NY State Senate Bill 2021-S7425

Senate Bill S7425

2021-2022 Legislative Session

Establishes "Kyra's Law"

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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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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 03, 2022	recommitted to rules
May 23, 2022	amended on third reading (t) 7425a
Mar 03, 2022	advanced to third reading
Mar 02, 2022	2nd report cal.
Mar 01, 2022	1st report cal.578
Jan 07, 2022	reference changed to judiciary
Jan 05, 2022	referred to rules
Oct 08, 2021	referred to rules

Votes

- Mar 1, 2022 - Judiciary Committee Vote
  S7425
  
  12
  
  Aye
  
  0
  
  Nay
  
  3
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Judiciary Committee Vote: Mar 1, 2022
      
      aye (12)
      
      Bailey
      
      Biaggi
      
      Breslin
      
      Gounardes
      
      Hoylman-Sigal
      
      Kaplan
      
      Lanza
      
      O'Mara
      
      Oberacker
      
      Palumbo
      
      Sepúlveda
      
      Skoufis
      
      aye wr (3)
      
      Boyle
      
      Myrie
      
      Thomas

Bill Amendments

Original

A (Active)

co-Sponsors

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2021-S7425 - Details

Current Committee:: Senate Rules
Law Section:: Domestic Relations Law
Laws Affected:: Amd §§240 & 70, add §240-e, Dom Rel L; add §654, amd §1112, Fam Ct Act
Versions Introduced in 2023-2024 Legislative Session:: S3170

2021-S7425 - Summary

Requires the court to consider a child's health and safety when making a decision regarding child custody and visitation; directs presumptions that may be made by the court and admissibility of certain evidence in such cases; requires court officials to take part in training to handle such cases regarding domestic violence and child abuse.

2021-S7425 - Sponsor Memo

                                
 
BILL NUMBER: S7425

SPONSOR: KAPLAN
 
TITLE OF BILL:

An act to amend the domestic relations law, in relation to establishing
"Kyra's Law"

 
PURPOSE OR GENERAL IDEA OF BILL:

To protect children by prioritizing the health and safety of children
over other best interest factors in child custody and visitation
proceedings.

 
SUMMARY OF PROVISIONS:

Section 1 of the bill amends paragraph (a) of subdivision 1 of the
domestic relations law to require that in child custody or visitation
proceedings in which a party alleges child abuse or domestic violence,
the court must first, before considering any other best interest
factors, conduct an evidentiary hearing and make a finding regarding

such allegations. Should the court find a pattern of domestic violence
or child abuse, this section requires a court to award sole custody to
the non-offending parent.

Section 2 of the bill amends the domestic relations law to create a new
section 240-d to identify specific factors to be given weighted consid-
eration when determining the health and safety of children in child
custody or visitation, to restrict admissibility of non-scientifically
valid or proven theories such as parental alienation, friendly parent or
reunification treatment in such proceedings, and to require specific
training for judges and court personnel handling child custody cases in
which child abuse or domestic violence is alleged.

Section 3 of the bill amends subdivision (a) of section 70 of the domes-
tic relations law to ensure that the same protections as noted above are
in place regardless of whether the parents of the child have ever been
married.

Section 4 is the effective date.

 
JUSTIFICATION:

This bill, known as "Kyra's Law," seeks to address the systemic weak-
nesses in the current law regarding child custody and visitation and the
failures of the court system to keep New York's children safe from
dangerous abusers.

Kyra Franchetti, a toddler, was ordered by the court to have unsuper-
vised visits with her father, despite repeated reports and eyewitness
accounts of his anger and rage issues, suicidal ideation, stalking and
history of coercive tactics and abuse. During two years of child custody
hearings in Nassau County Family Court, Kyra Franchetti's mother repeat-
edly pleaded with the court to acknowledge the risk of harm to Kyra. The
court dismissed these urgent pleas to protect Kyra and permitted unsu-
pervised visitation to proceed. In July 2016, Kyra was on an unsuper-
vised, court-sanctioned visit with her father in Virginia when he shot
her to death while she slept. He then set his house on fire and killed
himself. Kyra was only twenty-eight months old.(1)
Tragically, countless children in New York have been injured or murdered
at the hands of a parent who is seeking to cause pain and trauma to
their intimate partner. Yet courts continue to discount or minimize the
risks posed in cases where domestic violence is present, dismissing
allegations of domestic violence or child abuse as an attempt by one
parent to win custody from the other.

Moreover, there is now a specialized body of scientific research about
domestic violence and child abuse that was not available when custody
courts developed their present practices. The courts have been slow to
integrate this research. Children exposed to domestic violence and child
abuse will live shorter lives and suffer a lifetime of health and social
problems.(2) Most of the harm is not caused by the immediate physical
injuries, but from living with the fear and stress abusers cause. Most
judges, lawyers and evaluators do not have the specific training and
background necessary to evaluate domestic violence and child abuse
cases. This leads to decisions that harm children. This legislation
encourages a multi-disciplinary approach that would include experts in
domestic violence and child sexual abuse.

The bill requires the court to conduct an evidentiary hearing within 6o
days of the filing of the verified pleading to determine upon competent
admissible evidence and enter findings regarding child abuse, family
violence or domestic abuse

Requiring the evidentiary hearing at the outset of child custody and
visitation proceedings will ensure that future decision-making takes
into account the risks posed to that child, that the courts quickly
address these issues and minimize the timeframe for which a violent
offender may have access to a child at risk.

This hearing will not preclude the court from issuing emergency orders
necessary to protect the child. If the court concludes a parent is
abusive, the court may require such abuser to pay the legal fees for
both parties, if the abuser has the economic means to do so.

By evaluating domestic violence and child abuse allegations at the
initiation of court proceedings, the court will be better able to under-
stand why one -parent may not be fostering a relationship between an
offending parent and the child.

Currently, although New York State statute specifically restricts the
court from depriving a parent of custody, visitation or contacts with a
child if such parent makes a good faith allegation of domestic violence,
non-offending parents typically have their children removed from their
care for making such allegations.

According to research by Professor Joan S. Meier, Esq., of George Wash-
ington University Law School, in conjunction with the National Institute
of Justice, an analysis of more than 2,000 court opinions across the
country confirms "courts are skeptical of mothers' claims of abuse by
fathers; this skepticism is greatest when mothers claim child abuse.(3)

This bill requires the Court, when making a determination based on the
'best interest of the child' shall prioritize and promote the health and
safety of the child.


Promoting safety of a child includes preventing direct physical and/or
emotional harm to the child and creating situations that may decrease
the likelihood such child will engage in harmful behaviors.

This bill requires, that prior to the issuance of any order of custody
of visitation, the court shall determine the safety of the child by
considering and giving weighted consideration to the following factors:

1.) Whether either parent is more likely to ensure the health and safety
of the child.

2) The substantial risks associated with separating the child from his
or her primary attachment figure.

3) Whether either parent jeopardizes the health and safety of the child
by unreasonably placing the child at substantial risk of severe
emotional distress or bodily injury.

4) Any present or past abuse committed by a parent or a member of a
parent's household against the child, regardless of whether there is
continued risk of harm to the child.

5) Whether either parent has committed an act of child abuse against the
child or committed an act of family violence or domestic violence
against the party making the allegation, a family member, or a household
member of either party.

6) Whether either parent is better able and is more likely to provide
adequate health and safety safeguards and supervision of the child.

7) Any history of violence or abuse committed by a parent or a member of
a parents' household against any other party, another child in the
parent's household, or the child's other parent or any individual that
resides, or formerly resided, in the other parents household.

8) Any fear held by the child of a parent based on such parent's specif-
ic conduct that is contrary to the child's best interest, specifically
the child's health and safety.

9) The presence of Adverse Childhood Experiences (ACEs) and whether
either parent's behaviors have contributed to the presence of ACEs for
the child.

Far too often, domestic violence abusers are granted child custody or
unsupervised visitation because they are deemed to be better able to
support their child economically. While a determination of which parent.
can better economically support a child is an important one, it is not
more important than assessing whether either parent places the child at
substantial risk of bodily injury or severe emotional distress. Such an
approach also does not take into account the resulting trauma from
removing a child from their primary attachment figure, provided such
parent is non-abusive.

This bill prevents courts from factoring into custody or visitation
proceedings the following:

1.) The court shall not presume that a child's deficient or negative
relationship with a parent was caused by the other parent. No child's
contact with a parent found to be the primary attachment figure shall be
restricted as a means of attempting to improve a deficient relationship
with the other parent.

2) Concerns regarding unconscious or subliminal parental alienation
shall be not admissible and shall not be considered in assessing a
child's best interests.

3) No psychological or medical theories or labels related to a child's
resistance to contact with one parent shall be admitted into evidence
unless they are generally accepted by the scientific and professional
community based on empirical proof or scientific reliability and validi-
ty

4) No reunification treatment or similar program shall be ordered by the
court without scientifically valid and generally accepted proof of the
effectiveness and therapeutic value of such treatment or program. No
treatment or program shall be ordered which is predicated on separating
a child from such child's primary attachment figure.

5) Any order attempting to remediate a child's resistance to contact or
visitation with a parent shall address any parental behaviors or
contributions the court determines to be the cause of, either wholly or
in part, such resistance.

6) In cases where the court has found a parent to be a victim of domes-
tic violence, and/or where child abuse has occurred or is occurring, a
court shall not consider whether either parent is a friendly parent.

Research finds that courts often err in awarding child custody or visi-
tation to abusers due to the debunked theory of parental alienation, the
theory that when parents allege that a child is not safe with the
offending parent, they are doing so illegitimately, to alienate the
child from such parent. In fact, cross-claims of parental alienation
"virtually double" courts' rejection of parents' abuse claims, causing
non-offending parents to lose custody to the parent accused of abuse.(4)
This bill restricts parents from using such theories or labels in court.

This bill requires in cases where the court has found a parent to be a
victim of domestic violence and/or where child abuse has occurred or is
occurring the following:

1) The court shall not base decisions on a legal presumption of shared
parenting.

2) 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 domestic violence, unless the offending
parent has insufficient means to pay such costs.

Domestic violence can have very harmful effects on children. When there
is domestic violence in the home, children are at greater risk of being
abused or neglected. But even when they are not "directly" abused, chil-
dren who witness violence and abuse by one parent against another can be
affected in ways similar to children who are physically abused. Seeing
or hearing violence at home can hurt children emotionally, psychologi-
cally, and even physically due to the stress they suffer.

Some individuals who use coercive power and control tactics against
their intimate partners go so far as to use their children as pawns,
even harming or murdering them, to try to maintain control over or
devastate their partners.

This bill enhances current training requirements for judges and court
personnel and requires such training be developed and offered by domes-
tic violence and child abuse experts working in the field to support and
advocate on behalf of New York's domestic violence survivors and chil-
dren.

1) Any judges and other court professionals handling child custody
proceedings in which one or more of the parties have alleged domestic
violence or child sexual abuse shall complete training for the handling
of such cases at least once annually. Such training shall be developed
by the Office of Children and Family Services (OCFS)

2) This training shall include but not be limited to:

* the dynamics of domestic violence and child abuse: emotional, finan-
cial, physical, technological, and sexual abuse.

* Tactics commonly used by one party to induce fear in another pasty or
child. Including verbal, emotional, psychological, and/or economic
abuse, isolating tactics, threats, controlling behaviors, monitoring,
litigation abuse, and demands for custody or joint custody in order to
pressure the partner to return or punish the partner for leaving.

* Knowledge of trauma, particularly as it relates to sexual abuse and
the risks posed to children, and the long-term dangers posed by the
presence of ACEs.

* The increased risk of escalating violence that occurs during child
custody proceedings

* Education regarding the harms courts may cause children in child
custody cases where domestic violence or child abuse is present by rely-
ing on non-scientific theories such as parental alienation, parental
alienation syndrome, the friendly parent concept, or any other theory or
label that is not supported by scientific research that is generally
accepted by the scientific community.

Less than 4% of child custody cases require trial; most are settled
outside of court. Research shows that the majority of contested custody
cases that do go to trial involve domestic violence and/or child abuse.

Therefore, it is critical for judges and court personnel who hear child
custody and visitation cases involving domestic violence or child abuse
receive consistent, comprehensive training in the dynamics of domestic
violence, trauma, coercive control, the harm courts may cause children
by relying on nonscientific theories such as parental alienation, the
increased risk of escalating violence that occurs during child custody
proceedings, the impacts of Adverse Childhood Experiences on children,
and other issues.

