Assembly Actions -
Lowercase Senate Actions - UPPERCASE |
|
---|---|
May 07, 2024 |
print number 3346c |
May 07, 2024 |
amend (t) and recommit to judiciary |
Mar 20, 2024 |
print number 3346b |
Mar 20, 2024 |
amend and recommit to judiciary |
Jan 03, 2024 |
referred to judiciary |
Mar 28, 2023 |
print number 3346a |
Mar 28, 2023 |
amend and recommit to judiciary |
Feb 02, 2023 |
referred to judiciary |
Assembly Bill A3346A
2023-2024 Legislative Session
Establishes "Kyra's Law"
download bill text pdfSponsored By
HEVESI
Current Bill Status - In Assembly 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
Actions
Bill Amendments
co-Sponsors
Gina Sillitti
Inez E. Dickens
Patricia Fahy
Sarah Clark
Pamela J. Hunter
Charles Lavine
Rebecca Seawright
Jo Anne Simon
Chantel Jackson
Jonathan Rivera
David McDonough
Angelo J. Morinello
Fred Thiele
Chris Burdick
Keith Brown
Albert A. Stirpe
Jessica Gonzalez-Rojas
Michael Durso
Steven Otis
Karl Brabenec
Brian Manktelow
Joe Angelino
Vivian Cook
Aileen Gunther
Steve Stern
Kimberly Jean-Pierre
Joe DeStefano
Kenneth Blankenbush
Edward Ra
Michael J. Fitzpatrick
Stacey Pheffer Amato
Khaleel Anderson
John K. Mikulin
Linda Rosenthal
Donna Lupardo
Matthew Simpson
Harvey Epstein
Anna Kelles
Doug Smith
Josh Jensen
Kenny Burgos
Billy Jones
Phil Steck
Stefani Zinerman
Catalina Cruz
Jeffrion Aubry
Brian Cunningham
Stephen Hawley
Amy Paulin
Didi Barrett
Philip Ramos
Eddie Gibbs
Jonathan Jacobson
Jeffrey Dinowitz
Karines Reyes
William Conrad
Jodi Giglio
Brian Maher
Jake Ryan Blumencranz
Alex Bores
2023-A3346 - Details
- Current Committee:
- Assembly Judiciary
- Law Section:
- Domestic Relations Law
- Laws Affected:
- Amd §§240 & 70, add §240-e, Dom Rel L; amd §§1112 & 651, Fam Ct Act
- Versions Introduced in 2021-2022 Legislative Session:
-
A5398
2023-A3346 - Summary
Requires the court to consider a child's health and safety when making a decision regarding child custody and visitation; directs the court to review certain information as it relates to allegations of child abuse, domestic violence and child safety; requires the court to appoint an attorney to represent the child when credible allegations of serious risk to the child's safety have been made.
2023-A3346 - Bill Text download pdf
S T A T E O F N E W Y O R K ________________________________________________________________________ 3346 2023-2024 Regular Sessions I N A S S E M B L Y February 2, 2023 ___________ Introduced by M. of A. HEVESI, SILLITTI, DICKENS, FAHY, CLARK, HUNTER, LAVINE, SEAWRIGHT, SIMON, JACKSON, RIVERA, McDONOUGH, MORINELLO, THIELE, BURDICK, K. BROWN, STIRPE, GONZALEZ-ROJAS, DURSO, OTIS, BRABE- NEC, MANKTELOW, ANGELINO, COOK, GUNTHER, STERN, JEAN-PIERRE, DeSTEFA- NO, BLANKENBUSH, RA, FITZPATRICK, PHEFFER AMATO, ANDERSON, MIKULIN, L. ROSENTHAL, LUPARDO, SIMPSON, EPSTEIN, KELLES, SMITH, JENSEN, BURGOS, JONES, STECK, ZINERMAN, CRUZ, AUBRY, CUNNINGHAM, HAWLEY, PAULIN, BARRETT, RAMOS, GIBBS, JACOBSON, DINOWITZ, REYES, CONRAD, J. A. GIGLIO -- read once and referred to the Committee on Judiciary 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- EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD06231-01-3
A. 3346 2 GATION OR A FAMILY OR HOUSEHOLD MEMBER OF EITHER PARTY IS NECESSARY TO 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 A. 3346 3 THE NEW YORK STATE COALITION AGAINST DOMESTIC VIOLENCE, THE NEW YORK 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. A. 3346 4 (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 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- A. 3346 5 DERLY 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 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 A. 3346 6 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 (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 LETHALITY 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; A. 3346 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. A. 3346 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 A. 3346 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.
co-Sponsors
Gina Sillitti
Inez E. Dickens
Patricia Fahy
Sarah Clark
Pamela J. Hunter
Charles Lavine
Rebecca Seawright
Jo Anne Simon
Chantel Jackson
Jonathan Rivera
David McDonough
Angelo J. Morinello
Fred Thiele
Chris Burdick
Keith Brown
Albert A. Stirpe
Jessica Gonzalez-Rojas
Michael Durso
Steven Otis
Karl Brabenec
Brian Manktelow
Joe Angelino
Vivian Cook
Aileen Gunther
Steve Stern
Kimberly Jean-Pierre
Joe DeStefano
Kenneth Blankenbush
Edward Ra
Michael J. Fitzpatrick
Stacey Pheffer Amato
Khaleel Anderson
John K. Mikulin
Linda Rosenthal
Donna Lupardo
Matthew Simpson
Harvey Epstein
Anna Kelles
Josh Jensen
Kenny Burgos
Billy Jones
Phil Steck
Stefani Zinerman
Catalina Cruz
Jeffrion Aubry
Brian Cunningham
Stephen Hawley
Amy Paulin
Didi Barrett
Philip Ramos
Eddie Gibbs
Jonathan Jacobson
Jeffrey Dinowitz
Karines Reyes
William Conrad
Jodi Giglio
Brian Maher
Jake Ryan Blumencranz
Alex Bores
Jerett Gandolfo
MaryJane Shimsky
John T. McDonald III
Harry B. Bronson
Taylor Darling
Scott H. Bendett
Manny De Los Santos
Carrie Woerner
Jaime R. Williams
Christopher Eachus
J. Gary Pretlow
George Alvarez
Maritza Davila
Michael Benedetto
Doug Smith
Demond Meeks
Tony Simone
Yudelka Tapia
Marianne Buttenschon
Monica P. Wallace
Juan Ardila
Dana Levenberg
Steven Raga
Amanda Septimo
William Colton
Grace Lee
Jeff Gallahan
Edward Flood
David Weprin
2023-A3346A - Details
- Current Committee:
- Assembly Judiciary
- Law Section:
- Domestic Relations Law
- Laws Affected:
- Amd §§240 & 70, add §240-e, Dom Rel L; amd §§1112 & 651, Fam Ct Act
- Versions Introduced in 2021-2022 Legislative Session:
-
A5398
2023-A3346A - Summary
Requires the court to consider a child's health and safety when making a decision regarding child custody and visitation; directs the court to review certain information as it relates to allegations of child abuse, domestic violence and child safety; requires the court to appoint an attorney to represent the child when credible allegations of serious risk to the child's safety have been made.
2023-A3346A - Bill Text download pdf
S T A T E O F N E W Y O R K ________________________________________________________________________ 3346--A 2023-2024 Regular Sessions I N A S S E M B L Y February 2, 2023 ___________ Introduced by M. of A. HEVESI, SILLITTI, DICKENS, FAHY, CLARK, HUNTER, LAVINE, SEAWRIGHT, SIMON, JACKSON, RIVERA, McDONOUGH, MORINELLO, THIELE, BURDICK, K. BROWN, STIRPE, GONZALEZ-ROJAS, DURSO, OTIS, BRABE- NEC, MANKTELOW, ANGELINO, COOK, GUNTHER, STERN, JEAN-PIERRE, DeSTEFA- NO, BLANKENBUSH, RA, FITZPATRICK, PHEFFER AMATO, ANDERSON, MIKULIN, L. ROSENTHAL, LUPARDO, SIMPSON, EPSTEIN, KELLES, SMITH, JENSEN, BURGOS, JONES, STECK, ZINERMAN, CRUZ, AUBRY, CUNNINGHAM, HAWLEY, PAULIN, BARRETT, RAMOS, GIBBS, JACOBSON, DINOWITZ, REYES, CONRAD, J. A. GIGLIO, MAHER, BLUMENCRANZ, BORES, GANDOLFO -- read once and referred to the Committee on Judiciary -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said commit- tee 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 and may be cited as "Kyra's Law". § 2. Subdivision 1 of section 240 of the domestic relations law is amended by adding a new opening paragraph to read as follows: THE LEGISLATURE RECOGNIZES THAT THE SAFETY OF CHILDREN IS OF PARAMOUNT IMPORTANCE AND IS AN INTEGRAL ELEMENT OF THEIR BEST INTERESTS. TO THAT END, THE LEGISLATURE FINDS THAT JUDICIAL DECISIONS REGARDING CUSTODY OF, AND ACCESS TO, CHILDREN MUST ENSURE CHILDREN'S SAFETY AS A THRESHOLD ISSUE. § 3. Paragraphs (a) and (a-1) of subdivision 1 of section 240 of the domestic relations law, paragraph (a) as amended by chapter 567 of the laws of 2015 and paragraph (a-1) as added by chapter 295 of the laws of 2009, are 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) EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD06231-02-3
A. 3346--A 2 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. WHEN THE PARTIES FIRST APPEAR IN COURT, THE COURT SHALL ADVISE THE PARTIES BEFORE PROCEEDING OF THE RIGHT TO BE REPRESENTED BY COUNSEL OF THEIR OWN CHOOSING, OF THE RIGHT TO HAVE AN ADJOURNMENT OF NO LONGER THAN FOURTEEN COURT DAYS TO CONFER WITH COUNSEL, AND THE RIGHT TO OBTAIN COUNSEL FEES AND EXPENSES, PURSUANT TO SECTION TWO HUNDRED THIRTY-SEVEN OF THIS ARTICLE. WHEN APPROPRIATE, THE COURT SHALL ASSIGN COUNSEL TO THE PARTIES, PURSUANT TO ARTICLE TWO OF THE FAMILY COURT ACT. 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, counter- claim or other sworn responsive pleading that the other party has committed an act of domestic violence against the party making the alle- gation or a family or household member of either party, as such family or household member is defined in article eight of the family court act, and such allegations are proven by a preponderance of the evidence, the court must consider the effect of such domestic violence upon the best interests of the child, together with such other facts and circumstances as the court deems relevant in making a direction pursuant to this section and state on the record how such findings, facts and circum- stances factored into the direction. If a parent makes a good faith allegation based on a reasonable belief supported by facts that the child is the victim of child abuse, child neglect, or the effects of domestic violence, and if that parent acts lawfully and in good faith in response to that reasonable belief to protect the child or seek treat- ment for the child, then that parent shall not be deprived of custody, visitation or contact with the child, or restricted in custody, visita- tion 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 arrange- ment 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 dispositional hearing on the petition under article ten or the permanency hearing under article ten-A of the family court act and, upon referral from the supreme court, the hearing to resolve the matter of custody or visitation in the proceeding pending in the supreme court; provided however, the court must determine custody or visitation in accordance with the terms of this section. An order directing the payment of child support shall contain the social security numbers of the named parties. In all cases there shall be no prima facie right to the custody of the child in either parent. Such direction shall make provision for child support out of the proper- A. 3346--A 3 ty of either or both parents. The court shall make its award for child support pursuant to subdivision one-b of this section. Such direction may provide for reasonable visitation rights to the maternal and/or paternal grandparents of any child of the parties. Such direction as it applies to rights of visitation with a child remanded or placed in the care of a person, official, agency or institution pursuant to article ten of the family court act, or pursuant to an instrument approved under section three hundred fifty-eight-a of the social services law, shall be enforceable pursuant to part eight of article ten of the family court act and sections three hundred fifty-eight-a and three hundred eighty- four-a of the social services law and other applicable provisions of law against any person having care and custody, or temporary care and custo- dy, of the child. Notwithstanding any other provision of law, any writ- ten application or motion to the court for the establishment, modifica- tion or enforcement of a child support obligation for persons not in receipt of public assistance and care must contain either a request for child support enforcement services which would authorize the collection of the support obligation by the immediate issuance of an income execution for support enforcement as provided for by this chapter, completed in the manner specified in section one hundred eleven-g of the social services law; or a statement that the applicant has applied for or is in receipt of such services; or a statement that the applicant knows of the availability of such services, has declined them at this time and where support enforcement services pursuant to section one hundred eleven-g of the social services law have been declined that the applicant understands that an income deduction order may be issued pursuant to subdivision (c) of section fifty-two hundred forty-two of the civil practice law and rules without other child support enforcement services and that payment of an administrative fee may be required. The court shall provide a copy of any such request for child support enforcement services to the support collection unit of the appropriate social services district any time it directs payments to be made to such support collection unit. Additionally, the copy of any such request shall be accompanied by the name, address and social security number of the parties; the date and place of the parties' marriage; the name and date of birth of the child or children; and the name and address of the employers and income payors of the party from whom child support is sought or from the party ordered to pay child support to the other party. Such direction may require the payment of a sum or sums of money either directly to the custodial parent or to third persons for goods or services furnished for such child, or for both payments to the custodial parent and to such third persons; provided, however, that unless the party seeking or receiving child support has applied for or is receiving such services, the court shall not direct such payments to be made to the support collection unit, as established in section one hundred eleven-h of the social services law. Every order directing the payment of support shall require that if either parent currently, or at any time in the future, has health insurance benefits available that may be extended or obtained to cover the child, such parent is required to exercise the option of additional coverage in favor of such child and 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. (a-1)(1) Permanent and initial temporary orders of custody or visita- tion. Prior to the issuance of any permanent or initial temporary order of custody or visitation, the court shall conduct a review of ANY FIND- A. 3346--A 4 INGS OR ALLEGATIONS OF CHILD ABUSE, DOMESTIC VIOLENCE, HEIGHTENED DANGER AND RISK OF LETHALITY, AND the decisions and reports listed in subpara- graph three of this paragraph. (2) Successive temporary orders of custody or visitation. Prior to the issuance of any successive temporary order of custody or visitation, the court shall conduct a review of ANY FINDINGS OR ALLEGATIONS OF CHILD ABUSE, DOMESTIC VIOLENCE, HEIGHTENED DANGER AND RISK OF LETHALITY, AND the decisions and reports listed in subparagraph three of this para- graph, unless such a review has been conducted within ninety days prior to the issuance of such order. (3) [Decisions] FINDINGS AND ALLEGATIONS OF CHILD ABUSE, DOMESTIC VIOLENCE, HEIGHTENED DANGER AND RISK OF LETHALITY, AND THE DECISIONS and reports for review. The court shall conduct a review of the following: (i) related decisions in court proceedings initiated pursuant to arti- cle ten of the family court act, and all warrants issued under the fami- ly court act; [and] (ii) WHETHER EITHER PARTY TO THE ACTION ALLEGES THAT THE OTHER PARTY TO THE PROCEEDING HAS COMMITTED, OR HAS THREATENED TO COMMIT, AN ACT OF CHILD ABUSE AGAINST SUCH CHILD, OR HAS COMMITTED, OR HAS THREATENED TO COMMIT, AN ACT OF DOMESTIC VIOLENCE AGAINST THE PARTY MAKING THE ALLEGA- TION 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; (III) A HISTORY OF DOMESTIC VIOLENCE, CHILD ABUSE OR NEGLECT, CHILD SEXUAL ABUSE OR INCIDENTS INVOLVING HARM, OR RISK OF HARM, TO A CHILD; (IV) POLICE REPORTS, INCLUDING DOMESTIC VIOLENCE INCIDENT REPORTS, REPORTING INCIDENTS INVOLVING CHILD ABUSE OR DOMESTIC VIOLENCE; (V) FINDINGS AND ALLEGATIONS OF CHILD ABUSE, DOMESTIC VIOLENCE, HEIGHTENED DANGER AND RISK OF LETHALITY, INCLUDING BUT NOT LIMITED TO: (A) AN INCREASE IN FREQUENCY OR SEVERITY OF DOMESTIC VIOLENCE; (B) USE OR THREATS TO USE A WEAPON OR DANGEROUS INSTRUMENT, OR POSSESSION OF OR ACCESS TO FIREARMS; (C) THREATS TO HARM OR KILL THE CHILD, THE OTHER PARTY, THE OTHER PARTY'S CHILDREN, SELF OR OTHERS, OR COMPANION ANIMALS; (D) SEXUAL ABUSE OR COERCED SEXUAL ACTIVITY OF THE CHILD OR OTHER PARTY; (E) UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE IMAGE, PURSU- ANT TO SECTION 245.15 OF THE PENAL LAW; (F) INCIDENTS INVOLVING OBSTRUCTION OF BREATHING OR STRANGULATION; (G) A PARTY'S PATTERN OF ALCOHOL OR SUBSTANCE ABUSE THAT PLACES THE CHILD AT HEIGHTENED DANGER OR RISK OF LETHALITY; (H) INCIDENTS OF VIOLENCE DURING PREGNANCY; (I) INCIDENTS OF STALKING OR CYBER STALKING; AND (J) COERCIVE CONTROL, AS DEFINED IN PARAGRAPH (D) OF SUBDIVISION ONE OF SECTION TWO HUNDRED FORTY-E OF THIS ARTICLE; AND (VI) reports of the statewide computerized registry of orders of protection established and maintained pursuant to section two hundred twenty-one-a of the executive law, and reports of the sex offender registry established and maintained pursuant to section one hundred sixty-eight-b of the correction law. (4) CONDITIONS OF CUSTODY OR VISITATION. IF THE COURT DETERMINES THAT LIMITATIONS OR RESTRICTIONS OF A PARTY'S CUSTODY, VISITATION OR CONTACT WITH THE CHILD ARE NECESSARY PURSUANT TO A REVIEW OF ANY FINDINGS OR ALLEGATIONS OF CHILD ABUSE, DOMESTIC VIOLENCE, HEIGHTENED DANGER AND RISK OF LETHALITY, AND THE DECISIONS AND REPORTS LISTED IN SUBPARAGRAPH THREE OF THIS PARAGRAPH, THE COURT SHALL SET FORTH CONDITIONS OF CUSTODY OR VISITATION IN A TEMPORARY ORDER OF CUSTODY OR VISITATION THAT PRIOR- A. 3346--A 5 ITIZES THE AVOIDANCE OF SIGNIFICANT RISK TO THE CHILD'S SAFETY. WHEN THE COURT DECIDES TO ISSUE OR TO NOT ISSUE SUCH TEMPORARY ORDER, THE PARTIES SHALL BE NOTIFIED OF THEIR RIGHT TO APPEAL, PURSUANT TO ARTICLE ELEVEN OF THE FAMILY COURT ACT. (I) THERE SHALL BE A REBUTTABLE PRESUMPTION THAT THE COURT SHALL NOT AWARD, IN A TEMPORARY ORDER FOR CUSTODY OR VISITATION, SOLE OR JOINT CUSTODY OR UNSUPERVISED VISITATION TO A PARTY WHO POSES A SIGNIFICANT RISK TO THE CHILD'S SAFETY. (II) THE COURT SHALL STATE ON THE RECORD, AND IN WRITING, ANY FINDINGS OR ALLEGATIONS OF CHILD ABUSE, DOMESTIC VIOLENCE, HEIGHTENED DANGER AND RISK OF LETHALITY, AND ANY DECISIONS AND REPORTS 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. (III) 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 A MODIFICATION OF A TEMPORARY ORDER AS IS OTHERWISE PROVIDED BY LAW. (5) Notifying counsel and issuing orders. Upon consideration of deci- sions pursuant to article ten of the family court act, and registry reports and notifying counsel involved in the proceeding, or in the event of a self-represented party, notifying such party of the results thereof, including any court appointed attorney for children, the court may issue a temporary, successive temporary or final order of custody or visitation. [(5)] (6) Temporary emergency order. 