senate Bill S3507A

Negates the issue of military deployment as a factor in the awarding of child custody

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 05 / Feb / 2013
    • REFERRED TO CHILDREN AND FAMILIES
  • 22 / Apr / 2013
    • AMEND (T) AND RECOMMIT TO CHILDREN AND FAMILIES
  • 22 / Apr / 2013
    • PRINT NUMBER 3507A
  • 06 / May / 2013
    • 1ST REPORT CAL.534
  • 07 / May / 2013
    • 2ND REPORT CAL.
  • 08 / May / 2013
    • ADVANCED TO THIRD READING
  • 21 / May / 2013
    • PASSED SENATE
  • 21 / May / 2013
    • DELIVERED TO ASSEMBLY
  • 21 / May / 2013
    • REFERRED TO JUDICIARY
  • 08 / Jan / 2014
    • DIED IN ASSEMBLY
  • 08 / Jan / 2014
    • RETURNED TO SENATE
  • 08 / Jan / 2014
    • REFERRED TO CHILDREN AND FAMILIES
  • 03 / Feb / 2014
    • 1ST REPORT CAL.89
  • 04 / Feb / 2014
    • 2ND REPORT CAL.
  • 10 / Feb / 2014
    • ADVANCED TO THIRD READING
  • 26 / Feb / 2014
    • PASSED SENATE
  • 26 / Feb / 2014
    • DELIVERED TO ASSEMBLY
  • 26 / Feb / 2014
    • REFERRED TO JUDICIARY

Summary

Provides that the issue of military deployment shall not be considered as a factor in the awarding of custody where a suitable child care plan is presented; provides, upon return of a military member from a deployment, for the reinstatement of the child custody order in effect prior to such deployment.

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Bill Details

See Assembly Version of this Bill:
A6035A
Versions:
S3507
S3507A
Legislative Cycle:
2013-2014
Current Committee:
Assembly Judiciary
Law Section:
Domestic Relations Law
Laws Affected:
Amd ยงยง70, 75-l & 240, Dom Rel L
Versions Introduced in 2011-2012 Legislative Cycle:
S5049, A8550

Sponsor Memo

BILL NUMBER:S3507A REVISED MEMO 02/26/2014

TITLE OF BILL: An act to amend the domestic relations law, in
relation to child custody when a parent is deployed on military active
duty

PURPOSE:

Provides that the issue of military deployment shall not be considered
as a factor in the awarding of custody where a suitable child care
plan in presented; provides, upon return of a military member from a
deployment, for the reinstatement of the child custody order in effect
prior to such deployment.

SUMMARY OF PROVISIONS:

Section One - amends Section 70 of the domestic relations law by
adding a new subdivision (c) to state that the court shall not
consider the past or current deployment, or possible future deployment
of a parent in active service of the armed forces of the United States
or of the organized militia of the state as a detrimental factor to
the awarding of custody of a child where a suitable child care plan
has been presented to the court by the petitioning parent.

Section Two - amends Subdivision 3 of section 75-1 of the domestic
relations law to state that within thirty days of such return the
child custody order in effect immediately prior to any modifications
thereof pursuant to subdivisions one and two of this section shall be
reinstated in full force and effect.

Section Three- amends Paragraph (a) of subdivision 1 of section 240 of
the domestic relations law, to include subdivision one-d which states
that the court shall not consider the past or current deployment, or
possible future deployment of a parent in active service of the armed
forces of the United States or of the organized militia of the state
as a detrimental factor to the awarding of custody of a child to a
petitioning parent where a suitable child care plan has been presented
to the court by the parent

Section Four - sets forth an immediate effective date

JUSTIFICATION:

On March 14, 2011, Senator Greg Ball, Chairman of the Committee on
Veterans, Homeland Security and Military Affairs held a hearing on the
current status, quality of life and health of veterans and military
service members in the State of New York. The most startling and
emotional testimony came from Mr. Harold Cooney, Northeast Region
Liaison from the Office of the Deputy Assistant Secretary of Defense
and Ms. Tanya Towne, a veteran of the National Guard, on the current
custody issues facing our military service men and women.

According to testimony given by Ms. Towne at this hearing and the
poignant account of her story featured in goodhousekeeping.com, she
was deployed to Tikrit, Iraq with her National Guard unit in 2004. A
temporary order was issued for her son to stay with his father being
Ms. Towne's ex-husband. Shortly before Ms. Towne was expected to


return home her ex-husband unexpectedly filed and was granted
permanent custody of their son.

