NY State Senate Bill 2019-S8549

Senate Bill S8549

2019-2020 Legislative Session

Relates to establishing procedure guidelines for custody agreements involving child abuse, family violence and/or domestic violence

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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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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 12, 2020	referred to rules

co-Sponsors

2019-S8549 (ACTIVE) - Details

See Assembly Version of this Bill:: A10668
Current Committee:: Senate Rules
Law Section:: Domestic Relations Law
Laws Affected:: Amd §240, Dom Rel L
Versions Introduced in 2021-2022 Legislative Session:: S1584, A3314

2019-S8549 (ACTIVE) - Summary

Relates to establishing procedure guidelines for custody agreements including those involving child abuse, family violence and/or domestic violence; provides guidelines regarding the best interests of the child standard and the awarding of supervised or unsupervised visitation for offending parents.

2019-S8549 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S8549

SPONSOR: SANDERS
 
TITLE OF BILL:

An act to amend the domestic relations law, in relation to establishing
procedure guidelines for custody agreements involving child abuse, fami-
ly violence and/or domestic violence

 
PURPOSE OR GENERAL IDEA OF BILL:

This Bill provides guidelines for family courts to follow when consider-
ing custody and/or visitation of a child where there is an allegation of
child abuse, family violence and/or domestic violence.

 
SUMMARY OF PROVISIONS:

Under current law, family courts use the "best interest of the child"
standard when determining an award of custody and/or visitation for a
child. This bill amends Domestic Relation Law § 240 to supplement the
"best interest of the child" standard by enumerating factors courts need

to consider when determining custody and visitation when there is an
allegation of child abuse, family violence and/or domestic violence.

 
JUSTIFICATION:

The intent of this legislation is two-fold. First, this bill will
require family courts to resolve allegation of child abuse, family
violence and/or domestic violence against a parent seeking custody
and/or visitation. Currently, when there is allegation of abuse and
violence committed by a parent seeking custody and visitation, the
courts usually employs the "best interest of the child" standard without
first resolving the allegations of abuse and violence when determining
custody and visitation. Unfortunately, the award of custody and/or unsu-
pervised visitation to a parent accused of child abuse, family violence
and/or domestic violence without resolving the allegations have resulted
in the serious physical injury to a child, as was the case with a 6
weeks old girl in Syracuse, NY in 2016 who suffered multiple severe
brain injuries, or with the death of 6 year old Gabriella Collins of
Syracuse, NY in 2014; 28 month old girl, Kyra Franchetti on Long Island
in 2016; 2 year old Jovani Liguro from Long Island in 2018; 3 year old
Autumn Coleman from Queens , NY in 2019; Davonte Paul from Troy, NY in
2019; and most recently, 8 year old boy, Thomas Valva on Long Island in
January 2020. The common thread with most of the cases that resulted in
the death of the children were in each case the mothers fought vehement-
ly, though unsuccessfully, in family courts not to grant custody or
unsupervised visitation of their child to the father who they accused of
child abuse and domestic violence.Despite the mothers sounding the
alarm, the courts, over the mothers' objections, awarded those fathers
custody and/or unsupervised visitation without ever addressing the alle-
gations of abuse and violence by the fathers. Case in point, in the case
of Thomas Valva, there was an active child abuse case filed with the
county CPS that was overlooked or not taken into account when the court
granted the father custody. This bill will requires family courts to
hold an evidentiary hearing on all allegations of abuse and violence by
a parent before determining custody and visitation. Should the court
determines the allegation to be founded, it has the discretion to make
an award supervised visitation to the offending parent for a determinate
time under certain conditions specified in this bill.
Second, this bill provides the offending parent with a pathway to gain-
ing unsupervised visitation and/or custody. The supervised visitation
will continue unabated until such time the court issues a written deci-
sion terminating the unsupervised based on the factors enumerated in
this bill.

 
PRIOR LEGISLATIVE HISTORY:

None

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

There is no fiscal impact to the State.

 
EFFECTIVE DATE:
This act shall take effect immediately after it becomes law.

2019-S8549 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8549
 
                             I N  S E N A T E
 
                               June 12, 2020
                                ___________
 
 Introduced  by  Sen. SANDERS -- read twice and ordered printed, and when
   printed to be committed to the Committee on Rules
 
 AN ACT to amend the domestic relations law, in relation to  establishing
   procedure  guidelines  for  custody  agreements involving child abuse,
   family violence and/or domestic violence
 
   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) (1) 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 petition and order to show cause, the custody of or right to visi-
 tation with any child of a marriage, the court shall  require  verifica-
 tion  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 CHILD ABUSE AGAINST THE CHILD, OR COMMIT-
 TED AN ACT OF FAMILY VIOLENCE OR 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 direc-
 tion pursuant to this section and state on the record how such findings,
 facts and circumstances factored into  the  direction]  THE  COURT  MUST
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD16321-01-0

