NY State Senate Bill 2023-S8704

Senate Bill S8704

2023-2024 Legislative Session

Relates to consideration of gender-affirming health care or gender-affirming mental health care in child custody cases

download bill text pdf

Current Bill Status - In Senate Committee Children And Families Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Mar 01, 2024	referred to children and families

2023-S8704 (ACTIVE) - Details

See Assembly Version of this Bill:: A6993
Current Committee:: Senate Children And Families
Law Section:: Domestic Relations Law
Laws Affected:: Amd §§76, 76-c, 76-f, 76-g, 77-b, 77-j & 77-l, Dom Rel L

2023-S8704 (ACTIVE) - Summary

Relates to consideration of gender-affirming health care or gender-affirming mental health care in child custody cases for purposes of jurisdiction, forum and enforcement of custody orders.

2023-S8704 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S8704

SPONSOR: HOYLMAN-SIGAL
 
TITLE OF BILL:

An act to amend the domestic relations law, in relation to consideration
of gender-affirming health care or gender-affirming mental health care
in child custody cases

 
PURPOSE OR GENERAL IDEA OF BILL:

This bill prohibits the enforcement of an order based on another state's
law authorizing a child to be removed from their parent or guardian
based on that parent or guardian allowing their child to receive
gender-affirming health care or gender-affirming mental health care.

 
SUMMARY OF PROVISIONS:

Section 1 amends the domestic relations Law by adding subdivision 4,
relating to jurisdiction of state courts regarding children seeking
gender-affirming care.

Section 2 amends section 76-c of the domestic relations law relating to
emergency jurisdiction to protect a child or siblings of a child seeking
gender-affirming care.

Section 3 amends section 76-f of the domestic relations law to clarify
jurisdiction inconvenience of a forum.

Section 4 amends section 76-g of the domestic relations law clarifies
that gender-affirming care shall not be considered as a form of abuse
that would affect custody issues.

Section 5 amends section 77-b of the domestic relations law to assert it
is against public policy to remove a child based upon their receiving
gender affirming care.

Section 6 amends section 77-j of the domestic relations law permitting a
petitioner to file a verified application for the issuance of a warrant
to take physical custody of the child if the child is at imminent risk
of suffering serious physical harm or of removal from this state.

Section 7 amends section 77-1 of the domestic relations law to provide
that a *law of another state that authorizes a child to be removed from
their parent or guardian based on the parent or guardian allowing their
child to receive gender-affirming health care or gender-affirming mental
health care is against the public policy of this state and shall not be
enforced or applied in a case pending in a court in this state.

Section 8 Establishes the effective date.

 
JUSTIFICATION:

LGBTQ+ individuals and especially transgender children are under attack
across the nation with many states introducing and passing laws prohib-
iting gender-affirming medical and wellness care. This bill seeks to
fill a gap in our domestic relations law so we can protect transgender
children from other states awarding custody based on gender affirming
care in New York.
Other states are introducing and passing legislation claiming that
gender affirming care or living with someone who is undergoing gender
affirming care is now child abuse. New York cannot permit awarding
custody to people who are asserting child abuse based on gender affirm-
ing care for the child, a sibling or parent of the child. These states
are claiming a jurisdictional right to award custody based on these
claims. This bill would prohibit the enforcement of an such an order..
Existing law permits a New York court to decline to exercise its juris-
diction if the petitioner has wrongfully taken the child from another
state.or engaged in similar reprehensible conduct. This bill would
prohibit a court from finding that it is an inconvenient forum where the
law or policy of another state that may take jurisdiction limits the
ability of a parent to obtain gender-affirming health care or gender-af-
firming mental health care and the provision of such care is at issue in
the case before the court. This bill would authorize a New York court to
assert temporary jurisdiction because a child has been unable to obtain
gender-affirming health care. The bill would additionally prohibit a
court from considering the taking or retention of a child f rom a person
who has legal custody of the child, if the taking or retention was for
obtaining gender-affirming health care or mental health care.

 
PRIOR LEGISLATIVE HISTORY:

New bill.

 
FISCAL IMPLICATIONS:

None to New York State.

 
EFFECTIVE DATE:
This act shall take effect immediately.

2023-S8704 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8704
 
                             I N  S E N A T E
 
                               March 1, 2024
                                ___________
 
 Introduced  by Sen. HOYLMAN-SIGAL -- read twice and ordered printed, and
   when printed to be committed to the Committee on Children and Families
 
 AN ACT to amend the domestic relations law, in relation to consideration
   of gender-affirming health care or gender-affirming mental health care
   in child custody cases
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Section  76  of  the domestic relations law is amended by
 adding a new subdivision 4 to read as follows:
   4. THE PRESENCE OF A CHILD IN THIS STATE FOR THE PURPOSE OF  OBTAINING
 GENDER-AFFIRMING  HEALTH CARE OR GENDER-AFFIRMING MENTAL HEALTH CARE, IS
 SUFFICIENT TO MEET THE REQUIREMENTS OF THIS SECTION AND  TO  ENABLE  THE
 COURT TO OBTAIN INITIAL CHILD CUSTODY JURISDICTION.
   §  2.  Subdivision 1 of section 76-c of the domestic relations law, as
 added by chapter 386 of the laws of 2001, is amended to read as follows:
   1. A court of this state has temporary emergency jurisdiction  if  the
 child is present in this state and the child has been abandoned or it is
 necessary  in  an emergency to protect the child BECAUSE THE CHILD, OR a
 sibling or parent of the child, IS SUBJECTED  TO,  OR  THREATENED  WITH,
 MISTREATMENT  OR  ABUSE,  OR  BECAUSE  THE CHILD HAS BEEN PREVENTED FROM
 OBTAINING GENDER-AFFIRMING HEALTH CARE OR GENDER-AFFIRMING MENTAL HEALTH
 CARE.
   § 3. Section 76-f of the domestic relations law is amended by adding a
 new subdivision 5 to read as follows:
   5. IN A CASE WHERE THE PROVISION OF GENDER-AFFIRMING  HEALTH  CARE  OR
 GENDER-AFFIRMING MENTAL HEALTH CARE TO THE CHILD IS AT ISSUE, A COURT OF
 THIS  STATE  SHALL  NOT DETERMINE THAT IT IS AN INCONVENIENT FORUM WHERE
 THE LAW OR POLICY OF THE OTHER STATE THAT MAY TAKE  JURISDICTION  LIMITS
 THE  ABILITY  OF  A  PARENT  TO  OBTAIN  GENDER-AFFIRMING HEALTH CARE OR
 GENDER-AFFIRMING MENTAL HEALTH CARE FOR THEIR CHILD.
   § 4. Subdivision 4 of section 76-g of the domestic relations  law,  as
 added by chapter 386 of the laws of 2001, is amended to read as follows:
   4.  In  making  a  determination under this section, a court shall not
 consider as a factor weighing against the petitioner any taking  of  the
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD11061-01-3
 S. 8704                             2
 
