts and
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07146-01-9
A. 4559 2
1 interested parties to work towards the goal of shared parenting whenever
2 practical and when in the best interests of the child.
3 § 2. Short title. This act shall be known and may be cited as the
4 "family court reform act of 2009".
5 § 3. The domestic relations law is amended by adding a new section
6 240-d to read as follows:
7 § 240-d. Custody of children. 1. Where the court considers awarding
8 shared parenting pursuant to the provisions of this section "shared
9 parenting" shall mean an order awarding custody of the child to both
10 parties so that both parties share equally the legal responsibility and
11 control of such child and share equally the living experience in time
12 and physical care to assure frequent and continuing contact with both
13 parties, as the court deems to be in the best interests of the child,
14 taking into consideration the location and circumstances of each party.
15 The term "shared parenting" will be considered interchangeable with
16 "nearly equal shared parenting". An award of joint physical and legal
17 custody obligates the parties to exchange information concerning the
18 health, education and welfare of the minor child, and unless allocated,
19 apportioned, or decreed, the parents or parties shall confer with one
20 another in the exercise of decision-making rights, responsibilities and
21 authority.
22 1-a. (a) Upon the initial appearance in court in an action for
23 divorce, nullity or separate maintenance where custody, visitation or
24 support of a minor child is at issue, and where both parties agree to
25 shared parenting, the court shall appoint an independent evaluator with
26 expertise in the field, including but not limited to, child psychology,
27 domestic violence counseling, etc., to investigate the family dynamic
28 and interview the parents, children and other interested parties,
29 including but not limited to, family members, friends and co-workers.
30 The independent evaluator's goal is to determine whether shared parent-
31 ing is in the best interests of the child and to ensure that domestic
32 violence and/or any other type of abuse, reported or unreported by the
33 victim or by an appropriate federal, state or municipal agency, is not
34 present in the household setting. The court shall utilize the independ-
35 ent evaluator's analysis and report, along with other supporting docu-
36 ments provided by the parties, to determine the best interests of the
37 child and to award custody based on that determination.
38 (b) The court shall determine each party's ability to pay the cost
39 related to the evaluation. Any cost above and beyond the parents' abili-
40 ty to pay shall be incurred by the county.
41 (c) If either parent has an order of protection against the other
42 parent barring contact between the parent and/or child, shared parenting
43 shall not be a custodial option. If either parent has been convicted of
44 abuse, including but not limited to, domestic violence and sexual abuse
45 against either the other parent and/or the child, shared parenting shall
46 not be a custodial option. If either parent accuses the other parent of
47 domestic violence, sexual abuse, etc., against him or herself, and/or
48 the child, the court shall suspend its determination as to whether or
49 not shared parenting is in the best interests of the child, until the
50 accusation has been investigated and a determination has been made by
51 law enforcement or appropriate federal, state or municipal agencies. If
52 such agencies determine that the abuse occurred, shared parenting shall
53 not be a custodial option. If such agency finds that abuse was not pres-
54 ent, the court shall resume its determination as to whether or not
55 shared parenting is in the best interests of the child. Should such
56 allegations be proven false and the court determined upon motion by the
A. 4559 3
1 accused party that such allegations were made maliciously and in bad
2 faith, the court shall have the authority to sanction the accusing party
3 pursuant to the powers granted to the court pursuant to section two
4 hundred forty of this article.
5 2. For the purposes of this article a "parenting plan" shall be
6 required to be submitted to the court if the court awards shared parent-
7 ing.
8 Each parent must agree to a parenting plan during mediation. The
9 parenting plan would provide for the minor children's physical care,
10 maintain the minor children's emotional stability, and provide for the
11 minor children's changing needs as he or she develops, in a manner which
12 minimizes the need for future modifications to the plan. The parties
13 would be encouraged to fulfill their parenting responsibilities through
14 agreements in the parenting plan rather than by relying on judicial
15 intervention.
16 The plan shall determine procedures for the day to day care of the
17 minor child and procedures for transporting the minor child from one
18 parent to the other parent at the start and conclusion of parenting
19 time. The plan shall include time spent with each parent on a weekly
20 basis, special occasions, including birthdays, religious and secular
21 holidays and vacations. The plan shall also specify how major decisions
22 regarding the minor child's health care, education, and religious
23 upbringing will be made. Those items that remain unresolved will go
24 before the judge for determination. The judge shall rely, in part, on
25 the testimony of the mediation counselor in all unresolved issues.
26 Other issues, including but not limited to property division, financial
27 issues and child support shall not be addressed in this plan.
28 The court shall have final approval over such plan and may modify,
29 suspend or nullify the plan at its discretion. The court shall have one
30 year to review the parenting plan to determine whether such plan is
31 being followed and continues to be in the best interests of the child.
32 At such time, the court shall retain the power to modify, suspend or
33 nullify the plan based on its findings.
34 § 4. The domestic relations law is amended by adding a new section
35 240-e to read as follows:
36 § 240-e. Parties in disagreement over shared parenting. 1. If the
37 parties are seeking a custody arrangement other than shared parenting or
38 where one parent objects to an award of shared parenting, the court must
39 determine what custody arrangement is in the best interests of the
40 child. If one party is seeking shared parenting and the other party is
41 seeking sole custody, both parties shall bear the burden of proof that
42 their requested arrangement is in the best interests of the child
43 through the introduction of testimony and supporting documents, etc. to
44 the court.
45 2. The court shall determine each party's ability to pay the cost
46 related to the evaluation. Any cost above and beyond the parents' abil-
47 ity to pay shall be incurred by the county.
48 3. The court shall appoint an independent evaluator with expertise in,
49 but not limited to, child psychology, domestic violence counseling, etc.
50 to investigate the family dynamic and interview the parents, children
51 and other interested parties, including but not limited to, family
52 members, friends and co-workers. The independent evaluator's goal is to
53 determine what custody arrangement is in the best interests of the child
54 and to ensure that domestic violence and/or any other type of abuse,
55 reported or unreported by the victim or by an appropriate federal, state
56 or municipal agency, is not present in the household setting. The court
A. 4559 4
1 shall utilize the independent evaluator's analysis and report, along
2 with other supporting documents provided by the parties, to determine
3 the best interests of the child and to award custody based on that
4 determination. If one party sought shared parenting, and the court found
5 that such an award would not be in the best interests of the child, the
6 court must state its reasoning behind such determination in the order
7 setting out the custody award.
8 4. The court, in its discretion, may require the parent who was not
9 awarded shared parenting to fulfill certain conditions, including but
10 not limited to, parenting classes, general counseling, anger management
11 classes, and substance abuse counseling, and shall list such conditions
12 on the custody order.
13 5. Upon the non-custodial parent's motion, the court shall, one year
14 following the initial award of custody, revisit its findings and make a
15 subsequent determination whether or not shared parenting is in the best
16 interests of the child. Such review is contingent on the non-custodial
17 parent's completion of the conditions set forth in the custody order and
18 the requirement that such parent remain current in their support obli-
19 gations.
20 § 5. Subdivision (b) of section 70 of the domestic relations law, as
21 added by chapter 457 of the laws of 1988, is amended to read as follows:
22 (b) Any order under this section which applies to rights of [visita-
23 tion] parenting time with a child remanded or placed in the care of a
24 person, official, agency or institution pursuant to article ten of the
25 family court act or pursuant to an instrument approved under section
26 three hundred fifty-eight-a of the social services law, shall be
27 enforceable pursuant to the provisions of part eight of article ten of
28 [such] the family court act, sections three hundred fifty-eight-a and
29 three hundred eighty-four-a of the social services law and other appli-
30 cable provisions of law against any person or official having care and
31 custody, or temporary care and custody, of such child.
32 § 6. Section 71 of the domestic relations law, as added by chapter 318
33 of the laws of 1989, is amended to read as follows:
34 § 71. Special proceeding or habeas corpus to obtain [visitation]
35 parenting time rights in respect to certain infant siblings. Where
36 circumstances show that conditions exist which equity would see fit to
37 intervene, a brother or sister or, if he or she be a minor, a proper
38 person on his or her behalf of a child, whether by half or whole blood,
39 may apply to the supreme court by commencing a special proceeding or for
40 a writ of habeas corpus to have such child brought before such court, or
41 may apply to the family court pursuant to subdivision (b) of section six
42 hundred fifty-one of the family court act; and on the return thereof,
43 the court, by order, after due notice to the parent or any other person
44 or party having the care, custody, and control of such child, to be
45 given in such manner as the court shall prescribe, may make such
46 directions as the best interest of the child may require, for [visita-
47 tion] parenting time rights for such brother or sister in respect to
48 such child.
49 § 7. The section heading and subdivision 1 of section 72 of the domes-
50 tic relations law, as amended by chapter 657 of the laws of 2003, are
51 amended to read as follows:
52 Special proceeding or habeas corpus to obtain [visitation] parenting
53 time rights or custody in respect to certain infant grandchildren. 1.
54 Where either or both of the parents of a minor child, residing within
55 this state, is or are deceased, or where circumstances show that condi-
56 tions exist which equity would see fit to intervene, a grandparent or
A. 4559 5
1 the grandparents of such child may apply to the supreme court by
2 commencing a special proceeding or for a writ of habeas corpus to have
3 such child brought before such court, or may apply to the family court
4 pursuant to subdivision (b) of section six hundred fifty-one of the
5 family court act; and on the return thereof, the court, by order, after
6 due notice to the parent or any other person or party having the care,
7 custody, and control of such child, to be given in such manner as the
8 court shall prescribe, may make such directions as the best interest of
9 the child may require, for [visitation] parenting time rights for such
10 grandparent or grandparents in respect to such child.
11 § 8. Subdivision 1 of section 235 of the domestic relations law, as
12 amended by chapter 122 of the laws of 1979, is amended to read as
13 follows:
14 1. An officer of the court with whom the proceedings in a matrimonial
15 action or a written agreement of separation or an action or proceeding
16 for custody, [visitation] parenting time or maintenance of a child are
17 filed, or before whom the testimony is taken, or his clerk, either
18 before or after the termination of the suit, shall not permit a copy of
19 any of the pleadings, affidavits, findings of fact, conclusions of law,
20 judgment of dissolution, written agreement of separation or memorandum
21 thereof, or testimony, or any examination or perusal thereof, to be
22 taken by any other person than a party, or the attorney or counsel of a
23 party, except by order of the court.
24 § 9. Subdivision (b) of section 237 of the domestic relations law, as
25 amended by chapter 892 of the laws of 1986, is amended to read as
26 follows:
27 (b) Upon any application to annul or modify an order or judgment for
28 alimony or for custody, [visitation] parenting time, or maintenance of a
29 child, made as in section two hundred thirty-six or section two hundred
30 forty of this article provided, or upon any application by writ of
31 habeas corpus or by petition and order to show cause concerning custody,
32 [visitation] parenting time or maintenance of a child, the court may
33 direct a spouse or parent to pay such sum or sums of money for the pros-
34 ecution or the defense of the application or proceeding by the other
35 spouse or parent as, in the court's discretion, justice requires, having
36 regard to the circumstances of the case and of the respective parties.
