NY State Senate Bill 2017-S6402

Senate Bill S6402

2017-2018 Legislative Session

Relates to the rights of grandparents with respect to visitation rights or custody of minor children

download bill text pdf

Archive: Last Bill Status - In Senate Committee Rules Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

View Actions

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 20, 2018	committed to rules
Feb 28, 2018	advanced to third reading
Feb 27, 2018	2nd report cal.
Feb 13, 2018	1st report cal.503
Jan 03, 2018	referred to children and families
May 16, 2017	referred to children and families

Votes

- Feb 13, 2018 - Children And Families Committee Vote
  S6402
  
  4
  
  Aye
  
  0
  
  Nay
  
  3
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Children And Families Committee Vote: Feb 13, 2018
      
      aye (4)
      
      Avella
      
      Helming
      
      Savino
      
      Serino
      
      aye wr (3)
      
      Bonacic
      
      Montgomery
      
      Persaud

co-Sponsors

2017-S6402 (ACTIVE) - Details

See Assembly Version of this Bill:: A7821
Current Committee:: Senate Rules
Law Section:: Domestic Relations Law
Laws Affected:: Amd §72, Dom Rel L
Versions Introduced in Other Legislative Sessions:: 2019-2020: S5252, A1544
2021-2022: S2165, A1355
2023-2024: S7470, A2886

2017-S6402 (ACTIVE) - Summary

Establishes the intent of the legislature to generally defer to parental choices regarding the care, custody and control of their children; mandates that the death of a parent shall be a factor when considering a grandparent's standing to receive visitation or custody; directs that costs be payable by an unsuccessful petitioner where a contest was brought in bad faith.

2017-S6402 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S6402

 TITLE OF BILL :

An act to amend the domestic relations law, in relation to the rights
of grandparents with respect to visitation rights or custody of minor
children

 PURPOSE OF THE BILL :

The purpose of this bill is to require that grandparents be granted
legal standing by a judge before being considered for visitation
rights or custody of a minor child.

 SUMMARY OF PROVISIONS :

Section 1 amends part 1 of section 72 of the domestic relations law to
establish the requirements of the petitioner and the court in a
proceeding seeking to overturn a parental decision regarding custody
or visitation of their child. Subsection (a) specifies that any child
in question must reside in this state. Subsection (b) stipulates that
a strong presumption exists in favor of parental decisions and any
petitioner wishing to overturn such a decision must allege with
specificity that the child would experience significant harm to his or
her health, safety, or welfare if visitation were denied.
Additionally, the court shall be required to check the criminal

history of the petitioner for domestic incidents and past or current
orders of protection. This subsection also stipulates that a court
shall not assign a child a guardian ad litem until the standing of the
petitioner is determined. Subsection(c) reiterates that overturning
the decision of a parent regarding visitation must be in the best
interest of the child and visitation may only be ordered in
circumstances in which the child's health, safety or welfare would be
adversely affected by the denial of visitation and that the court's
finding shall be in writing explaining the reasons for granting
visitation. Part 3 allows costs and allowances in whole or in part be
payable by an unsuccessful petitioner where the court finds that the
contest was brought in bad faith or was frivolous or non-meritorious.

Section 2 establishes the effective date.

 JUSTIFICATION :

Current law allows grandparents to bring legal action in an attempt to
gain visitation rights or custody of minor children that may contest
the wishes of the child's parents. These proceedings can often be
expensive for parents and emotionally taxing for both children and
parents.

Parents who do not wish to allow grandparents to visit their children
for the health, safety or welfare of the children are often forced to
pay tens of thousands of dollars in legal fees and make multiple court
appearances necessary to answer grandparents' lawsuits.  Recently, a
family in New York State paid over $40,000 in legal costs and spent
over six months attending court appearances to fight a grandparent's
lawsuit for visitation rights because the grandparent had a history of
abusing other family members.  This bill seeks to prevent such
situations by:

(1) Allowing the court to consider whether or not either or both of
the parents of the child in question are deceased when determining
whether or not a grandparent has standing to commence a proceeding to
gain visitation rights or custody; and finding a presumption in favor
of parental decisions concerning visitation.


