senate Bill S892A

2013-2014 Legislative Session

Amends provisions of various laws to change term "visitation" to "parenting time" regarding custody orders

download bill text pdf

Sponsored By

Archive: Last Bill Status - In Committee


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

do you support this bill?

Actions

view actions (4)
Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Feb 06, 2014 print number 892a
amend and recommit to judiciary
Jan 08, 2014 referred to judiciary
Jan 09, 2013 referred to judiciary

Bill Amendments

Original
A (Active)
Original
A (Active)

Co-Sponsors

S892 - Bill Details

Current Committee:
Law Section:
Domestic Relations Law
Laws Affected:
Amd Dom Rel L, generally; amd Fam Ct Act, generally
Versions Introduced in 2011-2012 Legislative Session:
S7807

S892 - Bill Texts

view summary

Amends provisions of various sections of law to change term "visitation" to "parenting time" regarding custody orders.

view sponsor memo
BILL NUMBER:S892

TITLE OF BILL:
An act
to amend the domestic relations law and
the family
court act,
in relation to changing the denotation of
visitation to
parenting time

PURPOSE:
This bill replaces the term "visitation" in relation to time spent
with non-custodial parents with the term "parenting time" in the
Domestic Relations Law and the Family Court Act.

SUMMARY OF PROVISIONS:

Section 1 declares the legislative intent of the bill.

Section 1-a provides definitions for "visitation" and "parenting time"

Sections 2 through 13 amend various provisions of the Domestic
Relations Law by changing references to "visitation" to "parenting
time."

Sections 14 through 29 amend various provisions of the Family Court
Act by changing references to "visitation" to "parenting time."

Section 30 amends the Family Court Act by adding definitions for
"visitation" and "parenting time."

Section 31 This act shall take effect immediately, with provisions.

JUSTIFICATION:
In 2006, the Judiciary's Matrimonial Commission, chaired by the
Honorable Sondra Miller, recommended replacing the term "visitation"
with "Parenting time" in appropriate law. This is meant to reflect a
"cultural change" away from viewing time spent with a parent as
"visitation" and instead as meaningful time spent with a parent.
Children "visit" the zoo, or the dentist, or the park; they do not
"visit" their mother or father. In addition, "visitation" is often
associated with the visiting of inmates at correctional facilities
and prisons, an inappropriate association for the time spent by a
parent with his or her child. New York State law should reflect this
reality.

The misuse of "visitation" to describe time spent by a parent with his
or her child has implications far beyond legal court documents.
Negative Perceptions of this time caused by visitation's
"inappropriately pejorative meaning," in the words of the Honorable
A. Gail Prudenti, can harm relations between a child and his or her
non-custodial parent post-divorce. The inherent harmfulness of the
phrase can also contribute to acrimony in divorce cases.
"Parenting time," unlike "visitation," accurately reflects how
meaningful and important time with both parents is in the life of a
child. Many other states, including Oregon, New Jersey, and.Michigan,


have already instituted such a change in terminology. The inclusion
of "parenting time" in New York law will follow the national trend to
improve post-divorce relations among all parties.

LEGISLATIVE HISTORY:
2011-12: S.7807 Died in Rules
2007-2008: S.1074 (Saland) - Referred to Social Services,
Children and Families
2005-2006: S.468 (Saland)Referred to Social Services,
Children and Families
2003-2004: S.1916 (Saland) - Passed Senate 2001-2002: S.4893A (Saland)
- Passed Senate
1999-2000: S.2720 (Saland) - Referred to Children and Families
1997-1998: S.4519B (Saland) - Passed Senate

FISCAL IMPLICATIONS: None to the state.

EFFECTIVE DATE:
The act shall take effect immediately, provided that the amendments to
subdivision (a) of section 439 of the Family Court Act made by
section fifteen of this act shall be subject to the expiration and
reversion of such subdivision pursuant to section 246 of Chapter 81
of the laws of 1995, as amended, when upon such date the provisions
of section sixteen of this act shall take effect.

view full text
download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                   892

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by  Sen.  PARKER -- read twice and ordered printed, and when
  printed to be committed to the Committee on Judiciary

AN ACT to amend the domestic relations law and the family court act,  in
  relation to changing the denotation of visitation to parenting time

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

  Section 1.  Legislative  intent.  The  legislature  hereby  finds  and
declares  that the term "visitation" carries a negative connotation with
respect to noncustodial parents who want to be a  part  of  their  chil-
dren's  lives. Society has given the term "visitation" a negative conno-
tation that can be associated with  the  visiting  of  an  inmate  at  a
correctional  facility  or prison. The purpose of this act is to reflect
the fact that a parent's time with a child is not merely  as  a  visitor
but constitutes parenting time.
  S  1-a. Section 2 of the domestic relations law, as amended by chapter
920 of the laws of 1974, is amended to read as follows:
  S 2. Definitions. AS USED IN THIS CHAPTER:
  1. A "minor" or "infant", [as used in this chapter,] is a person under
the age of eighteen years.
  2. "VISITATION" REFERS TO TIME PERMITTED TO  BE  SPENT  WITH  A  CHILD
PURSUANT TO A COURT ORDER UNDER THIS CHAPTER, THE FAMILY COURT ACT OR AN
ORDER  ENFORCED UNDER ARTICLE FIVE-A OF THIS CHAPTER, BY A PERSON WHO IS
NOT A PARENT OF THE CHILD. THIS SHALL INCLUDE GRANDPARENTS, SIBLINGS AND
STEP-PARENTS.
  3. "PARENTING TIME" REFERS TO THE PERIOD OF TIME  THAT  A  PARENT  MAY
SPEND  WITH  HIS OR HER CHILD PURSUANT TO A COURT ORDER UNDER THIS CHAP-
TER, THE FAMILY COURT ACT OR AN ORDER ENFORCED UNDER ARTICLE  FIVE-A  OF
THIS CHAPTER.
  S  2.  Subdivision (b) of section 70 of the domestic relations law, as
added by chapter 457 of the laws of 1988, is amended to read as follows:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03762-01-3

