NY State Assembly Bill 2009-A8789

Assembly Bill A8789

Signed By Governor

2009-2010 Legislative Session

Relates to orders of custody involving a parent activated, deployed or temporarily assigned to the military

download bill text pdf

Archive: Last Bill Status - Signed by Governor

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

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Actions

View Actions

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Sep 16, 2009	signed chap.473
Sep 04, 2009	delivered to governor
Jul 16, 2009	returned to assembly passed senate 3rd reading cal.879 substituted for s6037
Jun 18, 2009	referred to rules delivered to senate passed assembly ordered to third reading rules cal.481 rules report cal.481 reported
Jun 16, 2009	reported referred to rules
Jun 09, 2009	referred to judiciary

Votes

- Jul 16, 2009 - Floor Vote
  A8789
  
  46
  
  Aye
  
  11
  
  Nay
  
  0
  
  Absent
  
  5
  
  Excused
  
  0
  
  Abstained
  - - Floor Vote: Jul 16, 2009
      
      aye (46)
      
      Adams
      
      Addabbo Jr.
      
      Alesi
      
      Aubertine
      
      Bonacic
      
      Breslin
      
      Dilan
      
      Duane
      
      Espada
      
      Farley
      
      Fuschillo
      
      Griffo
      
      Hannon
      
      Hassell-Thompson
      
      Huntley
      
      Johnson
      
      Klein
      
      Krueger
      
      LaValle
      
      Libous
      
      Little
      
      Maziarz
      
      McDonald
      
      Monserrate
      
      Montgomery
      
      Nozzolio
      
      Onorato
      
      Oppenheimer
      
      Padavan
      
      Parker
      
      Perkins
      
      Robach
      
      Sampson
      
      Savino
      
      Schneiderman
      
      Serrano
      
      Seward
      
      Smith
      
      Stachowski
      
      Stavisky
      
      Stewart-Cousins
      
      Thompson
      
      Valesky
      
      Volker
      
      Winner
      
      Young
      
      nay (11)
      
      DeFrancisco
      
      Flanagan
      
      Golden
      
      Lanza
      
      Larkin
      
      Leibell
      
      Marcellino
      
      Morahan
      
      Ranzenhofer
      
      Saland
      
      Skelos
      
      excused (5)
      
      Diaz
      
      Foley
      
      Johnson
      
      Kruger
      
      Squadron

multi-Sponsors

2009-A8789 (ACTIVE) - Details

See Senate Version of this Bill:: S6037
Law Section:: Domestic Relations Law
Laws Affected:: Amd §§75-l & 240, Dom Rel L; amd §651, Fam Ct Act; amd §253, Mil L

2009-A8789 (ACTIVE) - Summary

Relates to orders of custody involving a parent activated, deployed or temporarily assigned to the military; removes requirement that all orders issued in child custody and visitation proceedings involving a parent in active military service be deemed temporary.

2009-A8789 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:A8789

TITLE OF BILL:
An act to amend the domestic relations law, the family court act and the
military law, in relation to orders of custody involving a parent acti-
vated, deployed or temporarily assigned to military service

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Family
Court Advisory and Rules Committee.

In 2008, legislation was enacted requiring that all orders issued in
child custody and visitation proceedings involving a parent in active
military service be deemed temporary. See L. 2008, c. 576. Upon return
from military service, chapter 576 permits the parent to reopen custody
and visitation proceedings for a determination of whether the return
from service constitutes a change of circumstances sufficient to afford
him or her standing to seek modification of a prior order.

This measure would amend Article 6 of the Family Court Act and section
240 of the Domestic Relations Law, as well as section 75-1 of such Law,
the provision added by chapter 576. Section 75-1 was added to the
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), the
uniform act promulgated by the National Conference of Commissioners of
Uniform State Laws to address custody and visitation cases in which
parties are domiciled in different states or countries. Article 6 of the

Family Court Act and section 240 of the Domestic Relations Law are the
statutes addressing custody and visitation issues where parties reside
in New York State and are thus the primary statutes governing custody
and visitation litigation in the State. Since the vast majority of
custody and visitation proceedings in New York courts involve New York
residents, these statutes, not simply the UCCJEA, must be amended if the
purposes of chapter 576 are to be fully achieved.

This measure would guarantee that, unless the parties have stipulated or
agreed to the contrary, a parent's return from active deployment in the
military would automatically constitute a "substantial change in circum-
stance" that will afford the parent standing to obtain reconsideration
of a prior custody or visitation order. Chapter 576 simply permitted the
returning parent to seek the court's threshold determination of whether
the return constitutes a sufficient change in circumstances, which had
already been permitted under prior case law.

