Requires the court to consider a child's health and safety when making a decision regarding child custody and visitation; directs the court to review certain information as it relates to allegations of child abuse, domestic violence and child safety; requires the court to appoint an attorney to represent the child when credible allegations of serious risk to the child's safety have been made.
STATE OF NEW YORK
________________________________________________________________________
3170--C
2023-2024 Regular Sessions
IN SENATE
January 30, 2023
___________
Introduced by Sens. SKOUFIS, ADDABBO, ASHBY, BORRELLO, BRESLIN, CANZON-
ERI-FITZPATRICK, CHU, CLEARE, COMRIE, COONEY, GOUNARDES, HARCKHAM,
HINCHEY, HOYLMAN-SIGAL, KRUEGER, MARTINEZ, MARTINS, MATTERA, MAY,
MAYER, MURRAY, MYRIE, OBERACKER, O'MARA, PALUMBO, RAMOS, RHOADS,
RIVERA, ROLISON, SCARCELLA-SPANTON, SEPULVEDA, WEBB, WEBER, WEIK --
read twice and ordered printed, and when printed to be committed to
the Committee on Judiciary -- committee discharged, bill amended,
ordered reprinted as amended and recommitted to said committee --
recommitted to the Committee on Judiciary in accordance with Senate
Rule 6, sec. 8 -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee
AN ACT to amend the domestic relations law, the family court act and the
civil practice law and rules, in relation to establishing "Kyra's Law"
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Short title. This act shall be known and may be cited as
2 "Kyra's Law".
3 § 2. Subdivision 1 of section 240 of the domestic relations law is
4 amended by adding a new opening paragraph to read as follows:
5 The legislature recognizes that the safety of children is of paramount
6 importance and is an integral element of their best interests. To that
7 end, the legislature finds that judicial decisions regarding custody of,
8 and access to, children shall promote the safety of children as a thres-
9 hold issue.
10 § 3. Paragraphs (a) and (a-1) of subdivision 1 of section 240 of the
11 domestic relations law, paragraph (a) as amended by chapter 567 of the
12 laws of 2015 and paragraph (a-1) as amended by chapter 295 of the laws
13 of 2009, are amended to read as follows:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06231-13-4
S. 3170--C 2
1 (a) In any action or proceeding brought (1) to annul a marriage or to
2 declare the nullity of a void marriage, or (2) for a separation, or (3)
3 for a divorce, or (4) to obtain, by a writ of habeas corpus or by peti-
4 tion and order to show cause, the custody of or right to visitation with
5 any child of a marriage, the court shall require verification of the
6 status of any child of the marriage with respect to such child's custody
7 and support, including any prior orders, and shall enter orders for
8 custody and support as, in the court's discretion, justice requires,
9 having regard to the circumstances of the case and of the respective
10 parties and to the best interests of the child and subject to the
11 provisions of subdivision one-c of this section. When the parties first
12 appear in court, the court shall advise the parties before proceeding of
13 the right to be represented by counsel of their own choosing, of the
14 right to have an adjournment of no longer than fourteen court days to
15 confer with counsel, and the right to obtain counsel fees and expenses,
16 pursuant to section two hundred thirty-seven of this article. The court
17 shall assign counsel to the eligible parties and children, pursuant to
18 article two of the family court act and subdivisions seven and eight of
19 section thirty-five of the judiciary law. Where either party to an
20 action concerning custody of or a right to visitation with a child
21 alleges in a sworn petition or complaint or sworn answer, cross-peti-
22 tion, counterclaim or other sworn responsive pleading that the other
23 party has committed an act of domestic violence against the party making
24 the allegation or a family or household member of either party, as such
25 family or household member is defined in article eight of the family
26 court act, and such allegations are proven by a preponderance of the
27 evidence, the court [must] shall consider the effect of such domestic
28 violence upon the best interests of the child, together with such other
29 facts and circumstances as the court deems relevant in making a direc-
30 tion pursuant to this section and state on the record how such findings,
31 facts and circumstances factored into the direction. If a parent makes a
32 good faith allegation based on a reasonable belief supported by facts
33 that the child is the victim of child abuse, child neglect, or the
34 effects of domestic violence, and if that parent acts lawfully and in
35 good faith in response to that reasonable belief to protect the child or
36 seek treatment for the child, then that parent shall not be deprived of
37 custody, visitation or contact with the child, or restricted in custody,
38 visitation or contact, based solely on that belief or the reasonable
39 actions taken based on that belief. If an allegation that a child is
40 abused is supported by a preponderance of the evidence, then the court
41 shall consider such evidence of abuse in determining the visitation
42 arrangement that is in the best interest of the child, and the court
43 shall not place a child in the custody of a parent who presents a
44 substantial risk of harm to that child, and shall state on the record
45 how such findings were factored into the determination. Where a proceed-
46 ing filed pursuant to article ten or ten-A of the family court act is
47 pending at the same time as a proceeding brought in the supreme court
48 involving the custody of, or right to visitation with, any child of a
49 marriage, the court presiding over the proceeding under article ten or
50 ten-A of the family court act may jointly hear the dispositional hearing
51 on the petition under article ten or the permanency hearing under arti-
52 cle ten-A of the family court act and, upon referral from the supreme
53 court, the hearing to resolve the matter of custody or visitation in the
54 proceeding pending in the supreme court; provided however, the court
55 [must] shall determine custody or visitation in accordance with the
56 terms of this section.
S. 3170--C 3
1 An order directing the payment of child support shall contain the
2 social security numbers of the named parties. In all cases there shall
3 be no prima facie right to the custody of the child in either parent.
