S T A T E O F N E W Y O R K
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5069--A
Cal. No. 625
2013-2014 Regular Sessions
I N S E N A T E
May 7, 2013
___________
Introduced by Sens. SKELOS, LANZA -- read twice and ordered printed, and
when printed to be committed to the Committee on Children and Families
-- reported favorably from said committee, ordered to first and second
report, ordered to a third reading, passed by Senate and delivered to
the Assembly, recalled, vote reconsidered, restored to third reading,
amended and ordered reprinted, retaining its place in the order of
third reading
AN ACT to amend the domestic relations law and the social services law,
in relation to visitation and custody rights of a parent convicted of
sexual assault
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 1-c of section 240 of the domestic relations
law, as added by chapter 150 of the laws of 1998, paragraph (a) as
amended by chapter 378 of the laws of 1999 and paragraph (c) as amended
by chapter 41 of the laws of 2010, is amended to read as follows:
1-c. (a) Notwithstanding any other provision of this chapter to the
contrary, no court shall make an order providing for visitation or
custody to a person who has been convicted of murder in the first or
second degree in this state, or convicted of an offense in another
jurisdiction which, if committed in this state, would constitute either
murder in the first or second degree, of a parent, legal custodian,
legal guardian, sibling, half-sibling or step-sibling of any child who
is the subject of the proceeding. Pending determination of a petition
for visitation or custody, such child shall not visit and no person
shall visit with such child present, such person who has been convicted
of murder in the first or second degree in this state, or convicted of
and offense in another jurisdiction which, if committed in this state,
would constitute either murder in the first or second degree, of a
parent, legal custodian, legal guardian, sibling, half-sibling or step-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10487-05-3
S. 5069--A 2
sibling of a child who is the subject of the proceeding without the
consent of such child's custodian or legal guardian.
(b) NOTWITHSTANDING ANY OTHER PROVISION OF THIS CHAPTER TO THE CONTRA-
RY, THERE SHALL BE A REBUTTABLE PRESUMPTION THAT IT IS NOT IN THE BEST
INTERESTS OF THE CHILD TO BE PLACED IN THE CUSTODY OF OR TO VISIT WITH A
PERSON WHO HAS BEEN CONVICTED OF ONE OR MORE OF THE FOLLOWING SEXUAL
OFFENSES IN THIS STATE OR CONVICTED OF ONE OR MORE OFFENSES IN ANOTHER
JURISDICTION WHICH, IF COMMITTED IN THIS STATE, WOULD CONSTITUTE ONE OR
MORE OF THE FOLLOWING OFFENSES, WHEN A CHILD WHO IS THE SUBJECT OF THE
PROCEEDING WAS CONCEIVED AS A RESULT: (A) RAPE IN THE FIRST OR SECOND
DEGREE; (B) COURSE OF SEXUAL CONDUCT AGAINST A CHILD IN THE FIRST
DEGREE; (C) PREDATORY SEXUAL ASSAULT; OR (D) PREDATORY SEXUAL ASSAULT
AGAINST A CHILD.
(C) Notwithstanding paragraph (a) OR (B) of this subdivision a court
may order visitation or custody where:
(i) (A) such child is of suitable age to signify assent and such child
assents to such visitation or custody; or
(B) if such child is not of suitable age to signify assent, the
child's custodian or legal guardian assents to such order; or
(C) the person who has been convicted of murder in the first or second
degree, or an offense in another jurisdiction which if committed in this
state, would constitute either murder in the first or second degree, can
prove by a preponderance of the evidence that:
(1) he or she, or a family or household member of either party, was a
victim of domestic violence by the victim of such murder; and
(2) the domestic violence was causally related to the commission of
such murder; [and]
(ii) AND the court finds that such visitation or custody is in the
best interests of the child.
[(c)] (D) For the purpose of making a determination pursuant to clause
(C) of subparagraph (i) of paragraph [(b)] (C) of this subdivision, the
court shall not be bound by the findings of fact, conclusions of law or
ultimate conclusion as determined by the proceedings leading to the
conviction of murder in the first or second degree in this state or of
an offense in another jurisdiction which, if committed in this state,
would constitute murder in either the first or second degree, of a
parent, legal guardian, legal custodian, sibling, half-sibling or step-
sibling of a child who is the subject of the proceeding. In all
proceedings under this section, an attorney shall be appointed for the
child.