This measure also deletes the requirement that all orders issued during
or in anticipation of the parent's active deployment be termed "tempo-
rary." Since the measure would render automatic a parent's standing to
reopen a custody or visitation order upon his or her return from mili-
tary service, there would be no need to label all orders issued during
the parent's service as "temporary."

Moreover, there is no need to deem all such orders "temporary," as
courts are already required to issue stays of proceedings where appro-
priate.

SUMMARY OF PROVISIONS:
Section 1. Amends section 75-1 of the Domestic Relations Law to remove
the requirement that all orders issued in child custody and visitation
proceedings involving a parent in active military service be deemed
temporary to instead provide that, unless the parties have stipulated or
agreed to the contrary, a parent's return from active deployment in the
military would automatically constitute a "substantial change in circum-
stance" that will afford the parent standing to obtain reconsideration
of a prior custody or visitation order.

Sections 2 and 3. Amend section 240 of the Domestic Relations Law to add
a new paragraph (a-2) and section 651 of the Family Court Act to add a
new subdivision (f) to conform them to section 75-1 of the Domestic
Relations Law as amended by this legislation.

Section 4. Amends section 253 of the Military Law to make clear that any
child custody proceeding which involves a parent who is activated,
deployed, or temporarily assigned to military service shall be governed
by the new provisions of the Family Court Act and the Domestic Relations
Law set out in sections 2 and 3 of this legislation.

Section 5. Establishes the effective date of this legislation.

2008 LEGISLATIVE HISTORY:
None. New proposal.

2009-A8789 (ACTIVE) - Bill Text download pdf

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

                                  8789

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                              June 9, 2009
                               ___________

Introduced  by M. of A. ORTIZ -- Multi-Sponsored by -- M. of A. TOWNS --
  (at request of the Office of Court Administration) --  read  once  and
  referred to the Committee on Judiciary

AN ACT to amend the domestic relations law, the family court act and the
  military  law,  in  relation  to  orders of custody involving a parent
  activated, deployed or temporarily assigned to military service

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

  Section  1.  Section  75-l  of the domestic relations law, as added by
chapter 576 of the laws of 2008, is amended to read as follows:
  S 75-l. Military service by parent; effect  on  child  custody  orders
PURSUANT TO THIS ARTICLE. 1.  During the period of time that a parent is
activated,  deployed  or  temporarily assigned to military service, such
that the parent's ability to continue as a joint caretaker or the prima-
ry caretaker of a minor child is materially affected  by  such  military
service,  [a  court  shall  be  prohibited from issuing] any [permanent]
orders[, modifications or amendments] ISSUED PURSUANT TO  THIS  ARTICLE,
based  on the fact that the parent is activated, deployed or temporarily
assigned to military service, which would [in any way effect] MATERIALLY
AFFECT or change a previous judgment or order regarding custody of  that
parent's child or children as such judgment or order existed on the date
the  parent was activated, deployed, or temporarily assigned to military
service SHALL BE SUBJECT TO REVIEW PURSUANT TO SUBDIVISION THREE OF THIS
SECTION. Any relevant provisions of the Service  Member's  Civil  Relief
Act shall apply to all proceedings governed by this section.
  2.  During  such  period the court may enter [a temporary] AN order to
modify [or amend] custody if there is clear and convincing evidence that
the [temporary] modification [or amendment] is in the best interests  of
the  child.  An  attorney  for the child shall be appointed in all cases
where a [temporary] modification is sought during such military service.
SUCH ORDER SHALL BE SUBJECT TO REVIEW PURSUANT TO SUBDIVISION  THREE  OF
THIS  SECTION.  When entering [a temporary] AN order under this section,
the court shall consider and provide for, if feasible and if in the best
[interest] INTERESTS of the child, contact between the military  service