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 custody or visitation in the event that it is not possible to timely review decisions and reports on regis- tries as required pursuant to subparagraph three of this paragraph. [(6)] (7) After issuing a temporary emergency order. After issuing a temporary emergency order of custody or visitation, the court shall conduct reviews of the decisions and reports on registries as required pursuant to subparagraph three of this paragraph within twenty-four hours of the issuance of such temporary emergency order. Should such twenty-four hour period fall on a day when court is not in session, then the required reviews shall take place the next day the court is in session. Upon reviewing decisions and reports the court shall notify associated counsel, self-represented parties and attorneys for children pursuant to subparagraph [four] FIVE of this paragraph and may issue temporary or permanent custody or visitation orders. [(7)] (8) Feasibility study. The commissioner of the office of chil- dren and family services, in conjunction with the office of court admin- istration, is hereby authorized and directed to examine, study, evaluate and make recommendations concerning the feasibility of the utilization of computers in courts which are connected to the statewide central register of child abuse and maltreatment established and maintained pursuant to section four hundred twenty-two of the social services law, as a means of providing courts with information regarding parties requesting orders of custody or visitation. Such commissioner shall make a preliminary report to the governor and the legislature of findings, conclusions and recommendations not later than January first, two thou- sand nine, and a final report of findings, conclusions and recommenda- tions not later than June first, two thousand nine, and shall submit with the reports such legislative proposals as are deemed necessary to implement the commissioner's recommendations. A. 3346--A 6 § 4. The domestic relations law is amended by adding a new section 240-e to read as follows: § 240-E. CUSTODY AND VISITATION; SAFETY OF THE CHILD. 1. FOR THE PURPOSES OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING 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. (D) "COERCIVE CONTROL" MEANS A PATTERN OF BEHAVIOR THAT IN PURPOSE OR EFFECT UNREASONABLY RESTRICTS A PARENT'S SAFETY OR AUTONOMY THROUGH IMPLICIT OR EXPLICIT THREATS, OR INTIMIDATION, OR BY COMPELLING COMPLI- ANCE. THIS CONDUCT INCLUDES, BUT IS NOT LIMITED TO: (I) ISOLATING THE OTHER PARENT FROM FRIENDS, FAMILY OR OTHER SOURCES OF SUPPORT; (II) INTERFERING WITH THE OTHER PARENT'S FREEDOM OF MOVEMENT; (III) DEPRIVING THE OTHER PARENT OF BASIC NECESSITIES SUCH AS FOOD, SLEEP, CLOTHING, HOUSING, MEDICATION OR MEDICAL CARE; (IV) CONTROLLING, REGULATING, SURVEILLING OR MONITORING THE OTHER PARENT'S MOVEMENTS, COMMUNICATIONS, DAILY BEHAVIOR, APPEARANCE, FINANCES, ECONOMIC RESOURCES OR ACCESS TO SERVICES; (V) COMPELLING THE OTHER PARENT BY FORCE, THREAT OF FORCE OR INTIM- IDATION, INCLUDING BUT NOT LIMITED TO THREATS BASED ON ACTUAL OR SUSPECTED IMMIGRATION STATUS, TO ENGAGE IN CONDUCT FROM WHICH THE OTHER PARENT HAS A RIGHT TO ABSTAIN OR TO ABSTAIN FROM CONDUCT IN WHICH THE OTHER PARENT HAS A RIGHT TO ENGAGE; (VI) INTERFERING WITH THE OTHER PARENT'S EDUCATION OR EMPLOYMENT; (VII) FORCING OR COMPELLING THE OTHER PARENT TO PERFORM SEX ACTS, OR THREATS OF A SEXUAL NATURE, INCLUDING BUT NOT LIMITED TO THREATENED ACTS OF SEXUAL CONDUCT, THREATS BASED ON A PERSON'S SEXUALITY OR THREATS TO RELEASE INTIMATE IMAGES; OR (VIII) CLEANING, ACCESSING, DISPLAYING, USING OR WEARING A FIREARM OR OTHER DANGEROUS WEAPON IN AN INTIMIDATING OR THREATENING MANNER. 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 SAFETY OF SUCH CHILD WHEN MAKING SUCH DETER- MINATIONS. ONLY COMPETENT, MATERIAL, AND RELEVANT EVIDENCE MAY BE ADMIT- TED, PURSUANT TO ARTICLE TEN OF THE FAMILY COURT ACT. PROMOTING THE SAFETY OF A CHILD SHALL INCLUDE PREVENTING DIRECT PHYSICAL AND/OR EMOTIONAL HARM TO SUCH CHILD. SUCH ASSESSMENT SHALL INCLUDE, BUT NOT BE LIMITED TO: (A) WHETHER EITHER PARTY IS MORE LIKELY TO PROTECT THE SAFETY OF THE CHILD, AND WHETHER EITHER PARTY POSES A SIGNIFICANT RISK TO THE SAFETY OF THE CHILD; (B) WHETHER SUCH ORDER WOULD DISRUPT CONTINUITY IN THE CHILD'S HOME, ENVIRONMENT OR EXISTING PRIMARY CARETAKING RELATIONSHIPS; (C) A HISTORY OF DOMESTIC VIOLENCE, CHILD ABUSE OR NEGLECT, CHILD SEXUAL ABUSE OR INCIDENTS INVOLVING HARM, OR RISK OF HARM, TO A CHILD; A. 3346--A 7 (D) ANY FINDINGS OR ALLEGATIONS OF CHILD ABUSE, DOMESTIC VIOLENCE, HEIGHTENED DANGER AND RISK OF LETHALITY, INCLUDING BUT NOT LIMITED TO: (I) AN INCREASE IN FREQUENCY OR SEVERITY OF DOMESTIC VIOLENCE; (II) USE OR THREATS TO USE A WEAPON OR DANGEROUS INSTRUMENT, OR POSSESSION OF OR ACCESS TO FIREARMS; (III) THREATS TO HARM OR KILL THE CHILD, THE OTHER PARENT, THAT PARENT'S CHILDREN, SELF OR OTHERS, OR COMPANION ANIMALS; (IV) SEXUAL ABUSE OR COERCED SEXUAL ACTIVITY OF THE CHILD OR OTHER PARENT; (V) UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE IMAGE, PURSU- ANT TO SECTION 245.15 OF THE PENAL LAW; (VI) INCIDENTS INVOLVING OBSTRUCTION OF BREATHING OR STRANGULATION; (VII) A PARTY'S PATTERN OF ALCOHOL OR SUBSTANCE ABUSE THAT PLACES THE CHILD AT HEIGHTENED DANGER OR RISK OF LETHALITY; (VIII) INCIDENTS OF VIOLENCE DURING PREGNANCY; (IX) INCIDENTS OF STALKING OR CYBER STALKING; AND (X) COERCIVE CONTROL, AS DEFINED IN PARAGRAPH (D) OF SUBDIVISION ONE OF THIS SECTION; (E) WHETHER EITHER PARTY HAS BEEN FOUND TO HAVE COMMITTED AN ACT WHICH WOULD CONSTITUTE DISORDERLY CONDUCT, UNLAWFUL DISSEMINATION OR PUBLICA- TION 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, STALKING 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 BREATH- ING OR BLOOD CIRCULATION, STRANGULATION IN THE SECOND DEGREE, STRANGULA- TION 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 SUBDIVISIONS 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; (F) WHETHER EITHER PARTY HAS USED OR THREATENED TO USE A DANGEROUS INSTRUMENT TO HARM THE OTHER PARTY, CHILD, OR A THIRD PARTY, INCLUDING A FIREARM, EXCEPT IN INCIDENTS INVOLVING SELF-DEFENSE, OR HAS UNLAWFULLY POSSESSED A WEAPON OR FIREARM, OR HAS BEEN CONVICTED OF CRIMINAL POSSESSION OF A WEAPON OR CRIMINAL USE OF A FIREARM PURSUANT TO ARTICLE TWO HUNDRED SIXTY-FIVE OF THE PENAL LAW, OR IS OR HAS BEEN SUBJECT TO AN EXTREME RISK PROTECTION ORDER, PURSUANT TO ARTICLE SIXTY-THREE-A OF THE CIVIL PRACTICE LAW AND RULES; AND (G) WHICH PARTY HAS BEEN ATTENDING TO THE DAILY PHYSICAL, EMOTIONAL, DEVELOPMENTAL, EDUCATIONAL, AND SPECIAL NEEDS OF THE CHILD. 3. THERE SHALL BE A REBUTTABLE PRESUMPTION THAT CUSTODY OR VISITATION SHALL NOT BE AWARDED TO A PARTY WHO JEOPARDIZES THE SAFETY OF THE CHILD. 4. (A) IN ANY PROCEEDING FOR CUSTODY OR VISITATION WHERE A PARTY CRED- IBLY ALLEGES DOMESTIC VIOLENCE OR CHILD ABUSE, ALLEGATIONS REGARDING PARENTAL ALIENATION OR FRIENDLY PARENT SHALL NOT BE ADMISSIBLE AGAINST THE PARTY THAT HAS CREDIBLY ALLEGED DOMESTIC VIOLENCE OR CHILD ABUSE, NOR SHALL ALLEGATIONS OF PARENTAL ALIENATION OR FRIENDLY PARENT BE CONSIDERED IN ASSESSING A CHILD'S BEST INTERESTS. A. 3346--A 8 (B) THE COURT SHALL NOT PRESUME THAT A CHILD'S RELUCTANCE TO INTERACT WITH A PARTY WAS CAUSED BY THE OTHER PARTY, NOR SHALL A PARTY BE GIVEN CUSTODY FOR THE PURPOSE OF IMPROVING A RELATIONSHIP BETWEEN THE CHILD AND SUCH PARTY OR IN AN ATTEMPT TO ADDRESS THE CHILD'S RELUCTANCE TO INTERACT WITH SUCH PARTY. (C) NO PSYCHOLOGICAL OR MEDICAL THEORIES OR LABELS RELATED TO A CHILD'S RELUCTANCE TO INTERACT 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 TREATMENT PROGRAM INTENDED TO REUNITE A CHILD WITH A PARTY FOR WHOM THAT CHILD IS ESTRANGED SHALL BE ORDERED BY THE COURT WITHOUT CONSENT OF BOTH PARTIES AND THE ATTORNEY FOR THE CHILD AND SCIENTIF- ICALLY VALID AND GENERALLY ACCEPTED PROOF OF THE EFFECTIVENESS AND THER- APEUTIC VALUE OF SUCH PROGRAM. 5. IN CASES INVOLVING DOMESTIC VIOLENCE, CHILD ABUSE OR NEGLECT, OR A HISTORY OF COERCIVE CONTROL, OR WHERE THE PARTIES CANNOT EFFECTIVELY COMMUNICATE, COOPERATE WITH EACH OTHER AND MAKE JOINT DECISIONS CONCERN- ING THE CHILD, OR IN CASES WHERE THERE IS AN EXISTING OR PRIOR FULL STAY AWAY ORDER OF PROTECTION AGAINST A PARTY OR WHEN THERE IS AN EXISTING TEMPORARY ORDER OF PROTECTION ENTERED EX PARTE, NO ORDER OF JOINT CUSTO- DY SHALL BE MADE WITHOUT THE CONSENT OF BOTH PARTIES. THE COURT SHALL NOT SUGGEST THAT IN ORDER TO RETAIN CUSTODY, A PARTY MUST AGREE TO JOINT CUSTODY. THE COURT SHALL NOT USE A PARTY'S REFUSAL TO CONSENT TO JOINT CUSTODY AGAINST SUCH PARTY WHEN MAKING ITS FINAL CUSTODY OR VISITATION DETERMINATION. 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 THIRTY HOURS OF INITIAL TRAINING FOR THE HANDLING OF SUCH CASES. THE OFFICE FOR THE PREVENTION OF DOMESTIC VIOLENCE SHALL, WITHIN AMOUNTS APPROPRIATED FOR SUCH PURPOSE, CONTRACT EXCLUSIVELY WITH THE ORGANIZATION DESIGNATED BY THE FEDERAL DEPARTMENT OF HEALTH AND HUMAN SERVICES TO COORDINATE STATEWIDE IMPROVEMENTS WITHIN LOCAL COMMUNITIES, SOCIAL SERVICES SYSTEMS, AND PROGRAMMING REGARDING THE PREVENTION AND INTERVENTION OF DOMESTIC VIOLENCE IN NEW YORK STATE 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 PARTNER- SHIP, 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 TRAINING 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; COER- CIVE CONTROL; EXPLOITATION; ABUSE; THREATS; CONTROLLING AND HARASSING A. 3346--A 9 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; UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE IMAGE; 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; (6) HOW TO ASSESS FINDINGS OR ALLEGATIONS OF CHILD ABUSE, DOMESTIC VIOLENCE, HEIGHTENED DANGER AND RISK OF LETHALITY TO A CHILD'S SAFETY, PURSUANT TO PARAGRAPH (D) OF SUBDIVISION TWO OF THIS SECTION 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 AND THE DANGER OF BASING CHILD CUSTODY DECISIONS ON CLAIMS THAT A CHILD'S DEFICIENT OR NEGATIVE RELATIONSHIP WITH A PARENT IS CAUSED BY THE OTHER PARENT; (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. § 5. 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 THE COURT ISSUES ANY INITIAL OR SUCCESSIVE TEMPORARY ORDER OF CUSTODY OR VISITATION OR PERMANENT ORDER OF CUSTODY OR VISITATION, THE COURT SHALL CONDUCT A REVIEW OF ANY FINDINGS OR ALLEGATIONS OF CHILD ABUSE, DOMESTIC VIOLENCE, HEIGHTENED DANGER AND RISK OF LETHALITY, AND THE DECISIONS AND REPORTS LISTED IN SUBPARAGRAPH THREE OF PARAGRAPH (A-1) OF SUBDIVISION ONE OF SECTION TWO HUNDRED FORTY OF THIS CHAPTER, UNLESS SUCH A REVIEW HAS BEEN CONDUCTED WITHIN NINETY DAYS PRIOR TO THE ISSUANCE OF SUCH ORDER. A. 3346--A 10 (II) WHEN ISSUING ANY TEMPORARY ORDER OF CUSTODY OR VISITATION, THE COURT SHALL STATE ON THE RECORD, AND IN WRITING, ANY FINDINGS OR ALLEGA- TIONS OF CHILD ABUSE, DOMESTIC VIOLENCE, HEIGHTENED DANGER AND RISK OF LETHALITY, AND THE PRIOR DECISIONS AND REPORTS CONSIDERED IN RENDERING ITS DECISION AND THE REASONS FOR ANY LIMITATIONS OR RESTRICTIONS PLACED ON A PARTY'S CUSTODY, VISITATION OR CONTACT WITH SUCH CHILD. ANY PARTY TO A PROCEEDING FOR A TEMPORARY ORDER PURSUANT TO THIS CHAPTER SHALL HAVE A RIGHT TO APPEAL TO THE APPROPRIATE APPELLATE DIVISION, PURSUANT TO ARTICLE ELEVEN OF THE FAMILY COURT ACT. (III) 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 SAFETY OF SUCH CHILD WHEN MAKING SUCH DETERMINATIONS. ONLY COMPETENT, MATERIAL AND RELEVANT EVIDENCE MAY BE ADMITTED, PURSUANT TO ARTICLE TEN OF THE FAMILY COURT ACT. PROMOTING THE SAFETY OF A CHILD SHALL INCLUDE PREVENTING DIRECT PHYSICAL AND/OR EMOTIONAL HARM TO SUCH CHILD AND SHALL BE ASSESSED BY CONSIDERING ANY FINDINGS OR ALLEGATIONS OF CHILD ABUSE, DOMESTIC VIOLENCE, HEIGHTENED DANGER AND RISK OF LETHALITY, AND DECISIONS AND REPORTS IDENTIFIED IN SUBPARAGRAPH THREE OF PARAGRAPH (A-1) OF SUBDIVISION ONE OF SECTION TWO HUNDRED FORTY OF THIS CHAPTER. (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 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. (V) IN CASES INVOLVING DOMESTIC VIOLENCE, CHILD ABUSE OR NEGLECT, OR A HISTORY OF COERCIVE CONTROL, OR WHERE THE PARTIES CANNOT EFFECTIVELY COMMUNICATE, COOPERATE WITH EACH OTHER AND MAKE JOINT DECISIONS CONCERN- ING THE CHILD, OR IN CASES WHERE THERE IS AN EXISTING OR PRIOR FULL STAY AWAY ORDER OF PROTECTION AGAINST A PARTY OR WHEN THERE IS AN EXISTING TEMPORARY ORDER OF PROTECTION ENTERED EX PARTE, NO ORDER OF JOINT CUSTO- DY SHALL BE MADE WITHOUT THE CONSENT OF BOTH PARTIES. THE COURT SHALL NOT SUGGEST THAT IN ORDER TO RETAIN CUSTODY, A PARTY MUST AGREE TO JOINT CUSTODY. THE COURT SHALL NOT USE A PARTY'S REFUSAL TO CONSENT TO JOINT CUSTODY AGAINST SUCH PARTY WHEN MAKING ITS FINAL CUSTODY OR VISITATION DETERMINATION, AS DESCRIBED IN SUBDIVISION FIVE OF SECTION TWO HUNDRED FORTY-E OF THIS CHAPTER. (VI) 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 PARAGRAPH A OF SUBDIVISION SIX OF SECTION TWO HUNDRED FORTY-E 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 PARAGRAPH (B) OF SUBDIVISION SIX OF SECTION TWO HUNDRED FORTY-E OF THIS CHAPTER. § 6. Subdivision (b) of section 651 of the family court act as amended by chapter 657 of the laws of 2003, is amended to read as follows: (b) (I) When initiated in the family court, the family court has jurisdiction to determine, in accordance with subdivision one of section two hundred forty of the domestic relations law and with the same powers possessed by the supreme court in addition to its own powers, habeas corpus proceedings and proceedings brought by petition and order to show cause, for the determination of the custody or visitation of minors, A. 3346--A 11 including applications by a grandparent or grandparents for visitation or custody rights pursuant to section seventy-two or two hundred forty of the domestic relations law. (II) THE FAMILY COURT SHALL, IN COLLABORATION WITH THE OFFICE FOR THE PREVENTION OF DOMESTIC VIOLENCE, UPDATE ITS PETITION USED BY PARTIES TO INITIATE CHILD CUSTODY AND VISITATION PROCEEDINGS IN A MANNER TO PERMIT PETITIONERS TO IDENTIFY FINDINGS OR ALLEGATIONS OF CHILD ABUSE, DOMESTIC VIOLENCE, HEIGHTENED DANGER AND RISK OF LETHALITY TO A CHILD'S SAFETY. § 7. Subdivision (e) of section 651 of the family court act, as amended by chapter 295 of the laws of 2009, is amended to read as follows: (e) THE LEGISLATURE RECOGNIZES THAT THE SAFETY OF CHILDREN IS OF PARA- MOUNT IMPORTANCE AND IS AN INTEGRAL ELEMENT OF THEIR BEST INTERESTS. TO THAT END, THE LEGISLATURE FINDS THAT JUDICIAL DECISIONS REGARDING CUSTO- DY OF, AND ACCESS TO, CHILDREN MUST ENSURE CHILDREN'S SAFETY AS A THRES- HOLD ISSUE. 1. Permanent and initial temporary orders of custody or visitation. Prior to the issuance of any permanent or initial temporary order of custody or visitation, the court shall conduct a review of ANY FINDINGS OR ALLEGATIONS OF CHILD ABUSE, DOMESTIC VIOLENCE, HEIGHTENED DANGER AND RISK OF LETHALITY TO A CHILD'S SAFETY, AND the decisions and reports listed in paragraph three of this subdivision. WHEN THE PARTIES FIRST APPEAR IN COURT, THE COURT SHALL ADVISE THE PARTIES BEFORE PROCEEDING OF THE RIGHT TO BE REPRESENTED BY COUNSEL OF THEIR OWN CHOOSING, OF THE RIGHT TO HAVE AN ADJOURNMENT OF NO LONGER THAN FOURTEEN COURT DAYS TO CONFER WITH COUNSEL, AND THE RIGHT TO OBTAIN COUNSEL FEES AND EXPENSES, PURSUANT TO SECTION TWO HUNDRED THIRTY-SEVEN OF THE DOMESTIC RELATIONS LAW. WHEN APPROPRIATE, THE COURT SHALL ASSIGN COUNSEL TO THE PARTIES, PURSUANT TO ARTICLE TWO OF THIS CHAPTER. 