(2) Requiring that the court cannot determine whether or not a
grandparent has standing to commence a proceeding to gain visitation
rights or custody of a child on the same day that a determination to
establish the best interests of the child is rendered; and that a
petitioner seeking to overturn a parental decision must allege, with
detail and specificity that the child would experience significant
harm to his or her health, safety or welfare if visitation were
denied.

(3) Allowing the court to direct that costs and allowances of a
proceeding, including attorney's fees, be payable by an unsuccessful
petitioner if the court finds that the contest was brought in bad
faith or was frivolous or non-meritorious.

These changes to the law would help ensure that parent's wishes
regarding custody is respected and that there are specific standards
for the Judges to follow regarding allowing the grandparents to have
standing to bring proceedings of this nature. This bill would help to
further ensure that parents and their children would not have to make
unnecessary trips to court, which will help protect them from the
emotional difficulties of testifying about personal and sometimes
traumatic family matters. Additionally, the bill allows a Judge to
grant financial compensation if lawsuits brought against parents are
found to be in bad faith.

 PRIOR LEGISLATIVE HISTORY :

None.

 FISCAL IMPLICATIONS :

None.

 EFFECTIVE DATE :
This act shall take effect on the ninetieth day after it shall have
become a law.

2017-S6402 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6402
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                               May 16, 2017
                                ___________
 
 Introduced by Sen. MARCHIONE -- 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 the rights of
   grandparents  with  respect  to  visitation rights or custody of minor
   children

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Section  72  of the domestic relations law, as amended by
 chapter 657 of the laws of 2003, is amended to read as follows:
   § 72. Special proceeding or habeas corpus to obtain visitation  rights
 or  custody  in  respect  to certain infant grandchildren. 1.  (A) Where
 [either or both of the parents of a minor child,  residing  within  this
 state,  is or are deceased, or where] circumstances show that conditions
 exist which equity would see fit to  intervene,  a  grandparent  or  the
 grandparents  of  [such child] A MINOR CHILD, RESIDING WITHIN THIS STATE
 may apply to the supreme court by commencing a special proceeding or for
 a writ of habeas corpus to have such child brought before such court, or
 may apply to the family court pursuant to subdivision (b) of section six
 hundred fifty-one of the family court act[; and on].
   (B) WHEN DETERMINING WHETHER SUCH GRANDPARENT  OR  GRANDPARENTS  SHALL
 HAVE  STANDING TO COMMENCE SUCH PROCEEDINGS PURSUANT TO PARAGRAPH (A) OF
 THIS SUBDIVISION, A STRONG PRESUMPTION EXISTS IN FAVOR OF PARENTAL DECI-
 SIONS CONCERNING VISITATION. FURTHER, THE  COURT  SHALL  NOT  APPOINT  A
 GUARDIAN  AD  LITEM  UNTIL  SUCH TIME AS STANDING OF SUCH GRANDPARENT OR
 GRANDPARENTS HAS BEEN DETERMINED. A PETITIONER  SEEKING  TO  OVERTURN  A
 PARENTAL  DECISION  MUST  ALLEGE,  WITH DETAIL AND SPECIFICITY, THAT THE
 CHILD WOULD EXPERIENCE SIGNIFICANT HARM TO HIS OR HER HEALTH, SAFETY, OR
 WELFARE IF VISITATION WERE DENIED. PRIOR TO  FILING  THE  PETITION,  THE
 PETITIONER  MUST  HAVE  MADE A GOOD FAITH ATTEMPT AT RECONCILIATION WITH
 THE RESPONDENT AND THE PETITION MUST ALLEGE  SO  WITH  SPECIFICITY,  AND
 MUST  BE VERIFIED OR ACCOMPANIED BY A VERIFIED AFFIDAVIT. THE PETITIONER
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD07794-05-7

