Makes numerous modifications to provisions of various laws relating to child custody matters; provides for shared parenting custody; provides for parenting time rather than visitation; provides for mediation and counseling in matrimonial actions involving children; establishes 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
________________________________________________________________________
6690--A
2011-2012 Regular Sessions
IN ASSEMBLY
March 24, 2011
___________
Introduced by M. of A. KOLB, CROUCH, FINCH, MONTESANO -- Multi-Sponsored
by -- M. of A. CALHOUN, GIGLIO, JORDAN -- read once and referred to
the Committee on Judiciary -- recommitted to the Committee on Judici-
ary in accordance with Assembly Rule 3, sec. 2 -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee
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;
and to amend the family court act and the social services law, in
relation to the payment of 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
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD05866-02-1
A. 6690--A 2
1 to both parent and child. This legislation seeks to encourage courts and
2 interested parties to work towards the goal of shared parenting whenever
3 practical and when in the best interests of the child.
4 § 2. Short title. This act shall be known and may be cited as the
5 "family court reform act of 2012".
6 § 3. The domestic relations law is amended by adding a new section
7 240-d to read as follows:
8 § 240-d. Custody of children. 1. Where the court considers awarding
9 shared parenting pursuant to the provisions of this section "shared
10 parenting" shall mean an order awarding custody of the child to both
11 parties so that both parties share equally the legal responsibility and
12 control of such child and share equally the living experience in time
13 and physical care to assure frequent and continuing contact with both
14 parties, as the court deems to be in the best interests of the child,
15 taking into consideration the location and circumstances of each party.
16 The term "shared parenting" will be considered interchangeable with
17 "nearly equal shared parenting". An award of joint physical and legal
18 custody obligates the parties to exchange information concerning the
19 health, education and welfare of the minor child, and unless allocated,
20 apportioned, or decreed, the parents or parties shall confer with one
21 another in the exercise of decision-making rights, responsibilities and
22 authority.
23 1-a. (a) Upon the initial appearance in court in an action for
24 divorce, nullity or separate maintenance where custody, visitation or
25 support of a minor child is at issue, and where both parties agree to
26 shared parenting, the court shall appoint an independent evaluator with
27 expertise in the field, including but not limited to, child psychology,
28 domestic violence counseling, etc., to investigate the family dynamic
29 and interview the parents, children and other interested parties,
30 including but not limited to, family members, friends and co-workers.
31 The independent evaluator's goal is to determine whether shared parent-
32 ing is in the best interests of the child and to ensure that domestic
33 violence and/or any other type of abuse, reported or unreported by the
34 victim or by an appropriate federal, state or municipal agency, is not
35 present in the household setting. The court shall utilize the independ-
36 ent evaluator's analysis and report, along with other supporting docu-
37 ments provided by the parties, to determine the best interests of the
38 child and to award custody based on that determination.
39 (b) The court shall determine each party's ability to pay the cost
40 related to the evaluation. Any cost above and beyond the parents' abili-
41 ty to pay shall be incurred by the county.
42 (c) If either parent has been convicted of abuse, including but not
43 limited to, domestic violence and sexual abuse against either the other
44 parent and/or the child, shared parenting shall not be a custodial
45 option. If either parent accuses the other parent of domestic violence,
46 sexual abuse, etc., against him or herself, and/or the child, the court
47 shall suspend its determination as to whether or not shared parenting is
48 in the best interests of the child, until the accusation has been inves-
49 tigated and a determination has been made by law enforcement or appro-
50 priate federal, state or municipal agencies. If such agencies determine
51 that the abuse occurred, shared parenting shall not be a custodial
52 option. If such agency finds that abuse was not present, the court shall
53 resume its determination as to whether or not shared parenting is in the
54 best interests of the child. Should such allegations be proven false and
55 the court determined upon motion by the accused party that such allega-
56 tions were made maliciously and in bad faith, the court shall have the
A. 6690--A 3
1 authority to sanction the accusing party pursuant to the powers granted
2 to the court pursuant to section two hundred forty of this article.
3 2. For the purposes of this article a "parenting plan" shall be
4 required to be submitted to the court if the court awards shared parent-
5 ing.
6 Each parent must agree to a parenting plan during mediation. The
7 parenting plan would provide for the minor children's physical care,
8 maintain the minor children's emotional stability, and provide for the
9 minor children's changing needs as he or she develops, in a manner which
10 minimizes the need for future modifications to the plan. The parties
11 would be encouraged to fulfill their parenting responsibilities through
12 agreements in the parenting plan rather than by relying on judicial
13 intervention.
14 The plan shall determine procedures for the day to day care of the
15 minor child and procedures for transporting the minor child from one
16 parent to the other parent at the start and conclusion of parenting
17 time. The plan shall include time spent with each parent on a weekly
18 basis, special occasions, including birthdays, religious and secular
19 holidays and vacations. The plan shall also specify how major decisions
20 regarding the minor child's health care, education, and religious
21 upbringing will be made. Those items that remain unresolved will go
22 before the judge for determination. The judge shall rely, in part, on
23 the testimony of the mediation counselor in all unresolved issues.
24 Other issues, including but not limited to property division, financial
25 issues and child support shall not be addressed in this plan.
26 The court shall have final approval over such plan and may modify,
27 suspend or nullify the plan at its discretion. The court shall have one
28 year to review the parenting plan to determine whether such plan is
29 being followed and continues to be in the best interests of the child.
30 At such time, the court shall retain the power to modify, suspend or
31 nullify the plan based on its findings.
32 § 4. The domestic relations law is amended by adding a new section
33 240-e to read as follows:
34 § 240-e. Parties in disagreement over shared parenting. 1. If the
35 parties are seeking a custody arrangement other than shared parenting or
36 where one parent objects to an award of shared parenting, the court must
37 determine what custody arrangement is in the best interests of the
38 child. If one party is seeking shared parenting and the other party is
39 seeking sole custody, both parties shall bear the burden of proof that
40 their requested arrangement is in the best interests of the child
41 through the introduction of testimony and supporting documents, etc. to
42 the court.
43 2. The court shall determine each party's ability to pay the cost
44 related to the evaluation. Any cost above and beyond the parents' abil-
45 ity to pay shall be incurred by the county.
46 3. The court shall appoint an independent evaluator with expertise in,
47 but not limited to, child psychology, domestic violence counseling, etc.
48 to investigate the family dynamic and interview the parents, children
49 and other interested parties, including but not limited to, family
50 members, friends and co-workers. The independent evaluator's goal is to
51 determine what custody arrangement is in the best interests of the child
52 and to ensure that domestic violence and/or any other type of abuse,
53 reported or unreported by the victim or by an appropriate federal, state
54 or municipal agency, is not present in the household setting. The court
55 shall utilize the independent evaluator's analysis and report, along
56 with other supporting documents provided by the parties, to determine
A. 6690--A 4
1 the best interests of the child and to award custody based on that
2 determination. If one party sought shared parenting, and the court found
3 that such an award would not be in the best interests of the child, the
4 court must state its reasoning behind such determination in the order
5 setting out the custody award.
6 4. The court, in its discretion, may require the parent who was not
7 awarded shared parenting to fulfill certain conditions, including but
8 not limited to, parenting classes, general counseling, anger management
9 classes, and substance abuse counseling, and shall list such conditions
10 on the custody order.
11 5. Upon the non-custodial parent's motion, the court shall, one year
12 following the initial award of custody, revisit its findings and make a
13 subsequent determination whether or not shared parenting is in the best
14 interests of the child. Such review is contingent on the non-custodial
15 parent's completion of the conditions set forth in the custody order.
16 § 5. Subdivision (b) of section 70 of the domestic relations law, as
17 added by chapter 457 of the laws of 1988, is amended to read as follows:
18 (b) Any order under this section which applies to rights of [visita-
19 tion] parenting time with a child remanded or placed in the care of a
20 person, official, agency or institution pursuant to article ten of the
21 family court act or pursuant to an instrument approved under section
22 three hundred fifty-eight-a of the social services law, shall be
23 enforceable pursuant to the provisions of part eight of article ten of
24 [such] the family court act, sections three hundred fifty-eight-a and
25 three hundred eighty-four-a of the social services law and other appli-
26 cable provisions of law against any person or official having care and
27 custody, or temporary care and custody, of such child.
28 § 6. Section 71 of the domestic relations law, as added by chapter 318
29 of the laws of 1989, is amended to read as follows:
30 § 71. Special proceeding or habeas corpus to obtain [visitation]
31 parenting time rights in respect to certain infant siblings. Where
32 circumstances show that conditions exist which equity would see fit to
33 intervene, a brother or sister or, if he or she be a minor, a proper
34 person on his or her behalf of a child, whether by half or whole blood,
35 may apply to the supreme court by commencing a special proceeding or for
36 a writ of habeas corpus to have such child brought before such court, or
37 may apply to the family court pursuant to subdivision (b) of section six
38 hundred fifty-one of the family court act; and on the return thereof,
39 the court, by order, after due notice to the parent or any other person
40 or party having the care, custody, and control of such child, to be
41 given in such manner as the court shall prescribe, may make such
42 directions as the best interest of the child may require, for [visita-
43 tion] parenting time rights for such brother or sister in respect to
44 such child.
45 § 7. The section heading and subdivision 1 of section 72 of the domes-
46 tic relations law, as amended by chapter 657 of the laws of 2003, are
47 amended to read as follows:
48 Special proceeding or habeas corpus to obtain [visitation] parenting
49 time rights or custody in respect to certain infant grandchildren. 1.
50 Where either or both of the parents of a minor child, residing within
51 this state, is or are deceased, or where circumstances show that condi-
52 tions exist which equity would see fit to intervene, a grandparent or
53 the grandparents of such child may apply to the supreme court by
54 commencing a special proceeding or for a writ of habeas corpus to have
55 such child brought before such court, or may apply to the family court
56 pursuant to subdivision (b) of section six hundred fifty-one of the
A. 6690--A 5
1 family court act; and on the return thereof, the court, by order, after
2 due notice to the parent or any other person or party having the care,
3 custody, and control of such child, to be given in such manner as the
4 court shall prescribe, may make such directions as the best interest of
5 the child may require, for [visitation] parenting time rights for such
6 grandparent or grandparents in respect to such child.
7 § 8. Subdivision 1 of section 235 of the domestic relations law, as
8 amended by chapter 122 of the laws of 1979, is amended to read as
9 follows:
10 1. An officer of the court with whom the proceedings in a matrimonial
11 action or a written agreement of separation or an action or proceeding
12 for custody, [visitation] parenting time or maintenance of a child are
13 filed, or before whom the testimony is taken, or his clerk, either
14 before or after the termination of the suit, shall not permit a copy of
15 any of the pleadings, affidavits, findings of fact, conclusions of law,
16 judgment of dissolution, written agreement of separation or memorandum
17 thereof, or testimony, or any examination or perusal thereof, to be
18 taken by any other person than a party, or the attorney or counsel of a
19 party, except by order of the court.
20 § 9. Subdivision (b) of section 237 of the domestic relations law, as
21 amended by chapter 329 of the laws of 2010, is amended to read as
22 follows:
23 (b) Upon any application to enforce, annul or modify an order or judg-
24 ment for alimony, maintenance, distributive award, distribution of mari-
25 tal property or for custody, [visitation] parenting time, or maintenance
26 of a child, made as in section two hundred thirty-six or section two
27 hundred forty of this article provided, or upon any application by writ
28 of habeas corpus or by petition and order to show cause concerning
29 custody, [visitation] parenting time or maintenance of a child, the
30 court may direct a spouse or parent to pay counsel fees and fees and
31 expenses of experts directly to the attorney of the other spouse or
32 parent to enable the other party to carry on or defend the application
33 or proceeding by the other spouse or parent as, in the court's
34 discretion, justice requires, having regard to the circumstances of the
35 case and of the respective parties. There shall be a rebuttable presump-
36 tion that counsel fees shall be awarded to the less monied spouse. In
37 exercising the court's discretion, the court shall seek to assure that
38 each party shall be adequately represented and that where fees and
39 expenses are to be awarded, they shall be awarded on a timely basis,
40 pendente lite, so as to enable adequate representation from the
41 commencement of the proceeding. Applications for the award of fees and
42 expenses may be made at any time or times prior to final judgment. Both
43 parties to the action or proceeding and their respective attorneys,
44 shall file an affidavit with the court detailing the financial agree-
45 ment, between the party and the attorney. Such affidavit shall include
46 the amount of any retainer, the amounts paid and still owing thereunder,
47 the hourly amount charged by the attorney, the amounts paid, or to be
48 paid, any experts, and any additional costs, disbursements or expenses.