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10161-03-9

A. 8789                             2

member  and  his  or her child including, but not limited to, electronic
communication by E-MAIL, webcam, telephone, or  other  available  means.
During the period of the parent's leave from military service, the court
shall  consider  the  best [interest] INTERESTS of the child when estab-
lishing a parenting schedule, INCLUDING VISITING AND OTHER CONTACT.  For
such purpose, a "leave from service" shall be a period of not more  than
three months.
  3.  [If  a  temporary] UNLESS THE PARTIES HAVE OTHERWISE STIPULATED OR
AGREED, IF AN order is issued under this section, [upon] the  return  of
the parent from active military service, deployment or temporary assign-
ment  [and  upon]  SHALL  BE  CONSIDERED A SUBSTANTIAL CHANGE IN CIRCUM-
STANCES. UPON the request of either parent, [there shall be held a hear-
ing at which] the court shall determine [whether there has been a change
of circumstances such that] ON THE BASIS OF THE CHILD'S  BEST  INTERESTS
WHETHER  the  custody  judgment  or order previously in effect should be
[changed, amended or] modified.
  4. This section shall not  apply  to  assignments  to  permanent  duty
stations or permanent changes of station.
  S  2.  Subdivision  1  of section 240 of the domestic relations law is
amended by adding a new paragraph (a-2) to read as follows:
  (A-2) MILITARY SERVICE BY PARENT; EFFECT ON CHILD CUSTODY ORDERS.  (1)
DURING THE PERIOD OF TIME THAT A PARENT IS ACTIVATED, DEPLOYED OR TEMPO-
RARILY  ASSIGNED  TO MILITARY SERVICE, SUCH THAT THE PARENT'S ABILITY TO
CONTINUE AS A JOINT CARETAKER OR THE PRIMARY CARETAKER OF A MINOR  CHILD
IS  MATERIALLY  AFFECTED  BY  SUCH  MILITARY  SERVICE, ANY ORDERS ISSUED
PURSUANT TO THIS SECTION, BASED ON THE FACT THAT  THE  PARENT  IS  ACTI-
VATED, DEPLOYED OR TEMPORARILY ASSIGNED TO MILITARY SERVICE, WHICH WOULD
MATERIALLY  AFFECT  OR  CHANGE  A  PREVIOUS  JUDGMENT OR ORDER REGARDING
CUSTODY OF THAT PARENT'S CHILD OR CHILDREN AS  SUCH  JUDGMENT  OR  ORDER
EXISTED  ON  THE DATE THE PARENT WAS ACTIVATED, DEPLOYED, OR TEMPORARILY
ASSIGNED TO MILITARY SERVICE, SHALL BE SUBJECT  TO  REVIEW  PURSUANT  TO
SUBPARAGRAPH  THREE  OF  THIS  PARAGRAPH. ANY RELEVANT PROVISIONS OF THE
SERVICE MEMBER'S  CIVIL  RELIEF  ACT  SHALL  APPLY  TO  ALL  PROCEEDINGS
GOVERNED BY THIS SECTION.
  (2) DURING SUCH PERIOD, THE COURT MAY ENTER AN ORDER TO MODIFY CUSTODY
IF  THERE  IS  CLEAR AND CONVINCING EVIDENCE THAT THE MODIFICATION IS IN
THE BEST INTERESTS OF THE CHILD. AN ATTORNEY  FOR  THE  CHILD  SHALL  BE
APPOINTED  IN ALL CASES WHERE A MODIFICATION IS SOUGHT DURING SUCH MILI-
TARY SERVICE. SUCH ORDER SHALL BE SUBJECT TO REVIEW PURSUANT TO SUBPARA-
GRAPH THREE OF THIS PARAGRAPH. WHEN ENTERING AN ORDER PURSUANT  TO  THIS
SECTION, THE COURT SHALL CONSIDER AND PROVIDE FOR, IF FEASIBLE AND IF IN
THE  BEST  INTERESTS  OF THE CHILD, CONTACT BETWEEN THE MILITARY SERVICE
MEMBER AND HIS OR HER CHILD, INCLUDING, BUT NOT LIMITED  TO,  ELECTRONIC
COMMUNICATION  BY  E-MAIL,  WEBCAM, TELEPHONE, OR OTHER AVAILABLE MEANS.
DURING THE PERIOD OF THE PARENT'S LEAVE FROM MILITARY SERVICE, THE COURT
SHALL CONSIDER THE BEST INTERESTS  OF  THE  CHILD  WHEN  ESTABLISHING  A
PARENTING  SCHEDULE,  INCLUDING  VISITING  AND OTHER CONTACT.   FOR SUCH
PURPOSES, A "LEAVE FROM MILITARY SERVICE" SHALL BE A PERIOD OF NOT  MORE
THAN THREE MONTHS.
  (3)  UNLESS  THE  PARTIES  HAVE  OTHERWISE STIPULATED OR AGREED, IF AN
ORDER IS ISSUED PURSUANT TO THIS PARAGRAPH, THE  RETURN  OF  THE  PARENT
FROM  ACTIVE  MILITARY SERVICE, DEPLOYMENT OR TEMPORARY ASSIGNMENT SHALL
BE CONSIDERED A SUBSTANTIAL CHANGE IN CIRCUMSTANCES. 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.

