S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    287
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 4, 2017
                                ___________
 
 Introduced  by  Sen.  ROBACH -- 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 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 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD03051-01-7

 S. 287                              2
 
 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.
 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,

 S. 287                              3
 
 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.
   §  2.  The  family court act is amended by adding a new section 553 to
 read as follows:
   § 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.
   §  3. 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

 S. 287                              4
 
 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
 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.
   § 4. This act shall take effect immediately.