49 Any applications for fees and expenses may be maintained by the attorney
50 for either spouse in counsel's own name in the same proceeding. Payment
51 of any retainer fees to the attorney for the petitioning party shall not
52 preclude any awards of fees and expenses to an applicant which would
53 otherwise be allowed under this section.
54 § 10. Subdivisions 1 and 1-a of section 240 of the domestic relations
55 law, subdivision 1 as amended by chapter 624 of the laws of 2002, para-
56 graph (a) of subdivision 1 as amended by chapter 476 of the laws of
A. 6690--A 6
1 2009, paragraph (a-1) of subdivision 1 as amended by chapter 295 of the
2 laws of 2009, paragraph (a-2) of subdivision 1 as added by chapter 473
3 of the laws of 2009, subparagraph 3 of paragraph (b) and paragraph (d)
4 of subdivision 1 as added and clause (iii) of subparagraph 2 of para-
5 graph (c) of subdivision 1 as amended by chapter 215 of the laws of
6 2009, and subdivision 1-a as amended by chapter 12 of the laws of 1996,
7 are amended to read as follows:
8 1. (a) In any action or proceeding brought (1) to annul a marriage or
9 to declare the nullity of a void marriage, or (2) for a separation, or
10 (3) for a divorce, or (4) to obtain, by a writ of habeas corpus or by
11 petition and order to show cause, the custody of or right to [visita-
12 tion] parenting time with any child of a marriage, the court shall
13 require verification of the status of any child of the marriage with
14 respect to such child's custody and support, including any prior orders,
15 and shall enter orders for custody and support as, in the court's
16 discretion, justice requires, having regard to the circumstances of the
17 case and of the respective parties and to the best interests of the
18 child and subject to the provisions of subdivision one-c of this
19 section. Where either party to an action concerning custody of or a
20 right to [visitation] parenting time with a child alleges in a sworn
21 petition or complaint or sworn answer, cross-petition, counterclaim or
22 other sworn responsive pleading that the other party has committed an
23 act of domestic violence against the party making the allegation or a
24 family or household member of either party, as such family or household
25 member is defined in article eight of the family court act, and such
26 allegations are proven by a preponderance of the evidence, the court
27 must consider the effect of such domestic violence upon the best inter-
28 ests of the child, together with such other facts and circumstances as
29 the court deems relevant in making a direction pursuant to this section
30 and state on the record how such findings, facts and circumstances
31 factored into the direction. However, should such allegations be proven
32 false, the court shall have within its power the authority to sanction
33 the accusing party. The subject of an unfounded report of domestic abuse
34 who believes the report was made maliciously and in bad faith may pres-
35 ent a written request to the court for a determination that the reporter
36 acted maliciously or in bad faith and must be sanctioned. If a parent
37 makes a good faith allegation based on a reasonable belief supported by
38 facts that the child is the victim of child abuse, child neglect, or the
39 effects of domestic violence, and if that parent acts lawfully and in
40 good faith in response to that reasonable belief to protect the child or
41 seek treatment for the child, then that parent shall not be deprived of
42 custody, [visitation] parenting time or contact with the child, or
43 restricted in custody, [visitation] parenting time or contact, based
44 solely on that belief or the reasonable actions taken based on that
45 belief. If an allegation that a child is abused is supported by a
46 preponderance of the evidence, then the court shall consider such
47 evidence of abuse in determining the [visitation] parenting time
48 arrangement that is in the best interest of the child, and the court
49 shall not place a child in the custody of a parent who presents a
50 substantial risk of harm to that child, and shall state on the record
51 how such findings were factored into the determination. An order direct-
52 ing the payment of child support shall contain the social security
53 numbers of the named parties. [In all cases there shall be no prima
54 facie right to the custody of the child in either parent. Such direc-
55 tion] Before the court makes any order awarding custody to a person or
56 persons other than a parent without consent of the parents, it shall
A. 6690--A 7
1 make a finding that an award of custody to a parent would be detrimental
2 to the child and the award to the nonparent is required to serve the
3 best interests of the child. Allegations that parental custody would be
4 detrimental to the child, other than a statement of the ultimate fact,
5 shall not appear in the pleadings. The court may, in its discretion,
6 exclude the public for the hearing on this issue. The court shall state
7 in writing the reasons for its decision and why the award made was found
8 to be in the best interest of the child. Any direction made pursuant to
9 this subdivision shall make provision for child support out of the prop-
10 erty of [either or] both parents. The court shall make its award for
11 child support pursuant to subdivision one-b of this section. Such direc-
12 tion may provide for reasonable [visitation] parenting time rights to
13 the maternal and/or paternal grandparents of any child of the parties.
14 Such direction as it applies to rights of [visitation] parenting time
15 with a child remanded or placed in the care of a person, official, agen-
16 cy or institution pursuant to article ten of the family court act, or
17 pursuant to an instrument approved under section three hundred fifty-
18 eight-a of the social services law, shall be enforceable pursuant to
19 part eight of article ten of the family court act and sections three
20 hundred fifty-eight-a and three hundred eighty-four-a of the social
21 services law and other applicable provisions of law against any person
22 having care and custody, or temporary care and custody, of the child.
23 Notwithstanding any other provision of law, any written application or
24 motion to the court for the establishment, modification or enforcement
25 of a child support obligation for persons not in receipt of public
26 assistance and care must contain either a request for child support
27 enforcement services which would authorize the collection of the support
28 obligation by the immediate issuance of an income execution for support
29 enforcement as provided for by this chapter, completed in the manner
30 specified in section one hundred eleven-g of the social services law; or
31 a statement that the applicant has applied for or is in receipt of such
32 services; or a statement that the applicant knows of the availability of
33 such services, has declined them at this time and where support enforce-
34 ment services pursuant to section one hundred eleven-g of the social
35 services law have been declined that the applicant understands that an
36 income deduction order may be issued pursuant to subdivision (c) of
37 section fifty-two hundred forty-two of the civil practice law and rules
38 without other child support enforcement services and that payment of an
39 administrative fee may be required. The court shall provide a copy of
40 any such request for child support enforcement services to the support
41 collection unit of the appropriate social services district any time it
42 directs payments to be made to such support collection unit. Addi-
43 tionally, the copy of any such request shall be accompanied by the name,
44 address and social security number of the parties; the date and place of
45 the parties' marriage; the name and date of birth of the child or chil-
46 dren; and the name and address of the employers and income payors of the
47 party from whom child support is sought or from the party ordered to pay
48 child support to the other party. Such direction may require the payment
49 of a sum or sums of money either directly to the custodial parent or to
50 third persons for goods or services furnished for such child, or for
51 both payments to the custodial parent and to such third persons;
52 provided, however, that unless the party seeking or receiving child
53 support has applied for or is receiving such services, the court shall
54 not direct such payments to be made to the support collection unit, as
55 established in section one hundred eleven-h of the social services law.
56 Every order directing the payment of support shall require that if
A. 6690--A 8
1 either parent currently, or at any time in the future, has health insur-
2 ance benefits available that may be extended or obtained to cover the
3 child, such parent is required to exercise the option of additional
4 coverage in favor of such child and execute and deliver to such person
5 any forms, notices, documents or instruments necessary to assure timely
6 payment of any health insurance claims for such child.
7 (a-1)(1) Permanent and initial temporary orders of custody or [visita-
8 tion] parenting time. Prior to the issuance of any permanent or initial
9 temporary order of custody or [visitation] parenting time, the court
10 shall conduct a review of the decisions and reports listed in subpara-
11 graph three of this paragraph.
12 (2) Successive temporary orders of custody or [visitation] parenting
13 time. Prior to the issuance of any successive temporary order of custody
14 or [visitation] parenting time, the court shall conduct a review of the
15 decisions and reports listed in subparagraph three of this paragraph,
16 unless such a review has been conducted within ninety days prior to the
17 issuance of such order.
18 (3) Decisions and reports for review. The court shall conduct a review
19 of the following:
20 (i) related decisions in court proceedings initiated pursuant to arti-
21 cle ten of the family court act, and all warrants issued under the fami-
22 ly court act; and
23 (ii) reports of the statewide computerized registry of orders of
24 protection established and maintained pursuant to section two hundred
25 twenty-one-a of the executive law, and reports of the sex offender
26 registry established and maintained pursuant to section one hundred
27 sixty-eight-b of the correction law.
28 (4) Notifying counsel and issuing orders. Upon consideration of deci-
29 sions pursuant to article ten of the family court act, and registry
30 reports and notifying counsel involved in the proceeding, or in the
31 event of a self-represented party, notifying such party of the results
32 thereof, including any court appointed attorney for children, the court
33 may issue a temporary, successive temporary or final order of custody or
34 [visitation] parenting time.
35 (5) Temporary emergency order. Notwithstanding any other provision of
36 the law, upon emergency situations, including computer malfunctions, to
37 serve the best interest of the child, the court may issue a temporary
38 emergency order for custody or [visitation] parenting time in the event
39 that it is not possible to timely review decisions and reports on regis-
40 tries as required pursuant to subparagraph three of this paragraph.
41 (6) After issuing a temporary emergency order. After issuing a tempo-
42 rary emergency order of custody or [visitation] parenting time, the
43 court shall conduct reviews of the decisions and reports on registries
44 as required pursuant to subparagraph three of this paragraph within
45 twenty-four hours of the issuance of such temporary emergency order.
46 Should such twenty-four hour period fall on a day when court is not in
47 session, then the required reviews shall take place the next day the
48 court is in session. Upon reviewing decisions and reports the court
49 shall notify associated counsel, self-represented parties and attorneys
50 for children pursuant to subparagraph four of this paragraph and may
51 issue temporary or permanent custody or [visitation] parenting time
52 orders.
53 (7) Feasibility study. The commissioner of the office of children and
54 family services, in conjunction with the office of court administration,
55 is hereby authorized and directed to examine, study, evaluate and make
56 recommendations concerning the feasibility of the utilization of comput-
A. 6690--A 9
1 ers in courts which are connected to the statewide central register of
2 child abuse and maltreatment established and maintained pursuant to
3 section four hundred twenty-two of the social services law, as a means
4 of providing courts with information regarding parties requesting orders
5 of custody or [visitation] parenting time. Such commissioner shall make
6 a preliminary report to the governor and the legislature of findings,
7 conclusions and recommendations not later than January first, two thou-
8 sand nine, and a final report of findings, conclusions and recommenda-
9 tions not later than June first, two thousand nine, and shall submit
10 with the reports such legislative proposals as are deemed necessary to
11 implement the commissioner's recommendations.
12 (a-2) Military service by parent; effect on child custody orders. (1)
13 During the period of time that a parent is activated, deployed or tempo-
14 rarily assigned to military service, such that the parent's ability to
15 continue as a joint caretaker or the primary caretaker of a minor child
16 is materially affected by such military service, any orders issued
17 pursuant to this section, based on the fact that the parent is acti-
18 vated, deployed or temporarily assigned to military service, which would
19 materially affect or change a previous judgment or order regarding
20 custody of that parent's child or children as such judgment or order
21 existed on the date the parent was activated, deployed, or temporarily
22 assigned to military service, shall be subject to review pursuant to
23 subparagraph three of this paragraph. Any relevant provisions of the
24 Service Member's Civil Relief Act shall apply to all proceedings
25 governed by this section.
26 (2) During such period, the court may enter an order to modify custody
27 if there is clear and convincing evidence that the modification is in
28 the best interests of the child. An attorney for the child shall be
29 appointed in all cases where a modification is sought during such mili-
30 tary service. Such order shall be subject to review pursuant to subpara-
31 graph three of this paragraph. When entering an order pursuant to this
32 section, the court shall consider and provide for, if feasible and if in
33 the best interests of the child, contact between the military service
34 member and his or her child, including, but not limited to, electronic
35 communication by e-mail, webcam, telephone, or other available means.
36 During the period of the parent's leave from military service, the court
37 shall consider the best interests of the child when establishing a
38 parenting schedule, including [visiting] parenting time and other
39 contact. For such purposes, a "leave from military service" shall be a
40 period of not more than three months.