S. 892                              2

  (b) Any order under this section which applies to rights  of  [visita-
tion]  PARENTING  TIME  with a child remanded or placed in the care of a
person, official, agency or institution pursuant to article ten  of  the
family  court  act  or  pursuant to an instrument approved under section
three  hundred  fifty-eight-a  of  the  social  services  law,  shall be
enforceable pursuant to the provisions of part eight of article  ten  of
such  act, sections three hundred fifty-eight-a and three hundred eight-
y-four-a of the social services law and other applicable  provisions  of
law against any person or official having care and custody, or temporary
care and custody, of such child.
  S  3.  Subdivisions  3 and 4 of section 75-a of the domestic relations
law, as added by chapter 386 of the laws of 2001, are amended to read as
follows:
  3. "Child custody determination" means a judgment,  decree,  or  other
order  of  a court providing for the legal custody, physical custody, or
[visitation] PARENTING TIME with respect to a child. The term includes a
permanent, temporary, initial, and modification order. The term does not
include an order relating to child support or other monetary  obligation
of an individual.
  4. "Child custody proceeding" means a proceeding in which legal custo-
dy,  physical custody, [or] visitation OR PARENTING TIME with respect to
a child is an issue. The term includes a proceeding for  divorce,  sepa-
ration, neglect, abuse, dependency, guardianship, paternity, termination
of  parental rights, and protection from domestic violence, in which the
issue may appear. The term does not include a proceeding involving juve-
nile delinquency, person in need of supervision,  contractual  emancipa-
tion, or enforcement under title three of this article.
  S  4.  Subdivision  1 of section 235 of the domestic relations law, as
amended by chapter 122 of the laws  of  1979,  is  amended  to  read  as
follows:
  1.  An officer of the court with whom the proceedings in a matrimonial
action or a written agreement of separation or an action  or  proceeding
for  custody,  [visitation] PARENTING TIME or maintenance of a child are
filed, or before whom the testimony  is  taken,  or  his  clerk,  either
before  or after the termination of the suit, shall not permit a copy of
any of the pleadings, affidavits, findings of fact, conclusions of  law,
judgment  of  dissolution, written agreement of separation or memorandum
thereof, or testimony, or any examination  or  perusal  thereof,  to  be
taken  by any other person than a party, or the attorney or counsel of a
party, except by order of the court.
  S 5. Subdivision (b) of section 237 of the domestic relations law,  as
amended  by  chapter  329  of  the  laws  of 2010, is amended to read as
follows:
  (b) Upon any application to enforce, annul or modify an order or judg-
ment for alimony, maintenance, distributive award, distribution of mari-
tal property or for custody, [visitation,] PARENTING TIME or maintenance
of a child, made as in section two hundred  thirty-six  or  section  two
hundred  forty of this article provided, or upon any application by writ
of habeas corpus or by petition  and  order  to  show  cause  concerning
custody,  [visitation]  PARENTING  TIME  or  maintenance of a child, the
court may direct a spouse or parent to pay counsel  fees  and  fees  and
expenses  of  experts  directly  to  the attorney of the other spouse or
parent to enable the other party to carry on or defend  the  application
or  proceeding  by  the  other  spouse  or  parent  as,  in  the court's
discretion, justice requires, having regard to the circumstances of  the
case and of the respective parties. There shall be a rebuttable presump-

S. 892                              3

tion  that  counsel  fees shall be awarded to the less monied spouse. In
exercising the court's discretion, the court shall seek to  assure  that
each  party  shall  be  adequately  represented  and that where fees and
expenses  are  to  be  awarded, they shall be awarded on a timely basis,
pendente  lite,  so  as  to  enable  adequate  representation  from  the
commencement  of  the proceeding. Applications for the award of fees and
expenses may be made at any time or times prior to final judgment.  Both
parties  to  the  action  or  proceeding and their respective attorneys,
shall file an affidavit with the court detailing  the  financial  agree-
ment,  between  the party and the attorney. Such affidavit shall include
the amount of any retainer, the amounts paid and still owing thereunder,
the hourly amount charged by the attorney, the amounts paid,  or  to  be
paid,  any experts, and any additional costs, disbursements or expenses.
Any applications for fees and expenses may be maintained by the attorney
for either spouse in counsel's own name in the same proceeding.  Payment
of any retainer fees to the attorney for the petitioning party shall not
preclude  any  awards  of  fees and expenses to an applicant which would
otherwise be allowed under this section.
  S 6. Paragraphs (a) and (a-1) of subdivision 1 of section 240  of  the
domestic  relations  law, paragraph (a) as amended by chapter 476 of the
laws of 2009 and paragraph (a-1) as amended by chapter 295 of  the  laws
of 2009, are amended to read as follows:
  (a)  In any action or proceeding brought (1) to annul a marriage or to
declare the nullity of a void marriage, or (2) for a separation, or  (3)
for  a divorce, or (4) to obtain, by a writ of habeas corpus or by peti-
tion and order to show cause, the custody of or  right  to  [visitation]
PARENTING  TIME  with  any  child of a marriage, the court shall require
verification of the status of any child of the marriage with respect  to
such  child's custody and support, including any prior orders, and shall
enter orders for custody and support  as,  in  the  court's  discretion,
justice  requires, having regard to the circumstances of the case and of
the respective parties and to  the  best  interests  of  the  child  and
subject  to  the  provisions of subdivision one-c of this section. Where
either party to an action concerning custody of or a right  to  [visita-
tion]  PARENTING  TIME  with  a  child  alleges  in  a sworn petition or
complaint or sworn answer, cross-petition, counterclaim or  other  sworn
responsive  pleading that the other party has committed an act of domes-
tic violence against the party making the  allegation  or  a  family  or
household  member of either party, as such family or household member is
defined in article eight of the family court act, and  such  allegations
are  proven  by a preponderance of the evidence, the court must consider
the effect of such domestic violence upon  the  best  interests  of  the
child,  together  with  such  other facts and circumstances as the court
deems relevant in making a direction pursuant to this section and  state
on  the  record how such findings, facts and circumstances factored into
the direction. If a parent makes a good  faith  allegation  based  on  a
reasonable  belief  supported  by  facts that the child is the victim of
child abuse, child neglect, or the effects of domestic violence, and  if
that  parent acts lawfully and in good faith in response to that reason-
able belief to protect the child or seek treatment for the  child,  then
that  parent  shall  not  be deprived of custody, [visitation] PARENTING
TIME or contact with the child, or restricted in  custody,  [visitation]
PARENTING TIME or contact, based solely on that belief or the reasonable
actions  taken  based  on  that belief. If an allegation that a child is
abused is supported by a preponderance of the evidence, then  the  court
shall  consider  such  evidence  of abuse in determining the [visitation

