STATE OF NEW YORK
________________________________________________________________________
4600
2019-2020 Regular Sessions
IN SENATE
March 15, 2019
___________
Introduced by Sens. PARKER, BOYLE, RIVERA -- read twice and ordered
printed, and when printed to be committed to the Committee on Judici-
ary
AN ACT to amend the domestic relations law and the family court act, in
relation to changing the denotation of visitation to parenting time
The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:
1 Section 1. Legislative intent. The legislature hereby finds and
2 declares that the term "visitation" carries a negative connotation with
3 respect to noncustodial parents who want to be a part of their chil-
4 dren's lives. Society has given the term "visitation" a negative conno-
5 tation that can be associated with the visiting of an inmate at a
6 correctional facility or prison. The purpose of this act is to reflect
7 the fact that a parent's time with a child is not merely as a visitor
8 but constitutes parenting time.
9 § 1-a. Section 2 of the domestic relations law, as amended by chapter
10 920 of the laws of 1974, is amended to read as follows:
11 § 2. Definitions. As used in this chapter:
12 1. A "minor" or "infant", [as used in this chapter,] is a person under
13 the age of eighteen years.
14 2. "Visitation" refers to time permitted to be spent with a child
15 pursuant to a court order under this chapter, the family court act or an
16 order enforced under article five-A of this chapter, by a person who is
17 not a parent of the child. This shall include grandparents, siblings and
18 step-parents.
19 3. "Parenting time" refers to the period of time that a parent may
20 spend with his or her child pursuant to a court order under this chap-
21 ter, the family court act or an order enforced under article five-A of
22 this chapter.
23 § 2. Subdivision (b) of section 70 of the domestic relations law, as
24 added by chapter 457 of the laws of 1988, is amended to read as follows:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10718-01-9
S. 4600 2
1 (b) Any order under this section which applies to rights of [visita-
2 tion] parenting time with a child remanded or placed in the care of a
3 person, official, agency or institution pursuant to article ten of the
4 family court act or pursuant to an instrument approved under section
5 three hundred fifty-eight-a of the social services law, shall be
6 enforceable pursuant to the provisions of part eight of article ten of
7 [such] the family court act, sections three hundred fifty-eight-a and
8 three hundred eighty-four-a of the social services law and other appli-
9 cable provisions of law against any person or official having care and
10 custody, or temporary care and custody, of such child.
11 § 3. Subdivisions 3 and 4 of section 75-a of the domestic relations
12 law, as added by chapter 386 of the laws of 2001, are amended to read as
13 follows:
14 3. "Child custody determination" means a judgment, decree, or other
15 order of a court providing for the legal custody, physical custody, or
16 [visitation] parenting time with respect to a child. The term includes a
17 permanent, temporary, initial, and modification order. The term does not
18 include an order relating to child support or other monetary obligation
19 of an individual.
20 4. "Child custody proceeding" means a proceeding in which legal custo-
21 dy, physical custody, [or] visitation or parenting time with respect to
22 a child is an issue. The term includes a proceeding for divorce, sepa-
23 ration, neglect, abuse, dependency, guardianship, paternity, termination
24 of parental rights, and protection from domestic violence, in which the
25 issue may appear. The term does not include a proceeding involving juve-
26 nile delinquency, person in need of supervision, contractual emancipa-
27 tion, or enforcement under title three of this article.
28 § 4. Subdivision 1 of section 235 of the domestic relations law, as
29 amended by chapter 122 of the laws of 1979, is amended to read as
30 follows:
31 1. An officer of the court with whom the proceedings in a matrimonial
32 action or a written agreement of separation or an action or proceeding
33 for custody, [visitation] parenting time or maintenance of a child are
34 filed, or before whom the testimony is taken, or his clerk, either
35 before or after the termination of the suit, shall not permit a copy of
36 any of the pleadings, affidavits, findings of fact, conclusions of law,
37 judgment of dissolution, written agreement of separation or memorandum
38 thereof, or testimony, or any examination or perusal thereof, to be
39 taken by any other person than a party, or the attorney or counsel of a
40 party, except by order of the court.
41 § 5. Subdivision (b) of section 237 of the domestic relations law, as
42 amended by chapter 329 of the laws of 2010, is amended to read as
43 follows:
44 (b) Upon any application to enforce, annul or modify an order or judg-
45 ment for alimony, maintenance, distributive award, distribution of mari-
46 tal property or for custody, [visitation,] parenting time or maintenance
47 of a child, made as in section two hundred thirty-six or section two
48 hundred forty of this article provided, or upon any application by writ
49 of habeas corpus or by petition and order to show cause concerning
50 custody, [visitation] parenting time or maintenance of a child, the
51 court may direct a spouse or parent to pay counsel fees and fees and
52 expenses of experts directly to the attorney of the other spouse or
53 parent to enable the other party to carry on or defend the application
54 or proceeding by the other spouse or parent as, in the court's
55 discretion, justice requires, having regard to the circumstances of the
56 case and of the respective parties. There shall be a rebuttable presump-
S. 4600 3
1 tion that counsel fees shall be awarded to the less monied spouse. In
2 exercising the court's discretion, the court shall seek to assure that
3 each party shall be adequately represented and that where fees and
4 expenses are to be awarded, they shall be awarded on a timely basis,
5 pendente lite, so as to enable adequate representation from the
6 commencement of the proceeding. Applications for the award of fees and
7 expenses may be made at any time or times prior to final judgment. Both
8 parties to the action or proceeding and their respective attorneys,
9 shall file an affidavit with the court detailing the financial agree-
10 ment, between the party and the attorney. Such affidavit shall include
11 the amount of any retainer, the amounts paid and still owing thereunder,
12 the hourly amount charged by the attorney, the amounts paid, or to be
13 paid, any experts, and any additional costs, disbursements or expenses.
