S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4079

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 29, 2009
                               ___________

Introduced  by M. of A. HAWLEY, KOLB, ERRIGO -- Multi-Sponsored by -- M.
  of A. TOWNSEND -- read once and referred to the Committee on Judiciary

AN ACT to amend the domestic relations  law,  in  relation  to  determi-
  nations of child custody in matrimonial actions

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Section 70 of the domestic  relations  law  is  amended  by
adding a new subdivision (c) to read as follows:
  (C)  NOTWITHSTANDING  ANY  OTHER PROVISION OF LAW TO THE CONTRARY, THE
COURT SHALL NOT CONSIDER THE DEPLOYMENT OF A PARENT IN ACTIVE SERVICE OF
THE ARMED FORCES OF THE UNITED STATES OR OF THE ORGANIZED MILITIA OF THE
STATE OF NEW YORK AS A DETRIMENTAL FACTOR TO THE AWARDING OF CUSTODY  OF
A  CHILD WHERE A SUITABLE CHILD CARE PLAN FOR THE PERIOD OF SUCH DEPLOY-
MENT HAS BEEN PRESENTED TO THE COURT BY THE PETITIONING PARENT.
  S 2. Paragraph (a) of subdivision 1 of section  240  of  the  domestic
relations law, as amended by chapter 538 of the laws of 2008, is amended
and a new subdivision 1-d is added to read as follows:
  (a)  In any action or proceeding brought (1) to annul a marriage or to
declare the nullity of a void marriage, or (2) for a separation, or  (3)
for  a divorce, or (4) to obtain, by a writ of habeas corpus or by peti-
tion and order to show cause, the custody of or right to visitation with
any child of a marriage, the court shall  require  verification  of  the
status of any child of the marriage with respect to such child's custody
and  support,  including  any  prior  orders, and shall enter orders for
custody and support as, in the  court's  discretion,  justice  requires,
having  regard  to  the  circumstances of the case and of the respective
parties and to the best interests  of  the  child  and  subject  to  the
provisions  of  [subdivision]  SUBDIVISIONS  one-c  AND  ONE-D  of  this
section. Where either party to an action  concerning  custody  of  or  a
right  to  visitation  with  a  child  alleges  in  a  sworn petition or
complaint or sworn answer, cross-petition, counterclaim or  other  sworn

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03474-01-9
              

A. 4079                             2

responsive  pleading that the other party has committed an act of domes-
tic violence against the party making the  allegation  or  a  family  or
household  member of either party, as such family or household member is
defined  in  article eight of the family court act, and such allegations
are proven by a preponderance of the evidence, the court  must  consider
the  effect  of  such  domestic  violence upon the best interests of the
child, together with such other facts and  circumstances  as  the  court
deems  relevant  in  making  a  direction pursuant to this section. If a
parent makes a good  faith  allegation  based  on  a  reasonable  belief
supported  by  facts  that the child is the victim of child abuse, child
neglect, or the effects of domestic violence, and if  that  parent  acts
lawfully  and  in  good  faith  in response to that reasonable belief to
protect the child or seek treatment for  the  child,  then  that  parent
shall  not be deprived of custody, visitation or contact with the child,
or restricted in custody, visitation or contact, based  solely  on  that
belief or the reasonable actions taken based on that belief. If an alle-
gation  that  a  child  is abused is supported by a preponderance of the
evidence, then the court shall consider such evidence of abuse in deter-
mining the visitation arrangement that is in the best  interest  of  the
child,  and the court shall not place a child in the custody of a parent
who presents a substantial risk of harm to that child. An order  direct-
ing  the  payment  of  child  support  shall contain the social security
numbers of the named parties. In all cases there shall be no prima facie
right to the custody of the child in  either  parent.    Such  direction
shall  make provision for child support out of the property of either or
both parents. The court shall make its award for child support  pursuant
to  subdivision  one-b  of  this section. Such direction may provide for
reasonable visitation rights to the maternal and/or  paternal  grandpar-
ents of any child of the parties. Such direction as it applies to rights
of  visitation  with a child remanded or placed in the care of a person,
official, agency or institution pursuant to article ten  of  the  family
court  act,  or  pursuant  to an instrument approved under section three
hundred fifty-eight-a of the social services law, shall  be  enforceable
pursuant  to  part  eight  of  article  ten  of the family court act and
sections three hundred fifty-eight-a and three hundred eighty-four-a  of
the  social  services law and other applicable provisions of law against
any person having care and custody, or temporary care  and  custody,  of
the  child.  Notwithstanding  any  other  provision  of law, any written
application or motion to the court for the  establishment,  modification
or  enforcement of a child support obligation for persons not in receipt
of public assistance and care must contain either a  request  for  child
support enforcement services which would authorize the collection of the
support  obligation by the immediate issuance of an income execution for
support enforcement as provided for by this chapter,  completed  in  the
manner  specified in section one hundred eleven-g of the social services
law; or a statement that the applicant has applied for or is in  receipt
of  such services; or a statement that the applicant knows of the avail-
ability of such services, has declined  them  at  this  time  and  where
support enforcement services pursuant to section one hundred eleven-g of
the  social  services  law  have been declined that the applicant under-
stands that an income deduction order may be issued pursuant to subdivi-
sion (c) of section fifty-two hundred forty-two of  the  civil  practice
law  and rules without other child support enforcement services and that
payment of an administrative  fee  may  be  required.  The  court  shall
provide  a  copy  of  any  such  request  for  child support enforcement
services to the  support  collection  unit  of  the  appropriate  social

A. 4079                             3

services  district  any  time  it  directs  payments  to be made to such
support collection unit. Additionally, the  copy  of  any  such  request
shall  be accompanied by the name, address and social security number of
the  parties;  the date and place of the parties' marriage; the name and
date of birth of the child or children; and the name and address of  the
employers  and  income  payors  of  the party from whom child support is
sought or from the party ordered to  pay  child  support  to  the  other
party.  Such direction may require the payment of a sum or sums of money
either directly to the custodial parent or to third persons for goods or
services furnished for such child, or for both payments to the custodial
parent and to such third persons; provided,  however,  that  unless  the
party seeking or receiving child support has applied for or is receiving
such  services,  the  court shall not direct such payments to be made to
the support collection unit,  as  established  in  section  one  hundred
eleven-h  of  the social services law. Every order directing the payment
of support shall require that if either parent currently, or at any time
in the future, has health  insurance  benefits  available  that  may  be
extended  or  obtained  to  cover  the child, such parent is required to
exercise the option of additional coverage in favor of  such  child  and
execute  and  deliver  to  such  person any forms, notices, documents or
instruments necessary to assure timely payment of any  health  insurance
claims for such child.
  1-D.  NOTWITHSTANDING  ANY OTHER PROVISION OF LAW TO THE CONTRARY, THE
COURT SHALL NOT CONSIDER THE DEPLOYMENT OF A PARENT IN ACTIVE SERVICE OF
THE ARMED FORCES OF THE UNITED STATES OR OF THE ORGANIZED MILITIA OF THE
STATE OF NEW YORK AS A DETRIMENTAL FACTOR TO THE AWARDING OF CUSTODY  OF
A CHILD TO A PETITIONING PARENT WHERE A SUITABLE CHILD CARE PLAN FOR THE
PERIOD  OF  SUCH  DEPLOYMENT  HAS  BEEN  PRESENTED  TO THE COURT BY SUCH
PARENT.
  S 3. This act shall take effect immediately.