 
PRIOR LEGISLATIVE HISTORY:

New bill
 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

Undetermined.

 
EFFECTIVE DATE:
The 90th day after it shall have become law; effective immediately, the
addition, amendment and/or repeal of any rule or regulation necessary
for the implementation of this act on its effective date are authorized
to made and completed on or before such effective date.
(1) https://kyrafranchetti.org/kyras-story/
(2) Vincent J. Felitti, Robert F. Anda, D. Nordenberg, D. F.  William-
son, AM Spitz, V. Edwards., MP Ross, at al. "The Relationship of Adult
Health Status to Childhood Abuse and Household Dysfunction."  American
Journal of Preventive Medicine. 1998; 14:245-258. Available at
https://www.ncbi.nlm.nih.gov/pubmed/9635069.
(3) Meier, Joan S. and Dickson, Sean and 08A39;Sullivan, Chris and
Rosen, Leora and Hayes, Jeffrey, Child Custody Outcomes in Cases Involv-
ing Parental Alienation and Abuse Allegations (2019). GWU Law School
Public Law Research Paper No. 2019-56; GWU Legal Studies Research Paper
No. 2019-56. Available at SSRN:  https://ssrn.com/abstract=3448062 or
http://dx.doLorg/10.2139/ssrn.3448062 (4) Ibid.

2021-S7425 - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7425
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                              October 8, 2021
                                ___________
 
 Introduced by Sens. KAPLAN, GOUNARDES -- 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
   "Kyra's Law"
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section 1. Short title. This act shall be known as and may be cited as
 "Kyra's Law".
   §  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
 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 CHILD ABUSE AGAINST SUCH CHILD, OR COMMIT-
 TED 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 upon the best

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

                                                            LBD09163-01-1

 S. 7425                             2

 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 circum-
 stances  factored  into  the  direction]  THE  COURT  MUST FIRST, BEFORE
 CONSIDERING ANY OTHER BEST INTEREST FACTORS,  HEAR  AND  DETERMINE  UPON
 COMPETENT  ADMISSIBLE EVIDENCE SUCH ALLEGATIONS SET FORTH, AND ENTER ANY
 FINDINGS REGARDING ANY CHILD ABUSE OR DOMESTIC  ABUSE.  THE  EVIDENTIARY
 HEARING  FOR  SUCH  DETERMINATION SHALL BE HELD WITHIN SIXTY DAYS OF THE
 FILING OF A VERIFIED PLEADING. THE COURT SHALL  NOT  BE  PRECLUDED  FROM
 ISSUING  ANY NECESSARY EMERGENCY ORDERS TO PROTECT THE CHILD. ALL COSTS,
 INCLUDING ATTORNEY AND EXPERT FEES INCURRED BY THE NON-OFFENDING  PARENT
 AND  THE CHILD, TO PREPARE FOR AND PARTICIPATE IN SUCH EVIDENTIARY HEAR-
 ING, SHALL BE PAID BY THE PARENT WHO IS FOUND TO  HAVE  COMMITTED  CHILD
 ABUSE OR DOMESTIC VIOLENCE, UNLESS THE OFFENDING PARENT HAS INSUFFICIENT
 MEANS  TO  FUND SUCH ACTIVITIES.  If a parent makes a good faith allega-
 tion 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 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 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 article ten or ten-A of the family  court  act
 may jointly hear the disposition's 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] THE COURT FINDS
 A  PATTERN  OF  DOMESTIC  VIOLENCE OR CHILD ABUSE BY A PARENT, THE COURT
 SHALL AWARD SOLE CUSTODY OF THE CHILD TO  THE  NON-OFFENDING  PARENT  OR
 PARTY  AND  SHALL SUSPEND VISITATION OR ONLY AWARD PROFESSIONALLY SUPER-
 VISED VISITATION TO THE PARENT ENGAGED  IN  A  PATTERN  OF  VIOLENCE  OR
 ABUSIVE  BEHAVIOR. IF THE COURT DOES NOT MAKE A FINDING THAT A PARTY HAS
 ENGAGED IN A PATTERN OF DOMESTIC VIOLENCE OR CHILD ABUSE, THE COURT  MAY
 NOT REFUSE TO CONSIDER ADDITIONAL EVIDENCE OF DOMESTIC VIOLENCE OR CHILD
 ABUSE PRESENTED LATER IN THE CASE.
   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

 S. 7425                             3
 
 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.
   § 3. The domestic relations law is amended by  adding  a  new  section
 240-d to read as follows:
   §  240-D.  CUSTODY  AND VISITATION; HEALTH AND SAFETY OF THE CHILD. 1.
 FOR THE PURPOSES OF THIS SECTION, THE FOLLOWING  TERMS  SHALL  HAVE  THE
 FOLLOWING MEANINGS:
   (A)  "ADVERSE  CHILDHOOD EXPERIENCES" MEANS ANY STRESSFUL OR TRAUMATIC
 EXPERIENCE OF A CHILD DURING SUCH CHILD'S CHILDHOOD WHICH  ARE  STRONGLY
 RELATED  TO  THE  DEVELOPMENT  AND  PREVALENCE OF A WIDE RANGE OF HEALTH

 S. 7425                             4
 
 PROBLEMS THROUGHOUT SUCH CHILD'S LIFETIME, INCLUDING,  BUT  NOT  LIMITED
 TO,  PHYSICAL  OR  SEXUAL  ABUSE,  DOMESTIC  VIOLENCE,  PARENTAL  MENTAL
 ILLNESS, SUBSTANCE ABUSE, AND INCARCERATION.
   (B)  "PARENTAL  ALIENATION"  MEANS  CLAIMS  THAT  A  CHILD  HAS BECOME
 ESTRANGED FROM A PARENT OR LEGAL GUARDIAN AS THE RESULT OF PSYCHOLOGICAL
 MANIPULATION BY THE OTHER PARENT OR LEGAL GUARDIAN.
   (C) "VICTIM OF DOMESTIC VIOLENCE"  SHALL  HAVE  THE  SAME  MEANING  AS
 DEFINED IN SECTION FOUR HUNDRED FIFTY-NINE-A OF THE SOCIAL SERVICES LAW.
   (D)  "FRIENDLY  PARENT"  MEANS  THE PROPENSITY OF A PARENT TO ACTIVELY
 SUPPORT A CHILD'S CONTACT AND RELATIONSHIP WITH THE OTHER PARENT, OR THE
 ABILITY OF SUCH PARENT TO COOPERATE IN, AND RESOLVE DISPUTES,  REGARDING
 MATTERS AFFECTING SUCH CHILD.
   (E)  "PRIMARY  ATTACHMENT  FIGURE"  MEANS THE PARENT WHO BEST PROVIDES
 EMOTIONAL SECURITY AND COMFORT TO THE CHILD AND TAKES INTO CONSIDERATION
 WHICH PARENT PROVIDED MOST OF THE CHILD CARE DURING THE FIRST TWO  YEARS
 OF THE CHILD'S LIFE.
   2. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, A COURT
 MAKING  A  DETERMINATION BASED ON THE BEST INTERESTS OF A CHILD PURSUANT
 TO THE PROVISIONS OF THIS  CHAPTER  SHALL  PRIORITIZE  AND  PROMOTE  THE
 HEALTH AND SAFETY OF SUCH CHILD WHEN MAKING SUCH DETERMINATIONS. PROMOT-
 ING  THE  SAFETY  OF  A  CHILD  SHALL INCLUDE PREVENTING DIRECT PHYSICAL
 AND/OR EMOTIONAL HARM TO SUCH CHILD AND  CREATING  SITUATIONS  THAT  MAY
 DECREASE THE LIKELIHOOD SUCH CHILD WILL ENGAGE IN HARMFUL BEHAVIORS.
   3. PRIOR TO THE ISSUANCE OF ANY FORM OF AN ORDER OF CUSTODY OR VISITA-
 TION,  THE  COURT  SHALL  DETERMINE  THE  SAFETY OF THE CHILD WHO IS THE
 SUBJECT OF SUCH ORDER BY CONSIDERING ALL RELEVANT FACTORS AND BY  GIVING
 WEIGHTED  CONSIDERATION  TO  THOSE  FACTORS  WHICH AFFECT THE HEALTH AND
 SAFETY OF SUCH CHILD, WHICH SHALL INCLUDE, BUT NOT BE LIMITED TO:
   (A) WHETHER EITHER PARENT IS MORE LIKELY  TO  ENSURE  THE  HEALTH  AND
 SAFETY OF THE CHILD. THERE SHALL BE A REBUTTABLE PRESUMPTION THAT CUSTO-
 DY  OR VISITATION SHALL NOT BE AWARDED TO A PARENT OR PARTY WHO JEOPARD-
 IZES THE HEALTH AND SAFETY OF THE CHILD;
   (B) THE NEGATIVE CONSEQUENCES ASSOCIATED  WITH  SEPARATING  THE  CHILD
 FROM ITS PRIMARY ATTACHMENT FIGURE;
   (C)  WHETHER  EITHER  PARENT  JEOPARDIZES THE HEALTH AND SAFETY OF THE
 CHILD BY UNREASONABLY PLACING THE CHILD AT SUBSTANTIAL  RISK  OF  SEVERE
 EMOTIONAL DISTRESS OR BODILY INJURY;
   (D)  ANY PRESENT OR PAST ABUSE COMMITTED BY A PARENT, OR A MEMBER OF A
 PARENT'S HOUSEHOLD AGAINST THE CHILD, REGARDLESS  OF  WHETHER  THERE  IS
 CONTINUED RISK OF HARM TO THE CHILD;
   (E)  WHETHER EITHER PARENT HAS COMMITTED AN ACT OF CHILD ABUSE AGAINST
 THE CHILD, OR COMMITTED AN ACT OF DOMESTIC VIOLENCE  AGAINST  THE  PARTY
 MAKING  THE ALLEGATION, A FAMILY MEMBER, OR A HOUSEHOLD MEMBER OF EITHER
 PARTY;
   (F) WHETHER EITHER PARENT IS BETTER ABLE AND MORE LIKELY TO ATTEND  TO
 THE  DAILY  PHYSICAL,  EMOTIONAL, DEVELOPMENTAL, EDUCATIONAL AND SPECIAL
 NEEDS OF THE CHILD;
   (G) ANY HISTORY OF VIOLENCE OR ABUSE COMMITTED BY A PARENT OR A MEMBER
 OF A PARENT'S HOUSEHOLD AGAINST:
   (1) ANY OTHER PARTY;
   (2) ANOTHER CHILD IN THE PARENT'S HOUSEHOLD; OR
   (3) THE CHILD'S OTHER PARENT OR ANY  OTHER  INDIVIDUAL  WHO  CURRENTLY
 RESIDES, OR FORMERLY RESIDED, IN THE OTHER PARENT'S HOUSEHOLD;
   (H)  ANY  FEAR  HELD  BY  THE CHILD OF A PARENT BASED ON SUCH PARENT'S
 SPECIFIC CONDUCT THAT IS CONTRARY TO  THE  CHILD'S  BEST  INTEREST,  AND
 SPECIFICALLY TO THE CHILD'S HEALTH AND SAFETY; AND

