STATE OF NEW YORK ________________________________________________________________________ 3346--A 2023-2024 Regular Sessions IN ASSEMBLY February 2, 2023 ___________ Introduced by M. of A. HEVESI, SILLITTI, DICKENS, FAHY, CLARK, HUNTER, LAVINE, SEAWRIGHT, SIMON, JACKSON, RIVERA, McDONOUGH, MORINELLO, THIELE, BURDICK, K. BROWN, STIRPE, GONZALEZ-ROJAS, DURSO, OTIS, BRABE- NEC, MANKTELOW, ANGELINO, COOK, GUNTHER, STERN, JEAN-PIERRE, DeSTEFA- NO, BLANKENBUSH, RA, FITZPATRICK, PHEFFER AMATO, ANDERSON, MIKULIN, L. ROSENTHAL, LUPARDO, SIMPSON, EPSTEIN, KELLES, SMITH, JENSEN, BURGOS, JONES, STECK, ZINERMAN, CRUZ, AUBRY, CUNNINGHAM, HAWLEY, PAULIN, BARRETT, RAMOS, GIBBS, JACOBSON, DINOWITZ, REYES, CONRAD, J. A. GIGLIO, MAHER, BLUMENCRANZ, BORES, GANDOLFO -- read once and referred to the Committee on Judiciary -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said commit- tee AN ACT to amend the domestic relations law and the family court act, 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 must ensure children's safety as a threshold 9 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 added by chapter 295 of the laws of 13 2009, are amended to read as follows: 14 (a) In any action or proceeding brought (1) to annul a marriage or to 15 declare the nullity of a void marriage, or (2) for a separation, or (3) EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD06231-02-3
A. 3346--A 2 1 for a divorce, or (4) to obtain, by a writ of habeas corpus or by peti- 2 tion and order to show cause, the custody of or right to visitation with 3 any child of a marriage, the court shall require verification of the 4 status of any child of the marriage with respect to such child's custody 5 and support, including any prior orders, and shall enter orders for 6 custody and support as, in the court's discretion, justice requires, 7 having regard to the circumstances of the case and of the respective 8 parties and to the best interests of the child and subject to the 9 provisions of subdivision one-c of this section. When the parties first 10 appear in court, the court shall advise the parties before proceeding of 11 the right to be represented by counsel of their own choosing, of the 12 right to have an adjournment of no longer than fourteen court days to 13 confer with counsel, and the right to obtain counsel fees and expenses, 14 pursuant to section two hundred thirty-seven of this article. When 15 appropriate, the court shall assign counsel to the parties, pursuant to 16 article two of the family court act. Where either party to an action 17 concerning custody of or a right to visitation with a child alleges in a 18 sworn petition or complaint or sworn answer, cross-petition, counter- 19 claim or other sworn responsive pleading that the other party has 20 committed an act of domestic violence against the party making the alle- 21 gation or a family or household member of either party, as such family 22 or household member is defined in article eight of the family court act, 23 and such allegations are proven by a preponderance of the evidence, the 24 court must consider the effect of such domestic violence upon the best 25 interests of the child, together with such other facts and circumstances 26 as the court deems relevant in making a direction pursuant to this 27 section and state on the record how such findings, facts and circum- 28 stances factored into the direction. If a parent makes a good faith 29 allegation based on a reasonable belief supported by facts that the 30 child is the victim of child abuse, child neglect, or the effects of 31 domestic violence, and if that parent acts lawfully and in good faith in 32 response to that reasonable belief to protect the child or seek treat- 33 ment for the child, then that parent shall not be deprived of custody, 34 visitation or contact with the child, or restricted in custody, visita- 35 tion or contact, based solely on that belief or the reasonable actions 36 taken based on that belief. If an allegation that a child is abused is 37 supported by a preponderance of the evidence, then the court shall 38 consider such evidence of abuse in determining the visitation arrange- 39 ment that is in the best interest of the child, and the court shall not 40 place a child in the custody of a parent who presents a substantial risk 41 of harm to that child, and shall state on the record how such findings 42 were factored into the determination. Where a proceeding filed pursuant 43 to article ten or ten-A of the family court act is pending at the same 44 time as a proceeding brought in the supreme court involving the custody 45 of, or right to visitation with, any child of a marriage, the court 46 presiding over the proceeding under article ten or ten-A of the family 47 court act may jointly hear the dispositional hearing on the petition 48 under article ten or the permanency hearing under article ten-A of the 49 family court act and, upon referral from the supreme court, the hearing 50 to resolve the matter of custody or visitation in the proceeding pending 51 in the supreme court; provided however, the court must determine custody 52 or visitation in accordance with the terms of this section. 53 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-