S. 892                              4

arrangement] PARENTING TIME that is in the best interest of  the  child,
and  the  court  shall  not place a child in the custody of a parent who
presents a substantial risk of harm to that child, and  shall  state  on
the  record  how  such findings were factored into the determination. An
order directing the payment of child support shall  contain  the  social
security  numbers  of  the named parties. In all cases there shall be no
prima facie right to the custody of the child  in  either  parent.  Such
direction  shall make provision for child support out of the property of
either or both parents. The court shall make its award for child support
pursuant to subdivision  one-b  of  this  section.  Such  direction  may
provide for reasonable visitation rights to the maternal and/or paternal
grandparents  of  any child of the parties. Such direction as it applies
to rights of [visitation] PARENTING TIME with a child remanded or placed
in the care of a person, official, agency  or  institution  pursuant  to
article  ten  of  the  family  court  act,  or pursuant to an instrument
approved  under  section  three  hundred  fifty-eight-a  of  the  social
services law, shall be enforceable pursuant to part eight of article ten
of  the  family  court  act and sections three hundred fifty-eight-a and
three hundred eighty-four-a of the social services law and other  appli-
cable  provisions  of law against any person having care and custody, or
temporary care and custody, of  the  child.  Notwithstanding  any  other
provision of law, any written application or motion to the court for the
establishment, modification or enforcement of a child support obligation
for  persons  not  in receipt of public assistance and care must contain
either a request for child  support  enforcement  services  which  would
authorize  the  collection  of  the  support obligation by the immediate
issuance of an income execution for support enforcement as provided  for
by  this  chapter,  completed  in  the  manner  specified in section one
hundred eleven-g of the social services law; or  a  statement  that  the
applicant has applied for or is in receipt of such services; or a state-
ment  that the applicant knows of the availability of such services, has
declined them at this time and where support enforcement services pursu-
ant to section one hundred eleven-g of the social services law have been
declined that the applicant understands that an income  deduction  order
may  be  issued pursuant to subdivision (c) of section fifty-two hundred
forty-two of the civil  practice  law  and  rules  without  other  child
support  enforcement  services and that payment of an administrative fee
may be required. The court shall provide a copy of any such request  for
child support enforcement services to the support collection unit of the
appropriate  social services district any time it directs payments to be
made to such support collection unit. Additionally, the copy of any such
request shall be accompanied by the name, address  and  social  security
number  of the parties; the date and place of the parties' marriage; the
name and date of birth of the  child  or  children;  and  the  name  and
address  of the employers and income payors of the party from whom child
support is sought or from the party ordered to pay child support to  the
other  party. Such direction may require the payment of a sum or sums of
money either directly to the custodial parent or to  third  persons  for
goods  or services furnished for such child, or for both payments to the
custodial parent and to such  third  persons;  provided,  however,  that
unless  the  party seeking or receiving child support has applied for or
is receiving such services, the court shall not direct such payments  to
be  made  to  the support collection unit, as established in section one
hundred eleven-h of the social services law. Every order  directing  the
payment  of support shall require that if either parent currently, or at
any time in the future, has health insurance benefits available that may

S. 892                              5

be extended or obtained to cover the child, such parent is  required  to
exercise  the  option  of additional coverage in favor of such child and
execute and deliver to such person  any  forms,  notices,  documents  or
instruments  necessary  to assure timely payment of any health insurance
claims for such child.
  (a-1)(1) Permanent and initial temporary orders of custody or [visita-
tion] PARENTING TIME.  Prior to the issuance of any permanent or initial
temporary order of custody or [visitation]  PARENTING  TIME,  the  court
shall  conduct  a review of the decisions and reports listed in subpara-
graph three of this paragraph.
  (2) Successive temporary orders of custody or  [visitation]  PARENTING
TIME.  Prior to the issuance of any successive temporary order of custo-
dy  or  [visitation] PARENTING TIME, the court shall conduct a review of
the decisions and reports listed in subparagraph  three  of  this  para-
graph,  unless such a review has been conducted within ninety days prior
to the issuance of such order.
  (3) Decisions and reports for review. The court shall conduct a review
of the following:
  (i) related decisions in court proceedings initiated pursuant to arti-
cle ten of the family court act, and all warrants issued under the fami-
ly court act; and
  (ii) reports of the  statewide  computerized  registry  of  orders  of
protection  established  and  maintained pursuant to section two hundred
twenty-one-a of the executive law,  and  reports  of  the  sex  offender
registry  established  and  maintained  pursuant  to section one hundred
sixty-eight-b of the correction law.
  (4) Notifying counsel and issuing orders. Upon consideration of  deci-
sions  pursuant  to  article  ten  of the family court act, and registry
reports and notifying counsel involved in  the  proceeding,  or  in  the
event  of  a self-represented party, notifying such party of the results
thereof, including any court appointed attorney for children, the  court
may issue a temporary, successive temporary or final order of custody or
[visitation] PARENTING TIME.
  (5)  Temporary emergency order. Notwithstanding any other provision of
the law, upon emergency situations, including computer malfunctions,  to
serve  the  best  interest of the child, the court may issue a temporary
emergency order for custody or [visitation] PARENTING TIME in the  event
that it is not possible to timely review decisions and reports on regis-
tries as required pursuant to subparagraph three of this paragraph.
  (6)  After issuing a temporary emergency order. After issuing a tempo-
rary emergency order of custody  or  [visitation]  PARENTING  TIME,  the
court  shall  conduct reviews of the decisions and reports on registries
as required pursuant to subparagraph  three  of  this  paragraph  within
twenty-four  hours  of  the  issuance of such temporary emergency order.
Should such twenty-four hour period fall on a day when court is  not  in
session,  then  the  required  reviews shall take place the next day the
court is in session. Upon reviewing  decisions  and  reports  the  court
shall  notify associated counsel, self-represented parties and attorneys
for children pursuant to subparagraph four of  this  paragraph  and  may
issue  temporary  or  permanent  custody  or [visitation] PARENTING TIME
orders.
  (7) Feasibility study. The commissioner of the office of children  and
family services, in conjunction with the office of court administration,
is  hereby  authorized and directed to examine, study, evaluate and make
recommendations concerning the feasibility of the utilization of comput-
ers in courts which are connected to the statewide central  register  of

S. 892                              6

child  abuse  and  maltreatment  established  and maintained pursuant to
section four hundred twenty-two of the social services law, as  a  means
of providing courts with information regarding parties requesting orders
of custody or [visitation] PARENTING TIME.  Such commissioner shall make
a  preliminary  report  to the governor and the legislature of findings,
conclusions and recommendations not later than January first, two  thou-
sand  nine,  and a final report of findings, conclusions and recommenda-
tions not later than June first, two thousand  nine,  and  shall  submit
with  the  reports such legislative proposals as are deemed necessary to
implement the commissioner's recommendations.
  S 7. Subdivision 1-a of section 240 of the domestic relations law,  as
amended  by  chapter  12  of  the  laws  of  1996, is amended to read as
follows:
  1-a. In any proceeding brought pursuant to this section  to  determine
the  custody  or [visitation] PARENTING TIME of minors, a report made to
the statewide central register of child abuse and maltreatment, pursuant
to title six of article six of the social services  law,  or  a  portion
thereof,  which is otherwise admissible as a business record pursuant to
rule forty-five hundred eighteen of the civil  practice  law  and  rules
shall  not  be admissible in evidence, notwithstanding such rule, unless
an investigation of such report conducted pursuant to title six of arti-
cle six of the social services law has determined  that  there  is  some
credible  evidence  of  the  alleged  abuse or maltreatment and that the
subject of the report has been notified that the  report  is  indicated.
In  addition, if such report has been reviewed by the state commissioner
of [social] THE OFFICE OF CHILDREN AND FAMILY services or  his  designee
and  has  been determined to be unfounded, it shall not be admissible in
evidence. If such report has been so reviewed and has  been  amended  to
delete  any  finding, each such deleted finding shall not be admissible.
If the state commissioner of [social] THE OFFICE OF CHILDREN AND  FAMILY
services  or his designee has amended the report to add any new finding,
each such new finding, together with any portion of the original  report
not  deleted by [the] SUCH commissioner or his designee, shall be admis-
sible if it meets the other requirements  of  this  subdivision  and  is
otherwise  admissible as a business record. If such a report, or portion
thereof, is admissible in evidence but is uncorroborated, it  shall  not
be  sufficient  to  make a fact finding of abuse or maltreatment in such
proceeding. Any other evidence tending to  support  the  reliability  of
such report shall be sufficient corroboration.
  S 8. Subparagraph 9 of paragraph (f) of subdivision 1-b of section 240
of  the  domestic  relations law, as added by chapter 567 of the laws of
1989, is amended to read as follows:
  (9) Provided that the child is not on public assistance  (i)  extraor-
dinary  expenses  incurred  by  the  non-custodial  parent in exercising
[visitation] PARENTING TIME, or (ii) expenses incurred by the non-custo-
dial parent in extended [visitation] PARENTING TIME  provided  that  the
custodial parent's expenses are substantially reduced as a result there-
of; and
  S  9.  Paragraph  c  of  subdivision  3 of section 240 of the domestic
relations law, as amended by chapter 597 of the laws of 1998, is amended
to read as follows:
  c. An order of protection entered pursuant to this subdivision may  be
made  in the final judgment in any matrimonial action or in a proceeding
to obtain custody of or [visitation] PARENTING TIME with any child under
this section, or by one or more orders  from  time  to  time  before  or
subsequent  to  final  judgment, or by both such order or orders and the