4 Such direction shall make provision for child support out of the proper-
5 ty of either or both parents. The court shall make its award for child
6 support pursuant to subdivision one-b of this section. Such direction
7 may provide for reasonable visitation rights to the maternal and/or
8 paternal grandparents of any child of the parties. Such direction as it
9 applies to rights of visitation with a child remanded or placed in the
10 care of a person, official, agency or institution pursuant to article
11 ten of the family court act, or pursuant to an instrument approved under
12 section three hundred fifty-eight-a of the social services law, shall be
13 enforceable pursuant to part eight of article ten of the family court
14 act and sections three hundred fifty-eight-a and three hundred eighty-
15 four-a of the social services law and other applicable provisions of law
16 against any person having care and custody, or temporary care and custo-
17 dy, of the child. Notwithstanding any other provision of law, any writ-
18 ten application or motion to the court for the establishment, modifica-
19 tion or enforcement of a child support obligation for persons not in
20 receipt of public assistance and care [must] shall contain either a
21 request for child support enforcement services which would authorize the
22 collection of the support obligation by the immediate issuance of an
23 income execution for support enforcement as provided for by this chap-
24 ter, completed in the manner specified in section one hundred eleven-g
25 of the social services law; or a statement that the applicant has
26 applied for or is in receipt of such services; or a statement that the
27 applicant knows of the availability of such services, has declined them
28 at this time and where support enforcement services pursuant to section
29 one hundred eleven-g of the social services law have been declined that
30 the applicant understands that an income deduction order may be issued
31 pursuant to subdivision (c) of section fifty-two hundred forty-two of
32 the civil practice law and rules without other child support enforcement
33 services and that payment of an administrative fee may be required. The
34 court shall provide a copy of any such request for child support
35 enforcement services to the support collection unit of the appropriate
36 social services district any time it directs payments to be made to such
37 support collection unit. Additionally, the copy of any such request
38 shall be accompanied by the name, address and social security number of
39 the parties; the date and place of the parties' marriage; the name and
40 date of birth of the child or children; and the name and address of the
41 employers and income payors of the party from whom child support is
42 sought or from the party ordered to pay child support to the other
43 party. Such direction may require the payment of a sum or sums of money
44 either directly to the custodial parent or to third persons for goods or
45 services furnished for such child, or for both payments to the custodial
46 parent and to such third persons; provided, however, that unless the
47 party seeking or receiving child support has applied for or is receiving
48 such services, the court shall not direct such payments to be made to
49 the support collection unit, as established in section one hundred
50 eleven-h of the social services law. Every order directing the payment
51 of support shall require that if either parent currently, or at any time
52 in the future, has health insurance benefits available that may be
53 extended or obtained to cover the child, such parent is required to
54 exercise the option of additional coverage in favor of such child and
55 execute and deliver to such person any forms, notices, documents or
S. 3170--C 4
1 instruments necessary to assure timely payment of any health insurance
2 claims for such child.
3 (a-1)(1) [Permanent and initial temporary orders of custody or visita-
4 tion. Prior to the issuance of any permanent or initial temporary order
5 of custody or visitation, the court shall conduct a review of the deci-
6 sions and reports listed in subparagraph three of this paragraph.
7 (2) Successive temporary orders of custody or visitation. Prior to the
8 issuance of any successive temporary order of custody or visitation, the
9 court shall conduct a review of the decisions and reports listed in
10 subparagraph three of this paragraph, unless such a review has been
11 conducted within ninety days prior to the issuance of such order.
12 (3) Decisions and reports for review. The court shall conduct a review
13 of] Prompt evidentiary hearing. Upon the application of any party to an
14 action concerning custody of or visitation with a child, or of an attor-
15 ney for the child, asserting credible allegations of incidents or
16 threats of domestic violence, child abuse or child neglect that, if
17 true, would pose a serious or imminent risk to the safety of the child,
18 the court shall hold a prompt evidentiary hearing to determine whether
19 temporary limitations or conditions on the custody or visitation rights
20 of the party who is alleged to have committed or threatened to commit
21 domestic violence, child abuse or child neglect are necessary to avoid
22 serious or imminent risk to the child's safety. Except for good cause
23 shown, the hearing for such determination shall commence within twenty
24 court days of the application for such hearing. The court shall remind
25 the parties of their right to the assistance of counsel for the prompt
26 evidentiary hearing. During such hearing, only material and relevant
27 evidence shall be admitted. If a party waives his or her right to a
28 hearing under this section, the court shall advise such party at that
29 time that, notwithstanding such waiver, an application under this
30 section may be made at any time during the pendency of the proceedings.
31 After a hearing has been held pursuant to this provision, a party may
32 request a subsequent prompt evidentiary hearing during the pendency of
33 litigation for good cause shown. During a prompt evidentiary hearing,
34 the court shall consider the following, if available:
35 (i) related decisions in court proceedings initiated pursuant to arti-
36 cle ten of the family court act, and all warrants issued under the fami-
37 ly court act; [and]
38 (ii) any party's history of domestic violence, child abuse or child
39 neglect, child sexual abuse or incidents involving harm to a child, or
40 serious or imminent risk to the child's safety;
41 (iii) police reports, including domestic violence incident reports or
42 reporting of incidents involving child abuse, child neglect or domestic
43 violence by a party;
44 (iv) evidence and findings of child abuse, child neglect, domestic
45 violence, or serious or imminent risk to the child's safety, including
46 but not limited to:
47 (a) an increase in frequency or severity of domestic violence;
48 (b) use or threats to use a weapon or dangerous instrument, or unlaw-
49 ful possession of firearms;
50 (c) threats to harm or kill the child, the other party, the other
51 party's children, self or others, or companion animals;
52 (d) sexual abuse or other sexual offenses against the child or the
53 other party;
54 (e) unlawful dissemination or publication of an intimate image, pursu-
55 ant to section 245.15 of the penal law;
56 (f) incidents involving obstruction of breathing or strangulation;
S. 3170--C 5
1 (g) any party's pattern of alcohol or substance abuse that poses seri-
2 ous or imminent risk to the child's safety;
3 (h) incidents of violence during pregnancy;
4 (i) incidents of stalking or cyber stalking; and
5 (j) coercive control, as defined in paragraph (b) of subdivision one
6 of section two hundred forty-e of this article; and
7 (v) reports of the statewide computerized registry of orders of
8 protection established and maintained pursuant to section two hundred
9 twenty-one-a of the executive law, and reports of the sex offender
10 registry established and maintained pursuant to section one hundred
11 sixty-eight-b of the correction law.
12 [(4)] (2) Conditions of custody or visitation. If the court deter-
13 mines that limitations or restrictions of a party's custody, visitation
14 or contact with the child are necessary pursuant to a review of any
15 findings or credible allegations of child abuse, child neglect, domestic
16 violence, or serious or imminent risk to the child's safety, and the
17 decisions and reports listed in subparagraph one of this paragraph, the
18 court shall set forth conditions of custody or visitation in a temporary
19 order of custody or visitation that prioritizes the avoidance of serious
20 or imminent risk to the child's safety.