 S. 8549                             2
 
 FIRST,  BEFORE  CONSIDERING  ANY  OTHER  BEST INTEREST FACTORS, HEAR AND
 DETERMINE UPON COMPETENT ADMISSIBLE EVIDENCE THE ALLEGATIONS SET  FORTH,
 AND  ENTER FINDINGS REGARDING ANY CHILD ABUSE, FAMILY VIOLENCE OR DOMES-
 TIC  ABUSE;  WITH  THE  EVIDENTIARY HEARING FOR SUCH DETERMINATION TO BE
 HELD WITHIN THIRTY DAYS OF THE FILING  OF  THE  VERIFIED  PLEADING.  THE
 COURT  SHALL NOT BE PRECLUDED, HOWEVER, FROM ISSUING ANY NECESSARY EMER-
 GENCY ORDERS TO PROTECT THE CHILD. ALL  COSTS,  INCLUDING  ATTORNEY  AND
 EXPERT FEES INCURRED BY THE NON-OFFENDING PARENT AND THE CHILD, SHALL BE
 PAID  BY THE PARENT WHO IS FOUND TO HAVE COMMITTED CHILD ABUSE OR DOMES-
 TIC VIOLENCE, UNLESS THE OFFENDING PARENT HAS INSUFFICIENT MEANS TO FUND
 SUCH ACTIVITIES. IF THE COURT FINDS BY A PREPONDERANCE OF  THE  EVIDENCE
 THAT  A  PARENT  HAS PERPETRATED FAMILY ABUSE, INCLUDING SEXUAL ABUSE OF
 ANY FAMILY MEMBER, THE COURT SHALL NOT AWARD SOLE OR  JOINT  CUSTODY  OR
 UNSUPERVISED VISITATION OF ANY CHILDREN TO THAT PARENT, UNLESS:
   (I)  THE PARENT IS NOT ABUSING ALCOHOL OR ILLEGALLY USING PSYCHOACTIVE
 DRUGS;
   (II) THE OFFENDING PARENT'S CUSTODY IS  NECESSARY  DUE  TO  THE  OTHER
 PARENT'S  ABSENCE,  VERIFIABLY  MEDICALLY  DIAGNOSED  MENTAL  ILLNESS OR
 SUBSTANCE ABUSE; AND
   (III) THE CHILD IS COMFORTABLE WITH UNSUPERVISED CONTACT, AS  VERIFIED
 BY  A  CHILD  THERAPIST  OR  EVALUATOR  WITH DOCUMENTED EXPERTISE IN THE
 PERTINENT TYPE OR TYPES OF ABUSE.
   (2) 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
 allegation 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] IF
 THE COURT FINDS BY CLEAR AND CONVINCING EVIDENCE AN ACT OF  CHILD  ABUSE
 OR A PATTERN OF DOMESTIC VIOLENCE, INCLUDING SEXUAL ABUSE AND TRAUMA, BY
 A  PARENT,  THE  COURT SHALL AWARD SOLE PHYSICAL CUSTODY OF THE CHILD TO
 THE SAFE PARENT OR PARTY AND SHALL SUSPEND ANY PHYSICAL CUSTODY WITH THE
 OFFENDING PARENT, EXCEPT THAT IT MAY AWARD SUPERVISED  PHYSICAL  CUSTODY
 IF  IT IS IN THE BEST INTEREST OF THE CHILD AND SUCH SUPERVISED PHYSICAL
 CONTACT IS PROTECTIVE OF THE HEALTH AND SAFETY OF THE CHILD. BEFORE SUCH
 SUPERVISED PHYSICAL CUSTODY MAY BEGIN, THE COURT SHALL  ISSUE  A  SUPER-
 VISED PHYSICAL CUSTODY PLAN, INCLUDING:
   (I)  RESTRICTIONS, CONDITIONS AND SAFEGUARDS NECESSARY TO MINIMIZE ANY
 RISK OF HARM TO THE CHILD, INCLUDING BUT NOT LIMITED TO RESTRICTING  THE
 OFFENDING  PARENT FROM POSSESSING A FIREARM DURING SUCH SUPERVISED PHYS-
 ICAL CUSTODY;
   (II) SPECIFIC MEASURES THE OFFENDING PARENT MUST TAKE  FOR  SUPERVISED
 PHYSICAL CUSTODY TO CONTINUE;
   (III)  THE DURATION SUPERVISED VISITATION SHALL CONTINUE, ASSUMING ALL
 CONDITIONS IN THE SUPERVISED PHYSICAL CUSTODY PLAN ARE CONSISTENTLY  AND
 CONTINUALLY MET; AND
   (IV) SPECIFIC MEASURES THE OFFENDING PARENT MUST COMPLETE IN ORDER FOR
 SUPERVISED PHYSICAL CUSTODY TO END.