S. 892                              7

final judgment. The order of protection may remain in effect after entry
of a final matrimonial judgment and during the  minority  of  any  child
whose  custody  or  [visitation]  PARENTING  TIME  is  the  subject of a
provision  of  a final judgment or any order. An order of protection may
be entered notwithstanding that the court  for  any  reason  whatsoever,
other  than  lack of jurisdiction, refuses to grant the relief requested
in the action or proceeding.
  S 10. Section 241 of the domestic relations law, as amended by chapter
892 of the laws of 1986, is amended to read as follows:
  S 241. Interference with or withholding of [visitation] PARENTING TIME
rights; alimony or maintenance suspension. When it appears to the satis-
faction of the court that a custodial parent receiving alimony or  main-
tenance pursuant to an order, judgment or decree of a court of competent
jurisdiction  has  wrongfully  interfered  with or withheld [visitation]
PARENTING TIME rights provided by such order, judgment  or  decree,  the
court,  in  its  discretion,  may  suspend  such  payments or cancel any
arrears that may have accrued during the time that [visitation]  PARENT-
ING  TIME  rights  have  been  or are being interfered with or withheld.
Nothing in this section shall constitute a defense in any  court  to  an
application  to  enforce  payment  of  child  support or grounds for the
cancellation of arrears for child support.
  S 11. Section 251 of the domestic relations law, as added  by  chapter
164 of the laws of 1973, is amended to read as follows:
  S 251. Filing of order in family court. When, in a matrimonial action,
the  supreme court refers the issues of support, custody or [visitation]
PARENTING TIME to the family court, the order or judgment shall  provide
that  a  copy thereof shall be filed by the plaintiff's attorney, within
ten days, with the clerk of the family court therein specified.
  S 12. Paragraph (b) of subdivision 1 of section 252  of  the  domestic
relations law, as amended by chapter 349 of the laws of 1995, is amended
to read as follows:
  (b)  to permit a parent, or a person entitled to visitation OR PARENT-
ING TIME by a court order or a separation agreement, to [visit] BE  WITH
the child at stated periods;
  S  13.  Subdivision 3 of section 252 of the domestic relations law, as
added by chapter 349 of the laws of 1995, is amended to read as follows:
  3. An order of protection entered pursuant to this subdivision may  be
made  in the final judgment in any matrimonial action, or by one or more
orders from time to time before or subsequent to final judgment,  or  by
both  such  order  or  orders  and  the  final  judgment.  The  order of
protection may remain in effect after entry of a final matrimonial judg-
ment and during the minority of any child whose custody or  [visitation]
PARENTING  TIME is the subject of a provision of a final judgment or any
order. An order of protection may be entered  notwithstanding  that  the
court  for  any  reason  whatsoever,  other  than  lack of jurisdiction,
refuses to grant the relief requested in the action or proceeding.
  S 14. Subparagraph 9 of paragraph (f) of subdivision 1 of section  413
of  the family court act, as amended by chapter 567 of the laws of 1989,
is amended to read as follows:
  (9) Provided that the child is not on public assistance  (i)  extraor-
dinary  expenses  incurred  by  the  non-custodial  parent in exercising
[visitation] PARENTING TIME, or (ii) expenses incurred by the non-custo-
dial parent in extended [visitation] PARENTING TIME  provided  that  the
custodial parent's expenses are substantially reduced as a result there-
of; and

S. 892                              8

  S 15. Subdivisions (a) and (c) of section 439 of the family court act,
subdivision  (a)  as  amended by section 1 of chapter 468 of the laws of
2012, and subdivision (c) as amended by chapter 576 of the laws of 2005,
are amended to read as follows:
  (a) The chief administrator of the courts shall provide, in accordance
with  subdivision  (f)  of this section, for the appointment of a suffi-
cient number of  support  magistrates  to  hear  and  determine  support
proceedings.  Except  as hereinafter provided, support magistrates shall
be empowered to hear, determine and grant any relief within  the  powers
of  the  court  in  any  proceeding  under  this article, articles five,
five-A, and five-B and sections two hundred thirty-four and two  hundred
thirty-five  of this act, and objections raised pursuant to section five
thousand two hundred forty-one of the  civil  practice  law  and  rules.
Support  magistrates shall not be empowered to hear, determine and grant
any relief with respect to issues  specified  in  section  four  hundred
fifty-five  of  this  article,  issues  of contested paternity involving
claims of  equitable  estoppel,  custody,  [visitation]  PARENTING  TIME
including  [visitation]  PARENTING  TIME  as  a  defense,  and orders of
protection or exclusive possession of the home, which shall be  referred
to  a judge as provided in subdivision (b) or (c) of this section. Where
an order of filiation is issued by a judge in a paternity proceeding and
child support is in issue, the judge, or support magistrate upon  refer-
ral  from the judge, shall be authorized to immediately make a temporary
or final order of support, as applicable.  A  support  magistrate  shall
have  the  authority  to hear and decide motions and issue summonses and
subpoenas to produce persons pursuant to section one hundred fifty-three
of this act, hear and decide proceedings and issue any order  authorized
by subdivision (g) of section five thousand two hundred forty-one of the
civil  practice  law  and  rules,  issue  subpoenas to produce prisoners
pursuant to section two thousand three hundred two of the civil practice
law and rules and make  a  determination  that  any  person  before  the
support  magistrate  is in violation of an order of the court as author-
ized by section one hundred fifty-six of this act subject  to  confirma-
tion  by  a  judge of the court who shall impose any punishment for such
violation as provided by law. A determination by  a  support  magistrate
that  a  person  is  in  willful violation of an order under subdivision
three of section four hundred fifty-four of this article and that recom-
mends commitment shall be transmitted to  the  parties,  accompanied  by
findings  of  fact, but the determination shall have no force and effect
until confirmed by a judge of the court.
  (c) The support magistrate, in any proceeding in which  issues  speci-
fied in section four hundred fifty-five of this act, or issues of custo-
dy,  [visitation]  PARENTING TIME, including [visitation] PARENTING TIME
as a defense, orders of protection or exclusive possession of  the  home
are present or in which paternity is contested on the grounds of equita-
ble  estoppel,  shall  make  a  temporary order of support and refer the
proceeding to a judge. Upon determination of such issue by a judge,  the
judge  may  make a final determination of the issue of support, or imme-
diately refer  the  proceeding  to  a  support  magistrate  for  further
proceedings regarding child support or other matters within the authori-
ty of the support magistrate.
  S  16.  Subdivision  (a)  of  section  439 of the family court act, as
amended by section 2 of chapter 468 of the laws of 2012, is  amended  to
read as follows:
  (a) The chief administrator of the courts shall provide, in accordance
with  subdivision  (f)  of this section, for the appointment of a suffi-