21 (i) There shall be a rebuttable presumption that the court shall not
22 award, in a temporary order of custody or visitation, sole or joint
23 custody or visitation that is unsupervised or without sufficient
24 protections of the child's safety to a party who poses a serious or
25 imminent risk to the child's safety.
26 (ii) The court shall state in writing any findings of child abuse,
27 child neglect, domestic violence, or serious or imminent risk to the
28 child's safety, and the factors, decisions and reports considered in
29 making such findings and the reasons for the limitations or restrictions
30 placed on a party's custody, visitation or contact with such child.
31 When a prompt evidentiary hearing has been held regarding serious or
32 imminent risk to the child's safety and the court has rendered such
33 decision, the parties shall be notified of their right to appeal.
34 (iii) In addition to the right of appeal regarding a final order, any
35 party or the attorney for the child in a proceeding for a temporary
36 order of custody or visitation pursuant to this subparagraph in which a
37 prompt evidentiary hearing has been held regarding imminent risk to the
38 child's safety pursuant to the provisions of this paragraph shall have a
39 right to appeal the granting or denial of the temporary order, or the
40 terms of such order, to the appropriate appellate division. An appeal
41 under this subparagraph shall be given a preference pursuant to rule
42 five thousand five hundred twenty-one of the civil practice law and
43 rules.
44 A notice of appeal regarding the granting or denial of the temporary
45 order, or the terms of such order, by the supreme court under this
46 subparagraph shall be filed in accordance with subdivision (a) of
47 section five thousand five hundred thirteen of the civil practice law
48 and rules. A notice of appeal regarding the granting or denial of the
49 temporary order, or the terms of such order, by a family court under
50 this subdivision shall be filed no later than thirty days after the
51 service by a party or the child's attorney upon the appellant of any
52 order from which the appeal is taken or receipt of the order in court or
53 thirty-five days from mailing or electronic transmission of the order by
54 the court, whichever is earliest.
55 Pending the determination of such appeal, the appellate division in
56 which the appeal is pending may stay the order on appeal pursuant to
S. 3170--C 6
1 subdivision (c) of section five thousand five hundred nineteen of the
2 civil practice law and rules where such court determines that the effect
3 of the order on appeals creates an imminent risk to the safety of the
4 child and that a stay is necessary to avoid such risk. The party apply-
5 ing for the stay shall notify the attorneys for all parties and the
6 attorney for the child of the time and place of such application. The
7 party applying for the stay shall state in the application the errors of
8 fact or law allegedly committed by the trial court. A party applying to
9 the appellate division for the stay shall make every reasonable effort
10 to obtain a complete transcript of the proceeding before the trial court
11 in accordance with the rules of the applicable appellate division.
12 (iv) Nothing contained in this subparagraph shall be deemed in any way
13 to limit, restrict, expand or impair the rights of any party to file for
14 a modification of a temporary order as is otherwise provided by law.
15 (3) Notifying counsel and issuing orders. Upon consideration of deci-
16 sions pursuant to article ten of the family court act, and registry
17 reports and notifying counsel involved in the proceeding, or in the
18 event of a self-represented party, notifying such party of the results
19 thereof, including any court appointed attorney for children, the court
20 may issue a temporary, successive temporary or final order of custody or
21 visitation.
22 [(5)] (4) Temporary emergency order. Notwithstanding any other
23 provision of the law, upon emergency situations, including computer
24 malfunctions, to serve the best interest of the child, the court may
25 issue a temporary emergency order for custody or visitation in the event
26 that it is not possible to timely review decisions and reports on regis-
27 tries as required pursuant to subparagraph [three] one of this para-
28 graph.
29 [(6)] (5) After issuing a temporary emergency order. After issuing a
30 temporary emergency order of custody or visitation, the court shall
31 conduct reviews of the decisions and reports on registries as required
32 pursuant to subparagraph [three] one of this paragraph within twenty-
33 four hours of the issuance of such temporary emergency order. Should
34 such twenty-four hour period fall on a day when court is not in session,
35 then the required reviews shall take place the next day the court is in
36 session. Upon reviewing decisions and reports the court shall notify
37 associated counsel, self-represented parties and attorneys for children
38 pursuant to subparagraph [four] three of this paragraph and may issue
39 temporary or permanent custody or visitation orders.
40 [(7)] (6) Feasibility study. The commissioner of the office of chil-
41 dren and family services, in conjunction with the office of court admin-
42 istration, is hereby authorized and directed to examine, study, evaluate
43 and make recommendations concerning the feasibility of the utilization
44 of computers in courts which are connected to the statewide central
45 register of child abuse and maltreatment established and maintained
46 pursuant to section four hundred twenty-two of the social services law,
47 as a means of providing courts with information regarding parties
48 requesting orders of custody or visitation. Such commissioner shall make
49 a preliminary report to the governor and the legislature of findings,
50 conclusions and recommendations not later than January first, two thou-
51 sand nine, and a final report of findings, conclusions and recommenda-
52 tions not later than June first, two thousand nine, and shall submit
53 with the reports such legislative proposals as are deemed necessary to
54 implement the commissioner's recommendations.
55 § 4. The domestic relations law is amended by adding a new section
56 240-e to read as follows:
S. 3170--C 7
1 § 240-e. Custody and visitation; safety of the child. The legislature
2 recognizes that the safety of children is of paramount importance and is
3 an integral element of their best interests. To that end, the legisla-
4 ture finds that judicial decisions regarding custody of, and access to,
5 children shall promote the safety of children as a threshold issue. 1.
6 For the purposes of this section, the following terms shall have the
7 following meanings:
8 (a) "Victim of domestic violence" shall have the same meaning as
9 defined in section four hundred fifty-nine-a of the social services law.