14 Any applications for fees and expenses may be maintained by the attorney
15 for either spouse in counsel's own name in the same proceeding. Payment
16 of any retainer fees to the attorney for the petitioning party shall not
17 preclude any awards of fees and expenses to an applicant which would
18 otherwise be allowed under this section.
19 § 6. Paragraphs (a) and (a-1) of subdivision 1 of section 240 of the
20 domestic relations law, paragraph (a) as amended by chapter 567 of the
21 laws of 2015 and paragraph (a-1) as amended by chapter 295 of the laws
22 of 2009, are amended to read as follows:
23 (a) In any action or proceeding brought (1) to annul a marriage or to
24 declare the nullity of a void marriage, or (2) for a separation, or (3)
25 for a divorce, or (4) to obtain, by a writ of habeas corpus or by peti-
26 tion and order to show cause, the custody of or right to [visitation]
27 parenting time with any child of a marriage, the court shall require
28 verification of the status of any child of the marriage with respect to
29 such child's custody and support, including any prior orders, and shall
30 enter orders for custody and support as, in the court's discretion,
31 justice requires, having regard to the circumstances of the case and of
32 the respective parties and to the best interests of the child and
33 subject to the provisions of subdivision one-c of this section. Where
34 either party to an action concerning custody of or a right to [visita-
35 tion] parenting time with a child alleges in a sworn petition or
36 complaint or sworn answer, cross-petition, counterclaim or other sworn
37 responsive pleading that the other party has committed an act of domes-
38 tic violence against the party making the allegation or a family or
39 household member of either party, as such family or household member is
40 defined in article eight of the family court act, and such allegations
41 are proven by a preponderance of the evidence, the court must consider
42 the effect of such domestic violence upon the best interests of the
43 child, together with such other facts and circumstances as the court
44 deems relevant in making a direction pursuant to this section and state
45 on the record how such findings, facts and circumstances factored into
46 the direction. If a parent makes a good faith allegation based on a
47 reasonable belief supported by facts that the child is the victim of
48 child abuse, child neglect, or the effects of domestic violence, and if
49 that parent acts lawfully and in good faith in response to that reason-
50 able belief to protect the child or seek treatment for the child, then
51 that parent shall not be deprived of custody, [visitation] parenting
52 time or contact with the child, or restricted in custody, [visitation]
53 parenting time or contact, based solely on that belief or the reasonable
54 actions taken based on that belief. If an allegation that a child is
55 abused is supported by a preponderance of the evidence, then the court
56 shall consider such evidence of abuse in determining the [visitation
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1 arrangement] parenting time that is in the best interest of the child,
2 and the court shall not place a child in the custody of a parent who
3 presents a substantial risk of harm to that child, and shall state on
4 the record how such findings were factored into the determination. Where
5 a proceeding filed pursuant to article ten or ten-A of the family court
6 act is pending at the same time as a proceeding brought in the supreme
7 court involving the custody of, or right to [visitation] parenting time
8 with, any child of a marriage, the court presiding over the proceeding
9 under article ten or ten-A of the family court act may jointly hear the
10 dispositional hearing on the petition under article ten or the permanen-
11 cy hearing under article ten-A of the family court act and, upon refer-
12 ral from the supreme court, the hearing to resolve the matter of custody
13 or [visitation] parenting time in the proceeding pending in the supreme
14 court; provided however, the court must determine custody or [visita-
15 tion] parenting time in accordance with the terms of this section.
16 An order directing the payment of child support shall contain the
17 social security numbers of the named parties. In all cases there shall
18 be no prima facie right to the custody of the child in either parent.
19 Such direction shall make provision for child support out of the proper-
20 ty of either or both parents. The court shall make its award for child
21 support pursuant to subdivision one-b of this section. Such direction
22 may provide for reasonable visitation rights to the maternal and/or
23 paternal grandparents of any child of the parties. Such direction as it
24 applies to rights of [visitation] parenting time with a child remanded
25 or placed in the care of a person, official, agency or institution
26 pursuant to article ten of the family court act, or pursuant to an
27 instrument approved under section three hundred fifty-eight-a of the
28 social services law, shall be enforceable pursuant to part eight of
29 article ten of the family court act and sections three hundred fifty-
30 eight-a and three hundred eighty-four-a of the social services law and
31 other applicable provisions of law against any person having care and
32 custody, or temporary care and custody, of the child. Notwithstanding
33 any other provision of law, any written application or motion to the
34 court for the establishment, modification or enforcement of a child
35 support obligation for persons not in receipt of public assistance and
36 care must contain either a request for child support enforcement
37 services which would authorize the collection of the support obligation
38 by the immediate issuance of an income execution for support enforcement
39 as provided for by this chapter, completed in the manner specified in
40 section one hundred eleven-g of the social services law; or a statement
41 that the applicant has applied for or is in receipt of such services; or
42 a statement that the applicant knows of the availability of such
43 services, has declined them at this time and where support enforcement
44 services pursuant to section one hundred eleven-g of the social services
45 law have been declined that the applicant understands that an income
46 deduction order may be issued pursuant to subdivision (c) of section
47 fifty-two hundred forty-two of the civil practice law and rules without
48 other child support enforcement services and that payment of an adminis-
49 trative fee may be required. The court shall provide a copy of any such
50 request for child support enforcement services to the support collection
51 unit of the appropriate social services district any time it directs
52 payments to be made to such support collection unit. Additionally, the
53 copy of any such request shall be accompanied by the name, address and
54 social security number of the parties; the date and place of the
55 parties' marriage; the name and date of birth of the child or children;
56 and the name and address of the employers and income payors of the party
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1 from whom child support is sought or from the party ordered to pay child
2 support to the other party. Such direction may require the payment of a
3 sum or sums of money either directly to the custodial parent or to third
4 persons for goods or services furnished for such child, or for both
5 payments to the custodial parent and to such third persons; provided,
6 however, that unless the party seeking or receiving child support has
7 applied for or is receiving such services, the court shall not direct
8 such payments to be made to the support collection unit, as established
9 in section one hundred eleven-h of the social services law. Every order
10 directing the payment of support shall require that if either parent
11 currently, or at any time in the future, has health insurance benefits
12 available that may be extended or obtained to cover the child, such
13 parent is required to exercise the option of additional coverage in
14 favor of such child and execute and deliver to such person any forms,
15 notices, documents or instruments necessary to assure timely payment of
16 any health insurance claims for such child.