A. 3346--A 3 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 (a-1)(1) Permanent and initial temporary orders of custody or visita- 55 tion. Prior to the issuance of any permanent or initial temporary order 56 of custody or visitation, the court shall conduct a review of any find-
A. 3346--A 4 1 ings or allegations of child abuse, domestic violence, heightened danger 2 and risk of lethality, and the decisions and reports listed in subpara- 3 graph three of this paragraph. 4 (2) Successive temporary orders of custody or visitation. Prior to the 5 issuance of any successive temporary order of custody or visitation, the 6 court shall conduct a review of any findings or allegations of child 7 abuse, domestic violence, heightened danger and risk of lethality, and 8 the decisions and reports listed in subparagraph three of this para- 9 graph, unless such a review has been conducted within ninety days prior 10 to the issuance of such order. 11 (3) [Decisions] Findings and allegations of child abuse, domestic 12 violence, heightened danger and risk of lethality, and the decisions and 13 reports for review. The court shall conduct a review of the following: 14 (i) related decisions in court proceedings initiated pursuant to arti- 15 cle ten of the family court act, and all warrants issued under the fami- 16 ly court act; [and] 17 (ii) whether either party to the action alleges that the other party 18 to the proceeding has committed, or has threatened to commit, an act of 19 child abuse against such child, or has committed, or has threatened to 20 commit, an act of domestic violence against the party making the allega- 21 tion or a family or household member of either party, as such family or 22 household member is defined in article eight of the family court act; 23 (iii) a history of domestic violence, child abuse or neglect, child 24 sexual abuse or incidents involving harm, or risk of harm, to a child; 25 (iv) police reports, including domestic violence incident reports, 26 reporting incidents involving child abuse or domestic violence; 27 (v) findings and allegations of child abuse, domestic violence, 28 heightened danger and risk of lethality, including but not limited to: 29 (a) an increase in frequency or severity of domestic violence; 30 (b) use or threats to use a weapon or dangerous instrument, or 31 possession of or access to firearms; 32 (c) threats to harm or kill the child, the other party, the other 33 party's children, self or others, or companion animals; 34 (d) sexual abuse or coerced sexual activity of the child or other 35 party; 36 (e) unlawful dissemination or publication of an intimate image, pursu- 37 ant to section 245.15 of the penal law; 38 (f) incidents involving obstruction of breathing or strangulation; 39 (g) a party's pattern of alcohol or substance abuse that places the 40 child at heightened danger or risk of lethality; 41 (h) incidents of violence during pregnancy; 42 (i) incidents of stalking or cyber stalking; and 43 (j) coercive control, as defined in paragraph (d) of subdivision one 44 of section two hundred forty-e of this article; and 45 (vi) reports of the statewide computerized registry of orders of 46 protection established and maintained pursuant to section two hundred 47 twenty-one-a of the executive law, and reports of the sex offender 48 registry established and maintained pursuant to section one hundred 49 sixty-eight-b of the correction law. 50 (4) Conditions of custody or visitation. If the court determines that 51 limitations or restrictions of a party's custody, visitation or contact 52 with the child are necessary pursuant to a review of any findings or 53 allegations of child abuse, domestic violence, heightened danger and 54 risk of lethality, and the decisions and reports listed in subparagraph 55 three of this paragraph, the court shall set forth conditions of custody 56 or visitation in a temporary order of custody or visitation that prior-
A. 3346--A 5 1 itizes the avoidance of significant risk to the child's safety. When 2 the court decides to issue or to not issue such temporary order, the 3 parties shall be notified of their right to appeal, pursuant to article 4 eleven of the family court act. 5 (i) There shall be a rebuttable presumption that the court shall not 6 award, in a temporary order for custody or visitation, sole or joint 7 custody or unsupervised visitation to a party who poses a significant 8 risk to the child's safety. 9 (ii) The court shall state on the record, and in writing, any findings 10 or allegations of child abuse, domestic violence, heightened danger and 11 risk of lethality, and any decisions and reports considered in rendering 12 its decision and the reasons for the limitations or restrictions placed 13 on a party's custody, visitation or contact with such child. 