 S. 7425                             5
 
   (I)  THE PRESENCE OF ADVERSE CHILDHOOD EXPERIENCES, AND WHETHER EITHER
 PARENT'S BEHAVIORS HAVE CONTRIBUTED TO THE PRESENCE OF ADVERSE CHILDHOOD
 EXPERIENCES FOR SUCH CHILD.
   4.  (A)  THE COURT SHALL NOT PRESUME THAT A CHILD'S DEFICIENT OR NEGA-
 TIVE RELATIONSHIP WITH A PARENT WAS CAUSED  BY  THE  OTHER  PARENT,  NOR
 SHALL A CHILD BE SEPARATED FROM A PARENT FOUND TO BE THE PRIMARY ATTACH-
 MENT  FIGURE  FOR THE PURPOSE OF IMPROVING A DEFICIENT RELATIONSHIP WITH
 THE OTHER PARENT.
   (B) CONCERNS REGARDING UNCONSCIOUS OR SUBLIMINAL  PARENTAL  ALIENATION
 SHALL  NOT BE ADMISSIBLE IN ANY PROCEEDING FOR CUSTODY OR VISITATION AND
 SHALL NOT BE CONSIDERED IN ASSESSING A CHILD'S BEST INTERESTS.
   (C) NO PSYCHOLOGICAL OR  MEDICAL  THEORIES  OR  LABELS  RELATED  TO  A
 CHILD'S  RESISTANCE  TO  CONTACT  WITH ONE PARENT SHALL BE ADMITTED INTO
 EVIDENCE UNLESS THEY ARE BASED ON EMPIRICAL PROOF  OF  SCIENTIFIC  RELI-
 ABILITY  AND  VALIDITY  AND  GENERALLY  ACCEPTED  BY  THE SCIENTIFIC AND
 PROFESSIONAL COMMUNITY.
   (D) NO REUNIFICATION TREATMENT OR ANY SIMILAR PROGRAM SHALL BE ORDERED
 BY THE COURT WITHOUT SCIENTIFICALLY VALID AND GENERALLY  ACCEPTED  PROOF
 OF THE EFFECTIVENESS AND THERAPEUTIC VALUE OF SUCH TREATMENT OR PROGRAM;
 NOR SHALL A TREATMENT OR PROGRAM BE ORDERED WHICH IS PREDICATED ON SEPA-
 RATING A CHILD FROM THE CHILD'S PRIMARY ATTACHMENT FIGURE.
   (E)  ANY ORDER ATTEMPTING TO REMEDIATE A CHILD'S RESISTANCE TO CONTACT
 OR VISITATION WITH A PARENT SHALL  ADDRESS  ANY  PARENTAL  BEHAVIORS  OR
 CONTRIBUTIONS  THE COURT DETERMINES TO BE THE CAUSE OF, EITHER WHOLLY OR
 IN PART, SUCH RESISTANCE.
   (F) IN CASES WHERE THE COURT HAS FOUND A PARENT  TO  BE  A  VICTIM  OF
 DOMESTIC VIOLENCE AND/OR WHERE CHILD ABUSE HAS OCCURRED OR IS OCCURRING,
 A COURT SHALL NOT CONSIDER WHETHER EITHER PARENT IS A FRIENDLY PARENT.
   5.  IN  CASES  WHERE  THE  COURT  HAS FOUND A PARENT TO BE A VICTIM OF
 DOMESTIC VIOLENCE AND/OR WHERE CHILD ABUSE HAS OCCURRED OR IS OCCURRING:
   (A) THE COURT SHALL NOT BASE  DECISIONS  ON  A  LEGAL  PRESUMPTION  OF
 SHARED PARENTING; AND
   (B)  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 DOMESTIC VIOLENCE, UNLESS THE
 OFFENDING PARENT HAS INSUFFICIENT MEANS TO PAY SUCH COSTS.
   6. (A) BEFORE JUDGES AND OTHER COURT PROFESSIONALS HANDLE CHILD CUSTO-
 DY PROCEEDINGS IN WHICH  ONE  OR  MORE  PARTIES  HAVE  ALLEGED  DOMESTIC
 VIOLENCE  OR  CHILD  ABUSE, THEY SHALL COMPLETE AT LEAST TWENTY HOURS OF
 INITIAL TRAINING FOR THE HANDLING OF SUCH CASES. THE OFFICE OF  CHILDREN
 AND FAMILY SERVICES SHALL, WITHIN AMOUNTS APPROPRIATED FOR SUCH PURPOSE,
 CONTRACT  EXCLUSIVELY  WITH A NONPROFIT ENTITY DESIGNATED BY THE FEDERAL
 DEPARTMENT OF HEALTH AND HUMAN SERVICES TO COORDINATE STATEWIDE IMPROVE-
 MENTS WITHIN LOCAL COMMUNITIES, SOCIAL SERVICES SYSTEMS, AND PROGRAMMING
 REGARDING THE PREVENTION AND INTERVENTION OF DOMESTIC  VIOLENCE  IN  THE
 STATE  OF  NEW  YORK,  AND OTHER NONPROFIT ENTITIES WITH WHOM IT SUBCON-
 TRACTS WITH EXPERTISE IN CHILD ABUSE AND ADVERSE  CHILDHOOD  EXPERIENCES
 TO DEVELOP SUCH TRAINING. SUCH ENTITY, OR ENTITIES IN PARTNERSHIP, SHALL
 BE  RESPONSIBLE  FOR  PROVIDING  SUCH TRAINING TO JUDGES AND OTHER COURT
 PROFESSIONALS HANDLING CHILD CUSTODY PROCEEDINGS AND FOR  REVIEWING  AND
 UPDATING  TRAINING  TOPICS AT LEAST ONCE EVERY TWO YEARS.  SUCH TRAINING
 SHALL INCLUDE, BUT NOT BE LIMITED TO:
   (1) A REVIEW OF RELEVANT STATUTES AND CASE LAW PERTAINING TO  DOMESTIC
 VIOLENCE AND CHILD ABUSE;
   (2)  THE  DYNAMICS  AND  EFFECTS OF DOMESTIC VIOLENCE AND CHILD ABUSE,
 INCLUDING BUT NOT LIMITED TO, EMOTIONAL, FINANCIAL, PHYSICAL, TECHNOLOG-

 S. 7425                             6
 
 ICAL AND SEXUAL ABUSE, AND AN UNDERSTANDING OF THE  BARRIERS  AND  FEARS
 ASSOCIATED  WITH  REPORTING  DOMESTIC  VIOLENCE  AND CHILD ABUSE AND WHY
 VICTIMS MAY NOT HAVE DOCUMENTED EVIDENCE OF ABUSE;
   (3) TACTICS COMMONLY USED BY ONE PARTY TO INDUCE FEAR IN ANOTHER PARTY
 OR  CHILD,  INCLUDING  VERBAL, EMOTIONAL, PSYCHOLOGICAL, AND/OR ECONOMIC
 ABUSE, ISOLATING TACTICS AND EFFORTS TO BUILD  TRUST  AND  AN  EMOTIONAL
 CONNECTION WITH A CHILD TO SUPPORT FUTURE MANIPULATION, EXPLOITATION AND
 ABUSE,  COERCIVE  CONTROL, THREATS, CONTROLLING AND HARASSING BEHAVIORS,
 INCLUDING MONITORING OF A PARTNER'S LOCATION AND ACTIVITIES,  LITIGATION
 ABUSE  AND DEMANDS FOR CUSTODY OR JOINT CUSTODY IN ORDER TO PRESSURE THE
 PARTNER TO RETURN OR PUNISH THE PARTNER FOR LEAVING;
   (4) KNOWLEDGE OF TRAUMA, PARTICULARLY AS IT RELATES  TO  SEXUAL  ABUSE
 AND  THE  RISKS  POSED TO CHILDREN AND THE LONG-TERM DANGERS AND IMPACTS
 POSED BY THE PRESENCE OF ADVERSE CHILDHOOD EXPERIENCES;
   (5) THE INCREASED RISK OF ESCALATING VIOLENCE THAT OCCURS DURING CHILD
 CUSTODY PROCEEDINGS;
   (6) EDUCATION REGARDING THE HARM COURTS MAY CAUSE  CHILDREN  IN  CHILD
 CUSTODY CASES WHERE DOMESTIC VIOLENCE OR CHILD ABUSE IS PRESENT BY RELY-
 ING  ON  NON-SCIENTIFIC  THEORIES  SUCH AS PARENTAL ALIENATION, PARENTAL
 ALIENATION SYNDROME, THE FRIENDLY PARENT CONCEPT, OR ANY OTHER THEORY OR
 LABEL THAT IS NOT SUPPORTED BY SCIENTIFIC  RESEARCH  AND  NOT  GENERALLY
 ACCEPTED BY THE SCIENTIFIC COMMUNITY;
   (7) THE INVESTIGATION PROCESS ONCE A LAW ENFORCEMENT AGENCY OR A LOCAL
 DEPARTMENT  OF  SOCIAL SERVICES HAS RECEIVED A REPORT OF SUSPECTED CHILD
 ABUSE, INCLUDING THE LIMITATIONS OF INVESTIGATING REPORTS  OF  SUSPECTED
 CHILD ABUSE; AND
   (8)  APPROPRIATE EXPERIENCE AND QUALIFICATIONS OF CHILD CUSTODY EVALU-
 ATORS AND MENTAL HEALTH TREATMENT PROVIDERS.
   (B) ONCE INITIAL TRAINING REQUIREMENTS HAVE BEEN MET, JUDGES AND OTHER
 COURT PROFESSIONALS HANDLING CHILD CUSTODY PROCEEDINGS IN WHICH  ONE  OR
 MORE  PARTIES HAVE ALLEGED DOMESTIC VIOLENCE OR CHILD SEXUAL ABUSE SHALL
 COMPLETE AT LEAST TEN HOURS OF TRAINING EVERY  TWO  YEARS  IN  ORDER  TO
 REMAIN ELIGIBLE TO HANDLE SUCH PROCEEDINGS.
   §  4.  Subdivision (a) of section 70 of the domestic relations law, as
 amended by chapter 457 of the laws  of  1988,  is  amended  to  read  as
 follows:
   (a)  (I)  Where  a  minor  child is residing within this state, either
 parent may apply to the supreme court for a writ  of  habeas  corpus  to
 have such minor child brought before such court; and on the return ther-
 eof,  the  court,  on due consideration, may award the natural guardian-
 ship, charge and custody of such child to either parent for  such  time,
 under  such  regulations  and restrictions, and with such provisions and
 directions, as the case may require, and  may  at  any  time  thereafter
 vacate  or modify such order. In all cases there shall be no prima facie
 right to the custody of the child in either parent, but the court  shall
 determine  solely  what  is for the best interest of the child, and what
 will best promote its welfare and happiness, and make award accordingly.
 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-PETITION, COUNTERCLAIM  OR  OTHER  SWORN  RESPONSIVE
 PLEADING  THAT  THE  OTHER  PARTY  HAS  COMMITTED  AN ACT OF CHILD ABUSE
 AGAINST SUCH CHILD, OR COMMITTED AN ACT OF DOMESTIC VIOLENCE AGAINST THE
 PARTY MAKING THE ALLEGATION OR FAMILY  OR  HOUSEHOLD  MEMBER  OF  EITHER
 PARTY,  AS  SUCH  FAMILY OR HOUSEHOLD IS DEFINED IN SECTION FOUR HUNDRED
 FIFTY-NINE-A OF THE SOCIAL SERVICES LAW, THE COURT  MUST  FIRST,  BEFORE
 CONSIDERING  ANY  OTHER  BEST  INTEREST  FACTORS, CONDUCT AN EVIDENTIARY