2. Successive temporary orders of custody or visitation. Prior to the issuance of any successive temporary order of custody or visitation, the court shall conduct a review of ANY FINDINGS OR ALLEGATIONS OF CHILD ABUSE, DOMESTIC VIOLENCE, HEIGHTENED DANGER AND RISK OF LETHALITY, AND the decisions and reports listed in paragraph three of this subdivision, unless such a review has been conducted within ninety days prior to the issuance of such order. 3. [Decisions] FINDINGS AND ALLEGATIONS OF CHILD ABUSE, DOMESTIC VIOLENCE, HEIGHTENED DANGER AND RISK OF LETHALITY, AND THE DECISIONS and reports for review. The court shall conduct a review of the following: (i) related decisions in court proceedings initiated pursuant to arti- cle ten of this act, and all warrants issued under this act; [and] (ii) WHETHER EITHER PARTY TO THE ACTION ALLEGES THAT THE OTHER PARTY TO THE PROCEEDING HAS COMMITTED, OR HAS THREATENED TO COMMIT, AN ACT OF CHILD ABUSE AGAINST SUCH CHILD, OR HAS COMMITTED, OR HAS THREATENED TO COMMIT, AN ACT OF DOMESTIC VIOLENCE AGAINST THE PARTY MAKING THE ALLEGA- TION OR A FAMILY OR HOUSEHOLD MEMBER OF EITHER PARTY, AS SUCH FAMILY OR HOUSEHOLD MEMBER IS DEFINED IN ARTICLE EIGHT OF THIS CHAPTER; (III) A HISTORY OF DOMESTIC VIOLENCE, CHILD ABUSE OR NEGLECT, CHILD SEXUAL ABUSE OR INCIDENTS INVOLVING HARM, OR RISK OF HARM, TO A CHILD; (IV) POLICE REPORTS, INCLUDING DOMESTIC VIOLENCE INCIDENT REPORTS, REPORTING INCIDENTS INVOLVING CHILD ABUSE OR DOMESTIC VIOLENCE; (V) FINDINGS AND ALLEGATIONS OF CHILD ABUSE, DOMESTIC VIOLENCE, HEIGHTENED DANGER AND RISK OF LETHALITY, INCLUDING BUT NOT LIMITED TO: (A) AN INCREASE IN FREQUENCY OR SEVERITY OF DOMESTIC VIOLENCE; (B) USE OR THREATS TO USE A WEAPON OR DANGEROUS INSTRUMENT, OR POSSESSION OF OR ACCESS TO FIREARMS; A. 3346--A 12 (C) THREATS TO HARM OR KILL THE CHILD, THE OTHER PARENT, THAT PARENT'S CHILDREN, SELF OR OTHERS, OR COMPANION ANIMALS; (D) SEXUAL ABUSE OR COERCED SEXUAL ACTIVITY OF THE CHILD OR OTHER PARENT; (E) UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE IMAGE, PURSU- ANT TO SECTION 245.15 OF THE PENAL LAW; (F) INCIDENTS INVOLVING OBSTRUCTION OF BREATHING OR STRANGULATION; (G) A PARTY'S PATTERN OF ALCOHOL OR SUBSTANCE ABUSE THAT PLACES THE CHILD AT HEIGHTENED DANGER OR RISK OF LETHALITY; (H) INCIDENTS OF VIOLENCE DURING PREGNANCY; (I) INCIDENTS OF STALKING OR CYBER STALKING; AND (J) COERCIVE CONTROL, AS DEFINED IN PARAGRAPH (D) OF SUBDIVISION ONE OF SECTION TWO HUNDRED FORTY-E OF THE DOMESTIC RELATIONS LAW; AND (VI) reports of the statewide computerized registry of orders of protection established and maintained pursuant to section two hundred twenty-one-a of the executive law, and reports of the sex offender registry established and maintained pursuant to section one hundred sixty-eight-b of the correction law. 4. APPEAL. SUCH PERMANENT AND TEMPORARY ORDERS OF CUSTODY OR VISITA- TION 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. A PREFERENCE IN ACCORDANCE WITH RULE FIFTY-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. A NOTICE TO APPEAL UNDER THIS SUBDIVISION MUST BE TAKEN NO LATER THAN TWENTY COURT DAYS AFTER THE SERVICE BY A PARTY OR THE CHILD'S ATTORNEY UPON THE APPELLANT OF ANY ORDER FROM WHICH THE APPEAL IS TAKEN, OR TWENTY COURT DAYS FROM RECEIPT OF THE ORDER BY THE APPEL- LANT IN COURT, WHICHEVER IS EARLIEST. EXCEPT FOR GOOD CAUSE SHOWN, THE APPEAL HEARING SHALL BE EXPEDITED AND HELD NO LATER THAN NINETY COURT DAYS FROM THE NOTICE TO APPEAL. WHENEVER AN ATTORNEY HAS BEEN APPOINTED TO REPRESENT A PARTY IN A PROCEEDING DESCRIBED IN THIS PARAGRAPH, THE APPOINTMENT SHALL CONTINUE WITHOUT FURTHER COURT ORDER OR APPOINTMENT, PURSUANT TO SUBDIVISION (B) OF SECTION ELEVEN HUNDRED TWENTY OF THIS CHAPTER. 5. Notifying counsel and issuing orders. Upon consideration of deci- sions pursuant to article ten of this act, and registry reports and notifying counsel involved in the proceeding, or in the event of a self- represented party, notifying such party of the results thereof, includ- ing any court appointed attorney for children, the court may issue a temporary, successive temporary or final order of custody or visitation. [5.] 6. Temporary emergency order. 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 custody or visitation in the event that it is not possible to timely review decisions and reports on registries as required pursuant to paragraph three of this subdivision. [6.] 7. After issuing a temporary emergency order. After issuing a temporary emergency order of custody or visitation, the court shall conduct reviews of the decisions and reports on registries as required pursuant to paragraph three of this subdivision within twenty-four hours of the issuance of such temporary emergency order. Should such twenty- four hour period fall on a day when court is not in session, then the A. 3346--A 13 required reviews shall take place the next day the court is in session. Upon reviewing decisions and reports the court shall notify associated counsel, self-represented parties and attorneys for children pursuant to paragraph [four] FIVE of this subdivision and may issue temporary or permanent custody or visitation orders. [7.] 8. Feasibility study. The commissioner of the office of children and family services, in conjunction with the office of court adminis- tration, is hereby authorized and directed to examine, study, evaluate and make recommendations concerning the feasibility of the utilization of computers in family courts which are connected to the statewide central register of child abuse and maltreatment established and main- tained pursuant to section four hundred twenty-two of the social services law, as a means of providing family courts with information regarding parties requesting orders of custody or visitation. Such commissioner shall make a preliminary report to the governor and the legislature of findings, conclusions and recommendations not later than January thirty-first, two thousand nine, and a final report of findings, conclusions and recommendations not later than June first, two thousand nine, and shall submit with the reports such legislative proposals as are deemed necessary to implement the commissioner's recommendations. § 8. 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 PURSUANT TO SECTION SIX HUNDRED FIFTY-ONE 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] FIFTY-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. § 9. This act shall take effect on the one hundred twentieth day after it shall have become a law. Effective immediately, the addition, amend- ment and/or repeal of any rule or regulation necessary for the implemen- tation of this act on its effective date are authorized to be made and completed on or before such effective date.
co-Sponsors
Gina Sillitti
Inez E. Dickens
Patricia Fahy
Sarah Clark
Pamela J. Hunter
Charles Lavine
Rebecca Seawright
Jo Anne Simon
Chantel Jackson
Jonathan Rivera
David McDonough
Angelo J. Morinello
Fred Thiele
Chris Burdick
Keith Brown
Albert A. Stirpe
Jessica Gonzalez-Rojas
Michael Durso
Steven Otis
Karl Brabenec
Brian Manktelow
Joe Angelino
Vivian Cook
Aileen Gunther
Steve Stern
Kimberly Jean-Pierre
Joe DeStefano
Kenneth Blankenbush
Edward Ra
Michael J. Fitzpatrick
Stacey Pheffer Amato
Khaleel Anderson
John K. Mikulin
Linda Rosenthal
Donna Lupardo
Matthew Simpson
Harvey Epstein
Anna Kelles
Josh Jensen
Kenny Burgos
Billy Jones
Phil Steck
Stefani Zinerman
Catalina Cruz
Jeffrion Aubry
Brian Cunningham
Stephen Hawley
Amy Paulin
Didi Barrett
Philip Ramos
Eddie Gibbs
Jonathan Jacobson
Jeffrey Dinowitz
Karines Reyes
William Conrad
Jodi Giglio
Brian Maher
Jake Ryan Blumencranz
Alex Bores
Jerett Gandolfo
MaryJane Shimsky
John T. McDonald III
Harry B. Bronson
Taylor Darling
Scott H. Bendett
Manny De Los Santos
Carrie Woerner
Jaime R. Williams
Christopher Eachus
J. Gary Pretlow
George Alvarez
Maritza Davila
Michael Benedetto
Doug Smith
Demond Meeks
Tony Simone
Yudelka Tapia
Marianne Buttenschon
Monica P. Wallace
Juan Ardila
Dana Levenberg
Steven Raga
Amanda Septimo
William Colton
Grace Lee
Jeff Gallahan
Edward Flood
David Weprin
Nader Sayegh
Michael Tannousis
Rodneyse Bichotte Hermelyn
Michaelle C. Solages
Brian F. Curran
Al Taylor
2023-A3346B - Details
- Current Committee:
- Assembly Judiciary
- Law Section:
- Domestic Relations Law
- Laws Affected:
- Amd §§240 & 70, add §240-e, Dom Rel L; amd §§1112 & 651, Fam Ct Act
- Versions Introduced in 2021-2022 Legislative Session:
-
A5398
2023-A3346B - Summary
Requires the court to consider a child's health and safety when making a decision regarding child custody and visitation; directs the court to review certain information as it relates to allegations of child abuse, domestic violence and child safety; requires the court to appoint an attorney to represent the child when credible allegations of serious risk to the child's safety have been made.
2023-A3346B - Bill Text download pdf
S T A T E O F N E W Y O R K ________________________________________________________________________ 3346--B 2023-2024 Regular Sessions I N A S S E M B L Y February 2, 2023 ___________ Introduced by M. of A. HEVESI, SILLITTI, DICKENS, FAHY, CLARK, HUNTER, LAVINE, SEAWRIGHT, SIMON, JACKSON, RIVERA, McDONOUGH, MORINELLO, THIELE, BURDICK, K. BROWN, STIRPE, GONZALEZ-ROJAS, DURSO, OTIS, BRABE- NEC, MANKTELOW, ANGELINO, COOK, GUNTHER, STERN, JEAN-PIERRE, DeSTEFA- NO, BLANKENBUSH, RA, FITZPATRICK, PHEFFER AMATO, ANDERSON, MIKULIN, L. ROSENTHAL, LUPARDO, SIMPSON, EPSTEIN, KELLES, JENSEN, BURGOS, JONES, STECK, ZINERMAN, CRUZ, AUBRY, CUNNINGHAM, HAWLEY, PAULIN, BARRETT, RAMOS, GIBBS, JACOBSON, DINOWITZ, REYES, CONRAD, J. A. GIGLIO, MAHER, BLUMENCRANZ, BORES, GANDOLFO, SHIMSKY, McDONALD, BRONSON, DARLING, BENDETT, DE LOS SANTOS, WOERNER, WILLIAMS, EACHUS, PRETLOW, ALVAREZ, DAVILA, BENEDETTO, SMITH, MEEKS, SIMONE, TAPIA, BUTTENSCHON, WALLACE, ARDILA, LEVENBERG, RAGA, SEPTIMO, COLTON, LEE, GALLAHAN, FLOOD, WEPRIN -- read once and referred to the Committee on Judiciary -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- recommitted to the Committee on Judiciary in accordance with Assembly Rule 3, sec. 2 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee 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 and may be cited as "Kyra's Law". § 2. Subdivision 1 of section 240 of the domestic relations law is amended by adding a new opening paragraph to read as follows: THE LEGISLATURE RECOGNIZES THAT THE SAFETY OF CHILDREN IS OF PARAMOUNT IMPORTANCE AND IS AN INTEGRAL ELEMENT OF THEIR BEST INTERESTS. TO THAT END, THE LEGISLATURE FINDS THAT JUDICIAL DECISIONS REGARDING CUSTODY OF, AND ACCESS TO, CHILDREN MUST ENSURE CHILDREN'S SAFETY AS A THRESHOLD ISSUE. EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD06231-08-4
A. 3346--B 2 § 3. Paragraphs (a) and (a-1) of subdivision 1 of section 240 of the domestic relations law, paragraph (a) as amended by chapter 567 of the laws of 2015 and paragraph (a-1) as amended by chapter 295 of the laws of 2009, are 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. WHEN THE PARTIES FIRST APPEAR IN COURT, THE COURT SHALL ADVISE THE PARTIES BEFORE PROCEEDING OF THE RIGHT TO BE REPRESENTED BY COUNSEL OF THEIR OWN CHOOSING, OF THE RIGHT TO HAVE AN ADJOURNMENT OF NO LONGER THAN FOURTEEN COURT DAYS TO CONFER WITH COUNSEL, AND THE RIGHT TO OBTAIN COUNSEL FEES AND EXPENSES, PURSUANT TO SECTION TWO HUNDRED THIRTY-SEVEN OF THIS ARTICLE. THE COURT SHALL ASSIGN COUNSEL TO THE PARTIES AND CHILDREN, PURSUANT TO ARTICLE TWO OF THE FAMILY COURT ACT. 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 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 inter- ests of the child, together with such other facts and circumstances as the court deems relevant in making a direction pursuant to this section and state on the record how such findings, facts and circumstances factored into the direction. If a parent makes a good faith allegation based on a reasonable belief supported by facts that the child is the victim of child abuse, child neglect, or the effects of domestic violence, and if that parent acts lawfully and in good faith in response to that 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 dispositional 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 A. 3346--B 3 supreme court; provided however, the court must determine custody or visitation in accordance with the terms of this section. An order directing the payment of child support shall contain the social security numbers of the named parties. In all cases there shall be no prima facie right to the custody of the child in either parent. Such direction shall make provision for child support out of the proper- ty of either or both parents. The court shall make its award for child support pursuant to subdivision one-b of this section. Such direction may provide for reasonable visitation rights to the maternal and/or paternal grandparents of any child of the parties. Such direction as it applies to rights of visitation with a child remanded or placed in the care of a person, official, agency or institution pursuant to article ten of the family court act, or pursuant to an instrument approved under section three hundred fifty-eight-a of the social services law, shall be enforceable pursuant to part eight of article ten of the family court act and sections three hundred fifty-eight-a and three hundred eighty- four-a of the social services law and other applicable provisions of law against any person having care and custody, or temporary care and custo- dy, of the child. Notwithstanding any other provision of law, any writ- ten application or motion to the court for the establishment, modifica- tion or enforcement of a child support obligation for persons not in receipt of public assistance and care must contain either a request for child support enforcement services which would authorize the collection 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 A. 3346--B 4 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. (a-1)(1) [Permanent and initial temporary orders of custody or visita- tion. Prior to the issuance of any permanent or initial temporary order of custody or visitation, the court shall conduct a review of the deci- sions and reports listed in subparagraph three of this paragraph. (2) Successive temporary orders of custody or visitation. Prior to the issuance of any successive temporary order of custody or visitation, the court shall conduct a review of the decisions and reports listed in subparagraph three of this paragraph, unless such a review has been conducted within ninety days prior to the issuance of such order. (3) Decisions and reports for review. The court shall conduct a review] PROMPT EVIDENTIARY HEARING. UPON THE APPLICATION OF A PARTY TO AN ACTION CONCERNING CUSTODY OF OR VISITATION WITH A CHILD, OR OF AN ATTORNEY FOR THE CHILD, CREDIBLY ALLEGING THAT THE OTHER PARTY HAS COMMITTED, HAS THREATENED TO COMMIT, OR IS LIKELY TO COMMIT AN ACT OF CHILD ABUSE OR NEGLECT AGAINST SUCH CHILD, OR HAS COMMITTED, HAS THREAT- ENED TO COMMIT, OR IS LIKELY TO COMMIT DOMESTIC VIOLENCE AGAINST THE PARTY MAKING THE ALLEGATION OR A FAMILY OR HOUSEHOLD MEMBER OF EITHER PARTY, AND THAT ALLEGATION, IF TRUE, WOULD POSE A SERIOUS RISK TO THE SAFETY OF THE CHILD, THE COURT SHALL HOLD A PROMPT EVIDENTIARY 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 HOUSE- HOLD MEMBER OF EITHER PARTY IS NECESSARY TO AVOID SERIOUS RISK TO THE CHILD'S SAFETY. EXCEPT FOR GOOD CAUSE SHOWN, THE HEARING FOR SUCH DETER- MINATION SHALL COMMENCE WITHIN TWENTY COURT DAYS OF THE APPLICATION FOR SUCH HEARING. PARTIES SHALL BE NOTIFIED OF THEIR RIGHT TO THE ASSISTANCE OF COUNSEL AT THE INITIATION OF SUCH HEARING. DURING SUCH HEARING, ONLY MATERIAL AND RELEVANT EVIDENCE SHALL BE ADMITTED. 