Relates to establishing procedure guidelines for custody agreements including those involving child abuse, family violence and/or domestic violence; provides guidelines regarding the best interests of the child standard and the awarding of supervised or unsupervised visitation for offending parents.
STATE OF NEW YORK
________________________________________________________________________
10668
IN ASSEMBLY
June 24, 2020
___________
Introduced by COMMITTEE ON RULES -- (at request of M. of A. Hunter) --
read once and referred to the Committee on Judiciary
AN ACT to amend the domestic relations law, in relation to establishing
procedure guidelines for custody agreements involving child abuse,
family violence and/or domestic violence
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Paragraph (a) of subdivision 1 of section 240 of the domes-
2 tic relations law, as amended by chapter 567 of the laws of 2015, is
3 amended to read as follows:
4 (a) (1) In any action or proceeding brought [(1)] to annul a marriage
5 or to declare the nullity of a void marriage, or [(2)] for a separation,
6 or [(3)] for a divorce, or [(4)] to obtain, by a writ of habeas corpus
7 or by petition and order to show cause, the custody of or right to visi-
8 tation with any child of a marriage, the court shall require verifica-
9 tion of the status of any child of the marriage with respect to such
10 child's custody and support, including any prior orders, and shall enter
11 orders for custody and support as, in the court's discretion, justice
12 requires, having regard to the circumstances of the case and of the
13 respective parties and to the best interests of the child and subject to
14 the provisions of subdivision one-c of this section. Where either party
15 to an action concerning custody of or a right to visitation with a child
16 alleges in a sworn petition or complaint or sworn answer, cross-peti-
17 tion, counterclaim or other sworn responsive pleading that the other
18 party has committed an act of child abuse against the child, or commit-
19 ted an act of family violence or domestic violence against the party
20 making the allegation or a family or household member of either party,
21 as such family or household member is defined in article eight of the
22 family court act, [and such allegations are proven by a preponderance of
23 the evidence, the court must consider the effect of such domestic
24 violence upon the best interests of the child, together with such other
25 facts and circumstances as the court deems relevant in making a direc-
26 tion pursuant to this section and state on the record how such findings,
27 facts and circumstances factored into the direction] the court must
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD16321-01-0
A. 10668 2
1 first, before considering any other best interest factors, hear and
2 determine upon competent admissible evidence the allegations set forth,
3 and enter findings regarding any child abuse, family violence or domes-
4 tic abuse; with the evidentiary hearing for such determination to be
5 held within thirty days of the filing of the verified pleading. The
6 court shall not be precluded, however, from issuing any necessary emer-
7 gency orders to protect the child. All costs, including attorney and
8 expert fees incurred by the non-offending parent and the child, shall be
9 paid by the parent who is found to have committed child abuse or domes-
10 tic violence, unless the offending parent has insufficient means to fund
11 such activities. If the court finds by a preponderance of the evidence
12 that a parent has perpetrated family abuse, including sexual abuse of
13 any family member, the court shall not award sole or joint custody or
14 unsupervised visitation of any children to that parent, unless:
15 (i) the parent is not abusing alcohol or illegally using psychoactive
16 drugs;
17 (ii) the offending parent's custody is necessary due to the other
18 parent's absence, verifiably medically diagnosed mental illness or
19 substance abuse; and
20 (iii) the child is comfortable with unsupervised contact, as verified
21 by a child therapist or evaluator with documented expertise in the
22 pertinent type or types of abuse.
23 (2) If a parent makes a good faith allegation based on a reasonable
24 belief supported by facts that the child is the victim of child abuse,
25 child neglect, or the effects of domestic violence, and if that parent
26 acts lawfully and in good faith in response to that reasonable belief to
27 protect the child or seek treatment for the child, then that parent
28 shall not be deprived of custody, visitation or contact with the child,
29 or restricted in custody, visitation or contact, based solely on that
30 belief or the reasonable actions taken based on that belief. [If an
31 allegation that a child is abused is supported by a preponderance of the
32 evidence, then the court shall consider such evidence of abuse in deter-
33 mining the visitation arrangement that is in the best interest of the
34 child, and the court shall not place a child in the custody of a parent
35 who presents a substantial risk of harm to that child, and shall state
36 on the record how such findings were factored into the determination] If
37 the court finds by clear and convincing evidence an act of child abuse
38 or a pattern of domestic violence, including sexual abuse and trauma, by
39 a parent, the court shall award sole physical custody of the child to
40 the safe parent or party and shall suspend any physical custody with the
41 offending parent, except that it may award supervised physical custody
42 if it is in the best interest of the child and such supervised physical
43 contact is protective of the health and safety of the child. Before such
44 supervised physical custody may begin, the court shall issue a super-
45 vised physical custody plan, including:
46 (i) restrictions, conditions and safeguards necessary to minimize any
47 risk of harm to the child, including but not limited to restricting the
48 offending parent from possessing a firearm during such supervised phys-
49 ical custody;
50 (ii) specific measures the offending parent must take for supervised
51 physical custody to continue;
52 (iii) the duration supervised visitation shall continue, assuming all
53 conditions in the supervised physical custody plan are consistently and
54 continually met; and
55 (iv) specific measures the offending parent must complete in order for
56 supervised physical custody to end.
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1 (3) (i) Court ordered supervised visitation shall continue unabated
2 until the court issues written findings of the evidentiary hearing and
3 the conditions of the supervised physical custody plan terminating said
4 visitation.