17 (a-1)(1) Permanent and initial temporary orders of custody or [visita-
18 tion] parenting time. Prior to the issuance of any permanent or initial
19 temporary order of custody or [visitation] parenting time, the court
20 shall conduct a review of the decisions and reports listed in subpara-
21 graph three of this paragraph.
22 (2) Successive temporary orders of custody or [visitation] parenting
23 time. Prior to the issuance of any successive temporary order of custo-
24 dy or [visitation] parenting time, the court shall conduct a review of
25 the decisions and reports listed in subparagraph three of this para-
26 graph, unless such a review has been conducted within ninety days prior
27 to the issuance of such order.
28 (3) Decisions and reports for review. The court shall conduct a review
29 of the following:
30 (i) related decisions in court proceedings initiated pursuant to arti-
31 cle ten of the family court act, and all warrants issued under the fami-
32 ly court act; and
33 (ii) reports of the statewide computerized registry of orders of
34 protection established and maintained pursuant to section two hundred
35 twenty-one-a of the executive law, and reports of the sex offender
36 registry established and maintained pursuant to section one hundred
37 sixty-eight-b of the correction law.
38 (4) Notifying counsel and issuing orders. Upon consideration of deci-
39 sions pursuant to article ten of the family court act, and registry
40 reports and notifying counsel involved in the proceeding, or in the
41 event of a self-represented party, notifying such party of the results
42 thereof, including any court appointed attorney for children, the court
43 may issue a temporary, successive temporary or final order of custody or
44 [visitation] parenting time.
45 (5) Temporary emergency order. Notwithstanding any other provision of
46 the law, upon emergency situations, including computer malfunctions, to
47 serve the best interest of the child, the court may issue a temporary
48 emergency order for custody or [visitation] parenting time in the event
49 that it is not possible to timely review decisions and reports on regis-
50 tries as required pursuant to subparagraph three of this paragraph.
51 (6) After issuing a temporary emergency order. After issuing a tempo-
52 rary emergency order of custody or [visitation] parenting time, the
53 court shall conduct reviews of the decisions and reports on registries
54 as required pursuant to subparagraph three of this paragraph within
55 twenty-four hours of the issuance of such temporary emergency order.
56 Should such twenty-four hour period fall on a day when court is not in
S. 4600 6
1 session, then the required reviews shall take place the next day the
2 court is in session. Upon reviewing decisions and reports the court
3 shall notify associated counsel, self-represented parties and attorneys
4 for children pursuant to subparagraph four of this paragraph and may
5 issue temporary or permanent custody or [visitation] parenting time
6 orders.
7 (7) Feasibility study. The commissioner of the office of children and
8 family services, in conjunction with the office of court administration,
9 is hereby authorized and directed to examine, study, evaluate and make
10 recommendations concerning the feasibility of the utilization of comput-
11 ers in courts which are connected to the statewide central register of
12 child abuse and maltreatment established and maintained pursuant to
13 section four hundred twenty-two of the social services law, as a means
14 of providing courts with information regarding parties requesting orders
15 of custody or [visitation] parenting time. Such commissioner shall make
16 a preliminary report to the governor and the legislature of findings,
17 conclusions and recommendations not later than January first, two thou-
18 sand nine, and a final report of findings, conclusions and recommenda-
19 tions not later than June first, two thousand nine, and shall submit
20 with the reports such legislative proposals as are deemed necessary to
21 implement the commissioner's recommendations.
22 § 7. Subdivision 1-a of section 240 of the domestic relations law, as
23 amended by chapter 12 of the laws of 1996, is amended to read as
24 follows:
25 1-a. In any proceeding brought pursuant to this section to determine
26 the custody or [visitation] parenting time of minors, a report made to
27 the statewide central register of child abuse and maltreatment, pursuant
28 to title six of article six of the social services law, or a portion
29 thereof, which is otherwise admissible as a business record pursuant to
30 rule forty-five hundred eighteen of the civil practice law and rules
31 shall not be admissible in evidence, notwithstanding such rule, unless
32 an investigation of such report conducted pursuant to title six of arti-
33 cle six of the social services law has determined that there is some
34 credible evidence of the alleged abuse or maltreatment and that the
35 subject of the report has been notified that the report is indicated.
36 In addition, if such report has been reviewed by the [state] commission-
37 er of [social] the office of children and family services or his desig-
38 nee and has been determined to be unfounded, it shall not be admissible
39 in evidence. If such report has been so reviewed and has been amended to
40 delete any finding, each such deleted finding shall not be admissible.