14 (iii) Nothing contained in this subparagraph shall be deemed in any 15 way to limit, restrict, expand or impair the rights of any party to file 16 for a modification of a temporary order as is otherwise provided by law. 17 (5) Notifying counsel and issuing orders. Upon consideration of deci- 18 sions pursuant to article ten of the family court act, and registry 19 reports and notifying counsel involved in the proceeding, or in the 20 event of a self-represented party, notifying such party of the results 21 thereof, including any court appointed attorney for children, the court 22 may issue a temporary, successive temporary or final order of custody or 23 visitation. 24 [(5)] (6) Temporary emergency order. Notwithstanding any other 25 provision of the law, upon emergency situations, including computer 26 malfunctions, to serve the best interest of the child, the court may 27 issue a temporary emergency order for custody or visitation in the event 28 that it is not possible to timely review decisions and reports on regis- 29 tries as required pursuant to subparagraph three of this paragraph. 30 [(6)] (7) After issuing a temporary emergency order. After issuing a 31 temporary emergency order of custody or visitation, the court shall 32 conduct reviews of the decisions and reports on registries as required 33 pursuant to subparagraph three of this paragraph within twenty-four 34 hours of the issuance of such temporary emergency order. Should such 35 twenty-four hour period fall on a day when court is not in session, then 36 the required reviews shall take place the next day the court is in 37 session. Upon reviewing decisions and reports the court shall notify 38 associated counsel, self-represented parties and attorneys for children 39 pursuant to subparagraph [four] five of this paragraph and may issue 40 temporary or permanent custody or visitation orders. 41 [(7)] (8) Feasibility study. The commissioner of the office of chil- 42 dren and family services, in conjunction with the office of court admin- 43 istration, is hereby authorized and directed to examine, study, evaluate 44 and make recommendations concerning the feasibility of the utilization 45 of computers in courts which are connected to the statewide central 46 register of child abuse and maltreatment established and maintained 47 pursuant to section four hundred twenty-two of the social services law, 48 as a means of providing courts with information regarding parties 49 requesting orders of custody or visitation. Such commissioner shall make 50 a preliminary report to the governor and the legislature of findings, 51 conclusions and recommendations not later than January first, two thou- 52 sand nine, and a final report of findings, conclusions and recommenda- 53 tions not later than June first, two thousand nine, and shall submit 54 with the reports such legislative proposals as are deemed necessary to 55 implement the commissioner's recommendations.
A. 3346--A 6 1 § 4. The domestic relations law is amended by adding a new section 2 240-e to read as follows: 3 § 240-e. Custody and visitation; safety of the child. 1. For the 4 purposes of this section, the following terms shall have the following 5 meanings: 6 (a) "Parental alienation" means claims that a child has become 7 estranged from a parent or legal guardian as a result of psychological 8 manipulation by the other parent or legal guardian. 9 (b) "Victim of domestic violence" shall have the same meaning as 10 defined in section four hundred fifty-nine-a of the social services law. 11 (c) "Friendly parent" means the propensity of a parent or legal guard- 12 ian to actively support a child's contact and relationship with the 13 other parent or legal guardian, or the ability of such parent or legal 14 guardian to cooperate in, and resolve disputes, regarding matters 15 affecting such child. 16 (d) "Coercive control" means a pattern of behavior that in purpose or 17 effect unreasonably restricts a parent's safety or autonomy through 18 implicit or explicit threats, or intimidation, or by compelling compli- 19 ance. This conduct includes, but is not limited to: 20 (i) isolating the other parent from friends, family or other sources 21 of support; 22 (ii) interfering with the other parent's freedom of movement; 23 (iii) depriving the other parent of basic necessities such as food, 24 sleep, clothing, housing, medication or medical care; 25 (iv) controlling, regulating, surveilling or monitoring the other 26 parent's movements, communications, daily behavior, appearance, 27 finances, economic resources or access to services; 28 (v) compelling the other parent by force, threat of force or intim- 29 idation, including but not limited to threats based on actual or 30 suspected immigration status, to engage in conduct from which the other 31 parent has a right to abstain or to abstain from conduct in which the 32 other parent has a right to engage; 33 (vi) interfering with the other parent's education or employment; 34 (vii) forcing or compelling the other parent to perform sex acts, or 35 threats of a sexual nature, including but not limited to threatened acts 36 of sexual conduct, threats based on a person's sexuality or threats to 37 release intimate images; or 38 (viii) cleaning, accessing, displaying, using or wearing a firearm or 39 other dangerous weapon in an intimidating or threatening manner. 