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A05355 Summary:

BILL NOA05355
 
SAME ASNo Same As
 
SPONSORAngelino
 
COSPNSR
 
MLTSPNSR
 
Amd §§240 & 70, Dom Rel L; amd §651, Fam Ct Act
 
Prohibits a court from granting custody of a minor to anyone who has been convicted of any of the enumerated sex crimes except where court finds there is no significant risk to the child.
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A05355 Actions:

BILL NOA05355
 
02/12/2021referred to judiciary
03/18/2021enacting clause stricken
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A05355 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A5355
 
SPONSOR: Angelino
  TITLE OF BILL: An act to amend the domestic relations law and the family court act, in relation to the granting of custody of a minor   PURPOSE OR GENERAL IDEA OF BILL: This bill provides that where an individual has been convicted of certain sex offenses, they will not be awarded either custody or unsu- pervised visitation of a minor child unless the court finds that no significant risk to the child exists.   SUMMARY OF PROVISIONS: Section 1. Subdivision 5 of section 240 of the domestic relations law, as added by section 103 of chapter 398 of the laws of 1997, is renum- bered subdivision 6 and a new subdivision 7 is added. Section 2. Subdi- vision (a) of section 70 of the domestic relations law, as amended by chapter 457 of the laws of 1988. Section 3. Subdivisions (a), (b) and (c) of section 651 of the family court act, subdivisions (a) and (c) as amended by chapter 85 of the laws of 1996 and subdivision (b) as amended by chapter 657 of the laws of 2003. Section 4. Effective date.   JUSTIFICATION: The primary concern in custody determinations is the best interest of the child. For determination of custody, the court's evaluation of each parent's credibility, conduct, stability, lifestyle, morality, financial status, professional achievements, and personal associations all facili- tate a determination as to their respective fitness as a proper custo- dian. This bill recognizes that an individual, who has been convicted of specific sex offenses, as defined in the Penal Law, should be denied custody unless the court finds that there is no significant risk to the child. This bill provides the courts with the necessary options about granting custody and evaluating what is in the best interest of the child (codifies an option presently available to the courts).   PRIOR LEGISLATIVE HISTORY: New bill.   FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None.   EFFECTIVE DATE: This act shall take effect immediately.
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A05355 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          5355
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 12, 2021
                                       ___________
 
        Introduced by M. of A. ANGELINO -- read once and referred to the Commit-
          tee on Judiciary
 
        AN  ACT to amend the domestic relations law and the family court act, in
          relation to the granting of custody of a minor
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section 1. Subdivision 5 of section 240 of the domestic relations law,
     2  as  added  by  section 103 of chapter 398 of the laws of 1997, is renum-
     3  bered subdivision 6 and a new subdivision 7 is added to read as follows:
     4    7. Notwithstanding any other provision of any law to the contrary,  no
     5  court  shall  award  custody  to or allow unsupervised visitation with a
     6  parent or any other person who has been convicted of  violating  section
     7  130.20  (sexual  misconduct);  130.25 (rape in the third degree); 130.30
     8  (rape in the second degree); 130.35 (rape in the first  degree);  130.40
     9  (criminal  sexual  act in the third degree); 130.45 (criminal sexual act
    10  in the second degree); 130.50 (criminal sexual act in the first degree);
    11  130.55 (sexual abuse in the third degree); 130.60 (sexual abuse  in  the
    12  second  degree);  130.65  (sexual  abuse  in  the  first degree); 130.67
    13  (aggravated sexual abuse in the second degree); 130.70 (aggravated sexu-
    14  al abuse in the first degree); 255.25  (incest  in  the  third  degree);
    15  255.26  (incest  in  the  second  degree);  255.27  (incest in the first
    16  degree); 263.05 (use  of  a  child  in  a  sexual  performance);  263.10
    17  (promoting  an obscene sexual performance by a child); 263.15 (promoting
    18  a sexual performance by a child); 235.21 (disseminating indecent materi-
    19  al to minors in the second degree); 235.22 (disseminating indecent mate-
    20  rial to minors in the first degree); 230.30 (promoting  prostitution  in
    21  the second degree); 230.32 (promoting prostitution in the first degree);
    22  or  subdivision  two  of  section  230.25 (promoting prostitution in the
    23  third degree) of the penal law, unless the court finds that there is  no
    24  significant risk to the child.
    25    §  2.  Subdivision (a) of section 70 of the domestic relations law, as
    26  amended by chapter 457 of the laws  of  1988,  is  amended  to  read  as
    27  follows:
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD09122-01-1