 S. 7425                             7
 
 HEARING AND ENTER FINDINGS REGARDING ANY CHILD ABUSE OR DOMESTIC  ABUSE,
 AS DESCRIBED PURSUANT TO SECTION TWO HUNDRED FORTY-A OF THIS CHAPTER.
   (II)  NOTWITHSTANDING  ANY  OTHER  PROVISION OF LAW TO THE CONTRARY, A
 COURT MAKING A DETERMINATION BASED ON THE  BEST  INTERESTS  OF  A  CHILD
 PURSUANT  TO THE PROVISIONS OF THIS CHAPTER SHALL PRIORITIZE AND PROMOTE
 THE HEALTH AND SAFETY OF SUCH CHILD  WHEN  MAKING  SUCH  DETERMINATIONS.
 PROMOTING THE SAFETY OF SUCH CHILD SHALL INCLUDE PREVENTING DIRECT PHYS-
 ICAL  AND/OR  EMOTIONAL  HARM TO SUCH CHILD AND CREATING SITUATIONS THAT
 MAY DECREASE THE LIKELIHOOD SUCH CHILD WILL ENGAGE IN HARMFUL BEHAVIORS.
   (III) PRIOR TO THE ISSUANCE OF ANY FORM OF ANY  ORDER  OF  CUSTODY  OR
 VISITATION, THE COURT SHALL DETERMINE THE SAFETY OF THE CHILD WHO IS THE
 SUBJECT  OF  SUCH  ORDER BY CONSIDERING THE FACTORS DESCRIBED IN SECTION
 TWO HUNDRED FORTY-D OF THIS CHAPTER AND BY GIVING WEIGHTED CONSIDERATION
 TO THOSE FACTORS WHICH AFFECT THE HEALTH AND SAFETY OF SUCH CHILD.
   (IV) IN MAKING A DECISION PURSUANT TO PARAGRAPH (I) OF  THIS  SUBDIVI-
 SION,  THE  COURT  SHALL  BE BOUND BY THE PRESUMPTIONS AND ADMISSIBILITY
 DESCRIBED PURSUANT TO SECTION  TWO  HUNDRED  FORTY-D  OF  THIS  CHAPTER.
 FURTHER,  THE  COURT  SHALL  NOT  TAKE INTO CONSIDERATION WHETHER EITHER
 PARENT IS MARRIED, WAS FORMERLY MARRIED OR HAS EVER BEEN MARRIED TO  THE
 OTHER PARENT OR ANYONE ELSE.
   (V)  IN  CASES  WHERE  THE  COURT HAS FOUND A PARENT TO BE A VICTIM OF
 DOMESTIC VIOLENCE AND/OR WHERE CHILD ABUSE HAS OCCURRED OR IS OCCURRING,
 THE COURT SHALL NOT BASE DECISIONS ON  A  LEGAL  PRESUMPTION  OF  SHARED
 PARENTING AND 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 DOMESTIC VIOLENCE, UNLESS  THE
 OFFENDING PARENT HAS INSUFFICIENT MEANS TO PAY SUCH COSTS.
   (VI)  BEFORE JUDGES AND OTHER COURT PROFESSIONALS HANDLE CHILD CUSTODY
 PROCEEDINGS IN WHICH ONE OR MORE PARTIES HAVE ALLEGED DOMESTIC  VIOLENCE
 OR CHILD ABUSE, THEY SHALL COMPLETE INITIAL TRAINING FOR THE HANDLING OF
 SUCH  CASES AS DESCRIBED PURSUANT TO SECTION TWO HUNDRED FORTY-D OF THIS
 CHAPTER. ONCE INITIAL TRAINING REQUIREMENTS HAVE BEEN  MET,  JUDGES  AND
 OTHER  COURT  PROFESSIONALS SHALL COMPLETE ADDITIONAL TRAINING EVERY TWO
 YEARS AS DESCRIBED PURSUANT TO SECTION TWO HUNDRED FORTY-D OF THIS CHAP-
 TER.
   § 5. This act shall take effect on the ninetieth day  after  it  shall
 have become a law. Effective immediately, the addition, amendment and/or
 repeal  of  any  rule  or regulation necessary for the implementation of
 this act on its effective date are authorized to be made  on  or  before
 such effective date.

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2021-S7425A (ACTIVE) - Details

Current Committee:: Senate Rules
Law Section:: Domestic Relations Law
Laws Affected:: Amd §§240 & 70, add §240-e, Dom Rel L; add §654, amd §1112, Fam Ct Act
Versions Introduced in 2023-2024 Legislative Session:: S3170

2021-S7425A (ACTIVE) - Summary

2021-S7425A (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S7425A

SPONSOR: KAPLAN
 
TITLE OF BILL:

An act to amend the domestic relations law and the family court act, in
relation to establishing "Kyra's Law"

 
PURPOSE OR GENERAL IDEA OF BILL:

To protect children by ensuring courts assess any risk to their life and
safety in child custody and visitation proceedings.

 
SUMMARY OF PROVISIONS:

Section 1 of the bill identifies the name of this legislation as "Kyra's
Law."

Section 2 of the bill amends subparagraph 5 of paragraph (a-1) of subdi-
vision 1 of the domestic relations law to require that in child custody
or visitation proceedings in which a party alleges child abuse or domes-
tic violence, the court must first conduct a risk assessment regarding

the child's life and safety. Factors to be considered in such hearing
include, but are not limited to:  allegations of domestic violence,
child abuse, child sexual abuse or incidents involving harm or risk of
harm to the child, prior reports of violence, access to firearms, valid
or prior orders of protection, threats to harm or kill self or others,
etc. If the court determines that limitations or restrictions relating
to the offending party's custody, visitation, or contact with the child
are necessary to avoid significant risk to the child, this section
requires a court to issue a temporary emergency order stating as such.
The section creates a rebuttable presumption that the court shall not
award sole or joint custody or unsupervised visitation to a party who
jeopardizes or may jeopardize the life or safety of the child. Further,
the section requires the court to state its findings on the record and
in writing, to support any future appeals of the court's decision-mak-
ing.

Section 2 of the bill requires the state Office for the Prevention of
Domestic Violence, in coordination with OCA and in consultation with
statewide advocacy coalitions, attorneys, researchers and academics, to
develop a risk assessment tool to assist courts in assessing significant
risks to a child's life and safety.

Section 3 of the bill amends the domestic relations law to create a new
section 240-e to identify specific best interest of a child factors to
be given weighted consideration when the court issues temporary or final
custody or visitation orders; and requires in-depth training for judges,
referees, and other hearing officers presiding over child custody cases
where domestic violence or child abuse is alleged.

Section 4 of the bill amends subdivision (a) of section 70 of the domes-
tic relations law to ensure that the same protections as noted above are
in place regardless of whether the parents of the child have ever been
married.

Section 5 of the bill amends the Family Court Act by creating a new
section 654 to ensure that the same protections as noted above are in
place for custody and visitation proceedings in Family Court.
Section 6 of the bill amends subdivision (a) of section 1112 of the
family court act to ensure a court's decision to grant or deny a tempo-
rary emergency order, or limitations or conditions to a parent's custody
or visitation set forth in temporary emergency orders, are appealable.

Section 7 is the effective date.

 
JUSTIFICATION:

This bill, known as "Kyra's Law," seeks to address the systemic weak-
nesses in the current law regarding child custody and visitation and the
failures of the court system to keep New York's children safe from
dangerous abusers.

Domestic violence can have very harmful effects on children. When there
is domestic violence in the home, children are at greater risk of being
abused or neglected. But even when they are not "directly" abused, chil-
dren who witness violence and abuse by one parent against another can be
affected in ways similar to children who are physically abused. Seeing
or hearing violence at home can hurt children emotionally, psychologi-
cally, and even physically due to the stress they suffer. Some abusers
who use coercive power and control tactics against their intimate part-
ners go so far as to use their children as pawns, even harming or
murdering them, to try to maintain control over or devastate their part-
ners.

Kyra Franchetti, a toddler, was ordered by the court to have unsuper-
vised visits with her father, despite repeated reports and eyewitness
accounts of his anger and rage issues, suicidal ideation, stalking and
history of coercive tactics and abuse. During two years of child custody
hearings in Nassau County Family Court, Kyra Franchetti's mother repeat-
edly pleaded with the court to acknowledge the risk of harm to Kyra. The
court dismissed these urgent pleas to protect Kyra and permitted unsu-
pervised visitation to proceed. In July 2016, Kyra was on an unsuper-
vised, court-sanctioned visit with her father in Virginia when he shot
her to death while she slept. He then set his house on fire and killed
himself. Kyra was only 28 months old.(1)

Tragically, countless children in New York have been injured or murdered
at the hands of a parent who is seeking to cause pain and trauma to
their intimate partner. Yet courts continue to discount or minimize the
risks posed in cases where domestic violence is present, dismissing
allegations of domestic violence or child abuse as an attempt by one
parent to win custody from the other. According to research by Professor
Joan S. Meier, Esq., of George Washington University Law School, in
conjunction with the National Institute of Justice, an analysis of more
than 2,000 court opinions across the country confirms "courts are skep-
tical of mothers' claims of abuse by fathers; this skepticism is great-
est when mothers claim child abuse."(2)

Moreover, there is now a specialized body of scientific research about
domestic violence and child abuse that was not available when custody
courts developed their present practices. Children exposed to domestic
violence and child abuse will live shorter lives and suffer a lifetime
of health and social problems.3 Most of the harm is not caused by the
immediate physical injuries, but from living with the fear and stress
abusers cause.

Tragically, the courts have been slow to integrate this research.

This bill would permit parties in custody or visitation proceedings in
Supreme and Family courts to motion the court for a temporary emergency
order in relation to assessing risk to a child's life or safety. Such
risk assessment hearing would be held within 14 court days of the appli-
cation, except for good cause shown. Factors for the court to consider
during its assessment would include: allegations of domestic violence,
child abuse, child sexual abuse or incidents involving harm, or risk of
harm, to a child; prior police reports, domestic incident reports or
history of family offenses within the household; the parties' access to
firearms; relevant orders of protection; confinement of one party by the
other party; threats to harm or kill; or one party's concern about
future assaults from the other party. A risk assessment tool would be
developed by the Office for Prevention of Domestic Violence, in coordi-
nation with the Office of Court Administration and in conjunction with
other key entities, to assist the court in assessing such risk to a
child's life or safety.

Any temporary emergency order for custody or visitation issued by the
court would remain in effect until such time as either party applies for
revision for good cause shown, or if the court issues a final order. The
bill would create a rebuttable presumption that the court shall not
award sole or joint custody or unsupervised visitation in a temporary
emergency order to any party who jeopardizes or may jeopardize the life
or safety of the child. The court's decision-making would be stated on
the record and in writing, and both parties to the proceeding would have
the right to appeal to the appropriate appellate division.

If a party waives their right to such hearing, the court would notify
the party at that time that an application may be made at any future
time during the proceedings. Similarly, courts would be required to hold
an additional hearing for a temporary order of custody or visitation
whenever a party alleges that such order is needed to promote and
protect the best interest of the child pending entry of a final order.

The bill specifies that, when making a final determination of custody or
visitation based on the best interests of a child, the court must prior-
itize and promote the life of safety of the child, including preventing
direct physical and/or emotional harm to the child and creating situ-
ations that may decrease the likelihood such child will engage in harm-
ful behaviors. Weighted consideration would be given to factors such as:
whether either party is more likely to ensure the life and safety of the
child; any allegations of domestic violence or child abuse; prior police
reports, domestic incident reports, commission of family offenses, or
orders of protection; whether either party has access to firearms; and
any previously made statements by the child about a party indicating
they are fearful or resistant to contact with one of the parties.

Research finds that courts often err in awarding child custody or visi-
tation to abusers due to the debunked theory of "parental alienation,"
the idea that when parents allege that a child is not safe with the
offending parent, they are doing so illegitimately to alienate the child
from such parent. In fact, cross-claims of parental alienation virtually
double the courts' rejection of parents' abuse claims, causing non-of-
fending parents to lose custody to the parent accused of abuse. This
bill would prohibit the court from denying custody or visitation to a
party due to allegations that the child has become estranged from a
parent as a result of "parental alienation." Nor would the court be
permitted from ordering reunification treatment designed to repair a
party's relationship with a child due to parental alienation. Further,
the court would not be able to base custody or visitation decisions on
its presumption that a child's deficient or negative relationship with a
parent was caused by the other parent.

In any final order of custody or visitation where domestic violence or
child abuse is found, the bill would prohibit courts from awarding
shared parenting or joint legal custody, unless both parties' consent
and the court determines the parties can effectively communicate, coop-
erate with each other and make joint decisions concerning the

Currently, judges hearing custody and visitation cases must obtain
training in domestic violence every two years, not nearly enough to
understand the complexities and nuances of family violence. This bill
would expand those receiving such training to include referees and other
hearing officers, in addition to judges, and would require such individ-
uals to obtain a minimum of twenty hours of training in domestic
violence and child abuse every two years. The Office for Prevention of
Domestic Violence would contract with the New York State Coalition
Against Domestic Violence, which would have the authority to contract
with other not-for-profit organizations specializing in child abuse and
gender-based violence, to develop the training. Such training, which
would be updated at least once every two years, would include instruc-
tion on: relevant statutes and case law; the dynamics of domestic
violence and child abuse; abusive tactics and coercive control;
increased risk of violence during court proceedings; assessment of leth-
ality; etc. Training would be offered by the state agency and domestic
violence advocates, in consultation with the office of court adminis-
tration. Ten hours of continuing education training would be required
for judges, referees and other hearing officers every two years after
the initial foundational training.

 
PRIOR LEGISLATIVE HISTORY:

New bill

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

Undetermined

 
EFFECTIVE DATE:
The 90th day after it shall have become law; effective immediately, the
addition, amendment and/or repeal of any rule or regulation necessary
for the implementation of this act on its effective date are authorized
to made and completed on or before such effective date.