 S. 6402                             2
 
 MUST DEMONSTRATE THAT HE OR SHE IS A FIT AND PROPER PERSON TO HAVE VISI-
 TATION RIGHTS WITH THE CHILD AND THAT HE OR SHE HAS NO REPORTED  HISTORY
 OF  DOMESTIC  VIOLENCE.   THE COURT SHALL ALSO CONDUCT ITS OWN SEARCH TO
 DETERMINE  WHETHER THE PETITIONER HAS EVER HAD A DOMESTIC VIOLENCE INCI-
 DENT REPORT FILED AGAINST HIM OR HER. THE COURT SHALL FURTHER CONDUCT  A
 SEARCH TO DETERMINE WHETHER THE PETITIONER IS, OR EVER HAS BEEN, SUBJECT
 TO  AN  ORDER  OF PROTECTION OR HAS ANY CRIMINAL HISTORY.  THE COURT MAY
 ALSO CONSIDER WHETHER OR NOT EITHER OR BOTH OF THE PARENTS OF SUCH CHILD
 IS OR ARE DECEASED, HOWEVER, SUCH FACTOR SHALL NOT AUTOMATICALLY GRANT A
 GRANDPARENT OR THE GRANDPARENTS OF SUCH CHILD STANDING TO COMMENCE  SUCH
 PROCEEDINGS PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION.
   (C)  ON  the  return thereof, the court, by order, after due notice to
 the parent or any other person or party having the  care,  custody,  and
 control  of  such  child,  to be given in such manner as the court shall
 prescribe, may make such directions as the best interest  of  the  child
 may  require, for visitation rights for such grandparent or grandparents
 in respect to such child.  ANY FINDING CONCERNING THE BEST INTERESTS  OF
 THE  CHILD  SHALL BE SUBJECT TO THE STRONG PRESUMPTION THAT THE PARENTS'
 DECISION IS IN THE CHILD'S BEST INTEREST, AND  VISITATION  MAY  ONLY  BE
 ORDERED  IN CIRCUMSTANCES IN WHICH THE CHILD'S HEALTH, SAFETY OR WELFARE
 WOULD BE ADVERSELY AFFECTED BY THE DENIAL  OF  VISITATION.  THE  COURT'S
 FINDING SUPPORTING AN ORDER OF VISITATION SHALL BE IN WRITING.
   2.  (a)  Where  a  grandparent  or  the grandparents of a minor child,
 residing within this state, can demonstrate to the satisfaction  of  the
 court  the existence of extraordinary circumstances, such grandparent or
 grandparents of such child may apply to the supreme court by  commencing
 a  special  proceeding or for a writ of habeas corpus to have such child
 brought before such court, or may apply  to  family  court  pursuant  to
 subdivision  (b)  of  section  six hundred fifty-one of the family court
 act; and on the return thereof, the court, by order, after due notice to
 the parent or any other person or party having the  care,  custody,  and
 control  of  such  child,  to be given in such manner as the court shall
 prescribe, may make such directions as the best interests of  the  child
 may  require, for custody rights for such grandparent or grandparents in
 respect to such child. An extended disruption of custody, as  such  term
 is  defined  in  this section, shall constitute an extraordinary circum-
 stance.
   (b) For the purposes of this section "extended disruption of  custody"
 shall  include,  but  not  be  limited to, a prolonged separation of the
 respondent parent and the child  for  at  least  twenty-four  continuous
 months during which the parent voluntarily relinquished care and control
 of  the  child  and the child resided in the household of the petitioner
 grandparent or grandparents, provided, however, that the court may  find
 that  extraordinary  circumstances exist should the prolonged separation
 have lasted for less than twenty-four months.
   (c) Nothing in this section shall limit  the  ability  of  parties  to
 enter  into  consensual  custody  agreements  absent  the  existence  of
 extraordinary circumstances.
   3. THE COURT MAY DIRECT THAT COSTS AND ALLOWANCES IN WHOLE OR IN PART,
 INCLUDING ATTORNEY'S FEES, BE  PAYABLE  BY  AN  UNSUCCESSFUL  PETITIONER
 WHERE  THE  COURT FINDS THAT THE CONTEST WAS BROUGHT IN BAD FAITH OR WAS
 FRIVOLOUS OR NON-MERITORIOUS.
   § 2. This act shall take effect on the ninetieth day  after  it  shall
 have become a law.

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Senate Bill S6402

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Sponsored By

Kathleen A. Marchione