41 (3) Unless the parties have otherwise stipulated or agreed, if an
42 order is issued pursuant to this paragraph, the return of the parent
43 from active military service, deployment or temporary assignment shall
44 be considered a substantial change in circumstances. Upon the request of
45 either parent, the court shall determine on the basis of the child's
46 best interests whether the custody judgment or order previously in
47 effect should be modified.
48 (4) This paragraph shall not apply to assignments to permanent duty
49 stations or permanent changes of station.
50 (b) As used in this section, the following terms shall have the
51 following meanings:
52 (1) "Health insurance benefits" means any medical, dental, optical and
53 prescription drugs and health care services or other health care bene-
54 fits that may be provided for a dependent through an employer or organ-
55 ization, including such employers or organizations which are self
A. 6690--A 10
1 insured, or through other available health insurance or health care
2 coverage plans.
3 (2) "Available health insurance benefits" means any health insurance
4 benefits that are reasonable in cost and that are reasonably accessible
5 to the person on whose behalf the petition is brought. Health insurance
6 benefits that are not reasonable in cost or whose services are not
7 reasonably accessible to such person, shall be considered unavailable.
8 (3) When the person on whose behalf the petition is brought is a child
9 in accordance with paragraph (c) of this subdivision, health insurance
10 benefits shall be considered "reasonable in cost" if the cost of health
11 insurance benefits does not exceed five percent of the combined parental
12 gross income. The cost of health insurance benefits shall refer to the
13 cost of the premium and deductible attributable to adding the child or
14 children to existing coverage or the difference between such costs for
15 self-only and family coverage. Provided, however, the presumption that
16 the health insurance benefits are reasonable in cost may be rebutted
17 upon a finding that the cost is unjust or inappropriate which finding
18 shall be based on the circumstances of the case, the cost and comprehen-
19 siveness of the health insurance benefits for which the child or chil-
20 dren may otherwise be eligible, and the best interests of the child or
21 children. In no instance shall health insurance benefits be considered
22 "reasonable in cost" if a parent's share of the cost of extending such
23 coverage would reduce the income of that parent below the self-support
24 reserve. Health insurance benefits are "reasonably accessible" if the
25 child lives within the geographic area covered by the plan or lives
26 within thirty minutes or thirty miles of travel time from the child's
27 residence to the services covered by the health insurance benefits or
28 through benefits provided under a reciprocal agreement; provided, howev-
29 er, this presumption may be rebutted for good cause shown including, but
30 not limited to, the special health needs of the child. The court shall
31 set forth such finding and the reasons therefor in the order of support.
32 (c) When the person on whose behalf the petition is brought is a
33 child, the court shall consider the availability of health insurance
34 benefits to all parties and shall take the following action to ensure
35 that health insurance benefits are provided for the benefit of the
36 child:
37 (1) Where the child is presently covered by health insurance benefits,
38 the court shall direct in the order of support that such coverage be
39 maintained, unless either parent requests the court to make a direction
40 for health insurance benefits coverage pursuant to paragraph two of this
41 subdivision.
42 (2) Where the child is not presently covered by health insurance bene-
43 fits, the court shall make a determination as follows:
44 (i) If only one parent has available health insurance benefits, the
45 court shall direct in the order of support that such parent provide
46 health insurance benefits.
47 (ii) If both parents have available health insurance benefits the
48 court shall direct in the order of support that either parent or both
49 parents provide such health insurance. The court shall make such deter-
50 mination based on the circumstances of the case, including, but not
51 limited to, the cost and comprehensiveness of the respective health
52 insurance benefits and the best interests of the child.
53 (iii) If neither parent has available health insurance benefits, the
54 court shall direct in the order of support that the custodial parent
55 apply for the state's child health insurance plan pursuant to title
56 one-A of article twenty-five of the public health law and the medical
A. 6690--A 11
1 assistance program established pursuant to title eleven of article five
2 of the social services law. A direction issued under this subdivision
3 shall not limit or alter either parent's obligation to obtain health
4 insurance benefits at such time as they become available, as required
5 pursuant to paragraph (a) of this subdivision. Nothing in this subdivi-
6 sion shall alter or limit the authority of the medical assistance
7 program to determine when it is considered cost effective to require a
8 custodial parent to enroll a child in an available group health insur-
9 ance plan pursuant to paragraphs (b) and (c) of subdivision one of
10 section three hundred sixty-seven-a of the social services law.
11 (d) The cost of providing health insurance benefits or benefits under
12 the state's child health insurance plan or the medical assistance
13 program, pursuant to paragraph (c) of this subdivision, shall be deemed
14 cash medical support, and the court shall determine the obligation of
15 either or both parents to contribute to the cost thereof pursuant to
16 subparagraph five of paragraph (c) of subdivision one-b of this section.
17 (e) The court shall provide in the order of support that the legally
18 responsible relative immediately notify the other party, or the other
19 party and the support collection unit when the order is issued on behalf
20 of a child in receipt of public assistance and care or in receipt of
21 services pursuant to section one hundred eleven-g of the social services
22 law, of any change in health insurance benefits, including any termi-
23 nation of benefits, change in the health insurance benefit carrier,
24 premium, or extent and availability of existing or new benefits.
25 (f) Where the court determines that health insurance benefits are
26 available, the court shall provide in the order of support that the
27 legally responsible relative immediately enroll the eligible dependents
28 named in the order who are otherwise eligible for such benefits without
29 regard to any seasonal enrollment restrictions. Such order shall further
30 direct the legally responsible relative to maintain such benefits as
31 long as they remain available to such relative. Such order shall further
32 direct the legally responsible relative to assign all insurance
33 reimbursement payments for health care expenses incurred for his or her
34 eligible dependents to the provider of such services or the party actu-
35 ally having incurred and satisfied such expenses, as appropriate.
36 (g) When the court issues an order of child support or combined child
37 and spousal support on behalf of persons in receipt of public assistance
38 and care or in receipt of services pursuant to section one hundred
39 eleven-g of the social services law, such order shall further direct
40 that the provision of health care benefits shall be immediately enforced
41 pursuant to section fifty-two hundred forty-one of the civil practice
42 law and rules.
43 (h) When the court issues an order of child support or combined child
44 and spousal support on behalf of persons other than those in receipt of
45 public assistance and care or in receipt of services pursuant to section
46 one hundred eleven-g of the social services law, the court shall also
47 issue a separate order which shall include the necessary direction to
48 ensure the order's characterization as a qualified medical child support
49 order as defined by section six hundred nine of the employee retirement
50 income security act of 1974 (29 USC 1169). Such order shall: (i) clearly
51 state that it creates or recognizes the existence of the right of the
52 named dependent to be enrolled and to receive benefits for which the
53 legally responsible relative is eligible under the available group
54 health plans, and shall clearly specify the name, social security number
55 and mailing address of the legally responsible relative, and of each
56 dependent to be covered by the order; (ii) provide a clear description
A. 6690--A 12
1 of the type of coverage to be provided by the group health plan to each
2 such dependent or the manner in which the type of coverage is to be
3 determined; and (iii) specify the period of time to which the order
4 applies. The court shall not require the group health plan to provide
5 any type or form of benefit or option not otherwise provided under the
6 group health plan except to the extent necessary to meet the require-
7 ments of a law relating to medical child support described in section
8 one thousand three hundred and [ninety-six g] ninety-six-g of title
9 forty-two of the United States code.
10 (i) Upon a finding that a legally responsible relative wilfully failed
11 to obtain health insurance benefits in violation of a court order, such
12 relative will be presumptively liable for all health care expenses
13 incurred on behalf of such dependents from the first date such depen-
14 dents were eligible to be enrolled to receive health insurance benefits
15 after the issuance of the order of support directing the acquisition of
16 such coverage.
17 (j) The order shall be effective as of the date of the application
18 therefor, and any retroactive amount of child support due shall be
19 support arrears/past due support and shall, except as provided for here-
20 in, be paid in one lump sum or periodic sums, as the court shall direct,
21 taking into account any amount of temporary support which has been paid.
22 In addition, such retroactive child support shall be enforceable in any
23 manner provided by law including, but not limited to, an execution for
24 support enforcement pursuant to subdivision (b) of section fifty-two
25 hundred forty-one of the civil practice law and rules. When a child
26 receiving support is a public assistance recipient, or the order of
27 support is being enforced or is to be enforced pursuant to section one
28 hundred eleven-g of the social services law, the court shall establish
29 the amount of retroactive child support and notify the parties that such
30 amount shall be enforced by the support collection unit pursuant to an
31 execution for support enforcement as provided for in subdivision (b) of
32 section fifty-two hundred forty-one of the civil practice law and rules,
33 or in such periodic payments as would have been authorized had such an
34 execution been issued. In such case, the courts shall not direct the
35 schedule of repayment of retroactive support. Where such direction is
36 for child support and paternity has been established by a voluntary
37 acknowledgement of paternity as defined in section forty-one hundred
38 thirty-five-b of the public health law, the court shall inquire of the
39 parties whether the acknowledgement has been duly filed, and unless
40 satisfied that it has been so filed shall require the clerk of the court
41 to file such acknowledgement with the appropriate registrar within five
42 business days. Such direction may be made in the final judgment in such
43 action or proceeding, or by one or more orders from time to time before
44 or subsequent to final judgment, or by both such order or orders and the
45 final judgment. Such direction may be made notwithstanding that the
46 court for any reason whatsoever, other than lack of jurisdiction,
47 refuses to grant the relief requested in the action or proceeding. Any
48 order or judgment made as in this section provided may combine in one
49 lump sum any amount payable to the custodial parent under this section
50 with any amount payable to such parent under section two hundred thir-
51 ty-six of this article. Upon the application of either parent, or of any
52 other person or party having the care, custody and control of such child
53 pursuant to such judgment or order, after such notice to the other
54 party, parties or persons having such care, custody and control and
55 given in such manner as the court shall direct, the court may annul or
56 modify any such direction, whether made by order or final judgment, or
A. 6690--A 13
1 in case no such direction shall have been made in the final judgment
2 may, with respect to any judgment of annulment or declaring the nullity
3 of a void marriage rendered on or after September first, nineteen
4 hundred forty, or any judgment of separation or divorce whenever
5 rendered, amend the judgment by inserting such direction. Subject to
6 the provisions of section two hundred forty-four of this article, no
7 such modification or annulment shall reduce or annul arrears accrued
8 prior to the making of such application unless the defaulting party
9 shows good cause for failure to make application for relief from the
10 judgment or order directing such payment prior to the accrual of such
11 arrears. Such modification may increase such child support nunc pro tunc
12 as of the date of application based on newly discovered evidence. Any
13 retroactive amount of child support due shall be support arrears/past
14 due support and shall be paid in one lump sum or periodic sums, as the
15 court shall direct, taking into account any amount of temporary child
16 support which has been paid. In addition, such retroactive child support
17 shall be enforceable in any manner provided by law including, but not
18 limited to, an execution for support enforcement pursuant to subdivision
19 (b) of section fifty-two hundred forty-one of the civil practice law and
20 rules.
21 1-a. In any proceeding brought pursuant to this section to determine
22 the custody or [visitation] parenting time of minors, a report made to
23 the statewide central register of child abuse and maltreatment, pursuant
24 to title six of article six of the social services law, or a portion
25 thereof, which is otherwise admissible as a business record pursuant to
26 rule forty-five hundred eighteen of the civil practice law and rules
27 shall not be admissible in evidence, notwithstanding such rule, unless
28 an investigation of such report conducted pursuant to title six of arti-
29 cle six of the social services law has determined that there is some
30 credible evidence of the alleged abuse or maltreatment and that the
31 subject of the report has been notified that the report is indicated. In
32 addition, if such report has been reviewed by the state commissioner of
33 [social services] children and family services or his or her designee
34 and has been determined to be unfounded, it shall not be admissible in
35 evidence. If such report has been so reviewed and has been amended to
36 delete any finding, each such deleted finding shall not be admissible.
37 If the state commissioner of [social services] children and family
38 services or his or her designee has amended the report to add any new
39 finding, each such new finding, together with any portion of the
40 original report not deleted by the commissioner or his designee, shall
41 be admissible if it meets the other requirements of this subdivision and
42 is otherwise admissible as a business record. If such a report, or
43 portion thereof, is admissible in evidence but is uncorroborated, it
44 shall not be sufficient to make a fact finding of abuse or maltreatment
45 in such proceeding. Any other evidence tending to support the reliabil-
46 ity of such report shall be sufficient corroboration.