41 If the [state] commissioner of [social] the office of children and fami-
42 ly services or his designee has amended the report to add any new find-
43 ing, each such new finding, together with any portion of the original
44 report not deleted by [the] such commissioner or his designee, shall be
45 admissible if it meets the other requirements of this subdivision and is
46 otherwise admissible as a business record. If such a report, or portion
47 thereof, is admissible in evidence but is uncorroborated, it shall not
48 be sufficient to make a fact finding of abuse or maltreatment in such
49 proceeding. Any other evidence tending to support the reliability of
50 such report shall be sufficient corroboration.
51 § 8. Subparagraph 9 of paragraph (f) of subdivision 1-b of section 240
52 of the domestic relations law, as added by chapter 567 of the laws of
53 1989, is amended to read as follows:
54 (9) Provided that the child is not on public assistance (i) extraor-
55 dinary expenses incurred by the non-custodial parent in exercising
56 [visitation] parenting time, or (ii) expenses incurred by the non-custo-
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1 dial parent in extended [visitation] parenting time provided that the
2 custodial parent's expenses are substantially reduced as a result there-
3 of; and
4 § 9. Paragraph c of subdivision 3 of section 240 of the domestic
5 relations law, as amended by chapter 597 of the laws of 1998, is amended
6 to read as follows:
7 c. An order of protection entered pursuant to this subdivision may be
8 made in the final judgment in any matrimonial action or in a proceeding
9 to obtain custody of or [visitation] parenting time with any child under
10 this section, or by one or more orders from time to time before or
11 subsequent to final judgment, or by both such order or orders and the
12 final judgment. The order of protection may remain in effect after entry
13 of a final matrimonial judgment and during the minority of any child
14 whose custody or [visitation] parenting time is the subject of a
15 provision of a final judgment or any order. An order of protection may
16 be entered notwithstanding that the court for any reason whatsoever,
17 other than lack of jurisdiction, refuses to grant the relief requested
18 in the action or proceeding.
19 § 10. Section 241 of the domestic relations law, as amended by chapter
20 892 of the laws of 1986, is amended to read as follows:
21 § 241. Interference with or withholding of [visitation] parenting time
22 rights; alimony or maintenance suspension. When it appears to the satis-
23 faction of the court that a custodial parent receiving alimony or main-
24 tenance pursuant to an order, judgment or decree of a court of competent
25 jurisdiction has wrongfully interfered with or withheld [visitation]
26 parenting time rights provided by such order, judgment or decree, the
27 court, in its discretion, may suspend such payments or cancel any
28 arrears that may have accrued during the time that [visitation] parent-
29 ing time rights have been or are being interfered with or withheld.
30 Nothing in this section shall constitute a defense in any court to an
31 application to enforce payment of child support or grounds for the
32 cancellation of arrears for child support.
33 § 11. Section 251 of the domestic relations law, as added by chapter
34 164 of the laws of 1973, is amended to read as follows:
35 § 251. Filing of order in family court. When, in a matrimonial action,
36 the supreme court refers the issues of support, custody or [visitation]
37 parenting time to the family court, the order or judgment shall provide
38 that a copy thereof shall be filed by the plaintiff's attorney, within
39 ten days, with the clerk of the family court therein specified.
40 § 12. Paragraph (b) of subdivision 1 of section 252 of the domestic
41 relations law, as amended by chapter 526 of the laws of 2013, is amended
42 to read as follows:
43 (b) to permit a parent, or a person entitled to visitation or parent-
44 ing time by a court order or a separation agreement, to [visit] be with
45 the child at stated periods;
46 § 13. Subdivision 3 of section 252 of the domestic relations law, as
47 added by chapter 349 of the laws of 1995, is amended to read as follows:
48 3. An order of protection entered pursuant to this subdivision may be
49 made in the final judgment in any matrimonial action, or by one or more
50 orders from time to time before or subsequent to final judgment, or by
51 both such order or orders and the final judgment. The order of
52 protection may remain in effect after entry of a final matrimonial judg-
53 ment and during the minority of any child whose custody or [visitation]
54 parenting time is the subject of a provision of a final judgment or any
55 order. An order of protection may be entered notwithstanding that the
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1 court for any reason whatsoever, other than lack of jurisdiction,
2 refuses to grant the relief requested in the action or proceeding.
3 § 14. Subparagraph 9 of paragraph (f) of subdivision 1 of section 413
4 of the family court act, as amended by chapter 567 of the laws of 1989,
5 is amended to read as follows:
6 (9) Provided that the child is not on public assistance (i) extraor-
7 dinary expenses incurred by the non-custodial parent in exercising
8 [visitation] parenting time, or (ii) expenses incurred by the non-custo-
9 dial parent in extended [visitation] parenting time provided that the
10 custodial parent's expenses are substantially reduced as a result there-
11 of; and
12 § 15. Subdivisions (a) and (c) of section 439 of the family court act,
13 subdivision (a) as amended by section 1 of chapter 468 of the laws of
14 2012, and subdivision (c) as amended by chapter 576 of the laws of 2005,
15 are amended to read as follows:
16 (a) The chief administrator of the courts shall provide, in accordance
17 with subdivision (f) of this section, for the appointment of a suffi-
18 cient number of support magistrates to hear and determine support
19 proceedings. Except as hereinafter provided, support magistrates shall
20 be empowered to hear, determine and grant any relief within the powers
21 of the court in any proceeding under this article, articles five,
22 five-A, and five-B and sections two hundred thirty-four and two hundred
23 thirty-five of this act, and objections raised pursuant to section five
24 thousand two hundred forty-one of the civil practice law and rules.