2021-S7425A (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  7425--A
     Cal. No. 578
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                              October 8, 2021
                                ___________
 
 Introduced  by  Sens.  KAPLAN,  BORRELLO, BOYLE, BROOKS, CLEARE, COMRIE,
   GAUGHRAN, GOUNARDES, HARCKHAM, KAMINSKY,  KRUEGER,  MATTERA,  PALUMBO,
   REICHLIN-MELNICK,  SEPULVEDA,  SKOUFIS, WEIK -- read twice and ordered
   printed, and when printed to be committed to the Committee on Rules --
   recommitted to the Committee on Judiciary in  accordance  with  Senate
   Rule  6,  sec. 8 -- reported favorably from said committee, ordered to
   first and second report, ordered  to  a  third  reading,  amended  and
   ordered reprinted, retaining its place in the order of third reading
 
 AN  ACT to amend the domestic relations law and the family court act, in
   relation to establishing "Kyra's Law"
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Short title. This act shall be known as and may be cited as
 "Kyra's Law".
   § 2. Subparagraph 5 of paragraph (a-1) of subdivision 1 of section 240
 of  the domestic relations law, as amended by chapter 295 of the laws of
 2009, is amended to read as follows:
   (5)  Temporary  emergency  order.    (I)  NOTWITHSTANDING  ANY   OTHER
 PROVISION  OF  THE  LAW,  UPON  THE  APPLICATION OF A PARTY TO AN ACTION
 CONCERNING CUSTODY OF OR A RIGHT TO VISITATION WITH A CHILD WHO  ALLEGES
 THAT  THE OTHER PARTY TO THE PROCEEDING HAS COMMITTED, HAS THREATENED TO
 COMMIT, OR IS LIKELY TO COMMIT AN ACT OF CHILD ABUSE AGAINST SUCH CHILD,
 OR HAS COMMITTED, HAS THREATENED TO COMMIT, OR IS LIKELY  TO  COMMIT  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, THE COURT
 SHALL HOLD A HEARING  TO  DETERMINE  WHETHER  TEMPORARY  LIMITATIONS  OR
 CONDITIONS  ON  THE  CUSTODY  OR  VISITATION  RIGHTS OF THE PARTY WHO IS
 ALLEGED TO HAVE COMMITTED AN ACT OF CHILD ABUSE AGAINST  THE  CHILD,  OR
 COMMITTED AN ACT OF DOMESTIC VIOLENCE AGAINST THE PARTY MAKING THE ALLE-
 GATION  OR  A FAMILY OR HOUSEHOLD MEMBER OF EITHER PARTY IS NECESSARY TO
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD09163-03-2
 S. 7425--A                          2
 
 AVOID SIGNIFICANT RISK TO THE CHILD'S LIFE OR SAFETY.  THE  COURT  SHALL
 CONDUCT  AN  ASSESSMENT  OF  THE BEST INTERESTS OF THE CHILD TO IDENTIFY
 SIGNIFICANT RISK TO THE CHILD'S LIFE AND SAFETY, USING A RISK ASSESSMENT
 TOOL  DEVELOPED PURSUANT TO CLAUSE (II) OF THIS SUBPARAGRAPH TO EVALUATE
 FACTORS WHICH SHALL INCLUDE, BUT SHALL NOT BE LIMITED TO:
   (A) ALLEGATIONS OF DOMESTIC VIOLENCE, CHILD ABUSE, CHILD SEXUAL  ABUSE
 OR INCIDENTS INVOLVING HARM, OR RISK OF HARM, TO A CHILD;
   (B)  PRIOR  POLICE REPORTS OR DOMESTIC VIOLENCE INCIDENT REPORTS DOCU-
 MENTING PRIOR INCIDENTS INVOLVING CHILD ABUSE OR DOMESTIC  VIOLENCE,  OR
 WHETHER EITHER PARTY HAS BEEN CHARGED WITH AN ACT WHICH WOULD CONSTITUTE
 DISORDERLY CONDUCT, UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE
 IMAGE,  HARASSMENT IN THE FIRST DEGREE, HARASSMENT IN THE SECOND DEGREE,
 AGGRAVATED HARASSMENT IN THE SECOND DEGREE, SEXUAL MISCONDUCT,  FORCIBLE
 TOUCHING,  SEXUAL  ABUSE IN THE THIRD DEGREE, SEXUAL ABUSE IN THE SECOND
 DEGREE AS SET FORTH IN SUBDIVISION ONE OF SECTION 130.60  OF  THE  PENAL
 LAW, STALKING IN THE FIRST DEGREE, STALKING IN THE SECOND DEGREE, STALK-
 ING  IN  THE  THIRD  DEGREE,  STALKING  IN  THE  FOURTH DEGREE, CRIMINAL
 MISCHIEF, MENACING IN THE SECOND DEGREE, MENACING IN THE  THIRD  DEGREE,
 RECKLESS ENDANGERMENT, CRIMINAL OBSTRUCTION OF BREATHING OR BLOOD CIRCU-
 LATION,  STRANGULATION  IN THE SECOND DEGREE, STRANGULATION IN THE FIRST
 DEGREE, ASSAULT IN THE SECOND DEGREE, ASSAULT IN THE  THIRD  DEGREE,  AN
 ATTEMPTED ASSAULT, IDENTITY THEFT IN THE FIRST DEGREE, IDENTITY THEFT IN
 THE  SECOND DEGREE, IDENTITY THEFT IN THE THIRD DEGREE, GRAND LARCENY IN
 THE FOURTH DEGREE, GRAND LARCENY IN THE THIRD DEGREE,  COERCION  IN  THE
 SECOND  DEGREE  OR COERCION IN THE THIRD DEGREE AS SET FORTH IN SUBDIVI-
 SIONS ONE, TWO AND THREE OF SECTION 135.60  OF  THE  PENAL  LAW  BETWEEN
 SPOUSES OR FORMER SPOUSES, OR BETWEEN PARTY AND CHILD OR BETWEEN MEMBERS
 OF THE SAME FAMILY OR HOUSEHOLD, REGARDLESS OF THE DISPOSITION;
   (C)  WHETHER  EITHER PARTY OWNS, POSSESSES OR HAS ACCESS TO A FIREARM,
 RIFLE OR SHOTGUN;
   (D) DECISIONS AND  REPORTS  ON  REGISTRIES  AS  REQUIRED  PURSUANT  TO
 SUBPARAGRAPH THREE OF THIS PARAGRAPH;
   (E) CONFINEMENT OF A PARTY OR CHILD BY THE OTHER PARTY;
   (F) THREATS TO HARM OR KILL SELF OR OTHERS, OR THREATS TO HARM OR KILL
 EMOTIONAL  SUPPORT  OR  COMFORT  ANIMALS  OWNED  OR POSSESSED BY SELF OR
 OTHERS, MADE BY ONE PARTY TO THE OTHER PARTY OR CHILD; AND
   (G) ONE PARTY'S CONCERN ABOUT FUTURE ASSAULTS FROM THE OTHER PARTY.
   EXCEPT FOR GOOD CAUSE SHOWN, THE HEARING FOR SUCH DETERMINATION  SHALL
 COMMENCE  WITHIN FOURTEEN COURT DAYS OF THE APPLICATION FOR SUCH HEARING
 AND SHALL NOT BE ADJOURNED. PARTIES SHALL BE NOTICED OF THEIR  RIGHT  TO
 THE  ASSISTANCE  OF  COUNSEL AT THE INITIATION OF SUCH HEARING. WHEN THE
 PARTIES FIRST APPEAR IN  COURT,  THE  JUDGE  SHALL  ADVISE  THEM  BEFORE
 PROCEEDING  OF  THE RIGHT TO BE REPRESENTED BY COUNSEL OF HIS OR HER OWN
 CHOOSING, OF THE RIGHT TO HAVE AN ADJOURNMENT TO  CONFER  WITH  COUNSEL,
 AND  THE  RIGHT TO OBTAIN COUNSEL FEES AND EXPENSES, PURSUANT TO SECTION
 TWO HUNDRED THIRTY-SEVEN OF THIS ARTICLE. DURING  SUCH  HEARING,  COMPE-
 TENT,  MATERIAL  AND  RELEVANT  EVIDENCE MAY BE ADMITTED, IN ADDITION TO
 EVIDENCE THAT MAY INCLUDE OR CONSIST OF HEARSAY AND DOCUMENTS OR  PHOTO-
 GRAPHS  FOR  WHICH A PROPER FOUNDATION CANNOT BE LAID. IF A PARTY WAIVES
 HIS OR HER RIGHT TO A HEARING UNDER THIS SECTION, THE COURT SHALL ADVISE
 SUCH PARTY AT THAT TIME THAT, NOTWITHSTANDING SUCH WAIVER,  AN  APPLICA-
 TION  UNDER  THIS SECTION MAY BE MADE AT ANY TIME DURING THE PENDENCY OF
 THE PROCEEDINGS.
   (II) THE OFFICE FOR THE PREVENTION OF DOMESTIC  VIOLENCE,  IN  COORDI-
 NATION  WITH THE OFFICE OF COURT ADMINISTRATION AND IN CONSULTATION WITH
 THE NEW YORK STATE COALITION AGAINST DOMESTIC  VIOLENCE,  THE  NEW  YORK
 S. 7425--A                          3
 
 STATE  COALITION  AGAINST  SEXUAL ASSAULT, PREVENT CHILD ABUSE NEW YORK,
 VICTIMS OF DOMESTIC VIOLENCE, SEXUAL ASSAULT, CHILD ABUSE OR CHILD SEXU-
 AL ABUSE, CIVIL ATTORNEYS REPRESENTING SUCH VICTIMS IN CUSTODY AND VISI-
 TATION  PROCEEDINGS,  AND  RESEARCHERS  AND  ACADEMICS WITH EXPERTISE IN
 DEVELOPING RISK ASSESSMENT TOOLS SHALL DEVELOP A  RISK  ASSESSMENT  TOOL
 FOR  USE BY THE COURT WHEN ASSESSING SIGNIFICANT RISK TO CHILD'S LIFE OR
 SAFETY FOR THE PURPOSES OF ISSUING A TEMPORARY  EMERGENCY  ORDER.  THESE
 ENTITIES  WILL  REVIEW AND, WHEN APPROPRIATE, UPDATE THE RISK ASSESSMENT
 TOOL AT LEAST ONCE EVERY TWO YEARS.
   (III) IF THE COURT DETERMINES THAT LIMITATIONS OR  RESTRICTIONS  OF  A
 PARTY'S  CUSTODY,  VISITATION OR CONTACT WITH THE CHILD ARE NECESSARY TO
 AVOID SIGNIFICANT RISK TO THE CHILD'S LIFE OR SAFETY,  THE  COURT  SHALL
 ISSUE  A  TEMPORARY EMERGENCY ORDER FOR CUSTODY OR VISITATION STATING AS
 SUCH. SUCH ORDER SHALL SET FORTH CONDITIONS  OF  CUSTODY  OR  VISITATION
 WHICH  MAY BE REVISED BY THE COURT UPON APPLICATION BY EITHER PARTY ONLY
 FOR GOOD CAUSE SHOWN. ANY ORDER OF THE COURT UNDER  THIS  SECTION  SHALL
 TERMINATE WHEN THE COURT MAKES A FINAL ORDER OF CUSTODY OR OF VISITATION
 CONCERNING THE CHILD OR CHILDREN, UNLESS THE SUPREME COURT CONTINUES THE
 ORDER TO FAMILY COURT.
   (IV)  THERE SHALL BE A REBUTTABLE PRESUMPTION THAT THE COURT SHALL NOT
 AWARD, IN A TEMPORARY EMERGENCY ORDER FOR CUSTODY OR VISITATION, SOLE OR
 JOINT CUSTODY OR UNSUPERVISED VISITATION TO A PARTY WHO  JEOPARDIZES  OR
 MAY JEOPARDIZE THE LIFE OR SAFETY OF THE CHILD.
   (V) THE COURT SHALL STATE ON THE RECORD, AND IN WRITING, ITS FINDINGS,
 THE FACTORS CONSIDERED IN RENDERING ITS DECISION AND THE REASONS FOR THE
 LIMITATIONS  OR  RESTRICTIONS PLACED ON A PARTY'S CUSTODY, VISITATION OR
 CONTACT WITH SUCH CHILD.
   (VI) ALL COSTS, INCLUDING ATTORNEY AND EXPERT  FEES  INCURRED  BY  THE
 NON-OFFENDING  PARTY  AND  THE  CHILD, TO PREPARE FOR AND PARTICIPATE IN
 SUCH HEARING SHALL BE PAID BY THE PARTY WHO IS FOUND TO  HAVE  COMMITTED
 CHILD  ABUSE OR DOMESTIC VIOLENCE, UNLESS THE OFFENDING PARTY HAS INSUF-
 FICIENT MEANS TO FUND SUCH EXPENSES.
   (VII) IF A PARTY MAKES A GOOD FAITH ALLEGATION BASED ON  A  REASONABLE
 BELIEF  SUPPORTED  BY  FACTS  THAT A CHILD IS THE VICTIM OF CHILD ABUSE,
 CHILD NEGLECT, OR HAS BEEN EXPOSED TO DOMESTIC  VIOLENCE,  AND  IF  THAT
 PARTY  ACTS  LAWFULLY  AND  IN GOOD FAITH IN RESPONSE TO THAT REASONABLE
 BELIEF TO PROTECT THE CHILD, SEEK TREATMENT FOR THE CHILD OR TO  PROTECT
 SELF,  THEN  THAT  PARTY 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.
   (VIII)  IF  THE  COURT  DOES  NOT  MAKE  A FINDING THAT LIMITATIONS OR
 RESTRICTIONS ON A PARTY'S CUSTODY OR  VISITATION  WITH  SUCH  CHILD  ARE
 NECESSARY  TO  AVOID SIGNIFICANT RISK TO THE CHILD'S LIFE OR SAFETY, THE
 COURT SHALL HOLD AN ADDITIONAL HEARING WHENEVER A PARTY ALLEGES  THAT  A
 TEMPORARY  ORDER MAY BE NECESSARY TO PROMOTE AND PROTECT THE BEST INTER-
 EST OF THE CHILD PENDING ENTRY OF A FINAL ORDER.
   (IX) WITH THE EXCEPTION OF HEARSAY OR  OTHER  NON-COMPETENT  EVIDENCE,
 THE  COURT  MAY NOT REFUSE TO CONSIDER, AT FURTHER PROCEEDINGS, EVIDENCE
 PRESENTED DURING A HEARING FOR A TEMPORARY EMERGENCY ORDER OR ADDITIONAL
 EVIDENCE OF DOMESTIC  VIOLENCE  OR  CHILD  ABUSE  PRESENTED  IN  FURTHER
 PROCEEDINGS.  THE PRESENTATION OF ANY FACTS OR EVIDENCE AT A HEARING FOR
 A TEMPORARY EMERGENCY ORDER SHALL NOT PRECLUDE THE PRESENTATION  OF  ANY
 FACTS OR EVIDENCE.
   (X)  NOTHING CONTAINED IN THIS SUBPARAGRAPH SHALL BE DEEMED IN ANY WAY
 TO LIMIT, RESTRICT, EXPAND OR IMPAIR THE RIGHTS OF ANY PARTY TO FILE FOR
 S. 7425--A                          4
 