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. DURING THE HEARING, THE COURT SHALL CONDUCT AN ASSESS- MENT OF SERIOUS RISK TO THE CHILD'S SAFETY, WHICH SHALL INCLUDE, BUT NOT BE LIMITED TO, CONSIDERATION of the following: (i) related decisions in court proceedings initiated pursuant to arti- cle ten of the family court act, and all warrants issued under the fami- ly court act; [and] (ii) A PARTY'S HISTORY OF DOMESTIC VIOLENCE, CHILD ABUSE OR NEGLECT, CHILD SEXUAL ABUSE OR INCIDENTS INVOLVING HARM, OR RISK OF HARM, TO A CHILD; (III) POLICE REPORTS, INCLUDING DOMESTIC VIOLENCE INCIDENT REPORTS OF INCIDENTS INVOLVING CHILD ABUSE OR DOMESTIC VIOLENCE BY A PARTY; (IV) EVIDENCE AND FINDINGS OF CHILD ABUSE, DOMESTIC VIOLENCE, SERIOUS RISK OF SAFETY OR RISK OF LETHALITY BY A PARTY, INCLUDING BUT NOT LIMIT- ED TO: (A) AN INCREASE IN FREQUENCY OR SEVERITY OF DOMESTIC VIOLENCE; (B) USE OR THREATS TO USE A WEAPON OR DANGEROUS INSTRUMENT, OR UNLAW- FUL POSSESSION OF FIREARMS; (C) THREATS TO HARM OR KILL THE CHILD, THE OTHER PARTY, THE OTHER PARTY'S CHILDREN, SELF OR OTHERS, OR COMPANION ANIMALS; (D) SEXUAL ABUSE OR OTHER SEXUAL OFFENSES AGAINST THE CHILD OR THE OTHER PARTY; A. 3346--B 5 (E) UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE IMAGE, PURSU- ANT TO SECTION 245.15 OF THE PENAL LAW; (F) INCIDENTS INVOLVING OBSTRUCTION OF BREATHING OR STRANGULATION; (G) A PARTY'S PATTERN OF ALCOHOL OR SUBSTANCE ABUSE THAT PLACES THE CHILD AT SERIOUS RISK OR RISK OF LETHALITY; (H) INCIDENTS OF VIOLENCE DURING PREGNANCY; (I) INCIDENTS OF STALKING OR CYBER STALKING; AND (J) COERCIVE CONTROL, AS DEFINED IN PARAGRAPH (C) OF SUBDIVISION ONE OF SECTION TWO HUNDRED FORTY-E OF THIS ARTICLE; AND (V) reports of the statewide computerized registry of orders of protection established and maintained pursuant to section two hundred twenty-one-a of the executive law, and reports of the sex offender registry established and maintained pursuant to section one hundred sixty-eight-b of the correction law. [(4)] (2) CONDITIONS OF CUSTODY OR VISITATION. IF THE COURT DETER- MINES THAT LIMITATIONS OR RESTRICTIONS OF A PARTY'S CUSTODY, VISITATION OR CONTACT WITH THE CHILD ARE NECESSARY PURSUANT TO A REVIEW OF ANY FINDINGS OR CREDIBLE ALLEGATIONS OF CHILD ABUSE, DOMESTIC VIOLENCE, SERIOUS RISK OF SAFETY AND RISK OF LETHALITY TO THE CHILD, AND THE DECI- SIONS AND REPORTS LISTED IN SUBPARAGRAPH ONE OF THIS PARAGRAPH, THE COURT SHALL SET FORTH CONDITIONS OF CUSTODY OR VISITATION IN A TEMPORARY ORDER OF CUSTODY OR VISITATION THAT PRIORITIZES THE AVOIDANCE OF SERIOUS RISK TO THE CHILD'S SAFETY. WHEN THE COURT DECIDES TO ISSUE OR TO NOT ISSUE SUCH TEMPORARY ORDER, THE PARTIES SHALL BE NOTIFIED OF THEIR RIGHT TO APPEAL, PURSUANT TO ARTICLE ELEVEN OF THE FAMILY COURT ACT. (I) THERE SHALL BE A REBUTTABLE PRESUMPTION THAT THE COURT SHALL NOT AWARD, IN A TEMPORARY ORDER FOR CUSTODY OR VISITATION, SOLE OR JOINT CUSTODY OR UNSUPERVISED VISITATION TO A PARTY WHO POSES A SERIOUS RISK TO THE CHILD'S SAFETY. (II) THE COURT SHALL STATE ON THE RECORD, AND IN WRITING, ANY FINDINGS OR CREDIBLE ALLEGATIONS OF CHILD ABUSE, DOMESTIC VIOLENCE, SERIOUS RISK OF SAFETY OR RISK OF LETHALITY, AND ANY DECISIONS AND REPORTS 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. (III) 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 A MODIFICATION OF A TEMPORARY ORDER AS IS OTHERWISE PROVIDED BY LAW. (3) Notifying counsel and issuing orders. Upon consideration of deci- sions pursuant to article ten of the family court act, and registry reports and notifying counsel involved in the proceeding, or in the event of a self-represented party, notifying such party of the results thereof, including any court appointed attorney for children, the court may issue a temporary, successive temporary or final order of custody or visitation. [(5)] (4) Temporary emergency order. 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 custody or visitation in the event that it is not possible to timely review decisions and reports on regis- tries as required pursuant to subparagraph [three] ONE of this para- graph. [(6)] (5) After issuing a temporary emergency order. After issuing a temporary emergency order of custody or visitation, the court shall conduct reviews of the decisions and reports on registries as required pursuant to subparagraph [three] ONE of this paragraph within twenty- A. 3346--B 6 four hours of the issuance of such temporary emergency order. Should such twenty-four hour period fall on a day when court is not in session, then the required reviews shall take place the next day the court is in session. Upon reviewing decisions and reports the court shall notify associated counsel, self-represented parties and attorneys for children pursuant to subparagraph [four] THREE of this paragraph and may issue temporary or permanent custody or visitation orders. [(7)] (6) Feasibility study. The commissioner of the office of chil- dren and family services, in conjunction with the office of court admin- istration, is hereby authorized and directed to examine, study, evaluate and make recommendations concerning the feasibility of the utilization of computers in courts which are connected to the statewide central register of child abuse and maltreatment established and maintained pursuant to section four hundred twenty-two of the social services law, as a means of providing courts with information regarding parties requesting orders of custody or visitation. Such commissioner shall make a preliminary report to the governor and the legislature of findings, conclusions and recommendations not later than January first, two thou- sand nine, and a final report of findings, conclusions and recommenda- tions not later than June first, two thousand nine, and shall submit with the reports such legislative proposals as are deemed necessary to implement the commissioner's recommendations. § 4. The domestic relations law is amended by adding a new section 240-e to read as follows: § 240-E. CUSTODY AND VISITATION; SAFETY OF THE CHILD. 1. FOR THE PURPOSES OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS: (A) "VICTIM OF DOMESTIC VIOLENCE" SHALL HAVE THE SAME MEANING AS DEFINED IN SECTION FOUR HUNDRED FIFTY-NINE-A OF THE SOCIAL SERVICES LAW. (B) "FRIENDLY PARENT" MEANS THE ACTIONS OF A PARENT OR LEGAL GUARDIAN THAT SUPPORT A CHILD'S CONTACT AND RELATIONSHIP WITH THE OTHER PARENT OR LEGAL GUARDIAN. (C) "COERCIVE CONTROL" MEANS A PATTERN OF BEHAVIOR THAT IN PURPOSE OR EFFECT UNREASONABLY RESTRICTS A PARTY'S SAFETY OR AUTONOMY THROUGH IMPLICIT OR EXPLICIT THREATS, OR INTIMIDATION, OR BY COMPELLING COMPLI- ANCE. THIS CONDUCT INCLUDES, BUT IS NOT LIMITED TO: (I) ISOLATING THE OTHER PARTY FROM FRIENDS, FAMILY OR OTHER SOURCES OF SUPPORT; (II) INTERFERING WITH A PARTY'S FREEDOM OF MOVEMENT; (III) DEPRIVING THE OTHER PARTY OF BASIC NECESSITIES SUCH AS FOOD, SLEEP, CLOTHING, HOUSING, MEDICATION OR MEDICAL CARE; (IV) CONTROLLING, REGULATING, SURVEILLING OR MONITORING THE OTHER PARTY'S MOVEMENTS, COMMUNICATIONS, DAILY BEHAVIOR, APPEARANCE, FINANCES, ECONOMIC RESOURCES OR ACCESS TO SERVICES; (V) COMPELLING THE OTHER PARTY BY FORCE, THREAT OF FORCE OR INTIM- IDATION, INCLUDING BUT NOT LIMITED TO THREATS BASED ON ACTUAL OR SUSPECTED IMMIGRATION STATUS, TO ENGAGE IN CONDUCT FROM WHICH THE OTHER PARTY HAS A RIGHT TO ABSTAIN OR TO ABSTAIN FROM CONDUCT IN WHICH THE OTHER PARTY HAS A RIGHT TO ENGAGE; (VI) INTERFERING WITH THE OTHER PARTY'S EDUCATION OR EMPLOYMENT; (VII) FORCING OR COMPELLING THE OTHER PARTY TO PERFORM SEX ACTS, OR THREATS OF A SEXUAL NATURE, INCLUDING BUT NOT LIMITED TO THREATENED ACTS OF SEXUAL CONDUCT, THREATS BASED ON A PERSON'S SEXUALITY OR THREATS TO RELEASE INTIMATE IMAGES; OR (VIII) CLEANING, ACCESSING, DISPLAYING, USING OR WEARING A FIREARM OR OTHER DANGEROUS WEAPON IN AN INTIMIDATING OR THREATENING MANNER. A. 3346--B 7 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 SAFETY OF SUCH CHILD WHEN MAKING SUCH DETER- MINATIONS. ONLY COMPETENT, MATERIAL, AND RELEVANT EVIDENCE SHALL BE ADMITTED, HOWEVER, THE HEARSAY STATEMENTS OF THE CHILD MAY BE ADMITTED WHEN CORROBORATED BY OTHER EVIDENCE, PURSUANT TO ARTICLE TEN OF THE FAMILY COURT ACT. PROMOTING THE SAFETY OF A CHILD SHALL INCLUDE PREVENT- ING DIRECT PHYSICAL AND/OR EMOTIONAL HARM TO SUCH CHILD. FACTORS THE COURT SHALL CONSIDER IN MAKING SUCH DETERMINATION SHALL INCLUDE, BUT NOT BE LIMITED TO: (A) WHICH PARTY IS MORE LIKELY TO PROTECT THE SAFETY OF THE CHILD, AND WHETHER EITHER PARTY POSES A SERIOUS RISK TO THE SAFETY OF THE CHILD; (B) A HISTORY OF DOMESTIC VIOLENCE, CHILD ABUSE OR NEGLECT, CHILD SEXUAL ABUSE OR INCIDENTS INVOLVING HARM, OR RISK OF HARM, TO A CHILD; (C) ANY FINDINGS OR CREDIBLE ALLEGATIONS OF CHILD ABUSE, DOMESTIC VIOLENCE, SERIOUS RISK OR RISK OF LETHALITY TO THE CHILD, INCLUDING BUT NOT LIMITED TO: (I) AN INCREASE IN FREQUENCY OR SEVERITY OF DOMESTIC VIOLENCE; (II) USE OR THREATS TO USE A WEAPON OR DANGEROUS INSTRUMENT, OR UNLAW- FUL POSSESSION OF FIREARMS; (III) THREATS TO HARM OR KILL THE CHILD, THE OTHER PARTY, THE OTHER PARTY'S CHILDREN, SELF OR OTHERS, OR COMPANION ANIMALS; (IV) SEXUAL ABUSE OR COERCED SEXUAL ACTIVITY OF THE CHILD OR OTHER PARTY; (V) UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE IMAGE, PURSU- ANT TO SECTION 245.15 OF THE PENAL LAW; (VI) INCIDENTS INVOLVING OBSTRUCTION OF BREATHING OR STRANGULATION; (VII) A PARTY'S PATTERN OF ALCOHOL OR SUBSTANCE ABUSE THAT PLACES THE CHILD AT SERIOUS RISK OR RISK OF LETHALITY; (VIII) INCIDENTS OF VIOLENCE DURING PREGNANCY; (IX) INCIDENTS OF STALKING OR CYBER STALKING; AND (X) COERCIVE CONTROL, AS DEFINED IN PARAGRAPH (C) OF SUBDIVISION ONE OF THIS SECTION; (D) WHETHER EITHER PARTY HAS BEEN FOUND TO HAVE COMMITTED AN ACT WHICH WOULD CONSTITUTE DISORDERLY CONDUCT, UNLAWFUL DISSEMINATION OR PUBLICA- TION 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, STALKING 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 BREATH- ING OR BLOOD CIRCULATION, STRANGULATION IN THE SECOND DEGREE, STRANGULA- TION 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 SUBDIVISIONS 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; (E) WHETHER EITHER PARTY HAS USED OR THREATENED TO USE A DANGEROUS INSTRUMENT TO HARM THE OTHER PARTY, CHILD, OR A THIRD PARTY, INCLUDING A FIREARM, EXCEPT IN INCIDENTS INVOLVING SELF-DEFENSE, OR HAS UNLAWFULLY A. 3346--B 8 POSSESSED A WEAPON OR FIREARM, OR HAS BEEN CONVICTED OF CRIMINAL POSSESSION OF A WEAPON OR CRIMINAL USE OF A FIREARM PURSUANT TO ARTICLE TWO HUNDRED SIXTY-FIVE OF THE PENAL LAW, OR IS OR HAS BEEN SUBJECT TO AN EXTREME RISK PROTECTION ORDER, PURSUANT TO ARTICLE SIXTY-THREE-A OF THE CIVIL PRACTICE LAW AND RULES; AND (F) WHICH PARTY HAS BEEN ATTENDING TO THE DAILY PHYSICAL, EMOTIONAL, DEVELOPMENTAL, EDUCATIONAL, AND SPECIAL NEEDS OF THE CHILD. 3. THERE SHALL BE A REBUTTABLE PRESUMPTION THAT CUSTODY OR UNSUPER- VISED VISITATION SHALL NOT BE AWARDED TO A PARTY WHO JEOPARDIZES THE SAFETY OF THE CHILD. 4. (A) IN ANY PROCEEDING FOR CUSTODY OR VISITATION WHERE A PARTY CRED- IBLY ALLEGES DOMESTIC VIOLENCE OR CHILD ABUSE, ALLEGATIONS THAT A PARTY IS NOT A FRIENDLY PARENT OR HAS ALIENATED THE CHILD OR CHILDREN AGAINST THE OTHER PARTY SHALL NOT BE CONSIDERED IN ASSESSING A CHILD'S OR CHIL- DREN'S BEST INTERESTS. (B) THE COURT SHALL NOT PRESUME THAT A CHILD'S RELUCTANCE TO INTERACT WITH A PARTY WAS CAUSED BY THE OTHER PARTY, NOR SHALL A PARTY BE GIVEN CUSTODY FOR THE PURPOSE OF IMPROVING A RELATIONSHIP BETWEEN THE CHILD AND SUCH PARTY OR IN AN ATTEMPT TO ADDRESS THE CHILD'S RELUCTANCE TO INTERACT WITH SUCH PARTY. (C) NO PSYCHOLOGICAL OR MEDICAL THEORIES RELATED TO A CHILD'S RELUC- TANCE TO INTERACT WITH A PARTY SHALL BE ADMITTED INTO EVIDENCE OR CONSIDERED BY THE COURT UNLESS BASED ON EMPIRICAL PROOF OF SCIENTIFIC RELIABILITY AND VALIDITY AND GENERALLY ACCEPTED BY THE SCIENTIFIC AND PROFESSIONAL COMMUNITY. (D) NO TREATMENT PROGRAM INTENDED TO REUNITE A CHILD WITH A PARTY WHOM THAT CHILD IS ESTRANGED SHALL BE ORDERED BY THE COURT WITHOUT CONSENT OF BOTH PARTIES AND THE ATTORNEY FOR THE CHILD AND SUPPORTED BY SCIENTIF- ICALLY VALID AND GENERALLY ACCEPTED PROOF OF THE EFFECTIVENESS AND THER- APEUTIC VALUE OF SUCH PROGRAM. 5. IN CASES INVOLVING DOMESTIC VIOLENCE, CHILD ABUSE OR NEGLECT, OR A HISTORY OF COERCIVE CONTROL, OR WHERE THE PARTIES CANNOT EFFECTIVELY COMMUNICATE, COOPERATE WITH EACH OTHER AND MAKE JOINT DECISIONS CONCERN- ING THE CHILD, OR IN CASES WHERE THERE IS AN EXISTING OR PRIOR FULL STAY AWAY ORDER OF PROTECTION AGAINST A PARTY OR WHEN THERE IS AN EXISTING TEMPORARY ORDER OF PROTECTION ENTERED EX PARTE, NO ORDER OF JOINT CUSTO- DY SHALL BE MADE WITHOUT THE CONSENT OF BOTH PARTIES. THE COURT SHALL NOT SUGGEST THAT IN ORDER TO RETAIN CUSTODY, A PARTY MUST AGREE TO JOINT CUSTODY. THE COURT SHALL NOT USE A PARTY'S REFUSAL TO CONSENT TO JOINT CUSTODY AGAINST SUCH PARTY WHEN MAKING ITS FINAL CUSTODY OR VISITATION DETERMINATION. 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 COMPREHENSIVE TRAINING ON DOMESTIC VIOLENCE AND CHILD ABUSE THAT ADDRESSES CURRENT KNOWLEDGE AND LAW RELATING TO DOMESTIC VIOLENCE AND CHILD ABUSE AND NEGLECT, WITH THE GOAL OF MAKING APPROPRIATE CUSTODY AND VISITATION DECISIONS THAT PRIORITIZE CHILDREN'S SAFETY AND ARE CULTURALLY SENSITIVE AND APPROPRIATE FOR DIVERSE COMMUNITIES. SUCH JUDGES, REFEREES AND OTHER HEARING OFFICERS SHALL COMPLETE SUPPLEMENTAL TRAINING EVERY TWO YEARS THEREAFTER TO REMAIN ELIGIBLE TO PRESIDE OVER SUCH PROCEEDINGS. THE OFFICE OF COURT ADMINISTRATION, IN CONSULTATION WITH THE OFFICE FOR THE PREVENTION OF DOMESTIC VIOLENCE, SHALL DEVELOP AND CONDUCT SUCH TRAIN- ING, WHICH SHALL BE REVIEWED AND UPDATED AT LEAST ONCE EVERY TWO YEARS. SUCH TRAINING SHALL INCLUDE, BUT NOT BE LIMITED TO: A. 3346--B 9 (1) RELEVANT STATUTES AND CASE LAW PERTAINING TO DOMESTIC VIOLENCE AND CHILD ABUSE; (2) THE POWER AND CONTROL DYNAMICS OF DOMESTIC VIOLENCE AND CHILD ABUSE, INCLUDING BUT NOT LIMITED TO, STALKING, AND EMOTIONAL, FINANCIAL, PHYSICAL, TECHNOLOGICAL, CYBER, SEXUAL, AND LITIGATION ABUSE, AND THE TACTICS COMMONLY USED TO INDUCE FEAR IN OR TO DOMINATE OR CONTROL A PARTNER OR CHILD, INCLUDING COERCIVE CONTROL; (3) THE BARRIERS AND FEARS ASSOCIATED WITH REPORTING DOMESTIC VIOLENCE AND CHILD ABUSE AND NEGLECT, AND THE INCREASED RISK OF ESCALATING VIOLENCE DURING CHILD CUSTODY AND VISITATION PROCEEDINGS; (4) THE SCIENCE AND EXPERIENCE OF TRAUMA AND OTHER PSYCHOLOGICAL IMPACTS OF ABUSE IN ADULTS AND CHILDREN, INCLUDING THE IMPORTANCE OF JUDGES MAINTAINING TRAUMA-INFORMED COURTS, AND THE DANGERS AND INADMIS- SIBILITY OF NON-SCIENTIFIC THEORIES, SUCH AS PARENTAL ALIENATION, PARENTAL ALIENATION SYNDROME, PARENTAL GATEKEEPING, OR ANY OTHER THEORY THAT IS NOT SUPPORTED BY SCIENTIFIC RESEARCH AND NOT GENERALLY ACCEPTED BY THE SCIENTIFIC COMMUNITY; (5) THE DISTINCTION BETWEEN INAPPROPRIATE INTERFERENCE WITH THE CHILD- PARENT RELATIONSHIP VERSUS PROTECTIVE PARENTING IN THE CONTEXT OF DOMES- TIC VIOLENCE OR CHILD ABUSE AND NEGLECT; (6) HOW TO CONDUCT AN ASSESSMENT OF SERIOUS RISK AND RISK OF LETHALITY TO A CHILD OR SUCH CHILD'S PARENT, PURSUANT TO SUBDIVISION FOUR OF THIS SECTION FOR THE PURPOSE OF ISSUING A TEMPORARY ORDER OF CUSTODY OR VISI- TATION; (7) BEST PRACTICES IN ASSESSING ALLEGATIONS OF DOMESTIC VIOLENCE AND CHILD ABUSE AND NEGLECT; IN ASSESSING THE VALUE AND LIMITATIONS OF REPORTS OF SUSPECTED CHILD ABUSE OR NEGLECT CONDUCTED BY LAW ENFORCEMENT OR DEPARTMENTS OF SOCIAL SERVICES; AND (8) ASSESSING THE QUALIFICATIONS AND REPORTS OF CHILD CUSTODY EVALU- ATORS AND MENTAL HEALTH TREATMENT PROVIDERS. § 5. 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 THE COURT ISSUES ANY INITIAL OR SUCCESSIVE TEMPORARY ORDER OF CUSTODY OR VISITATION OR PERMANENT ORDER OF CUSTODY OR VISITATION, THE COURT SHALL CONDUCT A REVIEW OF ANY FINDINGS OR CREDIBLE ALLEGATIONS OF CHILD ABUSE, DOMESTIC VIOLENCE, SERIOUS RISK AND RISK OF LETHALITY, AND THE DECISIONS AND REPORTS LISTED IN SUBPARAGRAPH ONE OF PARAGRAPH (A-1) OF SUBDIVISION ONE OF SECTION TWO HUNDRED FORTY OF THIS CHAPTER, UNLESS SUCH A REVIEW HAS BEEN CONDUCTED WITHIN NINETY DAYS PRIOR TO THE ISSU- ANCE OF SUCH ORDER. (II) WHEN ISSUING ANY TEMPORARY ORDER OF CUSTODY OR VISITATION, THE COURT SHALL STATE ON THE RECORD, AND IN WRITING, ANY FINDINGS OR CREDI- BLE ALLEGATIONS OF CHILD ABUSE, DOMESTIC VIOLENCE, SERIOUS RISK OR RISK OF LETHALITY, AND THE PRIOR DECISIONS AND REPORTS CONSIDERED IN RENDER- A. 3346--B 10 ING ITS DECISION AND THE REASONS FOR ANY LIMITATIONS OR RESTRICTIONS PLACED ON A PARTY'S CUSTODY, VISITATION OR CONTACT WITH SUCH CHILD. ANY PARTY TO A PROCEEDING FOR A TEMPORARY ORDER PURSUANT TO THIS CHAPTER SHALL HAVE A RIGHT TO APPEAL TO THE APPROPRIATE APPELLATE DIVISION, PURSUANT TO ARTICLE ELEVEN OF THE FAMILY COURT ACT. (III) 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 SAFETY OF SUCH CHILD WHEN MAKING SUCH DETERMINATIONS. ONLY COMPETENT, MATERIAL AND RELEVANT EVIDENCE SHALL BE ADMITTED, PURSUANT TO ARTICLE TEN OF THE FAMILY COURT ACT, HOWEVER THE HEARSAY STATEMENTS OF THE CHILD MAY BE ADMITTED WHEN CORROBORATED BY OTHER EVIDENCE. PROMOTING THE SAFETY OF A CHILD SHALL INCLUDE PREVENTING DIRECT PHYSICAL AND/OR EMOTIONAL HARM TO SUCH CHILD AND SHALL BE ASSESSED BY CONSIDERING ANY FINDINGS OR CREDIBLE ALLEGATIONS OF CHILD ABUSE, DOMESTIC VIOLENCE, SERIOUS RISK AND RISK OF LETHALITY, AND DECI- SIONS AND REPORTS IDENTIFIED IN SUBPARAGRAPH ONE OF PARAGRAPH (A-1) OF SUBDIVISION ONE OF SECTION TWO HUNDRED FORTY OF THIS CHAPTER. (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 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. (V) IN CASES INVOLVING DOMESTIC VIOLENCE, CHILD ABUSE OR NEGLECT, OR A HISTORY OF COERCIVE CONTROL, OR WHERE THE PARTIES CANNOT EFFECTIVELY COMMUNICATE, COOPERATE WITH EACH OTHER AND MAKE JOINT DECISIONS CONCERN- ING THE CHILD, OR IN CASES WHERE THERE IS AN EXISTING OR PRIOR FULL STAY AWAY ORDER OF PROTECTION AGAINST A PARTY OR WHEN THERE IS AN EXISTING TEMPORARY ORDER OF PROTECTION ENTERED EX PARTE, NO ORDER OF JOINT CUSTO- DY SHALL BE MADE WITHOUT THE CONSENT OF BOTH PARTIES. THE COURT SHALL NOT SUGGEST THAT IN ORDER TO RETAIN CUSTODY, A PARTY MUST AGREE TO JOINT CUSTODY. THE COURT SHALL NOT USE A PARTY'S REFUSAL TO CONSENT TO JOINT CUSTODY AGAINST SUCH PARTY WHEN MAKING ITS FINAL CUSTODY OR VISITATION DETERMINATION, AS DESCRIBED IN SUBDIVISION FIVE OF SECTION TWO HUNDRED FORTY-E OF THIS CHAPTER. (VI) 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 PARAGRAPH A OF SUBDIVISION SIX OF SECTION TWO HUNDRED FORTY-E 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 PARAGRAPH (A) OF SUBDIVISION SIX OF SECTION TWO HUNDRED FORTY-E OF THIS CHAPTER. § 6. Subdivision (b) of section 651 of the family court act, as amended by chapter 657 of the laws of 2003, is amended to read as follows: (b) (I) When initiated in the family court, the family court has jurisdiction to determine, in accordance with subdivision one of section two hundred forty of the domestic relations law and with the same powers possessed by the supreme court in addition to its own powers, habeas corpus proceedings and proceedings brought by petition and order to show cause, for the determination of the custody or visitation of minors, including applications by a grandparent or grandparents for visitation A. 3346--B 11 or custody rights pursuant to section seventy-two or two hundred forty of the domestic relations law. (II) THE FAMILY COURT SHALL, IN COLLABORATION WITH THE OFFICE FOR THE PREVENTION OF DOMESTIC VIOLENCE, UPDATE ITS PETITION USED BY PARTIES TO INITIATE CHILD CUSTODY AND VISITATION PROCEEDINGS IN A MANNER TO PERMIT PETITIONERS TO IDENTIFY FINDINGS OR ALLEGATIONS OF CHILD ABUSE, DOMESTIC VIOLENCE, SERIOUS RISK OR RISK OF LETHALITY TO A CHILD'S SAFETY. § 7. Subdivision (e) of section 651 of the family court act, as amended by chapter 295 of the laws of 2009, is amended to read as follows: (e) THE LEGISLATURE RECOGNIZES THAT THE SAFETY OF CHILDREN IS OF PARA- MOUNT IMPORTANCE AND IS AN INTEGRAL ELEMENT OF THEIR BEST INTERESTS. TO THAT END, THE LEGISLATURE FINDS THAT JUDICIAL DECISIONS REGARDING CUSTO- DY OF, AND ACCESS TO, CHILDREN MUST ENSURE CHILDREN'S SAFETY AS A THRES- HOLD ISSUE. 