25 Support magistrates shall not be empowered to hear, determine and grant
26 any relief with respect to issues specified in section four hundred
27 fifty-five of this article, issues of contested paternity involving
28 claims of equitable estoppel, custody, [visitation] parenting time
29 including [visitation] parenting time as a defense, and orders of
30 protection or exclusive possession of the home, which shall be referred
31 to a judge as provided in subdivision (b) or (c) of this section. Where
32 an order of filiation is issued by a judge in a paternity proceeding and
33 child support is in issue, the judge, or support magistrate upon refer-
34 ral from the judge, shall be authorized to immediately make a temporary
35 or final order of support, as applicable. A support magistrate shall
36 have the authority to hear and decide motions and issue summonses and
37 subpoenas to produce persons pursuant to section one hundred fifty-three
38 of this act, hear and decide proceedings and issue any order authorized
39 by subdivision (g) of section five thousand two hundred forty-one of the
40 civil practice law and rules, issue subpoenas to produce prisoners
41 pursuant to section two thousand three hundred two of the civil practice
42 law and rules and make a determination that any person before the
43 support magistrate is in violation of an order of the court as author-
44 ized by section one hundred fifty-six of this act subject to confirma-
45 tion by a judge of the court who shall impose any punishment for such
46 violation as provided by law. A determination by a support magistrate
47 that a person is in willful violation of an order under subdivision
48 three of section four hundred fifty-four of this article and that recom-
49 mends commitment shall be transmitted to the parties, accompanied by
50 findings of fact, but the determination shall have no force and effect
51 until confirmed by a judge of the court.
52 (c) The support magistrate, in any proceeding in which issues speci-
53 fied in section four hundred fifty-five of this [act] article, or issues
54 of custody, [visitation] parenting time, including [visitation] parent-
55 ing time as a defense, orders of protection or exclusive possession of
56 the home are present or in which paternity is contested on the grounds
S. 4600 9
1 of equitable estoppel, shall make a temporary order of support and refer
2 the proceeding to a judge. Upon determination of such issue by a judge,
3 the judge may make a final determination of the issue of support, or
4 immediately refer the proceeding to a support magistrate for further
5 proceedings regarding child support or other matters within the authori-
6 ty of the support magistrate.
7 § 16. Subdivision (a) of section 439 of the family court act, as
8 amended by section 2 of chapter 468 of the laws of 2012, is amended to
9 read as follows:
10 (a) The chief administrator of the courts shall provide, in accordance
11 with subdivision (f) of this section, for the appointment of a suffi-
12 cient number of support magistrates to hear and determine support
13 proceedings. Except as hereinafter provided, support magistrates shall
14 be empowered to hear, determine and grant any relief within the powers
15 of the court in any proceeding under this article, articles five,
16 five-A, and five-B and sections two hundred thirty-four and two hundred
17 thirty-five of this act, and objections raised pursuant to section five
18 thousand two hundred forty-one of the civil practice law and rules.
19 Support magistrates shall not be empowered to hear, determine and grant
20 any relief with respect to issues specified in section four hundred
21 fifty-five of this article, issues of contested paternity involving
22 claims of equitable estoppel, custody, [visitation] parenting time
23 including [visitation] parenting time as a defense, and orders of
24 protection or exclusive possession of the home, which shall be referred
25 to a judge as provided in subdivision (b) or (c) of this section. Where
26 an order of filiation is issued by a judge in a paternity proceeding and
27 child support is in issue, the judge, or support magistrate upon refer-
28 ral from the judge, shall be authorized to immediately make a temporary
29 or final order of support, as applicable. A support magistrate shall
30 have the authority to hear and decide motions and issue summonses and
31 subpoenas to produce persons pursuant to section one hundred fifty-three
32 of this act, hear and decide proceedings and issue any order authorized
33 by subdivision (g) of section five thousand two hundred forty-one of the
34 civil practice law and rules, issue subpoenas to produce prisoners
35 pursuant to section two thousand three hundred two of the civil practice
36 law and rules and make a determination that any person before the
37 support magistrate is in violation of an order of the court as author-
38 ized by section one hundred fifty-six of this act subject to confirma-
39 tion by a judge of the court who shall impose any punishment for such
40 violation as provided by law. A determination by a support magistrate
41 that a person is in willful violation of an order under subdivision
42 three of section four hundred fifty-four of this article and that recom-
43 mends commitment shall be transmitted to the parties, accompanied by
44 findings of fact, but the determination shall have no force and effect
45 until confirmed by a judge of the court.
46 § 17. Subdivision (b) of section 446 of the family court act, as
47 amended by chapter 526 of the laws of 2013, is amended to read as
48 follows:
49 (b) to permit a parent, or a person entitled to visitation or parent-
50 ing time by a court order or a separation agreement, to [visit] be with
51 the child at stated periods;
52 § 18. Section 447 of the family court act, subdivision (a) as amended
53 by chapter 85 of the laws of 1996, is amended to read as follows:
54 § 447. Order of [visitation] parenting time. (a) In the absence of an
55 order of custody or of [visitation] parenting time entered by the
56 supreme court, the court may make an order of custody or of [visitation]
S. 4600 10
1 parenting time, in accordance with subdivision one of section two
2 hundred forty of the domestic relations law, requiring one parent to
3 permit the other to [visit] be with the children at stated periods with-
4 out an order of protection, even where the parents are divorced and the
5 support order is for a child only.
