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

                                  5049

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               May 3, 2011
                               ___________

Introduced  by  Sen.  BALL  --  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 child custody
  when a parent is deployed on military active duty; and  to  amend  the
  military  law, in relation to extending certain benefits afforded with
  respect to judicial proceedings where the minor dependent of  a  mili-
  tary member is involved as a party

  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 PAST OR  CURRENT  DEPLOYMENT,  OR  POSSIBLE
FUTURE  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 HAS BEEN PRESENTED TO THE COURT  BY  THE  PETI-
TIONING PARENT.
  S  2.  Subdivision 3 of section 75-l of the domestic relations law, as
amended by chapter 473 of the laws  of  2009,  is  amended  to  read  as
follows:
  3. Unless the parties have otherwise stipulated or agreed, if an order
is issued under this section, the return of the parent from active mili-
tary  service,  deployment or temporary assignment shall be considered a
substantial change in circumstances, AND  WITHIN  THIRTY  DAYS  OF  SUCH
RETURN  THE  CHILD  CUSTODY  ORDER  IN  EFFECT  IMMEDIATELY PRIOR TO ANY
MODIFICATIONS THEREOF PURSUANT TO  SUBDIVISIONS  ONE  AND  TWO  OF  THIS
SECTION  SHALL BE REINSTATED AND BE IN FULL FORCE AND EFFECT.  [Upon the
request of either parent, the court shall determine on the basis of  the
child's  best interests whether the custody judgment or order previously
in effect should be modified.]

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11029-01-1
              

S. 5049                             2

  S 3. Paragraph (a) of subdivision 1 of section  240  of  the  domestic
relations law, as amended by chapter 476 of the laws of 2009, 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
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 and  state
on  the  record how such findings, facts and circumstances factored into
the direction. 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 reason-
able 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 allegation that a child is abused is supported by a preponderance  of
the  evidence,  then  the court shall consider such evidence of abuse in
determining 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, and  shall
state  on  the  record how such findings were factored into the determi-
nation. An order directing 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 direc-
tion may provide for reasonable visitation rights to the maternal and/or
paternal grandparents 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 custo-

S. 5049                             3

dy,  of the child. Notwithstanding any other provision of law, any writ-
ten application or motion to the court for the establishment,  modifica-
tion  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  availability 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 understands that an  income  deduction  order  may  be  issued
pursuant  to  subdivision  (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 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 PAST OR  CURRENT  DEPLOYMENT,  OR  POSSIBLE
FUTURE  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 PETI-
TIONING  PARENT  WHERE  A SUITABLE CHILD CARE PLAN HAS BEEN PRESENTED TO
THE COURT BY SUCH PARENT.
  S 4. Section 304 of the military law, as amended by chapter 507 of the
laws of 1991, is amended to read as follows:
  S 304. Proceedings to be stayed unless interest unaffected by military
service.  At any stage thereof, any action or proceeding in any court or
in any adjudicatory or licensing proceeding  before  any  state  agency,
including  any  public  benefit  corporation or public authority, or any
political subdivision of the  state,  in  which  a  person  in  military
service  OR  A  MINOR  DEPENDENT  OF  A MILITARY MEMBER is involved as a

S. 5049                             4

party, during the period of such service or within sixty days thereafter
may, in the discretion of the court or adjudicatory or licensing  agency
before which it is pending, on its own motion, and shall, on application
to  it  by such person or some person on his OR HER behalf, be stayed as
provided in this [act] ARTICLE, unless, in the opinion of the  court  or
adjudicatory  or licensing agency, the ability of plaintiff to prosecute
the action, or the defendant to conduct his OR HER defense,  or  in  any
adjudicatory  or licensing proceeding the ability of the party to repre-
sent his OR HER interest, is not materially affected by reason of his OR
HER military service OR MILITARY SERVICE OF THE PARENT  OR  GUARDIAN  OF
SUCH MINOR DEPENDENT.
  S 5. This act shall take effect immediately.