1. Permanent and initial temporary orders of custody or visitation. Prior to the issuance of any permanent or initial temporary order of custody or visitation, the court shall conduct a review of ANY FINDINGS OR CREDIBLE ALLEGATIONS OF CHILD ABUSE, DOMESTIC VIOLENCE, SERIOUS RISK AND RISK OF LETHALITY TO A CHILD'S SAFETY, AND the decisions and reports listed in [paragraph three of this subdivision] SUBPARAGRAPH ONE OF PARAGRAPH (A-1) OF SUBDIVISION ONE OF SECTION TWO HUNDRED FORTY OF THIS CHAPTER. WHEN THE PARTIES FIRST APPEAR IN COURT, THE COURT SHALL ADVISE THE PARTIES BEFORE PROCEEDING OF THE RIGHT TO BE REPRESENTED BY COUNSEL OF THEIR OWN CHOOSING, OF THE RIGHT TO HAVE AN ADJOURNMENT OF NO LONGER THAN FOURTEEN COURT DAYS TO CONFER WITH COUNSEL, AND THE RIGHT TO OBTAIN COUNSEL FEES AND EXPENSES, PURSUANT TO SECTION TWO HUNDRED THIRTY-SEVEN OF THE DOMESTIC RELATIONS LAW. THE COURT SHALL ASSIGN COUNSEL TO THE PARTIES AND CHILDREN, PURSUANT TO ARTICLE TWO OF THIS CHAPTER. 2. Successive temporary orders of custody or visitation. Prior to the issuance of any successive temporary order of custody or visitation, the court shall conduct a review of ANY FINDINGS OR CREDIBLE ALLEGATIONS OF CHILD ABUSE, DOMESTIC VIOLENCE, SERIOUS RISK AND RISK OF LETHALITY, AND the decisions and reports listed in [paragraph three of this subdivi- sion,] SUBPARAGRAPH ONE OF PARAGRAPH (A-1) OF SUBDIVISION ONE OF SECTION TWO HUNDRED FORTY OF THIS CHAPTER unless such a review has been conducted within ninety days prior to the issuance of such order. 3. [Decisions] FINDINGS AND ALLEGATIONS OF CHILD ABUSE, DOMESTIC VIOLENCE, SERIOUS RISK OR RISK OF LETHALITY, AND THE DECISIONS and reports for review. The court shall conduct a review of the following: (i) related decisions in court proceedings initiated pursuant to arti- cle ten of this act, and all warrants issued under this act; [and] (ii) WHETHER EITHER PARTY TO THE ACTION ALLEGES THAT THE OTHER PARTY TO THE PROCEEDING HAS COMMITTED, OR HAS THREATENED TO COMMIT, AN ACT OF CHILD ABUSE AGAINST SUCH CHILD, OR HAS COMMITTED, OR HAS THREATENED TO COMMIT, AN ACT OF DOMESTIC VIOLENCE AGAINST THE PARTY MAKING THE ALLEGA- TION OR A FAMILY OR HOUSEHOLD MEMBER OF EITHER PARTY, AS SUCH FAMILY OR HOUSEHOLD MEMBER IS DEFINED IN ARTICLE EIGHT OF THIS CHAPTER; (III) A HISTORY OF DOMESTIC VIOLENCE, CHILD ABUSE OR NEGLECT, CHILD SEXUAL ABUSE OR INCIDENTS INVOLVING HARM, OR RISK OF HARM, TO A CHILD; (IV) POLICE REPORTS, INCLUDING DOMESTIC VIOLENCE INCIDENT REPORTS, REPORTING INCIDENTS INVOLVING CHILD ABUSE OR DOMESTIC VIOLENCE; (V) FINDINGS AND CREDIBLE ALLEGATIONS OF CHILD ABUSE, DOMESTIC VIOLENCE, SERIOUS RISK OR RISK OF LETHALITY, INCLUDING BUT NOT LIMITED TO: (A) AN INCREASE IN FREQUENCY OR SEVERITY OF DOMESTIC VIOLENCE; A. 3346--B 12 (B) USE OR THREATS TO USE A WEAPON OR DANGEROUS INSTRUMENT, OR UNLAW- FUL POSSESSION OF FIREARMS; (C) THREATS TO HARM OR KILL THE CHILD, THE OTHER PARTY, THE OTHER PARTY'S CHILDREN, SELF OR OTHERS, OR COMPANION ANIMALS; (D) SEXUAL ABUSE OR COERCED SEXUAL ACTIVITY OF THE CHILD OR OTHER PARTY; (E) UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE IMAGE, PURSU- ANT TO SECTION 245.15 OF THE PENAL LAW; (F) INCIDENTS INVOLVING OBSTRUCTION OF BREATHING OR STRANGULATION; (G) A PARTY'S PATTERN OF ALCOHOL OR SUBSTANCE ABUSE THAT PLACES THE CHILD AT SERIOUS RISK OR RISK OF LETHALITY; (H) INCIDENTS OF VIOLENCE DURING PREGNANCY; (I) INCIDENTS OF STALKING OR CYBER STALKING; AND (J) COERCIVE CONTROL, AS DEFINED IN PARAGRAPH (C) OF SUBDIVISION ONE OF SECTION TWO HUNDRED FORTY-E OF THE DOMESTIC RELATIONS LAW; AND (VI) reports of the statewide computerized registry of orders of protection established and maintained pursuant to section two hundred twenty-one-a of the executive law, and reports of the sex offender registry established and maintained pursuant to section one hundred sixty-eight-b of the correction law. 4. APPEAL. SUCH PERMANENT AND TEMPORARY ORDERS OF CUSTODY OR VISITA- TION 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. A PREFERENCE IN ACCORDANCE WITH RULE FIFTY-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. A NOTICE TO APPEAL UNDER THIS SUBDIVISION MUST BE TAKEN NO LATER THAN TWENTY COURT DAYS AFTER THE SERVICE BY A PARTY OR THE CHILD'S ATTORNEY UPON THE APPELLANT OF ANY ORDER FROM WHICH THE APPEAL IS TAKEN, OR TWENTY COURT DAYS FROM RECEIPT OF THE ORDER BY THE APPEL- LANT IN COURT, WHICHEVER IS EARLIEST. EXCEPT FOR GOOD CAUSE SHOWN, THE APPEAL HEARING SHALL BE EXPEDITED AND HELD NO LATER THAN NINETY COURT DAYS FROM THE NOTICE TO APPEAL. WHENEVER AN ATTORNEY HAS BEEN APPOINTED TO REPRESENT A PARTY IN A PROCEEDING DESCRIBED IN THIS PARAGRAPH, THE APPOINTMENT SHALL CONTINUE WITHOUT FURTHER COURT ORDER OR APPOINTMENT, PURSUANT TO SUBDIVISION (B) OF SECTION ELEVEN HUNDRED TWENTY OF THIS CHAPTER. 5. Notifying counsel and issuing orders. Upon consideration of deci- sions pursuant to article ten of this act, and registry reports and notifying counsel involved in the proceeding, or in the event of a self- represented party, notifying such party of the results thereof, includ- ing any court appointed attorney for children, the court may issue a temporary, successive temporary or final order of custody or visitation. [5.] 6. Temporary emergency order. 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 custody or visitation in the event that it is not possible to timely review decisions and reports on registries as required pursuant to paragraph three of this subdivision. [6.] 7. After issuing a temporary emergency order. After issuing a temporary emergency order of custody or visitation, the court shall conduct reviews of the decisions and reports on registries as required pursuant to paragraph three of this subdivision within twenty-four hours A. 3346--B 13 of the issuance of such temporary emergency order. Should such twenty- four hour period fall on a day when court is not in session, then the required reviews shall take place the next day the court is in session. Upon reviewing decisions and reports the court shall notify associated counsel, self-represented parties and attorneys for children pursuant to paragraph [four] FIVE of this subdivision and may issue temporary or permanent custody or visitation orders. [7.] 8. Feasibility study. The commissioner of the office of children and family services, in conjunction with the office of court adminis- tration, is hereby authorized and directed to examine, study, evaluate and make recommendations concerning the feasibility of the utilization of computers in family courts which are connected to the statewide central register of child abuse and maltreatment established and main- tained pursuant to section four hundred twenty-two of the social services law, as a means of providing family courts with information regarding parties requesting orders of custody or visitation. Such commissioner shall make a preliminary report to the governor and the legislature of findings, conclusions and recommendations not later than January thirty-first, two thousand nine, and a final report of findings, conclusions and recommendations not later than June first, two thousand nine, and shall submit with the reports such legislative proposals as are deemed necessary to implement the commissioner's recommendations. § 8. 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 PURSUANT TO SECTION SIX HUNDRED FIFTY-ONE 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] FIFTY-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. § 9. Subdivision (a) of section 249 of the family court act, as amended by chapter 3 of the laws of 2012, is amended to read as follows: (a) In a proceeding under article three, seven, ten, ten-A or ten-C of this act or where a revocation of an adoption consent is opposed under section one hundred fifteen-b of the domestic relations law or in any proceeding under section three hundred fifty-eight-a, three hundred eighty-three-c, three hundred eighty-four or three hundred eighty-four-b of the social services law or when a minor is sought to be placed in protective custody under section one hundred fifty-eight of this act or in any proceeding where a minor is detained under or governed by the interstate compact for juveniles established pursuant to section five hundred one-e of the executive law, the family court shall appoint an attorney to represent a minor who is the subject of the proceeding or who is sought to be placed in protective custody, if independent legal representation is not available to such minor. In any proceeding to A. 3346--B 14 extend or continue the placement of a juvenile delinquent or person in need of supervision pursuant to section seven hundred fifty-six or 353.3 of this act or any proceeding to extend or continue a commitment to the custody of the commissioner of mental health or the commissioner of people with developmental disabilities pursuant to section 322.2 of this act, the court shall not permit the respondent to waive the right to be represented by counsel chosen by the respondent, respondent's parent, or other person legally responsible for the respondent's care, or by assigned counsel. In any proceeding under article ten-B of this act, the family court shall appoint an attorney to represent a youth, under the age of twenty-one, who is the subject of the proceeding, if independent legal representation is not available to such youth. IN ANY PROCEEDING UNDER ARTICLE SIX OF THIS ACT, THE COURT SHALL APPOINT AN ATTORNEY TO REPRESENT THE CHILD WHEN CREDIBLE ALLEGATIONS OF SERIOUS RISK TO THE CHILD'S SAFETY HAVE BEEN MADE. In any other proceeding in which the court has jurisdiction, the court may appoint an attorney to represent the child, when, in the opinion of the family court judge, such repre- sentation will serve the purposes of this act, if independent legal counsel is not available to the child. The family court on its own motion may make such appointment. § 10. Subdivision (a) of section 249 of the family court act, as amended by chapter 672 of the laws of 2019, is amended to read as follows: (a) In a proceeding under article three, seven, ten, ten-A or ten-C of this act or where a revocation of an adoption consent is opposed under section one hundred fifteen-b of the domestic relations law or in any proceeding under section three hundred fifty-eight-a, three hundred eighty-three-c, three hundred eighty-four or three hundred eighty-four-b of the social services law or when a minor is sought to be placed in protective custody under section one hundred fifty-eight of this act, the family court shall appoint an attorney to represent a minor who is the subject of the proceeding or who is sought to be placed in protec- tive custody, if independent legal representation is not available to such minor. In any proceeding to extend or continue the placement of a juvenile delinquent or person in need of supervision pursuant to section seven hundred fifty-six or 353.3 of this act or any proceeding to extend or continue a commitment to the custody of the commissioner of mental health or the commissioner of the office for people with developmental disabilities pursuant to section 322.2 of this act, the court shall not permit the respondent to waive the right to be represented by counsel chosen by the respondent, respondent's parent, or other person legally responsible for the respondent's care, or by assigned counsel. In any proceeding under article ten-B of this act, the family court shall appoint an attorney to represent a youth, under the age of twenty-one, who is the subject of the proceeding, if independent legal represen- tation is not available to such youth. IN ANY PROCEEDING UNDER ARTICLE SIX OF THIS ACT, THE COURT SHALL APPOINT AN ATTORNEY TO REPRESENT THE CHILD WHEN CREDIBLE ALLEGATIONS OF SERIOUS RISK TO THE CHILD'S SAFETY HAVE BEEN MADE. In any other proceeding in which the court has jurisdic- tion, the court may appoint an attorney to represent the child, when, in the opinion of the family court judge, such representation will serve the purposes of this act, if independent legal counsel is not available to the child. The family court on its own motion may make such appoint- ment. § 11. This act shall take effect on the one hundred twentieth day after it shall have become a law; provided, however, that the amendments A. 3346--B 15 to subdivision (a) of section 249 of the family court act made by section nine of this act shall be subject to the expiration and rever- sion of such subdivision pursuant to section 8 of chapter 29 of the laws of 2011, as amended, when upon such date the provisions of section ten of this act shall take effect. 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 and completed on or before such effective date.
co-Sponsors
Gina Sillitti
Inez E. Dickens
Patricia Fahy
Sarah Clark
Pamela J. Hunter
Charles Lavine
Rebecca Seawright
Jo Anne Simon
Chantel Jackson
Jonathan Rivera
David McDonough
Angelo J. Morinello
Fred Thiele
Chris Burdick
Keith Brown
Albert A. Stirpe
Jessica Gonzalez-Rojas
Michael Durso
Steven Otis
Karl Brabenec
Brian Manktelow
Joe Angelino
Vivian Cook
Aileen Gunther
Steve Stern
Kimberly Jean-Pierre
Joe DeStefano
Kenneth Blankenbush
Edward Ra
Michael J. Fitzpatrick
Stacey Pheffer Amato
Khaleel Anderson
John K. Mikulin
Linda Rosenthal
Donna Lupardo
Matthew Simpson
Harvey Epstein
Anna Kelles
Josh Jensen
Kenny Burgos
Billy Jones
Phil Steck
Stefani Zinerman
Catalina Cruz
Jeffrion Aubry
Brian Cunningham
Stephen Hawley
Amy Paulin
Didi Barrett
Philip Ramos
Eddie Gibbs
Jonathan Jacobson
Jeffrey Dinowitz
Karines Reyes
William Conrad
Jodi Giglio
Brian Maher
Jake Ryan Blumencranz
Alex Bores
Jerett Gandolfo
MaryJane Shimsky
John T. McDonald III
Harry B. Bronson
Taylor Darling
Scott H. Bendett
Manny De Los Santos
Carrie Woerner
Jaime R. Williams
Christopher Eachus
J. Gary Pretlow
George Alvarez
Maritza Davila
Michael Benedetto
Doug Smith
Demond Meeks
Tony Simone
Yudelka Tapia
Marianne Buttenschon
Monica P. Wallace
Juan Ardila
Dana Levenberg
Steven Raga
Amanda Septimo
William Colton
Grace Lee
Jeff Gallahan
Edward Flood
David Weprin
Nader Sayegh
Michael Tannousis
Rodneyse Bichotte Hermelyn
Michaelle C. Solages
Brian F. Curran
Al Taylor
Patrick Burke
Matthew Slater
Michael Novakhov
2023-A3346C (ACTIVE) - Details
- Current Committee:
- Assembly Judiciary
- Law Section:
- Domestic Relations Law
- Laws Affected:
- Amd §§240 & 70, add §240-e, Dom Rel L; amd §§1112 & 651, Fam Ct Act
- Versions Introduced in 2021-2022 Legislative Session:
-
A5398
2023-A3346C (ACTIVE) - Summary
Requires the court to consider a child's health and safety when making a decision regarding child custody and visitation; directs the court to review certain information as it relates to allegations of child abuse, domestic violence and child safety; requires the court to appoint an attorney to represent the child when credible allegations of serious risk to the child's safety have been made.