6 (b) Any order of the family court under this section shall terminate
7 when the supreme court makes an order of custody or of [visitation]
8 parenting time concerning the children, unless the supreme court contin-
9 ues the order of the family court.
10 § 19. Subdivision (a) of section 456 of the family court act, as
11 amended by chapter 809 of the laws of 1963, is amended to read as
12 follows:
13 (a) No person may be placed on probation under this article unless the
14 court makes an order to that effect, either at the time of the making of
15 an order of support or under section four hundred fifty-four of this
16 part. The period of probation may continue so long as an order of
17 support, order of protection or order of [visitation] parenting time
18 applies to such person.
19 § 20. Subdivisions (a) and (b) of section 467 of the family court act,
20 as amended by chapter 40 of the laws of 1981, are amended to read as
21 follows:
22 (a) In an action for divorce, separation or annulment, the supreme
23 court may refer to the family court the determination of applications to
24 fix temporary or permanent custody or [visitation] parenting time,
25 applications to enforce judgments and orders of custody or [visitation]
26 parenting time, and applications to modify judgments and orders of
27 custody which modification may be granted only upon a showing to the
28 family court that there has been a subsequent change of circumstances
29 and that modification is required.
30 (b) In the event no such referral has been made and unless the supreme
31 court provides in the order or judgment awarding custody or [visitation]
32 parenting time in an action for divorce, separation or annulment, that
33 it may be enforced or modified only in the supreme court, the family
34 court may: (i) determine an application to enforce the order or judgment
35 awarding custody or [visitation] parenting time, or (ii) determine an
36 application to modify the order or judgment awarding custody or [visita-
37 tion] parenting time upon a showing that there has been a subsequent
38 change of circumstances and modification is required.
39 § 21. Section 511 of the family court act, as amended by chapter 533
40 of the laws of 1999, is amended to read as follows:
41 § 511. Jurisdiction. Except as otherwise provided, the family court
42 has exclusive original jurisdiction in proceedings to establish paterni-
43 ty and, in any such proceedings in which it makes a finding of paterni-
44 ty, to order support and to make orders of custody or of [visitation]
45 parenting time, as set forth in this article. On its own motion, the
46 court may at any time in the proceedings also direct the filing of a
47 neglect petition in accord with the provisions of article ten of this
48 act. In accordance with the provisions of section one hundred eleven-b
49 of the domestic relations law, the surrogate's court has original juris-
50 diction concurrent with the family court to determine the issues relat-
51 ing to the establishment of paternity.
52 § 22. Section 549 of the family court act, as added by chapter 952 of
53 the laws of 1971, subdivision (a) as amended by chapter 85 of the laws
54 of 1996, is amended to read as follows:
55 § 549. Order of [visitation] parenting time. (a) If an order of fili-
56 ation is made or if a paternity agreement or compromise is approved by
S. 4600 11
1 the court, in the absence of an order of custody or of [visitation]
2 parenting time entered by the supreme court the family court may make an
3 order of custody or of [visitation] parenting time, in accordance with
4 subdivision one of section two hundred forty of the domestic relations
5 law, requiring one parent to permit the other to [visit] be with the
6 child or children at stated periods.
7 (b) Any order of the family court under this section shall terminate
8 when the supreme court makes an order of custody or of [visitation]
9 parenting time concerning the child or children, unless the supreme
10 court continues the order of the family court.
11 § 23. Subdivision (b) of section 551 of the family court act, as
12 amended by chapter 526 of the laws of 2013, is amended to read as
13 follows:
14 (b) to permit a parent parenting time, or a person entitled to visita-
15 tion by a court order or a separation agreement to [visit] be with the
16 child at stated periods;
17 § 24. Section 651 of the family court act, as amended by chapter 85 of
18 the laws of 1996, subdivision (b) as amended by chapter 657 of the laws
19 of 2003, subdivision (c-1) as added by chapter 567 of the laws of 2015,
20 subdivision (d) as amended by chapter 41 of the laws of 2010, subdivi-
21 sion (e) as amended by chapter 295 of the laws of 2009 and subdivision
22 (f) as added by chapter 473 of the laws of 2009, is amended to read as
23 follows:
24 § 651. Jurisdiction over habeas corpus proceedings and petitions for
25 custody [and], visitation and parenting time of minors. (a) When
26 referred from the supreme court or county court to the family court, the
27 family court has jurisdiction to determine, in accordance with subdivi-
28 sion one of section two hundred forty of the domestic relations law and
29 with the same powers possessed by the supreme court in addition to its
30 own powers, habeas corpus proceedings and proceedings brought by peti-
31 tion and order to show cause, for the determination of the custody [or],
32 visitation and parenting time of minors.
33 (b) When initiated in the family court, the family court has jurisdic-
34 tion to determine, in accordance with subdivision one of section two
35 hundred forty of the domestic relations law and with the same powers
36 possessed by the supreme court in addition to its own powers, habeas
37 corpus proceedings and proceedings brought by petition and order to show
38 cause, for the determination of the custody [or], visitation and parent-
39 ing time of minors, including applications by a grandparent or grandpar-
40 ents for visitation or custody rights pursuant to section seventy-two or
41 two hundred forty of the domestic relations law.
42 (c) When initiated in the family court pursuant to a petition under
43 part eight of article ten of this act or section three hundred fifty-
44 eight-a of the social services law, the family court has jurisdiction to
45 enforce or modify orders or judgments of the supreme court relating to
46 the [visitation] parenting time of minors in foster care, notwithstand-
47 ing any limitation contained in subdivision (b) of section four hundred
48 sixty-seven of this act.
