senate Bill S4518

2013-2014 Legislative Session

Relates to orders of custody involving a parent deployed 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
May 14, 2014 referred to judiciary
May 13, 2014 delivered to assembly
passed senate
Apr 30, 2014 advanced to third reading
Apr 29, 2014 2nd report cal.
Apr 28, 2014 1st report cal.386
Jan 08, 2014 referred to children and families
returned to senate
died in assembly
May 23, 2013 referred to judiciary
delivered to assembly
passed senate
May 22, 2013 advanced to third reading
May 21, 2013 2nd report cal.
May 20, 2013 1st report cal.623
Apr 05, 2013 referred to children and families

Votes

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Apr 28, 2014 - Children and Families committee Vote

S4518
6
0
committee
6
Aye
0
Nay
0
Aye with Reservations
0
Absent
0
Excused
0
Abstained
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Children and Families Committee Vote: Apr 28, 2014

May 20, 2013 - Children and Families committee Vote

S4518
6
0
committee
6
Aye
0
Nay
0
Aye with Reservations
0
Absent
0
Excused
0
Abstained
show Children and Families committee vote details

Children and Families Committee Vote: May 20, 2013

S4518 - Bill Details

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

S4518 - Bill Texts

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Relates to orders of custody involving a parent deployed to military service, permits only temporary orders which shall expire within ten days of the end of the deployment.

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BILL NUMBER:S4518

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 the military service

Purpose of Bill: This bill would amend the Domestic Relations Law and
the Family Court Act to require that all orders issued in child
custody and visitation proceedings involving a parent ordered to
active military service shall expire within ten days of the service
members return from active military service, thereby reinstating the
service member's pre-deployment custodial rights and privileges
without the service member having to petition for a change of custody.

Summary of Provisions: Sections one, two and three of the bill would
amend Domestic Relations Law §§ 75-1 and 240(1)(a-2) and Family Court
Act § 651(1) to prohibit a court from issuing a permanent order of
custody to a non-custodial parent when the custodial military parent
receives mobilization or deployment orders. These laws also would be
amended to provide that mobilization or deployment of a Reserve
Component service member shall not be a factor in determining a change
in circumstances if a petition is filed to transfer custody away from
the military parent, and that any such temporary custody order shall
expire within ten days after the return of the parent from active
military service, deployment or temporary assignment.

Existing Law: Under existing law, permanent custody orders are issued
to the non-military parent upon mobilization of the custodial military
parent, thereby forcing returning service members to petition to have
their pre-deployment parental rights restored. Domestic Relations Law
§ 75-1 provides that when a custodial parent who is a member of the
Reserve Component of the Armed Forces is called to active duty to
serve his or her state or country, 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 upon
the returning veteran to petition the Family Court to have his/her
pre-service parental rights restored.

Prior Legislative History: This is a new bill.

Statement in Support: The United States Department of Defense (DOD)
cites child custody issues for mobilized reservists as one of the Top
10 Quality of Life Issues for members of the Armed Forces of the
United States. In February 2011, the DOD announced its support for
federal military child custody legislation that would include
provisions to: (1) preclude state courts from permanently changing
custody while a military parent is deployed; (2) require resumption of
custody upon the service member's return from deployment, unless the
reinstatement of custody is not in the best interest of the child; and
(3) bar state courts from considering a military parent's deployment,
or the possibility of deployment, as a basis for determining the best


interest of the child in custody modification cases. Such a bill has
passed in the U.S. House of Representatives, and sixteen states have
child custody laws that meet the DOD's desired level of protection in
military child custody cases.

New York Law does not currently meet the DOD standards, although
legislation enacted in 2008 brought New York into partial compliance,
before that law was amended in 2009. Chapter 576 of the Laws of 2008
was enacted to address concerns raised by custodial parents who were
among the large numbers of Armed Forces Reserve Component military
personnel (includes the National Guard and the Reserves of the Army,
the Navy, the Marine Corps, the Air Force and the Coast Guard)
mobilized after the September 11, 2001 attacks. These deploying
service members raised significant concerns about the potential loss
of child custody during their deployment. In response, Chapter 576
created Domestic Relations Law § 754, which as originally enacted
required all orders issued in child custody and visitation proceedings
involving a parent in active military service to be deemed temporary,
set a clear and convincing evidence standard for the issuance of any
temporary custody orders and further provided that, upon the return of
the service member from deployed military service, either parent could
petition the court on whether the previous order in effect should be
changed or modified.

The following year, in Chapter 473 of the Laws of 2009, the new
section 754 of the Domestic Relations Law was amended, and conforming,
changes made to Domestic Relations Law § 420 and Family Court Act
651. Significantly, this legislation removed the requirement that all
orders issued in child custody and visitation proceedings involving a
parent in active military service be temporary, and added new language
that, unless the parties stipulated to the contrary, a parent's return
from active deployment in the military would automatically constitute
a "substantial change in circumstance" that would allow either parent
to obtain standing to request reconsideration of a prior custody or
visitation order. This amendment, in effect, resulted in a permanent
order of custody being awarded to the nonmilitary parent, and placed
the burden of restoring the service member's pre-service custodial
rights on the returning veteran.

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. Notwithstanding the Servicemember Civil Relief Act (SCRA)
protections, the custody order petition moves forward in Family Court
and the custody order is changed to the detriment of the deployed
parent. The amendments enacted in 2009 made it easier for the
non-deploying parent to file a petition for a change in custody.
Under the 2009 legislation these changed custody orders are permanent
and place the financial and emotional burden on the returning veteran
to petition to have his or her pre-deployment parental rights
restored.

This bill would reinstate the original provisions in the Domestic
Relations Law that required all orders in custody and visitation
proceedings involving a parent in active military service to be
temporary, and would add a new provision requiring that all such


temporary orders would expire ten days after the service member's
return from military service. It would allow the temporary custodial
parent to petition for custody, and would preserve his or her right to
raise a "best interest of the child" challenge, but the burden of
doing so would not be on the returning service member.

Budget Implications: it is not anticipated that this bill would have
a fiscal impact on the state judiciary's budget.

Effective Date: This bill would become effective 30 days after it
becomes a law.

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

                                  4518

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              April 5, 2013
                               ___________

Introduced  by  Sen. FELDER -- (at request of the Division of Military &
  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 the 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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09340-01-3

S. 4518                             2

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
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

S. 4518                             3

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  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
have become a law.

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