40 2. Notwithstanding any other provision of law to the contrary, a court 41 making a final determination of custody or visitation based on the best 42 interests of a child pursuant to the provisions of this chapter shall 43 prioritize and promote the safety of such child when making such deter- 44 minations. Only competent, material, and relevant evidence may be admit- 45 ted, pursuant to article ten of the family court act. Promoting the 46 safety of a child shall include preventing direct physical and/or 47 emotional harm to such child. Such assessment shall include, but not be 48 limited to: 49 (a) whether either party is more likely to protect the safety of the 50 child, and whether either party poses a significant risk to the safety 51 of the child; 52 (b) whether such order would disrupt continuity in the child's home, 53 environment or existing primary caretaking relationships; 54 (c) a history of domestic violence, child abuse or neglect, child 55 sexual abuse or incidents involving harm, or risk of harm, to a child;
A. 3346--A 7 1 (d) any findings or allegations of child abuse, domestic violence, 2 heightened danger and risk of lethality, including but not limited to: 3 (i) an increase in frequency or severity of domestic violence; 4 (ii) use or threats to use a weapon or dangerous instrument, or 5 possession of or access to firearms; 6 (iii) threats to harm or kill the child, the other parent, that 7 parent's children, self or others, or companion animals; 8 (iv) sexual abuse or coerced sexual activity of the child or other 9 parent; 10 (v) unlawful dissemination or publication of an intimate image, pursu- 11 ant to section 245.15 of the penal law; 12 (vi) incidents involving obstruction of breathing or strangulation; 13 (vii) a party's pattern of alcohol or substance abuse that places the 14 child at heightened danger or risk of lethality; 15 (viii) incidents of violence during pregnancy; 16 (ix) incidents of stalking or cyber stalking; and 17 (x) coercive control, as defined in paragraph (d) of subdivision one 18 of this section; 19 (e) whether either party has been found to have committed an act which 20 would constitute disorderly conduct, unlawful dissemination or publica- 21 tion of an intimate image, harassment in the first degree, harassment in 22 the second degree, aggravated harassment in the second degree, sexual 23 misconduct, forcible touching, sexual abuse in the third degree, sexual 24 abuse in the second degree as set forth in subdivision one of section 25 130.60 of the penal law, stalking in the first degree, stalking in the 26 second degree, stalking in the third degree, stalking in the fourth 27 degree, criminal mischief, menacing in the second degree, menacing in 28 the third degree, reckless endangerment, criminal obstruction of breath- 29 ing or blood circulation, strangulation in the second degree, strangula- 30 tion in the first degree, assault in the second degree, assault in the 31 third degree, an attempted assault, identity theft in the first degree, 32 identity theft in the second degree, identity theft in the third degree, 33 grand larceny in the fourth degree, grand larceny in the third degree, 34 coercion in the second degree or coercion in the third degree as set 35 forth in subdivisions one, two and three of section 135.60 of the penal 36 law between spouses or former spouses, or between parent and child or 37 between members of the same family or household; 38 (f) whether either party has used or threatened to use a dangerous 39 instrument to harm the other party, child, or a third party, including a 40 firearm, except in incidents involving self-defense, or has unlawfully 41 possessed a weapon or firearm, or has been convicted of criminal 42 possession of a weapon or criminal use of a firearm pursuant to article 43 two hundred sixty-five of the penal law, or is or has been subject to an 44 extreme risk protection order, pursuant to article sixty-three-A of the 45 civil practice law and rules; and 46 (g) which party has been attending to the daily physical, emotional, 47 developmental, educational, and special needs of the child. 48 3. There shall be a rebuttable presumption that custody or visitation 49 shall not be awarded to a party who jeopardizes the safety of the child. 50 4. (a) In any proceeding for custody or visitation where a party cred- 51 ibly alleges domestic violence or child abuse, allegations regarding 52 parental alienation or friendly parent shall not be admissible against 53 the party that has credibly alleged domestic violence or child abuse, 54 nor shall allegations of parental alienation or friendly parent be 55 considered in assessing a child's best interests.