 A MODIFICATION OF A TEMPORARY EMERGENCY ORDER AS IS  OTHERWISE  PROVIDED
 BY LAW.
   (XI)  ANY PARTY TO A PROCEEDING FOR A TEMPORARY EMERGENCY ORDER PURSU-
 ANT TO THIS SECTION SHALL HAVE A RIGHT  TO  APPEAL  TO  THE  APPROPRIATE
 APPELLATE  DIVISION.  AN  APPEAL UNDER THIS SUBDIVISION MUST BE TAKEN NO
 LATER THAN FIVE DAYS AFTER THE SERVICE BY A PARTY OR THE CHILD'S  ATTOR-
 NEY  UPON  THE  APPELLANT OF ANY ORDER FROM WHICH THE APPEAL IS TAKEN OR
 FIVE DAYS FROM RECEIPT OF THE ORDER BY THE APPELLANT IN COURT, WHICHEVER
 IS EARLIEST.
   (XII) Notwithstanding any other provision of the law,  upon  emergency
 situations,  including computer malfunctions, to serve the best interest
 of the child, the court may issue a temporary emergency order for custo-
 dy or visitation in the event that it is not possible to  timely  review
 decisions and reports on registries as required pursuant to subparagraph
 three of this paragraph.
   §  3.  The  domestic  relations law is amended by adding a new section
 240-e to read as follows:
   § 240-E. CUSTODY AND VISITATION; LIFE AND SAFETY OF THE CHILD. 1.  FOR
 THE PURPOSES OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOW-
 ING MEANINGS:
   (A)  "PARENTAL  ALIENATION"  MEANS  CLAIMS  THAT  A  CHILD  HAS BECOME
 ESTRANGED FROM A PARENT OR LEGAL GUARDIAN AS A RESULT  OF  PSYCHOLOGICAL
 MANIPULATION BY THE OTHER PARENT OR LEGAL GUARDIAN.
   (B)  "VICTIM  OF  DOMESTIC  VIOLENCE"  SHALL  HAVE THE SAME MEANING AS
 DEFINED IN SECTION FOUR HUNDRED FIFTY-NINE-A OF THE SOCIAL SERVICES LAW.
   (C) "FRIENDLY PARENT" MEANS THE PROPENSITY OF A PARENT OR LEGAL GUARD-
 IAN TO ACTIVELY SUPPORT A CHILD'S  CONTACT  AND  RELATIONSHIP  WITH  THE
 OTHER  PARENT  OR LEGAL GUARDIAN, OR THE ABILITY OF SUCH PARENT OR LEGAL
 GUARDIAN TO  COOPERATE  IN,  AND  RESOLVE  DISPUTES,  REGARDING  MATTERS
 AFFECTING SUCH CHILD.
   2. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, A COURT
 MAKING  A FINAL DETERMINATION OF CUSTODY OR VISITATION BASED ON THE BEST
 INTERESTS OF A CHILD PURSUANT TO THE PROVISIONS OF  THIS  CHAPTER  SHALL
 PRIORITIZE  AND  PROMOTE  THE  LIFE AND SAFETY OF SUCH CHILD WHEN MAKING
 SUCH DETERMINATIONS. PROMOTING THE LIFE AND  SAFETY  OF  A  CHILD  SHALL
 INCLUDE PREVENTING DIRECT PHYSICAL AND/OR EMOTIONAL HARM TO SUCH CHILD.
   3.  PRIOR  TO  THE ISSUANCE OF A FINAL ORDER OF CUSTODY OR VISITATION,
 DURING ITS ASSESSMENT OF THE BEST INTERESTS  OF  THE  CHILD,  THE  COURT
 SHALL  DETERMINE  THE LIFE AND SAFETY OF THE CHILD WHO IS THE SUBJECT OF
 SUCH ORDER BY CONSIDERING ALL RELEVANT FACTORS AND  BY  GIVING  WEIGHTED
 CONSIDERATION  TO THOSE FACTORS WHICH AFFECT THE LIFE AND SAFETY OF SUCH
 CHILD, WHICH SHALL INCLUDE, BUT NOT BE LIMITED TO:
   (A) WHETHER EITHER PARTY IS MORE LIKELY TO ENSURE THE LIFE AND  SAFETY
 OF  THE CHILD AND WHETHER EITHER PARTY JEOPARDIZES THE LIFE OR SAFETY OF
 THE CHILD. THERE SHALL BE A REBUTTABLE PRESUMPTION THAT CUSTODY OR VISI-
 TATION SHALL NOT BE AWARDED TO A PARTY WHO JEOPARDIZES THE LIFE OR SAFE-
 TY OF THE CHILD;
   (B) THE IMPACT OF DISRUPTING CONTINUITY IN THE CHILD'S HOME,  ENVIRON-
 MENT AND ESTABLISHED PARENTING CONTACTS;
   (C)  ANY ALLEGATIONS OF DOMESTIC VIOLENCE, CHILD ABUSE OR CHILD SEXUAL
 ABUSE, OR INCIDENTS INVOLVING HARM, OR RISK OF HARM, TO A CHILD;
   (D) PRIOR POLICE REPORTS OR DOMESTIC VIOLENCE INCIDENT  REPORTS  DOCU-
 MENTING INCIDENTS INVOLVING CHILD ABUSE OR DOMESTIC VIOLENCE, OR WHETHER
 EITHER  PARTY HAS BEEN CHARGED WITH AN ACT WHICH WOULD CONSTITUTE DISOR-
 DERLY CONDUCT, UNLAWFUL DISSEMINATION  OR  PUBLICATION  OF  AN  INTIMATE
 IMAGE,  HARASSMENT IN THE FIRST DEGREE, HARASSMENT IN THE SECOND DEGREE,
 S. 7425--A                          5
 
 AGGRAVATED HARASSMENT IN THE SECOND DEGREE, SEXUAL MISCONDUCT,  FORCIBLE
 TOUCHING,  SEXUAL  ABUSE IN THE THIRD DEGREE, SEXUAL ABUSE IN THE SECOND
 DEGREE AS SET FORTH IN SUBDIVISION ONE OF SECTION 130.60  OF  THE  PENAL
 LAW, STALKING IN THE FIRST DEGREE, STALKING IN THE SECOND DEGREE, STALK-
 ING  IN  THE  THIRD  DEGREE,  STALKING  IN  THE  FOURTH DEGREE, CRIMINAL
 MISCHIEF, MENACING IN THE SECOND DEGREE, MENACING IN THE  THIRD  DEGREE,
 RECKLESS ENDANGERMENT, CRIMINAL OBSTRUCTION OF BREATHING OR BLOOD CIRCU-
 LATION,  STRANGULATION  IN THE SECOND DEGREE, STRANGULATION IN THE FIRST
 DEGREE, ASSAULT IN THE SECOND DEGREE, ASSAULT IN THE  THIRD  DEGREE,  AN
 ATTEMPTED ASSAULT, IDENTITY THEFT IN THE FIRST DEGREE, IDENTITY THEFT IN
 THE  SECOND DEGREE, IDENTITY THEFT IN THE THIRD DEGREE, GRAND LARCENY IN
 THE FOURTH DEGREE, GRAND LARCENY IN THE THIRD DEGREE,  COERCION  IN  THE
 SECOND  DEGREE  OR COERCION IN THE THIRD DEGREE AS SET FORTH IN SUBDIVI-
 SIONS ONE, TWO AND THREE OF SECTION 135.60  OF  THE  PENAL  LAW  BETWEEN
 SPOUSES  OR  FORMER  SPOUSES,  OR  BETWEEN  PARENT  AND CHILD OR BETWEEN
 MEMBERS OF THE SAME FAMILY OR HOUSEHOLD, REGARDLESS OF THE DISPOSITION;
   (E) WHETHER EITHER PARTY OWNS, POSSESSES OR HAS ACCESS TO  A  FIREARM,
 RIFLE OR SHOTGUN;
   (F)  WHETHER  EITHER PARTY IS BETTER ABLE AND MORE LIKELY TO ATTEND TO
 THE DAILY PHYSICAL, EMOTIONAL, DEVELOPMENTAL,  EDUCATIONAL  AND  SPECIAL
 NEEDS OF THE CHILD; AND
   (G) ANY PREVIOUSLY MADE STATEMENTS BY THE CHILD ABOUT A PARTY INDICAT-
 ING  THEY  ARE  FEARFUL  OF OR RESISTANT TO HAVING CONTACT OR VISITATION
 WITH SUCH PARTY.
   4. (A) THE COURT SHALL NOT PRESUME THAT A CHILD'S DEFICIENT  OR  NEGA-
 TIVE  RELATIONSHIP WITH A PARTY WAS CAUSED BY THE OTHER PARTY, NOR SHALL
 A PARTY BE GIVEN CUSTODY  FOR  THE  PURPOSE  OF  IMPROVING  A  DEFICIENT
 RELATIONSHIP  BETWEEN THE CHILD AND SUCH PARTY OR IN AN ATTEMPT TO REME-
 DIATE A CHILD'S RESISTANCE TO CONTACT OR VISITATION WITH A PARTY.
   (B) ALLEGATIONS REGARDING PARENTAL ALIENATION SHALL NOT BE  ADMISSIBLE
 IN  ANY PROCEEDING FOR CUSTODY OR VISITATION AND SHALL NOT BE CONSIDERED
 IN ASSESSING A CHILD'S BEST INTERESTS.
   (C) NO PSYCHOLOGICAL OR  MEDICAL  THEORIES  OR  LABELS  RELATED  TO  A
 CHILD'S  RESISTANCE  TO  CONTACT  WITH  A  PARTY  SHALL BE ADMITTED INTO
 EVIDENCE UNLESS THEY ARE BASED ON EMPIRICAL PROOF  OF  SCIENTIFIC  RELI-
 ABILITY  AND  VALIDITY  AND  GENERALLY  ACCEPTED  BY  THE SCIENTIFIC AND
 PROFESSIONAL COMMUNITY.
   (D) NO REUNIFICATION TREATMENT OR  ANY  SIMILAR  PROGRAM  DESIGNED  TO
 REPAIR  A  PARTY'S  RELATIONSHIP WITH A CHILD DUE TO PARENTAL ALIENATION
 SHALL BE ORDERED BY THE COURT WITHOUT SCIENTIFICALLY VALID AND GENERALLY
 ACCEPTED PROOF OF THE EFFECTIVENESS AND THERAPEUTIC VALUE OF SUCH TREAT-
 MENT OR PROGRAM; NOR SHALL A TREATMENT OR PROGRAM BE  ORDERED  WHICH  IS
 PREDICATED ON SEPARATING A CHILD FROM THEIR PRIMARY CAREGIVER.
   (E)  IN CASES INVOLVING DOMESTIC VIOLENCE OR CHILD ABUSE, WHETHER SUCH
 ABUSE HAS OCCURRED OR IS OCCURRING, A COURT SHALL NOT  CONSIDER  WHETHER
 EITHER PARENT IS A FRIENDLY PARENT.
   5.  IN  CASES  WHERE  THE  COURT  HAS FOUND A PARENT TO BE A VICTIM OF
 DOMESTIC VIOLENCE AND/OR WHERE CHILD ABUSE HAS OCCURRED OR IS OCCURRING:
   (A) THE COURT SHALL AWARD JOINT LEGAL CUSTODY ONLY ON CONSENT  OF  THE
 PARTIES OR WHERE IT HAS BEEN DETERMINED THAT THE PARTIES CAN EFFECTIVELY
 COMMUNICATE,  COOPERATE  WITH  EACH  OTHER,  AND  MAKE  JOINT  DECISIONS
 CONCERNING THE CHILD; PROVIDED, HOWEVER, THAT WHERE FINAL ORDERS ARE  ON
 THE  CONSENT  OF  THE PARTIES, IN NO EVENT SHALL AN ORDER OF JOINT LEGAL
 CUSTODY BE AWARDED WHEN THERE IS AN EXISTING OR  PRIOR  FULL  STAY  AWAY
 ORDER  OF  PROTECTION  AGAINST A PARTY ON BEHALF OF ANOTHER PARTY TO THE
 S. 7425--A                          6