47 § 11. Paragraph c of subdivision 3 of section 240 of the domestic
48 relations law, as amended by chapter 597 of the laws of 1998, is amended
49 to read as follows:
50 c. An order of protection entered pursuant to this subdivision may be
51 made in the final judgment in any matrimonial action or in a proceeding
52 to obtain custody of or [visitation] parenting time with any child under
53 this section, or by one or more orders from time to time before or
54 subsequent to final judgment, or by both such order or orders and the
55 final judgment. The order of protection may remain in effect after entry
56 of a final matrimonial judgment and during the minority of any child
A. 6690--A 14
1 whose custody or [visitation] parenting time is the subject of a
2 provision of a final judgment or any order. An order of protection may
3 be entered notwithstanding that the court for any reason whatsoever,
4 other than lack of jurisdiction, refuses to grant the relief requested
5 in the action or proceeding.
6 § 12. Section 241 of the domestic relations law, as amended by chapter
7 892 of the laws of 1986, is amended to read as follows:
8 § 241. Interference with or withholding of [visitation] parenting time
9 rights; alimony or maintenance suspension. When it appears to the satis-
10 faction of the court that a custodial parent receiving alimony or main-
11 tenance pursuant to an order, judgment or decree of a court of competent
12 jurisdiction has wrongfully interfered with or withheld [visitation]
13 parenting time rights provided by such order, judgment or decree, the
14 court, in its discretion, [may] shall suspend such payments or cancel
15 any arrears that may have accrued during the time that [visitation]
16 parenting time rights have been or are being interfered with or with-
17 held. Nothing in this section shall constitute a defense in any court to
18 an application to enforce payment of child support or grounds for the
19 cancellation of arrears for child support.
20 § 13. Section 251 of the domestic relations law, as added by chapter
21 164 of the laws of 1973, is amended to read as follows:
22 § 251. Filing of order in family court. When, in a matrimonial action,
23 the supreme court refers the issues of support, custody or [visitation]
24 parenting time to the family court, the order or judgment shall provide
25 that a copy thereof shall be filed by the plaintiff's attorney, within
26 ten days, with the clerk of the family court therein specified.
27 § 14. Paragraph (b) of subdivision 1 of section 252 of the domestic
28 relations law, as added by chapter 349 of the laws of 1995, is amended
29 to read as follows:
30 (b) to permit a parent, or a person entitled to [visitation] parenting
31 time by a court order or a separation agreement, to visit the child at
32 stated periods;
33 § 15. Subdivision 3 of section 252 of the domestic relations law, as
34 added by chapter 349 of the laws of 1995, is amended to read as follows:
35 3. An order of protection entered pursuant to this subdivision may be
36 made in the final judgment in any matrimonial action, or by one or more
37 orders from time to time before or subsequent to final judgment, or by
38 both such order or orders and the final judgment. The order of
39 protection may remain in effect after entry of a final matrimonial judg-
40 ment and during the minority of any child whose custody or [visitation]
41 parenting time is the subject of a provision of a final judgment or any
42 order. An order of protection may be entered notwithstanding that the
43 court for any reason whatsoever, other than lack of jurisdiction,
44 refuses to grant the relief requested in the action or proceeding.
45 § 16. Subdivision 10 of section 358-a of the social services law, as
46 added by chapter 457 of the laws of 1988, paragraphs (b) and (c) as
47 amended by chapter 41 of the laws of 2010, is amended to read as
48 follows:
49 (10) [Visitation] Parenting time rights; non-custodial parents and
50 grandparents. (a) Where a social services official incorporates in an
51 instrument [visitation] parenting time rights set forth in an order,
52 judgment or agreement as described in paragraph (d) of subdivision two
53 of section three hundred eighty-four-a of this chapter, such official
54 shall make inquiry of the state central register of child abuse and
55 maltreatment to determine whether or not the person having such [visita-
56 tion] parenting time rights is a subject or another person named in an
A. 6690--A 15
1 indicated report of child abuse or maltreatment, as such terms are
2 defined in section four hundred twelve of this chapter, and shall
3 further ascertain, to the extent practicable, whether or not such person
4 is a respondent in a proceeding under article ten of the family court
5 act whereby the respondent has been alleged or adjudicated to have
6 abused or neglected such child.
7 (b) Where a social services official or the attorney for the child
8 opposes incorporation of an order, judgment or agreement conferring
9 [visitation rights] parenting time as provided for in paragraph (e) of
10 subdivision two of section three hundred eighty-four-a of this chapter,
11 the social services official or attorney for the child shall apply for
12 an order determining that the provisions of such order, judgment or
13 agreement should not be incorporated into the instrument executed pursu-
14 ant to such section. Such order shall be granted upon a finding, based
15 on competent, relevant and material evidence, that the child's life or
16 health would be endangered by incorporation and enforcement of [visita-
17 tion rights] parenting time as described in such order, judgment or
18 agreement. Otherwise, the court shall deny such application.
19 (c) Where [visitation rights] parenting time pursuant to an order,
20 judgment or agreement are incorporated in an instrument, the parties may
21 agree to an alternative schedule of [visitation] parenting time equiv-
22 alent to and consistent with the original or modified [visitation]
23 parenting time order, judgment, or agreement where such alternative
24 schedule reflects changed circumstances of the parties and is consistent
25 with the best interests of the child. In the absence of such an agree-
26 ment between the parties, the court may, in its discretion, upon appli-
27 cation of any party or the child's attorney, order an alternative sched-
28 ule of [visitation] parenting time, as described herein, where it
29 determines that such schedule is necessary to facilitate visitation and
30 to protect the best interests of the child.
31 (d) The order providing an alternative schedule of [visitation]
32 parenting time shall remain in effect for the length of the placement of
33 the child as provided for in such instrument unless such order is subse-
34 quently modified by the court for good cause shown. Whenever the court
35 makes an order denying or modifying [visitation] parenting time rights
36 pursuant to this subdivision, the instrument described in section three
37 hundred eighty-four-a of this chapter shall be deemed amended according-
38 ly.
39 § 17. Paragraphs (b), (d) and (f) of subdivision 2 of section 384-a of
40 the social services law, paragraph (b) as added by chapter 669 of the
41 laws of 1976, paragraph (d) as added by chapter 457 of the laws of 1988
42 and paragraph (f) as amended by chapter 41 of the laws of 2010, are
43 amended to read as follows:
44 (b) No provisions set forth in any such instrument regarding the right
45 of the parent or guardian to visit the child or to have services
46 provided to the child and to the parent or guardian to strengthen the
47 parental relationship may be terminated or limited by the authorized
48 agency having the care and custody of the child unless: (i) the instru-
49 ment shall have been amended to so limit or terminate such right, pursu-
50 ant to subdivision three of this section; or (ii) the right of [visita-
51 tion] parenting time or to such services would be contrary to or
52 inconsistent with a court order obtained in any proceeding in which the
53 parent or guardian was a party.
54 (d) In any case where a parent who has transferred care and custody of
55 a child to a social services official pursuant to this section informs
56 the social services official that an order or judgment conferring [visi-
A. 6690--A 16
1 tation] parenting time rights relating to the child has been entered by
2 the family court or supreme court or that a written agreement as
3 described in section two hundred thirty-six of the domestic relations
4 law between the parents confers such rights, any instrument executed
5 pursuant to this section shall incorporate the provisions of such order,
6 judgment or agreement to the extent that [visitation] parenting time
7 rights are affected and shall provide for [visitation] parenting time or
8 other rights as required by such order, judgment or agreement. Such
9 incorporation shall not preclude a social services official from exer-
10 cising his authority pursuant to paragraph (e) or (f) of this subdivi-
11 sion.
12 (f) Nothing in this section shall be deemed to prohibit a social
13 services official or an attorney for the child, if any, from making an
14 application to modify the terms of a [visitation] parenting time order,
15 incorporated pursuant to this section, for good cause shown, upon notice
16 to all interested parties, or to limit the right of a non-custodial
17 parent or grandparent to seek [visitation] parenting time pursuant to
18 applicable provisions of law.
19 § 18. Subparagraph (iv) of paragraph (c) of subdivision 2 of section
20 384-a of the social services law, as amended by chapter 256 of the laws
21 of 1990, is amended to read as follows:
22 (iv) that the parent or guardian has a right to supportive services,
23 which shall include preventive and other supportive services authorized
24 to be provided pursuant to the state's consolidated services plan, to
25 visit the child, and to determine jointly with the agency the terms and
26 frequency of [visitation] parenting time;
27 § 19. Subparagraph 5 of paragraph (f) of subdivision 7 of section
28 384-b of the social services law, as amended by chapter 113 of the laws
29 of 2010, is amended to read as follows:
30 (5) making suitable arrangements with a correctional facility and
31 other appropriate persons for an incarcerated parent to visit the child
32 within the correctional facility, if such visiting is in the best inter-
33 ests of the child. When no [visitation] parenting time between child and
34 incarcerated parent has been arranged for or permitted by the authorized
35 agency because such [visitation] parenting time is determined not to be
36 in the best interest of the child, then no permanent neglect proceeding
37 under this subdivision shall be initiated on the basis of the lack of
38 such [visitation] parenting time. Such arrangements shall include, but
39 shall not be limited to, the transportation of the child to the correc-
40 tional facility, and providing or suggesting social or rehabilitative
41 services to resolve or correct the problems other than incarceration
42 itself which impair the incarcerated parent's ability to maintain
43 contact with the child. When the parent is incarcerated in a correction-
44 al facility located outside the state, the provisions of this subpara-
45 graph shall be construed to require that an authorized agency make such
46 arrangements with the correctional facility only if reasonably feasible
47 and permissible in accordance with the laws and regulations applicable
48 to such facility; and
49 § 20. Paragraph (o) of subdivision 6 of section 398 of the social
50 services law, as added by chapter 457 of the laws of 1988, is amended to
51 read as follows:
52 (o) Compliance with a court order enforcing [visitation] parenting
53 time rights of a non-custodial parent or grandparent pursuant to part
54 eight of article ten of the family court act, subdivision ten of section
55 three hundred fifty-eight-a or paragraph (d) of subdivision two of
56 section three hundred eighty-four-a of this chapter, and responsibility
A. 6690--A 17
1 for the return of such child after [visitation] parenting time so
2 ordered.
3 § 21. Subdivision 1 of section 398-d of the social services law, as
4 added by chapter 83 of the laws of 1995, is amended to read as follows:
5 1. The legislature finds that the centralized delivery of child
6 protective services, preventive services, adoption services and foster
7 care services in a social [service] services district with a population
8 of more than two million hinders their effective delivery and adds
9 unnecessary costs. Numerous studies have recommended that such services
10 serve small areas, be located in such areas, and be integrated. Such
11 relocation will: give caseworkers greater knowledge of their assigned
12 community, the residents of that community and the availability of
13 community-based services; increase the availability of caseworkers;
14 reduce travel time for caseworkers; enable children in foster care to
15 remain in their own communities and schools and maintain their friend-
16 ships; enable children in foster care to have greater [visitation]
17 parenting time with their parents; provide for more effective delivery
18 of preventive services; and expedite adoptions and otherwise reduce the
19 amount of time children spend in foster care.
20 The relocation of child welfare service delivery to the community
21 sites will strengthen efforts to provide a wide range of community-based
22 early intervention programs including, but not limited to, school-based
23 health clinics and community schools, thereby ensuring the continued
24 development of a critical mass of community services.
25 § 22. Subparagraph 9 of paragraph (f) of subdivision 1 of section 413
26 of the family court act, as added by chapter 567 of the laws of 1989, is
27 amended to read as follows:
28 (9) Provided that the child is not on public assistance (i) extraor-
29 dinary expenses incurred by the non-custodial parent in exercising
30 [visitation] parenting time, or (ii) expenses incurred by the non-custo-
31 dial parent in extended [visitation] parenting time provided that the
32 custodial parent's expenses are substantially reduced as a result there-
33 of; and
34 § 23. Subdivisions (a) and (c) of section 439 of the family court act,
35 as amended by section 1 of chapter 576 of the laws of 2005, are amended
36 to read as follows:
37 (a) The chief administrator of the courts shall provide, in accordance
38 with subdivision (f) of this section, for the appointment of a suffi-
39 cient number of support magistrates to hear and determine support
40 proceedings. Except as hereinafter provided, support magistrates shall
41 be empowered to hear, determine and grant any relief within the powers
42 of the court in any proceeding under this article, articles five,
43 five-A, and five-B and sections two hundred thirty-four and two hundred
44 thirty-five of this act, and objections raised pursuant to section five
45 thousand two hundred forty-one of the civil practice law and rules.