A. 3346--A 8 1 (b) The court shall not presume that a child's reluctance to interact 2 with a party was caused by the other party, nor shall a party be given 3 custody for the purpose of improving a relationship between the child 4 and such party or in an attempt to address the child's reluctance to 5 interact with such party. 6 (c) No psychological or medical theories or labels related to a 7 child's reluctance to interact with a party shall be admitted into 8 evidence unless they are based on empirical proof of scientific reli- 9 ability and validity and generally accepted by the scientific and 10 professional community. 11 (d) No treatment program intended to reunite a child with a party for 12 whom that child is estranged shall be ordered by the court without 13 consent of both parties and the attorney for the child and scientif- 14 ically valid and generally accepted proof of the effectiveness and ther- 15 apeutic value of such program. 16 5. In cases involving domestic violence, child abuse or neglect, or a 17 history of coercive control, or where the parties cannot effectively 18 communicate, cooperate with each other and make joint decisions concern- 19 ing the child, or in cases where there is an existing or prior full stay 20 away order of protection against a party or when there is an existing 21 temporary order of protection entered ex parte, no order of joint custo- 22 dy shall be made without the consent of both parties. The court shall 23 not suggest that in order to retain custody, a party must agree to joint 24 custody. The court shall not use a party's refusal to consent to joint 25 custody against such party when making its final custody or visitation 26 determination. 27 6. (a) Before judges, referees, or other hearing officers preside over 28 child custody proceedings in which one or more parties have alleged 29 domestic violence or child abuse, they shall complete at least thirty 30 hours of initial training for the handling of such cases. The office for 31 the prevention of domestic violence shall, within amounts appropriated 32 for such purpose, contract exclusively with the organization designated 33 by the federal department of health and human services to coordinate 34 statewide improvements within local communities, social services 35 systems, and programming regarding the prevention and intervention of 36 domestic violence in New York state and other nonprofit entities with 37 whom it subcontracts with expertise in child abuse or gender-based 38 violence, to develop such training. Such entity, or entities in partner- 39 ship, shall review and update the training at least once every two 40 years. In consultation with the office of court administration, such 41 entities, or entities in partnership, shall be responsible for providing 42 such training to judges, referees, and other hearing officers handling 43 child custody proceedings. Such training shall include, but not be 44 limited to: 45 (1) a review of relevant statutes and case law pertaining to domestic 46 violence and child abuse; 47 (2) the dynamics and effects of domestic violence and child abuse, 48 including but not limited to, emotional, financial, physical, technolog- 49 ical and sexual abuse, and an understanding of the barriers and fears 50 associated with reporting domestic violence and child abuse and why 51 victims may not have documented evidence of abuse; 52 (3) tactics commonly used by one party to induce fear in, or dominate 53 or control a partner or child, including verbal, emotional, psycholog- 54 ical, and/or economic abuse; isolation; efforts to build trust and an 55 emotional connection with a child to support future manipulation; coer- 56 cive control; exploitation; abuse; threats; controlling and harassing
A. 3346--A 9 1 behaviors, including monitoring of a partner's location and activities; 2 use of oppressive behavior designed to deprive a partner of their rights 3 and liberties and establishing a regime of domination in the partner's 4 personal life; litigation abuse; unlawful dissemination or publication 5 of an intimate image; and demands for custody in order to pressure the 6 partner to return or punish the partner for leaving; 7 (4) knowledge of trauma, particularly as it relates to sexual abuse 8 and the risks posed to children and the long-term dangers and impacts 9 posed by the presence of adverse childhood experiences; 10 (5) the increased risk of escalating violence that occurs during child 11 custody proceedings; 12 (6) how to assess findings or allegations of child abuse, domestic 13 violence, heightened danger and risk of lethality to a child's safety, 14 pursuant to paragraph (d) of subdivision two of this section for the 15 purpose of issuing a temporary emergency order; 16 (7) education regarding the harm courts may cause children in child 17 custody cases where domestic violence or child abuse is present by rely- 18 ing on non-scientific theories such as parental alienation, parental 19 alienation syndrome, the friendly parent concept, or any other theory or 20 label that is not supported by scientific research and not generally 21 accepted by the scientific community and the danger of basing child 22 custody decisions on claims that a child's deficient or negative 23 relationship with a parent is caused by the other parent; 24 (8) the investigation process once a law enforcement agency or a local 25 department of social services has received a report of suspected child 26 abuse, including the limitations of investigating reports of suspected 27 child abuse; and 28 (9) appropriate experience and qualifications of child custody evalu- 29 ators and mental health treatment providers. 30 (b) Once initial training requirements have been met, judges, refer- 31 ees, and other hearing officers presiding over child custody proceedings 32 in which one or more parties have alleged domestic violence or child 33 sexual abuse shall complete at least ten hours of training every two 34 years in order to remain eligible to handle such proceedings. 35 § 5. Subdivision (a) of section 70 of the domestic relations law, as 36 amended by chapter 457 of the laws of 1988, is amended to read as 37 follows: 38 (a) (i) Where a minor child is residing within this state, either 39 parent may apply to the supreme court for a writ of habeas corpus to 40 have such minor child brought before such court; and on the return ther- 41 eof, the court, on due consideration, may award the natural guardian- 42 ship, charge and custody of such child to either parent for such time, 43 under such regulations and restrictions, and with such provisions and 44 directions, as the case may require, and may at any time thereafter 45 vacate or modify such order. In all cases there shall be no prima facie 46 right to the custody of the child in either parent, but the court shall 47 determine solely what is for the best interest of the child, and what 48 will best promote its welfare and happiness, and make award accordingly. 49 Where the court issues any initial or successive temporary order of 50 custody or visitation or permanent order of custody or visitation, the 51 court shall conduct a review of any findings or allegations of child 52 abuse, domestic violence, heightened danger and risk of lethality, and 53 the decisions and reports listed in subparagraph three of paragraph 54 (a-1) of subdivision one of section two hundred forty of this chapter, 55 unless such a review has been conducted within ninety days prior to the 56 issuance of such order.