When returning home from an 18 month tour guarding convoys in Iraq,
away from her home and family, Ms, Towne was not greeted by her son.
Her husband refused to let him attend her homecoming. Ten days later
Ms. Towne appeared in court to regain custody and was denied. A
custody trial was scheduled for February of 2006 and her son was
ordered to stay with his father until such proceeding.

Ms. Towne withdrew money from her retirement account to pay for a
lawyer and prepared to go to trial. When Ms. Towne's husband was asked
why he had never fought for custody previously he admitted that until
Towne went to Iraq, there were no grounds - drawing the possible
conclusion that if Ms. Towne had never gone to serve her country, she
would still have primary, uncontested custody of her son. In August of
2006, a Judge ruled the Ms. Towne's ex-husband provided a more stable
environment and awarded him primary custody of their son.

Regardless of the financial burden, Ms. Towne continued her plight to
recover the life with her son she had prior to serving in Iraq. Her
appeal came before the Appellate Division for the Third Judicial
Department of New York State Supreme Court in October of 2007. Ms.
Towne's attorney vehemently argued it was inappropriate for the family
court to use her deployment as grounds to contest a custody
arrangement. On January 3, 2008, after a two year custody battle, the
Judges ruled that the "consequences of her extended absence" had to be
considered in awarding custody of her son. They stated that it was not
in the best interest of the child to move him once again. Therefore,
Ms. Towne's ex-husband was granted permanent custody.

In Ms. Towne's emotional testimony she stated the obvious - soldiers
should not have to choose between serving their country and losing
their family. If she had any idea that she would risk losing custody
of her child she would have done anything to prevent herself from
having to serve overseas for an extended period of time.

Military service members sacrifice an insurmountable amount of time
away from their families for the protection of their country. It is
completely unjustifiable and embarrassing that New York State would
allow them to lose custody of their children based on their military
service. Both Arizona and California have laws that bar a parent's
deployment from being considered whatsoever in a change-of-custody
hearing. In Michigan and Kentucky, the order of custody for Ms.
Towne's son would have automatically expired upon Ms. Towne's return.

Pentagon officials and military-family support groups state there are
no statistics on the number of military parents who have lost custody
of their children following deployments - but they agree that the
number is increasing. This legislation is imperative to ensure the
best interests of both military service members and their families are
protected. Military service men and women should be concerned and
focused on the protection of our country and their safety while on
duty and not have to worry that their service to this country will
jeopardize their standing as a custodial parent in their child or
children's lives upon return.


LEGISLATIVE HISTORY:

5/21/13 - Passed in Senate, A.6035A - Held in Judiciary
2012 - S 5049, Held in Children & Families, A.8550 - Held in Judiciary

FISCAL IMPLICATIONS:

None.

EFFECTIVE DATE:

This act shall take effect immediately.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 3507--A

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            February 5, 2013
                               ___________

Introduced  by Sens. BALL, RANZENHOFER, ZELDIN -- read twice and ordered
  printed, and when printed to be committed to the Committee on Children
  and Families -- committee discharged, bill amended, ordered  reprinted
  as amended and recommitted to said committee

AN ACT to amend the domestic relations law, in relation to child custody
  when a parent is deployed on military active duty

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Section 70 of the domestic  relations  law  is  amended  by
adding a new subdivision (c) to read as follows:
  (C)  NOTWITHSTANDING  ANY  OTHER PROVISION OF LAW TO THE CONTRARY, THE
COURT SHALL NOT CONSIDER THE PAST OR  CURRENT  DEPLOYMENT,  OR  POSSIBLE
FUTURE  DEPLOYMENT  OF A PARENT IN ACTIVE SERVICE OF THE ARMED FORCES OF
THE UNITED STATES OR OF THE ORGANIZED MILITIA OF THE STATE AS  A  DETRI-
MENTAL  FACTOR  TO  THE  AWARDING OF CUSTODY OF A CHILD WHERE A SUITABLE
CHILD CARE PLAN HAS BEEN PRESENTED  TO  THE  COURT  BY  THE  PETITIONING
PARENT.
  S  2.  Subdivision 3 of section 75-l of the domestic relations law, as
amended by chapter 473 of the laws  of  2009,  is  amended  to  read  as
follows:
  3. Unless the parties have otherwise stipulated or agreed, if an order
is issued under this section, the return of the parent from active mili-
tary  service,  deployment or temporary assignment shall be considered a
substantial change in circumstances, AND  WITHIN  THIRTY  DAYS  OF  SUCH
RETURN  THE  CHILD  CUSTODY  ORDER  IN  EFFECT  IMMEDIATELY PRIOR TO ANY
MODIFICATIONS THEREOF PURSUANT TO  SUBDIVISIONS  ONE  AND  TWO  OF  THIS
SECTION  SHALL BE REINSTATED AND BE IN FULL FORCE AND EFFECT.  [Upon the
request of either parent, the court shall determine on the basis of  the
child's  best interests whether the custody judgment or order previously
in effect should be modified.]