S. 892                              9

cient number of  support  magistrates  to  hear  and  determine  support
proceedings.  Except  as hereinafter provided, support magistrates shall
be empowered to hear, determine and grant any relief within  the  powers
of  the  court  in  any  proceeding  under  this article, articles five,
five-A, and five-B and sections two hundred thirty-four and two  hundred
thirty-five  of this act, and objections raised pursuant to section five
thousand two hundred forty-one of the  civil  practice  law  and  rules.
Support  magistrates shall not be empowered to hear, determine and grant
any relief with respect to issues  specified  in  section  four  hundred
fifty-five  of  this  article,  issues  of contested paternity involving
claims of  equitable  estoppel,  custody,  [visitation]  PARENTING  TIME
including  [visitation]  PARENTING  TIME  as  a  defense,  and orders of
protection or exclusive possession of the home, which shall be  referred
to  a judge as provided in subdivision (b) or (c) of this section. Where
an order of filiation is issued by a judge in a paternity proceeding and
child support is in issue, the judge, or support magistrate upon  refer-
ral  from the judge, shall be authorized to immediately make a temporary
or final order of support, as applicable.  A  support  magistrate  shall
have  the  authority  to hear and decide motions and issue summonses and
subpoenas to produce persons pursuant to section one hundred fifty-three
of this act, hear and decide proceedings and issue any order  authorized
by subdivision (g) of section five thousand two hundred forty-one of the
civil  practice  law  and  rules,  issue  subpoenas to produce prisoners
pursuant to section two thousand three hundred two of the civil practice
law and rules and make  a  determination  that  any  person  before  the
support  magistrate  is in violation of an order of the court as author-
ized by section one hundred fifty-six of this act subject  to  confirma-
tion  by  a  judge of the court who shall impose any punishment for such
violation as provided by law. A determination by  a  support  magistrate
that  a  person  is  in  willful violation of an order under subdivision
three of section four hundred fifty-four of this article and that recom-
mends commitment shall be transmitted to  the  parties,  accompanied  by
findings  of  fact, but the determination shall have no force and effect
until confirmed by a judge of the court.
  S 17. Subdivision (b) of section 446  of  the  family  court  act,  as
amended  by  chapter  483  of  the  laws  of 1995, is amended to read as
follows:
  (b) to permit a parent, or a person entitled to visitation OR  PARENT-
ING  TIME by a court order or a separation agreement, to [visit] BE WITH
the child at stated periods;
  S 18. Section 447 of the family court act, subdivision (a) as  amended
by chapter 85 of the laws of 1996, is amended to read as follows:
  S 447. Order of [visitation] PARENTING TIME.  (a) In the absence of an
order  of  custody  or  of  [visitation]  PARENTING  TIME entered by the
supreme court, the court may make an order of custody or of [visitation]
PARENTING TIME, in  accordance  with  subdivision  one  of  section  two
hundred  forty  of  the  domestic relations law, requiring one parent to
permit the other to [visit] BE WITH the children at stated periods with-
out an order of protection, even where the parents are divorced and  the
support order is for a child only.
  (b)  Any  order of the family court under this section shall terminate
when the supreme court makes an order  of  custody  or  of  [visitation]
PARENTING TIME concerning the children, unless the supreme court contin-
ues the order of the family court.

S. 892                             10

  S  19.  Subdivision  (a)  of  section  456 of the family court act, as
amended by chapter 809 of the laws  of  1963,  is  amended  to  read  as
follows:
  (a) No person may be placed on probation under this article unless the
court makes an order to that effect, either at the time of the making of
an  order  of  support  or under section four hundred fifty-four OF THIS
PART. The period of probation may  continue  so  long  as  an  order  of
support,  order  of  protection  or order of [visitation] PARENTING TIME
applies to such person.
  S 20. Subdivisions (a) and (b) of section 467 of the family court act,
as amended by chapter 40 of the laws of 1981, are  amended  to  read  as
follows:
  (a)  In  an  action  for divorce, separation or annulment, the supreme
court may refer to the family court the determination of applications to
fix temporary or  permanent  custody  or  [visitation]  PARENTING  TIME,
applications  to enforce judgments and orders of custody or [visitation]
PARENTING TIME, and applications  to  modify  judgments  and  orders  of
custody  which  modification  may  be granted only upon a showing to the
family court that there has been a subsequent  change  of  circumstances
and that modification is required.
  (b) In the event no such referral has been made and unless the supreme
court provides in the order or judgment awarding custody or [visitation]
PARENTING  TIME  in an action for divorce, separation or annulment, that
it may be enforced or modified only in the  supreme  court,  the  family
court may: (i) determine an application to enforce the order or judgment
awarding  custody  or  [visitation] PARENTING TIME, or (ii) determine an
application to modify the order or judgment awarding custody or [visita-
tion] PARENTING TIME upon a showing that there  has  been  a  subsequent
change of circumstances and modification is required.
  S  21.  Section 511 of the family court act, as amended by chapter 533
of the laws of 1999, is amended to read as follows:
  S 511. Jurisdiction. Except as otherwise provided,  the  family  court
has exclusive original jurisdiction in proceedings to establish paterni-
ty  and, in any such proceedings in which it makes a finding of paterni-
ty, to order support and to make orders of custody  or  of  [visitation]
PARENTING  TIME,  as  set  forth in this article. On its own motion, the
court may at any time in the proceedings also direct  the  filing  of  a
neglect  petition  in  accord with the provisions of article ten of this
act. In accordance with the provisions of section one  hundred  eleven-b
of the domestic relations law, the surrogate's court has original juris-
diction  concurrent with the family court to determine the issues relat-
ing to the establishment of paternity.
  S 22. Section 549 of the family court act, as added by chapter 952  of
the  laws  of 1971, subdivision (a) as amended by chapter 85 of the laws
of 1996, is amended to read as follows:
  S 549. Order of [visitation] PARENTING TIME.  (a) If an order of fili-
ation is made or if a paternity agreement or compromise is  approved  by
the  court,  in  the  absence  of an order of custody or of [visitation]
PARENTING TIME entered by the supreme court the family court may make an
order of custody or of [visitation] PARENTING TIME, in  accordance  with
subdivision  one  of section two hundred forty of the domestic relations
law, requiring one parent to permit the other to  [visit]  BE  WITH  the
child or children at stated periods.
  (b)  Any  order of the family court under this section shall terminate
when the supreme court makes an order  of  custody  or  of  [visitation]

