A05398 Summary:

BILL NOA05398
 
SAME ASNo Same As
 
SPONSORHevesi
 
COSPNSRSillitti, Barron, Barnwell, Dickens, Fahy, Clark, Hunter, Galef, Lavine, Seawright, Simon, Jackson, Rivera J, McDonough, Morinello, Thiele, Burdick, Brown, Stirpe, Quart, Gonzalez-Rojas, Durso, Otis, Lawler, Brabenec, Manktelow, Angelino
 
MLTSPNSR
 
Amd §§240 & 70, add §240-d, Dom Rel L
 
Requires the court to consider a child's health and safety when making a decision regarding child custody and visitation; directs presumptions that may be made by the court and admissibility of certain evidence in such cases; requires court officials to take part in training to handle such cases regarding domestic violence and child abuse.
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A05398 Actions:

BILL NOA05398
 
02/16/2021referred to judiciary
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A05398 Committee Votes:

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A05398 Floor Votes:

There are no votes for this bill in this legislative session.
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A05398 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          5398
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 16, 2021
                                       ___________
 
        Introduced by M. of A. HEVESI -- read once and referred to the Committee
          on Judiciary
 
        AN  ACT to amend the domestic relations law, in relation to establishing
          "Kyra's Law"
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section 1. Short title. This act shall be known as and may be cited as
     2  "Kyra's Law".
     3    §  2.  Paragraph  (a)  of subdivision 1 of section 240 of the domestic
     4  relations law, as amended by chapter 567 of the laws of 2015, is amended
     5  to read as follows:
     6    (a) In any action or proceeding brought (1) to annul a marriage or  to
     7  declare  the nullity of a void marriage, or (2) for a separation, or (3)
     8  for a divorce, or (4) to obtain, by a writ of habeas corpus or by  peti-
     9  tion and order to show cause, the custody of or right to visitation with
    10  any  child  of  a  marriage, the court shall require verification of the
    11  status of any child of the marriage with respect to such child's custody
    12  and support[, including any prior orders, and  shall  enter  orders  for
    13  custody  and  support]  as, in the court's discretion, justice requires,
    14  having regard to the circumstances of the case  and  of  the  respective
    15  parties  and  to  the  best  interests  of  the child and subject to the
    16  provisions of subdivision one-c of this section. Where either  party  to
    17  an  action  concerning  custody of or a right to visitation with a child
    18  alleges in a sworn petition or complaint or  sworn  answer,  cross-peti-
    19  tion,  counterclaim  or  other  sworn responsive pleading that the other
    20  party has committed an act of child abuse against such child, or commit-
    21  ted an act of domestic violence against the party making the  allegation
    22  or  a  family  or  household  member  of either party, as such family or
    23  household member is defined in article eight of the  family  court  act,
    24  [and such allegations are proven by a preponderance of the evidence, the
    25  court  must  consider the effect of such domestic violence upon the best

