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.
Regarding the Kyra Law, having the word "significant" is a dangerous loophole as "significant" and "serious" are subjectively assessed, for what is significant and serious for one person may not meet the category for another person. In the realm of public servants who witness heinous crimes, they are desensitized from what is concerning to a parent with their one and only beloved child.