S T A T E O F N E W Y O R K
________________________________________________________________________
4532
2009-2010 Regular Sessions
I N A S S E M B L Y
February 4, 2009
___________
Introduced by M. of A. MAYERSOHN, GALEF, SEMINERIO, BARRA, CUSICK,
P. RIVERA -- Multi-Sponsored by -- M. of A. ALFANO, BURLING, CHRISTEN-
SEN, CROUCH, CYMBROWITZ, FINCH, FITZPATRICK, HOOPER, KOLB, KOON, McEN-
ENY, MILLER, NOLAN, PHEFFER, RAMOS, SWEENEY, TOWNS, TOWNSEND, WEISEN-
BERG -- read once and referred to the Committee on Children and
Families
AN ACT to amend the domestic relations law and the family court act, in
relation to the custody of children by parents or guardians who have
committed certain homicidal offenses
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 1-c of section 240 of the domestic relations
law, as added by chapter 150 of the laws of 1998 and paragraphs (a) and
(c) as amended by chapter 378 of the laws of 1999, is amended to read as
follows:
1-c. (a) Notwithstanding any other provision of this chapter to the
contrary, no court shall make an order providing for visitation or
custody to a person who has been convicted of murder in the first or
second degree, MANSLAUGHTER IN THE FIRST OR SECOND DEGREE, OR CRIMINALLY
NEGLIGENT HOMICIDE in this state, or convicted of an offense in another
jurisdiction which, if committed in this state, would constitute either
murder in the first or second degree, MANSLAUGHTER IN THE FIRST OR
SECOND DEGREE, OR CRIMINALLY NEGLIGENT HOMICIDE, of a parent, legal
custodian, legal guardian, sibling , half-sibling or step-sibling of any
child who is the subject of the proceeding. Pending determination of a
petition for visitation or custody, such child shall not visit and no
person shall visit with such child present, such person who has been
convicted of murder in the first or second degree, MANSLAUGHTER IN THE
FIRST OR SECOND DEGREE, OR CRIMINALLY NEGLIGENT HOMICIDE in this state,
or convicted of [and] AN offense in another jurisdiction which, if
committed in this state, would constitute either murder in the first or
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD04503-01-9
A. 4532 2
second degree, MANSLAUGHTER IN THE FIRST OR SECOND DEGREE, OR CRIMINALLY
NEGLIGENT HOMICIDE, of a parent, legal custodian, legal guardian,
sibling, half-sibling or step-sibling of a child who is the subject of
the proceeding [without the consent of such child's custodian or legal
guardian].
(b) Notwithstanding paragraph (a) of this subdivision a court may
order visitation or custody where:
(i) (A) such child is [of suitable] AT LEAST FIFTEEN YEARS OF age [to
signify assent] and such child assents to such visitation or custody; or
(B) [if such child is not of suitable age to signify assent, the
child's custodian or legal guardian assents to such order; or
(C)] the person who has been convicted of murder in the first or
second degree, MANSLAUGHTER IN THE FIRST OR SECOND DEGREE, OR CRIMINALLY
NEGLIGENT HOMICIDE, or an offense in another jurisdiction which if
committed in this state, would constitute either murder in the first or
second degree, MANSLAUGHTER IN THE FIRST OR SECOND DEGREE, OR CRIMINALLY
NEGLIGENT HOMICIDE, can prove by a preponderance of the evidence that:
(1) he or she, or a family or household member of either party, was a
victim of domestic violence by the victim of such [murder] HOMICIDE; and
(2) the domestic violence was causally related to the commission of
such [murder] HOMICIDE; and
(ii) the court finds that such visitation or custody is in the best
interests of the child.
(c) For the purpose of making a determination pursuant to clause [(C)]
(B) of subparagraph (i) of paragraph (b) of this subdivision, the court
shall not be bound by the findings of fact, conclusions of law or ulti-
mate conclusion as determined by the proceedings leading to the
conviction of murder in the first or second degree, MANSLAUGHTER IN THE
FIRST OR SECOND DEGREE, OR CRIMINALLY NEGLIGENT HOMICIDE in this state
or of an offense in another jurisdiction which, if committed in this
state, would constitute murder in either the first or second degree,
MANSLAUGHTER IN THE FIRST OR SECOND DEGREE, OR CRIMINALLY NEGLIGENT
HOMICIDE, of a parent, legal guardian, legal custodian, sibling, half-
sibling or step-sibling of a child who is the subject of the proceeding.