37 With respect to any such application or proceeding, such direction may
38 be made in the order or judgment by which the particular application or
39 proceeding is finally determined, or by one or more orders from time to
40 time before the final order or judgment, or by both such order or orders
41 and the final order or judgment. Any applications for counsel fees and
42 expenses may be maintained by the attorney for either spouse in coun-
43 sel's own name in the same proceeding. Representation by an attorney
44 [pursuant to paragraph (b) of subdivision nine of section one hundred
45 eleven-b of the social services law] shall not preclude an award of
46 counsel fees to an applicant which would otherwise be allowed under this
47 section.
48 § 10. Subdivisions 1 and 1-a of section 240 of the domestic relations
49 law, subdivision 1 as amended by chapter 624 of the laws of 2002, para-
50 graph (a) of subdivision 1 as amended by chapter 538 of the laws of
51 2008, paragraph (a-1) of subdivision 1 as added by chapter 595 of the
52 laws of 2008 and subdivision 1-a as amended by chapter 12 of the laws of
53 1996, are amended to read as follows:
54 1. (a) In any action or proceeding brought (1) to annul a marriage or
55 to declare the nullity of a void marriage, or (2) for a separation, or
56 (3) for a divorce, or (4) to obtain, by a writ of habeas corpus or by
A. 4559 6
1 petition and order to show cause, the custody of or right to [visita-
2 tion] parenting time with any child of a marriage, the court shall
3 require verification of the status of any child of the marriage with
4 respect to such child's custody and support, including any prior orders,
5 and shall enter orders for custody and support as, in the court's
6 discretion, justice requires, having regard to the circumstances of the
7 case and of the respective parties and to the best interests of the
8 child and subject to the provisions of subdivision one-c of this
9 section. Where either party to an action concerning custody of or a
10 right to [visitation] parenting time with a child alleges in a sworn
11 petition or complaint or sworn answer, cross-petition, counterclaim or
12 other sworn responsive pleading that the other party has committed an
13 act of domestic violence against the party making the allegation or a
14 family or household member of either party, as such family or household
15 member is defined in article eight of the family court act, and such
16 allegations are proven by a preponderance of the evidence, the court
17 must consider the effect of such domestic violence upon the best inter-
18 ests of the child, together with such other facts and circumstances as
19 the court deems relevant in making a direction pursuant to this section.
20 However, should such allegations be proven false, the court shall have
21 within its power the authority to sanction the accusing party. The
22 subject of an unfounded report of domestic abuse who believes the report
23 was made maliciously and in bad faith may present a written request to
24 the court for a determination that the reporter acted maliciously or in
25 bad faith and must be sanctioned. If a parent makes a good faith allega-
26 tion based on a reasonable belief supported by facts that the child is
27 the victim of child abuse, child neglect, or the effects of domestic
28 violence, and if that parent acts lawfully and in good faith in response
29 to that reasonable belief to protect the child or seek treatment for the
30 child, then that parent shall not be deprived of custody, [visitation]
31 parenting time or contact with the child, or restricted in custody,
32 [visitation] parenting time or contact, based solely on that belief or
33 the reasonable actions taken based on that belief. If an allegation that
34 a child is abused is supported by a preponderance of the evidence, then
35 the court shall consider such evidence of abuse in determining the
36 [visitation] parenting time arrangement that is in the best interest of
37 the child, and the court shall not place a child in the custody of a
38 parent who presents a substantial risk of harm to that child. An order
39 directing the payment of child support shall contain the social security
40 numbers of the named parties. [In all cases there shall be no prima
41 facie right to the custody of the child in either parent. Such direc-
42 tion] Before the court makes any order awarding custody to a person or
43 persons other than a parent without the consent of the parents, it shall
44 make a finding that an award of custody to a parent would be detrimental
45 to the child and the award to a non-parent is required to serve the best
46 interests of the child. Allegations that parental custody would be
47 detrimental to the child, other than a statement of that ultimate fact,
48 shall not appear in the pleadings. The court may, in its discretion,
49 exclude the public from the hearing on this issue. The court shall state
50 in writing the reason for its decision and why the award made was found
51 to be in the best interests of the child. Any direction made pursuant to
52 this subdivision shall make provision for child support out of the prop-
53 erty of [either or] both parents. The court shall make its award for
54 child support pursuant to subdivision one-b of this section. Such direc-
55 tion may provide for reasonable [visitation] parenting time rights to
56 the maternal and/or paternal grandparents of any child of the parties.
A. 4559 7
1 Such direction as it applies to rights of [visitation] parenting time
2 with a child remanded or placed in the care of a person, official, agen-
3 cy or institution pursuant to article ten of the family court act, or
4 pursuant to an instrument approved under section three hundred fifty-
5 eight-a of the social services law, shall be enforceable pursuant to
6 part eight of article ten of the family court act and sections three
7 hundred fifty-eight-a and three hundred eighty-four-a of the social
8 services law and other applicable provisions of law against any person
9 having care and custody, or temporary care and custody, of the child.
10 Notwithstanding any other provision of law, any written application or
11 motion to the court for the establishment, modification or enforcement
12 of a child support obligation for persons not in receipt of public
13 assistance and care must contain either a request for child support
14 enforcement services which would authorize the collection of the support
15 obligation by the immediate issuance of an income execution for support
16 enforcement as provided for by this chapter, completed in the manner
17 specified in section one hundred eleven-g of the social services law; or
18 a statement that the applicant has applied for or is in receipt of such
19 services; or a statement that the applicant knows of the availability of
20 such services, has declined them at this time and where support enforce-
21 ment services pursuant to section one hundred eleven-g of the social
22 services law have been declined that the applicant understands that an
23 income deduction order may be issued pursuant to subdivision (c) of
24 section fifty-two hundred forty-two of the civil practice law and rules
25 without other child support enforcement services and that payment of an
26 administrative fee may be required. The court shall provide a copy of
27 any such request for child support enforcement services to the support
28 collection unit of the appropriate social services district any time it
29 directs payments to be made to such support collection unit. Addi-
30 tionally, the copy of any such request shall be accompanied by the name,
31 address and social security number of the parties; the date and place of
32 the parties' marriage; the name and date of birth of the child or chil-
33 dren; and the name and address of the employers and income payors of the
34 party from whom child support is sought or from the party ordered to pay
35 child support to the other party. Such direction may require the payment
36 of a sum or sums of money either directly to the custodial parent or to
37 third persons for goods or services furnished for such child, or for
38 both payments to the custodial parent and to such third persons;
39 provided, however, that unless the party seeking or receiving child
40 support has applied for or is receiving such services, the court shall
41 not direct such payments to be made to the support collection unit, as
42 established in section one hundred eleven-h of the social services law.
43 Every order directing the payment of support shall require that if
44 either parent currently, or at any time in the future, has health insur-
45 ance benefits available that may be extended or obtained to cover the
46 child, such parent is required to exercise the option of additional
47 coverage in favor of such child and execute and deliver to such person
48 any forms, notices, documents or instruments necessary to assure timely
49 payment of any health insurance claims for such child.
50 (a-1)(1) Permanent, temporary or successive temporary orders of custo-
51 dy or [visitation] parenting time. Prior to the issuance of any perma-
52 nent, temporary or successive temporary order of custody or [visitation]
53 parenting time where more than one month has passed since the issuance
54 of the previous temporary order, the court shall conduct a review of the
55 following:
A. 4559 8
1 (i) related decisions in court proceedings initiated pursuant to arti-
2 cle ten of the family court act; and
3 (ii) reports of the statewide computerized registry of orders of
4 protection and warrants of arrest established and maintained pursuant to
5 section two hundred twenty-one-a of the executive law, and reports of
6 the sex offender registry established and maintained pursuant to section
7 one hundred sixty-eight-b of the correction law.
8 (2) Notifying counsel and issuing orders. Upon consideration of deci-
9 sions pursuant to article ten of the family court act, and registry
10 reports and notifying counsel involved in the proceeding, or in the
11 event of a party appearing pro se, notifying such party of the results
12 thereof, including any court appointed law guardian, the court may issue
13 a temporary, successive temporary or final order of custody or [visita-
14 tion] parenting time.
15 (3) Temporary emergency order. Notwithstanding any other provision of
16 the law, upon emergency situations, to serve the best interest of the
17 child, the court may issue a temporary emergency order for custody or
18 [visitation] parenting time in the event that it is not possible to
19 timely review decisions and reports on registries as required pursuant
20 to items (i) and (ii) of subparagraph one of this paragraph.
21 (4) After issuing a temporary emergency order. After issuing a tempo-
22 rary emergency order of custody or [visitation] parenting time, the
23 court shall conduct reviews of the decisions and reports on registries
24 as required pursuant to items (i) and (ii) of subparagraph one of this
25 paragraph within twenty-four hours of the issuance of such temporary
26 emergency order. Upon reviewing decisions and reports the court shall
27 notify associated counsel pursuant to subparagraph two of this paragraph
28 and may issue temporary or permanent custody or [visitation] parenting
29 time orders.
30 (5) Feasibility study. The commissioner of the office of children and
31 family services, in conjunction with the office of court administration,
32 is hereby authorized and directed to examine, study, evaluate and make
33 recommendations concerning the feasibility of the utilization of comput-
34 ers in courts which are connected to the statewide central register of
35 child abuse and maltreatment established and maintained pursuant to
36 section four hundred twenty-two of the social services law, as a means
37 of providing courts with information regarding parties requesting orders
38 of custody or [visitation] parenting time. Such commissioner shall make
39 a preliminary report to the governor and the legislature of findings,
40 conclusions and recommendations not later than January first, two thou-
41 sand nine, and a final report of findings, conclusions and recommenda-
42 tions not later than June first, two thousand nine, and shall submit
43 with the reports such legislative proposals as are deemed necessary to
44 implement the commissioner's recommendations.
45 (b) As used in this section, the following terms shall have the
46 following meanings:
47 (1) "Health insurance benefits" means any medical, dental, optical and
48 prescription drugs and health care services or other health care bene-
49 fits that may be provided for a dependent through an employer or organ-
50 ization, including such employers or organizations which are self
51 insured, or through other available health insurance or health care
52 coverage plans.
53 (2) "Available health insurance benefits" means any health insurance
54 benefits that are reasonable in cost and that are reasonably accessible
55 to the person on whose behalf the petition is brought. Health insurance
A. 4559 9
1 benefits that are not reasonable in cost or whose services are not
2 reasonably accessible to such person, shall be considered unavailable.
3 (c) When the person on whose behalf the petition is brought is a
4 child, the court shall consider the availability of health insurance
5 benefits to all parties and shall take the following action to ensure
6 that health insurance benefits are provided for the benefit of the
7 child:
8 (1) Where the child is presently covered by health insurance benefits,
9 the court shall direct in the order of support that such coverage be
10 maintained, unless either parent requests the court to make a direction
11 for health insurance benefits coverage pursuant to paragraph two of this
12 subdivision.
13 (2) Where the child is not presently covered by health insurance bene-
14 fits, the court shall make a determination as follows:
15 (i) If only one parent has available health insurance benefits, the
16 court shall direct in the order of support that such parent provide
17 health insurance benefits.
18 (ii) If both parents have available health insurance benefits the
19 court shall direct in the order of support that either parent or both
20 parents provide such health insurance. The court shall make such deter-
21 mination based on the circumstances of the case, including, but not
22 limited to, the cost and comprehensiveness of the respective health
23 insurance benefits and the best interests of the child.