        A. 5355                             2
 
     1    (a)   Where a minor child is residing within this state, either parent
     2  may apply to the supreme court for a writ of habeas corpus to have  such
     3  minor  child  brought  before such court; and on the return thereof, the
     4  court, on due consideration, may award the natural guardianship,  charge
     5  and  custody  of  such  child to either parent for such time, under such
     6  regulations and restrictions, and with such provisions  and  directions,
     7  as the case may require, and may at any time thereafter vacate or modify
     8  such  order.    In  all cases there shall be no prima facie right to the
     9  custody of the child in either parent, but  the  court  shall  determine
    10  solely  what  is  for the best interest of the child, and what will best
    11  promote its welfare and happiness, and make award  accordingly  subject,
    12  however,  to  the provisions of subdivision seven of section two hundred
    13  forty of this chapter.
    14    § 3. Subdivisions (a), (b) and (c) of section 651 of the family  court
    15  act,  subdivision  (a)  as  amended  by chapter 182 of the laws of 2019,
    16  subdivision (b) as amended by chapter 657 of the laws of 2003 and subdi-
    17  vision (c) as amended by chapter 85 of the laws of 1996, are amended  to
    18  read as follows:
    19    (a) When referred from the supreme court or county court to the family
    20  court,  the  family  court  has jurisdiction to determine, in accordance
    21  with subdivisions one and one-c of section  two  hundred  forty  of  the
    22  domestic relations law and with the same powers possessed by the supreme
    23  court  in  addition  to  its  own  powers, habeas corpus proceedings and
    24  proceedings brought by petition and order to show cause, for the  deter-
    25  mination of the custody or visitation of minors subject, however, to the
    26  limitations  set forth in subdivision seven of section two hundred forty
    27  of the domestic relations law regarding the awarding of custody or unsu-
    28  pervised visitation to a person who has been convicted  of  any  of  the
    29  offenses enumerated in such subdivision.
    30    (b) When initiated in the family court, the family court has jurisdic-
    31  tion  to  determine,  in  accordance with subdivision one of section two
    32  hundred forty of the domestic relations law and  with  the  same  powers
    33  possessed  by  the  supreme  court in addition to its own powers, habeas
    34  corpus proceedings and proceedings brought by petition and order to show
    35  cause, for the determination of the custody  or  visitation  of  minors,
    36  including  applications  by a grandparent or grandparents for visitation
    37  or custody rights pursuant to section seventy-two or two  hundred  forty
    38  of  the  domestic relations law subject, however, to the limitations set
    39  forth in subdivision seven of section two hundred forty of the  domestic
    40  relations  law regarding the awarding of custody or unsupervised visita-
    41  tion to a person who has been convicted of any of the  offenses  enumer-
    42  ated in such subdivision.
    43    (c)  When  initiated  in the family court pursuant to a petition under
    44  part eight of article ten of this act or section  three  hundred  fifty-
    45  eight-a of the social services law, the family court has jurisdiction to
    46  enforce  or  modify orders or judgments of the supreme court relating to
    47  the visitation of minors in foster care, notwithstanding any  limitation
    48  contained in subdivision (b) of section four hundred sixty-seven of this
    49  act  but  subject,  however, to the limitations set forth in subdivision
    50  seven of section two hundred forty of the domestic relations law regard-
    51  ing the awarding of custody or unsupervised visitation to a  person  who
    52  has   been   convicted  of  any  of  the  offenses  enumerated  in  such
    53  subdivision.
    54    § 4. This act shall take effect immediately.
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