49 (c-1) Where a proceeding filed pursuant to article ten or ten-A of
50 this act is pending at the same time as a proceeding brought in the
51 family court pursuant to this article, the court presiding over the
52 proceeding under article ten or ten-A of this act may jointly hear the
53 hearing on the custody [and], visitation, and parenting time petition
54 under this article and the dispositional hearing on the petition under
55 article ten or the permanency hearing under article ten-A of this act;
56 provided, however, the court must determine the custody [and], visita-
S. 4600 12
1 tion and parenting time petition in accordance with the terms of this
2 article.
3 (d) With respect to applications by a grandparent or grandparents for
4 visitation or custody rights, made pursuant to section seventy-two or
5 two hundred forty of the domestic relations law, with a child remanded
6 or placed in the care of a person, official, agency or institution
7 pursuant to the provisions of article ten of this act, the applicant, in
8 such manner as the court shall prescribe, shall serve a copy of the
9 application upon the social services official having care and custody of
10 such child, and the child's attorney, who shall be afforded an opportu-
11 nity to be heard thereon.
12 (e) 1. Permanent and initial temporary orders of custody or [visita-
13 tion] parenting time. Prior to the issuance of any permanent or initial
14 temporary order of custody or [visitation] parenting time, the court
15 shall conduct a review of the decisions and reports listed in paragraph
16 three of this subdivision.
17 2. Successive temporary orders of custody or [visitation] parenting
18 time. Prior to the issuance of any successive temporary order of custo-
19 dy or [visitation] parenting time, the court shall conduct a review of
20 the decisions and reports listed in paragraph three of this subdivision,
21 unless such a review has been conducted within ninety days prior to the
22 issuance of such order.
23 3. Decisions and reports for review. The court shall conduct a review
24 of the following:
25 (i) related decisions in court proceedings initiated pursuant to arti-
26 cle ten of this act, and all warrants issued under this act; and
27 (ii) reports of the statewide computerized registry of orders of
28 protection established and maintained pursuant to section two hundred
29 twenty-one-a of the executive law, and reports of the sex offender
30 registry established and maintained pursuant to section one hundred
31 sixty-eight-b of the correction law.
32 4. Notifying counsel and issuing orders. Upon consideration of deci-
33 sions pursuant to article ten of this act, and registry reports and
34 notifying counsel involved in the proceeding, or in the event of a self-
35 represented party, notifying such party of the results thereof, includ-
36 ing any court appointed attorney for children, the court may issue a
37 temporary, successive temporary or final order of custody or [visita-
38 tion] parenting time.
39 5. Temporary emergency order. Notwithstanding any other provision of
40 the law, upon emergency situations, including computer malfunctions, to
41 serve the best interest of the child, the court may issue a temporary
42 emergency order for custody or [visitation] parenting time in the event
43 that it is not possible to timely review decisions and reports on regis-
44 tries as required pursuant to paragraph three of this subdivision.
45 6. After issuing a temporary emergency order. After issuing a tempo-
46 rary emergency order of custody or [visitation] parenting time, the
47 court shall conduct reviews of the decisions and reports on registries
48 as required pursuant to paragraph three of this subdivision within twen-
49 ty-four hours of the issuance of such temporary emergency order. Should
50 such twenty-four hour period fall on a day when court is not in session,
51 then the required reviews shall take place the next day the court is in
52 session. Upon reviewing decisions and reports the court shall notify
53 associated counsel, self-represented parties and attorneys for children
54 pursuant to paragraph four of this subdivision and may issue temporary
55 or permanent custody or [visitation] parenting time orders.
S. 4600 13
1 7. Feasibility study. The commissioner of the office of children and
2 family services, in conjunction with the office of court administration,
3 is hereby authorized and directed to examine, study, evaluate and make
4 recommendations concerning the feasibility of the utilization of comput-
5 ers in family courts which are connected to the statewide central regis-
6 ter of child abuse and maltreatment established and maintained pursuant
7 to section four hundred twenty-two of the social services law, as a
8 means of providing family courts with information regarding parties
9 requesting orders of custody or [visitation] parenting time. Such
10 commissioner shall make a preliminary report to the governor and the
11 legislature of findings, conclusions and recommendations not later than
12 January thirty-first, two thousand nine, and a final report of findings,
13 conclusions and recommendations not later than June first, two thousand
14 nine, and shall submit with the reports such legislative proposals as
15 are deemed necessary to implement the commissioner's recommendations.
16 (f) Military service by parent; effect on child custody orders. 1.
17 During the period of time that a parent is activated, deployed or tempo-
18 rarily assigned to military service, such that the parent's ability to
19 continue as a joint caretaker or the primary caretaker of a minor child
20 is materially affected by such military service, any orders issued
21 pursuant to this section, based on the fact that the parent is acti-
22 vated, deployed or temporarily assigned to military service, which would
23 materially affect or change a previous judgment or order regarding
24 custody of that parent's child or children as such judgment or order
25 existed on the date the parent was activated, deployed, or temporarily
26 assigned to military service, shall be subject to review pursuant to
27 paragraph three of this subdivision. Any relevant provisions of the
28 Service Member's Civil Relief Act shall apply to all proceedings
29 governed by this section.
30 2. During such period, the court may enter an order to modify custody
31 if there is clear and convincing evidence that the modification is in
32 the best interests of the child. An attorney for the child shall be
33 appointed in all cases where a modification is sought during such mili-
34 tary service. Such order shall be subject to review pursuant to para-
35 graph three of this subdivision. When entering an order pursuant to this
36 section, the court shall consider and provide for, if feasible and if in
37 the best interests of the child, contact between the military service
38 member and his or her child including, but not limited to, electronic
39 communication by e-mail, webcam, telephone, or other available means.