10 (b) "Coercive control" means a pattern of behavior that in purpose or
11 effect unreasonably restricts a party's safety or autonomy through
12 implicit or explicit threats, or intimidation, or by compelling compli-
13 ance. This conduct includes, but is not limited to:
14 (i) isolating the other party from friends, family or other sources of
15 support;
16 (ii) interfering with a party's freedom of movement;
17 (iii) depriving the other party of basic necessities such as food,
18 sleep, clothing, housing, medication or medical care;
19 (iv) controlling, regulating, surveilling or monitoring the other
20 party's movements, communications, daily behavior, appearance, finances,
21 economic resources or access to services;
22 (v) compelling the other party by force, threat of force or intim-
23 idation, including but not limited to threats based on actual or
24 suspected immigration status, to engage in conduct from which the other
25 party has a right to abstain or to abstain from conduct in which the
26 other party has a right to engage;
27 (vi) interfering with the other party's education or employment;
28 (vii) forcing or compelling the other party to perform sex acts, or
29 threats of a sexual nature, including but not limited to threatened acts
30 of sexual conduct, threats based on a person's sexuality or threats to
31 release intimate images; or
32 (viii) cleaning, accessing, displaying, using or wearing a firearm or
33 other dangerous weapon in an intimidating or threatening manner.
34 2. Notwithstanding any other provision of law to the contrary, a court
35 making a final determination of custody or visitation based on the best
36 interests of a child pursuant to the provisions of this chapter shall
37 prioritize and promote the safety of such child when making such deter-
38 minations. Only competent, material, and relevant evidence shall be
39 admitted, however, the hearsay statements of the child may be admitted
40 when corroborated by other evidence, pursuant to article ten of the
41 family court act. Promoting the safety of a child shall include prevent-
42 ing direct physical or emotional harm to such child. In making such
43 final determinations, the court, if possible, should consider:
44 (a) which party is more likely to protect the safety of the child, and
45 whether any party poses a serious or imminent risk to the safety of the
46 child;
47 (b) whether any party to the proceeding has committed, or has threat-
48 ened to commit, an act of child abuse or child neglect against the
49 child, or has committed or threatened to commit an act of domestic
50 violence against the party making the allegation, or a family or house-
51 hold member of either party as such family or household member is
52 defined in article eight of the family court act;
53 (c) any party's history of domestic violence, child abuse or child
54 neglect, child sexual abuse or incidents involving harm to a child or
55 serious or imminent risk to the child's safety;
S. 3170--C 8
1 (d) police reports, including domestic violence incident reports or
2 reporting of incidents involving child abuse, child neglect or domestic
3 violence by a party;
4 (e) evidence and findings or allegations of child abuse, child
5 neglect, domestic violence, or serious or imminent risk to the child's
6 safety, including but not limited to:
7 (i) an increase in frequency or severity of domestic violence;
8 (ii) use or threats to use a weapon or dangerous instrument, or unlaw-
9 ful possession of firearms;
10 (iii) threats to harm or kill the child, the other party, the other
11 party's children, self or others, or companion animals;
12 (iv) sexual abuse or other sexual offenses against the child or other
13 party;
14 (v) unlawful dissemination or publication of an intimate image, pursu-
15 ant to section 245.15 of the penal law;
16 (vi) incidents involving obstruction of breathing or strangulation;
17 (vii) any party's pattern of alcohol or substance abuse that poses
18 serious or imminent risk to the child's safety;
19 (viii) incidents of violence during pregnancy;
20 (ix) incidents of stalking or cyber stalking; and
21 (x) coercive control, as defined in paragraph (b) of subdivision one
22 of this section;
23 (f) whether any party has been found to have committed an act pursuant
24 to section eight hundred twelve of the family court act between spouses
25 or former spouses, or between parent and child or between members of the
26 same family or household;
27 (g) whether any party has used or threatened to use a dangerous
28 instrument to harm the other party, child, or a third party, including a
29 firearm, except in incidents involving self-defense, or has unlawfully
30 possessed a weapon or firearm, or has been convicted of criminal
31 possession of a weapon or criminal use of a firearm pursuant to article
32 two hundred sixty-five of the penal law, or is or has been subject to an
33 extreme risk protection order, pursuant to article sixty-three-A of the
34 civil practice law and rules; and
35 (h) which party has been the primary caretaker of the child, primarily
36 attending to the physical, emotional, developmental, educational, and
37 any special needs of the child.
38 3. There shall be a rebuttable presumption that custody or visitation
39 that is unsupervised or without sufficient protection of the child's
40 safety shall not be awarded to a party who poses a serious or imminent
41 risk to the child's safety.
42 4. (a) In any proceeding for custody or visitation where a party
43 asserts credible allegations of incidents or threats of domestic
44 violence, child abuse or child neglect, the court shall not find that
45 the party who has made such allegations has alienated the child against
46 the other party or failed to support the child's relationship with the
47 other party.
48 (b) The court shall not presume that a child's reluctance to interact
49 with a party was caused by the other party, nor shall a party be given
50 custody for the purpose of improving a relationship between the child
51 and such party or in an attempt to address the child's reluctance to
52 interact with such party.
53 (c) In cases involving domestic violence, coercive control, child
54 abuse or child neglect, the court shall not order the child to a
55 reunification camp with a party that poses a serious or imminent risk to
56 the child's safety.
S. 3170--C 9
1 (d) Nothing in this section shall be construed to create an exception
2 to section seven hundred fifty-three of the judiciary law, or any other
3 enforcement provision, such that a party may seek to enforce any proper
4 ruling of the court, unless stayed, concerning access to the child or
5 conditions of access to the child.
6 5. In cases involving domestic violence, coercive control, child abuse
7 or child neglect, there shall be a rebuttable presumption that no order
8 of joint custody shall be made. The court shall not suggest that in
9 order to retain custody, a party must agree to joint custody. The court
10 shall not use a party's refusal to consent to joint custody against such
11 party when making its final custody or visitation determination.
