S T A T E   O F   N E W   Y O R K
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                                  4946

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            February 9, 2011
                               ___________

Introduced  by  M.  of  A. MAYERSOHN, GALEF, CUSICK, P. RIVERA -- Multi-
  Sponsored by -- M. of A.  BURLING, CROUCH, CYMBROWITZ, FINCH,  FITZPA-
  TRICK,  HOOPER, KOLB, McENENY, J. MILLER, NOLAN, PHEFFER, RAMOS, SWEE-
  NEY, TOWNS, WEISENBERG -- 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, paragraph (a) as
amended by chapter 378 of the laws of 1999 and paragraph (c) as  amended
by chapter 41 of the laws of 2010, 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
second degree, MANSLAUGHTER IN THE FIRST OR SECOND DEGREE, OR CRIMINALLY

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08658-01-1
              

A. 4946                             2

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, an attorney 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 and subdivision 4 as amended by chapter 41 of the
laws of 2010, 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. 4946                             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, an attorney shall be appointed
for the child.
  S 3. This act shall take effect immediately.