Bill Text: NY S01584 | 2021-2022 | General Assembly | Introduced
Bill Title: Relates to establishing procedure guidelines for custody agreements including those involving child abuse, family violence and/or domestic violence; provides guidelines regarding the best interests of the child standard and the awarding of supervised or unsupervised visitation for offending parents.
Spectrum: Moderate Partisan Bill (Democrat 8-2)
Status: (Introduced - Dead) 2022-01-05 - REFERRED TO CHILDREN AND FAMILIES [S01584 Detail]
Download: New_York-2021-S01584-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 1584 2021-2022 Regular Sessions IN SENATE January 13, 2021 ___________ Introduced by Sens. SANDERS, THOMAS -- read twice and ordered printed, and when printed to be committed to the Committee on Children and Families AN ACT to amend the domestic relations law, in relation to establishing procedure guidelines for custody agreements involving child abuse, family violence and/or domestic violence The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Paragraph (a) of subdivision 1 of section 240 of the domes- 2 tic relations law, as amended by chapter 567 of the laws of 2015, is 3 amended to read as follows: 4 (a) (1) In any action or proceeding brought [(1)] to annul a marriage 5 or to declare the nullity of a void marriage, or [(2)] for a separation, 6 or [(3)] for a divorce, or [(4)] to obtain, by a writ of habeas corpus 7 or by petition and order to show cause, the custody of or right to visi- 8 tation with any child of a marriage, the court shall require verifica- 9 tion of the status of any child of the marriage with respect to such 10 child's custody and support, including any prior orders, and shall enter 11 orders for custody and support as, in the court's discretion, justice 12 requires, having regard to the circumstances of the case and of the 13 respective parties and to the best interests of the child and subject to 14 the provisions of subdivision one-c of this section. Where either party 15 to an action concerning custody of or a right to visitation with a child 16 alleges in a sworn petition or complaint or sworn answer, cross-peti- 17 tion, counterclaim or other sworn responsive pleading that the other 18 party has committed an act of child abuse against the child, or commit- 19 ted an act of family violence or domestic violence against the party 20 making the allegation or a family or household member of either party, 21 as such family or household member is defined in article eight of the 22 family court act, [and such allegations are proven by a preponderance of23the evidence, the court must consider the effect of such domesticEXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD06004-01-1S. 1584 2 1violence upon the best interests of the child, together with such other2facts and circumstances as the court deems relevant in making a direc-3tion pursuant to this section and state on the record how such findings,4facts and circumstances factored into the direction] the court must 5 first, before considering any other best interest factors, hear and 6 determine upon competent admissible evidence the allegations set forth, 7 and enter findings regarding any child abuse, family violence or domes- 8 tic abuse; with the evidentiary hearing for such determination to be 9 held within thirty days of the filing of the verified pleading. The 10 court shall not be precluded, however, from issuing any necessary emer- 11 gency orders to protect the child. All costs, including attorney and 12 expert fees incurred by the non-offending parent and the child, shall be 13 paid by the parent who is found to have committed child abuse or domes- 14 tic violence, unless the offending parent has insufficient means to fund 15 such activities. If the court finds by a preponderance of the evidence 16 that a parent has perpetrated family abuse, including sexual abuse of 17 any family member, the court shall not award sole or joint custody or 18 unsupervised visitation of any children to that parent, unless: 19 (i) the parent is not abusing alcohol or illegally using psychoactive 20 drugs; 21 (ii) the offending parent's custody is necessary due to the other 22 parent's absence, verifiably medically diagnosed mental illness or 23 substance abuse; and 24 (iii) the child is comfortable with unsupervised contact, as verified 25 by a child therapist or evaluator with documented expertise in the 26 pertinent type or types of abuse. 27 (2) If a parent makes a good faith allegation based on a reasonable 28 belief supported by facts that the child is the victim of child abuse, 29 child neglect, or the effects of domestic violence, and if that parent 30 acts lawfully and in good faith in response to that reasonable belief to 31 protect the child or seek treatment for the child, then that parent 32 shall not be deprived of custody, visitation or contact with the child, 33 or restricted in custody, visitation or contact, based solely on that 34 belief or the reasonable actions taken based on that belief. [If an35allegation that a child is abused is supported by a preponderance of the36evidence, then the court shall consider such evidence of abuse in deter-37mining the visitation arrangement that is in the best interest of the38child, and the court shall not place a child in the custody of a parent39who presents a substantial risk of harm to that child, and shall state40on the record how such findings were factored into the determination] If 41 the court finds by clear and convincing evidence an act of child abuse 42 or a pattern of domestic violence, including sexual abuse and trauma, by 43 a parent, the court shall award sole physical custody of the child to 44 the safe parent or party and shall suspend any physical custody with the 45 offending parent, except that it may award supervised physical custody 46 if it is in the best interest of the child and such supervised physical 47 contact is protective of the health and safety of the child. Before such 48 supervised physical custody may begin, the court shall issue a super- 49 vised physical custody plan, including: 50 (i) restrictions, conditions and safeguards necessary to minimize any 51 risk of harm to the child, including but not limited to restricting the 52 offending parent from possessing a firearm during such supervised phys- 53 ical custody; 54 (ii) specific measures the offending parent must take for supervised 55 physical custody to continue;S. 1584 3 1 (iii) the duration supervised visitation shall continue, assuming all 2 conditions in the supervised physical custody plan are consistently and 3 continually met; and 4 (iv) specific measures the offending parent must complete in order for 5 supervised physical custody to end. 6 (3) (i) Court ordered supervised visitation shall continue unabated 7 until the court issues written findings of the evidentiary hearing and 8 the conditions of the supervised physical custody plan terminating said 9 visitation. 10 (ii) A supervised physical custody arrangement imposed on a parent by 11 a court shall be conducted by a court-approved professional with exper- 12 tise in domestic violence and/or child abuse, in a therapeutic setting 13 and under conditions that ensure the health and safety of the child. The 14 supervised physical custody arrangement shall not be conducted in either 15 parent's home and shall not extend overnight. 