Provides that the issue of military deployment shall not be considered as a factor in the awarding of custody in marital actions where a suitable child care plan is presented.
STATE OF NEW YORK
________________________________________________________________________
5762
2021-2022 Regular Sessions
IN ASSEMBLY
February 24, 2021
___________
Introduced by M. of A. HAWLEY, MORINELLO, SMULLEN, ASHBY, SALKA --
Multi-Sponsored by -- M. of A. BARCLAY -- read once and referred to
the Committee on Judiciary
AN ACT to amend the domestic relations law, in relation to determi-
nations of child custody in matrimonial actions
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 70 of the domestic relations law is amended by
2 adding a new subdivision (c) to read as follows:
3 (c) Notwithstanding any other provision of law to the contrary, the
4 court shall not consider the deployment of a parent in active service of
5 the armed forces of the United States or of the organized militia of the
6 state of New York as a detrimental factor to the awarding of custody of
7 a child where a suitable child care plan for the period of such deploy-
8 ment has been presented to the court by the petitioning parent.
9 § 2. Paragraph (a) of subdivision 1 of section 240 of the domestic
10 relations law, as amended by chapter 567 of the laws of 2015, is amended
11 and a new subdivision 1-d is added to read as follows:
12 (a) In any action or proceeding brought (1) to annul a marriage or to
13 declare the nullity of a void marriage, or (2) for a separation, or (3)
14 for a divorce, or (4) to obtain, by a writ of habeas corpus or by peti-
15 tion and order to show cause, the custody of or right to visitation with
16 any child of a marriage, the court shall require verification of the
17 status of any child of the marriage with respect to such child's custody
18 and support, including any prior orders, and shall enter orders for
19 custody and support as, in the court's discretion, justice requires,
20 having regard to the circumstances of the case and of the respective
21 parties and to the best interests of the child and subject to the
22 provisions of [subdivision] subdivisions one-c and one-d of this
23 section. Where either party to an action concerning custody of or a
24 right to visitation with a child alleges in a sworn petition or
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD02174-01-1
A. 5762 2
1 complaint or sworn answer, cross-petition, counterclaim or other sworn
2 responsive pleading that the other party has committed an act of domes-
3 tic violence against the party making the allegation or a family or
4 household member of either party, as such family or household member is
5 defined in article eight of the family court act, and such allegations
6 are proven by a preponderance of the evidence, the court must consider
7 the effect of such domestic violence upon the best interests of the
8 child, together with such other facts and circumstances as the court
9 deems relevant in making a direction pursuant to this section and state
10 on the record how such findings, facts and circumstances factored into
11 the direction. If a parent makes a good faith allegation based on a
12 reasonable belief supported by facts that the child is the victim of
13 child abuse, child neglect, or the effects of domestic violence, and if
14 that parent acts lawfully and in good faith in response to that reason-
15 able belief to protect the child or seek treatment for the child, then
16 that parent shall not be deprived of custody, visitation or contact with
17 the child, or restricted in custody, visitation or contact, based solely
18 on that belief or the reasonable actions taken based on that belief. If
19 an allegation that a child is abused is supported by a preponderance of
20 the evidence, then the court shall consider such evidence of abuse in
21 determining the visitation arrangement that is in the best interest of
22 the child, and the court shall not place a child in the custody of a
23 parent who presents a substantial risk of harm to that child, and shall
24 state on the record how such findings were factored into the determi-
25 nation. Where a proceeding filed pursuant to article ten or ten-A of the
26 family court act is pending at the same time as a proceeding brought in
27 the supreme court involving the custody of, or right to visitation with,
28 any child of a marriage, the court presiding over the proceeding under
29 article ten or ten-A of the family court act may jointly hear the dispo-
30 sitional hearing on the petition under article ten or the permanency
31 hearing under article ten-A of the family court act and, upon referral
32 from the supreme court, the hearing to resolve the matter of custody or
33 visitation in the proceeding pending in the supreme court; provided
34 however, the court must determine custody or visitation in accordance
35 with the terms of this section.
36 An order directing the payment of child support shall contain the
37 social security numbers of the named parties. In all cases there shall
38 be no prima facie right to the custody of the child in either parent.
39 Such direction shall make provision for child support out of the proper-
40 ty of either or both parents. The court shall make its award for child
41 support pursuant to subdivision one-b of this section. Such direction
42 may provide for reasonable visitation rights to the maternal and/or
43 paternal grandparents of any child of the parties. Such direction as it
44 applies to rights of visitation with a child remanded or placed in the
45 care of a person, official, agency or institution pursuant to article
46 ten of the family court act, or pursuant to an instrument approved under
47 section three hundred fifty-eight-a of the social services law, shall be
48 enforceable pursuant to part eight of article ten of the family court
49 act and sections three hundred fifty-eight-a and three hundred eighty-
50 four-a of the social services law and other applicable provisions of law
51 against any person having care and custody, or temporary care and custo-
52 dy, of the child. Notwithstanding any other provision of law, any writ-
53 ten application or motion to the court for the establishment, modifica-
54 tion or enforcement of a child support obligation for persons not in
55 receipt of public assistance and care must contain either a request for
56 child support enforcement services which would authorize the collection
A. 5762 3
1 of the support obligation by the immediate issuance of an income
2 execution for support enforcement as provided for by this chapter,
3 completed in the manner specified in section one hundred eleven-g of the
4 social services law; or a statement that the applicant has applied for
5 or is in receipt of such services; or a statement that the applicant
6 knows of the availability of such services, has declined them at this
7 time and where support enforcement services pursuant to section one
8 hundred eleven-g of the social services law have been declined that the
9 applicant understands that an income deduction order may be issued
10 pursuant to subdivision (c) of section fifty-two hundred forty-two of
11 the civil practice law and rules without other child support enforcement
12 services and that payment of an administrative fee may be required. The
13 court shall provide a copy of any such request for child support
14 enforcement services to the support collection unit of the appropriate
15 social services district any time it directs payments to be made to such
16 support collection unit. Additionally, the copy of any such request
17 shall be accompanied by the name, address and social security number of
18 the parties; the date and place of the parties' marriage; the name and
19 date of birth of the child or children; and the name and address of the
20 employers and income payors of the party from whom child support is
21 sought or from the party ordered to pay child support to the other
22 party. Such direction may require the payment of a sum or sums of money
23 either directly to the custodial parent or to third persons for goods or
24 services furnished for such child, or for both payments to the custodial
25 parent and to such third persons; provided, however, that unless the
26 party seeking or receiving child support has applied for or is receiving
27 such services, the court shall not direct such payments to be made to
28 the support collection unit, as established in section one hundred
29 eleven-h of the social services law. Every order directing the payment
30 of support shall require that if either parent currently, or at any time
31 in the future, has health insurance benefits available that may be
32 extended or obtained to cover the child, such parent is required to
33 exercise the option of additional coverage in favor of such child and
34 execute and deliver to such person any forms, notices, documents or
35 instruments necessary to assure timely payment of any health insurance
36 claims for such child.
37 1-d. Notwithstanding any other provision of law to the contrary, the
38 court shall not consider the deployment of a parent in active service of
39 the armed forces of the United States or of the organized militia of the
40 state of New York as a detrimental factor to the awarding of custody of
41 a child to a petitioning parent where a suitable child care plan for the
42 period of such deployment has been presented to the court by such
43 parent.
44 § 3. This act shall take effect immediately.