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD09163-01-1

        A. 5398                             2

     1  interests of the child, together with such other facts and circumstances
     2  as the court deems relevant in  making  a  direction  pursuant  to  this
     3  section  and  state  on  the record how such findings, facts and circum-
     4  stances  factored  into  the  direction]  the  court  must first, before
     5  considering any other best interest factors,  hear  and  determine  upon
     6  competent  admissible evidence such allegations set forth, and enter any
     7  findings regarding any child abuse or domestic  abuse.  The  evidentiary
     8  hearing  for  such  determination shall be held within sixty days of the
     9  filing of a verified pleading. The court shall  not  be  precluded  from
    10  issuing  any necessary emergency orders to protect the child. All costs,
    11  including attorney and expert fees incurred by the non-offending  parent
    12  and  the child, to prepare for and participate in such evidentiary hear-
    13  ing, shall be paid by the parent who is found to  have  committed  child
    14  abuse or domestic violence, unless the offending parent has insufficient
    15  means  to  fund such activities.  If a parent makes a good faith allega-
    16  tion based on a reasonable belief supported by facts that the  child  is
    17  the  victim  of  child  abuse, child neglect, or the effects of domestic
    18  violence, and if that parent acts lawfully and in good faith in response
    19  to that reasonable belief to protect the child or seek treatment for the
    20  child, then that parent shall not be deprived of custody, visitation  or
    21  contact with the child, or restricted in custody, visitation or contact,
    22  based  solely  on  that  belief or the reasonable actions taken based on
    23  that belief. If [an allegation that a child is abused is supported by  a
    24  preponderance  of  the  evidence,  then  the  court  shall consider such
    25  evidence of abuse in determining the visitation arrangement that  is  in
    26  the best interest of the child, and the court shall not place a child in
    27  the  custody of a parent who presents a substantial risk of harm to that
    28  child, and shall state on the record how  such  findings  were  factored
    29  into the determination. Where a proceeding filed pursuant to article ten
    30  or  ten-A  of  the  family  court  act  is pending at the same time as a
    31  proceeding brought in the supreme court involving  the  custody  of,  or
    32  right  to  visitation with, any child of a marriage, the court presiding
    33  over the proceeding under article ten or ten-A of the family  court  act
    34  may jointly hear the disposition's hearing on the petition under article
    35  ten  or  the  permanency hearing under article ten-A of the family court
    36  act and, upon referral from the supreme court, the  hearing  to  resolve
    37  the  matter  of  custody  or visitation in the proceeding pending in the
    38  supreme court; provided however, the court  must  determine  custody  or
    39  visitation in accordance with the terms of this section] the court finds
    40  a  pattern  of  domestic  violence or child abuse by a parent, the court
    41  shall award sole custody of the child to  the  non-offending  parent  or
    42  party  and  shall suspend visitation or only award professionally super-
    43  vised visitation to the parent engaged  in  a  pattern  of  violence  or
    44  abusive  behavior. If the court does not make a finding that a party has
    45  engaged in a pattern of domestic violence or child abuse, the court  may
    46  not refuse to consider additional evidence of domestic violence or child
    47  abuse presented later in the case.
    48    An  order  directing  the  payment  of child support shall contain the
    49  social security numbers of the named parties. In all cases  there  shall
    50  be  no  prima  facie right to the custody of the child in either parent.
    51  Such direction shall make provision for child support out of the proper-
    52  ty of either or both parents. The court shall make its award  for  child
    53  support  pursuant  to  subdivision one-b of this section. Such direction
    54  may provide for reasonable visitation  rights  to  the  maternal  and/or
    55  paternal  grandparents of any child of the parties. Such direction as it
    56  applies to rights of visitation with a child remanded or placed  in  the

        A. 5398                             3
 
     1  care  of  a  person, official, agency or institution pursuant to article
     2  ten of the family court act, or pursuant to an instrument approved under
     3  section three hundred fifty-eight-a of the social services law, shall be
     4  enforceable  pursuant  to  part eight of article ten of the family court
     5  act and sections three hundred fifty-eight-a and three  hundred  eighty-
     6  four-a of the social services law and other applicable provisions of law
     7  against any person having care and custody, or temporary care and custo-
     8  dy,  of the child. Notwithstanding any other provision of law, any writ-
     9  ten application or motion to the court for the establishment,  modifica-
    10  tion  or  enforcement  of  a child support obligation for persons not in
    11  receipt of public assistance and care must contain either a request  for
    12  child  support enforcement services which would authorize the collection
    13  of the support  obligation  by  the  immediate  issuance  of  an  income
    14  execution  for  support  enforcement  as  provided  for by this chapter,
    15  completed in the manner specified in section one hundred eleven-g of the
    16  social services law; or a statement that the applicant has  applied  for
    17  or  is  in  receipt  of such services; or a statement that the applicant
    18  knows of the availability of such services, has declined  them  at  this
    19  time  and  where  support  enforcement  services pursuant to section one
    20  hundred eleven-g of the social services law have been declined that  the
    21  applicant  understands  that  an  income  deduction  order may be issued
    22  pursuant to subdivision (c) of section fifty-two  hundred  forty-two  of
    23  the civil practice law and rules without other child support enforcement
    24  services  and that payment of an administrative fee may be required. The
    25  court shall provide a  copy  of  any  such  request  for  child  support
    26  enforcement  services  to the support collection unit of the appropriate
    27  social services district any time it directs payments to be made to such
    28  support collection unit. Additionally, the  copy  of  any  such  request
    29  shall  be accompanied by the name, address and social security number of
    30  the parties; the date and place of the parties' marriage; the  name  and
    31  date  of birth of the child or children; and the name and address of the
    32  employers and income payors of the party  from  whom  child  support  is
    33  sought  or  from  the  party  ordered  to pay child support to the other
    34  party. Such direction may require the payment of a sum or sums of  money
    35  either directly to the custodial parent or to third persons for goods or
    36  services furnished for such child, or for both payments to the custodial
    37  parent  and  to  such  third persons; provided, however, that unless the
    38  party seeking or receiving child support has applied for or is receiving
    39  such services, the court shall not direct such payments to  be  made  to
    40  the  support  collection  unit,  as  established  in section one hundred
    41  eleven-h of the social services law. Every order directing  the  payment
    42  of support shall require that if either parent currently, or at any time
    43  in  the  future,  has  health  insurance  benefits available that may be
    44  extended or obtained to cover the child,  such  parent  is  required  to
    45  exercise  the  option  of additional coverage in favor of such child and
    46  execute and deliver to such person  any  forms,  notices,  documents  or
    47  instruments  necessary  to assure timely payment of any health insurance
    48  claims for such child.
    49    § 3. The domestic relations law is amended by  adding  a  new  section
    50  240-d to read as follows:
    51    §  240-d.  Custody  and visitation; health and safety of the child. 1.
    52  For the purposes of this section, the following  terms  shall  have  the
    53  following meanings:
    54    (a)  "Adverse  childhood experiences" means any stressful or traumatic
    55  experience of a child during such child's childhood which  are  strongly
    56  related  to  the  development  and  prevalence of a wide range of health