16 (iii) If an offending parent commits additional harm to the child, the 17 non-offending parent, or another individual in the non-offending 18 parent's household, when supervised physical custody arrangements are 19 ongoing, the court will immediately suspend future physical custody 20 arrangements until such time as the court can re-evaluate and revise the 21 previously issued supervised physical custody plan. Supervised physical 22 custody arrangements will not be re-initiated unless and until the court 23 can implement additional measures to minimize any risk of harm to the 24 child. The court shall explain the additional measures in writing. 25 (iv) Unsupervised visitation with the offending parent shall not occur 26 prior to the court's written determination that such unsupervised visi- 27 tation is in the child's best interests. Such determination shall be 28 made based upon factors, including, but not limited to: 29 (A) whether the offending parent completed the specific measures iden- 30 tified in the court-ordered supervised physical custody plan; 31 (B) evidence of the offending parent's current mental health condition 32 and the risk that the offending parent will subject the child or other 33 household members to domestic abuse; 34 (C) whether the offending parent is not abusing alcohol or illegally 35 using psychoactive drugs; and 36 (D) whether the offending parent will not cause any unreasonable phys- 37 ical, emotional or psychological harm to the child or other parent. 38 (v) The court shall explain its findings with respect to the factors 39 listed in clause (iv) of this subparagraph, and the justification for 40 ending supervised visitation, in writing. 41 (vi) Any cost incurred for supervised physical custody, for implemen- 42 tation of safety measures during supervised physical custody arrange- 43 ments, or to perform measures identified by the court for physical 44 custody to continue or end, shall be paid by the offending parent, 45 unless the offending parent has insufficient means to fund such activ- 46 ities. 47 (4) Where a proceeding filed pursuant to article ten or ten-A of the 48 family court act is pending at the same time as a proceeding brought in 49 the supreme court involving the custody of, or right to visitation with, 50 any child of a marriage, the court presiding over the proceeding under 51 article ten or ten-A of the family court act may jointly hear the dispo- 52 sitional hearing on the petition under article ten or the permanency 53 hearing under article ten-A of the family court act and, upon referral 54 from the supreme court, the hearing to resolve the matter of custody or 55 visitation in the proceeding pending in the supreme court; providedS. 1584 4 1 however, the court must determine custody or visitation in accordance 2 with the terms of this section. 3 (5) An order directing the payment of child support shall contain the 4 social security numbers of the named parties. In all cases there shall 5 be no prima facie right to the custody of the child in either parent. 6 Such direction shall make provision for child support out of the proper- 7 ty of either or both parents. The court shall make its award for child 8 support pursuant to subdivision one-b of this section. Such direction 9 may provide for reasonable visitation rights to the maternal and/or 10 paternal grandparents of any child of the parties. Such direction as it 11 applies to rights of visitation with a child remanded or placed in the 12 care of a person, official, agency or institution pursuant to article 13 ten of the family court act, or pursuant to an instrument approved under 14 section three hundred fifty-eight-a of the social services law, shall be 15 enforceable pursuant to part eight of article ten of the family court 16 act and sections three hundred fifty-eight-a and three hundred eighty- 17 four-a of the social services law and other applicable provisions of law 18 against any person having care and custody, or temporary care and custo- 19 dy, of the child. Notwithstanding any other provision of law, any writ- 20 ten application or motion to the court for the establishment, modifica- 21 tion or enforcement of a child support obligation for persons not in 22 receipt of public assistance and care must contain either a request for 23 child support enforcement services which would authorize the collection 24 of the support obligation by the immediate issuance of an income 25 execution for support enforcement as provided for by this chapter, 26 completed in the manner specified in section one hundred eleven-g of the 27 social services law; or a statement that the applicant has applied for 28 or is in receipt of such services; or a statement that the applicant 29 knows of the availability of such services, has declined them at this 30 time and where support enforcement services pursuant to section one 31 hundred eleven-g of the social services law have been declined that the 32 applicant understands that an income deduction order may be issued 33 pursuant to subdivision (c) of section fifty-two hundred forty-two of 34 the civil practice law and rules without other child support enforcement 35 services and that payment of an administrative fee may be required. The 36 court shall provide a copy of any such request for child support 37 enforcement services to the support collection unit of the appropriate 38 social services district any time it directs payments to be made to such 39 support collection unit. Additionally, the copy of any such request 40 shall be accompanied by the name, address and social security number of 41 the parties; the date and place of the parties' marriage; the name and 42 date of birth of the child or children; and the name and address of the 43 employers and income payors of the party from whom child support is 44 sought or from the party ordered to pay child support to the other 45 party. Such direction may require the payment of a sum or sums of money 46 either directly to the custodial parent or to third persons for goods or 47 services furnished for such child, or for both payments to the custodial 48 parent and to such third persons; provided, however, that unless the 49 party seeking or receiving child support has applied for or is receiving 50 such services, the court shall not direct such payments to be made to 51 the support collection unit, as established in section one hundred 52 eleven-h of the social services law. Every order directing the payment 53 of support shall require that if either parent currently, or at any time 54 in the future, has health insurance benefits available that may be 55 extended or obtained to cover the child, such parent is required to 56 exercise the option of additional coverage in favor of such child andS. 1584 5 1 execute and deliver to such person any forms, notices, documents or 2 instruments necessary to assure timely payment of any health insurance 3 claims for such child. 4 § 2. This act shall take effect on the ninetieth day after it shall 5 have become a law.