40 During the period of the parent's leave from military service, the court
41 shall consider the best interests of the child when establishing a
42 parenting schedule, including visiting and other contact. For such
43 purpose, a "leave from military service" shall be a period of not more
44 than three months.
45 3. Unless the parties have otherwise stipulated or agreed, if an order
46 is issued pursuant to this subdivision, the return of the parent from
47 active military service, deployment or temporary assignment shall be
48 considered a substantial change in circumstances. Upon the request of
49 either parent, the court shall determine on the basis of the child's
50 best interests whether the custody judgment or order previously in
51 effect should be modified.
52 4. This subdivision shall not apply to assignments to permanent duty
53 stations or permanent changes of station.
54 § 25. Section 651-a of the family court act, as amended by chapter 12
55 of the laws of 1996, is amended to read as follows:
S. 4600 14
1 § 651-a. Reports of child abuse and maltreatment; admissibility. In
2 any proceeding brought pursuant to this section to determine the custody
3 [or], visitation or parenting time of minors, a report made to the
4 statewide central register of child abuse and maltreatment, pursuant to
5 title six of article six of the social services law, or a portion there-
6 of, which is otherwise admissible as a business record pursuant to rule
7 forty-five hundred eighteen of the civil practice law and rules shall
8 not be admissible in evidence, notwithstanding such rule, unless an
9 investigation of such report conducted pursuant to title six of article
10 six of the social services law has determined that there is some credi-
11 ble evidence of the alleged abuse or maltreatment, that the subject of
12 the report has been notified that the report is indicated. In addition,
13 if such report has been reviewed by the [state] commissioner of [social]
14 the office of children and family services or his designee and has been
15 determined to be unfounded, it shall not be admissible in evidence. If
16 such report has been so reviewed and has been amended to delete any
17 finding, each such deleted finding shall not be admissible. If the
18 [state] commissioner of [social] the office of children and family
19 services or his designee has amended the report to add any new finding,
20 each such new finding, together with any portion of the original report
21 not deleted by [the] such commissioner or his designee, shall be admis-
22 sible if it meets the other requirements of this section and is other-
23 wise admissible as a business record. If such a report, or portion ther-
24 eof, is admissible in evidence but is uncorroborated, it shall not be
25 sufficient to make a fact finding of abuse or maltreatment in such
26 proceeding. Any other evidence tending to support the reliability of
27 such report shall be sufficient corroboration.
28 § 26. Subdivisions (a) and (b) of section 652 of the family court act,
29 as amended by chapter 40 of the laws of 1981, are amended to read as
30 follows:
31 (a) When referred from the supreme court to the family court, the
32 family court has jurisdiction to determine, with the same powers
33 possessed by the supreme court, applications to fix temporary or perma-
34 nent custody and applications to modify judgments and orders of custody
35 or [visitation] parenting time in actions and proceedings for marital
36 separation, divorce, annulment of marriage and dissolution of marriage.
37 Applications to modify judgments and orders of custody may be granted by
38 the family court under this section only upon the showing to the family
39 court that there has been a subsequent change of circumstances and that
40 modification is required.
41 (b) In the event no such referral has been made and unless the supreme
42 court provides in the order or judgment awarding custody or [visitation]
43 parenting time in an action for divorce, separation or annulment, that
44 it may be enforced or modified only in the supreme court, the family
45 court may: (i) determine an application to enforce the order or judgment
46 awarding custody or [visitation] parenting time, or (ii) determine an
47 application to modify the order or judgment awarding custody or [visita-
48 tion] parenting time upon a showing that there has been a subsequent
49 change of circumstances and modification is required.
50 § 27. Subdivision (b) of section 656 of the family court act, as
51 amended by chapter 526 of the laws of 2013, is amended to read as
52 follows:
53 (b) to permit a parent parenting time, or a person entitled to visita-
54 tion by a court order or a separation agreement, to [visit] be with the
55 child at stated periods;
S. 4600 15
1 § 28. Subdivision (b) of section 759 of the family court act, as
2 amended by chapter 483 of the laws of 1995, is amended to read as
3 follows:
4 (b) to permit a parent parenting time, or a person entitled to visita-
5 tion by a court order or a separation agreement, to [visit] be with the
6 child at stated periods;
7 § 29. Subdivision (b) of section 842 of the family court act, as
8 amended by chapter 526 of the laws of 2013, is amended to read as
9 follows:
10 (b) to permit a parent parenting time, or a person entitled to visita-
11 tion by a court order or a separation agreement, to [visit] be with the
12 child at stated periods;
13 § 30. Section 119 of the family court act is amended by adding two new
14 subdivisions (d) and (e) to read as follows:
15 (d) "Visitation" refers to time permitted to be spent with a child
16 pursuant to a court order under this chapter, the family court act or an
17 order enforced under article five-A of this chapter, by a person who is
18 not a parent of the child. This shall include grandparents, siblings and
19 step-parents.
20 (e) "Parenting time" refers to the period of time that a parent may
21 spend with his or her child pursuant to a court order under this chap-
22 ter, the family court act or an order enforced under article five-A of
23 this chapter.
24 § 31. This act shall take effect immediately, provided that the amend-
25 ments to subdivision (a) of section 439 of the family court act made by
26 section fifteen of this act shall be subject to the expiration and
27 reversion of such subdivision pursuant to section 246 of chapter 81 of
28 the laws of 1995, as amended, when upon such date the provisions of
29 section sixteen of this act shall take effect.