        A. 5398                             4
 
     1  problems throughout such child's lifetime, including,  but  not  limited
     2  to,  physical  or  sexual  abuse,  domestic  violence,  parental  mental
     3  illness, substance abuse, and incarceration.
     4    (b)  "Parental  alienation"  means  claims  that  a  child  has become
     5  estranged from a parent or legal guardian as the result of psychological
     6  manipulation by the other parent or legal guardian.
     7    (c) "Victim of domestic violence"  shall  have  the  same  meaning  as
     8  defined in section four hundred fifty-nine-a of the social services law.
     9    (d)  "Friendly  parent"  means  the propensity of a parent to actively
    10  support a child's contact and relationship with the other parent, or the
    11  ability of such parent to cooperate in, and resolve disputes,  regarding
    12  matters affecting such child.
    13    (e)  "Primary  attachment  figure"  means the parent who best provides
    14  emotional security and comfort to the child and takes into consideration
    15  which parent provided most of the child care during the first two  years
    16  of the child's life.
    17    2. Notwithstanding any other provision of law to the contrary, a court
    18  making  a  determination based on the best interests of a child pursuant
    19  to the provisions of this  chapter  shall  prioritize  and  promote  the
    20  health and safety of such child when making such determinations. Promot-
    21  ing  the  safety  of  a  child  shall include preventing direct physical
    22  and/or emotional harm to such child and  creating  situations  that  may
    23  decrease the likelihood such child will engage in harmful behaviors.
    24    3. Prior to the issuance of any form of an order of custody or visita-
    25  tion,  the  court  shall  determine  the  safety of the child who is the
    26  subject of such order by considering all relevant factors and by  giving
    27  weighted  consideration  to  those  factors  which affect the health and
    28  safety of such child, which shall include, but not be limited to:
    29    (a) whether either parent is more likely  to  ensure  the  health  and
    30  safety of the child. There shall be a rebuttable presumption that custo-
    31  dy  or visitation shall not be awarded to a parent or party who jeopard-
    32  izes the health and safety of the child;
    33    (b) the negative consequences associated  with  separating  the  child
    34  from its primary attachment figure;
    35    (c)  whether  either  parent  jeopardizes the health and safety of the
    36  child by unreasonably placing the child at substantial  risk  of  severe
    37  emotional distress or bodily injury;
    38    (d)  any present or past abuse committed by a parent, or a member of a
    39  parent's household against the child, regardless  of  whether  there  is
    40  continued risk of harm to the child;
    41    (e)  whether either parent has committed an act of child abuse against
    42  the child, or committed an act of domestic violence  against  the  party
    43  making  the allegation, a family member, or a household member of either
    44  party;
    45    (f) whether either parent is better able and more likely to attend  to
    46  the  daily  physical,  emotional, developmental, educational and special
    47  needs of the child;
    48    (g) any history of violence or abuse committed by a parent or a member
    49  of a parent's household against:
    50    (1) any other party;
    51    (2) another child in the parent's household; or
    52    (3) the child's other parent or any  other  individual  who  currently
    53  resides, or formerly resided, in the other parent's household;
    54    (h)  any  fear  held  by  the child of a parent based on such parent's
    55  specific conduct that is contrary to  the  child's  best  interest,  and
    56  specifically to the child's health and safety; and