A. 3346--A 10 1 (ii) When issuing any temporary order of custody or visitation, the 2 court shall state on the record, and in writing, any findings or allega- 3 tions of child abuse, domestic violence, heightened danger and risk of 4 lethality, and the prior decisions and reports considered in rendering 5 its decision and the reasons for any limitations or restrictions placed 6 on a party's custody, visitation or contact with such child. Any party 7 to a proceeding for a temporary order pursuant to this chapter shall 8 have a right to appeal to the appropriate appellate division, pursuant 9 to article eleven of the family court act. 10 (iii) Notwithstanding any other provision of law to the contrary, a 11 court making a final determination of custody or visitation based on the 12 best interests of a child pursuant to the provisions of this chapter 13 shall prioritize and promote the safety of such child when making such 14 determinations. Only competent, material and relevant evidence may be 15 admitted, pursuant to article ten of the family court act. Promoting the 16 safety of a child shall include preventing direct physical and/or 17 emotional harm to such child and shall be assessed by considering any 18 findings or allegations of child abuse, domestic violence, heightened 19 danger and risk of lethality, and decisions and reports identified in 20 subparagraph three of paragraph (a-1) of subdivision one of section two 21 hundred forty of this chapter. 22 (iv) In making a decision pursuant to paragraph (i) of this subdivi- 23 sion, the court shall be bound by the presumptions and admissibility 24 described pursuant to section two hundred forty of this chapter. 25 Further, the court shall not take into consideration whether either 26 party is married, was formerly married or has ever been married to the 27 other party or anyone else. 28 (v) In cases involving domestic violence, child abuse or neglect, or a 29 history of coercive control, or where the parties cannot effectively 30 communicate, cooperate with each other and make joint decisions concern- 31 ing the child, or in cases where there is an existing or prior full stay 32 away order of protection against a party or when there is an existing 33 temporary order of protection entered ex parte, no order of joint custo- 34 dy shall be made without the consent of both parties. The court shall 35 not suggest that in order to retain custody, a party must agree to joint 36 custody. The court shall not use a party's refusal to consent to joint 37 custody against such party when making its final custody or visitation 38 determination, as described in subdivision five of section two hundred 39 forty-e of this chapter. 40 (vi) Before judges, referees and other hearing officers preside over 41 child custody proceedings in which one or more parties have alleged 42 domestic violence or child abuse, they shall complete initial training 43 for the handling of such cases as described pursuant to paragraph a of 44 subdivision six of section two hundred forty-e of this chapter. Once 45 initial training requirements have been met, judges, referees and other 46 hearing officers shall complete additional training every two years as 47 described pursuant to paragraph (b) of subdivision six of section two 48 hundred forty-e of this chapter. 49 § 6. Subdivision (b) of section 651 of the family court act as amended 50 by chapter 657 of the laws of 2003, is amended to read as follows: 51 (b) (i) When initiated in the family court, the family court has 52 jurisdiction to determine, in accordance with subdivision one of section 53 two hundred forty of the domestic relations law and with the same powers 54 possessed by the supreme court in addition to its own powers, habeas 55 corpus proceedings and proceedings brought by petition and order to show 56 cause, for the determination of the custody or visitation of minors,
A. 3346--A 11 1 including applications by a grandparent or grandparents for visitation 2 or custody rights pursuant to section seventy-two or two hundred forty 3 of the domestic relations law. 4 (ii) The family court shall, in collaboration with the office for the 5 prevention of domestic violence, update its petition used by parties to 6 initiate child custody and visitation proceedings in a manner to permit 7 petitioners to identify findings or allegations of child abuse, domestic 8 violence, heightened danger and risk of lethality to a child's safety. 9 § 7. Subdivision (e) of section 651 of the family court act, as 10 amended by chapter 295 of the laws of 2009, is amended to read as 11 follows: 12 (e) The legislature recognizes that the safety of children is of para- 13 mount importance and is an integral element of their best interests. To 14 that end, the legislature finds that judicial decisions regarding custo- 15 dy of, and access to, children must ensure children's safety as a thres- 16 hold issue. 