senate Bill S7533

2011-2012 Legislative Session

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

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Archive: Last Bill Status - Passed Senate


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

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jun 13, 2012 referred to judiciary
delivered to assembly
passed senate
ordered to third reading cal.1216
committee discharged and committed to rules
May 31, 2012 referred to children and families

Votes

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S7533 - Bill Details

Current Committee:
Assembly Judiciary
Law Section:
Domestic Relations Law
Laws Affected:
Amd §§75-1 & 240, Dom Rel L; amd §651, Fam Ct Act

S7533 - Bill Texts

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

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BILL NUMBER:S7533

TITLE OF BILL:

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

PURPOSE OF BILL:

The purpose of this bill is to mandate that all custody orders that are
issued as a result of a custodial parent's military service be tempo-
rary, and would automatically expire ten days after the parent returns.

SUMMARY OF PROVISIONS:

Section 1 of the bill would amend Domestic Relations Law ("DRL") §75-1
to authorize the Family Court to issue only a temporary order of custody
to a non-custodial parent when the custodial military parent receives
mobilization or deployment orders. The temporary Family Court order
would end no later than 10 days after the parent's return from ordered
military service and the original order of custody to the custodial
military parent would be reinstated. The mobilization or deployment of a
reserve component service member could not be a factor in determining a
change in circumstances if a petition is filed to transfer custody away
from the military parent.

Section 2 of the bill would amend DRL §240 (a-2) to make conforming
changes to those amendments made in section 1 of the bill.

Section 3 of the bill would amend Family Court Act ("FCA") § 651 (f) to
make conforming changes to those amendments made in section] of the
bill.

Section 4 of the bill provides for an effective date of 30 days after
enactment

EXISTING LAW:

Under existing law, permanent custody orders are issued to the non-mili-
tary parent upon mobilization of the custodial military parent, thereby
forcing returning service members to petition to have their pre-deploy-
ment parental rights restored. Under DRL § 75-1, when a custodial parent
who is a member of the reserve component of the armed forces is called
to active duty, the non-custodial parent, upon petition, may receive a
permanent order of custody. The law, in effect, terminates the military
parent's custodial rights and privileges based solely on military
service. Though the existing law provides that the service member's
return from active duty automatically constitutes a "substantial change
in circumstance" that would allow either parent to obtain standing to

request reconsideration of a prior custody or visitation order, this
nonetheless places a significant financial and emotional burden.

PRIOR LEGISLATIVE HISTORY:

This is a new bill. As background, a law was passed in 2008 requiring
that all custody orders made because of military service be temporary.
Upon the service member's return, and upon a request by either parent,
there was a hearing to determine whether there was a change of circum-
stances such that the original custody order should be changed. This was
prompted by reports that custodial parents were losing custody of their
children while they were deployed.

In 2009, upon recommendation by the Chief Administrative Judge and
Office of Court Administration, the law was changed to its current state
which permits permanent orders, but allows for either parent to petition
to change the order, thus placing the burden on the returning parent to
change the order.

STATEMENT IN SUPPORT:

The United States Department of Defense cites child custody issues for
mobilized reservists as one of the top quality of life issues for
members of the Armed Forces of the United States. Currently 16 states,
excluding New York, have child custody laws that meet the Department of
Defense's desired level of protection in child custody cases.

Experience in the New York National Guard indicates that often, when a
custodial parent service member is called away on active duty, the other
biological parent seeks custody of the child. The proceeding frequently
occurs soon after the service member leaves the country on deployment.
Ultimately, the law places the financial and emotional burden on the
returning veteran to petition to have their pre-deployment parental
rights restored.

There is pending federal legislation that would accomplish similar ends
and preempt state law which has passed the House and is supported by the
Department of Defense.

BUDGET IMPLICATIONS:

None.

EFFECTIVE DATE:

The bill would take effect 30 days after enactment.

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

                                  7533

                            I N  S E N A T E

                              May 31, 2012
                               ___________

Introduced  by  Sen. RANZENHOFER -- (at request of the Division of Mili-
  tary & Naval Affairs) -- read twice  and  ordered  printed,  and  when
  printed to be committed to the Committee on Children and Families

AN  ACT to amend the domestic relations law and the family court act, 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  amended  by
chapter 473 of the laws of 2009, 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,
[issued  pursuant  to this article] MODIFICATIONS OR AMENDMENTS based on
the fact that the parent is activated, deployed or temporarily  assigned
to  military  service,  which  would  [materially]  IN ANY WAY 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 [an] A TEMPORARY 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 [an] A TEMPORARY order under 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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD14499-01-2

S. 7533                             2

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 service" shall be a period of not more than three months.
  3.  [Unless the parties have otherwise stipulated or agreed, if an] IF
A TEMPORARY order is issued under this section, IT SHALL  EXPIRE  WITHIN
TEN  DAYS  AFTER  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  section  shall  not  apply  to assignments to permanent duty
stations or permanent changes of station.
  S 2. Paragraph (a-2) of subdivision 1 of section 240 of  the  domestic
relations  law,  as added by chapter 473 of the laws of 2009, is amended
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,  A COURT SHALL BE
PROHIBITED FROM ISSUING any PERMANENT orders, [issued pursuant  to  this
section]  MODIFICATIONS  OR AMENDMENTS based on the fact that the parent
is activated, deployed or  temporarily  assigned  to  military  service,
which would [materially] IN ANY WAY 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 rele-
vant 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] A TEMPORARY 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 subparagraph three of this
paragraph.] When entering  [an]  A  TEMPORARY  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] IF
A  TEMPORARY order is issued pursuant to this paragraph, IT SHALL EXPIRE
WITHIN TEN DAYS AFTER 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

S. 7533                             3

whether the custody judgment or order previously  in  effect  should  be
modified].
  (4)  This  paragraph  shall not apply to assignments to permanent duty
stations or permanent changes of station.
  S 3. Subdivision (f) of section 651 of the family court act, as  added
by chapter 473 of the laws of 2009, is amended 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,  A  COURT  SHALL  BE
PROHIBITED  FROM  ISSUING any PERMANENT orders, [issued pursuant to this
section] MODIFICATIONS OR AMENDMENTS based on the fact that  the  parent
is  activated,  deployed  or  temporarily  assigned to military service,
which would [materially] IN ANY WAY 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] A TEMPORARY 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 paragraph three of this
subdivision.] When entering [an] A  TEMPORARY  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] IF
A TEMPORARY order is issued  pursuant  to  this  subdivision,  IT  SHALL
EXPIRE  WITHIN TEN DAYS AFTER the return of the parent from active mili-
tary 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.  This  act shall take effect on the thirtieth day after it shall
become law.

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