Bill Text: NY A04784 | 2019-2020 | General Assembly | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Relates to restrictions on a sex offender's custody of or visitation with a child.

Spectrum: Strong Partisan Bill (Democrat 33-2)

Status: (Passed) 2019-08-22 - SIGNED CHAP.182 [A04784 Detail]

Download: New_York-2019-A04784-Amended.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                         4784--A

                               2019-2020 Regular Sessions

                   IN ASSEMBLY

                                    February 5, 2019
                                       ___________

        Introduced  by  M.  of  A.  FALL,  GLICK, HYNDMAN, TAYLOR, SAYEGH, CRUZ,
          COLTON,  ROMEO,  M. L. MILLER,  D'URSO,  CUSICK,  GRIFFIN,   PICHARDO,
          STIRPE,  ARROYO,  COOK, RICHARDSON, RIVERA, BUTTENSCHON, SIMON, ORTIZ,
          WILLIAMS, JEAN-PIERRE, McDONALD, JAFFEE, FRONTUS, NIOU --  Multi-Spon-
          sored by -- M. of A.  DE LA ROSA, EPSTEIN -- read once and referred to
          the  Committee  on  Judiciary  --  committee discharged, bill amended,
          ordered reprinted as amended and recommitted to said committee

        AN ACT to amend the domestic relations law and the  correction  law,  in
          relation to enacting "Marie'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  "Marie's Law".
     3    §  2.  Legislative  intent.  The legislature hereby finds and declares
     4  that under current law, even though the state has  recognized  that  the
     5  best interest of the child is the determining factor in awarding custody
     6  of  a  child, there currently exists a loophole whereby former perpetra-
     7  tors of abuse who are related to and may come into contact with a regis-
     8  tered sex offender may often gain access to a  subject  of  his  or  her
     9  abuse.
    10    By the enactment of the provisions of this act, it is the sense of the
    11  legislature, that additional steps and guidelines are necessary to limit
    12  contact  and restrict custody when a person related to such sex offender
    13  has regular contact with and may have access to a child. Nothing can  be
    14  deemed more of a  state concern than the safety and welfare of our chil-
    15  dren,  and  in recognition of that responsibility, we take steps to help
    16  minimize contact between vulnerable children  and  persons  who  pose  a
    17  significant risk to their safety.
    18    §  3.  Paragraph (b) of subdivision 1-c of section 240 of the domestic
    19  relations law, as amended by chapter 371 of the laws of 2013, is amended
    20  to read as follows:

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD08328-05-9
        A. 4784--A                          2

