Senate Bill S7861

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

                                  7861

                            I N  S E N A T E

                            October 26, 2012
                               ___________

Introduced by Sens. ADAMS, PARKER -- read twice and ordered printed, and
  when printed to be committed to the Committee on Rules

AN ACT to amend the domestic relations law, the family court act and the
  penal  law,  in  relation  to  denying  custody of a child to a parent
  convicted of rape

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

  Section 1. Subdivision 5 of section 240 of the domestic relations law,
as  added  by  section 103 of chapter 398 of the laws of 1997, is renum-
bered subdivision 6 and a new subdivision 7 is added to read as follows:
  7. NOTWITHSTANDING ANY OTHER PROVISION OF ANY LAW TO THE CONTRARY,  NO
COURT  SHALL AWARD CUSTODY TO A PARENT WHO HAS BEEN CONVICTED OF VIOLAT-
ING SECTION 130.25 (RAPE IN THE  THIRD  DEGREE),  130.30  (RAPE  IN  THE
SECOND  DEGREE),  OR 130.35 (RAPE IN THE FIRST DEGREE) OF THE PENAL LAW,
WHERE THE CHILD THAT SUCH PARENT SEEKS  CUSTODY  OR  VISITATION  OF  WAS
CONCEIVED AS A RESULT OF SUCH RAPE.
  S  2.  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)   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 thereof, the
court, on due consideration, may award the natural guardianship,  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  SUBJECT,
HOWEVER,  TO  THE PROVISIONS OF SUBDIVISION SEVEN OF SECTION TWO HUNDRED
FORTY OF THIS CHAPTER.
  S 3. Subdivisions (a), (b) and (c) of section 651 of the family  court
act,  subdivisions  (a)  and (c) as amended by chapter 85 of the laws of

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

                                                           LBD16586-01-2

S. 7861                             2

1996 and subdivision (b) as amended by chapter 657 of the laws of  2003,
are amended to read as follows:
  (a) When referred from the supreme court or county court to 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 SUBJECT, HOWEVER, TO THE LIMITATIONS
SET  FORTH  IN  SUBDIVISION  SEVEN  OF  SECTION TWO HUNDRED FORTY OF THE
DOMESTIC RELATIONS LAW.
  (b) When initiated in the family court, the family court has jurisdic-
tion 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 SUBJECT, HOWEVER, TO THE  LIMITATIONS  SET
FORTH  IN SUBDIVISION SEVEN OF SECTION TWO HUNDRED FORTY OF THE DOMESTIC
RELATIONS LAW.
  (c) When initiated in the family court pursuant to  a  petition  under
part  eight  of  article ten of this act or section three hundred fifty-
eight-a of the social services law, the family court has jurisdiction to
enforce or modify orders or judgments of the supreme court  relating  to
the  visitation of minors in foster care, notwithstanding any limitation
contained in subdivision (b) of section four hundred sixty-seven of this
act BUT SUBJECT, HOWEVER, TO THE LIMITATIONS SET  FORTH  IN  SUBDIVISION
SEVEN OF SECTION TWO HUNDRED FORTY OF THE DOMESTIC RELATIONS LAW.
  S  4. Section 60.27 of the penal law is amended by adding a new subdi-
vision 15 to read as follows:
  15. WHEN A PERSON IS CONVICTED OF RAPE IN THE THIRD DEGREE AS  DEFINED
IN  SECTION 130.25 OF THIS CHAPTER, RAPE IN THE SECOND DEGREE AS DEFINED
IN SECTION 130.30 OF THIS CHAPTER OR RAPE IN THE FIRST DEGREE AS DEFINED
IN SECTION 130.35 OF THIS CHAPTER, AND A CHILD IS CONCEIVED AS A  RESULT
OF  SUCH RAPE, THE COURT, IN ADDITION TO ANY OTHER SENTENCE, SHALL ORDER
THE PAYMENT OF RESTITUTION TO THE VICTIM OF SUCH RAPE IN  AN  AMOUNT  TO
SATISFACTORILY  PROVIDE  CHILD  SUPPORT  FOR SUCH CHILD UNTIL SUCH CHILD
REACHES THE AGE OF TWENTY-ONE YEARS.
  S 5. This act shall take effect immediately.