17 1. Permanent and initial temporary orders of custody or visitation. 18 Prior to the issuance of any permanent or initial temporary order of 19 custody or visitation, the court shall conduct a review of any findings 20 or allegations of child abuse, domestic violence, heightened danger and 21 risk of lethality to a child's safety, and the decisions and reports 22 listed in paragraph three of this subdivision. When the parties first 23 appear in court, the court shall advise the parties before proceeding of 24 the right to be represented by counsel of their own choosing, of the 25 right to have an adjournment of no longer than fourteen court days to 26 confer with counsel, and the right to obtain counsel fees and expenses, 27 pursuant to section two hundred thirty-seven of the domestic relations 28 law. When appropriate, the court shall assign counsel to the parties, 29 pursuant to article two of this chapter. 30 2. Successive temporary orders of custody or visitation. Prior to the 31 issuance of any successive temporary order of custody or visitation, the 32 court shall conduct a review of any findings or allegations of child 33 abuse, domestic violence, heightened danger and risk of lethality, and 34 the decisions and reports listed in paragraph three of this subdivision, 35 unless such a review has been conducted within ninety days prior to the 36 issuance of such order. 37 3. [Decisions] Findings and allegations of child abuse, domestic 38 violence, heightened danger and risk of lethality, and the decisions and 39 reports for review. The court shall conduct a review of the following: 40 (i) related decisions in court proceedings initiated pursuant to arti- 41 cle ten of this act, and all warrants issued under this act; [and] 42 (ii) whether either party to the action alleges that the other party 43 to the proceeding has committed, or has threatened to commit, an act of 44 child abuse against such child, or has committed, or has threatened to 45 commit, an act of domestic violence against the party making the allega- 46 tion or a family or household member of either party, as such family or 47 household member is defined in article eight of this chapter; 48 (iii) a history of domestic violence, child abuse or neglect, child 49 sexual abuse or incidents involving harm, or risk of harm, to a child; 50 (iv) police reports, including domestic violence incident reports, 51 reporting incidents involving child abuse or domestic violence; 52 (v) findings and allegations of child abuse, domestic violence, 53 heightened danger and risk of lethality, including but not limited to: 54 (a) an increase in frequency or severity of domestic violence; 55 (b) use or threats to use a weapon or dangerous instrument, or 56 possession of or access to firearms;
A. 3346--A 12 1 (c) threats to harm or kill the child, the other parent, that parent's 2 children, self or others, or companion animals; 3 (d) sexual abuse or coerced sexual activity of the child or other 4 parent; 5 (e) unlawful dissemination or publication of an intimate image, pursu- 6 ant to section 245.15 of the penal law; 7 (f) incidents involving obstruction of breathing or strangulation; 8 (g) a party's pattern of alcohol or substance abuse that places the 9 child at heightened danger or risk of lethality; 10 (h) incidents of violence during pregnancy; 11 (i) incidents of stalking or cyber stalking; and 12 (j) coercive control, as defined in paragraph (d) of subdivision one 13 of section two hundred forty-e of the domestic relations law; and 14 (vi) reports of the statewide computerized registry of orders of 15 protection established and maintained pursuant to section two hundred 16 twenty-one-a of the executive law, and reports of the sex offender 17 registry established and maintained pursuant to section one hundred 18 sixty-eight-b of the correction law. 19 4. Appeal. Such permanent and temporary orders of custody or visita- 20 tion may be taken as of right to the appellate division of the supreme 21 court. Pending the determination of such appeal, such order shall be 22 stayed. A preference in accordance with rule fifty-five hundred twenty- 23 one of the civil practice law and rules shall be afforded, without the 24 necessity of a motion, for appeals under article three; parts one and 25 two of article six; articles seven, ten and ten-A of this act; and 26 sections three hundred fifty-eight-a, three hundred eighty-three-c, 27 three hundred eighty-four, and three hundred eighty-four-b of the social 28 services law. A notice to appeal under this subdivision must be taken 29 no later than twenty court days after the service by a party or the 30 child's attorney upon the appellant of any order from which the appeal 31 is taken, or twenty court days from receipt of the order by the appel- 32 lant in court, whichever is earliest. Except for good cause shown, the 33 appeal hearing shall be expedited and held no later than ninety court 34 days from the notice to appeal. Whenever an attorney has been appointed 35 to represent a party in a proceeding described in this paragraph, the 36 appointment shall continue without further court order or appointment, 37 pursuant to subdivision (b) of section eleven hundred twenty of this 38 chapter. 