S. 892                             11

PARENTING  TIME  concerning  the  child  or children, unless the supreme
court continues the order of the family court.
  S  23.  Subdivision  (b)  of  section  551 of the family court act, as
amended by chapter 483 of the laws  of  1995,  is  amended  to  read  as
follows:
  (b) to permit a parent PARENTING TIME, or a person entitled to visita-
tion  by  a court order or a separation agreement to [visit] BE WITH the
child at stated periods;
  S 24. Section 651 of the family court act, as amended by chapter 85 of
the laws of 1996, subdivision (b) as amended by chapter 657 of the  laws
of  2003,  subdivision (d) as amended by chapter 41 of the laws of 2010,
subdivision (e) as amended by chapter 295 of the laws of 2009 and subdi-
vision (f) as added by chapter 473 of the laws of 2009,  is  amended  to
read as follows:
  S  651.  Jurisdiction over habeas corpus proceedings and petitions for
custody [and],  visitation  AND  PARENTING  TIME  of  minors.  (a)  When
referred from the supreme court or county court to the family court, the
family  court has jurisdiction to determine, in accordance with subdivi-
sion 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  peti-
tion and order to show cause, for the determination of the custody [or],
visitation AND PARENTING TIME of minors.
  (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 AND PARENT-
ING TIME of minors, including applications by a grandparent or grandpar-
ents for visitation or custody rights pursuant to section seventy-two or
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] PARENTING TIME of minors in foster care, notwithstand-
ing any limitation contained in subdivision (b) of section four  hundred
sixty-seven of this act.
  (d)  With respect to applications by a grandparent or grandparents for
visitation or custody rights, made pursuant to  section  seventy-two  or
two  hundred  forty of the domestic relations law, with a child remanded
or placed in the care of  a  person,  official,  agency  or  institution
pursuant to the provisions of article ten of this act, the applicant, in
such  manner  as  the  court  shall prescribe, shall serve a copy of the
application upon the social services official having care and custody of
such child, and the child's attorney, who shall be afforded an  opportu-
nity to be heard thereon.
  (e)  1.  Permanent and initial temporary orders of custody or [visita-
tion] PARENTING TIME.  Prior to the issuance of any permanent or initial
temporary order of custody or [visitation]  PARENTING  TIME,  the  court
shall  conduct a review of the decisions and reports listed in paragraph
three of this subdivision.
  2. Successive temporary orders of custody  or  [visitation]  PARENTING
TIME.  Prior to the issuance of any successive temporary order of custo-
dy  or  [visitation] PARENTING TIME, the court shall conduct a review of

S. 892                             12

the decisions and reports listed in paragraph three of this subdivision,
unless such a review has been conducted within ninety days prior to  the
issuance of such order.
  3.  Decisions and reports for review. The court shall conduct a review
of the following:
  (i) related decisions in court proceedings initiated pursuant to arti-
cle ten of this act, and all warrants issued under this act; and
  (ii) reports of the  statewide  computerized  registry  of  orders  of
protection  established  and  maintained pursuant to section two hundred
twenty-one-a of the executive law,  and  reports  of  the  sex  offender
registry  established  and  maintained  pursuant  to section one hundred
sixty-eight-b of the correction law.
  4. Notifying counsel and issuing orders. Upon consideration  of  deci-
sions  pursuant  to  article  ten  of this act, and registry reports and
notifying counsel involved in the proceeding, or in the event of a self-
represented party, notifying such party of the results thereof,  includ-
ing  any  court  appointed  attorney for children, the court may issue a
temporary, successive temporary or final order of  custody  or  [visita-
tion] PARENTING TIME.
  5.  Temporary  emergency order. Notwithstanding any other provision of
the law, upon emergency situations, including computer malfunctions,  to
serve  the  best  interest of the child, the court may issue a temporary
emergency order for custody or [visitation] PARENTING TIME in the  event
that it is not possible to timely review decisions and reports on regis-
tries as required pursuant to paragraph three of this subdivision.
  6.  After  issuing a temporary emergency order. After issuing a tempo-
rary emergency order of custody  or  [visitation]  PARENTING  TIME,  the
court  shall  conduct reviews of the decisions and reports on registries
as required pursuant to paragraph three of this subdivision within twen-
ty-four hours of the issuance of such temporary emergency order.  Should
such twenty-four hour period fall on a day when court is not in session,
then  the required reviews shall take place the next day the court is in
session. Upon reviewing decisions and reports  the  court  shall  notify
associated  counsel, self-represented parties and attorneys for children
pursuant to paragraph four of this subdivision and may  issue  temporary
or permanent custody or [visitation] PARENTING TIME orders.
  7.  Feasibility  study. The commissioner of the office of children and
family services, in conjunction with the office of court administration,
is hereby authorized and directed to examine, study, evaluate  and  make
recommendations concerning the feasibility of the utilization of comput-
ers in family courts which are connected to the statewide central regis-
ter  of child abuse and maltreatment established and maintained pursuant
to section four hundred twenty-two of the  social  services  law,  as  a
means  of  providing  family  courts  with information regarding parties
requesting orders  of  custody  or  [visitation]  PARENTING  TIME.  Such
commissioner  shall  make  a  preliminary report to the governor and the
legislature of findings, conclusions and recommendations not later  than
January thirty-first, two thousand nine, and a final report of findings,
conclusions  and recommendations not later than June first, two thousand
nine, and shall submit with the reports such  legislative  proposals  as
are deemed necessary to implement the commissioner's recommendations.
  (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

S. 892                             13

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  25. Section 651-a of the family court act, as amended by chapter 12
of the laws of 1996, is amended to read as follows:
  S 651-a. Reports of child abuse and  maltreatment;  admissibility.  In
any proceeding brought pursuant to this section to determine the custody
[or],  visitation  OR  PARENTING  TIME  of  minors, a report made to the
statewide central register of child abuse and maltreatment, pursuant  to
title six of article six of the social services law, or a portion there-
of,  which is otherwise admissible as a business record pursuant to rule
forty-five hundred eighteen of the civil practice law  and  rules  shall
not  be  admissible  in  evidence,  notwithstanding such rule, unless an
investigation of such report conducted pursuant to title six of  article
six  of the social services law has determined that there is some credi-
ble evidence of the alleged abuse or maltreatment, that the  subject  of
the report has been notified that the report is indicated.  In addition,
if  such  report has been reviewed by the state commissioner of [social]
THE OFFICE OF CHILDREN AND FAMILY services or his designee and has  been
determined  to  be unfounded, it shall not be admissible in evidence. If
such report has been so reviewed and has  been  amended  to  delete  any
finding, each such deleted finding shall not be admissible. If the state
commissioner  of  [social] THE OFFICE OF CHILDREN AND FAMILY services or
his designee has amended the report to add any new  finding,  each  such
new  finding,  together  with  any  portion  of  the original report not
deleted by [the] SUCH commissioner or his designee, shall be  admissible