24 (iii) If neither parent has available health insurance benefits, the
25 court shall direct in the order of support that the custodial parent
26 apply for the state's child health insurance plan pursuant to title
27 one-A of article twenty-five of the public health law and the medical
28 assistance program established pursuant to title eleven of article five
29 of the social services law. If eligible for such coverage, the court
30 shall prorate the cost of any premium or family contribution in accord-
31 ance with paragraph (d) of this subdivision. A direction issued under
32 this subdivision shall not limit or alter either parent's obligation to
33 obtain health insurance benefits at such time as they become available,
34 as required pursuant to paragraph (a) of this subdivision.
35 (d) The cost of providing health insurance benefits pursuant to para-
36 graph (c) of this subdivision shall be prorated between the parties in
37 the same proportion as each parent's income is to the combined parental
38 income. If the custodial parent is ordered to provide such benefits, the
39 non-custodial parent's pro rata share of such costs shall be added to
40 the basic support obligation. If the non-custodial parent is ordered to
41 provide such benefits, the custodial parent's pro rata share of such
42 costs shall be deducted from the basic support obligation. Where the
43 court finds that such proration is unjust or inappropriate, the court
44 shall:
45 (1) order the parties to pay such amount of the cost of health insur-
46 ance benefits as the court finds just and appropriate;
47 (2) add or subtract such amount in the manner set forth in this subdi-
48 vision; and
49 (3) set forth in the order the factors it considered, the amount of
50 each party's share of the cost and the reason or reasons the court did
51 not order such pro rata apportionment.
52 (e) The court shall provide in the order of support that the legally
53 responsible relative immediately notify the other party, or the other
54 party and the support collection unit when the order is issued on behalf
55 of a child in receipt of public assistance and care or in receipt of
56 services pursuant to section one hundred eleven-g of the social services
A. 4559 10
1 law, of any change in health insurance benefits, including any termi-
2 nation of benefits, change in the health insurance benefit carrier,
3 premium, or extent and availability of existing or new benefits.
4 (f) Where the court determines that health insurance benefits are
5 available, the court shall provide in the order of support that the
6 legally responsible relative immediately enroll the eligible dependents
7 named in the order who are otherwise eligible for such benefits without
8 regard to any seasonal enrollment restrictions. Such order shall further
9 direct the legally responsible relative to maintain such benefits as
10 long as they remain available to such relative. Such order shall further
11 direct the legally responsible relative to assign all insurance
12 reimbursement payments for health care expenses incurred for his or her
13 eligible dependents to the provider of such services or the party actu-
14 ally having incurred and satisfied such expenses, as appropriate.
15 (g) When the court issues an order of child support or combined child
16 and spousal support on behalf of persons in receipt of public assistance
17 and care or in receipt of services pursuant to section one hundred
18 eleven-g of the social services law, such order shall further direct
19 that the provision of health care benefits shall be immediately enforced
20 pursuant to section fifty-two hundred forty-one of the civil practice
21 law and rules.
22 (h) When the court issues an order of child support or combined child
23 and spousal support on behalf of persons other than those in receipt of
24 public assistance and care or in receipt of services pursuant to section
25 one hundred eleven-g of the social services law, the court shall also
26 issue a separate order which shall include the necessary direction to
27 ensure the order's characterization as a qualified medical child support
28 order as defined by section six hundred nine of the employee retirement
29 income security act of 1974 (29 USC 1169). Such order shall: (i) clearly
30 state that it creates or recognizes the existence of the right of the
31 named dependent to be enrolled and to receive benefits for which the
32 legally responsible relative is eligible under the available group
33 health plans, and shall clearly specify the name, social security number
34 and mailing address of the legally responsible relative, and of each
35 dependent to be covered by the order; (ii) provide a clear description
36 of the type of coverage to be provided by the group health plan to each
37 such dependent or the manner in which the type of coverage is to be
38 determined; and (iii) specify the period of time to which the order
39 applies. The court shall not require the group health plan to provide
40 any type or form of benefit or option not otherwise provided under the
41 group health plan except to the extent necessary to meet the require-
42 ments of a law relating to medical child support described in section
43 one thousand three hundred [and ninety-six g] ninety-six-g of title
44 forty-two of the United States code.
45 (i) Upon a finding that a legally responsible relative wilfully failed
46 to obtain health insurance benefits in violation of a court order, such
47 relative will be presumptively liable for all health care expenses
48 incurred on behalf of such dependents from the first date such depen-
49 dents were eligible to be enrolled to receive health insurance benefits
50 after the issuance of the order of support directing the acquisition of
51 such coverage.
52 (j) The order shall be effective as of the date of the application
53 therefor, and any retroactive amount of child support due shall be
54 support arrears/past due support and shall, except as provided for here-
55 in, be paid in one lump sum or periodic sums, as the court shall direct,
56 taking into account any amount of temporary support which has been paid.
A. 4559 11
1 In addition, such retroactive child support shall be enforceable in any
2 manner provided by law including, but not limited to, an execution for
3 support enforcement pursuant to subdivision (b) of section fifty-two
4 hundred forty-one of the civil practice law and rules. When a child
5 receiving support is a public assistance recipient, or the order of
6 support is being enforced or is to be enforced pursuant to section one
7 hundred eleven-g of the social services law, the court shall establish
8 the amount of retroactive child support and notify the parties that such
9 amount shall be enforced by the support collection unit pursuant to an
10 execution for support enforcement as provided for in subdivision (b) of
11 section fifty-two hundred forty-one of the civil practice law and rules,
12 or in such periodic payments as would have been authorized had such an
13 execution been issued. In such case, the courts shall not direct the
14 schedule of repayment of retroactive support. Where such direction is
15 for child support and paternity has been established by a voluntary
16 acknowledgement of paternity as defined in section forty-one hundred
17 thirty-five-b of the public health law, the court shall inquire of the
18 parties whether the acknowledgement has been duly filed, and unless
19 satisfied that it has been so filed shall require the clerk of the court
20 to file such acknowledgement with the appropriate registrar within five
21 business days. Such direction may be made in the final judgment in such
22 action or proceeding, or by one or more orders from time to time before
23 or subsequent to final judgment, or by both such order or orders and the
24 final judgment. Such direction may be made notwithstanding that the
25 court for any reason whatsoever, other than lack of jurisdiction,
26 refuses to grant the relief requested in the action or proceeding. Any
27 order or judgment made as in this section provided may combine in one
28 lump sum any amount payable to the custodial parent under this section
29 with any amount payable to such parent under section two hundred thir-
30 ty-six of this article. Upon the application of either parent, or of any
31 other person or party having the care, custody and control of such child
32 pursuant to such judgment or order, after such notice to the other
33 party, parties or persons having such care, custody and control and
34 given in such manner as the court shall direct, the court may annul or
35 modify any such direction, whether made by order or final judgment, or
36 in case no such direction shall have been made in the final judgment
37 may, with respect to any judgment of annulment or declaring the nullity
38 of a void marriage rendered on or after September first, nineteen
39 hundred forty, or any judgment of separation or divorce whenever
40 rendered, amend the judgment by inserting such direction. Subject to
41 the provisions of section two hundred forty-four of this article, no
42 such modification or annulment shall reduce or annul arrears accrued
43 prior to the making of such application unless the defaulting party
44 shows good cause for failure to make application for relief from the
45 judgment or order directing such payment prior to the accrual of such
46 arrears. Such modification may increase such child support nunc pro tunc
47 as of the date of application based on newly discovered evidence. Any
48 retroactive amount of child support due shall be support arrears/past
49 due support and shall be paid in one lump sum or periodic sums, as the
50 court shall direct, taking into account any amount of temporary child
51 support which has been paid. In addition, such retroactive child support
52 shall be enforceable in any manner provided by law including, but not
53 limited to, an execution for support enforcement pursuant to subdivision
54 (b) of section fifty-two hundred forty-one of the civil practice law and
55 rules.
A. 4559 12
1 1-a. In any proceeding brought pursuant to this section to determine
2 the custody or [visitation] parenting time of minors, a report made to
3 the statewide central register of child abuse and maltreatment, pursuant
4 to title six of article six of the social services law, or a portion
5 thereof, which is otherwise admissible as a business record pursuant to
6 rule forty-five hundred eighteen of the civil practice law and rules
7 shall not be admissible in evidence, notwithstanding such rule, unless
8 an investigation of such report conducted pursuant to title six of arti-
9 cle six of the social services law has determined that there is some
10 credible evidence of the alleged abuse or maltreatment and that the
11 subject of the report has been notified that the report is indicated.
12 In addition, if such report has been reviewed by the state commissioner
13 of [social services] the office of children and family services or his
14 or her designee and has been determined to be unfounded, it shall not be
15 admissible in evidence. If such report has been so reviewed and has been
16 amended to delete any finding, each such deleted finding shall not be
17 admissible. If the state commissioner of [social services] the office of
18 children and family services or his or her designee has amended the
19 report to add any new finding, each such new finding, together with any
20 portion of the original report not deleted by the commissioner or his or
21 her designee, shall be admissible if it meets the other requirements of
22 this subdivision and is otherwise admissible as a business record. If
23 such a report, or portion thereof, is admissible in evidence but is
24 uncorroborated, it shall not be sufficient to make a fact finding of
25 abuse or maltreatment in such proceeding. Any other evidence tending to
26 support the reliability of such report shall be sufficient corrob-
27 oration.
28 § 11. Paragraph c of subdivision 3 of section 240 of the domestic
29 relations law, as amended by chapter 597 of the laws of 1998, is amended
30 to read as follows:
31 c. An order of protection entered pursuant to this subdivision may be
32 made in the final judgment in any matrimonial action or in a proceeding
33 to obtain custody of or [visitation] parenting time with any child under
34 this section, or by one or more orders from time to time before or
35 subsequent to final judgment, or by both such order or orders and the
36 final judgment. The order of protection may remain in effect after entry
37 of a final matrimonial judgment and during the minority of any child
38 whose custody or [visitation] parenting time is the subject of a
39 provision of a final judgment or any order. An order of protection may
40 be entered notwithstanding that the court for any reason whatsoever,
41 other than lack of jurisdiction, refuses to grant the relief requested
42 in the action or proceeding.
43 § 12. Section 241 of the domestic relations law, as amended by chapter
44 892 of the laws of 1986, is amended to read as follows:
45 § 241. Interference with or withholding of [visitation] parenting time
46 rights; alimony or maintenance suspension. When it appears to the satis-
47 faction of the court that a custodial parent receiving alimony or main-
48 tenance pursuant to an order, judgment or decree of a court of competent
49 jurisdiction has wrongfully interfered with or withheld [visitation]
50 parenting time rights provided by such order, judgment or decree, the
51 court, in its discretion, [may] shall suspend such payments or cancel
52 any arrears that may have accrued during the time that [visitation]
53 parenting time rights have been or are being interfered with or with-
54 held. Nothing in this section shall constitute a defense in any court to
55 an application to enforce payment of child support or grounds for the
56 cancellation of arrears for child support.
A. 4559 13
1 § 13. Section 251 of the domestic relations law, as added by chapter
2 164 of the laws of 1973, is amended to read as follows:
3 § 251. Filing of order in family court. When, in a matrimonial action,
4 the supreme court refers the issues of support, custody or [visitation]
5 parenting time to the family court, the order or judgment shall provide
6 that a copy thereof shall be filed by the plaintiff's attorney, within
7 ten days, with the clerk of the family court therein specified.