46 Support magistrates shall not be empowered to hear, determine and grant
47 any relief with respect to issues specified in subdivision five of
48 section four hundred fifty-four or section four hundred fifty-five of
49 this [act] article, issues of contested paternity involving claims of
50 equitable estoppel, custody, [visitation] parenting time including
51 [visitation] parenting time as a defense, and orders of protection or
52 exclusive possession of the home, which shall be referred to a judge as
53 provided in subdivision (b) or (c) of this section. Where an order of
54 filiation is issued by a judge in a paternity proceeding and child
55 support is in issue, the judge, or support magistrate upon referral from
56 the judge, shall be authorized to immediately make a temporary or final
A. 6690--A 18
1 order of support, as applicable. A support magistrate shall have the
2 authority to hear and decide motions and issue summonses and subpoenas
3 to produce persons pursuant to section one hundred fifty-three of this
4 act, hear and decide proceedings and issue any order authorized by
5 subdivision (g) of section five thousand two hundred forty-one of the
6 civil practice law and rules, issue subpoenas to produce prisoners
7 pursuant to section two thousand three hundred two of the civil practice
8 law and rules and make a determination that any person before the
9 support magistrate is in violation of an order of the court as author-
10 ized by section one hundred fifty-six of this act subject to confirma-
11 tion by a judge of the court who shall impose any punishment for such
12 violation as provided by law. A determination by a support magistrate
13 that a person is in willful violation of an order under subdivision
14 three of section four hundred fifty-four of this article and that recom-
15 mends commitment shall be transmitted to the parties, accompanied by
16 findings of fact, but the determination shall have no force and effect
17 until confirmed by a judge of the court.
18 (c) The support magistrate, in any proceeding in which issues speci-
19 fied in section four hundred fifty-five of this [act] article, or issues
20 of custody, [visitation] parenting time, including [visitation] parent-
21 ing time as a defense, orders of protection or exclusive possession of
22 the home are present or in which paternity is contested on the grounds
23 of equitable estoppel, shall make a temporary order of support and refer
24 the proceeding to a judge. Upon determination of such issue by a judge,
25 the judge may make a final determination of the issue of support, or
26 immediately refer the proceeding to a support magistrate for further
27 proceedings regarding child support or other matters within the authori-
28 ty of the support magistrate.
29 § 24. Subdivision (a) of section 439 of the family court act, as
30 amended by section 2 of chapter 576 of the laws of 2005, is amended to
31 read as follows:
32 (a) The chief administrator of the courts shall provide, in accordance
33 with subdivision (f) of this section, for the appointment of a suffi-
34 cient number of support magistrates to hear and determine support
35 proceedings. Except as hereinafter provided, support magistrates shall
36 be empowered to hear, determine and grant any relief within the powers
37 of the court in any proceeding under this article, articles five,
38 five-A, and five-B and sections two hundred thirty-four and two hundred
39 thirty-five of this act, and objections raised pursuant to section five
40 thousand two hundred forty-one of the civil practice law and rules.
41 Support magistrates shall not be empowered to hear, determine and grant
42 any relief with respect to issues specified in section four hundred
43 fifty-five of this [act] article, issues of contested paternity involv-
44 ing claims of equitable estoppel, custody, [visitation] parenting time
45 including [visitation] parenting time as a defense, and orders of
46 protection or exclusive possession of the home, which shall be referred
47 to a judge as provided in subdivision (b) or (c) of this section. Where
48 an order of filiation is issued by a judge in a paternity proceeding and
49 child support is in issue, the judge, or support magistrate upon refer-
50 ral from the judge, shall be authorized to immediately make a temporary
51 or final order of support, as applicable. A support magistrate shall
52 have the authority to hear and decide motions and issue summonses and
53 subpoenas to produce persons pursuant to section one hundred fifty-three
54 of this act, hear and decide proceedings and issue any order authorized
55 by subdivision (g) of section five thousand two hundred forty-one of the
56 civil practice law and rules, issue subpoenas to produce prisoners
A. 6690--A 19
1 pursuant to section two thousand three hundred two of the civil practice
2 law and rules and make a determination that any person before the
3 support magistrate is in violation of an order of the court as author-
4 ized by section one hundred fifty-six of this act subject to confirma-
5 tion by a judge of the court who shall impose any punishment for such
6 violation as provided by law. A determination by a support magistrate
7 that a person is in willful violation of an order under subdivision
8 three of section four hundred fifty-four of this article and that recom-
9 mends commitment shall be transmitted to the parties, accompanied by
10 findings of fact, but the determination shall have no force and effect
11 until confirmed by a judge of the court.
12 § 25. Subdivision (b) of section 446 of the family court act, as
13 amended by chapter 483 of the laws of 1995, is amended to read as
14 follows:
15 (b) to permit a parent, or a person entitled to [visitation] parenting
16 time by a court order or a separation agreement, to visit the child at
17 stated periods;
18 § 26. Section 447 of the family court act, subdivision (a) as amended
19 by chapter 85 of the laws of 1996, is amended to read as follows:
20 § 447. Order of [visitation] parenting time. (a) In the absence of an
21 order of custody or of [visitation] parenting time entered by the
22 supreme court, the court may make an order of custody or of [visitation]
23 parenting time, in accordance with subdivision one of section two
24 hundred forty of the domestic relations law, requiring one parent to
25 permit the other to visit the children at stated periods without an
26 order of protection, even where the parents are divorced and the support
27 order is for a child only.
28 (b) Any order of the family court under this section shall terminate
29 when the supreme court makes an order of custody or of [visitation]
30 parenting time concerning the children, unless the supreme court contin-
31 ues the order of the family court.
32 § 27. Subdivision (a) of section 456 of the family court act, as
33 amended by chapter 809 of the laws of 1963, is amended to read as
34 follows:
35 (a) No person may be placed on probation under this article unless the
36 court makes an order to that effect, either at the time of the making of
37 an order of support or under section four hundred fifty-four of this
38 part. The period of probation may continue so long as an order of
39 support, order of protection or order of [visitation] parenting time
40 applies to such person.
41 § 28. Subdivisions (a) and (b) of section 467 of the family court act,
42 subdivision (a) as amended and subdivision (b) as added by chapter 40 of
43 the laws of 1981, are amended to read as follows:
44 (a) In an action for divorce, separation or annulment, the supreme
45 court may refer to the family court the determination of applications to
46 fix temporary or permanent custody or [visitation] parenting time,
47 applications to enforce judgments and orders of custody or [visitation]
48 parenting time, and applications to modify judgments and orders of
49 custody which modification may be granted only upon a showing to the
50 family court that there has been a subsequent change of circumstances,
51 such as loss of employment or change in income, and that modification is
52 required.
53 (b) In the event no such referral has been made and unless the supreme
54 court provides in the order or judgment awarding custody or [visitation]
55 parenting time in an action for divorce, separation or annulment, that
56 it may be enforced or modified only in the supreme court, the family
A. 6690--A 20
1 court may: (i) determine an application to enforce the order or judgment
2 awarding custody or [visitation] parenting time, or (ii) determine an
3 application to modify the order or judgment awarding custody or [visita-
4 tion] parenting time upon a showing that there has been a subsequent
5 change of circumstances and modification is required.
6 § 29. Section 511 of the family court act, as amended by chapter 533
7 of the laws of 1999, is amended to read as follows:
8 § 511. Jurisdiction. Except as otherwise provided, the family court
9 has exclusive original jurisdiction in proceedings to establish paterni-
10 ty and, in any such proceedings in which it makes a finding of paterni-
11 ty, to order support and to make orders of custody or of [visitation]
12 parenting time, as set forth in this article. On its own motion, the
13 court may at any time in the proceedings also direct the filing of a
14 neglect petition in accord with the provisions of article ten of this
15 act. In accordance with the provisions of section one hundred eleven-b
16 of the domestic relations law, the surrogate's court has original juris-
17 diction concurrent with the family court to determine the issues relat-
18 ing to the establishment of paternity.
19 § 30. Section 549 of the family court act, as added by chapter 952 of
20 the laws of 1971, subdivision (a) as amended by chapter 85 of the laws
21 of 1996, is amended to read as follows:
22 § 549. Order of [visitation] parenting time. (a) If an order of fili-
23 ation is made or if a paternity agreement or compromise is approved by
24 the court, in the absence of an order of custody or of [visitation]
25 parenting time entered by the supreme court the family court may make an
26 order of custody or of [visitation] parenting time, in accordance with
27 subdivision one of section two hundred forty of the domestic relations
28 law, requiring one parent to permit the other to visit the child or
29 children at stated periods.
30 (b) Any order of the family court under this section shall terminate
31 when the supreme court makes an order of custody or of [visitation]
32 parenting time concerning the child or children, unless the supreme
33 court continues the order of the family court.
34 § 31. Subdivision (b) of section 551 of the family court act, as
35 amended by chapter 483 of the laws of 1995, is amended to read as
36 follows:
37 (b) to permit a parent, or a person entitled to [visitation] parenting
38 time by a court order or a separation agreement to visit the child at
39 stated periods;
40 § 32. Section 651 of the family court act, as amended by chapter 85 of
41 the laws of 1996, subdivision (b) as amended by chapter 657 of the laws
42 of 2003, subdivision (d) as amended by chapter 41 of the laws of 2010,
43 subdivision (e) as amended by chapter 295 of the laws of 2009, and
44 subdivision (f) as added by chapter 473 of the laws of 2009, is amended
45 to read as follows:
46 § 651. Jurisdiction over habeas corpus proceedings and petitions for
47 custody of and [visitation of] parenting time with minors. (a) When
48 referred from the supreme court or county court to the family court, the
49 family court has jurisdiction to determine, in accordance with subdivi-
50 sion one of section two hundred forty of the domestic relations law and
51 with the same powers possessed by the supreme court in addition to its
52 own powers, habeas corpus proceedings and proceedings brought by peti-
53 tion and order to show cause, for the determination of the custody of or
54 [visitation of] parenting time with minors.
55 (b) When initiated in the family court, the family court has jurisdic-
56 tion to determine, in accordance with subdivision one of section two
A. 6690--A 21
1 hundred forty of the domestic relations law and with the same powers
2 possessed by the supreme court in addition to its own powers, habeas
3 corpus proceedings and proceedings brought by petition and order to show
4 cause, for the determination of the custody of or [visitation of]
5 parenting time with minors, including applications by a grandparent or
6 grandparents for [visitation] parenting time with the minor or custody
7 rights pursuant to section seventy-two or two hundred forty of the
8 domestic relations law.
9 (c) When initiated in the family court pursuant to a petition under
10 part eight of article ten of this act or section three hundred fifty-
11 eight-a of the social services law, the family court has jurisdiction to
12 enforce or modify orders or judgments of the supreme court relating to
13 [the visitation of] parenting time with minors in foster care, notwith-
14 standing any limitation contained in subdivision (b) of section four
15 hundred sixty-seven of this act.
16 (d) With respect to applications by a grandparent or grandparents for
17 [visitation] parenting time or custody rights, made pursuant to section
18 seventy-two or two hundred forty of the domestic relations law, with a
19 child remanded or placed in the care of a person, official, agency or
20 institution pursuant to the provisions of article ten of this act, the
21 applicant, in such manner as the court shall prescribe, shall serve a
22 copy of the application upon the social services official having care
23 and custody of such child, and the child's attorney, who shall be
24 afforded an opportunity to be heard thereon.
25 (e) 1. Permanent and initial temporary orders of custody or [visita-
26 tion] parenting time. Prior to the issuance of any permanent or initial
27 temporary order of custody or visitation, the court shall conduct a
28 review of the decisions and reports listed in paragraph three of this
29 subdivision.