S. 892                             14

if  it  meets  the  other  requirements of this section and is otherwise
admissible as a business record. If such a report, or  portion  thereof,
is  admissible in evidence but is uncorroborated, it shall not be suffi-
cient  to  make a fact finding of abuse or maltreatment in such proceed-
ing. Any other evidence tending  to  support  the  reliability  of  such
report shall be sufficient corroboration.
  S 26. Subdivisions (a) and (b) of section 652 of the family court act,
as  amended  by  chapter  40 of the laws of 1981, are amended to read as
follows:
  (a) When referred from the supreme court  to  the  family  court,  the
family  court  has  jurisdiction  to  determine,  with  the  same powers
possessed by the supreme court, applications to fix temporary or  perma-
nent  custody and applications to modify judgments and orders of custody
or [visitation] PARENTING TIME in actions and  proceedings  for  marital
separation,  divorce, annulment of marriage and dissolution of marriage.
Applications to modify judgments and orders of custody may be granted by
the family court under this section only upon the showing to the  family
court  that there has been a subsequent change of circumstances and that
modification is required.
  (b) In the event no such referral has been made and unless the supreme
court provides in the order or judgment awarding custody or [visitation]
PARENTING TIME in an action for divorce, separation or  annulment,  that
it  may  be  enforced  or modified only in the supreme court, the family
court may: (i) determine an application to enforce the order or judgment
awarding custody or [visitation] PARENTING TIME, or  (ii)  determine  an
application to modify the order or judgment awarding custody or [visita-
tion]  PARENTING  TIME  upon  a showing that there has been a subsequent
change of circumstances and modification is required.
  S 27. Subdivision (b) of section 656  of  the  family  court  act,  as
amended  by  chapter  483  of  the  laws  of 1995, is amended to read as
follows:
  (b) to permit a parent PARENTING TIME, or a person entitled to visita-
tion by a court order or a separation agreement, to [visit] BE WITH  the
child at stated periods;
  S  28.  Subdivision  (b)  of  section  759 of the family court act, as
amended by chapter 483 of the laws  of  1995,  is  amended  to  read  as
follows:
  (b) to permit a parent PARENTING TIME, or a person entitled to visita-
tion  by a court order or a separation agreement, to [visit] BE WITH the
child at stated periods;
  S 29. Subdivision (b) of section 842  of  the  family  court  act,  as
amended  by  chapter  483  of  the  laws  of 1995, is amended to read as
follows:
  (b) to permit a parent PARENTING TIME, or a person entitled to visita-
tion by a court order or a separation agreement, to [visit] BE WITH  the
child at stated periods;
  S 30. Section 119 of the family court act is amended by adding two new
subdivisions (d) and (e) to read as follows:
  (D)  "VISITATION"  REFERS  TO  TIME PERMITTED TO BE SPENT WITH A CHILD
PURSUANT TO A COURT ORDER UNDER THIS CHAPTER, THE FAMILY COURT ACT OR AN
ORDER ENFORCED UNDER ARTICLE FIVE-A OF THIS CHAPTER, BY A PERSON WHO  IS
NOT A PARENT OF THE CHILD. THIS SHALL INCLUDE GRANDPARENTS, SIBLINGS AND
STEP-PARENTS.
  (E)  "PARENTING  TIME"  REFERS TO THE PERIOD OF TIME THAT A PARENT MAY
SPEND WITH HIS OR HER CHILD PURSUANT TO A COURT ORDER UNDER  THIS  CHAP-

S. 892                             15

TER,  THE  FAMILY COURT ACT OR AN ORDER ENFORCED UNDER ARTICLE FIVE-A OF
THIS CHAPTER.
  S 31. This act shall take effect immediately, provided that the amend-
ments  to subdivision (a) of section 439 of the family court act made by
section fifteen of this act shall  be  subject  to  the  expiration  and
reversion  of  such subdivision pursuant to section 246 of chapter 81 of
the laws of 1995, as amended, when upon  such  date  the  provisions  of
section sixteen of this act shall take effect.

Co-Sponsors

S892A (ACTIVE) - Bill Details

Current Committee:
Law Section:
Domestic Relations Law
Laws Affected:
Amd Dom Rel L, generally; amd Fam Ct Act, generally
Versions Introduced in 2011-2012 Legislative Session:
S7807

S892A (ACTIVE) - Bill Texts

view summary

Amends provisions of various sections of law to change term "visitation" to "parenting time" regarding custody orders.

view sponsor memo
BILL NUMBER:S892A

TITLE OF BILL: An act to amend the domestic relations law and the fami-
ly court act, in relation to changing the denotation of visitation to
parenting time

PURPOSE: This bill replaces the term "visitation" in relation to time
spent with non-custodial parents with the term "parenting time" in the
Domestic Relations Law and the Family Court Act.

SUMMARY OF PROVISIONS:

Section 1 declares the legislative intent of the bill.

Section 1-a provides definitions for "visitation" and "parenting time."

Sections 2 through 13 amend various provisions of the Domestic Relations
Law by changing references to "visitation" to "parenting time."

Sections 14 through 29 amend various provisions of the Family Court Act
by changing references to "visitation" to "parenting time."

Section 30 amends the Family Court Act by adding definitions for "visi-
tation" and "parenting time."

Section 31 This act shall take effect immediately, with provisions.

JUSTIFICATION: In 2006, the Judiciary's Matrimonial Commission, chaired
by the Honorable Sondra Miller, recommended replacing the term "visita-
tion" with "Parenting time" in appropriate law. This is meant to reflect
a "cultural change" away from viewing time spent with a parent as "visi-
tation" and instead as meaningful time spent with a parent. Children
"visit" the zoo, or the dentist, or the park; they do not "visit" their
mother or father. In addition, "visitation" is often associated with the
visiting of inmates at correctional facilities and prisons, an inappro-
priate association for the time spent by a parent with his or her child.
New York State law should reflect this reality.

The misuse of "visitation" to describe time spent by a parent with his
or her child has implications far beyond legal court documents. Nega-
tive Perceptions of this time caused by visitation's "inappropriately
pejorative meaning," in the words of the Honorable A. Gail Prudenti, can
harm relations between a child and his or her non-custodial parent post-
divorce. The inherent harmfulness of the phrase can also contribute to
acrimony in divorce cases. "Parenting time," unlike "visitation," accu-
rately reflects how meaningful and important time with both parents is
in the life of a child. Many other states, including Oregon, New Jersey,
and Michigan, have already instituted such a change in terminology. The
inclusion of "parenting time" in New York law will follow the national
trend to improve post-divorce relations among all parties.