8 § 14. Paragraph (b) of subdivision 1 of section 252 of the domestic
9 relations law, as added by chapter 349 of the laws of 1995, is amended
10 to read as follows:
11 (b) to permit a parent, or a person entitled to [visitation] parenting
12 time by a court order or a separation agreement, to visit the child at
13 stated periods;
14 § 15. Subdivision 3 of section 252 of the domestic relations law, as
15 added by chapter 349 of the laws of 1995, is amended to read as follows:
16 3. An order of protection entered pursuant to this subdivision may be
17 made in the final judgment in any matrimonial action, or by one or more
18 orders from time to time before or subsequent to final judgment, or by
19 both such order or orders and the final judgment. The order of
20 protection may remain in effect after entry of a final matrimonial judg-
21 ment and during the minority of any child whose custody or [visitation]
22 parenting time is the subject of a provision of a final judgment or any
23 order. An order of protection may be entered notwithstanding that the
24 court for any reason whatsoever, other than lack of jurisdiction,
25 refuses to grant the relief requested in the action or proceeding.
26 § 16. Subdivision 10 of section 358-a of the social services law, as
27 added by chapter 457 of the laws of 1988, is amended to read as follows:
28 (10) [Visitation] Parenting time rights; non-custodial parents and
29 grandparents. (a) Where a social services official incorporates in an
30 instrument [visitation] parenting time rights set forth in an order,
31 judgment or agreement as described in paragraph (d) of subdivision two
32 of section three hundred eighty-four-a of this chapter, such official
33 shall make inquiry of the state central register of child abuse and
34 maltreatment to determine whether or not the person having such [visita-
35 tion] parenting time rights is a subject or another person named in an
36 indicated report of child abuse or maltreatment, as such terms are
37 defined in section four hundred twelve of this chapter, and shall
38 further ascertain, to the extent practicable, whether or not such person
39 is a respondent in a proceeding under article ten of the family court
40 act whereby the respondent has been alleged or adjudicated to have
41 abused or neglected such child.
42 (b) Where a social services official or the law guardian of the child,
43 if any, opposes incorporation of an order, judgment or agreement confer-
44 ring [visitation] parenting time rights as provided for in paragraph (e)
45 of subdivision two of section three hundred eighty-four-a of this chap-
46 ter, the social services official or law guardian shall apply for an
47 order determining that the provisions of such order, judgment or agree-
48 ment should not be incorporated into the instrument executed pursuant to
49 such section. Such order shall be granted upon a finding, based on
50 competent, relevant and material evidence, that the child's life or
51 health would be endangered by incorporation and enforcement of [visita-
52 tion] parenting time rights as described in such order, judgment or
53 agreement. Otherwise, the court shall deny such application.
54 (c) Where [visitation] parenting time rights pursuant to an order,
55 judgment or agreement are incorporated in an instrument, the parties may
56 agree to an alternative schedule of [visitation] parenting time equiv-
A. 4559 14
1 alent to and consistent with the original or modified [visitation]
2 parenting time order, judgment, or agreement where such alternative
3 schedule reflects changed circumstances of the parties and is consistent
4 with the best interests of the child. In the absence of such an agree-
5 ment between the parties, the court may, in its discretion, upon appli-
6 cation of any party or the child's law guardian, order an alternative
7 schedule of [visitation] parenting time, as described herein, where it
8 determines that such schedule is necessary to facilitate [visitation]
9 parenting time and to protect the best interests of the child.
10 (d) The order providing an alternative schedule of [visitation]
11 parenting time shall remain in effect for the length of the placement of
12 the child as provided for in such instrument unless such order is subse-
13 quently modified by the court for good cause shown. Whenever the court
14 makes an order denying or modifying [visitation] parenting time rights
15 pursuant to this subdivision, the instrument described in section three
16 hundred eighty-four-a of this chapter shall be deemed amended according-
17 ly.
18 § 17. Paragraphs (b), (d) and (f) of subdivision 2 of section 384-a of
19 the social services law, paragraph (b) as added by chapter 669 of the
20 laws of 1976, paragraphs (d) and (f) as added by chapter 457 of the laws
21 of 1988, are amended to read as follows:
22 (b) No provisions set forth in any such instrument regarding the right
23 of the parent or guardian to visit the child or to have services
24 provided to the child and to the parent or guardian to strengthen the
25 parental relationship may be terminated or limited by the authorized
26 agency having the care and custody of the child unless: (i) the instru-
27 ment shall have been amended to so limit or terminate such right, pursu-
28 ant to subdivision three of this section; or (ii) the right of [visita-
29 tion] parenting time or to such services would be contrary to or
30 inconsistent with a court order obtained in any proceeding in which the
31 parent or guardian was a party.
32 (d) In any case where a parent who has transferred care and custody of
33 a child to a social services official pursuant to this section informs
34 the social services official that an order or judgment conferring [visi-
35 tation] parenting time rights relating to the child has been entered by
36 the family court or supreme court or that a written agreement as
37 described in section two hundred thirty-six of the domestic relations
38 law between the parents confers such rights, any instrument executed
39 pursuant to this section shall incorporate the provisions of such order,
40 judgment or agreement to the extent that [visitation] parenting time
41 rights are affected and shall provide for [visitation] parenting time or
42 other rights as required by such order, judgment or agreement. Such
43 incorporation shall not preclude a social services official from exer-
44 cising his authority pursuant to paragraph (e) or (f) of this subdivi-
45 sion.
46 (f) Nothing in this section shall be deemed to prohibit a social
47 services official or a law guardian of the child, if any, from making an
48 application to modify the terms of a [visitation] parenting time order,
49 incorporated pursuant to this section, for good cause shown, upon notice
50 to all interested parties, or to limit the right of a non-custodial
51 parent or grandparent to seek [visitation] parenting time pursuant to
52 applicable provisions of law.
53 § 18. Subparagraph (iv) of paragraph (c) of subdivision 2 of section
54 384-a of the social services law, as amended by chapter 256 of the laws
55 of 1990, is amended to read as follows:
A. 4559 15
1 (iv) that the parent or guardian has a right to supportive services,
2 which shall include preventive and other supportive services authorized
3 to be provided pursuant to the state's consolidated services plan, to
4 visit the child, and to determine jointly with the agency the terms and
5 frequency of [visitation] parenting time;
6 § 19. Subparagraph 5 of paragraph (f) of subdivision 7 of section
7 384-b of the social services law, as added by chapter 911 of the laws of
8 1983, is amended to read as follows:
9 (5) making suitable arrangements with a correctional facility and
10 other appropriate persons for an incarcerated parent to visit the child
11 within the correctional facility, if such visiting is in the best inter-
12 ests of the child. When no [visitation] parenting time between child and
13 incarcerated parent has been arranged for or permitted by the authorized
14 agency because such [visitation] parenting time is determined not to be
15 in the best interest of the child, then no permanent neglect proceeding
16 under this subdivision shall be initiated on the basis of the lack of
17 such [visitation] parenting time. Such arrangements shall include, but
18 shall not be limited to, the transportation of the child to the correc-
19 tional facility, and providing or suggesting social or rehabilitative
20 services to resolve or correct the problems other than incarceration
21 itself which impair the incarcerated parent's ability to maintain
22 contact with the child. When the parent is incarcerated in a correction-
23 al facility located outside the state, the provisions of this subpara-
24 graph shall be construed to require that an authorized agency make such
25 arrangements with the correctional facility only if reasonably feasible
26 and permissible in accordance with the laws and regulations applicable
27 to such facility.
28 § 20. Paragraph (o) of subdivision 6 of section 398 of the social
29 services law, as added by chapter 457 of the laws of 1988, is amended to
30 read as follows:
31 (o) Compliance with a court order enforcing [visitation] parenting
32 time rights of a non-custodial parent or grandparent pursuant to part
33 eight of article ten of the family court act, subdivision ten of section
34 three hundred fifty-eight-a or paragraph (d) of subdivision two of
35 section three hundred eighty-four-a of this chapter, and responsibility
36 for the return of such child after [visitation] parenting time so
37 ordered.
38 § 21. Subdivision 1 of section 398-d of the social services law, as
39 added by chapter 83 of the laws of 1995, is amended to read as follows:
40 1. The legislature finds that the centralized delivery of child
41 protective services, preventive services, adoption services and foster
42 care services in a social [service] services district with a population
43 of more than two million hinders their effective delivery and adds
44 unnecessary costs. Numerous studies have recommended that such services
45 serve small areas, be located in such areas, and be integrated. Such
46 relocation will: give caseworkers greater knowledge of their assigned
47 community, the residents of that community and the availability of
48 community-based services; increase the availability of caseworkers;
49 reduce travel time for caseworkers; enable children in foster care to
50 remain in their own communities and schools and maintain their friend-
51 ships; enable children in foster care to have greater [visitation]
52 parenting time with their parents; provide for more effective delivery
53 of preventive services; and expedite adoptions and otherwise reduce the
54 amount of time children spend in foster care.
55 The relocation of child welfare service delivery to the community
56 sites will strengthen efforts to provide a wide range of community-based
A. 4559 16
1 early intervention programs including, but not limited to, school-based
2 health clinics and community schools, thereby ensuring the continued
3 development of a critical mass of community services.
4 § 22. Subparagraph 9 of paragraph (f) of subdivision 1 of section 413
5 of the family court act, as added by chapter 567 of the laws of 1989, is
6 amended to read as follows:
7 (9) Provided that the child is not on public assistance (i) extraor-
8 dinary expenses incurred by the non-custodial parent in exercising
9 [visitation] parenting time, or (ii) expenses incurred by the non-custo-
10 dial parent in extended [visitation] parenting time provided that the
11 custodial parent's expenses are substantially reduced as a result there-
12 of; and
13 § 23. Subdivisions (a) and (c) of section 439 of the family court act,
14 as amended by section 1 of chapter 576 of the laws of 2005, are amended
15 to read as follows:
16 (a) The chief administrator of the courts shall provide, in accordance
17 with subdivision (f) of this section, for the appointment of a suffi-
18 cient number of support magistrates to hear and determine support
19 proceedings. Except as hereinafter provided, support magistrates shall
20 be empowered to hear, determine and grant any relief within the powers
21 of the court in any proceeding under this article, articles five,
22 five-A, and five-B and sections two hundred thirty-four and two hundred
23 thirty-five of this act, and objections raised pursuant to section five
24 thousand two hundred forty-one of the civil practice law and rules.
25 Support magistrates shall not be empowered to hear, determine and grant
26 any relief with respect to issues specified in subdivision five of
27 section four hundred fifty-four or section four hundred fifty-five of
28 this [act] article, issues of contested paternity involving claims of
29 equitable estoppel, custody, [visitation] parenting time including
30 [visitation] parenting time as a defense, and orders of protection or
31 exclusive possession of the home, which shall be referred to a judge as
32 provided in subdivision (b) or (c) of this section. Where an order of
33 filiation is issued by a judge in a paternity proceeding and child
34 support is in issue, the judge, or support magistrate upon referral from
35 the judge, shall be authorized to immediately make a temporary or final
36 order of support, as applicable. A support magistrate shall have the
37 authority to hear and decide motions and issue summonses and subpoenas
38 to produce persons pursuant to section one hundred fifty-three of this
39 act, hear and decide proceedings and issue any order authorized by
40 subdivision (g) of section five thousand two hundred forty-one of the
41 civil practice law and rules, issue subpoenas to produce prisoners
42 pursuant to section two thousand three hundred two of the civil practice
43 law and rules and make a determination that any person before the
44 support magistrate is in violation of an order of the court as author-
45 ized by section one hundred fifty-six of this act subject to confirma-
46 tion by a judge of the court who shall impose any punishment for such
47 violation as provided by law. A determination by a support magistrate
48 that a person is in willful violation of an order under subdivision
49 three of section four hundred fifty-four of this article and that recom-
50 mends commitment shall be transmitted to the parties, accompanied by
51 findings of fact, but the determination shall have no force and effect
52 until confirmed by a judge of the court.