12 6. (a) The chief administrator of the courts shall promulgate and
13 enforce rules mandating comprehensive training on domestic violence,
14 child abuse and child neglect before judges, referees, or other hearing
15 officers preside over child custody proceedings in which one or more
16 parties have alleged domestic violence or child abuse and supplemental
17 training every two years thereafter to remain eligible to preside over
18 such proceedings. Such training shall address current knowledge and law
19 relating to domestic violence, child abuse and child neglect, with the
20 goal of making appropriate custody and visitation decisions that prior-
21 itize children's safety and are culturally sensitive and appropriate for
22 diverse communities. The office of court administration, in consultation
23 with the office for the prevention of domestic violence, shall develop
24 and conduct such training, which shall be reviewed and updated at least
25 once every two years. Such training shall include, but not be limited
26 to:
27 (1) relevant statutes and case law pertaining to domestic violence and
28 child abuse;
29 (2) the power and control dynamics of domestic violence and child
30 abuse, including but not limited to, stalking, and emotional, financial,
31 physical, technological, cyber, sexual, and litigation abuse, and the
32 tactics commonly used to induce fear in or to dominate or control a
33 partner or child, including coercive control;
34 (3) the barriers and fears associated with reporting domestic violence
35 and child abuse and neglect, and the increased risk of escalating
36 violence during child custody and visitation proceedings;
37 (4) the science and experience of trauma and other psychological
38 impacts of abuse in adults and children, including the importance of
39 judges maintaining trauma-informed courts, and the dangers and inadmis-
40 sibility of non-scientific theories, such as parental alienation,
41 parental alienation syndrome, parental gatekeeping, or any other theory
42 that is not supported by scientific research and not generally accepted
43 by the scientific community;
44 (5) the distinction between inappropriate interference with the child-
45 parent relationship versus protective parenting in the context of domes-
46 tic violence or child abuse and neglect;
47 (6) how to consider serious and imminent risk to a child or such
48 child's parent, pursuant to subdivision one of section two hundred forty
49 of this article for the purpose of issuing a temporary order of custody
50 or visitation;
51 (7) best practices in assessing allegations of domestic violence and
52 child abuse and neglect; in assessing the value and limitations of
53 reports of suspected child abuse or neglect conducted by law enforcement
54 or departments of social services; and
55 (8) assessing the qualifications and reports of child custody evalu-
56 ators and mental health treatment providers.
S. 3170--C 10
1 § 5. Section 70 of the domestic relations law, as amended by chapter
2 457 of the laws of 1988, is amended to read as follows:
3 § 70. Habeas corpus for child detained by parent. (a) The legislature
4 recognizes that the safety of children is of paramount importance and is
5 an integral element of their best interests. To that end, the legisla-
6 ture finds that judicial decisions regarding custody of, and access to,
7 children shall promote the safety of children as a threshold issue.
8 (b)(i) Where a minor child is residing within this state, either
9 parent may apply to the supreme court for a writ of habeas corpus to
10 have such minor child brought before such court; and on the return ther-
11 eof, the court, on due consideration, may award the natural guardian-
12 ship, charge and custody of such child to either parent for such time,
13 under such regulations and restrictions, and with such provisions and
14 directions, as the case may require, and may at any time thereafter
15 vacate or modify such order. In all cases there shall be no prima facie
16 right to the custody of the child in either parent, but the court shall
17 determine solely what is for the best interest of the child, and what
18 will best promote its welfare and happiness, and make award accordingly.
19 [(b)] Where the court issues any initial or successive temporary order
20 of custody or visitation or permanent order of custody or visitation,
21 the court shall conduct a review of any findings or credible allegations
22 of child abuse, child neglect, domestic violence, or serious or imminent
23 risk to the child's safety, and the decisions and reports listed in
24 subparagraph one of paragraph (a-1) of subdivision one of section two
25 hundred forty of this chapter, unless such a review has been conducted
26 within ninety days prior to the issuance of such order.
27 (ii) When issuing any temporary order of custody or visitation, the
28 court shall state in writing any findings of child abuse, child neglect,
29 domestic violence, or serious or imminent risk to the child's safety,
30 and the factors, decisions and reports considered in making such find-
31 ings, and the reasons for any limitations or restrictions placed on a
32 party's custody, visitation or contact with such child. Any party or the
33 attorney for the child in a proceeding for a temporary order in which a
34 prompt evidentiary hearing has been held regarding imminent risk to the
35 child's safety pursuant to this chapter shall have a right to appeal to
36 the appropriate appellate division, pursuant to article eleven of the
37 family court act.
38 (iii) Notwithstanding any other provision of law to the contrary, a
39 court making a final determination of custody or visitation based on the
40 best interests of a child pursuant to the provisions of this chapter
41 shall prioritize and promote the safety of such child when making such
42 determinations. Only competent, material and relevant evidence shall be
43 admitted, pursuant to article ten of the family court act, however the
44 hearsay statements of the child may be admitted when corroborated by
45 other evidence. Promoting the safety of a child shall include preventing
46 direct physical or emotional harm to such child and shall be assessed by
47 considering any findings or credible allegations of child abuse, child
48 neglect, domestic violence, or serious or imminent risk to the child's
49 safety, and decisions and reports identified in subparagraph one of
50 paragraph (a-1) of subdivision one of section two hundred forty of this
51 chapter.
52 (iv) In making a decision pursuant to paragraph (i) of this subdivi-
53 sion, the court shall be bound by the presumptions and admissibility
54 described pursuant to section two hundred forty of this chapter.
55 Further, the court shall not take into consideration whether either
S. 3170--C 11
1 party is married, was formerly married or has ever been married to the
2 other party or anyone else.
3 (v) In cases involving domestic violence, coercive control, child
4 abuse or child neglect, there shall be a rebuttable presumption that no
5 order of joint custody shall be made. The court shall not suggest that
6 in order to retain custody, a party must agree to joint custody. The
7 court shall not use a party's refusal to consent to joint custody
8 against such party when making its final custody or visitation determi-
9 nation, as described in subdivision five of section two hundred forty-e
10 of this chapter.
11 (vi) Before judges, referees and other hearing officers preside over
12 child custody proceedings in which one or more parties have alleged
13 domestic violence or child abuse, they shall complete initial training
14 for the handling of such cases as described pursuant to paragraph (a) of
15 subdivision six of section two hundred forty-e of this chapter. Once
16 initial training requirements have been met, judges, referees and other
17 hearing officers shall complete additional training every two years
18 thereafter to remain eligible to preside over such proceedings as
19 described pursuant to paragraph (a) of subdivision six of section two
20 hundred forty-e of this chapter.
21 (c) Any order under this section which applies to rights of visitation
22 with a child remanded or placed in the care of a person, official, agen-
23 cy or institution pursuant to article ten of the family court act or
24 pursuant to an instrument approved under section three hundred fifty-
25 eight-a of the social services law, shall be enforceable pursuant to the
26 provisions of part eight of article ten of such act, sections three
27 hundred fifty-eight-a and three hundred eighty-four-a of the social
28 services law and other applicable provisions of law against any person
29 or official having care and custody, or temporary care and custody, of
30 such child.