        A. 5398                             5
 
     1    (i)  the presence of adverse childhood experiences, and whether either
     2  parent's behaviors have contributed to the presence of adverse childhood
     3  experiences for such child.
     4    4.  (a)  The court shall not presume that a child's deficient or nega-
     5  tive relationship with a parent was caused  by  the  other  parent,  nor
     6  shall a child be separated from a parent found to be the primary attach-
     7  ment  figure  for the purpose of improving a deficient relationship with
     8  the other parent.
     9    (b) Concerns regarding unconscious or subliminal  parental  alienation
    10  shall  not be admissible in any proceeding for custody or visitation and
    11  shall not be considered in assessing a child's best interests.
    12    (c) No psychological or  medical  theories  or  labels  related  to  a
    13  child's  resistance  to  contact  with one parent shall be admitted into
    14  evidence unless they are based on empirical proof  of  scientific  reli-
    15  ability  and  validity  and  generally  accepted  by  the scientific and
    16  professional community.
    17    (d) No reunification treatment or any similar program shall be ordered
    18  by the court without scientifically valid and generally  accepted  proof
    19  of the effectiveness and therapeutic value of such treatment or program;
    20  nor shall a treatment or program be ordered which is predicated on sepa-
    21  rating a child from the child's primary attachment figure.
    22    (e)  Any order attempting to remediate a child's resistance to contact
    23  or visitation with a parent shall  address  any  parental  behaviors  or
    24  contributions  the court determines to be the cause of, either wholly or
    25  in part, such resistance.
    26    (f) In cases where the court has found a parent  to  be  a  victim  of
    27  domestic violence and/or where child abuse has occurred or is occurring,
    28  a court shall not consider whether either parent is a friendly parent.
    29    5.  In  cases  where  the  court  has found a parent to be a victim of
    30  domestic violence and/or where child abuse has occurred or is occurring:
    31    (a) the court shall not base  decisions  on  a  legal  presumption  of
    32  shared parenting; and
    33    (b)  all  costs,  including  attorney and expert fees, incurred by the
    34  non-offending parent and the child, shall be paid by the parent  who  is
    35  found  to  have  committed  child abuse or domestic violence, unless the
    36  offending parent has insufficient means to pay such costs.
    37    6. (a) Before judges and other court professionals handle child custo-
    38  dy proceedings in which  one  or  more  parties  have  alleged  domestic
    39  violence  or  child  abuse, they shall complete at least twenty hours of
    40  initial training for the handling of such cases. The office of  children
    41  and family services shall, within amounts appropriated for such purpose,
    42  contract  exclusively  with a nonprofit entity designated by the federal
    43  department of health and human services to coordinate statewide improve-
    44  ments within local communities, social services systems, and programming
    45  regarding the prevention and intervention of domestic  violence  in  the
    46  state  of  New  York,  and other nonprofit entities with whom it subcon-
    47  tracts with expertise in child abuse and adverse  childhood  experiences
    48  to develop such training. Such entity, or entities in partnership, shall
    49  be  responsible  for  providing  such training to judges and other court
    50  professionals handling child custody proceedings and for  reviewing  and
    51  updating  training  topics at least once every two years.  Such training
    52  shall include, but not be limited to:
    53    (1) a review of relevant statutes and case law pertaining to  domestic
    54  violence and child abuse;
    55    (2)  the  dynamics  and  effects of domestic violence and child abuse,
    56  including but not limited to, emotional, financial, physical, technolog-