5 (ii) A supervised physical custody arrangement imposed on a parent by
6 a court shall be conducted by a court-approved professional with exper-
7 tise in domestic violence and/or child abuse, in a therapeutic setting
8 and under conditions that ensure the health and safety of the child. The
9 supervised physical custody arrangement shall not be conducted in either
10 parent's home and shall not extend overnight.
11 (iii) If an offending parent commits additional harm to the child, the
12 non-offending parent, or another individual in the non-offending
13 parent's household, when supervised physical custody arrangements are
14 ongoing, the court will immediately suspend future physical custody
15 arrangements until such time as the court can re-evaluate and revise the
16 previously issued supervised physical custody plan. Supervised physical
17 custody arrangements will not be re-initiated unless and until the court
18 can implement additional measures to minimize any risk of harm to the
19 child. The court shall explain the additional measures in writing.
20 (iv) Unsupervised visitation with the offending parent shall not occur
21 prior to the court's written determination that such unsupervised visi-
22 tation is in the child's best interests. Such determination shall be
23 made based upon factors, including, but not limited to:
24 (A) whether the offending parent completed the specific measures iden-
25 tified in the court-ordered supervised physical custody plan;
26 (B) evidence of the offending parent's current mental health condition
27 and the risk that the offending parent will subject the child or other
28 household members to domestic abuse;
29 (C) whether the offending parent is not abusing alcohol or illegally
30 using psychoactive drugs; and
31 (D) whether the offending parent will not cause any unreasonable phys-
32 ical, emotional or psychological harm to the child or other parent.
33 (v) The court shall explain its findings with respect to the factors
34 listed in clause (iv) of this subparagraph, and the justification for
35 ending supervised visitation, in writing.
36 (vi) Any cost incurred for supervised physical custody, for implemen-
37 tation of safety measures during supervised physical custody arrange-
38 ments, or to perform measures identified by the court for physical
39 custody to continue or end, shall be paid by the offending parent,
40 unless the offending parent has insufficient means to fund such activ-
41 ities.
42 (4) Where a proceeding filed pursuant to article ten or ten-A of the
43 family court act is pending at the same time as a proceeding brought in
44 the supreme court involving the custody of, or right to visitation with,
45 any child of a marriage, the court presiding over the proceeding under
46 article ten or ten-A of the family court act may jointly hear the dispo-
47 sitional hearing on the petition under article ten or the permanency
48 hearing under article ten-A of the family court act and, upon referral
49 from the supreme court, the hearing to resolve the matter of custody or
50 visitation in the proceeding pending in the supreme court; provided
51 however, the court must determine custody or visitation in accordance
52 with the terms of this section.
53 (5) An order directing the payment of child support shall contain the
54 social security numbers of the named parties. In all cases there shall
55 be no prima facie right to the custody of the child in either parent.
56 Such direction shall make provision for child support out of the proper-
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1 ty of either or both parents. The court shall make its award for child
2 support pursuant to subdivision one-b of this section. Such direction
3 may provide for reasonable visitation rights to the maternal and/or
4 paternal grandparents of any child of the parties. Such direction as it
5 applies to rights of visitation with a child remanded or placed in the
6 care of a person, official, agency or institution pursuant to article
7 ten of the family court act, or pursuant to an instrument approved under
8 section three hundred fifty-eight-a of the social services law, shall be
9 enforceable pursuant to part eight of article ten of the family court
10 act and sections three hundred fifty-eight-a and three hundred eighty-
11 four-a of the social services law and other applicable provisions of law
12 against any person having care and custody, or temporary care and custo-
13 dy, of the child. Notwithstanding any other provision of law, any writ-
14 ten application or motion to the court for the establishment, modifica-
15 tion or enforcement of a child support obligation for persons not in
16 receipt of public assistance and care must contain either a request for
17 child support enforcement services which would authorize the collection
18 of the support obligation by the immediate issuance of an income
19 execution for support enforcement as provided for by this chapter,
20 completed in the manner specified in section one hundred eleven-g of the
21 social services law; or a statement that the applicant has applied for
22 or is in receipt of such services; or a statement that the applicant
23 knows of the availability of such services, has declined them at this
24 time and where support enforcement services pursuant to section one
25 hundred eleven-g of the social services law have been declined that the
26 applicant understands that an income deduction order may be issued
27 pursuant to subdivision (c) of section fifty-two hundred forty-two of
28 the civil practice law and rules without other child support enforcement
29 services and that payment of an administrative fee may be required. The
30 court shall provide a copy of any such request for child support
31 enforcement services to the support collection unit of the appropriate
32 social services district any time it directs payments to be made to such
33 support collection unit. Additionally, the copy of any such request
34 shall be accompanied by the name, address and social security number of
35 the parties; the date and place of the parties' marriage; the name and
36 date of birth of the child or children; and the name and address of the
37 employers and income payors of the party from whom child support is
38 sought or from the party ordered to pay child support to the other
39 party. Such direction may require the payment of a sum or sums of money
40 either directly to the custodial parent or to third persons for goods or
41 services furnished for such child, or for both payments to the custodial
42 parent and to such third persons; provided, however, that unless the
43 party seeking or receiving child support has applied for or is receiving
44 such services, the court shall not direct such payments to be made to
45 the support collection unit, as established in section one hundred
46 eleven-h of the social services law. Every order directing the payment
47 of support shall require that if either parent currently, or at any time
48 in the future, has health insurance benefits available that may be
49 extended or obtained to cover the child, such parent is required to
50 exercise the option of additional coverage in favor of such child and
51 execute and deliver to such person any forms, notices, documents or
52 instruments necessary to assure timely payment of any health insurance
53 claims for such child.
54 § 2. This act shall take effect on the ninetieth day after it shall
55 have become a law.