31 § 6. Subdivision (b) of section 651 of the family court act, as
32 amended by chapter 657 of the laws of 2003, is amended to read as
33 follows:
34 (b) (i) When initiated in the family court, the family court has
35 jurisdiction to determine, in accordance with subdivision one of section
36 two hundred forty of the domestic relations law and with the same powers
37 possessed by the supreme court in addition to its own powers, habeas
38 corpus proceedings and proceedings brought by petition and order to show
39 cause, for the determination of the custody or visitation of minors,
40 including applications by a grandparent or grandparents for visitation
41 or custody rights pursuant to section seventy-two or two hundred forty
42 of the domestic relations law.
43 (ii) The family court shall, in collaboration with the office for the
44 prevention of domestic violence, update its petition used by parties to
45 initiate child custody and visitation proceedings in a manner to permit
46 petitioners to identify findings or allegations of child abuse, child
47 neglect, domestic violence, or serious or imminent risk to a child's
48 safety.
49 § 7. Subdivision (e) of section 651 of the family court act, as
50 amended by chapter 295 of the laws of 2009, is amended to read as
51 follows:
52 (e) The legislature recognizes that the safety of children is of para-
53 mount importance and is an integral element of their best interests. To
54 that end, the legislature finds that judicial decisions regarding custo-
55 dy of, and access to, children shall promote the safety of children as a
56 threshold issue.
S. 3170--C 12
1 1. [Permanent and initial temporary orders of custody or visitation.
2 Prior to the issuance of any permanent or initial temporary order of
3 custody or visitation, the court shall conduct a review of the decisions
4 and reports listed in paragraph three of this subdivision.] Prompt
5 evidentiary hearing. Upon the application of a party to an action
6 concerning custody of or visitation with a child, or of an attorney for
7 the child, asserting credible allegations of incidents or threats of
8 domestic violence, child abuse or child neglect that, if true, would
9 pose a serious or imminent risk to the safety of the child, the court
10 shall hold a prompt evidentiary hearing to determine whether temporary
11 limitations or conditions on the custody or visitation rights of the
12 party who is alleged to have committed or threatened to commit domestic
13 violence, child abuse or child neglect are necessary to avoid serious or
14 imminent risk to the child's safety, pursuant to paragraph (a-1) of
15 subdivision one of section two hundred forty and section two hundred
16 forty-e of the domestic relations law. When the parties first appear in
17 court, the court shall advise the parties before proceeding of the right
18 to be represented by counsel of their own choosing, of the right to have
19 an adjournment of no longer than fourteen court days to confer with
20 counsel, and the right to obtain counsel fees and expenses, pursuant to
21 section two hundred thirty-seven of the domestic relations law. The
22 court shall assign counsel to the eligible parties and children, pursu-
23 ant to article two of this chapter and subdivisions seven and eight of
24 section thirty-five of the judiciary law.
25 2. [Successive temporary orders of custody or visitation. Prior to the
26 issuance of any successive temporary order of custody or visitation, the
27 court shall conduct a review of the decisions and reports listed in
28 paragraph three of this subdivision, unless such a review has been
29 conducted within ninety days prior to the issuance of such order.
30 3. Decisions] Findings and allegations of child abuse, child neglect,
31 domestic violence, and serious or imminent risk to a child's safety, and
32 the decisions and reports for review. The court shall conduct a review
33 of the following, if available:
34 (i) related decisions in court proceedings initiated pursuant to arti-
35 cle ten of this act, and all warrants issued under this act; [and]
36 (ii) whether any party to the action alleges that the other party to
37 the proceeding has committed, or has threatened to commit, an act of
38 child abuse or child neglect against the child, or has committed, or has
39 threatened to commit, an act of domestic violence against the party
40 making the allegation or a family or household member of either party,
41 as such family or household member is defined in article eight of this
42 chapter;
43 (iii) any party's history of domestic violence, child abuse or child
44 neglect, child sexual abuse or incidents involving harm to a child, or
45 serious or imminent risk to a child's safety;
46 (iv) police reports, including domestic violence incident reports, or
47 reporting of incidents involving child abuse, child neglect or domestic
48 violence by a party;
49 (v) evidence, findings and credible allegations of child abuse, child
50 neglect, domestic violence, or serious or imminent risk to a child's
51 safety, including but not limited to:
52 (a) an increase in frequency or severity of domestic violence;
53 (b) use or threats to use a weapon or dangerous instrument, or unlaw-
54 ful possession of firearms;
55 (c) threats to harm or kill the child, the other party, the other
56 party's children, self or others, or companion animals;
S. 3170--C 13
1 (d) sexual abuse or other sexual offenses against the child or other
2 party;
3 (e) unlawful dissemination or publication of an intimate image, pursu-
4 ant to section 245.15 of the penal law;
5 (f) incidents involving obstruction of breathing or strangulation;
6 (g) any party's pattern of alcohol or substance abuse that poses seri-
7 ous or imminent risk to the child's safety;
8 (h) incidents of violence during pregnancy;
9 (i) incidents of stalking or cyber stalking; and
10 (j) coercive control, as defined in paragraph (b) of subdivision one
11 of section two hundred forty-e of the domestic relations law; and
12 (vi) reports of the statewide computerized registry of orders of
13 protection established and maintained pursuant to section two hundred
14 twenty-one-a of the executive law, and reports of the sex offender
15 registry established and maintained pursuant to section one hundred
16 sixty-eight-b of the correction law.
17 3. Appeal. In addition to the right of appeal regarding a final order,
18 any party or the attorney for the child in a proceeding for a temporary
19 order of custody or visitation pursuant to this paragraph in which a
20 prompt evidentiary hearing has been held regarding imminent risk to the
21 child's safety by reason of a family offense or child maltreatment in an
22 application for a permanent or temporary order of custody or visitation
23 shall have a right to appeal the granting or denial of the temporary
24 order, or the terms of such order, to the appropriate appellate divi-
25 sion. An appeal under this subparagraph shall be given a preference
26 pursuant to rule five thousand five hundred twenty-one of the civil
27 practice law and rules.
28 A notice of appeal regarding the granting or denial of the temporary
29 order, or the terms of such order, by the supreme court under this
30 subdivision shall be filed in accordance with subdivision (a) of section
31 five thousand five hundred thirteen of the civil practice law and rules.