A. 8789                             3

  (4) THIS PARAGRAPH SHALL NOT APPLY TO ASSIGNMENTS  TO  PERMANENT  DUTY
STATIONS OR PERMANENT CHANGES OF STATION.
  S  3.  Section  651 of the family court act is amended by adding a new
subdivision (f) to read as follows:
  (F) MILITARY SERVICE BY PARENT; EFFECT ON CHILD CUSTODY  ORDERS.    1.
DURING THE PERIOD OF TIME THAT A PARENT IS ACTIVATED, DEPLOYED OR TEMPO-
RARILY  ASSIGNED  TO MILITARY SERVICE, SUCH THAT THE PARENT'S ABILITY TO
CONTINUE AS A JOINT CARETAKER OR THE PRIMARY CARETAKER OF A MINOR  CHILD
IS  MATERIALLY  AFFECTED  BY  SUCH  MILITARY  SERVICE, ANY ORDERS ISSUED
PURSUANT TO THIS SECTION, BASED ON THE FACT THAT  THE  PARENT  IS  ACTI-
VATED, DEPLOYED OR TEMPORARILY ASSIGNED TO MILITARY SERVICE, WHICH WOULD
MATERIALLY  AFFECT  OR  CHANGE  A  PREVIOUS  JUDGMENT OR ORDER REGARDING
CUSTODY OF THAT PARENT'S CHILD OR CHILDREN AS  SUCH  JUDGMENT  OR  ORDER
EXISTED  ON  THE DATE THE PARENT WAS ACTIVATED, DEPLOYED, OR TEMPORARILY
ASSIGNED TO MILITARY SERVICE, SHALL BE SUBJECT  TO  REVIEW  PURSUANT  TO
PARAGRAPH  THREE  OF  THIS SUBDIVISION.   ANY RELEVANT PROVISIONS OF THE
SERVICE MEMBER'S  CIVIL  RELIEF  ACT  SHALL  APPLY  TO  ALL  PROCEEDINGS
GOVERNED BY THIS SECTION.
  2.  DURING SUCH PERIOD, THE COURT MAY ENTER AN ORDER TO MODIFY CUSTODY
IF THERE IS CLEAR AND CONVINCING EVIDENCE THAT THE  MODIFICATION  IS  IN
THE  BEST  INTERESTS  OF  THE  CHILD. AN ATTORNEY FOR THE CHILD SHALL BE
APPOINTED IN ALL CASES WHERE A MODIFICATION IS SOUGHT DURING SUCH  MILI-
TARY  SERVICE.  SUCH  ORDER SHALL BE SUBJECT TO REVIEW PURSUANT TO PARA-
GRAPH THREE OF THIS SUBDIVISION. WHEN ENTERING AN ORDER PURSUANT TO THIS
SECTION, THE COURT SHALL CONSIDER AND PROVIDE FOR, IF FEASIBLE AND IF IN
THE BEST INTERESTS OF THE CHILD, CONTACT BETWEEN  THE  MILITARY  SERVICE
MEMBER  AND  HIS  OR HER CHILD INCLUDING, BUT NOT LIMITED TO, ELECTRONIC
COMMUNICATION BY E-MAIL, WEBCAM, TELEPHONE, OR  OTHER  AVAILABLE  MEANS.
DURING THE PERIOD OF THE PARENT'S LEAVE FROM MILITARY SERVICE, THE COURT
SHALL  CONSIDER  THE  BEST  INTERESTS  OF  THE CHILD WHEN ESTABLISHING A
PARENTING SCHEDULE, INCLUDING  VISITING  AND  OTHER  CONTACT.  FOR  SUCH
PURPOSE,  A  "LEAVE FROM MILITARY SERVICE" SHALL BE A PERIOD OF NOT MORE
THAN THREE MONTHS.
  3. UNLESS THE PARTIES HAVE OTHERWISE STIPULATED OR AGREED, IF AN ORDER
IS ISSUED PURSUANT TO THIS SUBDIVISION, THE RETURN OF  THE  PARENT  FROM
ACTIVE  MILITARY  SERVICE,  DEPLOYMENT  OR TEMPORARY ASSIGNMENT SHALL BE
CONSIDERED A SUBSTANTIAL CHANGE IN CIRCUMSTANCES. 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.
  4.  THIS  SUBDIVISION SHALL NOT APPLY TO ASSIGNMENTS TO PERMANENT DUTY
STATIONS OR PERMANENT CHANGES OF STATION.
  S 4. Section 253 of the military law, as added by chapter 576  of  the
laws of 2008, is amended to read as follows:
  S   253.   Military   service  by  parent;  effect  on  child  custody
proceedings. Notwithstanding any law, rule or regulation to the  contra-
ry, child custody proceedings filed in a court of competent jurisdiction
in  this state, involving a parent who is activated, deployed, or tempo-
rarily assigned to military service shall be governed by SUBDIVISION (F)
OF SECTION SIX HUNDRED FIFTY-ONE OF THE FAMILY COURT ACT, section seven-
ty-five-l OR PARAGRAPH (A-2) OF SUBDIVISION ONE OF SECTION  TWO  HUNDRED
FORTY of the domestic relations law.
  S  5.  This  act  shall take effect on the sixtieth day after it shall
have become a law.

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Assembly Bill A8789

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