30 2. Successive temporary orders of custody or [visitation] parenting
31 time. Prior to the issuance of any successive temporary order of custody
32 or [visitation,] parenting time the court shall conduct a review of the
33 decisions and reports listed in paragraph three of this subdivision,
34 unless such a review has been conducted within ninety days prior to the
35 issuance of such order.
36 3. Decisions and reports for review. The court shall conduct a review
37 of the following:
38 (i) related decisions in court proceedings initiated pursuant to arti-
39 cle ten of this act, and all warrants issued under this act; and
40 (ii) reports of the statewide computerized registry of orders of
41 protection established and maintained pursuant to section two hundred
42 twenty-one-a of the executive law, and reports of the sex offender
43 registry established and maintained pursuant to section one hundred
44 sixty-eight-b of the correction law.
45 4. Notifying counsel and issuing orders. Upon consideration of deci-
46 sions pursuant to article ten of this act, and registry reports and
47 notifying counsel involved in the proceeding, or in the event of a self-
48 represented party, notifying such party of the results thereof, includ-
49 ing any court appointed attorney for children, the court may issue a
50 temporary, successive temporary or final order of custody or [visita-
51 tion] parenting time.
52 5. Temporary emergency order. Notwithstanding any other provision of
53 the law, upon emergency situations, including computer malfunctions, to
54 serve the best interest of the child, the court may issue a temporary
55 emergency order for custody or [visitation] parenting time in the event
A. 6690--A 22
1 that it is not possible to timely review decisions and reports on regis-
2 tries as required pursuant to paragraph three of this subdivision.
3 6. After issuing a temporary emergency order. After issuing a tempo-
4 rary emergency order of custody or [visitation] parenting time, the
5 court shall conduct reviews of the decisions and reports on registries
6 as required pursuant to paragraph three of this subdivision within twen-
7 ty-four hours of the issuance of such temporary emergency order. Should
8 such twenty-four hour period fall on a day when court is not in session,
9 then the required reviews shall take place the next day the court is in
10 session. Upon reviewing decisions and reports the court shall notify
11 associated counsel, self-represented parties and attorneys for children
12 pursuant to paragraph four of this subdivision and may issue temporary
13 or permanent custody or [visitation] parenting time orders.
14 7. Feasibility study. The commissioner of the office of children and
15 family services, in conjunction with the office of court administration,
16 is hereby authorized and directed to examine, study, evaluate and make
17 recommendations concerning the feasibility of the utilization of comput-
18 ers in family courts which are connected to the statewide central regis-
19 ter of child abuse and maltreatment established and maintained pursuant
20 to section four hundred twenty-two of the social services law, as a
21 means of providing family courts with information regarding parties
22 requesting orders of custody or visitation. Such commissioner shall make
23 a preliminary report to the governor and the legislature of findings,
24 conclusions and recommendations not later than January thirty-first, two
25 thousand nine, and a final report of findings, conclusions and recommen-
26 dations not later than June first, two thousand nine, and shall submit
27 with the reports such legislative proposals as are deemed necessary to
28 implement the commissioner's recommendations.
29 (f) Military service by parent; effect on child custody orders. 1.
30 During the period of time that a parent is activated, deployed or tempo-
31 rarily assigned to military service, such that the parent's ability to
32 continue as a joint caretaker or the primary caretaker of a minor child
33 is materially affected by such military service, any orders issued
34 pursuant to this section, based on the fact that the parent is acti-
35 vated, deployed or temporarily assigned to military service, which would
36 materially affect or change a previous judgment or order regarding
37 custody of that parent's child or children as such judgment or order
38 existed on the date the parent was activated, deployed, or temporarily
39 assigned to military service, shall be subject to review pursuant to
40 paragraph three of this subdivision. Any relevant provisions of the
41 Service Member's Civil Relief Act shall apply to all proceedings
42 governed by this section.
43 2. During such period, the court may enter an order to modify custody
44 if there is clear and convincing evidence that the modification is in
45 the best interests of the child. An attorney for the child shall be
46 appointed in all cases where a modification is sought during such mili-
47 tary service. Such order shall be subject to review pursuant to para-
48 graph three of this subdivision. When entering an order pursuant to this
49 section, the court shall consider and provide for, if feasible and if in
50 the best interests of the child, contact between the military service
51 member and his or her child including, but not limited to, electronic
52 communication by e-mail, webcam, telephone, or other available means.
53 During the period of the parent's leave from military service, the court
54 shall consider the best interests of the child when establishing a
55 parenting schedule, including [visiting] parenting time and other
A. 6690--A 23
1 contact. For such purpose, a "leave from military service" shall be a
2 period of not more than three months.
3 3. Unless the parties have otherwise stipulated or agreed, if an order
4 is issued pursuant to this subdivision, the return of the parent from
5 active military service, deployment or temporary assignment shall be
6 considered a substantial change in circumstances. Upon the request of
7 either parent, the court shall determine on the basis of the child's
8 best interests whether the custody judgment or order previously in
9 effect should be modified.
10 4. This subdivision shall not apply to assignments to permanent duty
11 stations or permanent changes of station.
12 § 33. Section 651-a of the family court act, as amended by chapter 12
13 of the laws of 1996, is amended to read as follows:
14 § 651-a. Reports of child abuse and maltreatment; admissibility. In
15 any proceeding brought pursuant to this section to determine the custody
16 or [visitation] parenting time of minors, a report made to the statewide
17 central register of child abuse and maltreatment, pursuant to title six
18 of article six of the social services law, or a portion thereof, which
19 is otherwise admissible as a business record pursuant to rule forty-five
20 hundred eighteen of the civil practice law and rules shall not be admis-
21 sible in evidence, notwithstanding such rule, unless an investigation of
22 such report conducted pursuant to title six of article six of the social
23 services law has determined that there is some credible evidence of the
24 alleged abuse or maltreatment, that the subject of the report has been
25 notified that the report is indicated. In addition, if such report has
26 been reviewed by the state commissioner of [social services] the office
27 of children and family services or his or her designee and has been
28 determined to be unfounded, it shall not be admissible in evidence. If
29 such report has been so reviewed and has been amended to delete any
30 finding, each such deleted finding shall not be admissible. If the state
31 commissioner of [social services] the office of children and family
32 services or his or her designee has amended the report to add any new
33 finding, each such new finding, together with any portion of the
34 original report not deleted by the commissioner or his or her designee,
35 shall be admissible if it meets the other requirements of this section
36 and is otherwise admissible as a business record. If such a report, or
37 portion thereof, is admissible in evidence but is uncorroborated, it
38 shall not be sufficient to make a fact finding of abuse or maltreatment
39 in such proceeding. Any other evidence tending to support the reliabil-
40 ity of such report shall be sufficient corroboration.
41 § 34. Subdivisions (a) and (b) of section 652 of the family court act,
42 subdivision (a) as amended and subdivision (b) as added by chapter 40 of
43 the laws of 1981, are amended to read as follows:
44 (a) When referred from the supreme court to the family court, the
45 family court has jurisdiction to determine, with the same powers
46 possessed by the supreme court, applications to fix temporary or perma-
47 nent custody and applications to modify judgments and orders of custody
48 or [visitation] parenting time in actions and proceedings for marital
49 separation, divorce, annulment of marriage and dissolution of marriage.
50 Applications to modify judgments and orders of custody may be granted by
51 the family court under this section only upon the showing to the family
52 court that there has been a subsequent change of circumstances and that
53 modification is required.
54 (b) In the event no such referral has been made and unless the supreme
55 court provides in the order or judgment awarding custody or [visitation]
56 parenting time in an action for divorce, separation or annulment, that
A. 6690--A 24
1 it may be enforced or modified only in the supreme court, the family
2 court may: (i) determine an application to enforce the order or judgment
3 awarding custody or [visitation] parenting time, or (ii) determine an
4 application to modify the order or judgment awarding custody or [visita-
5 tion] parenting time upon a showing that there has been a subsequent
6 change of circumstances and modification is required.
7 § 35. Subdivision (b) of section 656 of the family court act, as
8 amended by chapter 483 of the laws of 1995, is amended to read as
9 follows:
10 (b) to permit a parent, or a person entitled to [visitation] parenting
11 time by a court order or a separation agreement, to visit the child at
12 stated periods;
13 § 36. Subdivision (b) of section 759 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 § 37. Subdivision (b) of section 842 of the family court act, as
20 amended by chapter 483 of the laws of 1995, is amended to read as
21 follows:
22 (b) to permit a parent, or a person entitled to [visitation] parenting
23 time by a court order or a separation agreement, to visit the child at
24 stated periods;
25 § 38. Section 1030 of the family court act, as added by chapter 457 of
26 the laws of 1988, and subdivisions (b) and (d) as amended by chapter 41
27 of the laws of 2010, is amended to read as follows:
28 § 1030. Order of [visitation] parenting time by a respondent. (a) A
29 respondent shall have the right to reasonable and regularly scheduled
30 [visitation] parenting time with a child in the temporary custody of a
31 social services official pursuant to this part or pursuant to subdivi-
32 sion (d) of section one thousand fifty-one of this article, unless
33 limited by an order of the family court.
34 (b) A respondent who has not been afforded such [visitation] parenting
35 time may apply to the court for an order requiring the local social
36 services official having temporary custody of the child pursuant to this
37 part or pursuant to subdivision (d) of section one thousand fifty-one of
38 this article, to permit the respondent to visit the child at stated
39 periods. Such application shall be made upon notice to the local social
40 services official and to any attorney appointed to represent the child,
41 who shall be afforded an opportunity to be heard thereon.
42 (c) A respondent shall be granted reasonable and regularly scheduled
43 [visitation] parenting time unless the court finds that the child's life
44 or health would be endangered thereby, but the court may order [visita-
45 tion] parenting time under the supervision of an employee of a local
46 social services department upon a finding that such supervised [visita-
47 tion] parenting time is in the best interest of the child.
48 (d) An order made under this section may be modified by the court for
49 good cause shown, upon application by any party or the child's attorney,
50 and upon notice of such application to all other parties and the child's
51 attorney, who shall be afforded an opportunity to be heard thereon.
52 (e) An order made under this section shall terminate upon the entry of
53 an order of disposition pursuant to part five of this article.
54 (f) Interference with or withholding of parenting time without cause
55 shall result in immediate sanctions. A judge who sanctions a party for
A. 6690--A 25
1 failure to comply with an order of parenting time shall have available
2 the following remedies:
3 (1) awarding of counsel fees of the aggrieved party against the party
4 who violated the terms of the order;
5 (2) mediation education;
6 (3) community service;
7 (4) awarding of compensatory time with the child for which the party
8 was deprived; and
9 (5) other economic sanctions which may be decided on a case to case
10 basis.
11 § 39. Subdivision (e) of section 1035 of the family court act, as
12 amended by chapter 526 of the laws of 2003, is amended to read as
13 follows:
14 (e) The summons, petition and notice of pendency of a child protective
15 proceeding served on the child's non-custodial parent in accordance with
16 subdivision (d) of this section shall, if applicable, be served together
17 with a notice that the child was removed from his or her home by a
18 social services official. Such notice shall also include the name and
19 address of the official to whom temporary custody of the child has been
20 transferred, the name and address of the agency or official with whom
21 the child has been temporarily placed, if different, and shall advise
22 such parent of the right to request temporary and permanent custody and
23 to seek enforcement of [visitation] parenting time rights with the child
24 as provided for in part eight of this article.
25 § 40. Paragraph (b) of subdivision 1 of section 1056 of the family
26 court act, as amended by chapter 483 of the laws of 1995, is amended to
27 read as follows:
28 (b) to permit a parent, or a person entitled to [visitation] parenting
29 time by a court order or a separation agreement, to visit the child at
30 stated periods;
31 § 41. Part 8 of article 10 of the family court act, as added by chap-
32 ter 457 of the laws of 1988, subdivision 4 of section 1081, paragraph
33 (b) of subdivision 1, subdivision 2 of section 1082 and subdivision 4 of
34 section 1085 as amended by chapter 41 of the laws of 2010, and section
35 1085 as amended by chapter 378 of the laws of 1999, is amended to read
36 as follows:
37 PART 8
38 [VISITATION OF] PARENTING TIME WITH
39 MINORS IN FOSTER CARE
40 Section 1081. [Visitation] Parenting time rights.
41 1082. Approval, modification or denial of [visitation] parenting
42 time rights.