32 A notice of appeal regarding the granting or denial of the temporary
33 order, or the terms of such order, by a family court under this subdivi-
34 sion shall be filed no later than thirty days after the service by a
35 party or the child's attorney upon the appellant of any order from which
36 the appeal is taken or receipt of the order in court or thirty-five days
37 from mailing or electronic transmission of the order by the court,
38 whichever is earliest.
39 Pending the determination of such appeal, the appellate division in
40 which the appeal is pending may stay the order on appeal pursuant to
41 subdivision (c) of section five thousand five hundred nineteen of the
42 civil practice law and rules where such court determines that the effect
43 of the order on appeals creates an imminent risk to the safety of the
44 child and that a stay is necessary to avoid such risk. The party apply-
45 ing for the stay shall notify the attorneys for all parties and the
46 attorney for the child of the time and place of such application. The
47 party applying for the stay shall state in the application the errors of
48 fact or law allegedly committed by the trial court. A party applying to
49 the appellate division for the stay shall make every reasonable effort
50 to obtain a complete transcript of the proceeding before the trial court
51 in accordance with the rules of the applicable appellate division.
52 4. Notifying counsel and issuing orders. Upon consideration of deci-
53 sions pursuant to article ten of this act, and registry reports and
54 notifying counsel involved in the proceeding, or in the event of a self-
55 represented party, notifying such party of the results thereof, includ-
S. 3170--C 14
1 ing any court appointed attorney for children, the court may issue a
2 temporary, successive temporary or final order of custody or visitation.
3 5. Temporary emergency order. Notwithstanding any other provision of
4 the law, upon emergency situations, including computer malfunctions, to
5 serve the best interest of the child, the court may issue a temporary
6 emergency order for custody or visitation in the event that it is not
7 possible to timely review decisions and reports on registries as
8 required pursuant to paragraph [three] two of this subdivision.
9 6. After issuing a temporary emergency order. After issuing a tempo-
10 rary emergency order of custody or visitation, the court shall conduct
11 reviews of the decisions and reports on registries as required pursuant
12 to paragraph [three] two of this subdivision within twenty-four hours of
13 the issuance of such temporary emergency order. Should such twenty-four
14 hour period fall on a day when court is not in session, then the
15 required reviews shall take place the next day the court is in session.
16 Upon reviewing decisions and reports the court shall notify associated
17 counsel, self-represented parties and attorneys for children pursuant to
18 paragraph four of this subdivision and may issue temporary or permanent
19 custody or visitation orders.
20 7. Feasibility study. The commissioner of the office of children and
21 family services, in conjunction with the office of court administration,
22 is hereby authorized and directed to examine, study, evaluate and make
23 recommendations concerning the feasibility of the utilization of comput-
24 ers in family courts which are connected to the statewide central regis-
25 ter of child abuse and maltreatment established and maintained pursuant
26 to section four hundred twenty-two of the social services law, as a
27 means of providing family courts with information regarding parties
28 requesting orders of custody or visitation. Such commissioner shall make
29 a preliminary report to the governor and the legislature of findings,
30 conclusions and recommendations not later than January thirty-first, two
31 thousand nine, and a final report of findings, conclusions and recommen-
32 dations not later than June first, two thousand nine, and shall submit
33 with the reports such legislative proposals as are deemed necessary to
34 implement the commissioner's recommendations.
35 § 8. Subdivision a of section 1112 of the family court act, as amended
36 by section 28 of part A of chapter 3 of the laws of 2005, is amended to
37 read as follows:
38 a. An appeal may be taken as of right from any order of disposition
39 and, in the discretion of the appropriate appellate division, from any
40 other order under this act. An appeal may be taken as of right to the
41 appropriate appellate division of the supreme court from an intermediate
42 or final order in a case involving abuse or neglect [may be taken as of
43 right to the appellate division of the supreme court] under article ten
44 of this act or from an order of the court after a prompt evidentiary
45 hearing under section six hundred fifty-one of this act or section
46 seventy or two hundred forty of the domestic relations law determining
47 an allegation of imminent risk to the child's safety and granting or
48 denying a temporary emergency order of custody or visitation. (i) Pend-
49 ing the determination of such appeal, such order shall be stayed where
50 the effect of [such] the order on appeal would be to discharge the
51 child[, if the family court or the court before which such appeal is
52 pending finds that such a stay is necessary to avoid imminent risk to
53 the child's life or health] in a case alleging abuse or neglect pursuant
54 to article ten of this act. In an appeal from an order in a custody or
55 visitation proceeding under article six of this act or section seventy
56 or two hundred forty of the domestic relations law that was issued upon
S. 3170--C 15
1 a prompt evidentiary hearing regarding an allegation of imminent risk to
2 a child's safety, the court before which the appeal is taken may stay
3 the order on appeal where the order would cause an imminent risk to the
4 child's safety during the pendency of the appeal and where such court
5 finds that a stay is necessary to avoid such imminent risk. (ii) A
6 preference in accordance with rule five thousand five hundred twenty-one
7 of the civil practice law and rules shall be afforded, without the
8 necessity of a motion, for appeals under article three; parts one and
9 two of article six; articles seven, ten, and ten-A of this act; and
10 sections three hundred fifty-eight-a, three hundred eighty-three-c,
11 three hundred eighty-four, and three hundred eighty-four-b of the social
12 services law and appeals from orders issued under part three of article
13 six of this act or section seventy or two hundred forty of the domestic
14 relations law upon a prompt evidentiary hearing regarding an allegation
15 of imminent risk to the child's safety.
16 § 9. Subdivision (d) of section 1114 of the family court act, as
17 amended by chapter 41 of the laws of 2010, is amended to read as
18 follows:
19 (d) Any party to a child protective proceeding, or the attorney for
20 the child, may apply to a justice of the appellate division for a stay
21 of an order issued pursuant to part two of article ten of this chapter
22 returning a child to the custody of a respondent. Such an application
23 may also be made in accordance with section one thousand one hundred
24 twelve of this act or subdivision (c) of section five thousand five
25 hundred nineteen of the civil practice law and rules to stay a court
26 order of custody or visitation pursuant to this act or the domestic
27 relations law where the order on appeal would cause an imminent risk to
28 the child's safety and where the court before which such appeal is pend-
29 ing finds that such a stay is necessary to avoid such imminent risk. The
30 party applying for the stay shall notify the attorneys for all parties
31 and the attorney for the child of the time and place of such applica-
32 tion. If requested by any party present, oral argument shall be had on
33 the application, except for good cause stated upon the record. The party
34 applying for the stay shall state in the application the errors of fact
35 or law allegedly committed by the [family] trial court. A party applying
36 to the [court] appellate division for the granting or continuation of
37 such stay shall make every reasonable effort to obtain a complete tran-
38 script of the proceeding before the [family] trial court in accordance
39 with the rules of the applicable appellate division.
