S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3314
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 22, 2021
                                ___________
 
 Introduced by M. of A. HUNTER, TAYLOR, CRUZ, DAVILA, PERRY, McDONOUGH --
   read once and referred to the Committee on Judiciary
 
 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

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

                                                            LBD06004-01-1

 A. 3314                             2

 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
 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;

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   (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.
   (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

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 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-
 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

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 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.