39 5. Notifying counsel and issuing orders. Upon consideration of deci- 40 sions pursuant to article ten of this act, and registry reports and 41 notifying counsel involved in the proceeding, or in the event of a self- 42 represented party, notifying such party of the results thereof, includ- 43 ing any court appointed attorney for children, the court may issue a 44 temporary, successive temporary or final order of custody or visitation. 45 [5.] 6. Temporary emergency order. Notwithstanding any other provision 46 of the law, upon emergency situations, including computer malfunctions, 47 to serve the best interest of the child, the court may issue a temporary 48 emergency order for custody or visitation in the event that it is not 49 possible to timely review decisions and reports on registries as 50 required pursuant to paragraph three of this subdivision. 51 [6.] 7. After issuing a temporary emergency order. After issuing a 52 temporary emergency order of custody or visitation, the court shall 53 conduct reviews of the decisions and reports on registries as required 54 pursuant to paragraph three of this subdivision within twenty-four hours 55 of the issuance of such temporary emergency order. Should such twenty- 56 four hour period fall on a day when court is not in session, then the
A. 3346--A 13 1 required reviews shall take place the next day the court is in session. 2 Upon reviewing decisions and reports the court shall notify associated 3 counsel, self-represented parties and attorneys for children pursuant to 4 paragraph [four] five of this subdivision and may issue temporary or 5 permanent custody or visitation orders. 6 [7.] 8. Feasibility study. The commissioner of the office of children 7 and family services, in conjunction with the office of court adminis- 8 tration, is hereby authorized and directed to examine, study, evaluate 9 and make recommendations concerning the feasibility of the utilization 10 of computers in family courts which are connected to the statewide 11 central register of child abuse and maltreatment established and main- 12 tained pursuant to section four hundred twenty-two of the social 13 services law, as a means of providing family courts with information 14 regarding parties requesting orders of custody or visitation. Such 15 commissioner shall make a preliminary report to the governor and the 16 legislature of findings, conclusions and recommendations not later than 17 January thirty-first, two thousand nine, and a final report of findings, 18 conclusions and recommendations not later than June first, two thousand 19 nine, and shall submit with the reports such legislative proposals as 20 are deemed necessary to implement the commissioner's recommendations. 21 § 8. Subdivision a of section 1112 of the family court act, as amended 22 by section 28 of part A of chapter 3 of the laws of 2005, is amended to 23 read as follows: 24 a. An appeal may be taken as of right from any order of disposition 25 and, in the discretion of the appropriate appellate division, from any 26 other order under this act. An appeal from an intermediate or final 27 order in a case involving abuse or neglect pursuant to section six 28 hundred fifty-one of this act may be taken as of right to the appellate 29 division of the supreme court. Pending the determination of such 30 appeal, such order shall be stayed where the effect of such order would 31 be to discharge the child, if the family court or the court before which 32 such appeal is pending finds that such a stay is necessary to avoid 33 imminent risk to the child's life or health. A preference in accordance 34 with rule [five thousand five] fifty-five hundred twenty-one of the 35 civil practice law and rules shall be afforded, without the necessity of 36 a motion, for appeals under article three; parts one and two of article 37 six; articles seven, ten, and ten-A of this act; and sections three 38 hundred fifty-eight-a, three hundred eighty-three-c, three hundred 39 eighty-four, and three hundred eighty-four-b of the social services law. 40 § 9. This act shall take effect on the one hundred twentieth day after 41 it shall have become a law. Effective immediately, the addition, amend- 42 ment and/or repeal of any rule or regulation necessary for the implemen- 43 tation of this act on its effective date are authorized to be made and 44 completed on or before such effective date.