43 1083. Duration of orders affecting [visitation] parenting time
44 rights.
45 1084. Out-of-wedlock children; paternity.
46 1085. [Visitation] Parenting time and custody rights unenforcea-
47 ble; murder of parent, custodian, guardian, or child.
48 § 1081. [Visitation] Parenting time rights. 1. A non-custodial parent
49 or grandparent shall have the [visitation] parenting time rights with a
50 child remanded or placed in the care of a social services official
51 pursuant to this article as conferred by order of the family court or by
52 any order or judgment of the supreme court, or by written agreement
53 between the parents as described in section two hundred thirty-six of
54 the domestic relations law, subject to the provisions of section one
55 thousand eighty-two of this part.
A. 6690--A 26
1 2. A non-custodial parent or any grandparent or grandparents who have
2 not been afforded the [visitation] parenting time rights described in
3 subdivision one of this section, shall have the right to petition the
4 court for enforcement of [visitation] parenting time rights with a child
5 remanded or placed in the care of a social services official pursuant to
6 this article, as such [visitation] parenting time rights have been
7 conferred by order of the family court or by any order or judgment of
8 the supreme court, or by written agreement between the parents as
9 described in section two hundred thirty-six of the domestic relations
10 law.
11 3. (a) The petition by a non-custodial parent shall allege that such
12 parent has [visitation] parenting time rights conferred by order of the
13 family court or by any order or judgment of the supreme court or by
14 written agreement between the parents as described in section two
15 hundred thirty-six of the domestic relations law, shall have a copy of
16 such order, judgment or agreement attached thereto, shall request
17 enforcement of such rights pursuant to this part, and shall state, when
18 known by the petitioner, that [visitation] parenting time rights with
19 the child by any grandparent or grandparents have been conferred by
20 order of the supreme court or family court pursuant to section seventy-
21 two or two hundred forty of the domestic relations law, and shall
22 provide the name and address of such grandparent or grandparents.
23 (b) A petition by a grandparent or grandparents shall allege that such
24 grandparent or grandparents have been granted [visitation] parenting
25 time rights with the child pursuant to section seventy-two or two
26 hundred forty of the domestic relations law, or subdivision (b) of
27 section six hundred fifty-one of this act, shall have a copy of such
28 order or judgment attached thereto, and shall request enforcement of
29 such rights pursuant to this part.
30 4. The petition shall be served upon the respondent in a proceeding
31 under this article, the local social services official having the care
32 of the child, any grandparent or grandparents named in the petition as
33 having [visitation] parenting time rights conferred by court order
34 pursuant to section seventy-two or two hundred forty of the domestic
35 relations law, and upon the child's attorney. The petition shall be
36 served in such manner as the court may direct.
37 5. Upon receipt of such petition the court shall, subject to the
38 provisions of section one thousand eighty-two of this part, require that
39 any order of a family court or order or judgment of the supreme court,
40 or any agreement between the parents as described in subdivision one of
41 this section, granting [visitation] parenting time rights to the non-
42 custodial parent, grandparent or grandparents, be incorporated in any
43 preliminary order or order of placement made under this article to the
44 extent that such order, judgment or agreement confers [visitation]
45 parenting time rights. In any case where a dispositional hearing has not
46 been held or will not be held within thirty days of the filing of such
47 petition the court shall order the person, official, agency or institu-
48 tion caring for the child pursuant to this article to comply with such
49 part of the order, judgment or agreement granting [visitation] parenting
50 time rights. Violation of such order shall be punishable pursuant to
51 section seven hundred fifty-three of the judiciary law.
52 § 1082. Approval, modification or denial of [visitation] parenting
53 time rights. 1. (a) Upon receipt of a petition pursuant to subdivision
54 four of section one thousand eighty-one of this part, the local depart-
55 ment of social services shall make inquiry of the state central register
56 of child abuse and maltreatment to determine whether or not the peti-
A. 6690--A 27
1 tioner is a subject of an indicated report of child abuse or maltreat-
2 ment, as such terms are defined in section four hundred twelve of the
3 social services law, and shall further ascertain whether or not the
4 petitioner is a respondent in a proceeding under this article whereby
5 the child with whom [visitation] parenting time is sought has been
6 allegedly abused or neglected or has been adjudicated as an abused or
7 neglected child.
8 (b) The department, the child's attorney and the respondent in a
9 proceeding under this article, shall have the right to be heard with
10 respect to a petition for an order to enforce [visitation] parenting
11 time rights under this part.
12 2. Where the local department of social services or the child's attor-
13 ney opposes a petition described in section one thousand eighty-one of
14 this part, the department or the child's attorney as appropriate shall
15 serve and file an answer to the petition. The court shall, upon the
16 filing of such answer, set a date for a hearing on such petition and
17 shall notify the parents, grandparent or grandparents, the department
18 and the child's attorney of such hearing date.
19 3. Whenever a hearing described in subdivision two of this section is
20 to be held within ten court days of a dispositional hearing authorized
21 under this article, the court may in its discretion hear such petition
22 as part of such dispositional hearing.
23 4. In any hearing under this section, the court shall approve such
24 petition unless the court finds upon competent, relevant and material
25 evidence that enforcement of [visitation] parenting time rights as
26 described in the order, judgment or agreement would endanger the child's
27 life or health. Upon such a finding, the court shall make an order deny-
28 ing such petition or make such other order affecting enforcement of
29 [visitation] parenting time rights as the court deems to be in the best
30 interests of the child.
31 5. (a) Where a petition is approved pursuant to this section the
32 parties may agree in writing to an alternative schedule of [visitation]
33 parenting time equivalent to and consistent with the original or modi-
34 fied [visitation] parenting time order or agreement where such alterna-
35 tive schedule reflects changed circumstances of the parties and is
36 consistent with the best interests of the child.
37 (b) In the absence of such an agreement between the parties, the court
38 may, in its discretion, order an alternative schedule of [visitation]
39 parenting time as defined herein, where it determines that such schedule
40 is necessary to facilitate [visitation] parenting time and to protect
41 the best interests of the child.
42 § 1083. Duration of orders affecting [visitation] parenting time
43 rights. 1. Where an order of the court has been made incorporating an
44 order, judgment or agreement conferring [visitation] parenting time
45 rights with a child on a non-custodial parent or grandparent into a
46 dispositional order under this article, or where the court otherwise
47 orders compliance by a person, official, agency or institution caring
48 for the child, with an order, judgment or agreement granting [visita-
49 tion] parenting time rights, such order shall remain in effect for the
50 length of time the child remains in such care pursuant to this article,
51 unless such order is subsequently modified by the court for good cause
52 shown.
53 2. Where the court makes an order denying a petition seeking enforce-
54 ment of [visitation] parenting time rights or makes an order modifying
55 [visitation] parenting time rights, pursuant to the provisions of
56 section one thousand eighty-two of this part, such order shall remain in
A. 6690--A 28
1 effect for the length of time the child is placed with a person, offi-
2 cial, agency or institution caring for the child pursuant to this arti-
3 cle, unless such order is subsequently modified by the court for good
4 cause shown.
5 § 1084. Out-of-wedlock children; paternity. No [visitation] parenting
6 time right shall be enforceable under this part concerning any person
7 claiming to be a parent of an out-of-wedlock child without an adjudi-
8 cation of the paternity of such person by a court of competent jurisdic-
9 tion, or without an acknowledgement of the paternity of such person
10 executed pursuant to applicable provisions of law.
11 § 1085. [Visitation] Parenting time and custody rights unenforceable;
12 murder of parent, custodian, guardian, or child. 1. No [visitation]
13 parenting time or custody order shall be enforceable under this part by
14 a person who has been convicted of murder in the first or second degree
15 in this state, or convicted of an offense in another jurisdiction which,
16 if committed in this state, would constitute either murder in the first
17 or second degree, of a parent, legal custodian, legal guardian, sibling,
18 half-sibling or step-sibling of the child unless:
19 (i) (A) such child is of suitable age to signify assent and such child
20 assents to such [visitation] parenting time or custody; or
21 (B) if such child is not of suitable age to signify assent the child's
22 custodian or legal guardian assents to such order; or
23 (C) the person who has been convicted of murder in the first or second
24 degree, or an offense in another jurisdiction which if committed in this
25 state, would constitute either murder in the first or second degree, can
26 prove by a preponderance of the evidence that:
27 (1) he or she, or a family or household member of either party, was a
28 victim of domestic violence by the victim of such murder; and
29 (2) the domestic violence was causally related to the commission of
30 such murder; and
31 (ii) the court finds that such [visitation] parenting time or custody
32 is in the best interest of the child.
33 2. Pending determination of a petition for [visitation] parenting time
34 or custody such child shall not visit and no person shall visit, with
35 such child present, such person, legal guardian or legal custodian who
36 has been convicted of murder in the first or second degree in this
37 state, or an offense in another jurisdiction which, if committed in this
38 state, would constitute either murder in the first or second degree, of
39 the other parent, legal guardian, legal custodian, sibling, half-sibling
40 or step-sibling of such child, without the consent of such child's
41 custodian or legal guardian.
42 3. Nothing contained in this section shall be construed to require a
43 court, without petition from any of the interested parties, to review a
44 previously issued order of [visitation] parenting time or custody or
45 denial of such petition.
46 4. For the purposes of making a determination pursuant to subparagraph
47 (C) of paragraph (i) of subdivision one of this section, the court shall
48 not be bound by the findings of fact, conclusions of law or ultimate
49 conclusion as determined by the proceedings leading to the conviction of
50 murder in the first or second degree in this state or of an offense in
51 another jurisdiction which, if committed in this state, would constitute
52 murder in either the first or second degree, of a parent, legal guardi-
53 an, legal custodian, sibling, half-sibling or step-sibling of a child
54 who is the subject of the proceeding. In all proceedings under this
55 section, an attorney shall be appointed for the child.
A. 6690--A 29
1 § 42. The domestic relations law is amended by adding a new section
2 242 to read as follows:
3 § 242. Matrimonial actions involving custody of children; mediation
4 and family counselling. In any matrimonial action involving the custody
5 of children, the court shall direct the parties to attend mediation and
6 family counselling sessions prior to the entry of any orders or judg-
7 ments, except for temporary orders of protection or support, as provided
8 for in the rules of the chief administrator of the courts, who shall
9 promulgate rules and regulations therefor.
10 § 43. Clause (i) of subparagraph 5 of paragraph (b) of subdivision 1-b
11 of section 240 of the domestic relations law, as added by chapter 567 of
12 the laws of 1989, is amended to read as follows:
13 (i) gross (total) income, exclusive of federal, state, and local
14 personal income taxes and contributions required pursuant to the federal
15 insurance contributions act (social security and medicare), as should
16 have been or should be reported in the most recent federal income tax
17 return. If an individual files his/her federal income tax return as a
18 married person filing jointly, such person shall be required to prepare
19 a form, sworn to under penalty of law, disclosing his/her gross income
20 individually;
21 § 44. Subdivision 11 of section 111-h of the social services law, as
22 amended by chapter 502 of the laws of 1990, is amended to read as
23 follows:
24 11. The department may provide for the performance of the collection
25 and disbursement functions of the support collection units by contract
26 with a fiscal agent. For purposes of any reference to support collection
27 unit in this chapter or any other law, the fiscal agent under contract
28 with the department shall be deemed to be part of all support collection
29 units for which the fiscal agent performs collection and disbursement
30 functions. The department shall provide by rule for an annual audit and
31 performance appraisal of each fiscal agent.
32 § 45. The family court act is amended by adding a new section 385.3 to
33 read as follows:
34 § 385.3. Evidence. Notwithstanding any other provision of law, a fami-
35 ly court judge shall, in every proceeding and hearing under his or her
36 jurisdiction, review all evidence including law guardian reports, child
37 advocate reports, physician reports, psychologist reports and counseling
38 reports, as well as all third party communications related to the
39 proceeding or hearing.