In all proceedings under this section, a law guardian shall be appointed
for the child.
S 2. Section 1085 of the family court act, as amended by chapter 378
of the laws of 1999, is amended to read as follows:
S 1085. Visitation and custody rights unenforceable; murder of parent,
custodian, guardian, or child. 1. No visitation or custody order shall
be enforceable under this part by a person who has been convicted of
murder in the first or second degree, MANSLAUGHTER IN THE FIRST OR
SECOND DEGREE, OR CRIMINALLY NEGLIGENT HOMICIDE in this state, or
convicted of an offense in another jurisdiction which, if committed in
this state, would constitute either murder in the first or second
degree, MANSLAUGHTER IN THE FIRST OR SECOND DEGREE, OR CRIMINALLY NEGLI-
GENT HOMICIDE, of a parent, legal custodian, legal guardian, sibling,
half-sibling or step-sibling of the child unless:
(i) (A) such child is [of suitable] AT LEAST FIFTEEN YEARS OF age [to
signify assent] and such child assents to such visitation or custody; or
(B) [if such child is not of suitable age to signify assent the
child's custodian or legal guardian assents to such order; or
(C)] the person who has been convicted of murder in the first or
second degree, MANSLAUGHTER IN THE FIRST OR SECOND DEGREE, OR CRIMINALLY
NEGLIGENT HOMICIDE, or an offense in another jurisdiction which if
committed in this state, would constitute either murder in the first or
A. 4532 3
second degree, MANSLAUGHTER IN THE FIRST OR SECOND DEGREE, OR CRIMINALLY
NEGLIGENT HOMICIDE, can prove by a preponderance of the evidence that:
(1) he or she, or a family or household member of either party, was a
victim of domestic violence by the victim of such [murder] HOMICIDE; and
(2) the domestic violence was causally related to the commission of
such [murder] HOMICIDE; and
(ii) the court finds that such visitation or custody is in the best
interest of the child.
2. Pending determination of a petition for visitation or custody such
child shall not visit and no person shall visit, with such child pres-
ent, such person, legal guardian or legal custodian who has been
convicted of murder in the first or second degree, MANSLAUGHTER IN THE
FIRST OR SECOND DEGREE, OR CRIMINALLY NEGLIGENT HOMICIDE in this state,
or an offense in another jurisdiction which, if committed in this state,
would constitute either murder in the first or second degree,
MANSLAUGHTER IN THE FIRST OR SECOND DEGREE, OR CRIMINALLY NEGLIGENT
HOMICIDE, of the other parent, legal guardian, legal custodian, sibling,
half-sibling or step-sibling of such child[, without the consent of such
child's custodian or legal guardian].
3. Nothing contained in this section shall be construed to require a
court, without petition from any of the interested parties, to review a
previously issued order of visitation or custody or denial of such peti-
tion.
4. For the purposes of making a determination pursuant to subparagraph
[(C)] (B) of paragraph (i) of subdivision one of this section, the court
shall not be bound by the findings of fact, conclusions of law or ulti-
mate conclusion as determined by the proceedings leading to the
conviction of murder in the first or second degree, MANSLAUGHTER IN THE
FIRST OR SECOND DEGREE, OR CRIMINALLY NEGLIGENT HOMICIDE in this state
or of an offense in another jurisdiction which, if committed in this
state, would constitute murder in either the first or second degree,
MANSLAUGHTER IN THE FIRST OR SECOND DEGREE, OR CRIMINALLY NEGLIGENT
HOMICIDE, of a parent, legal guardian, legal custodian, sibling, half-
sibling or step-sibling of a child who is the subject of the proceeding.
In all proceedings under this section, a law guardian shall be appointed
for the child.
S 3. This act shall take effect immediately.