40 § 10. Subdivision (a) of section 249 of the family court act, as
41 amended by chapter 3 of the laws of 2012, is amended to read as follows:
42 (a) In a proceeding under article three, seven, ten, ten-A or ten-C of
43 this act or where a revocation of an adoption consent is opposed under
44 section one hundred fifteen-b of the domestic relations law or in any
45 proceeding under section three hundred fifty-eight-a, three hundred
46 eighty-three-c, three hundred eighty-four or three hundred eighty-four-b
47 of the social services law or when a minor is sought to be placed in
48 protective custody under section one hundred fifty-eight of this act or
49 in any proceeding where a minor is detained under or governed by the
50 interstate compact for juveniles established pursuant to section five
51 hundred one-e of the executive law, the family court shall appoint an
52 attorney to represent a minor who is the subject of the proceeding or
53 who is sought to be placed in protective custody, if independent legal
54 representation is not available to such minor. In any proceeding to
55 extend or continue the placement of a juvenile delinquent or person in
56 need of supervision pursuant to section seven hundred fifty-six or 353.3
S. 3170--C 16
1 of this act or any proceeding to extend or continue a commitment to the
2 custody of the commissioner of mental health or the commissioner of
3 people with developmental disabilities pursuant to section 322.2 of this
4 act, the court shall not permit the respondent to waive the right to be
5 represented by counsel chosen by the respondent, respondent's parent, or
6 other person legally responsible for the respondent's care, or by
7 assigned counsel. In any proceeding under article ten-B of this act, the
8 family court shall appoint an attorney to represent a youth, under the
9 age of twenty-one, who is the subject of the proceeding, if independent
10 legal representation is not available to such youth. In any proceeding
11 under article six of this act, the court shall appoint an attorney to
12 represent the child when credible allegations of serious or imminent
13 risk to the child's safety have been made. In any other proceeding in
14 which the court has jurisdiction, including all proceedings under arti-
15 cle six of this act, the court may appoint an attorney to represent the
16 child, when, in the opinion of the family court judge, such represen-
17 tation will serve the purposes of this act, if independent legal counsel
18 is not available to the child. The family court on its own motion may
19 make such appointment.
20 § 11. Subdivision (a) of section 249 of the family court act, as
21 amended by chapter 672 of the laws of 2019, is amended to read as
22 follows:
23 (a) In a proceeding under article three, seven, ten, ten-A or ten-C of
24 this act or where a revocation of an adoption consent is opposed under
25 section one hundred fifteen-b of the domestic relations law or in any
26 proceeding under section three hundred fifty-eight-a, three hundred
27 eighty-three-c, three hundred eighty-four or three hundred eighty-four-b
28 of the social services law or when a minor is sought to be placed in
29 protective custody under section one hundred fifty-eight of this act,
30 the family court shall appoint an attorney to represent a minor who is
31 the subject of the proceeding or who is sought to be placed in protec-
32 tive custody, if independent legal representation is not available to
33 such minor. In any proceeding to extend or continue the placement of a
34 juvenile delinquent or person in need of supervision pursuant to section
35 seven hundred fifty-six or 353.3 of this act or any proceeding to extend
36 or continue a commitment to the custody of the commissioner of mental
37 health or the commissioner of the office for people with developmental
38 disabilities pursuant to section 322.2 of this act, the court shall not
39 permit the respondent to waive the right to be represented by counsel
40 chosen by the respondent, respondent's parent, or other person legally
41 responsible for the respondent's care, or by assigned counsel. In any
42 proceeding under article ten-B of this act, the family court shall
43 appoint an attorney to represent a youth, under the age of twenty-one,
44 who is the subject of the proceeding, if independent legal represen-
45 tation is not available to such youth. In any proceeding under article
46 six of this act, the court shall appoint an attorney to represent the
47 child when credible allegations of serious or imminent risk to the
48 child's safety have been made. In any other proceeding in which the
49 court has jurisdiction, including all proceedings under article six of
50 this act, the court may appoint an attorney to represent the child,
51 when, in the opinion of the family court judge, such representation will
52 serve the purposes of this act, if independent legal counsel is not
53 available to the child. The family court on its own motion may make such
54 appointment.
S. 3170--C 17
1 § 12. Subdivision (b) of rule 5521 of the civil practice law and
2 rules, as amended by chapter 707 of the laws of 2019, is amended to read
3 as follows:
4 (b) Consistent with the provisions of section one thousand one hundred
5 twelve of the family court act, appeals from orders, judgments or
6 decrees in proceedings brought pursuant to articles three, seven, ten
7 and ten-A and parts one and two of article six of the family court act,
8 and pursuant to sections three hundred fifty-eight-a, three hundred
9 eighty-three-c, three hundred eighty-four, and three hundred eighty-
10 four-b of the social services law, and pursuant to paragraph (d) of
11 subdivision four and subparagraph (ii) of paragraph (d) of subdivision
12 five of section eighty-nine of the public officers law, and appeals from
13 orders issued under part three of article six of the family court act or
14 section seventy or two hundred forty of the domestic relations law upon
15 a prompt evidentiary hearing regarding an allegation of imminent risk to
16 a child's safety shall be given preference and may be brought on for
17 argument on such terms and conditions as the court may direct without
18 the necessity of a motion.
19 § 13. This act shall take effect on the one hundred twentieth day
20 after it shall have become a law; provided, however, that the amendments
21 to subdivision (a) of section 249 of the family court act made by
22 section ten of this act shall be subject to the expiration and reversion
23 of such subdivision pursuant to section 8 of chapter 29 of the laws of
24 2011, as amended, when upon such date the provisions of section eleven
25 of this act shall take effect. Effective immediately, the addition,
26 amendment and/or repeal of any rule or regulation necessary for the
27 implementation of this act on its effective date are authorized to be
28 made and completed on or before such effective date.