53 (c) The support magistrate, in any proceeding in which issues speci-
54 fied in section four hundred fifty-five of this [act] article, or issues
55 of custody, [visitation] parenting time, including [visitation] parent-
56 ing time as a defense, orders of protection or exclusive possession of
A. 4559 17
1 the home are present or in which paternity is contested on the grounds
2 of equitable estoppel, shall make a temporary order of support and refer
3 the proceeding to a judge. Upon determination of such issue by a judge,
4 the judge may make a final determination of the issue of support, or
5 immediately refer the proceeding to a support magistrate for further
6 proceedings regarding child support or other matters within the authori-
7 ty of the support magistrate.
8 § 24. Subdivision (a) of section 439 of the family court act, as
9 amended by section 2 of chapter 576 of the laws of 2005, is amended to
10 read as follows:
11 (a) The chief administrator of the courts shall provide, in accordance
12 with subdivision (f) of this section, for the appointment of a suffi-
13 cient number of support magistrates to hear and determine support
14 proceedings. Except as hereinafter provided, support magistrates shall
15 be empowered to hear, determine and grant any relief within the powers
16 of the court in any proceeding under this article, articles five,
17 five-A, and five-B and sections two hundred thirty-four and two hundred
18 thirty-five of this act, and objections raised pursuant to section five
19 thousand two hundred forty-one of the civil practice law and rules.
20 Support magistrates shall not be empowered to hear, determine and grant
21 any relief with respect to issues specified in section four hundred
22 fifty-five of this [act] article, issues of contested paternity involv-
23 ing claims of equitable estoppel, custody, [visitation] parenting time
24 including [visitation] parenting time as a defense, and orders of
25 protection or exclusive possession of the home, which shall be referred
26 to a judge as provided in subdivision (b) or (c) of this section. Where
27 an order of filiation is issued by a judge in a paternity proceeding and
28 child support is in issue, the judge, or support magistrate upon refer-
29 ral from the judge, shall be authorized to immediately make a temporary
30 or final order of support, as applicable. A support magistrate shall
31 have the authority to hear and decide motions and issue summonses and
32 subpoenas to produce persons pursuant to section one hundred fifty-three
33 of this act, hear and decide proceedings and issue any order authorized
34 by subdivision (g) of section five thousand two hundred forty-one of the
35 civil practice law and rules, issue subpoenas to produce prisoners
36 pursuant to section two thousand three hundred two of the civil practice
37 law and rules and make a determination that any person before the
38 support magistrate is in violation of an order of the court as author-
39 ized by section one hundred fifty-six of this act subject to confirma-
40 tion by a judge of the court who shall impose any punishment for such
41 violation as provided by law. A determination by a support magistrate
42 that a person is in willful violation of an order under subdivision
43 three of section four hundred fifty-four of this article and that recom-
44 mends commitment shall be transmitted to the parties, accompanied by
45 findings of fact, but the determination shall have no force and effect
46 until confirmed by a judge of the court.
47 § 25. Subdivision (b) of section 446 of the family court act, as
48 amended by chapter 483 of the laws of 1995, is amended to read as
49 follows:
50 (b) to permit a parent, or a person entitled to [visitation] parenting
51 time by a court order or a separation agreement, to visit the child at
52 stated periods;
53 § 26. Section 447 of the family court act, subdivision (a) as amended
54 by chapter 85 of the laws of 1996, is amended to read as follows:
55 § 447. Order of [visitation] parenting time. (a) In the absence of an
56 order of custody or of [visitation] parenting time entered by the
A. 4559 18
1 supreme court, the court may make an order of custody or of [visitation]
2 parenting time, in accordance with subdivision one of section two
3 hundred forty of the domestic relations law, requiring one parent to
4 permit the other to visit the children at stated periods without an
5 order of protection, even where the parents are divorced and the support
6 order is for a child only.
7 (b) Any order of the family court under this section shall terminate
8 when the supreme court makes an order of custody or of [visitation]
9 parenting time concerning the children, unless the supreme court contin-
10 ues the order of the family court.
11 § 27. Subdivision (a) of section 456 of the family court act, as
12 amended by chapter 809 of the laws of 1963, is amended to read as
13 follows:
14 (a) No person may be placed on probation under this article unless the
15 court makes an order to that effect, either at the time of the making of
16 an order of support or under section four hundred fifty-four of this
17 part. The period of probation may continue so long as an order of
18 support, order of protection or order of [visitation] parenting time
19 applies to such person.
20 § 28. Subdivisions (a) and (b) of section 467 of the family court act,
21 subdivision (a) as amended and subdivision (b) as added by chapter 40 of
22 the laws of 1981, are amended to read as follows:
23 (a) In an action for divorce, separation or annulment, the supreme
24 court may refer to the family court the determination of applications to
25 fix temporary or permanent custody or [visitation] parenting time,
26 applications to enforce judgments and orders of custody or [visitation]
27 parenting time, and applications to modify judgments and orders of
28 custody which modification may be granted only upon a showing to the
29 family court that there has been a subsequent change of circumstances,
30 such as loss of employment or change in income, and that modification is
31 required.
32 (b) In the event no such referral has been made and unless the supreme
33 court provides in the order or judgment awarding custody or [visitation]
34 parenting time in an action for divorce, separation or annulment, that
35 it may be enforced or modified only in the supreme court, the family
36 court may: (i) determine an application to enforce the order or judgment
37 awarding custody or [visitation] parenting time, or (ii) determine an
38 application to modify the order or judgment awarding custody or [visita-
39 tion] parenting time upon a showing that there has been a subsequent
40 change of circumstances and modification is required.
41 § 29. Section 511 of the family court act, as amended by chapter 533
42 of the laws of 1999, is amended to read as follows:
43 § 511. Jurisdiction. Except as otherwise provided, the family court
44 has exclusive original jurisdiction in proceedings to establish paterni-
45 ty and, in any such proceedings in which it makes a finding of paterni-
46 ty, to order support and to make orders of custody or of [visitation]
47 parenting time, as set forth in this article. On its own motion, the
48 court may at any time in the proceedings also direct the filing of a
49 neglect petition in accord with the provisions of article ten of this
50 act. In accordance with the provisions of section one hundred eleven-b
51 of the domestic relations law, the surrogate's court has original juris-
52 diction concurrent with the family court to determine the issues relat-
53 ing to the establishment of paternity.
54 § 30. Section 549 of the family court act, as added by chapter 952 of
55 the laws of 1971, subdivision (a) as amended by chapter 85 of the laws
56 of 1996, is amended to read as follows:
A. 4559 19
1 § 549. Order of [visitation] parenting time. (a) If an order of fili-
2 ation is made or if a paternity agreement or compromise is approved by
3 the court, in the absence of an order of custody or of [visitation]
4 parenting time entered by the supreme court the family court may make an
5 order of custody or of [visitation] parenting time, in accordance with
6 subdivision one of section two hundred forty of the domestic relations
7 law, requiring one parent to permit the other to visit the child or
8 children at stated periods.
9 (b) Any order of the family court under this section shall terminate
10 when the supreme court makes an order of custody or of [visitation]
11 parenting time concerning the child or children, unless the supreme
12 court continues the order of the family court.
13 § 31. Subdivision (b) of section 551 of the family court act, as
14 amended by chapter 483 of the laws of 1995, is amended to read as
15 follows:
16 (b) to permit a parent, or a person entitled to [visitation] parenting
17 time by a court order or a separation agreement to visit the child at
18 stated periods;
19 § 32. Section 651 of the family court act, as amended by chapter 85 of
20 the laws of 1996, subdivisions (b) and (d) as amended by chapter 657 of
21 the laws of 2003, and subdivision (e) as added by chapter 595 of the
22 laws of 2008, is amended to read as follows:
23 § 651. Jurisdiction over habeas corpus proceedings and petitions for
24 custody and [visitation] parenting time of minors. (a) When referred
25 from the supreme court or county court to the family court, the family
26 court has jurisdiction to determine, in accordance with subdivision one
27 of section two hundred forty of the domestic relations law and with the
28 same powers possessed by the supreme court in addition to its own
29 powers, habeas corpus proceedings and proceedings brought by petition
30 and order to show cause, for the determination of the custody or [visi-
31 tation] parenting time of minors.
32 (b) When initiated in the family court, the family court has jurisdic-
33 tion to determine, in accordance with subdivision one of section two
34 hundred forty of the domestic relations law and with the same powers
35 possessed by the supreme court in addition to its own powers, habeas
36 corpus proceedings and proceedings brought by petition and order to show
37 cause, for the determination of the custody or [visitation] parenting
38 time of minors, including applications by a grandparent or grandparents
39 for [visitation] parenting time or custody rights pursuant to section
40 seventy-two or two hundred forty of the domestic relations law.
41 (c) When initiated in the family court pursuant to a petition under
42 part eight of article ten of this act or section three hundred fifty-
43 eight-a of the social services law, the family court has jurisdiction to
44 enforce or modify orders or judgments of the supreme court relating to
45 the [visitation] parenting time of minors in foster care, notwithstand-
46 ing any limitation contained in subdivision (b) of section four hundred
47 sixty-seven of this act.
48 (d) With respect to applications by a grandparent or grandparents for
49 [visitation] parenting time or custody rights, made pursuant to section
50 seventy-two or two hundred forty of the domestic relations law, with a
51 child remanded or placed in the care of a person, official, agency or
52 institution pursuant to the provisions of article ten of this act, the
53 applicant, in such manner as the court shall prescribe, shall serve a
54 copy of the application upon the social services official having care
55 and custody of such child, and the child's law guardian, who shall be
56 afforded an opportunity to be heard thereon.
A. 4559 20
1 (e) 1. Permanent, temporary or successive temporary orders of custody
2 or visitation. Prior to the issuance of any permanent, temporary or
3 successive temporary order of custody or [visitation] parenting time
4 where more than one month has passed since the issuance of the previous
5 temporary order, the court shall conduct a review of the following:
6 (i) related decisions in court proceedings initiated pursuant to arti-
7 cle ten of this act; and
8 (ii) reports of the statewide computerized registry of orders of
9 protection and warrants of arrest established and maintained pursuant to
10 section two hundred twenty-one-a of the executive law, and reports of
11 the sex offender registry established and maintained pursuant to section
12 one hundred sixty-eight-b of the correction law.
13 2. Notifying counsel and issuing orders. Upon consideration of deci-
14 sions pursuant to article ten of this act, and registry reports and
15 notifying counsel involved in the proceeding, or in the event of a party
16 appearing pro se, notifying such party of the results thereof, including
17 any court appointed law guardian, the court may issue a temporary,
18 successive temporary or final order of custody or visitation.