 PROCEEDING OR WHEN THERE IS AN EXISTING TEMPORARY  ORDER  OF  PROTECTION
 ENTERED EX PARTE; AND
   (B)  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 DOMESTIC VIOLENCE, UNLESS THE
 OFFENDING PARENT HAS INSUFFICIENT MEANS TO PAY SUCH COSTS.
   6. (A) BEFORE JUDGES, REFEREES, OR OTHER HEARING OFFICERS PRESIDE OVER
 CHILD CUSTODY PROCEEDINGS IN WHICH ONE  OR  MORE  PARTIES  HAVE  ALLEGED
 DOMESTIC  VIOLENCE  OR  CHILD ABUSE, THEY SHALL COMPLETE AT LEAST TWENTY
 HOURS OF INITIAL TRAINING FOR THE HANDLING OF SUCH CASES. THE OFFICE FOR
 PREVENTION OF DOMESTIC VIOLENCE SHALL, WITHIN AMOUNTS  APPROPRIATED  FOR
 SUCH  PURPOSE,  CONTRACT  EXCLUSIVELY  WITH THE NEW YORK STATE COALITION
 AGAINST DOMESTIC VIOLENCE, AND OTHER NONPROFIT  ENTITIES  WITH  WHOM  IT
 SUBCONTRACTS  WITH EXPERTISE IN CHILD ABUSE OR GENDER-BASED VIOLENCE, TO
 DEVELOP SUCH TRAINING. SUCH ENTITY, OR ENTITIES  IN  PARTNERSHIP,  SHALL
 REVIEW  AND  UPDATE  THE  TRAINING  AT  LEAST ONCE EVERY TWO YEARS.   IN
 CONSULTATION WITH THE OFFICE OF COURT ADMINISTRATION, SUCH ENTITIES,  OR
 ENTITIES  IN PARTNERSHIP, SHALL BE RESPONSIBLE FOR PROVIDING SUCH TRAIN-
 ING TO JUDGES, REFEREES,  AND  OTHER  HEARING  OFFICERS  HANDLING  CHILD
 CUSTODY  PROCEEDINGS.    SUCH TRAINING SHALL INCLUDE, BUT NOT BE LIMITED
 TO:
   (1) A REVIEW OF RELEVANT STATUTES AND CASE LAW PERTAINING TO  DOMESTIC
 VIOLENCE AND CHILD ABUSE;
   (2)  THE  DYNAMICS  AND  EFFECTS OF DOMESTIC VIOLENCE AND CHILD ABUSE,
 INCLUDING BUT NOT LIMITED TO, EMOTIONAL, FINANCIAL, PHYSICAL, TECHNOLOG-
 ICAL AND SEXUAL ABUSE, AND AN UNDERSTANDING OF THE  BARRIERS  AND  FEARS
 ASSOCIATED  WITH  REPORTING  DOMESTIC  VIOLENCE  AND CHILD ABUSE AND WHY
 VICTIMS MAY NOT HAVE DOCUMENTED EVIDENCE OF ABUSE;
   (3) TACTICS COMMONLY USED BY ONE PARTY TO INDUCE FEAR IN, OR  DOMINATE
 OR  CONTROL  A PARTNER OR CHILD, INCLUDING VERBAL, EMOTIONAL, PSYCHOLOG-
 ICAL, AND/OR ECONOMIC ABUSE; ISOLATION; EFFORTS TO BUILD  TRUST  AND  AN
 EMOTIONAL  CONNECTION  WITH  A  CHILD  TO  SUPPORT  FUTURE MANIPULATION;
 EXPLOITATION;  ABUSE;  THREATS;  CONTROLLING  AND  HARASSING  BEHAVIORS,
 INCLUDING  MONITORING  OF  A  PARTNER'S  LOCATION AND ACTIVITIES; USE OF
 OPPRESSIVE BEHAVIOR DESIGNED TO DEPRIVE A PARTNER OF  THEIR  RIGHTS  AND
 LIBERTIES  AND  ESTABLISHING  A  REGIME  OF  DOMINATION IN THE PARTNER'S
 PERSONAL LIFE; LITIGATION ABUSE; AND DEMANDS FOR  CUSTODY  IN  ORDER  TO
 PRESSURE THE PARTNER TO RETURN OR PUNISH THE PARTNER FOR LEAVING;
   (4)  KNOWLEDGE  OF  TRAUMA, PARTICULARLY AS IT RELATES TO SEXUAL ABUSE
 AND THE RISKS POSED TO CHILDREN AND THE LONG-TERM  DANGERS  AND  IMPACTS
 POSED BY THE PRESENCE OF ADVERSE CHILDHOOD EXPERIENCES;
   (5) THE INCREASED RISK OF ESCALATING VIOLENCE THAT OCCURS DURING CHILD
 CUSTODY  PROCEEDINGS  AND  METHODS FOR ASSESSING A CHILD'S SAFETY DURING
 CUSTODY AND VISITATION  PROCEEDINGS,  PARTICULARLY  IN  CASES  INVOLVING
 DOMESTIC VIOLENCE OR CHILD ABUSE;
   (6)  THE  ASSESSMENT  OF  LEGALITY  OR  SIGNS  OF LETHAL VIOLENCE, AND
 INSTRUCTION ON THE USE OF A RISK ASSESSMENT TOOL TO  ASSESS  RISK  TO  A
 CHILD'S  LIFE OR SAFETY FOR THE PURPOSE OF ISSUING A TEMPORARY EMERGENCY
 ORDER;
   (7) EDUCATION REGARDING THE HARM COURTS MAY CAUSE  CHILDREN  IN  CHILD
 CUSTODY CASES WHERE DOMESTIC VIOLENCE OR CHILD ABUSE IS PRESENT BY RELY-
 ING  ON  NON-SCIENTIFIC  THEORIES  SUCH AS PARENTAL ALIENATION, PARENTAL
 ALIENATION SYNDROME, THE FRIENDLY PARENT CONCEPT, OR ANY OTHER THEORY OR
 LABEL THAT IS NOT SUPPORTED BY SCIENTIFIC  RESEARCH  AND  NOT  GENERALLY
 ACCEPTED BY THE SCIENTIFIC COMMUNITY;
 S. 7425--A                          7
 
   (8) THE INVESTIGATION PROCESS ONCE A LAW ENFORCEMENT AGENCY OR A LOCAL
 DEPARTMENT  OF  SOCIAL SERVICES HAS RECEIVED A REPORT OF SUSPECTED CHILD
 ABUSE, INCLUDING THE LIMITATIONS OF INVESTIGATING REPORTS  OF  SUSPECTED
 CHILD ABUSE; AND
   (9)  APPROPRIATE EXPERIENCE AND QUALIFICATIONS OF CHILD CUSTODY EVALU-
 ATORS AND MENTAL HEALTH TREATMENT PROVIDERS.
   (B) ONCE INITIAL TRAINING REQUIREMENTS HAVE BEEN MET,  JUDGES,  REFER-
 EES, AND OTHER HEARING OFFICERS PRESIDING OVER CHILD CUSTODY PROCEEDINGS
 IN  WHICH  ONE  OR  MORE PARTIES HAVE ALLEGED DOMESTIC VIOLENCE OR CHILD
 SEXUAL ABUSE SHALL COMPLETE AT LEAST TEN HOURS  OF  TRAINING  EVERY  TWO
 YEARS IN ORDER TO REMAIN ELIGIBLE TO HANDLE SUCH PROCEEDINGS.
   §  4.  Subdivision (a) of section 70 of the domestic relations law, as
 amended by chapter 457 of the laws  of  1988,  is  amended  to  read  as
 follows:
   (a)  (I)  Where  a  minor  child is residing within this state, either
 parent may apply to the supreme court for a writ  of  habeas  corpus  to
 have such minor child brought before such court; and on the return ther-
 eof,  the  court,  on due consideration, may award the natural guardian-
 ship, charge and custody of such child to either parent for  such  time,
 under  such  regulations  and restrictions, and with such provisions and
 directions, as the case may require, and  may  at  any  time  thereafter
 vacate  or modify such order. In all cases there shall be no prima facie
 right to the custody of the child in either parent, but the court  shall
 determine  solely  what  is for the best interest of the child, and what
 will best promote its welfare and happiness, and make award accordingly.
 WHERE EITHER PARTY TO AN ACTION CONCERNING CUSTODY  OF  OR  A  RIGHT  TO
 VISITATION  WITH  A  CHILD ALLEGES THAT THE OTHER PARTY HAS COMMITTED AN
 ACT OF CHILD ABUSE AGAINST SUCH CHILD, OR COMMITTED AN ACT  OF  DOMESTIC
 VIOLENCE  AGAINST  THE PARTY MAKING THE ALLEGATION OR A FAMILY OR HOUSE-
 HOLD MEMBER OF EITHER PARTY, AS SUCH FAMILY OR HOUSEHOLD IS  DEFINED  IN
 ARTICLE  EIGHT  OF  THE  FAMILY  COURT ACT, THE COURT MUST FIRST, BEFORE
 CONSIDERING ANY OTHER BEST INTEREST FACTORS, HOLD A HEARING TO DETERMINE
 WHETHER TEMPORARY LIMITATIONS OR CONDITIONS ON THE CUSTODY OR VISITATION
 RIGHTS OF THE PARTY WHO IS ALLEGED TO HAVE COMMITTED  AN  ACT  OF  CHILD
 ABUSE  AGAINST  THE  CHILD,  OR  COMMITTED  AN  ACT OF DOMESTIC VIOLENCE
 AGAINST THE PARTY MAKING THE ALLEGATION OR A FAMILY OR HOUSEHOLD  MEMBER
 OF  EITHER  PARTY  IS NECESSARY TO AVOID SIGNIFICANT RISK TO THE CHILD'S
 LIFE OR SAFETY, AS DESCRIBED PURSUANT TO SUBDIVISION FIVE OF SECTION TWO
 HUNDRED FORTY OF THIS CHAPTER.
   (II) NOTWITHSTANDING ANY OTHER PROVISION OF LAW  TO  THE  CONTRARY,  A
 COURT  MAKING  A  DETERMINATION  THAT  LIMITATIONS  OR RESTRICTIONS OF A
 PARTY'S CUSTODY, VISITATION OR CONTACT WITH THE CHILD ARE  NECESSARY  TO
 AVOID  SIGNIFICANT  RISK  TO  THE  CHILD'S  LIFE OR SAFETY SHALL ISSUE A
 TEMPORARY EMERGENCY ORDER FOR CUSTODY OR VISITATION STATING AS SUCH.
   (III) NOTWITHSTANDING ANY OTHER PROVISION  OF  LAW  TO  THE  CONTRARY,
 PRIOR TO THE ISSUANCE OF A TEMPORARY EMERGENCY ORDER OF CUSTODY OR VISI-
 TATION,  THE  COURT SHALL CONDUCT AN ASSESSMENT OF THE BEST INTERESTS OF
 THE CHILD TO IDENTIFY SIGNIFICANT RISK TO THE  LIFE  OR  SAFETY  OF  THE
 CHILD  WHO  IS  THE  SUBJECT  OF  SUCH  ORDER BY CONSIDERING THE FACTORS
 DESCRIBED IN SECTION TWO HUNDRED FORTY OF THIS CHAPTER.
   (IV) NOTWITHSTANDING ANY OTHER PROVISION OF LAW  TO  THE  CONTRARY,  A
 COURT MAKING A FINAL DETERMINATION OF CUSTODY OR VISITATION BASED ON THE
 BEST  INTERESTS  OF  A  CHILD PURSUANT TO THE PROVISIONS OF THIS CHAPTER
 SHALL PRIORITIZE AND PROMOTE THE LIFE AND  SAFETY  OF  SUCH  CHILD  WHEN
 MAKING  SUCH  DETERMINATIONS.  PROMOTING  THE  SAFETY  OF  A CHILD SHALL
 INCLUDE PREVENTING DIRECT PHYSICAL AND/OR EMOTIONAL HARM TO SUCH  CHILD.
 S. 7425--A                          8
 