S 2. Subdivision 1 of section 111-a of the domestic relations law, as
amended by chapter 353 of the laws of 1993, is amended to read as
follows:
1. Notwithstanding any inconsistent provisions of this or any other
law, and in addition to the notice requirements of any law pertaining to
persons other than those specified in subdivision two of this section,
notice as provided herein shall be given to the persons specified in
subdivision two of this section of any adoption proceeding initiated
pursuant to this article or of any proceeding initiated pursuant to
section one hundred fifteen-b OF THIS ARTICLE relating to the revocation
of an adoption consent, when such proceeding involves a child born out-
of-wedlock provided, however, that such notice shall not be required to
be given to any person who previously has been given notice of any
proceeding involving the child, pursuant to section three hundred eight-
y-four-c of the social services law, and provided further that notice in
an adoption proceeding, pursuant to this section shall not be required
S. 5069--A 3
to be given to any person who has previously received notice of any
proceeding pursuant to section one hundred fifteen-b OF THIS ARTICLE. In
addition to such other requirements as may be applicable to the petition
in any proceeding in which notice must be given pursuant to this
section, the petition shall set forth the names and last known addresses
of all persons required to be given notice of the proceeding, pursuant
to this section, and there shall be shown by the petition or by affida-
vit or other proof satisfactory to the court that there are no persons
other than those set forth in the petition who are entitled to notice.
For the purpose of determining persons entitled to notice of adoption
proceedings initiated pursuant to this article, persons specified in
subdivision two of this section shall not include any person who has
been convicted of [rape in the first degree involving forcible compul-
sion, under subdivision one of section 130.35 of the penal law, when the
child who is the subject of the proceeding was conceived as a result of
such rape] ONE OR MORE OF THE FOLLOWING SEXUAL OFFENSES IN THIS STATE OR
CONVICTED OF ONE OR MORE OFFENSES IN ANOTHER JURISDICTION WHICH, IF
COMMITTED IN THIS STATE, WOULD CONSTITUTE ONE OR MORE OF THE FOLLOWING
OFFENSES, WHEN THE CHILD WHO IS THE SUBJECT OF THE PROCEEDING WAS
CONCEIVED AS A RESULT: (A) RAPE IN FIRST OR SECOND DEGREE; (B) COURSE OF
SEXUAL CONDUCT AGAINST A CHILD IN THE FIRST DEGREE; (C) PREDATORY SEXUAL
ASSAULT; OR (D) PREDATORY SEXUAL ASSAULT AGAINST A CHILD.
S 3. Subdivision 1 of section 384-c of the social services law, as
amended by chapter 18 of the laws of 1979, is amended to read as
follows:
1. Notwithstanding any inconsistent provision of this or any other
law, and in addition to the notice requirements of any law pertaining to
persons other than those specified in subdivision two of this section,
notice as provided herein shall be given to the persons specified in
subdivision two of this section of any proceeding initiated pursuant to
sections three hundred fifty-eight-a, three hundred eighty-four, and
three hundred eighty-four-b of this chapter, involving a child born
out-of-wedlock. Persons specified in subdivision two of this section
shall not include any person who has been convicted of [rape in the
first degree involving forcible compulsion, under subdivision one of
section 130.35 of the penal law, when the child who is the subject of
the proceeding was conceived as a result of such rape] ONE OR MORE OF
THE FOLLOWING SEXUAL OFFENSES IN THIS STATE OR CONVICTED OF ONE OR MORE
OFFENSES IN ANOTHER JURISDICTION WHICH, IF COMMITTED IN THIS STATE,
WOULD CONSTITUTE ONE OR MORE OF THE FOLLOWING OFFENSES, WHEN THE CHILD
WHO IS THE SUBJECT OF THE PROCEEDING WAS CONCEIVED AS A RESULT: (A) RAPE
IN FIRST OR SECOND DEGREE; (B) COURSE OF SEXUAL CONDUCT AGAINST A CHILD
IN THE FIRST DEGREE; (C) PREDATORY SEXUAL ASSAULT; OR (D) PREDATORY
SEXUAL ASSAULT AGAINST A CHILD.
S 4. This act shall take effect immediately.