 child, or retention of the child after a visit or other temporary relin-
 quishment of physical custody, from the person who has legal custody, if
 there  is  evidence  that  the  taking  or retention of the child was to
 protect  the  petitioner from domestic violence or [the child or sibling
 from mistreatment or abuse] FOR THE PURPOSES OF OBTAINING GENDER-AFFIRM-
 ING HEALTH CARE OR GENDER-AFFIRMING MENTAL HEALTH CARE FOR THE CHILD AND
 THE LAW OR POLICY OF THE OTHER STATE LIMITS THE ABILITY OF A  PARENT  TO
 OBTAIN  GENDER-AFFIRMING  HEALTH  CARE OR GENDER-AFFIRMING MENTAL HEALTH
 CARE FOR THEIR CHILD.
   § 5. Section 77-b of the domestic relations law is amended  by  adding
 two new subdivisions 3 and 4 to read as follows:
   3.  NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION ONE OF THIS SECTION,
 A LAW OF ANOTHER STATE THAT AUTHORIZES A CHILD TO BE REMOVED FROM  THEIR
 PARENT  OR GUARDIAN BASED ON THE PARENT OR GUARDIAN ALLOWING THEIR CHILD
 TO RECEIVE  GENDER-AFFIRMING  HEALTH  CARE  OR  GENDER-AFFIRMING  MENTAL
 HEALTH  CARE IS AGAINST THE PUBLIC POLICY OF THIS STATE AND SHALL NOT BE
 ENFORCED OR APPLIED IN A CASE PENDING IN A COURT IN THIS STATE.
   4. A COURT OF THIS STATE HAS JURISDICTION TO VACATE, STAY OR MODIFY  A
 CHILD  CUSTODY DETERMINATION OF A COURT OF ANOTHER STATE WHICH FAILED TO
 RECOGNIZE A CHILD'S RIGHT TO RECEIVE  GENDER-AFFIRMING  HEALTH  CARE  OR
 GENDER-AFFIRMING MENTAL HEALTH CARE.
   §  6.  Subdivision 1 of section 77-j of the domestic relations law, as
 added by chapter 386 of the laws of 2001, is amended to read as follows:
   1. Upon the filing of a petition seeking enforcement of a child custo-
 dy determination, the petitioner may file a verified application for the
 issuance of a warrant to take physical custody of the child if the child
 is at imminent risk of suffering serious physical  harm  or  of  removal
 from  this state. AS USED IN THIS SECTION,  "SERIOUS PHYSICAL HARM" DOES
 NOT  INCLUDE  THE  PROVISION  OF  GENDER-AFFIRMING  HEALTH  CARE  AND/OR
 GENDER-AFFIRMING MENTAL HEALTH CARE.
   §  7.  Section 77-l of the domestic relations law, as added by chapter
 386 of the laws of 2001, is amended to read as follows:
   § 77-l. Recognition and enforcement. 1. A court of  this  state  shall
 accord  full  faith  and  credit to an order issued by another state and
 consistent with this article which enforces  a  child  custody  determi-
 nation  by  a  court of another state unless the order has been vacated,
 stayed, or modified by a court having jurisdiction to do so under  title
 two  of  this  article, unless recognition and enforcement would violate
 subdivision one-c of section  two  hundred  forty  of  this  chapter  or
 section one thousand eighty-five of the family court act.
   2.  NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION ONE OF THIS SECTION,
 A LAW OF ANOTHER STATE THAT AUTHORIZES A CHILD TO BE REMOVED FROM  THEIR
 PARENT  OR GUARDIAN BASED ON THE PARENT OR GUARDIAN ALLOWING THEIR CHILD
 TO RECEIVE  GENDER-AFFIRMING  HEALTH  CARE  OR  GENDER-AFFIRMING  MENTAL
 HEALTH  CARE IS AGAINST THE PUBLIC POLICY OF THIS STATE AND SHALL NOT BE
 ENFORCED OR APPLIED IN A CASE PENDING IN A COURT IN THIS STATE.
   3. A COURT OF THIS STATE HAS JURISDICTION TO VACATE, STAY OR MODIFY  A
 CHILD  CUSTODY DETERMINATION OF A COURT OF ANOTHER STATE WHICH FAILED TO
 RECOGNIZE A CHILD'S RIGHT TO RECEIVE  GENDER-AFFIRMING  HEALTH  CARE  OR
 GENDER-AFFIRMING MENTAL HEALTH CARE.
   § 8. This act shall take effect immediately.

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