 PRIOR  TO THE ISSUANCE OF A FINAL ORDER OF CUSTODY OR VISITATION, DURING
 ITS ASSESSMENT OF THE BEST INTERESTS  OF  THE  CHILD,  THE  COURT  SHALL
 DETERMINE  THE  SAFETY  OF THE CHILD WHO IS THE SUBJECT OF SUCH ORDER BY
 CONSIDERING ALL RELEVANT FACTORS AND BY GIVING WEIGHTED CONSIDERATION TO
 THOSE  FACTORS  WHICH AFFECT THE LIFE AND SAFETY OF SUCH CHILD, PURSUANT
 TO SUBDIVISION THREE OF SECTION TWO HUNDRED FORTY-D OF THIS CHAPTER.
   (V) IN MAKING A DECISION PURSUANT TO PARAGRAPH (I)  OF  THIS  SUBDIVI-
 SION,  THE  COURT  SHALL  BE BOUND BY THE PRESUMPTIONS AND ADMISSIBILITY
 DESCRIBED PURSUANT TO SECTION  TWO  HUNDRED  FORTY-D  OF  THIS  CHAPTER.
 FURTHER,  THE  COURT  SHALL  NOT  TAKE INTO CONSIDERATION WHETHER EITHER
 PARTY IS MARRIED, WAS FORMERLY MARRIED OR HAS EVER BEEN MARRIED  TO  THE
 OTHER PARTY OR ANYONE ELSE.
   (VI)  IN  CASES  WHERE  THE  COURT HAS FOUND A PARTY TO BE A VICTIM OF
 DOMESTIC VIOLENCE AND/OR WHERE CHILD ABUSE HAS OCCURRED OR IS OCCURRING,
 THE COURT SHALL AWARD JOINT LEGAL CUSTODY ONLY ON CONSENT OF THE PARTIES
 OR WHERE IT HAS BEEN DETERMINED THAT THE PARTIES CAN EFFECTIVELY  COMMU-
 NICATE,  COOPERATE  WITH EACH OTHER, AND MAKE JOINT DECISIONS CONCERNING
 THE CHILD; PROVIDED, HOWEVER, THAT WHERE FINAL ORDERS ARE ON THE CONSENT
 OF THE PARTIES, IN NO EVENT SHALL AN ORDER OF  JOINT  LEGAL  CUSTODY  BE
 AWARDED  WHEN  THERE  IS  AN  EXISTING  OR PRIOR FULL STAY AWAY ORDER OF
 PROTECTION AGAINST A PARTY ON BEHALF OF ANOTHER PARTY TO THE  PROCEEDING
 OR  WHEN  THERE  IS AN EXISTING TEMPORARY ORDER OF PROTECTION ENTERED EX
 PARTE AND 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 DOMESTIC VIOLENCE, UNLESS THE
 OFFENDING PARENT HAS INSUFFICIENT MEANS TO PAY SUCH COSTS.
   (VII) BEFORE JUDGES, REFEREES AND OTHER HEARING OFFICERS PRESIDE  OVER
 CHILD  CUSTODY  PROCEEDINGS  IN  WHICH  ONE OR MORE PARTIES HAVE ALLEGED
 DOMESTIC VIOLENCE OR CHILD ABUSE, THEY SHALL COMPLETE  INITIAL  TRAINING
 FOR  THE  HANDLING  OF  SUCH  CASES AS DESCRIBED PURSUANT TO SECTION TWO
 HUNDRED FORTY-D OF THIS CHAPTER. ONCE INITIAL TRAINING REQUIREMENTS HAVE
 BEEN MET, JUDGES, REFEREES AND OTHER  HEARING  OFFICERS  SHALL  COMPLETE
 ADDITIONAL TRAINING EVERY TWO YEARS AS DESCRIBED PURSUANT TO SECTION TWO
 HUNDRED FORTY-D OF THIS CHAPTER.
   §  5.  The  family court act is amended by adding a new section 654 to
 read as follows:
   § 654. TEMPORARY ORDER OF CUSTODY OR OF VISITATION. (A)  NOTWITHSTAND-
 ING ANY OTHER PROVISION OF THE LAW, UPON THE APPLICATION OF EITHER PARTY
 TO AN ACTION CONCERNING CUSTODY OF OR A RIGHT TO VISITATION WITH A CHILD
 WHO  ALLEGES  THAT  THE  OTHER PARTY HAS COMMITTED AN ACT OF CHILD ABUSE
 AGAINST SUCH CHILD, OR 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, THE COURT SHALL HOLD A HEARING TO DETERMINE WHETH-
 ER  TEMPORARY  LIMITATIONS  OR  CONDITIONS  ON THE CUSTODY OR VISITATION
 RIGHTS OF THE PARTY WHO IS ALLEGED TO HAVE COMMITTED  AN  ACT  OF  CHILD
 ABUSE  AGAINST  THE  CHILD,  OR  COMMITTED  AN  ACT OF DOMESTIC VIOLENCE
 AGAINST THE PARTY MAKING THE ALLEGATION OR A FAMILY OR HOUSEHOLD  MEMBER
 OF  EITHER  PARTY  IS NECESSARY TO AVOID SIGNIFICANT RISK TO THE CHILD'S
 LIFE OR SAFETY, IN ACCORDANCE WITH SUBPARAGRAPH FIVE OF PARAGRAPH  (A-1)
 OF  SUBDIVISION  ONE  OF  SECTION  TWO  HUNDRED  FORTY  OF  THE DOMESTIC
 RELATIONS LAW. IF THE COURT DETERMINES THAT LIMITATIONS OR  RESTRICTIONS
 OF A PARTY'S CUSTODY, VISITATION OR CONTACT WITH THE CHILD ARE NECESSARY
 TO AVOID SIGNIFICANT RISK TO THE CHILD'S LIFE OR SAFETY, THE COURT SHALL
 ISSUE  A  TEMPORARY EMERGENCY ORDER FOR CUSTODY OR VISITATION STATING AS
 SUCH, IN ACCORDANCE WITH CLAUSE (III) OF SUBPARAGRAPH FIVE OF  PARAGRAPH
 S. 7425--A                          9

 (A-1)  OF  SUBDIVISION  ONE OF SECTION TWO HUNDRED FORTY OF THE DOMESTIC
 RELATIONS LAW.
   (B)  SUCH  TEMPORARY ORDER OF CUSTODY OR OF VISITATION MAY BE TAKEN AS
 OF RIGHT TO THE APPELLATE DIVISION OF THE  SUPREME  COURT.  PENDING  THE
 DETERMINATION  OF  SUCH  APPEAL,  SUCH  ORDER  SHALL BE STAYED WHERE THE
 EFFECT OF SUCH ORDER WOULD BE TO DISCHARGE  THE  CHILD,  IF  THE  FAMILY
 COURT OR THE COURT BEFORE WHICH SUCH APPEAL IS PENDING FINDS THAT SUCH A
 STAY IS NECESSARY TO AVOID SIGNIFICANT RISK TO THE CHILD'S LIFE OR SAFE-
 TY.  A  PREFERENCE  IN  ACCORDANCE  WITH RULE FIVE THOUSAND FIVE HUNDRED
 TWENTY-ONE OF THE CIVIL PRACTICE LAW AND RULES SHALL BE AFFORDED,  WITH-
 OUT  THE  NECESSITY  OF A MOTION, FOR APPEALS UNDER ARTICLE THREE; PARTS
 ONE AND TWO OF ARTICLE SIX; ARTICLES SEVEN, TEN, AND TEN-A OF THIS  ACT;
 AND  SECTIONS THREE HUNDRED FIFTY-EIGHT-A, THREE HUNDRED EIGHTY-THREE-C,
 THREE HUNDRED EIGHTY-FOUR, AND THREE HUNDRED EIGHTY-FOUR-B OF THE SOCIAL
 SERVICES LAW.  AN APPEAL UNDER THIS SUBDIVISION MUST BE TAKEN  NO  LATER
 THAN FIVE DAYS AFTER THE SERVICE BY A PARTY OR THE CHILD'S ATTORNEY UPON
 THE  APPELLANT  OF  ANY  ORDER FROM WHICH THE APPEAL IS TAKEN, FIVE DAYS
 FROM RECEIPT OF THE ORDER BY THE APPELLANT IN COURT.
   § 6. Subdivision a of section 1112 of the family court act, as amended
 by section 28 of part A of chapter 3 of the laws of 2005, is amended  to
 read as follows:
   a.  An  appeal  may be taken as of right from any order of disposition
 and, in the discretion of the appropriate appellate division,  from  any
 other  order  under  this  act.  An appeal from an intermediate or final
 order in a case involving abuse or neglect, THE  DECISION  TO  GRANT  OR
 DENY  A TEMPORARY EMERGENCY ORDER, AS DETERMINED PURSUANT TO SECTION SIX
 HUNDRED FIFTY-FOUR OF THIS ACT, OR A TEMPORARY EMERGENCY ORDER ISSUED TO
 AVOID SIGNIFICANT RISK TO THE CHILD'S  LIFE  OR  SAFETY,  AS  DETERMINED
 PURSUANT  TO SECTION SIX HUNDRED FIFTY-FOUR OF THIS ACT, may be taken as
 of right to the appellate division of the supreme court.    Pending  the
 determination  of  such  appeal,  such  order  shall be stayed where the
 effect of such order would be to discharge  the  child,  if  the  family
 court or the court before which such appeal is pending finds that such a
 stay  is necessary to avoid imminent risk to the child's life or health.
 A preference in accordance with rule five thousand five hundred  twenty-
 one  of  the civil practice law and rules shall be afforded, without the
 necessity of a motion, for appeals under article three;  parts  one  and
 two  of  article  six;  articles  seven, ten, and ten-A of this act; and
 sections three  hundred  fifty-eight-a,  three  hundred  eighty-three-c,
 three hundred eighty-four, and three hundred eighty-four-b of the social
 services law.
   §  7.  This  act shall take effect on the ninetieth day after it shall
 have become a law. Effective immediately, the addition, amendment and/or
 repeal of any rule or regulation necessary  for  the  implementation  of
 this  act  on  its effective date are authorized to be made on or before
 such effective date.

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Senate Bill S7425

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Archive: Last Bill Status - In Senate Committee Rules Committee

Bill Amendments

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2021-S7425 - Details

2021-S7425 - Summary

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2021-S7425 - Bill Text download pdf

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2021-S7425A (ACTIVE) - Details

2021-S7425A (ACTIVE) - Summary

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2021-S7425A (ACTIVE) - Bill Text download pdf

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