40 § 46. Subdivision (a) of section 418 of the family court act, as
41 amended by chapter 214 of the laws of 1998, is amended to read as
42 follows:
43 (a) The court, on its own motion or motion of any party, when paterni-
44 ty is contested, shall order the mother, the child and the alleged
45 father to submit to one or more genetic marker or DNA marker tests of a
46 type generally acknowledged as reliable by an accreditation body desig-
47 nated by the secretary of the federal department of health and human
48 services and performed by a laboratory approved by such an accreditation
49 body and by the commissioner of health or by a duly qualified physician
50 to aid in the determination of whether the alleged father is or is not
51 the father of the child. No such test shall be ordered, however, upon a
52 written finding by the court that it is not in the best interests of the
53 child on the basis of res judicata, equitable estoppel or the presump-
54 tion of legitimacy of a child born to a married woman. The record or
55 report of the results of any such genetic marker or DNA test shall be
56 received in evidence, pursuant to subdivision (e) of rule forty-five
A. 6690--A 30
1 hundred eighteen of the civil practice law and rules where no timely
2 objection in writing has been made thereto. Any order pursuant to this
3 section shall state in plain language that the results of such test
4 shall be admitted into evidence, pursuant to rule forty-five hundred
5 eighteen of the civil practice law and rules absent timely objections
6 thereto and that if such timely objections are not made, they shall be
7 deemed waived and shall not be heard by the court. If the record or
8 report of results of any such genetic marker or DNA test or tests indi-
9 cate at least a ninety-five percent probability of paternity, the admis-
10 sion of such record or report shall create a rebuttable presumption of
11 paternity, and, if unrebutted, shall establish the paternity of and
12 liability for the support of a child pursuant to this article and arti-
13 cle five of this act. If child support is being paid and the record or
14 report of results of any genetic marker or DNA test or tests do not
15 indicate at least a ninety-five percent probability of paternity, if
16 unrebutted, the court shall order the immediate cessation of all child
17 support regardless of the length of time that child support has been
18 paid, except in a case where a sperm donor was used and the putative
19 father was aware of and consented to such use in which case there shall
20 not be a cessation of support.
21 § 47. The domestic relations law is amended by adding a new section
22 74-a to read as follows:
23 § 74-a. Parental access to information. Unless prohibited by federal
24 or state law, a parent shall have complete access to records and infor-
25 mation pertaining to the health, education and welfare of his or her
26 minor child, regardless of whether or not he or she is the custodial
27 parent, unless a court decrees that access to the information is not in
28 the best interest of the child.
29 § 48. Subparagraph 3 of paragraph (b) of subdivision 1 of section 413
30 of the family court act, as amended by chapter 567 of the laws of 1989,
31 is amended to read as follows:
32 (3) "Child support percentage" shall mean:
33 (i) seventeen percent of the combined parental income for one child,
34 except in a case of shared parenting in which case ten percent of the
35 combined parental income for one child;
36 (ii) twenty-five percent of the combined parental income for two chil-
37 dren, except in a case of shared parenting in which case sixteen percent
38 of the combined parental income for two children;
39 (iii) twenty-nine percent of the combined parental income for three
40 children, except in a case of shared parenting in which case twenty-six
41 percent of the combined parental income for three children;
42 (iv) thirty-one percent of the combined parental income for four chil-
43 dren; and
44 (v) no less than thirty-five percent of the combined parental income
45 for five or more children.
46 In addition to the percentages established in this subparagraph for
47 shared parenting, the court may include an additional seven percent upon
48 the demonstration of necessity, based upon receipts, for clothing, care,
49 medical attention, the expense of education, payment of funeral
50 expenses, and other proper and reasonable expenses.
51 § 49. Paragraph (c) of subdivision 1 of section 413 of the family
52 court act is amended by adding a new subparagraph 8 to read as follows:
53 (8) Where the court determines that the custodial parent will receive
54 tax savings because of being able to file as head of a household, take a
55 child related tax deduction and/or take a child related earned income
A. 6690--A 31
1 tax credit, the court shall add the amount saved to the custodial
2 parent's income when determining combined parental income.
3 § 50. Section 413 of the family court act is amended by adding a new
4 subdivision 2-a to read as follows:
5 2-a. Nothing in this article shall impose any liability upon a person
6 to support any minor child who has become emancipated, married, has
7 ceased to attend school, or who, if it has been determined by the court,
8 has become self-supporting. Such liability shall not be imposed for so
9 long as the minor remains emancipated, married, has ceased to attend
10 school or is self-supporting.
11 § 51. Paragraph (e) of subdivision 4-a of section 111-b of the social
12 services law, as added by chapter 398 of the laws of 1997, is amended to
13 read as follows:
14 (e) Information maintained as part of the state case registry shall
15 be made available to other state and federal agencies as provided for in
16 federal statutes and regulations promulgated by the federal secretary of
17 health and human services. Every January, May and September, a support
18 payer's information shall be mailed to him or her by first class mail
19 from the New York state child support collection unit to the support
20 obligor's known home address or such other place where the support obli-
21 gor is likely to receive first class mail. This shall include all
22 payments, including arrearages, received by the child support collection
23 unit.
24 § 52. Subdivision (a) of section 458-a of the family court act, as
25 amended by chapter 624 of the laws of 2002, is amended to read as
26 follows:
27 (a) If the respondent has accumulated support arrears equivalent to or
28 greater than the amount of support due pursuant to court order for a
29 period of four months, the court may order the department of motor vehi-
30 cles to suspend the respondent's driving privileges, and if such order
31 issues, the respondent may apply to the department of motor vehicles for
32 a restricted use license pursuant to section five hundred thirty of the
33 vehicle and traffic law. If the court finds that the respondent has in
34 the past been timely in paying his or her support due then the respond-
35 ent's driving privileges cannot be suspended without a hearing. The
36 court may at any time upon payment of arrears or partial payment of
37 arrears by the respondent order the department of motor vehicles to
38 terminate the suspension of respondent's driving privileges. For
39 purposes of determining whether a support obligor has accumulated
40 support arrears equivalent to or greater than the amount of support due
41 for a period of four months, the amount of any retroactive support,
42 other than periodic payments of retroactive support which are past due,
43 shall not be included in the calculation of support arrears pursuant to
44 this section.
45 § 53. Subdivision 1 of section 454 of the family court act, as amended
46 by chapter 892 of the laws of 1986, is amended to read as follows:
47 1. If a respondent is brought before the court for failure to obey any
48 lawful order of support [and if, after hearing,] the parties can choose
49 to have a hearing before the court or to go through an arbitrator, in
50 order to avoid a court appearance. An arbitrator shall be established
51 through child support collection to arbitrate disputes when there are
52 accusations of child support arrearage in order to avert a court appear-
53 ance. If the court is satisfied by competent proof that the respondent
54 has failed to obey any such order, the court may use any or all of the
55 powers conferred upon it by this part. The court has the power to use
56 any or all enforcement powers in every proceeding brought for violation
A. 6690--A 32
1 of a court order under this part regardless of the relief requested in
2 the petition.
3 § 54. Paragraph (a) of subdivision 3 of section 454 of the family
4 court act, as amended by chapter 892 of the laws of 1986, is amended to
5 read as follows:
6 (a) commit the respondent to jail for a term not to exceed six months.
7 For purposes of this subdivision, failure to pay support, as ordered,
8 shall constitute prima facie evidence of a willful violation. However,
9 the court shall consider real circumstances when finding that a respond-
10 ent has failed to comply with any lawful order of support, such as that
11 a parent presently has voluntarily or involuntarily reduced resources or
12 income. Such commitment may be served upon certain specified days or
13 parts of days as the court may direct, and the court may, at any time
14 within the term of such sentence, revoke such suspension and commit the
15 respondent for the remainder of the original sentence, or suspend the
16 remainder of such sentence. Such commitment does not prevent the court
17 from subsequently committing the respondent for failure thereafter to
18 comply with any such order; or
19 § 55. Section 451 of the family court act, as amended by chapter 182
20 of the laws of 2010, is amended to read as follows:
21 § 451. Continuing jurisdiction. 1. (a) Except as provided in article
22 five-B of this act, the court has continuing jurisdiction over any
23 support proceeding brought under this article until its judgment is
24 completely satisfied and may modify, set aside or vacate any order
25 issued in the course of the proceeding, provided, however, that the
26 modification, set aside or vacatur shall not reduce or annul child
27 support arrears accrued prior to the making of an application pursuant
28 to this section. The court shall not reduce or annul any other arrears
29 unless the defaulting party shows good cause for failure to make appli-
30 cation for relief from the judgment or order directing payment prior to
31 the accrual of the arrears, in which case the facts and circumstances
32 constituting such good cause shall be set forth in a written memorandum
33 of decision. A modification may increase support payments nunc pro tunc
34 as of the date of the initial application for support based on newly
35 discovered evidence. Any retroactive amount of support due shall be paid
36 and be enforceable as provided in section four hundred forty of this
37 article. Upon an application to modify, set aside or vacate an order of
38 support, no hearing shall be required unless such application shall be
39 supported by affidavit and other evidentiary material sufficient to
40 establish a prima facie case for the relief requested.
41 (b) Once a year, a motion may be made by a child support obligor to
42 require an accounting by the parent receiving the child support on
43 behalf of the child or children. The accounting shall account for all
44 funds expended on the child or children and shall be used by the court
45 in determining whether the funds are being misused or not fulfilling the
46 child's or children's needs. The accounting shall include, but not be
47 limited to, the disposition of all funds paid by the child support obli-
48 gor and all funds expended on behalf of the child or children. Any
49 motion filed by a child support obligor pursuant to this subdivision
50 shall be accompanied by a sworn affidavit that the obligor has reason-
51 able grounds to question whether the child support funds are being spent
52 appropriately and shall state the grounds in the affidavit.
53 2. (a) The court may modify an order of child support, including an
54 order incorporating without merging an agreement or stipulation of the
55 parties, upon a showing of a substantial change in circumstances.
56 Incarceration shall not be a bar to finding a substantial change in
A. 6690--A 33
1 circumstances provided such incarceration is not the result of non-pay-
2 ment of a child support order, or an offense against the custodial
3 parent or child who is the subject of the order or judgment.
4 (b) In addition, unless the parties have specifically opted out of the
5 following provisions in a validly executed agreement or stipulation
6 entered into between the parties, the court may modify an order of child
7 support where:
8 (i) three years have passed since the order was entered, last modified
9 or adjusted; or
10 (ii) there has been a change in either party's gross income by fifteen
11 percent or more since the order was entered, last modified, or adjusted.
12 A reduction in income shall not be considered as a ground for modifica-
13 tion unless it was involuntary and the party has made diligent attempts
14 to secure employment commensurate with his or her education, ability,
15 and experience.
16 § 56. The closing paragraph of subdivision 1 of section 460 of the
17 family court act, as amended by chapter 815 of the laws of 1987, is
18 amended to read as follows:
19 and the party defaults in paying any sum of money due as required by the
20 order directing the payment thereof, the court, without regard to the
21 amount due, shall make an order directing the entry of judgment for the
22 amount of child support arrears, together with costs and disbursements.
23 This judgment shall be directed to be paid each month, at a rate not to
24 exceed ten percent of the defaulting party's regular monthly child
25 support payment, until the arrears are paid. The court shall make an
26 order directing the entry of judgment for the amount of arrears of any
27 other payments so directed, together with costs and disbursements,
28 unless the defaulting party shows good cause for failure to make appli-
29 cation for relief from the judgment or order directing such payment
30 prior to the accrual of such arrears. The court shall not make an order
31 reducing or [cancelling] canceling such arrears unless the facts and
32 circumstances constituting good cause are set forth in a written memo-
33 randum of decision. The application for such order shall be made upon
34 such notice to the party or other person as the court may direct. Such
35 judgment shall provide for the payment of interest on the amount of any
36 arrears if the default was willful, in that the defaulting party know-
37 ingly, consciously and voluntarily disregarded the obligation under a
38 lawful court order. Such interest shall be computed from the date on
39 which the payment was due, at the prevailing rate of interest on judg-
40 ments as provided in the civil practice law and rules.
41 § 57. This act shall take effect on the first of January next succeed-
42 ing the date on which it shall have become a law, provided that the
43 amendments to subdivision (a) of section 439 of the family court act
44 made by section twenty-three of this act shall be subject to the expira-
45 tion and reversion of such subdivision pursuant to subdivision 19 of
46 section 246 of chapter 81 of the laws of 1995, as amended, when upon
47 such date the provisions of section twenty-four of this act shall take
48 effect and provided further that any and all rules and regulations and
49 any other measures necessary to implement this act on its effective date
50 may be promulgated or taken on or before such date.