2023-A3346C (ACTIVE) - Bill Text download pdf
S T A T E O F N E W Y O R K ________________________________________________________________________ 3346--C 2023-2024 Regular Sessions I N A S S E M B L Y February 2, 2023 ___________ Introduced by M. of A. HEVESI, SILLITTI, DICKENS, FAHY, CLARK, HUNTER, LAVINE, SEAWRIGHT, SIMON, JACKSON, RIVERA, McDONOUGH, MORINELLO, THIELE, BURDICK, K. BROWN, STIRPE, GONZALEZ-ROJAS, DURSO, OTIS, BRABE- NEC, MANKTELOW, ANGELINO, COOK, GUNTHER, STERN, JEAN-PIERRE, DeSTEFA- NO, BLANKENBUSH, RA, FITZPATRICK, PHEFFER AMATO, ANDERSON, MIKULIN, L. ROSENTHAL, LUPARDO, SIMPSON, EPSTEIN, KELLES, JENSEN, BURGOS, JONES, STECK, ZINERMAN, CRUZ, AUBRY, CUNNINGHAM, HAWLEY, PAULIN, BARRETT, RAMOS, GIBBS, JACOBSON, DINOWITZ, REYES, CONRAD, J. A. GIGLIO, MAHER, BLUMENCRANZ, BORES, GANDOLFO, SHIMSKY, McDONALD, BRONSON, DARLING, BENDETT, DE LOS SANTOS, WOERNER, WILLIAMS, EACHUS, PRETLOW, ALVAREZ, DAVILA, BENEDETTO, SMITH, MEEKS, SIMONE, TAPIA, BUTTENSCHON, WALLACE, ARDILA, LEVENBERG, RAGA, SEPTIMO, COLTON, LEE, GALLAHAN, FLOOD, WEPRIN, SAYEGH, TANNOUSIS, BICHOTTE HERMELYN, SOLAG- ES, CURRAN, TAYLOR -- read once and referred to the Committee on Judi- ciary -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- recommitted to the Committee on Judiciary in accordance with Assembly Rule 3, sec. 2 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- recommitted to the Committee on Judi- ciary in accordance with Assembly Rule 3, sec. 2 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the domestic relations law, the family court act and the civil practice law and rules, 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 and may be cited as "Kyra's Law". § 2. Subdivision 1 of section 240 of the domestic relations law is amended by adding a new opening paragraph to read as follows: EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD06231-12-4 A. 3346--C 2
THE LEGISLATURE RECOGNIZES THAT THE SAFETY OF CHILDREN IS OF PARAMOUNT IMPORTANCE AND IS AN INTEGRAL ELEMENT OF THEIR BEST INTERESTS. TO THAT END, THE LEGISLATURE FINDS THAT JUDICIAL DECISIONS REGARDING CUSTODY OF, AND ACCESS TO, CHILDREN SHALL PROMOTE THE SAFETY OF CHILDREN AS A THRES- HOLD ISSUE. § 3. Paragraphs (a) and (a-1) of subdivision 1 of section 240 of the domestic relations law, paragraph (a) as amended by chapter 567 of the laws of 2015 and paragraph (a-1) as amended by chapter 295 of the laws of 2009, are 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. WHEN THE PARTIES FIRST APPEAR IN COURT, THE COURT SHALL ADVISE THE PARTIES BEFORE PROCEEDING OF THE RIGHT TO BE REPRESENTED BY COUNSEL OF THEIR OWN CHOOSING, OF THE RIGHT TO HAVE AN ADJOURNMENT OF NO LONGER THAN FOURTEEN COURT DAYS TO CONFER WITH COUNSEL, AND THE RIGHT TO OBTAIN COUNSEL FEES AND EXPENSES, PURSUANT TO SECTION TWO HUNDRED THIRTY-SEVEN OF THIS ARTICLE. THE COURT SHALL ASSIGN COUNSEL TO THE ELIGIBLE PARTIES AND CHILDREN, PURSUANT TO ARTICLE TWO OF THE FAMILY COURT ACT AND SUBDIVISIONS SEVEN AND EIGHT OF SECTION THIRTY-FIVE OF THE JUDICIARY LAW. 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 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] SHALL consider the effect of such domestic violence upon the best interests of the child, together with such other facts and circumstances as the court deems relevant in making a direc- tion pursuant to this section and state on the record how such findings, facts and circumstances factored into the direction. If a parent makes a good faith allegation based on a reasonable belief supported by facts that the child is the victim of child abuse, child neglect, or the effects of domestic violence, and if that parent acts lawfully and in good faith in response to that 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 proceed- ing 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 A. 3346--C 3 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 dispositional hearing on the petition under article ten or the permanency hearing under arti- cle 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] SHALL determine custody or visitation in accordance with the terms of this section. An order directing the payment of child support shall contain the social security numbers of the named parties. In all cases there shall be no prima facie right to the custody of the child in either parent. Such direction shall make provision for child support out of the proper- ty of either or both parents. The court shall make its award for child support pursuant to subdivision one-b of this section. Such direction may provide for reasonable visitation rights to the maternal and/or paternal grandparents of any child of the parties. Such direction as it applies to rights of visitation with a child remanded or placed in the care of a person, official, agency or institution pursuant to article ten of the family court act, or pursuant to an instrument approved under section three hundred fifty-eight-a of the social services law, shall be enforceable pursuant to part eight of article ten of the family court act and sections three hundred fifty-eight-a and three hundred eighty- four-a of the social services law and other applicable provisions of law against any person having care and custody, or temporary care and custo- dy, of the child. Notwithstanding any other provision of law, any writ- ten application or motion to the court for the establishment, modifica- tion or enforcement of a child support obligation for persons not in receipt of public assistance and care [must] SHALL 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 chap- ter, 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 A. 3346--C 4 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. (a-1)(1) [Permanent and initial temporary orders of custody or visita- tion. Prior to the issuance of any permanent or initial temporary order of custody or visitation, the court shall conduct a review of the deci- sions and reports listed in subparagraph three of this paragraph. (2) Successive temporary orders of custody or visitation. Prior to the issuance of any successive temporary order of custody or visitation, the court shall conduct a review of the decisions and reports listed in subparagraph three of this paragraph, unless such a review has been conducted within ninety days prior to the issuance of such order. (3) Decisions and reports for review. The court shall conduct a review of] PROMPT EVIDENTIARY HEARING. UPON THE APPLICATION OF ANY PARTY TO AN ACTION CONCERNING CUSTODY OF OR VISITATION WITH A CHILD, OR OF AN ATTOR- NEY FOR THE CHILD, ASSERTING CREDIBLE ALLEGATIONS OF INCIDENTS OR THREATS OF DOMESTIC VIOLENCE, CHILD ABUSE OR CHILD NEGLECT THAT, IF TRUE, WOULD POSE A SERIOUS OR IMMINENT RISK TO THE SAFETY OF THE CHILD, THE COURT SHALL HOLD A PROMPT EVIDENTIARY HEARING TO DETERMINE WHETHER TEMPORARY LIMITATIONS OR CONDITIONS ON THE CUSTODY OR VISITATION RIGHTS OF THE PARTY WHO IS ALLEGED TO HAVE COMMITTED OR THREATENED TO COMMIT DOMESTIC VIOLENCE, CHILD ABUSE OR CHILD NEGLECT ARE NECESSARY TO AVOID SERIOUS OR IMMINENT RISK TO THE CHILD'S SAFETY. EXCEPT FOR GOOD CAUSE SHOWN, THE HEARING FOR SUCH DETERMINATION SHALL COMMENCE WITHIN TWENTY COURT DAYS OF THE APPLICATION FOR SUCH HEARING. THE COURT SHALL REMIND THE PARTIES OF THEIR RIGHT TO THE ASSISTANCE OF COUNSEL FOR THE PROMPT EVIDENTIARY HEARING. DURING SUCH HEARING, ONLY MATERIAL AND RELEVANT EVIDENCE SHALL BE ADMITTED. 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 APPLICATION UNDER THIS SECTION MAY BE MADE AT ANY TIME DURING THE PENDENCY OF THE PROCEEDINGS. AFTER A HEARING HAS BEEN HELD PURSUANT TO THIS PROVISION, A PARTY MAY REQUEST A SUBSEQUENT PROMPT EVIDENTIARY HEARING DURING THE PENDENCY OF LITIGATION FOR GOOD CAUSE SHOWN. DURING A PROMPT EVIDENTIARY HEARING, THE COURT SHALL CONSIDER the following, IF AVAILABLE: (i) related decisions in court proceedings initiated pursuant to arti- cle ten of the family court act, and all warrants issued under the fami- ly court act; [and] (ii) ANY PARTY'S HISTORY OF DOMESTIC VIOLENCE, CHILD ABUSE OR CHILD NEGLECT, CHILD SEXUAL ABUSE OR INCIDENTS INVOLVING HARM TO A CHILD, OR SERIOUS OR IMMINENT RISK TO THE CHILD'S SAFETY; (III) POLICE REPORTS, INCLUDING DOMESTIC VIOLENCE INCIDENT REPORTS OR REPORTING OF INCIDENTS INVOLVING CHILD ABUSE, CHILD NEGLECT OR DOMESTIC VIOLENCE BY A PARTY; (IV) EVIDENCE AND FINDINGS OF CHILD ABUSE, CHILD NEGLECT, DOMESTIC VIOLENCE, OR SERIOUS OR IMMINENT RISK TO THE CHILD'S SAFETY, INCLUDING BUT NOT LIMITED TO: (A) AN INCREASE IN FREQUENCY OR SEVERITY OF DOMESTIC VIOLENCE; A. 3346--C 5 (B) USE OR THREATS TO USE A WEAPON OR DANGEROUS INSTRUMENT, OR UNLAW- FUL POSSESSION OF FIREARMS; (C) THREATS TO HARM OR KILL THE CHILD, THE OTHER PARTY, THE OTHER PARTY'S CHILDREN, SELF OR OTHERS, OR COMPANION ANIMALS; (D) SEXUAL ABUSE OR OTHER SEXUAL OFFENSES AGAINST THE CHILD OR THE OTHER PARTY; (E) UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE IMAGE, PURSU- ANT TO SECTION 245.15 OF THE PENAL LAW; (F) INCIDENTS INVOLVING OBSTRUCTION OF BREATHING OR STRANGULATION; (G) ANY PARTY'S PATTERN OF ALCOHOL OR SUBSTANCE ABUSE THAT POSES SERI- OUS OR IMMINENT RISK TO THE CHILD'S SAFETY; (H) INCIDENTS OF VIOLENCE DURING PREGNANCY; (I) INCIDENTS OF STALKING OR CYBER STALKING; AND (J) COERCIVE CONTROL, AS DEFINED IN PARAGRAPH (B) OF SUBDIVISION ONE OF SECTION TWO HUNDRED FORTY-E OF THIS ARTICLE; AND (V) reports of the statewide computerized registry of orders of protection established and maintained pursuant to section two hundred twenty-one-a of the executive law, and reports of the sex offender registry established and maintained pursuant to section one hundred sixty-eight-b of the correction law. [(4)] (2) CONDITIONS OF CUSTODY OR VISITATION. IF THE COURT DETER- MINES THAT LIMITATIONS OR RESTRICTIONS OF A PARTY'S CUSTODY, VISITATION OR CONTACT WITH THE CHILD ARE NECESSARY PURSUANT TO A REVIEW OF ANY FINDINGS OR CREDIBLE ALLEGATIONS OF CHILD ABUSE, CHILD NEGLECT, DOMESTIC VIOLENCE, OR SERIOUS OR IMMINENT RISK TO THE CHILD'S SAFETY, AND THE DECISIONS AND REPORTS LISTED IN SUBPARAGRAPH ONE OF THIS PARAGRAPH, THE COURT SHALL SET FORTH CONDITIONS OF CUSTODY OR VISITATION IN A TEMPORARY ORDER OF CUSTODY OR VISITATION THAT PRIORITIZES THE AVOIDANCE OF SERIOUS OR IMMINENT RISK TO THE CHILD'S SAFETY. (I) THERE SHALL BE A REBUTTABLE PRESUMPTION THAT THE COURT SHALL NOT AWARD, IN A TEMPORARY ORDER OF CUSTODY OR VISITATION, SOLE OR JOINT CUSTODY OR VISITATION THAT IS UNSUPERVISED OR WITHOUT SUFFICIENT PROTECTIONS OF THE CHILD'S SAFETY TO A PARTY WHO POSES A SERIOUS OR IMMINENT RISK TO THE CHILD'S SAFETY. (II) THE COURT SHALL STATE IN WRITING ANY FINDINGS OF CHILD ABUSE, CHILD NEGLECT, DOMESTIC VIOLENCE, OR SERIOUS OR IMMINENT RISK TO THE CHILD'S SAFETY, AND THE FACTORS, DECISIONS AND REPORTS CONSIDERED IN MAKING SUCH FINDINGS AND THE REASONS FOR THE LIMITATIONS OR RESTRICTIONS PLACED ON A PARTY'S CUSTODY, VISITATION OR CONTACT WITH SUCH CHILD. WHEN A PROMPT EVIDENTIARY HEARING HAS BEEN HELD REGARDING SERIOUS OR IMMINENT RISK TO THE CHILD'S SAFETY AND THE COURT HAS RENDERED SUCH DECISION, THE PARTIES SHALL BE NOTIFIED OF THEIR RIGHT TO APPEAL. (III) IN ADDITION TO THE RIGHT OF APPEAL REGARDING A FINAL ORDER, ANY PARTY OR THE ATTORNEY FOR THE CHILD IN A PROCEEDING FOR A TEMPORARY ORDER OF CUSTODY OR VISITATION PURSUANT TO THIS SUBPARAGRAPH IN WHICH A PROMPT EVIDENTIARY HEARING HAS BEEN HELD REGARDING IMMINENT RISK TO THE CHILD'S SAFETY PURSUANT TO THE PROVISIONS OF THIS PARAGRAPH SHALL HAVE A RIGHT TO APPEAL THE GRANTING OR DENIAL OF THE TEMPORARY ORDER, OR THE TERMS OF SUCH ORDER, TO THE APPROPRIATE APPELLATE DIVISION. AN APPEAL UNDER THIS SUBPARAGRAPH SHALL BE GIVEN A PREFERENCE PURSUANT TO RULE FIVE THOUSAND FIVE HUNDRED TWENTY-ONE OF THE CIVIL PRACTICE LAW AND RULES. A NOTICE OF APPEAL REGARDING THE GRANTING OR DENIAL OF THE TEMPORARY ORDER, OR THE TERMS OF SUCH ORDER, BY THE SUPREME COURT UNDER THIS SUBPARAGRAPH SHALL BE FILED IN ACCORDANCE WITH SUBDIVISION (A) OF SECTION FIVE THOUSAND FIVE HUNDRED THIRTEEN OF THE CIVIL PRACTICE LAW A. 3346--C 6 AND RULES. A NOTICE OF APPEAL REGARDING THE GRANTING OR DENIAL OF THE TEMPORARY ORDER, OR THE TERMS OF SUCH ORDER, BY A FAMILY COURT UNDER THIS SUBDIVISION SHALL BE FILED NO LATER THAN THIRTY DAYS AFTER THE SERVICE BY A PARTY OR THE CHILD'S ATTORNEY UPON THE APPELLANT OF ANY ORDER FROM WHICH THE APPEAL IS TAKEN OR RECEIPT OF THE ORDER IN COURT OR THIRTY-FIVE DAYS FROM MAILING OR ELECTRONIC TRANSMISSION OF THE ORDER BY THE COURT, WHICHEVER IS EARLIEST. PENDING THE DETERMINATION OF SUCH APPEAL, THE APPELLATE DIVISION IN WHICH THE APPEAL IS PENDING MAY STAY THE ORDER ON APPEAL PURSUANT TO SUBDIVISION (C) OF SECTION FIVE THOUSAND FIVE HUNDRED NINETEEN OF THE CIVIL PRACTICE LAW AND RULES WHERE SUCH COURT DETERMINES THAT THE EFFECT OF THE ORDER ON APPEALS CREATES AN IMMINENT RISK TO THE SAFETY OF THE CHILD AND THAT A STAY IS NECESSARY TO AVOID SUCH RISK. THE PARTY APPLY- ING FOR THE STAY SHALL NOTIFY THE ATTORNEYS FOR ALL PARTIES AND THE ATTORNEY FOR THE CHILD OF THE TIME AND PLACE OF SUCH APPLICATION. THE PARTY APPLYING FOR THE STAY SHALL STATE IN THE APPLICATION THE ERRORS OF FACT OR LAW ALLEGEDLY COMMITTED BY THE TRIAL COURT. A PARTY APPLYING TO THE APPELLATE DIVISION FOR THE STAY SHALL MAKE EVERY REASONABLE EFFORT TO OBTAIN A COMPLETE TRANSCRIPT OF THE PROCEEDING BEFORE THE TRIAL COURT IN ACCORDANCE WITH THE RULES OF THE APPLICABLE APPELLATE DIVISION. (IV) 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 A MODIFICATION OF A TEMPORARY ORDER AS IS OTHERWISE PROVIDED BY LAW. (3) Notifying counsel and issuing orders. Upon consideration of deci- sions pursuant to article ten of the family court act, and registry reports and notifying counsel involved in the proceeding, or in the event of a self-represented party, notifying such party of the results thereof, including any court appointed attorney for children, the court may issue a temporary, successive temporary or final order of custody or visitation. [(5)] (4) Temporary emergency order. 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 custody or visitation in the event that it is not possible to timely review decisions and reports on regis- tries as required pursuant to subparagraph [three] ONE of this para- graph. [(6)] (5) After issuing a temporary emergency order. After issuing a temporary emergency order of custody or visitation, the court shall conduct reviews of the decisions and reports on registries as required pursuant to subparagraph [three] ONE of this paragraph within twenty- four hours of the issuance of such temporary emergency order. Should such twenty-four hour period fall on a day when court is not in session, then the required reviews shall take place the next day the court is in session. Upon reviewing decisions and reports the court shall notify associated counsel, self-represented parties and attorneys for children pursuant to subparagraph [four] THREE of this paragraph and may issue temporary or permanent custody or visitation orders. [(7)] (6) Feasibility study. The commissioner of the office of chil- dren and family services, in conjunction with the office of court admin- istration, is hereby authorized and directed to examine, study, evaluate and make recommendations concerning the feasibility of the utilization of computers in courts which are connected to the statewide central register of child abuse and maltreatment established and maintained pursuant to section four hundred twenty-two of the social services law, as a means of providing courts with information regarding parties A. 3346--C 7 requesting orders of custody or visitation. Such commissioner shall make a preliminary report to the governor and the legislature of findings, conclusions and recommendations not later than January first, two thou- sand nine, and a final report of findings, conclusions and recommenda- tions not later than June first, two thousand nine, and shall submit with the reports such legislative proposals as are deemed necessary to implement the commissioner's recommendations. § 4. The domestic relations law is amended by adding a new section 240-e to read as follows: § 240-E. CUSTODY AND VISITATION; SAFETY OF THE CHILD. THE LEGISLATURE RECOGNIZES THAT THE SAFETY OF CHILDREN IS OF PARAMOUNT IMPORTANCE AND IS AN INTEGRAL ELEMENT OF THEIR BEST INTERESTS. TO THAT END, THE LEGISLA- TURE FINDS THAT JUDICIAL DECISIONS REGARDING CUSTODY OF, AND ACCESS TO, CHILDREN SHALL PROMOTE THE SAFETY OF CHILDREN AS A THRESHOLD ISSUE. 