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07304-02-3

S. 3507--A                          2

  S 3. Paragraph (a) of subdivision 1 of section  240  of  the  domestic
relations law, as amended by chapter 476 of the laws of 2009, is amended
and a new subdivision 1-d is added to read as follows:
  (a)  In any action or proceeding brought (1) to annul a marriage or to
declare the nullity of a void marriage, or (2) for a separation, or  (3)
for  a divorce, or (4) to obtain, by a writ of habeas corpus or by peti-
tion and order to show cause, the custody of or right to visitation with
any child of a marriage, the court shall  require  verification  of  the
status of any child of the marriage with respect to such child's custody
and  support,  including  any  prior  orders, and shall enter orders for
custody and support as, in the  court's  discretion,  justice  requires,
having  regard  to  the  circumstances of the case and of the respective
parties and to the best interests  of  the  child  and  subject  to  the
provisions  of  [subdivision]  SUBDIVISIONS  one-c  AND  ONE-D  of  this
section. Where either party to an action  concerning  custody  of  or  a
right  to  visitation  with  a  child  alleges  in  a  sworn petition or
complaint or sworn answer, cross-petition, counterclaim or  other  sworn
responsive  pleading that the other party has committed an act of domes-
tic violence against the party making the  allegation  or  a  family  or
household  member of either party, as such family or household member is
defined in article eight of the family court act, and  such  allegations
are  proven  by a preponderance of the evidence, the court must consider
the effect of such domestic violence upon  the  best  interests  of  the
child,  together  with  such  other facts and circumstances as the court
deems relevant in making a direction pursuant to this section and  state
on  the  record how such findings, facts and circumstances factored into
the direction. If a parent makes a good  faith  allegation  based  on  a
reasonable  belief  supported  by  facts that the child is the victim of
child abuse, child neglect, or the effects of domestic violence, and  if
that  parent acts lawfully and in good faith in response to that reason-
able belief to protect the child or seek treatment for the  child,  then
that parent shall not be deprived of custody, visitation or contact with
the child, or restricted in custody, visitation or contact, based solely
on  that belief or the reasonable actions taken based on that belief. If
an allegation that a child is abused is supported by a preponderance  of
the  evidence,  then  the court shall consider such evidence of abuse in
determining the visitation arrangement that is in the best  interest  of
the  child,  and  the  court shall not place a child in the custody of a
parent who presents a substantial risk of harm to that child, and  shall
state  on  the  record how such findings were factored into the determi-
nation. 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
property  of  either or both parents. The court shall make its award for
child support pursuant to subdivision one-b of this section. Such direc-
tion 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-

S. 3507--A                          3

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.
  1-D.  NOTWITHSTANDING  ANY OTHER PROVISION OF LAW TO THE CONTRARY, THE
COURT SHALL NOT CONSIDER THE PAST OR  CURRENT  DEPLOYMENT,  OR  POSSIBLE
FUTURE  DEPLOYMENT  OF A PARENT IN ACTIVE SERVICE OF THE ARMED FORCES OF
THE UNITED STATES OR OF THE ORGANIZED MILITIA OF THE STATE AS  A  DETRI-
MENTAL  FACTOR  TO  THE  AWARDING OF CUSTODY OF A CHILD TO A PETITIONING
PARENT WHERE A SUITABLE CHILD CARE PLAN HAS BEEN PRESENTED TO THE  COURT
BY SUCH PARENT.
  S 4. This act shall take effect immediately.

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