 S. 8549                             3
 
   (3)  (I)  COURT  ORDERED SUPERVISED VISITATION SHALL CONTINUE UNABATED
 UNTIL THE COURT ISSUES WRITTEN FINDINGS OF THE EVIDENTIARY  HEARING  AND
 THE  CONDITIONS OF THE SUPERVISED PHYSICAL CUSTODY PLAN TERMINATING SAID
 VISITATION.
   (II)  A SUPERVISED PHYSICAL CUSTODY ARRANGEMENT IMPOSED ON A PARENT BY
 A COURT SHALL BE CONDUCTED BY A COURT-APPROVED PROFESSIONAL WITH  EXPER-
 TISE  IN  DOMESTIC VIOLENCE AND/OR CHILD ABUSE, IN A THERAPEUTIC SETTING
 AND UNDER CONDITIONS THAT ENSURE THE HEALTH AND SAFETY OF THE CHILD. THE
 SUPERVISED PHYSICAL CUSTODY ARRANGEMENT SHALL NOT BE CONDUCTED IN EITHER
 PARENT'S HOME AND SHALL NOT EXTEND OVERNIGHT.
   (III) IF AN OFFENDING PARENT COMMITS ADDITIONAL HARM TO THE CHILD, THE
 NON-OFFENDING  PARENT,  OR  ANOTHER  INDIVIDUAL  IN  THE   NON-OFFENDING
 PARENT'S  HOUSEHOLD,  WHEN  SUPERVISED PHYSICAL CUSTODY ARRANGEMENTS ARE
 ONGOING, THE COURT WILL  IMMEDIATELY  SUSPEND  FUTURE  PHYSICAL  CUSTODY
 ARRANGEMENTS UNTIL SUCH TIME AS THE COURT CAN RE-EVALUATE AND REVISE THE
 PREVIOUSLY  ISSUED SUPERVISED PHYSICAL CUSTODY PLAN. SUPERVISED PHYSICAL
 CUSTODY ARRANGEMENTS WILL NOT BE RE-INITIATED UNLESS AND UNTIL THE COURT
 CAN IMPLEMENT ADDITIONAL MEASURES TO MINIMIZE ANY RISK OF  HARM  TO  THE
 CHILD. THE COURT SHALL EXPLAIN THE ADDITIONAL MEASURES IN WRITING.
   (IV) UNSUPERVISED VISITATION WITH THE OFFENDING PARENT SHALL NOT OCCUR
 PRIOR  TO THE COURT'S WRITTEN DETERMINATION THAT SUCH UNSUPERVISED VISI-
 TATION IS IN THE CHILD'S BEST INTERESTS.  SUCH  DETERMINATION  SHALL  BE
 MADE BASED UPON FACTORS, INCLUDING, BUT NOT LIMITED TO:
   (A) WHETHER THE OFFENDING PARENT COMPLETED THE SPECIFIC MEASURES IDEN-
 TIFIED IN THE COURT-ORDERED SUPERVISED PHYSICAL CUSTODY PLAN;
   (B) EVIDENCE OF THE OFFENDING PARENT'S CURRENT MENTAL HEALTH CONDITION
 AND  THE  RISK THAT THE OFFENDING PARENT WILL SUBJECT THE CHILD OR OTHER
 HOUSEHOLD MEMBERS TO DOMESTIC ABUSE;
   (C) WHETHER THE OFFENDING PARENT IS NOT ABUSING ALCOHOL  OR  ILLEGALLY
 USING PSYCHOACTIVE DRUGS; AND
   (D) WHETHER THE OFFENDING PARENT WILL NOT CAUSE ANY UNREASONABLE PHYS-
 ICAL, EMOTIONAL OR PSYCHOLOGICAL HARM TO THE CHILD OR OTHER PARENT.
   (V)  THE  COURT SHALL EXPLAIN ITS FINDINGS WITH RESPECT TO THE FACTORS
 LISTED IN CLAUSE (IV) OF THIS SUBPARAGRAPH, AND  THE  JUSTIFICATION  FOR
 ENDING SUPERVISED VISITATION, IN WRITING.
   (VI)  ANY COST INCURRED FOR SUPERVISED PHYSICAL CUSTODY, FOR IMPLEMEN-
 TATION OF SAFETY MEASURES DURING SUPERVISED  PHYSICAL  CUSTODY  ARRANGE-
 MENTS,  OR  TO  PERFORM  MEASURES  IDENTIFIED  BY THE COURT FOR PHYSICAL
 CUSTODY TO CONTINUE OR END, SHALL  BE  PAID  BY  THE  OFFENDING  PARENT,
 UNLESS  THE  OFFENDING PARENT HAS INSUFFICIENT MEANS TO FUND SUCH ACTIV-
 ITIES.
   (4) 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
 article ten or ten-A of the family court act may jointly hear the dispo-
 sitional  hearing  on  the  petition under article ten or the permanency
 hearing 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
 visitation 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.
   (5) 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-

 S. 8549                             4
 
 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
 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.  This  act shall take effect on the ninetieth day after it shall
 have become a law.

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Senate Bill S8549

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Sponsored By

James Sanders Jr.