1. FOR THE PURPOSES OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS: (A) "VICTIM OF DOMESTIC VIOLENCE" SHALL HAVE THE SAME MEANING AS DEFINED IN SECTION FOUR HUNDRED FIFTY-NINE-A OF THE SOCIAL SERVICES LAW. (B) "COERCIVE CONTROL" MEANS A PATTERN OF BEHAVIOR THAT IN PURPOSE OR EFFECT UNREASONABLY RESTRICTS A PARTY'S SAFETY OR AUTONOMY THROUGH IMPLICIT OR EXPLICIT THREATS, OR INTIMIDATION, OR BY COMPELLING COMPLI- ANCE. THIS CONDUCT INCLUDES, BUT IS NOT LIMITED TO: (I) ISOLATING THE OTHER PARTY FROM FRIENDS, FAMILY OR OTHER SOURCES OF SUPPORT; (II) INTERFERING WITH A PARTY'S FREEDOM OF MOVEMENT; (III) DEPRIVING THE OTHER PARTY OF BASIC NECESSITIES SUCH AS FOOD, SLEEP, CLOTHING, HOUSING, MEDICATION OR MEDICAL CARE; (IV) CONTROLLING, REGULATING, SURVEILLING OR MONITORING THE OTHER PARTY'S MOVEMENTS, COMMUNICATIONS, DAILY BEHAVIOR, APPEARANCE, FINANCES, ECONOMIC RESOURCES OR ACCESS TO SERVICES; (V) COMPELLING THE OTHER PARTY BY FORCE, THREAT OF FORCE OR INTIM- IDATION, INCLUDING BUT NOT LIMITED TO THREATS BASED ON ACTUAL OR SUSPECTED IMMIGRATION STATUS, TO ENGAGE IN CONDUCT FROM WHICH THE OTHER PARTY HAS A RIGHT TO ABSTAIN OR TO ABSTAIN FROM CONDUCT IN WHICH THE OTHER PARTY HAS A RIGHT TO ENGAGE; (VI) INTERFERING WITH THE OTHER PARTY'S EDUCATION OR EMPLOYMENT; (VII) FORCING OR COMPELLING THE OTHER PARTY TO PERFORM SEX ACTS, OR THREATS OF A SEXUAL NATURE, INCLUDING BUT NOT LIMITED TO THREATENED ACTS OF SEXUAL CONDUCT, THREATS BASED ON A PERSON'S SEXUALITY OR THREATS TO RELEASE INTIMATE IMAGES; OR (VIII) CLEANING, ACCESSING, DISPLAYING, USING OR WEARING A FIREARM OR OTHER DANGEROUS WEAPON IN AN INTIMIDATING OR THREATENING MANNER. 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 SAFETY OF SUCH CHILD WHEN MAKING SUCH DETER- MINATIONS. ONLY COMPETENT, MATERIAL, AND RELEVANT EVIDENCE SHALL BE ADMITTED, HOWEVER, THE HEARSAY STATEMENTS OF THE CHILD MAY BE ADMITTED WHEN CORROBORATED BY OTHER EVIDENCE, PURSUANT TO ARTICLE TEN OF THE FAMILY COURT ACT. PROMOTING THE SAFETY OF A CHILD SHALL INCLUDE PREVENT- ING DIRECT PHYSICAL OR EMOTIONAL HARM TO SUCH CHILD. IN MAKING SUCH FINAL DETERMINATIONS, THE COURT, IF POSSIBLE, SHOULD CONSIDER: (A) WHICH PARTY IS MORE LIKELY TO PROTECT THE SAFETY OF THE CHILD, AND WHETHER ANY PARTY POSES A SERIOUS OR IMMINENT RISK TO THE SAFETY OF THE CHILD; A. 3346--C 8 (B) WHETHER ANY PARTY TO THE PROCEEDING HAS COMMITTED, OR HAS THREAT- ENED TO COMMIT, AN ACT OF CHILD ABUSE OR CHILD NEGLECT AGAINST THE CHILD, OR HAS COMMITTED OR THREATENED TO COMMIT 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 MEMBER IS DEFINED IN ARTICLE EIGHT OF THE FAMILY COURT ACT; (C) ANY PARTY'S HISTORY OF DOMESTIC VIOLENCE, CHILD ABUSE OR CHILD NEGLECT, CHILD SEXUAL ABUSE OR INCIDENTS INVOLVING HARM TO A CHILD OR SERIOUS OR IMMINENT RISK TO THE CHILD'S SAFETY; (D) POLICE REPORTS, INCLUDING DOMESTIC VIOLENCE INCIDENT REPORTS OR REPORTING OF INCIDENTS INVOLVING CHILD ABUSE, CHILD NEGLECT OR DOMESTIC VIOLENCE BY A PARTY; (E) EVIDENCE AND FINDINGS OR ALLEGATIONS OF CHILD ABUSE, CHILD NEGLECT, DOMESTIC VIOLENCE, OR SERIOUS OR IMMINENT RISK TO THE CHILD'S SAFETY, INCLUDING BUT NOT LIMITED TO: (I) AN INCREASE IN FREQUENCY OR SEVERITY OF DOMESTIC VIOLENCE; (II) USE OR THREATS TO USE A WEAPON OR DANGEROUS INSTRUMENT, OR UNLAW- FUL POSSESSION OF FIREARMS; (III) THREATS TO HARM OR KILL THE CHILD, THE OTHER PARTY, THE OTHER PARTY'S CHILDREN, SELF OR OTHERS, OR COMPANION ANIMALS; (IV) SEXUAL ABUSE OR OTHER SEXUAL OFFENSES AGAINST THE CHILD OR OTHER PARTY; (V) UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE IMAGE, PURSU- ANT TO SECTION 245.15 OF THE PENAL LAW; (VI) INCIDENTS INVOLVING OBSTRUCTION OF BREATHING OR STRANGULATION; (VII) ANY PARTY'S PATTERN OF ALCOHOL OR SUBSTANCE ABUSE THAT POSES SERIOUS OR IMMINENT RISK TO THE CHILD'S SAFETY; (VIII) INCIDENTS OF VIOLENCE DURING PREGNANCY; (IX) INCIDENTS OF STALKING OR CYBER STALKING; AND (X) COERCIVE CONTROL, AS DEFINED IN PARAGRAPH (B) OF SUBDIVISION ONE OF THIS SECTION; (F) WHETHER ANY PARTY HAS BEEN FOUND TO HAVE COMMITTED AN ACT PURSUANT TO SECTION EIGHT HUNDRED TWELVE OF THE FAMILY COURT ACT BETWEEN SPOUSES OR FORMER SPOUSES, OR BETWEEN PARENT AND CHILD OR BETWEEN MEMBERS OF THE SAME FAMILY OR HOUSEHOLD; (G) WHETHER ANY PARTY HAS USED OR THREATENED TO USE A DANGEROUS INSTRUMENT TO HARM THE OTHER PARTY, CHILD, OR A THIRD PARTY, INCLUDING A FIREARM, EXCEPT IN INCIDENTS INVOLVING SELF-DEFENSE, OR HAS UNLAWFULLY POSSESSED A WEAPON OR FIREARM, OR HAS BEEN CONVICTED OF CRIMINAL POSSESSION OF A WEAPON OR CRIMINAL USE OF A FIREARM PURSUANT TO ARTICLE TWO HUNDRED SIXTY-FIVE OF THE PENAL LAW, OR IS OR HAS BEEN SUBJECT TO AN EXTREME RISK PROTECTION ORDER, PURSUANT TO ARTICLE SIXTY-THREE-A OF THE CIVIL PRACTICE LAW AND RULES; AND (H) WHICH PARTY HAS BEEN THE PRIMARY CARETAKER OF THE CHILD, PRIMARILY ATTENDING TO THE PHYSICAL, EMOTIONAL, DEVELOPMENTAL, EDUCATIONAL, AND ANY SPECIAL NEEDS OF THE CHILD. 3. THERE SHALL BE A REBUTTABLE PRESUMPTION THAT CUSTODY OR VISITATION THAT IS UNSUPERVISED OR WITHOUT SUFFICIENT PROTECTION OF THE CHILD'S SAFETY SHALL NOT BE AWARDED TO A PARTY WHO POSES A SERIOUS OR IMMINENT RISK TO THE CHILD'S SAFETY. 4. (A) IN ANY PROCEEDING FOR CUSTODY OR VISITATION WHERE A PARTY ASSERTS CREDIBLE ALLEGATIONS OF INCIDENTS OR THREATS OF DOMESTIC VIOLENCE, CHILD ABUSE OR CHILD NEGLECT, THE COURT SHALL NOT FIND THAT THE PARTY WHO HAS MADE SUCH ALLEGATIONS HAS ALIENATED THE CHILD AGAINST THE OTHER PARTY OR FAILED TO SUPPORT THE CHILD'S RELATIONSHIP WITH THE OTHER PARTY. A. 3346--C 9 (B) THE COURT SHALL NOT PRESUME THAT A CHILD'S RELUCTANCE TO INTERACT WITH A PARTY WAS CAUSED BY THE OTHER PARTY, NOR SHALL A PARTY BE GIVEN CUSTODY FOR THE PURPOSE OF IMPROVING A RELATIONSHIP BETWEEN THE CHILD AND SUCH PARTY OR IN AN ATTEMPT TO ADDRESS THE CHILD'S RELUCTANCE TO INTERACT WITH SUCH PARTY. (C) IN CASES INVOLVING DOMESTIC VIOLENCE, COERCIVE CONTROL, CHILD ABUSE OR CHILD NEGLECT, THE COURT SHALL NOT ORDER THE CHILD TO A REUNIFICATION CAMP WITH A PARTY THAT POSES A SERIOUS OR IMMINENT RISK TO THE CHILD'S SAFETY. (D) NOTHING IN THIS SECTION SHALL BE CONSTRUED TO CREATE AN EXCEPTION TO SECTION SEVEN HUNDRED FIFTY-THREE OF THE JUDICIARY LAW, OR ANY OTHER ENFORCEMENT PROVISION, SUCH THAT A PARTY MAY SEEK TO ENFORCE ANY PROPER RULING OF THE COURT, UNLESS STAYED, CONCERNING ACCESS TO THE CHILD OR CONDITIONS OF ACCESS TO THE CHILD. 5. IN CASES INVOLVING DOMESTIC VIOLENCE, COERCIVE CONTROL, CHILD ABUSE OR CHILD NEGLECT, THERE SHALL BE A REBUTTABLE PRESUMPTION THAT NO ORDER OF JOINT CUSTODY SHALL BE MADE. THE COURT SHALL NOT SUGGEST THAT IN ORDER TO RETAIN CUSTODY, A PARTY MUST AGREE TO JOINT CUSTODY. THE COURT SHALL NOT USE A PARTY'S REFUSAL TO CONSENT TO JOINT CUSTODY AGAINST SUCH PARTY WHEN MAKING ITS FINAL CUSTODY OR VISITATION DETERMINATION. 6. (A) THE CHIEF ADMINISTRATOR OF THE COURTS SHALL PROMULGATE AND ENFORCE RULES MANDATING COMPREHENSIVE TRAINING ON DOMESTIC VIOLENCE, CHILD ABUSE AND CHILD NEGLECT 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 AND SUPPLEMENTAL TRAINING EVERY TWO YEARS THEREAFTER TO REMAIN ELIGIBLE TO PRESIDE OVER SUCH PROCEEDINGS. SUCH TRAINING SHALL ADDRESS CURRENT KNOWLEDGE AND LAW RELATING TO DOMESTIC VIOLENCE, CHILD ABUSE AND CHILD NEGLECT, WITH THE GOAL OF MAKING APPROPRIATE CUSTODY AND VISITATION DECISIONS THAT PRIOR- ITIZE CHILDREN'S SAFETY AND ARE CULTURALLY SENSITIVE AND APPROPRIATE FOR DIVERSE COMMUNITIES. THE OFFICE OF COURT ADMINISTRATION, IN CONSULTATION WITH THE OFFICE FOR THE PREVENTION OF DOMESTIC VIOLENCE, SHALL DEVELOP AND CONDUCT SUCH TRAINING, WHICH SHALL BE REVIEWED AND UPDATED AT LEAST ONCE EVERY TWO YEARS. SUCH TRAINING SHALL INCLUDE, BUT NOT BE LIMITED TO: (1) RELEVANT STATUTES AND CASE LAW PERTAINING TO DOMESTIC VIOLENCE AND CHILD ABUSE; (2) THE POWER AND CONTROL DYNAMICS OF DOMESTIC VIOLENCE AND CHILD ABUSE, INCLUDING BUT NOT LIMITED TO, STALKING, AND EMOTIONAL, FINANCIAL, PHYSICAL, TECHNOLOGICAL, CYBER, SEXUAL, AND LITIGATION ABUSE, AND THE TACTICS COMMONLY USED TO INDUCE FEAR IN OR TO DOMINATE OR CONTROL A PARTNER OR CHILD, INCLUDING COERCIVE CONTROL; (3) THE BARRIERS AND FEARS ASSOCIATED WITH REPORTING DOMESTIC VIOLENCE AND CHILD ABUSE AND NEGLECT, AND THE INCREASED RISK OF ESCALATING VIOLENCE DURING CHILD CUSTODY AND VISITATION PROCEEDINGS; (4) THE SCIENCE AND EXPERIENCE OF TRAUMA AND OTHER PSYCHOLOGICAL IMPACTS OF ABUSE IN ADULTS AND CHILDREN, INCLUDING THE IMPORTANCE OF JUDGES MAINTAINING TRAUMA-INFORMED COURTS, AND THE DANGERS AND INADMIS- SIBILITY OF NON-SCIENTIFIC THEORIES, SUCH AS PARENTAL ALIENATION, PARENTAL ALIENATION SYNDROME, PARENTAL GATEKEEPING, OR ANY OTHER THEORY THAT IS NOT SUPPORTED BY SCIENTIFIC RESEARCH AND NOT GENERALLY ACCEPTED BY THE SCIENTIFIC COMMUNITY; (5) THE DISTINCTION BETWEEN INAPPROPRIATE INTERFERENCE WITH THE CHILD- PARENT RELATIONSHIP VERSUS PROTECTIVE PARENTING IN THE CONTEXT OF DOMES- TIC VIOLENCE OR CHILD ABUSE AND NEGLECT; A. 3346--C 10 (6) HOW TO CONSIDER SERIOUS AND IMMINENT RISK TO A CHILD OR SUCH CHILD'S PARENT, PURSUANT TO SUBDIVISION ONE OF SECTION TWO HUNDRED FORTY OF THIS ARTICLE FOR THE PURPOSE OF ISSUING A TEMPORARY ORDER OF CUSTODY OR VISITATION; (7) BEST PRACTICES IN ASSESSING ALLEGATIONS OF DOMESTIC VIOLENCE AND CHILD ABUSE AND NEGLECT; IN ASSESSING THE VALUE AND LIMITATIONS OF REPORTS OF SUSPECTED CHILD ABUSE OR NEGLECT CONDUCTED BY LAW ENFORCEMENT OR DEPARTMENTS OF SOCIAL SERVICES; AND (8) ASSESSING THE QUALIFICATIONS AND REPORTS OF CHILD CUSTODY EVALU- ATORS AND MENTAL HEALTH TREATMENT PROVIDERS. § 5. Section 70 of the domestic relations law, as amended by chapter 457 of the laws of 1988, is amended to read as follows: § 70. Habeas corpus for child detained by parent. (a) THE LEGISLATURE RECOGNIZES THAT THE SAFETY OF CHILDREN IS OF PARAMOUNT IMPORTANCE AND IS AN INTEGRAL ELEMENT OF THEIR BEST INTERESTS. TO THAT END, THE LEGISLA- TURE FINDS THAT JUDICIAL DECISIONS REGARDING CUSTODY OF, AND ACCESS TO, CHILDREN SHALL PROMOTE THE SAFETY OF CHILDREN AS A THRESHOLD ISSUE. (B)(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. [(b)] WHERE THE COURT ISSUES ANY INITIAL OR SUCCESSIVE TEMPORARY ORDER OF CUSTODY OR VISITATION OR PERMANENT ORDER OF CUSTODY OR VISITATION, THE COURT SHALL CONDUCT A REVIEW OF ANY FINDINGS OR CREDIBLE ALLEGATIONS OF CHILD ABUSE, CHILD NEGLECT, DOMESTIC VIOLENCE, OR SERIOUS OR IMMINENT RISK TO THE CHILD'S SAFETY, AND THE DECISIONS AND REPORTS LISTED IN SUBPARAGRAPH ONE OF PARAGRAPH (A-1) OF SUBDIVISION ONE OF SECTION TWO HUNDRED FORTY OF THIS CHAPTER, UNLESS SUCH A REVIEW HAS BEEN CONDUCTED WITHIN NINETY DAYS PRIOR TO THE ISSUANCE OF SUCH ORDER. (II) WHEN ISSUING ANY TEMPORARY ORDER OF CUSTODY OR VISITATION, THE COURT SHALL STATE IN WRITING ANY FINDINGS OF CHILD ABUSE, CHILD NEGLECT, DOMESTIC VIOLENCE, OR SERIOUS OR IMMINENT RISK TO THE CHILD'S SAFETY, AND THE FACTORS, DECISIONS AND REPORTS CONSIDERED IN MAKING SUCH FIND- INGS, AND THE REASONS FOR ANY LIMITATIONS OR RESTRICTIONS PLACED ON A PARTY'S CUSTODY, VISITATION OR CONTACT WITH SUCH CHILD. ANY PARTY OR THE ATTORNEY FOR THE CHILD IN A PROCEEDING FOR A TEMPORARY ORDER IN WHICH A PROMPT EVIDENTIARY HEARING HAS BEEN HELD REGARDING IMMINENT RISK TO THE CHILD'S SAFETY PURSUANT TO THIS CHAPTER SHALL HAVE A RIGHT TO APPEAL TO THE APPROPRIATE APPELLATE DIVISION, PURSUANT TO ARTICLE ELEVEN OF THE FAMILY COURT ACT. (III) 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 SAFETY OF SUCH CHILD WHEN MAKING SUCH DETERMINATIONS. ONLY COMPETENT, MATERIAL AND RELEVANT EVIDENCE SHALL BE ADMITTED, PURSUANT TO ARTICLE TEN OF THE FAMILY COURT ACT, HOWEVER THE HEARSAY STATEMENTS OF THE CHILD MAY BE ADMITTED WHEN CORROBORATED BY OTHER EVIDENCE. PROMOTING THE SAFETY OF A CHILD SHALL INCLUDE PREVENTING DIRECT PHYSICAL OR EMOTIONAL HARM TO SUCH CHILD AND SHALL BE ASSESSED BY A. 3346--C 11 CONSIDERING ANY FINDINGS OR CREDIBLE ALLEGATIONS OF CHILD ABUSE, CHILD NEGLECT, DOMESTIC VIOLENCE, OR SERIOUS OR IMMINENT RISK TO THE CHILD'S SAFETY, AND DECISIONS AND REPORTS IDENTIFIED IN SUBPARAGRAPH ONE OF PARAGRAPH (A-1) OF SUBDIVISION ONE OF SECTION TWO HUNDRED FORTY OF THIS CHAPTER. (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 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. (V) IN CASES INVOLVING DOMESTIC VIOLENCE, COERCIVE CONTROL, CHILD ABUSE OR CHILD NEGLECT, THERE SHALL BE A REBUTTABLE PRESUMPTION THAT NO ORDER OF JOINT CUSTODY SHALL BE MADE. THE COURT SHALL NOT SUGGEST THAT IN ORDER TO RETAIN CUSTODY, A PARTY MUST AGREE TO JOINT CUSTODY. THE COURT SHALL NOT USE A PARTY'S REFUSAL TO CONSENT TO JOINT CUSTODY AGAINST SUCH PARTY WHEN MAKING ITS FINAL CUSTODY OR VISITATION DETERMI- NATION, AS DESCRIBED IN SUBDIVISION FIVE OF SECTION TWO HUNDRED FORTY-E OF THIS CHAPTER. (VI) 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 PARAGRAPH (A) OF SUBDIVISION SIX OF SECTION TWO HUNDRED FORTY-E OF THIS CHAPTER. ONCE INITIAL TRAINING REQUIREMENTS HAVE BEEN MET, JUDGES, REFEREES AND OTHER HEARING OFFICERS SHALL COMPLETE ADDITIONAL TRAINING EVERY TWO YEARS THEREAFTER TO REMAIN ELIGIBLE TO PRESIDE OVER SUCH PROCEEDINGS AS DESCRIBED PURSUANT TO PARAGRAPH (A) OF SUBDIVISION SIX OF SECTION TWO HUNDRED FORTY-E OF THIS CHAPTER. (C) Any order under this section which applies to rights of visitation with a child remanded or placed in the care of a person, official, agen- cy 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 the provisions of part eight of article ten of such act, 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 or official having care and custody, or temporary care and custody, of such child. § 6. Subdivision (b) of section 651 of the family court act, as amended by chapter 657 of the laws of 2003, is amended to read as follows: (b) (I) When initiated in the family court, the family court has jurisdiction to determine, in accordance with subdivision one of section two hundred forty of the domestic relations law and with the same powers possessed by the supreme court in addition to its own powers, habeas corpus proceedings and proceedings brought by petition and order to show cause, for the determination of the custody or visitation of minors, including applications by a grandparent or grandparents for visitation or custody rights pursuant to section seventy-two or two hundred forty of the domestic relations law. (II) THE FAMILY COURT SHALL, IN COLLABORATION WITH THE OFFICE FOR THE PREVENTION OF DOMESTIC VIOLENCE, UPDATE ITS PETITION USED BY PARTIES TO INITIATE CHILD CUSTODY AND VISITATION PROCEEDINGS IN A MANNER TO PERMIT PETITIONERS TO IDENTIFY FINDINGS OR ALLEGATIONS OF CHILD ABUSE, CHILD A. 3346--C 12 NEGLECT, DOMESTIC VIOLENCE, OR SERIOUS OR IMMINENT RISK TO A CHILD'S SAFETY. § 7. Subdivision (e) of section 651 of the family court act, as amended by chapter 295 of the laws of 2009, is amended to read as follows: (e) THE LEGISLATURE RECOGNIZES THAT THE SAFETY OF CHILDREN IS OF PARA- MOUNT IMPORTANCE AND IS AN INTEGRAL ELEMENT OF THEIR BEST INTERESTS. TO THAT END, THE LEGISLATURE FINDS THAT JUDICIAL DECISIONS REGARDING CUSTO- DY OF, AND ACCESS TO, CHILDREN SHALL PROMOTE THE SAFETY OF CHILDREN AS A THRESHOLD ISSUE. 1. [Permanent and initial temporary orders of custody or visitation. Prior to the issuance of any permanent or initial temporary order of custody or visitation, the court shall conduct a review of the decisions and reports listed in paragraph three of this subdivision.] PROMPT EVIDENTIARY HEARING. UPON THE APPLICATION OF A PARTY TO AN ACTION CONCERNING CUSTODY OF OR VISITATION WITH A CHILD, OR OF AN ATTORNEY FOR THE CHILD, ASSERTING CREDIBLE ALLEGATIONS OF INCIDENTS OR THREATS OF DOMESTIC VIOLENCE, CHILD ABUSE OR CHILD NEGLECT THAT, IF TRUE, WOULD POSE A SERIOUS OR IMMINENT RISK TO THE SAFETY OF THE CHILD, THE COURT SHALL HOLD A PROMPT EVIDENTIARY HEARING TO DETERMINE WHETHER TEMPORARY LIMITATIONS OR CONDITIONS ON THE CUSTODY OR VISITATION RIGHTS OF THE PARTY WHO IS ALLEGED TO HAVE COMMITTED OR THREATENED TO COMMIT DOMESTIC VIOLENCE, CHILD ABUSE OR CHILD NEGLECT ARE NECESSARY TO AVOID SERIOUS OR IMMINENT RISK TO THE CHILD'S SAFETY, PURSUANT TO PARAGRAPH (A-1) OF SUBDIVISION ONE OF SECTION TWO HUNDRED FORTY AND SECTION TWO HUNDRED FORTY-E OF THE DOMESTIC RELATIONS LAW. WHEN THE PARTIES FIRST APPEAR IN COURT, THE COURT SHALL ADVISE THE PARTIES BEFORE PROCEEDING OF THE RIGHT TO BE REPRESENTED BY COUNSEL OF THEIR OWN CHOOSING, OF THE RIGHT TO HAVE AN ADJOURNMENT OF NO LONGER THAN FOURTEEN COURT DAYS TO CONFER WITH COUNSEL, AND THE RIGHT TO OBTAIN COUNSEL FEES AND EXPENSES, PURSUANT TO SECTION TWO HUNDRED THIRTY-SEVEN OF THE DOMESTIC RELATIONS LAW. THE COURT SHALL ASSIGN COUNSEL TO THE ELIGIBLE PARTIES AND CHILDREN, PURSU- ANT TO ARTICLE TWO OF THIS CHAPTER AND SUBDIVISIONS SEVEN AND EIGHT OF SECTION THIRTY-FIVE OF THE JUDICIARY LAW. 2. [Successive temporary orders of custody or visitation. Prior to the issuance of any successive temporary order of custody or visitation, the court shall conduct a review of the decisions and reports listed in paragraph three of this subdivision, unless such a review has been conducted within ninety days prior to the issuance of such order. 