19 3. Temporary emergency order. Notwithstanding any other provision of
20 the law, upon emergency situations, to serve the best interest of the
21 child, the court may issue a temporary emergency order for custody or
22 [visitation] parenting time in the event that it is not possible to
23 timely review decisions and reports on registries as required pursuant
24 to subparagraphs (i) and (ii) of paragraph one of this subdivision.
25 4. After issuing a temporary emergency order. After issuing a tempo-
26 rary emergency order of custody or [visitation] parenting time, the
27 court shall conduct reviews of the decisions and reports on registries
28 as required pursuant to subparagraphs (i) and (ii) of paragraph one of
29 this subdivision within twenty-four hours of the issuance of such tempo-
30 rary emergency order. Upon reviewing decisions and reports the court
31 shall notify associated counsel pursuant to paragraph two of this subdi-
32 vision and may issue temporary or permanent custody or [visitation]
33 parenting time orders.
34 5. Feasibility study. The commissioner of the office of children and
35 family services, in conjunction with the office of court administration,
36 is hereby authorized and directed to examine, study, evaluate and make
37 recommendations concerning the feasibility of the utilization of comput-
38 ers in family courts which are connected to the statewide central regis-
39 ter of child abuse and maltreatment established and maintained pursuant
40 to section four hundred twenty-two of the social services law, as a
41 means of providing family courts with information regarding parties
42 requesting orders of custody or [visitation] parenting time. Such
43 commissioner shall make a preliminary report to the governor and the
44 legislature of findings, conclusions and recommendations not later than
45 January thirty-first, two thousand nine, and a final report of findings,
46 conclusions and recommendations not later than June first, two thousand
47 nine, and shall submit with the reports such legislative proposals as
48 are deemed necessary to implement the commissioner's recommendations.
49 § 33. Section 651-a of the family court act, as amended by chapter 12
50 of the laws of 1996, is amended to read as follows:
51 § 651-a. Reports of child abuse and maltreatment; admissibility. In
52 any proceeding brought pursuant to this section to determine the custody
53 or [visitation] parenting time of minors, a report made to the statewide
54 central register of child abuse and maltreatment, pursuant to title six
55 of article six of the social services law, or a portion thereof, which
56 is otherwise admissible as a business record pursuant to rule forty-five
A. 4559 21
1 hundred eighteen of the civil practice law and rules shall not be admis-
2 sible in evidence, notwithstanding such rule, unless an investigation of
3 such report conducted pursuant to title six of article six of the social
4 services law has determined that there is some credible evidence of the
5 alleged abuse or maltreatment, that the subject of the report has been
6 notified that the report is indicated. In addition, if such report has
7 been reviewed by the state commissioner of [social services] the office
8 of children and family services or his or her designee and has been
9 determined to be unfounded, it shall not be admissible in evidence. If
10 such report has been so reviewed and has been amended to delete any
11 finding, each such deleted finding shall not be admissible. If the state
12 commissioner of [social services] the office of children and family
13 services or his or her designee has amended the report to add any new
14 finding, each such new finding, together with any portion of the
15 original report not deleted by the commissioner or his or her designee,
16 shall be admissible if it meets the other requirements of this section
17 and is otherwise admissible as a business record. If such a report, or
18 portion thereof, is admissible in evidence but is uncorroborated, it
19 shall not be sufficient to make a fact finding of abuse or maltreatment
20 in such proceeding. Any other evidence tending to support the reliabil-
21 ity of such report shall be sufficient corroboration.
22 § 34. Subdivisions (a) and (b) of section 652 of the family court act,
23 subdivision (a) as amended and subdivision (b) as added by chapter 40 of
24 the laws of 1981, are amended to read as follows:
25 (a) When referred from the supreme court to the family court, the
26 family court has jurisdiction to determine, with the same powers
27 possessed by the supreme court, applications to fix temporary or perma-
28 nent custody and applications to modify judgments and orders of custody
29 or [visitation] parenting time in actions and proceedings for marital
30 separation, divorce, annulment of marriage and dissolution of marriage.
31 Applications to modify judgments and orders of custody may be granted by
32 the family court under this section only upon the showing to the family
33 court that there has been a subsequent change of circumstances, such as
34 loss of employment or change in income, and that modification is
35 required.
36 (b) In the event no such referral has been made and unless the supreme
37 court provides in the order or judgment awarding custody or [visitation]
38 parenting time in an action for divorce, separation or annulment, that
39 it may be enforced or modified only in the supreme court, the family
40 court may: (i) determine an application to enforce the order or judgment
41 awarding custody or [visitation] parenting time, or (ii) determine an
42 application to modify the order or judgment awarding custody or [visita-
43 tion] parenting time upon a showing that there has been a subsequent
44 change of circumstances and modification is required.
45 § 35. Subdivision (b) of section 656 of the family court act, as
46 amended by chapter 483 of the laws of 1995, is amended to read as
47 follows:
48 (b) to permit a parent, or a person entitled to [visitation] parenting
49 time by a court order or a separation agreement, to visit the child at
50 stated periods;
51 § 36. Subdivision (b) of section 759 of the family court act, as
52 amended by chapter 483 of the laws of 1995, is amended to read as
53 follows:
54 (b) to permit a parent, or a person entitled to [visitation] parenting
55 time by a court order or a separation agreement, to visit the child at
56 stated periods;
A. 4559 22
1 § 37. Subdivision (b) of section 842 of the family court act, as
2 amended by chapter 483 of the laws of 1995, is amended to read as
3 follows:
4 (b) to permit a parent, or a person entitled to [visitation] parenting
5 time by a court order or a separation agreement, to visit the child at
6 stated periods;
7 § 38. Section 1030 of the family court act, as added by chapter 457 of
8 the laws of 1988, is amended to read as follows:
9 § 1030. Order of [visitation] parenting time by a respondent. (a) A
10 respondent shall have the right to reasonable and regularly scheduled
11 [visitation] parenting time with a child in the temporary custody of a
12 social services official pursuant to this part or pursuant to subdivi-
13 sion (d) of section one thousand fifty-one of this article, unless
14 limited by an order of the family court.
15 (b) A respondent who has not been afforded such [visitation] parenting
16 time may apply to the court for an order requiring the local social
17 services official having temporary custody of the child pursuant to this
18 part or pursuant to subdivision (d) of section one thousand fifty-one of
19 this article, to permit the respondent to visit the child at stated
20 periods. Such application shall be made upon notice to the local social
21 services official and to any law guardian appointed to represent the
22 child, who shall be afforded an opportunity to be heard thereon.
23 (c) A respondent shall be granted reasonable and regularly scheduled
24 [visitation] parenting time unless the court finds that the child's life
25 or health would be endangered thereby, but the court may order [visita-
26 tion] parenting time under the supervision of an employee of a local
27 social services department upon a finding that such supervised [visita-
28 tion] parenting time is in the best interest of the child.
29 (d) An order made under this section may be modified by the court for
30 good cause shown, upon application by any party or the child's law guar-
31 dian, and upon notice of such application to all other parties and the
32 child's law guardian, who shall be afforded an opportunity to be heard
33 thereon.
34 (e) An order made under this section shall terminate upon the entry of
35 an order of disposition pursuant to part five of this article.
36 (f) Interference with or withholding of parenting time without cause
37 shall result in immediate sanctions. A judge who sanctions a party for
38 failure to comply with an order of parenting time shall have available
39 the following remedies:
40 (1) awarding of counsel fees of the aggrieved party against the party
41 who violated the terms of the order;
42 (2) mediation education;
43 (3) community service;
44 (4) awarding of compensatory time with the child for which the party
45 was deprived; and
46 (5) other economic sanctions which may be decided on a case to case
47 basis.
48 § 39. Subdivision (e) of section 1035 of the family court act, as
49 amended by chapter 526 of the laws of 2003, is amended to read as
50 follows:
51 (e) The summons, petition and notice of pendency of a child protective
52 proceeding served on the child's non-custodial parent in accordance with
53 subdivision (d) of this section shall, if applicable, be served together
54 with a notice that the child was removed from his or her home by a
55 social services official. Such notice shall also include the name and
56 address of the official to whom temporary custody of the child has been
A. 4559 23
1 transferred, the name and address of the agency or official with whom
2 the child has been temporarily placed, if different, and shall advise
3 such parent of the right to request temporary and permanent custody and
4 to seek enforcement of [visitation] parenting time rights with the child
5 as provided for in part eight of this article.
6 § 40. Paragraph (b) of subdivision 1 of section 1056 of the family
7 court act, as amended by chapter 483 of the laws of 1995, is amended to
8 read as follows:
9 (b) to permit a parent, or a person entitled to [visitation] parenting
10 time by a court order or a separation agreement, to visit the child at
11 stated periods;
12 § 41. Part 8 of article 10 of the family court act, as added by chap-
13 ter 457 of the laws of 1988, section 1085 as amended by chapter 378 of
14 the laws of 1999, is amended to read as follows:
15 PART 8
16 [VISITATION OF] PARENTING TIME WITH
17 MINORS IN FOSTER CARE
18 Section 1081. [Visitation] Parenting time rights.
19 1082. Approval, modification or denial of [visitation] parenting
20 time rights.
21 1083. Duration of orders affecting [visitation] parenting time
22 rights.
23 1084. Out-of-wedlock children; paternity.
24 1085. [Visitation] Parenting time and custody rights unenforcea-
25 ble; murder of parent, custodian, guardian, or child.
26 § 1081. [Visitation] Parenting time rights. 1. A non-custodial parent
27 or grandparent shall have the [visitation] parenting time rights with a
28 child remanded or placed in the care of a social services official
29 pursuant to this article as conferred by order of the family court or by
30 any order or judgment of the supreme court, or by written agreement
31 between the parents as described in section two hundred thirty-six of
32 the domestic relations law, subject to the provisions of section one
33 thousand eighty-two of this part.
34 2. A non-custodial parent or any grandparent or grandparents who have
35 not been afforded the [visitation] parenting time rights described in
36 subdivision one of this section, shall have the right to petition the
37 court for enforcement of [visitation] parenting time rights with a child
38 remanded or placed in the care of a social services official pursuant to
39 this article, as such [visitation] parenting time rights have been
40 conferred by order of the family court or by any order or judgment of
41 the supreme court, or by written agreement between the parents as
42 described in section two hundred thirty-six of the domestic relations
43 law.
44 3. (a) The petition by a non-custodial parent shall allege that such
45 parent has [visitation] parenting time rights conferred by order of the
46 family court or by any order or judgment of the supreme court or by
47 written agreement between the parents as described in section two
48 hundred thirty-six of the domestic relations law, shall have a copy of
49 such order, judgment or agreement attached thereto, shall request
50 enforcement of such rights pursuant to this part, and shall state, when
51 known by the petitioner, that [visitation] parenting time rights with
52 the child by any grandparent or grandparents have been conferred by
53 order of the supreme court or family court pursuant to section seventy-
54 two or two hundred forty of the domestic relations law, and shall
55 provide the name and address of such grandparent or grandparents.
A. 4559 24
1 (b) A petition by a grandparent or grandparents shall allege that such
2 grandparent or grandparents have been granted [visitation] parenting
3 time rights with the child pursuant to section seventy-two or two
4 hundred forty of the domestic relations law, or subdivision (b) of
5 section six hundred fifty-one of this act, shall have a copy of such
6 order or judgment attached thereto, and shall request enforcement of
7 such rights pursuant to this part.