        A. 5398                             6
 
     1  ical and sexual abuse, and an understanding of the  barriers  and  fears
     2  associated  with  reporting  domestic  violence  and child abuse and why
     3  victims may not have documented evidence of abuse;
     4    (3) tactics commonly used by one party to induce fear in another party
     5  or  child,  including  verbal, emotional, psychological, and/or economic
     6  abuse, isolating tactics and efforts to build  trust  and  an  emotional
     7  connection with a child to support future manipulation, exploitation and
     8  abuse,  coercive  control, threats, controlling and harassing behaviors,
     9  including monitoring of a partner's location and activities,  litigation
    10  abuse  and demands for custody or joint custody in order to pressure the
    11  partner to return or punish the partner for leaving;
    12    (4) knowledge of trauma, particularly as it relates  to  sexual  abuse
    13  and  the  risks  posed to children and the long-term dangers and impacts
    14  posed by the presence of adverse childhood experiences;
    15    (5) the increased risk of escalating violence that occurs during child
    16  custody proceedings;
    17    (6) education regarding the harm courts may cause  children  in  child
    18  custody cases where domestic violence or child abuse is present by rely-
    19  ing  on  non-scientific  theories  such as parental alienation, parental
    20  alienation syndrome, the friendly parent concept, or any other theory or
    21  label that is not supported by scientific  research  and  not  generally
    22  accepted by the scientific community;
    23    (7) the investigation process once a law enforcement agency or a local
    24  department  of  social services has received a report of suspected child
    25  abuse, including the limitations of investigating reports  of  suspected
    26  child abuse; and
    27    (8)  appropriate experience and qualifications of child custody evalu-
    28  ators and mental health treatment providers.
    29    (b) Once initial training requirements have been met, judges and other
    30  court professionals handling child custody proceedings in which  one  or
    31  more  parties have alleged domestic violence or child sexual abuse shall
    32  complete at least ten hours of training every  two  years  in  order  to
    33  remain eligible to handle such proceedings.
    34    §  4.  Subdivision (a) of section 70 of the domestic relations law, as
    35  amended by chapter 457 of the laws  of  1988,  is  amended  to  read  as
    36  follows:
    37    (a)  (i)  Where  a  minor  child is residing within this state, either
    38  parent may apply to the supreme court for a writ  of  habeas  corpus  to
    39  have such minor child brought before such court; and on the return ther-
    40  eof,  the  court,  on due consideration, may award the natural guardian-
    41  ship, charge and custody of such child to either parent for  such  time,
    42  under  such  regulations  and restrictions, and with such provisions and
    43  directions, as the case may require, and  may  at  any  time  thereafter
    44  vacate  or modify such order. In all cases there shall be no prima facie
    45  right to the custody of the child in either parent, but the court  shall
    46  determine  solely  what  is for the best interest of the child, and what
    47  will best promote its welfare and happiness, and make award accordingly.
    48  Where either party to an action concerning custody  of  or  a  right  to
    49  visitation  with  a  child  alleges  in a sworn petition or complaint or
    50  sworn answer, cross-petition, counterclaim  or  other  sworn  responsive
    51  pleading  that  the  other  party  has  committed  an act of child abuse
    52  against such child, or committed an act of domestic violence against the
    53  party making the allegation or family  or  household  member  of  either
    54  party,  as  such  family or household is defined in section four hundred
    55  fifty-nine-a of the social services law, the court  must  first,  before
    56  considering  any  other  best  interest  factors, conduct an evidentiary

        A. 5398                             7
 
     1  hearing and enter findings regarding any child abuse or domestic  abuse,
     2  as described pursuant to section two hundred forty-a of this chapter.
     3    (ii)  Notwithstanding  any  other  provision of law to the contrary, a
     4  court making a determination based on the  best  interests  of  a  child
     5  pursuant  to the provisions of this chapter shall prioritize and promote
     6  the health and safety of such child  when  making  such  determinations.
     7  Promoting the safety of such child shall include preventing direct phys-
     8  ical  and/or  emotional  harm to such child and creating situations that
     9  may decrease the likelihood such child will engage in harmful behaviors.
    10    (iii) Prior to the issuance of any form of any  order  of  custody  or
    11  visitation, the court shall determine the safety of the child who is the
    12  subject  of  such  order by considering the factors described in section
    13  two hundred forty-d of this chapter and by giving weighted consideration
    14  to those factors which affect the health and safety of such child.
    15    (iv) In making a decision pursuant to paragraph (i) of  this  subdivi-
    16  sion,  the  court  shall  be bound by the presumptions and admissibility
    17  described pursuant to section  two  hundred  forty-d  of  this  chapter.
    18  Further,  the  court  shall  not  take into consideration whether either
    19  parent is married, was formerly married or has ever been married to  the
    20  other parent or anyone else.
    21    (v)  In  cases  where  the  court has found a parent to be a victim of
    22  domestic violence and/or where child abuse has occurred or is occurring,
    23  the court shall not base decisions on  a  legal  presumption  of  shared
    24  parenting and all costs, including attorney and expert fees, incurred by
    25  the  non-offending parent and the child, shall be paid by the parent who
    26  is found to have committed child abuse or domestic violence, unless  the
    27  offending parent has insufficient means to pay such costs.
    28    (vi)  Before judges and other court professionals handle child custody
    29  proceedings in which one or more parties have alleged domestic  violence
    30  or child abuse, they shall complete initial training for the handling of
    31  such  cases as described pursuant to section two hundred forty-d of this
    32  chapter. Once initial training requirements have been  met,  judges  and
    33  other  court  professionals shall complete additional training every two
    34  years as described pursuant to section two hundred forty-d of this chap-
    35  ter.
    36    § 5. This act shall take effect on the ninetieth day  after  it  shall
    37  have become a law. Effective immediately, the addition, amendment and/or
    38  repeal  of  any  rule  or regulation necessary for the implementation of
    39  this act on its effective date are authorized to be made  on  or  before
    40  such effective date.
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