3. Decisions] FINDINGS AND ALLEGATIONS OF CHILD ABUSE, CHILD NEGLECT, DOMESTIC VIOLENCE, AND SERIOUS OR IMMINENT RISK TO A CHILD'S SAFETY, AND THE DECISIONS and reports for review. The court shall conduct a review of the following, IF AVAILABLE: (i) related decisions in court proceedings initiated pursuant to arti- cle ten of this act, and all warrants issued under this act; [and] (ii) WHETHER ANY PARTY TO THE ACTION ALLEGES THAT THE OTHER PARTY TO THE PROCEEDING HAS COMMITTED, OR HAS THREATENED TO COMMIT, AN ACT OF CHILD ABUSE OR CHILD NEGLECT AGAINST THE CHILD, OR HAS COMMITTED, OR HAS THREATENED 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 THIS CHAPTER; (III) ANY PARTY'S HISTORY OF DOMESTIC VIOLENCE, CHILD ABUSE OR CHILD NEGLECT, CHILD SEXUAL ABUSE OR INCIDENTS INVOLVING HARM TO A CHILD, OR SERIOUS OR IMMINENT RISK TO A CHILD'S SAFETY; A. 3346--C 13 (IV) POLICE REPORTS, INCLUDING DOMESTIC VIOLENCE INCIDENT REPORTS, OR REPORTING OF INCIDENTS INVOLVING CHILD ABUSE, CHILD NEGLECT OR DOMESTIC VIOLENCE BY A PARTY; (V) EVIDENCE, FINDINGS AND CREDIBLE ALLEGATIONS OF CHILD ABUSE, CHILD NEGLECT, DOMESTIC VIOLENCE, OR SERIOUS OR IMMINENT RISK TO A CHILD'S SAFETY, INCLUDING BUT NOT LIMITED TO: (A) AN INCREASE IN FREQUENCY OR SEVERITY OF DOMESTIC VIOLENCE; (B) USE OR THREATS TO USE A WEAPON OR DANGEROUS INSTRUMENT, OR UNLAW- FUL POSSESSION OF FIREARMS; (C) THREATS TO HARM OR KILL THE CHILD, THE OTHER PARTY, THE OTHER PARTY'S CHILDREN, SELF OR OTHERS, OR COMPANION ANIMALS; (D) SEXUAL ABUSE OR OTHER SEXUAL OFFENSES AGAINST THE CHILD OR OTHER PARTY; (E) UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE IMAGE, PURSU- ANT TO SECTION 245.15 OF THE PENAL LAW; (F) INCIDENTS INVOLVING OBSTRUCTION OF BREATHING OR STRANGULATION; (G) ANY PARTY'S PATTERN OF ALCOHOL OR SUBSTANCE ABUSE THAT POSES SERI- OUS OR IMMINENT RISK TO THE CHILD'S SAFETY; (H) INCIDENTS OF VIOLENCE DURING PREGNANCY; (I) INCIDENTS OF STALKING OR CYBER STALKING; AND (J) COERCIVE CONTROL, AS DEFINED IN PARAGRAPH (B) OF SUBDIVISION ONE OF SECTION TWO HUNDRED FORTY-E OF THE DOMESTIC RELATIONS LAW; AND (VI) reports of the statewide computerized registry of orders of protection established and maintained pursuant to section two hundred twenty-one-a of the executive law, and reports of the sex offender registry established and maintained pursuant to section one hundred sixty-eight-b of the correction law. 3. APPEAL. IN ADDITION TO THE RIGHT OF APPEAL REGARDING A FINAL ORDER, ANY PARTY OR THE ATTORNEY FOR THE CHILD IN A PROCEEDING FOR A TEMPORARY ORDER OF CUSTODY OR VISITATION PURSUANT TO THIS PARAGRAPH IN WHICH A PROMPT EVIDENTIARY HEARING HAS BEEN HELD REGARDING IMMINENT RISK TO THE CHILD'S SAFETY BY REASON OF A FAMILY OFFENSE OR CHILD MALTREATMENT IN AN APPLICATION FOR A PERMANENT OR TEMPORARY ORDER OF CUSTODY OR VISITATION SHALL HAVE A RIGHT TO APPEAL THE GRANTING OR DENIAL OF THE TEMPORARY ORDER, OR THE TERMS OF SUCH ORDER, TO THE APPROPRIATE APPELLATE DIVI- SION. AN APPEAL UNDER THIS SUBPARAGRAPH SHALL BE GIVEN A PREFERENCE PURSUANT TO RULE FIVE THOUSAND FIVE HUNDRED TWENTY-ONE OF THE CIVIL PRACTICE LAW AND RULES. A NOTICE OF APPEAL REGARDING THE GRANTING OR DENIAL OF THE TEMPORARY ORDER, OR THE TERMS OF SUCH ORDER, BY THE SUPREME COURT UNDER THIS SUBDIVISION SHALL BE FILED IN ACCORDANCE WITH SUBDIVISION (A) OF SECTION FIVE THOUSAND FIVE HUNDRED THIRTEEN OF THE CIVIL PRACTICE LAW AND RULES. A NOTICE OF APPEAL REGARDING THE GRANTING OR DENIAL OF THE TEMPORARY ORDER, OR THE TERMS OF SUCH ORDER, BY A FAMILY COURT UNDER THIS SUBDIVI- SION SHALL BE FILED NO LATER THAN THIRTY DAYS AFTER THE SERVICE BY A PARTY OR THE CHILD'S ATTORNEY UPON THE APPELLANT OF ANY ORDER FROM WHICH THE APPEAL IS TAKEN OR RECEIPT OF THE ORDER IN COURT OR THIRTY-FIVE DAYS FROM MAILING OR ELECTRONIC TRANSMISSION OF THE ORDER BY THE COURT, WHICHEVER IS EARLIEST. PENDING THE DETERMINATION OF SUCH APPEAL, THE APPELLATE DIVISION IN WHICH THE APPEAL IS PENDING MAY STAY THE ORDER ON APPEAL PURSUANT TO SUBDIVISION (C) OF SECTION FIVE THOUSAND FIVE HUNDRED NINETEEN OF THE CIVIL PRACTICE LAW AND RULES WHERE SUCH COURT DETERMINES THAT THE EFFECT OF THE ORDER ON APPEALS CREATES AN IMMINENT RISK TO THE SAFETY OF THE CHILD AND THAT A STAY IS NECESSARY TO AVOID SUCH RISK. THE PARTY APPLY- ING FOR THE STAY SHALL NOTIFY THE ATTORNEYS FOR ALL PARTIES AND THE A. 3346--C 14 ATTORNEY FOR THE CHILD OF THE TIME AND PLACE OF SUCH APPLICATION. THE PARTY APPLYING FOR THE STAY SHALL STATE IN THE APPLICATION THE ERRORS OF FACT OR LAW ALLEGEDLY COMMITTED BY THE TRIAL COURT. A PARTY APPLYING TO THE APPELLATE DIVISION FOR THE STAY SHALL MAKE EVERY REASONABLE EFFORT TO OBTAIN A COMPLETE TRANSCRIPT OF THE PROCEEDING BEFORE THE TRIAL COURT IN ACCORDANCE WITH THE RULES OF THE APPLICABLE APPELLATE DIVISION. 4. Notifying counsel and issuing orders. Upon consideration of deci- sions pursuant to article ten of this act, and registry reports and notifying counsel involved in the proceeding, or in the event of a self- represented party, notifying such party of the results thereof, includ- ing any court appointed attorney for children, the court may issue a temporary, successive temporary or final order of custody or visitation. 5. Temporary emergency order. 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 custody or visitation in the event that it is not possible to timely review decisions and reports on registries as required pursuant to paragraph [three] TWO of this subdivision. 6. After issuing a temporary emergency order. After issuing a tempo- rary emergency order of custody or visitation, the court shall conduct reviews of the decisions and reports on registries as required pursuant to paragraph [three] TWO of this subdivision within twenty-four hours of the issuance of such temporary emergency order. Should such twenty-four hour period fall on a day when court is not in session, then the required reviews shall take place the next day the court is in session. Upon reviewing decisions and reports the court shall notify associated counsel, self-represented parties and attorneys for children pursuant to paragraph four of this subdivision and may issue temporary or permanent custody or visitation orders. 7. Feasibility study. The commissioner of the office of children and family services, in conjunction with the office of court administration, is hereby authorized and directed to examine, study, evaluate and make recommendations concerning the feasibility of the utilization of comput- ers in family courts which are connected to the statewide central regis- ter of child abuse and maltreatment established and maintained pursuant to section four hundred twenty-two of the social services law, as a means of providing family courts with information regarding parties requesting orders of custody or visitation. Such commissioner shall make a preliminary report to the governor and the legislature of findings, conclusions and recommendations not later than January thirty-first, two thousand nine, and a final report of findings, conclusions and recommen- dations not later than June first, two thousand nine, and shall submit with the reports such legislative proposals as are deemed necessary to implement the commissioner's recommendations. § 8. 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 MAY BE TAKEN AS OF RIGHT TO THE APPROPRIATE APPELLATE DIVISION OF THE SUPREME COURT from an intermediate or final order in a case involving abuse or neglect [may be taken as of right to the appellate division of the supreme court] UNDER ARTICLE TEN OF THIS ACT OR FROM AN ORDER OF THE COURT AFTER A PROMPT EVIDENTIARY HEARING UNDER SECTION SIX HUNDRED FIFTY-ONE OF THIS ACT OR SECTION SEVENTY OR TWO HUNDRED FORTY OF THE DOMESTIC RELATIONS LAW DETERMINING A. 3346--C 15 AN ALLEGATION OF IMMINENT RISK TO THE CHILD'S SAFETY AND GRANTING OR DENYING A TEMPORARY EMERGENCY ORDER OF CUSTODY OR VISITATION. (I) Pend- ing the determination of such appeal, such order shall be stayed where the effect of [such] THE order ON APPEAL 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] IN A CASE ALLEGING ABUSE OR NEGLECT PURSUANT TO ARTICLE TEN OF THIS ACT. IN AN APPEAL FROM AN ORDER IN A CUSTODY OR VISITATION PROCEEDING UNDER ARTICLE SIX OF THIS ACT OR SECTION SEVENTY OR TWO HUNDRED FORTY OF THE DOMESTIC RELATIONS LAW THAT WAS ISSUED UPON A PROMPT EVIDENTIARY HEARING REGARDING AN ALLEGATION OF IMMINENT RISK TO A CHILD'S SAFETY, THE COURT BEFORE WHICH THE APPEAL IS TAKEN MAY STAY THE ORDER ON APPEAL WHERE THE ORDER WOULD CAUSE AN IMMINENT RISK TO THE CHILD'S SAFETY DURING THE PENDENCY OF THE APPEAL AND WHERE SUCH COURT FINDS THAT A STAY IS NECESSARY TO AVOID SUCH IMMINENT RISK. (II) 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 AND APPEALS FROM ORDERS ISSUED UNDER PART THREE OF ARTICLE SIX OF THIS ACT OR SECTION SEVENTY OR TWO HUNDRED FORTY OF THE DOMESTIC RELATIONS LAW UPON A PROMPT EVIDENTIARY HEARING REGARDING AN ALLEGATION OF IMMINENT RISK TO THE CHILD'S SAFETY. § 9. Subdivision (d) of section 1114 of the family court act, as amended by chapter 41 of the laws of 2010, is amended to read as follows: (d) Any party to a child protective proceeding, or the attorney for the child, may apply to a justice of the appellate division for a stay of an order issued pursuant to part two of article ten of this chapter returning a child to the custody of a respondent. SUCH AN APPLICATION MAY ALSO BE MADE IN ACCORDANCE WITH SECTION ONE THOUSAND ONE HUNDRED TWELVE OF THIS ACT OR SUBDIVISION (C) OF SECTION FIVE THOUSAND FIVE HUNDRED NINETEEN OF THE CIVIL PRACTICE LAW AND RULES TO STAY A COURT ORDER OF CUSTODY OR VISITATION PURSUANT TO THIS ACT OR THE DOMESTIC RELATIONS LAW WHERE THE ORDER ON APPEAL WOULD CAUSE AN IMMINENT RISK TO THE CHILD'S SAFETY AND WHERE THE COURT BEFORE WHICH SUCH APPEAL IS PEND- ING FINDS THAT SUCH A STAY IS NECESSARY TO AVOID SUCH IMMINENT RISK. The party applying for the stay shall notify the attorneys for all parties and the attorney for the child of the time and place of such applica- tion. If requested by any party present, oral argument shall be had on the application, except for good cause stated upon the record. The party applying for the stay shall state in the application the errors of fact or law allegedly committed by the [family] TRIAL court. A party applying to the [court] APPELLATE DIVISION for the granting or continuation of such stay shall make every reasonable effort to obtain a complete tran- script of the proceeding before the [family] TRIAL court IN ACCORDANCE WITH THE RULES OF THE APPLICABLE APPELLATE DIVISION. § 10. Subdivision (a) of section 249 of the family court act, as amended by chapter 3 of the laws of 2012, is amended to read as follows: (a) In a proceeding under article three, seven, ten, ten-A or ten-C of this act or where a revocation of an adoption consent is opposed under section one hundred fifteen-b of the domestic relations law or in any proceeding under section three hundred fifty-eight-a, three hundred eighty-three-c, three hundred eighty-four or three hundred eighty-four-b A. 3346--C 16 of the social services law or when a minor is sought to be placed in protective custody under section one hundred fifty-eight of this act or in any proceeding where a minor is detained under or governed by the interstate compact for juveniles established pursuant to section five hundred one-e of the executive law, the family court shall appoint an attorney to represent a minor who is the subject of the proceeding or who is sought to be placed in protective custody, if independent legal representation is not available to such minor. In any proceeding to extend or continue the placement of a juvenile delinquent or person in need of supervision pursuant to section seven hundred fifty-six or 353.3 of this act or any proceeding to extend or continue a commitment to the custody of the commissioner of mental health or the commissioner of people with developmental disabilities pursuant to section 322.2 of this act, the court shall not permit the respondent to waive the right to be represented by counsel chosen by the respondent, respondent's parent, or other person legally responsible for the respondent's care, or by assigned counsel. In any proceeding under article ten-B of this act, the family court shall appoint an attorney to represent a youth, under the age of twenty-one, who is the subject of the proceeding, if independent legal representation is not available to such youth. IN ANY PROCEEDING UNDER ARTICLE SIX OF THIS ACT, THE COURT SHALL APPOINT AN ATTORNEY TO REPRESENT THE CHILD WHEN CREDIBLE ALLEGATIONS OF SERIOUS OR IMMINENT RISK TO THE CHILD'S SAFETY HAVE BEEN MADE. In any other proceeding in which the court has jurisdiction, INCLUDING ALL PROCEEDINGS UNDER ARTI- CLE SIX OF THIS ACT, the court may appoint an attorney to represent the child, when, in the opinion of the family court judge, such represen- tation will serve the purposes of this act, if independent legal counsel is not available to the child. The family court on its own motion may make such appointment. § 11. Subdivision (a) of section 249 of the family court act, as amended by chapter 672 of the laws of 2019, is amended to read as follows: (a) In a proceeding under article three, seven, ten, ten-A or ten-C of this act or where a revocation of an adoption consent is opposed under section one hundred fifteen-b of the domestic relations law or in any proceeding under section three hundred fifty-eight-a, three hundred eighty-three-c, three hundred eighty-four or three hundred eighty-four-b of the social services law or when a minor is sought to be placed in protective custody under section one hundred fifty-eight of this act, the family court shall appoint an attorney to represent a minor who is the subject of the proceeding or who is sought to be placed in protec- tive custody, if independent legal representation is not available to such minor. In any proceeding to extend or continue the placement of a juvenile delinquent or person in need of supervision pursuant to section seven hundred fifty-six or 353.3 of this act or any proceeding to extend or continue a commitment to the custody of the commissioner of mental health or the commissioner of the office for people with developmental disabilities pursuant to section 322.2 of this act, the court shall not permit the respondent to waive the right to be represented by counsel chosen by the respondent, respondent's parent, or other person legally responsible for the respondent's care, or by assigned counsel. In any proceeding under article ten-B of this act, the family court shall appoint an attorney to represent a youth, under the age of twenty-one, who is the subject of the proceeding, if independent legal represen- tation is not available to such youth. IN ANY PROCEEDING UNDER ARTICLE SIX OF THIS ACT, THE COURT SHALL APPOINT AN ATTORNEY TO REPRESENT THE A. 3346--C 17 CHILD WHEN CREDIBLE ALLEGATIONS OF SERIOUS OR IMMINENT RISK TO THE CHILD'S SAFETY HAVE BEEN MADE. In any other proceeding in which the court has jurisdiction, INCLUDING ALL PROCEEDINGS UNDER ARTICLE SIX OF THIS ACT, the court may appoint an attorney to represent the child, when, in the opinion of the family court judge, such representation will serve the purposes of this act, if independent legal counsel is not available to the child. The family court on its own motion may make such appointment. § 12. Subdivision (b) of rule 5521 of the civil practice law and rules, as amended by chapter 707 of the laws of 2019, is amended to read as follows: (b) Consistent with the provisions of section one thousand one hundred twelve of the family court act, appeals from orders, judgments or decrees in proceedings brought pursuant to articles three, seven, ten and ten-A and parts one and two of article six of the family court act, and pursuant to 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, and pursuant to paragraph (d) of subdivision four and subparagraph (ii) of paragraph (d) of subdivision five of section eighty-nine of the public officers law, AND APPEALS FROM ORDERS ISSUED UNDER PART THREE OF ARTICLE SIX OF THE FAMILY COURT ACT OR SECTION SEVENTY OR TWO HUNDRED FORTY OF THE DOMESTIC RELATIONS LAW UPON A PROMPT EVIDENTIARY HEARING REGARDING AN ALLEGATION OF IMMINENT RISK TO A CHILD'S SAFETY shall be given preference and may be brought on for argument on such terms and conditions as the court may direct without the necessity of a motion. § 13. This act shall take effect on the one hundred twentieth day after it shall have become a law; provided, however, that the amendments to subdivision (a) of section 249 of the family court act made by section ten of this act shall be subject to the expiration and reversion of such subdivision pursuant to section 8 of chapter 29 of the laws of 2011, as amended, when upon such date the provisions of section eleven of this act shall take effect. 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 and completed on or before such effective date.
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