8 4. The petition shall be served upon the respondent in a proceeding
9 under this article, the local social services official having the care
10 of the child, any grandparent or grandparents named in the petition as
11 having [visitation] parenting time rights conferred by court order
12 pursuant to section seventy-two or two hundred forty of the domestic
13 relations law, and upon the child's law guardian. The petition shall be
14 served in such manner as the court may direct.
15 5. Upon receipt of such petition the court shall, subject to the
16 provisions of section one thousand eighty-two of this part, require that
17 any order of a family court or order or judgment of the supreme court,
18 or any agreement between the parents as described in subdivision one of
19 this section, granting [visitation] parenting time rights to the non-
20 custodial parent, grandparent or grandparents, be incorporated in any
21 preliminary order or order of placement made under this article to the
22 extent that such order, judgment or agreement confers [visitation]
23 parenting time rights. In any case where a dispositional hearing has not
24 been held or will not be held within thirty days of the filing of such
25 petition the court shall order the person, official, agency or institu-
26 tion caring for the child pursuant to this article to comply with such
27 part of the order, judgment or agreement granting [visitation] parenting
28 time rights. Violation of such order shall be punishable pursuant to
29 section seven hundred fifty-three of the judiciary law.
30 § 1082. Approval, modification or denial of [visitation] parenting
31 time rights. 1. (a) Upon receipt of a petition pursuant to subdivision
32 four of section one thousand eighty-one of this part, the local depart-
33 ment of social services shall make inquiry of the state central register
34 of child abuse and maltreatment to determine whether or not the peti-
35 tioner is a subject of an indicated report of child abuse or maltreat-
36 ment, as such terms are defined in section four hundred twelve of the
37 social services law, and shall further ascertain whether or not the
38 petitioner is a respondent in a proceeding under this article whereby
39 the child with whom [visitation] parenting time is sought has been
40 allegedly abused or neglected or has been adjudicated as an abused or
41 neglected child.
42 (b) The department, the law guardian and the respondent in a proceed-
43 ing under this article, shall have the right to be heard in respect to a
44 petition for an order to enforce [visitation] parenting time rights
45 under this part.
46 2. Where the local department of social services or the law guardian
47 opposes a petition described in section one thousand eighty-one of this
48 part, the department or the law guardian as appropriate shall serve and
49 file an answer to the petition. The court shall, upon the filing of such
50 answer, set a date for a hearing on such petition and shall notify the
51 parents, grandparent or grandparents, the department and the law guardi-
52 an of such hearing date.
53 3. Whenever a hearing described in subdivision two of this section is
54 to be held within ten court days of a dispositional hearing authorized
55 under this article, the court may in its discretion hear such petition
56 as part of such dispositional hearing.
A. 4559 25
1 4. In any hearing under this section, the court shall approve such
2 petition unless the court finds upon competent, relevant and material
3 evidence that enforcement of [visitation] parenting time rights as
4 described in the order, judgment or agreement would endanger the child's
5 life or health. Upon such a finding, the court shall make an order deny-
6 ing such petition or make such other order affecting enforcement of
7 [visitation] parenting time rights as the court deems to be in the best
8 interests of the child.
9 5. (a) Where a petition is approved pursuant to this section the
10 parties may agree in writing to an alternative schedule of [visitation]
11 parenting time equivalent to and consistent with the original or modi-
12 fied [visitation] parenting time order or agreement where such alterna-
13 tive schedule reflects changed circumstances of the parties and is
14 consistent with the best interests of the child.
15 (b) In the absence of such an agreement between the parties, the court
16 may, in its discretion, order an alternative schedule of [visitation]
17 parenting time as defined herein, where it determines that such schedule
18 is necessary to facilitate [visitation] parenting time and to protect
19 the best interests of the child.
20 § 1083. Duration of orders affecting [visitation] parenting time
21 rights. 1. Where an order of the court has been made incorporating an
22 order, judgment or agreement conferring [visitation] parenting time
23 rights with a child on a non-custodial parent or grandparent into a
24 dispositional order under this article, or where the court otherwise
25 orders compliance by a person, official, agency or institution caring
26 for the child, with an order, judgment or agreement granting [visita-
27 tion] parenting time rights, such order shall remain in effect for the
28 length of time the child remains in such care pursuant to this article,
29 unless such order is subsequently modified by the court for good cause
30 shown.
31 2. Where the court makes an order denying a petition seeking enforce-
32 ment of [visitation] parenting time rights or makes an order modifying
33 [visitation] parenting time rights, pursuant to the provisions of
34 section one thousand eighty-two of this part, such order shall remain in
35 effect for the length of time the child is placed with a person, offi-
36 cial, agency or institution caring for the child pursuant to this arti-
37 cle, unless such order is subsequently modified by the court for good
38 cause shown.
39 § 1084. Out-of-wedlock children; paternity. No [visitation] parenting
40 time right shall be enforceable under this part concerning any person
41 claiming to be a parent of an out-of-wedlock child without an adjudi-
42 cation of the paternity of such person by a court of competent jurisdic-
43 tion, or without an acknowledgement of the paternity of such person
44 executed pursuant to applicable provisions of law.
45 § 1085. [Visitation] Parenting time and custody rights unenforceable;
46 murder of parent, custodian, guardian, or child. 1. No [visitation]
47 parenting time or custody order shall be enforceable under this part by
48 a person who has been convicted of murder in the first or second degree
49 in this state, or convicted of an offense in another jurisdiction which,
50 if committed in this state, would constitute either murder in the first
51 or second degree, of a parent, legal custodian, legal guardian, sibling,
52 half-sibling or step-sibling of the child unless:
53 (i) (A) such child is of suitable age to signify assent and such child
54 assents to such [visitation] parenting time or custody; or
55 (B) if such child is not of suitable age to signify assent the child's
56 custodian or legal guardian assents to such order; or
A. 4559 26
1 (C) the person who has been convicted of murder in the first or second
2 degree, or an offense in another jurisdiction which if committed in this
3 state, would constitute either murder in the first or second degree, can
4 prove by a preponderance of the evidence that:
5 (1) he or she, or a family or household member of either party, was a
6 victim of domestic violence by the victim of such murder; and
7 (2) the domestic violence was causally related to the commission of
8 such murder; and
9 (ii) the court finds that such [visitation] parenting time or custody
10 is in the best interest of the child.
11 2. Pending determination of a petition for [visitation] parenting time
12 or custody such child shall not visit and no person shall visit, with
13 such child present, such person, legal guardian or legal custodian who
14 has been convicted of murder in the first or second degree in this
15 state, or an offense in another jurisdiction which, if committed in this
16 state, would constitute either murder in the first or second degree, of
17 the other parent, legal guardian, legal custodian, sibling, half-sibling
18 or step-sibling of such child, without the consent of such child's
19 custodian or legal guardian.
20 3. Nothing contained in this section shall be construed to require a
21 court, without petition from any of the interested parties, to review a
22 previously issued order of [visitation] parenting time or custody or
23 denial of such petition.
24 4. For the purposes of making a determination pursuant to subparagraph
25 (C) of paragraph (i) of subdivision one of this section, the court shall
26 not be bound by the findings of fact, conclusions of law or ultimate
27 conclusion as determined by the proceedings leading to the conviction of
28 murder in the first or second degree in this state or of an offense in
29 another jurisdiction which, if committed in this state, would constitute
30 murder in either the first or second degree, of a parent, legal guardi-
31 an, legal custodian, sibling, half-sibling or step-sibling of a child
32 who is the subject of the proceeding. In all proceedings under this
33 section, a law guardian shall be appointed for the child.
34 § 42. The domestic relations law is amended by adding a new section
35 242 to read as follows:
36 § 242. Matrimonial actions involving custody of children; mediation
37 and family counselling. In any matrimonial action involving the custody
38 of children, the court shall direct the parties to attend mediation and
39 family counselling sessions prior to the entry of any orders or judg-
40 ments, except for temporary orders of protection or support, as provided
41 for in the rules of the chief administrator of the courts, who shall
42 promulgate rules and regulations therefor.
43 § 43. Paragraph (a) of subdivision 1-b of section 240 of the domestic
44 relations law, as added by chapter 567 of the laws of 1989, is amended
45 to read as follows:
46 (a) The court shall make its award for child support pursuant to the
47 provisions of this subdivision. The [court may vary from the amount of
48 the basic child support obligation determined pursuant to paragraph (c)
49 of this subdivision only in accordance with paragraph (f) of this subdi-
50 vision] burden of child support shall be divided equally between the
51 parents.
52 § 44. Paragraphs (e) and (f) of subdivision 1-b of section 240 of the
53 domestic relations law are REPEALED.
54 § 45. Subparagraph 2 of paragraph (b) of subdivision 1-b of section
55 240 of the domestic relations law, as added by chapter 567 of the laws
56 of 1989, is amended to read as follows:
A. 4559 27
1 (2) "Child support" shall mean a sum to be paid pursuant to court
2 order or decree by either or both parents or pursuant to a valid agree-
3 ment between the parties for care, maintenance and education of any
4 unemancipated child under the age of [twenty-one] eighteen years.
5 § 46. Clause (i) of subparagraph 5 of paragraph (b) of subdivision 1-b
6 of section 240 of the domestic relations law, as added by chapter 567 of
7 the laws of 1989, is amended to read as follows:
8 (i) gross (total) income, exclusive of federal, state, and local
9 personal income taxes and contributions required pursuant to the federal
10 insurance contributions act (social security and medicare), as should
11 have been or should be reported in the most recent federal income tax
12 return. If an individual files his/her federal income tax return as a
13 married person filing jointly, such person shall be required to prepare
14 a form, sworn to under penalty of law, disclosing his/her gross income
15 individually;
16 § 47. Subdivision 11 of section 111-h of the social services law, as
17 amended by chapter 502 of the laws of 1990, is amended to read as
18 follows:
19 11. The department may provide for the performance of the collection
20 and disbursement functions of the support collection units by contract
21 with a fiscal agent. For purposes of any reference to support collection
22 unit in this chapter or any other law, the fiscal agent under contract
23 with the department shall be deemed to be part of all support collection
24 units for which the fiscal agent performs collection and disbursement
25 functions. The department shall provide by rule for an annual audit and
26 performance appraisal of each fiscal agent.
27 § 48. The family court act is amended by adding a new section 385.3 to
28 read as follows:
29 § 385.3. Evidence. Notwithstanding any other provision of law, a fami-
30 ly court judge shall, in every proceeding and hearing under his or her
31 jurisdiction, review all evidence including law guardian reports, child
32 advocate reports, physician reports, psychologist reports and counseling
33 reports, as well as all third party communications related to the
34 proceeding or hearing.
