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

                                 4726--A

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                             April 10, 2015
                               ___________

Introduced by Sens. ROBACH, CROCI, GALLIVAN, MARCHIONE -- read twice and
  ordered  printed, and when printed to be committed to the Committee on
  Children and Families -- recommitted to the Committee on Children  and
  Families  in  accordance  with  Senate  Rule  6,  sec.  8 -- committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

AN ACT to amend the domestic relations law and the family court act,  in
  relation to prohibiting the court from granting custody of or unsuper-
  vised visitation with a child to a person who has been convicted of or
  charged with raping the parent of the child

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

  Section 1. Paragraph (a) of subdivision 1 of section 240 of the domes-
tic relations law, as amended by chapter 476 of the  laws  of  2009,  is
amended 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 one-c 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-peti-
tion, counterclaim or other sworn responsive  pleading  that  the  other
party has committed an act of domestic violence against the party making
the  allegation or a family or household member of either party, as such

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01782-02-6
              

S. 4726--A                          2

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.  NO COURT SHALL AWARD CUSTODY
TO OR ALLOW UNSUPERVISED VISITATION WITH A PERSON WHO HAS BEEN CONVICTED
OF RAPING THE PARENT OF SUCH CHILD AND ANY REQUEST FOR CUSTODY OR  UNSU-
PERVISED  VISITATION  BY A PERSON CHARGED WITH RAPING THE PARENT OF SUCH
CHILD SHALL BE STAYED PENDING RESOLUTION  OF  ANY  CRIMINAL  CHARGES  OF
RAPE.  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, and  shall  state
on the record how such findings were factored into the determination. 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 direction 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-
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

S. 4726--A                          3

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.
  S 2. Paragraph (a) of subdivision 1 of section  240  of  the  domestic
relations law, as amended by chapter 567 of the laws of 2015, is amended
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 one-c 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-peti-
tion, counterclaim or other sworn responsive  pleading  that  the  other
party has committed an act of domestic 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.  NO COURT SHALL AWARD CUSTODY
TO OR ALLOW UNSUPERVISED VISITATION WITH A PERSON WHO HAS BEEN CONVICTED
OF RAPING THE PARENT OF SUCH CHILD AND ANY REQUEST FOR CUSTODY OR  UNSU-
PERVISED  VISITATION  BY A PERSON CHARGED WITH RAPING THE PARENT OF SUCH
CHILD SHALL BE STAYED PENDING RESOLUTION  OF  ANY  CRIMINAL  CHARGES  OF

S. 4726--A                          4

RAPE.  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, and shall state
on the record how such findings were factored  into  the  determination.
Where  a proceeding filed pursuant to article ten or ten-A of the family
court act is pending at the same time as a  proceeding  brought  in  the
supreme court involving the custody of, or right to visitation with, any
child of a marriage, the court presiding over the proceeding under arti-
cle  ten  or ten-A of the family court act may jointly hear the disposi-
tional hearing on the petition under article ten or the permanency hear-
ing under article ten-A of the family court act and, upon referral  from
the supreme court, the hearing to resolve the matter of custody or visi-
tation in the proceeding pending in the supreme court; provided however,
the  court  must  determine custody or visitation in accordance with the
terms of this section.
  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 proper-
ty  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 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-
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

S. 4726--A                          5

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.
  S 3. The family court act is amended by adding a new  section  553  to
read as follows:
  S  553. PATERNITY PROCEEDINGS STAYED FOR RAPE CHARGES AGAINST PUTATIVE
FATHER. 1. IF CRIMINAL CHARGES ALLEGING  AN  ACT  OF  RAPE  ARE  BROUGHT
AGAINST  THE  PUTATIVE FATHER OF A CHILD CONCEIVED AS THE RESULT OF THAT
ACT OF RAPE, THE COURT SHALL ISSUE AN AUTOMATIC STAY  OF  ANY  PATERNITY
PROCEEDING INVOLVING BOTH THE CHILD AND THE ALLEGED PUTATIVE FATHER. THE
STAY  SHALL  NOT  BE  LIFTED  UNTIL THERE IS A FINAL DISPOSITION OF SUCH
CRIMINAL CHARGES.
  2. IN ANY FUTURE CUSTODY PROCEEDING, ANY DENIAL  OF  VISITATION  UNDER
THIS  SECTION  SHALL  NOT  BE  USED AGAINST THE MOTHER OF THE CHILD WHEN
DETERMINING ANY SUPPORT OBLIGATION.
  S 4. Subdivisions (a), (b) and (c) of section 651 of the family  court
act,  subdivisions  (a)  and (c) as amended by chapter 85 of the laws of
1996 and subdivision (b) as amended by chapter 657 of the laws of  2003,
are amended to read as follows:
  (a) When referred from the supreme court or county court to the family
court,  the  family  court  has jurisdiction to determine, in accordance
with subdivision one of  section  two  hundred  forty  of  the  domestic
relations law and with the same powers possessed by the supreme court in
addition  to  its  own powers, habeas corpus proceedings and proceedings
brought by petition and order to show cause, for  the  determination  of
the  custody or visitation of minors SUBJECT, HOWEVER, TO THE PROVISIONS
OF PARAGRAPH (A) OF SUBDIVISION ONE OF SECTION TWO HUNDRED FORTY OF  THE
DOMESTIC  RELATIONS  LAW  PROHIBITING THE COURT FROM GRANTING CUSTODY OR
UNSUPERVISED VISITATION OF A CHILD TO A PERSON WHO HAS BEEN CONVICTED OF
OR CHARGED WITH RAPING THE PARENT OF THE CHILD.
  (b) When initiated in the family court, the family court has jurisdic-
tion to determine, in accordance with subdivision  one  of  section  two
hundred  forty  of  the  domestic relations law and with the same powers

S. 4726--A                          6

possessed by the supreme court in addition to  its  own  powers,  habeas
corpus proceedings and proceedings brought by petition and order to show
cause,  for  the  determination  of the custody or visitation of minors,
including  applications  by a grandparent or grandparents for visitation
or custody rights pursuant to section seventy-two or two  hundred  forty
of  the  domestic  relations  law SUBJECT, HOWEVER, TO THE PROVISIONS OF
PARAGRAPH (A) OF SUBDIVISION ONE OF SECTION TWO  HUNDRED  FORTY  OF  THE
DOMESTIC  RELATIONS  LAW  PROHIBITING THE COURT FROM GRANTING CUSTODY OR
UNSUPERVISED VISITATION OF A CHILD TO A PERSON WHO HAS BEEN CONVICTED OF
OR CHARGED WITH RAPING THE PARENT OF THE CHILD.
  (c) When initiated in the family court pursuant to  a  petition  under
part  eight  of  article ten of this act or section three hundred fifty-
eight-a of the social services law, the family court has jurisdiction to
enforce or modify orders or judgments of the supreme court  relating  to
the  visitation of minors in foster care, notwithstanding any limitation
contained in subdivision (b) of section four hundred sixty-seven of this
act BUT SUBJECT TO THE PROVISIONS OF PARAGRAPH (A) OF SUBDIVISION ONE OF
SECTION TWO HUNDRED FORTY OF THE DOMESTIC RELATIONS LAW PROHIBITING  THE
COURT  FROM  GRANTING CUSTODY OR UNSUPERVISED VISITATION OF A CHILD TO A
PERSON WHO HAS BEEN CONVICTED OF OR CHARGED WITH RAPING  THE  PARENT  OF
THE CHILD.
  S 5. This act shall take effect immediately; provided that section two
of this act shall take effect on the same date and in the same manner as
section 12 of chapter 567 of the laws of 2015, takes effect.