S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5762
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 24, 2021
                                ___________
 
 Introduced  by  M.  of  A.  HAWLEY,  MORINELLO, SMULLEN, ASHBY, SALKA --
   Multi-Sponsored by -- M. of A. BARCLAY -- read once  and  referred  to
   the Committee on Judiciary
 
 AN  ACT  to  amend  the  domestic relations law, in relation to determi-
   nations of child custody in matrimonial actions

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Section  70  of  the domestic relations law is amended by
 adding a new subdivision (c) to read as follows:
   (C) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO  THE  CONTRARY,  THE
 COURT SHALL NOT CONSIDER THE DEPLOYMENT OF A PARENT IN ACTIVE SERVICE OF
 THE ARMED FORCES OF THE UNITED STATES OR OF THE ORGANIZED MILITIA OF THE
 STATE  OF NEW YORK AS A DETRIMENTAL FACTOR TO THE AWARDING OF CUSTODY OF
 A CHILD WHERE A SUITABLE CHILD CARE PLAN FOR THE PERIOD OF SUCH  DEPLOY-
 MENT HAS BEEN PRESENTED TO THE COURT BY THE PETITIONING PARENT.
   §  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
 and a new subdivision 1-d is added 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]  SUBDIVISIONS  one-c  AND  ONE-D  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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD02174-01-1

 A. 5762                             2
 
 complaint  or  sworn answer, cross-petition, counterclaim or other sworn
 responsive pleading that the other party has committed an act of  domes-
 tic  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. 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 reason-
 able 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
 determining 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 determi-
 nation. 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.
   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

 A. 5762                             3
 
 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.
   1-D.  NOTWITHSTANDING  ANY OTHER PROVISION OF LAW TO THE CONTRARY, THE
 COURT SHALL NOT CONSIDER THE DEPLOYMENT OF A PARENT IN ACTIVE SERVICE OF
 THE ARMED FORCES OF THE UNITED STATES OR OF THE ORGANIZED MILITIA OF THE
 STATE OF NEW YORK AS A DETRIMENTAL FACTOR TO THE AWARDING OF CUSTODY  OF
 A CHILD TO A PETITIONING PARENT WHERE A SUITABLE CHILD CARE PLAN FOR THE
 PERIOD  OF  SUCH  DEPLOYMENT  HAS  BEEN  PRESENTED  TO THE COURT BY SUCH
 PARENT.
   § 3. This act shall take effect immediately.