35 § 49. Subdivision (a) of section 418 of the family court act, as
36 amended by chapter 214 of the laws of 1998, is amended to read as
37 follows:
38 (a) The court, on its own motion or motion of any party, when paterni-
39 ty is contested, shall order the mother, the child and the alleged
40 father to submit to one or more genetic marker or DNA marker tests of a
41 type generally acknowledged as reliable by an accreditation body desig-
42 nated by the secretary of the federal department of health and human
43 services and performed by a laboratory approved by such an accreditation
44 body and by the commissioner of health or by a duly qualified physician
45 to aid in the determination of whether the alleged father is or is not
46 the father of the child. No such test shall be ordered, however, upon a
47 written finding by the court that it is not in the best interests of the
48 child on the basis of res judicata, equitable estoppel or the presump-
49 tion of legitimacy of a child born to a married woman. The record or
50 report of the results of any such genetic marker or DNA test shall be
51 received in evidence, pursuant to subdivision (e) of rule forty-five
52 hundred eighteen of the civil practice law and rules where no timely
53 objection in writing has been made thereto. Any order pursuant to this
54 section shall state in plain language that the results of such test
55 shall be admitted into evidence, pursuant to rule forty-five hundred
56 eighteen of the civil practice law and rules absent timely objections
A. 4559 28
1 thereto and that if such timely objections are not made, they shall be
2 deemed waived and shall not be heard by the court. If the record or
3 report of results of any such genetic marker or DNA test or tests indi-
4 cate at least a ninety-five percent probability of paternity, the admis-
5 sion of such record or report shall create a rebuttable presumption of
6 paternity, and, if unrebutted, shall establish the paternity of and
7 liability for the support of a child pursuant to this article and arti-
8 cle five of this act. If child support is being paid and the record or
9 report of results of any genetic marker or DNA test or tests do not
10 indicate at least a ninety-five percent probability of paternity, if
11 unrebutted, the court shall order the immediate cessation of all child
12 support regardless of the length of time that child support has been
13 paid, except in a case where a sperm donor was used and the putative
14 father was aware of and consented to such use in which case there shall
15 not be a cessation of support.
16 § 50. The domestic relations law is amended by adding a new section
17 74-a to read as follows:
18 § 74-a. Parental access to information. Unless prohibited by federal
19 or state law, a parent shall have complete access to records and infor-
20 mation pertaining to the health, education and welfare of his or her
21 minor child, regardless of whether or not he or she is the custodial
22 parent, unless a court decrees that access to the information is not in
23 the best interest of the child.
24 § 51. Subparagraph 3 of paragraph (b) of subdivision 1 of section 413
25 of the family court act, as amended by chapter 567 of the laws of 1989,
26 is amended to read as follows:
27 (3) "Child support percentage" shall mean:
28 (i) seventeen percent of the combined parental income for one child,
29 except in a case of shared parenting in which case ten percent of the
30 combined parental income for one child;
31 (ii) twenty-five percent of the combined parental income for two chil-
32 dren, except in a case of shared parenting in which case sixteen percent
33 of the combined parental income for two children;
34 (iii) twenty-nine percent of the combined parental income for three
35 children, except in a case of shared parenting in which case twenty-six
36 percent of the combined parental income for three children;
37 (iv) thirty-one percent of the combined parental income for four chil-
38 dren; and
39 (v) no less than thirty-five percent of the combined parental income
40 for five or more children.
41 In addition to the percentages established in this subparagraph for
42 shared parenting, the court may include an additional seven percent upon
43 the demonstration of necessity, based upon receipts, for clothing, care,
44 medical attention, the expense of education, payment of funeral
45 expenses, and other proper and reasonable expenses.
46 § 52. Paragraph (c) of subdivision 1 of section 413 of the family
47 court act is amended by adding a new subparagraph 8 to read as follows:
48 (8) Where the court determines that the custodial parent will receive
49 tax savings because of being able to file as head of a household, take a
50 child related tax deduction and/or take a child related earned income
51 tax credit, the court shall add the amount saved to the custodial
52 parent's income when determining combined parental income.
53 § 53. Section 413 of the family court act is amended by adding a new
54 subdivision 2-a to read as follows:
55 2-a. Nothing in this article shall impose any liability upon a person
56 to support any minor child who has become emancipated, married, has
A. 4559 29
1 ceased to attend school, or who, if it has been determined by the court,
2 has become self-supporting. Such liability shall not be imposed for so
3 long as the minor remains emancipated, married, has ceased to attend
4 school or is self-supporting.
5 § 54. Paragraph (e) of subdivision 4-a of section 111-b of the social
6 services law, as added by chapter 398 of the laws of 1997, is amended to
7 read as follows:
8 (e) Information maintained as part of the state case registry shall
9 be made available to other state and federal agencies as provided for in
10 federal statutes and regulations promulgated by the federal secretary of
11 health and human services. Every January, May and September, a support
12 payer's information shall be mailed to him or her by first class mail
13 from the New York state child support collection unit to the support
14 obligor's known home address or such other place where the support obli-
15 gor is likely to receive first class mail. This shall include all
16 payments, including arrearages, received by the child support collection
17 unit.
18 § 55. Subdivision (a) of section 458-a of the family court act, as
19 amended by chapter 624 of the laws of 2002, is amended to read as
20 follows:
21 (a) If the respondent has accumulated support arrears equivalent to or
22 greater than the amount of support due pursuant to court order for a
23 period of four months, the court may order the department of motor vehi-
24 cles to suspend the respondent's driving privileges, and if such order
25 issues, the respondent may apply to the department of motor vehicles for
26 a restricted use license pursuant to section five hundred thirty of the
27 vehicle and traffic law. If the court finds that the respondent has in
28 the past been timely in paying his or her support due then the respond-
29 ent's driving privileges cannot be suspended without a hearing. The
30 court may at any time upon payment of arrears or partial payment of
31 arrears by the respondent order the department of motor vehicles to
32 terminate the suspension of respondent's driving privileges. For
33 purposes of determining whether a support obligor has accumulated
34 support arrears equivalent to or greater than the amount of support due
35 for a period of four months, the amount of any retroactive support,
36 other than periodic payments of retroactive support which are past due,
37 shall not be included in the calculation of support arrears pursuant to
38 this section.
39 § 56. Subdivision 1 of section 454 of the family court act, as amended
40 by chapter 892 of the laws of 1986, is amended to read as follows:
41 1. If a respondent is brought before the court for failure to obey any
42 lawful order of support [and if, after hearing,] the parties can choose
43 to have a hearing before the court or to go through an arbitrator, in
44 order to avoid a court appearance. An arbitrator shall be established
45 through child support collection to arbitrate disputes when there are
46 accusations of child support arrearage in order to avert a court appear-
47 ance. If the court is satisfied by competent proof that the respondent
48 has failed to obey any such order, the court may use any or all of the
49 powers conferred upon it by this part. The court has the power to use
50 any or all enforcement powers in every proceeding brought for violation
51 of a court order under this part regardless of the relief requested in
52 the petition.
53 § 57. Paragraph (a) of subdivision 3 of section 454 of the family
54 court act, as amended by chapter 892 of the laws of 1986, is amended to
55 read as follows:
A. 4559 30
1 (a) commit the respondent to jail for a term not to exceed six months.
2 For purposes of this subdivision, failure to pay support, as ordered,
3 shall constitute prima facie evidence of a willful violation. However,
4 the court shall consider real circumstances when finding that a respond-
5 ent has failed to comply with any lawful order of support, such as that
6 a parent presently has voluntarily or involuntarily reduced resources or
7 income. Such commitment may be served upon certain specified days or
8 parts of days as the court may direct, and the court may, at any time
9 within the term of such sentence, revoke such suspension and commit the
10 respondent for the remainder of the original sentence, or suspend the
11 remainder of such sentence. Such commitment does not prevent the court
12 from subsequently committing the respondent for failure thereafter to
13 comply with any such order; or
14 § 58. Section 451 of the family court act, as amended by chapter 533
15 of the laws of 1999, is amended to read as follows:
16 § 451. Continuing jurisdiction. (a) Except as provided in article
17 five-B of this act, the court has continuing jurisdiction over any
18 support proceeding brought under this article until its judgment is
19 completely satisfied and may modify, set aside or vacate any order
20 issued in the course of the proceeding, provided, however, that the
21 modification, set aside or vacatur shall not reduce or annul child
22 support arrears accrued prior to the making of an application pursuant
23 to this section. The court shall not reduce or annul any other arrears
24 unless the defaulting party shows good cause for failure to make appli-
25 cation for relief from the judgment or order directing payment prior to
26 the accrual of the arrears, in which case the facts and circumstances
27 constituting such good cause shall be set forth in a written memorandum
28 of decision. A modification may increase support payments nunc pro tunc
29 as of the date of the initial application for support based on newly
30 discovered evidence. Any retroactive amount of support due shall be paid
31 in one lump sum or periodic sums, as the court directs, taking into
32 account any amount of support which has been paid. Upon an application
33 to modify, set aside or vacate an order of support, no hearing shall be
34 required unless such application shall be supported by affidavit and
35 other evidentiary material sufficient to establish a prima facie case
36 for the relief requested.
37 (b) Once a year, a motion may be made by a child support obligor to
38 require an accounting by the parent receiving the child support on
39 behalf of the child or children. The accounting shall account for all
40 funds expended on the child or children and shall be used by the court
41 in determining whether the funds are being misused or not fulfilling the
42 child or children's needs. The accounting shall include, but not be
43 limited to, the disposition of all funds paid by the child support obli-
44 gor and all funds expended on behalf of the child or children. Any
45 motion filed by a child support obligor pursuant to this subdivision
46 shall be accompanied by a sworn affidavit that the obligor has reason-
47 able grounds to question whether the child support funds are being spent
48 appropriately and shall state the grounds in the affidavit.
49 § 59. The closing paragraph of subdivision 1 of section 460 of the
50 family court act, as amended by chapter 815 of the laws of 1987, is
51 amended to read as follows:
52 and the party defaults in paying any sum of money due as required by the
53 order directing the payment thereof, the court, without regard to the
54 amount due, shall make an order directing the entry of judgment for the
55 amount of child support arrears, together with costs and disbursements.
56 This judgment shall be directed to be paid each month, at a rate not to
A. 4559 31
1 exceed ten percent of the defaulting party's regular monthly child
2 support payment, until the arrears are paid. The court shall make an
3 order directing the entry of judgment for the amount of arrears of any
4 other payments so directed, together with costs and disbursements,
5 unless the defaulting party shows good cause for failure to make appli-
6 cation for relief from the judgment or order directing such payment
7 prior to the accrual of such arrears. The court shall not make an order
8 reducing or [cancelling] canceling such arrears unless the facts and
9 circumstances constituting good cause are set forth in a written memo-
10 randum of decision. The application for such order shall be made upon
11 such notice to the party or other person as the court may direct. Such
12 judgment shall provide for the payment of interest on the amount of any
13 arrears if the default was willful, in that the defaulting party know-
14 ingly, consciously and voluntarily disregarded the obligation under a
15 lawful court order. Such interest shall be computed from the date on
16 which the payment was due, at the prevailing rate of interest on judg-
17 ments as provided in the civil practice law and rules.
18 § 60. This act shall take effect on the first of January next succeed-
19 ing the date on which it shall have become a law, provided that the
20 amendments to subdivision (a) of section 439 of the family court act
21 made by section twenty-three of this act shall be subject to the expira-
22 tion and reversion of such subdivision pursuant to subdivision 19 of
23 section 246 of chapter 81 of the laws of 1995, as amended, when upon
24 such date the provisions of section twenty-four of this act shall take
25 effect and provided further that any and all rules and regulations and
26 any other measures necessary to implement this act on its effective date
27 may be promulgated or taken on or before such date.