     1    (b) (i) Notwithstanding any other provision of  this  chapter  to  the
     2  contrary, [there shall be a rebuttable presumption that it is not in the
     3  best  interests  of the child to be placed in the custody of or to visit
     4  with a person] no person shall be granted physical or legal custody  of,
     5  or unsupervised visitation with, a child if the person is required to be
     6  registered as a sex offender pursuant to article six-C of the correction
     7  law  or  who  has  been convicted of one or more of the following sexual
     8  offenses in this state or convicted of one or more offenses  in  another
     9  jurisdiction  which, if committed in this state, would constitute one or
    10  more of the following offenses, when a child who is the subject  of  the
    11  proceeding  was  conceived  as a result: (A) rape in the first or second
    12  degree; (B) course of sexual  conduct  against  a  child  in  the  first
    13  degree;  (C)  predatory  sexual assault; or (D) predatory sexual assault
    14  against a child. The court may grant such physical or legal  custody  or
    15  unsupervised  visitation  with  the  child  only where it finds based on
    16  clear and convincing evidence that there is no significant risk  to  the
    17  child,  including  no  significant  risk that any person related to such
    18  person and with whom such person has regular contact  poses  significant
    19  risk  or  has  in the past been convicted of an offense the court deter-
    20  mined could pose the potential for significant risk to  the  child,  and
    21  states  its  reasons  in  writing or on the record. The child may not be
    22  placed in a home in which that person resides,  nor  permitted  to  have
    23  unsupervised  visitation  with  that person, unless the court states the
    24  reasons for its findings in writing or on the record.
    25    (ii) Notwithstanding any  other  provision  of  this  chapter  to  the
    26  contrary,  no  person  shall be granted physical or legal custody of, or
    27  unsupervised visitation with, a child if anyone residing in the person's
    28  household, or any related person  with  whom  such  person  has  regular
    29  contact,  is  required,  as a result of a felony conviction in which the
    30  victim was a minor, to register as a sex offender  pursuant  to  article
    31  six-C  of  the correction law, unless the court finds based on clear and
    32  convincing evidence there is no significant risk to the child and states
    33  its reasons in writing or on the record. The child may not be placed  in
    34  a  home in which that person resides, nor permitted to have unsupervised
    35  visitation with that person, unless the court states the reasons for its
    36  findings in writing or on the record.
    37    (iii) The fact that a child is permitted unsupervised contact  with  a
    38  person  who is required, as a result of a felony conviction in which the
    39  victim was a minor, to be registered as a sex offender pursuant to arti-
    40  cle six-C of the correction law, or who has regular contact with such  a
    41  person,  shall  be prima facie evidence that the child is at significant
    42  risk.  When making a determination regarding  significant  risk  to  the
    43  child, the prima facie evidence shall constitute a presumption affecting
    44  the  burden  of producing evidence.  However, this presumption shall not
    45  apply if there are factors mitigating against its application, including
    46  whether the party seeking custody or visitation is also required, as the
    47  result of a felony conviction in which the victim was a minor, to regis-
    48  ter as a sex offender pursuant to article six-C of the correction law.
    49    (iv) No person shall be granted custody  of,  or  visitation  with,  a
    50  child  if  the  person has been convicted of rape in the first or second
    51  degree and the child was conceived as a result of that violation.
    52    (v) No person shall be granted custody of, or unsupervised  visitation
    53  with,  a  child  if the person has been convicted of murder in the first
    54  degree and the victim of the murder was the other parent  of  the  child
    55  who  is the subject of the order or is related to such a person and with
    56  whom he or she has regular contact, unless the court finds that there is
        A. 4784--A                          3

     1  no risk to the child's health,  safety,  and  welfare,  and  states  the
     2  reasons for its finding in writing or on the record. In making its find-
     3  ing, the court may consider, among other things, the following:
     4    (A)  the  wishes  of  the child, if the child is of sufficient age and
     5  capacity to reason so as to form an intelligent preference;
     6    (B) credible evidence that the convicted parent was a victim of  abuse
     7  committed  by the deceased parent. That evidence may include, but is not
     8  limited to, written reports by law enforcement agencies,  child  protec-
     9  tive  services or other social welfare agencies, courts, medical facili-
    10  ties, or  other  public  agencies  or  private  nonprofit  organizations
    11  providing services to victims of domestic abuse; or
    12    (C)  testimony  of an expert witness that the convicted parent experi-
    13  ences intimate partner battering.
    14    (vi) Unless and until a custody or visitation order is issued pursuant
    15  to this subdivision, no person shall permit or cause the child to  visit
    16  or  remain in the custody of the convicted parent without the consent of
    17  the child's custodian or legal guardian.
    18    (vii) The court may order child support to be paid by a person subject
    19  to this paragraph to be paid pursuant to  article  four  of  the  family
    20  court act.
    21    (viii)  The  court  shall  not disclose, or cause to be disclosed, the
    22  custodial parent's place of  residence,  place  of  employment,  or  the
    23  child's  school,  unless the court finds that the disclosure would be in
    24  the best interest of the child.
    25    (ix) The court shall  take  notice  of,  but  may  deviate  from,  any
    26  requirement  contained in this section when it determines such deviation
    27  is required by facts pertinent to a decision granting custody and is  in
    28  the best interest of the child.
    29    §  4.  This  act  shall take effect on the sixtieth day after it shall
    30  have become a law.