LEGISLATIVE HISTORY:

2011-12: S.7807 Died in Rules
2007-2008: S.1074 (Saland) - Referred to Social Services, Children and
Families
2005-2006: S.468 (Saland)Referred to Social Services, Children and Fami-
lies
2003-2004: S.1916 (Saland) - Passed Senate 2001-2002: S.4893A (Saland) -
Passed Senate
1999-2000: S.2720 (Saland) - Referred to Children and Families
1997-1998: S.4519B (Saland) - Passed Senate

FISCAL IMPLICATIONS: None to the state.

EFFECTIVE DATE: The act shall take effect immediately, provided that
the amendments to subdivision (a) of section 439 of the Family Court Act
made by section fifteen of this act shall be subject to the expiration
and reversion of such subdivision pursuant to section 246 of Chapter 81
of the laws of 1995, as amended, when upon such date the provisions of
section sixteen of this act shall take effect.

view full text
download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 892--A

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced by Sens. PARKER, MARCHIONE -- read twice and ordered printed,
  and  when  printed  to  be  committed to the Committee on Judiciary --
  recommitted to the Committee on Judiciary in  accordance  with  Senate
  Rule  6,  sec.  8  --  committee  discharged,  bill  amended,  ordered
  reprinted as amended and recommitted to said committee

AN ACT to amend the domestic relations law and the family court act,  in
  relation to changing the denotation of visitation to parenting time

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

  Section 1.  Legislative  intent.  The  legislature  hereby  finds  and
declares  that the term "visitation" carries a negative connotation with
respect to noncustodial parents who want to be a  part  of  their  chil-
dren's  lives. Society has given the term "visitation" a negative conno-
tation that can be associated with  the  visiting  of  an  inmate  at  a
correctional  facility  or prison. The purpose of this act is to reflect
the fact that a parent's time with a child is not merely  as  a  visitor
but constitutes parenting time.
  S  1-a. Section 2 of the domestic relations law, as amended by chapter
920 of the laws of 1974, is amended to read as follows:
  S 2. Definitions. AS USED IN THIS CHAPTER:
  1. A "minor" or "infant", [as used in this chapter,] is a person under
the age of eighteen years.
  2. "VISITATION" REFERS TO TIME PERMITTED TO  BE  SPENT  WITH  A  CHILD
PURSUANT TO A COURT ORDER UNDER THIS CHAPTER, THE FAMILY COURT ACT OR AN
ORDER  ENFORCED UNDER ARTICLE FIVE-A OF THIS CHAPTER, BY A PERSON WHO IS
NOT A PARENT OF THE CHILD. THIS SHALL INCLUDE GRANDPARENTS, SIBLINGS AND
STEP-PARENTS.
  3. "PARENTING TIME" REFERS TO THE PERIOD OF TIME  THAT  A  PARENT  MAY
SPEND  WITH  HIS OR HER CHILD PURSUANT TO A COURT ORDER UNDER THIS CHAP-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03762-03-4

S. 892--A                           2

TER, THE FAMILY COURT ACT OR AN ORDER ENFORCED UNDER ARTICLE  FIVE-A  OF
THIS CHAPTER.
  S  2.  Subdivision (b) of section 70 of the domestic relations law, as
added by chapter 457 of the laws of 1988, is amended to read as follows:
  (b) Any order under this section which applies to rights  of  [visita-
tion]  PARENTING  TIME  with a child remanded or placed in the care of a
person, official, agency or institution pursuant to article ten  of  the
family  court  act  or  pursuant to an instrument approved under section
three hundred  fifty-eight-a  of  the  social  services  law,  shall  be
enforceable  pursuant  to the provisions of part eight of article ten of
[such] THE FAMILY COURT act, sections three  hundred  fifty-eight-a  and
three  hundred eighty-four-a of the social services law and other appli-
cable provisions of law against any person or official having  care  and
custody, or temporary care and custody, of such child.
  S  3.  Subdivisions  3 and 4 of section 75-a of the domestic relations
law, as added by chapter 386 of the laws of 2001, are amended to read as
follows:
  3. "Child custody determination" means a judgment,  decree,  or  other
order  of  a court providing for the legal custody, physical custody, or
[visitation] PARENTING TIME with respect to a child. The term includes a
permanent, temporary, initial, and modification order. The term does not
include an order relating to child support or other monetary  obligation
of an individual.
  4. "Child custody proceeding" means a proceeding in which legal custo-
dy,  physical custody, [or] visitation OR PARENTING TIME with respect to
a child is an issue. The term includes a proceeding for  divorce,  sepa-
ration, neglect, abuse, dependency, guardianship, paternity, termination
of  parental rights, and protection from domestic violence, in which the
issue may appear. The term does not include a proceeding involving juve-
nile delinquency, person in need of supervision,  contractual  emancipa-
tion, or enforcement under title three of this article.
  S  4.  Subdivision  1 of section 235 of the domestic relations law, as
amended by chapter 122 of the laws  of  1979,  is  amended  to  read  as
follows:
  1.  An officer of the court with whom the proceedings in a matrimonial
action or a written agreement of separation or an action  or  proceeding
for  custody,  [visitation] PARENTING TIME or maintenance of a child are
filed, or before whom the testimony  is  taken,  or  his  clerk,  either
before  or after the termination of the suit, shall not permit a copy of
any of the pleadings, affidavits, findings of fact, conclusions of  law,
judgment  of  dissolution, written agreement of separation or memorandum
thereof, or testimony, or any examination  or  perusal  thereof,  to  be
taken  by any other person than a party, or the attorney or counsel of a
party, except by order of the court.
  S 5. Subdivision (b) of section 237 of the domestic relations law,  as
amended  by  chapter  329  of  the  laws  of 2010, is amended to read as
follows:
  (b) Upon any application to enforce, annul or modify an order or judg-
ment for alimony, maintenance, distributive award, distribution of mari-
tal property or for custody, [visitation,] PARENTING TIME or maintenance
of a child, made as in section two hundred  thirty-six  or  section  two
hundred  forty of this article provided, or upon any application by writ
of habeas corpus or by petition  and  order  to  show  cause  concerning
custody,  [visitation]  PARENTING  TIME  or  maintenance of a child, the
court may direct a spouse or parent to pay counsel  fees  and  fees  and
expenses  of  experts  directly  to  the attorney of the other spouse or

S. 892--A                           3

parent to enable the other party to carry on or defend  the  application
or  proceeding  by  the  other  spouse  or  parent  as,  in  the court's
discretion, justice requires, having regard to the circumstances of  the
case and of the respective parties. There shall be a rebuttable presump-
tion  that  counsel  fees shall be awarded to the less monied spouse. In
exercising the court's discretion, the court shall seek to  assure  that
each  party  shall  be  adequately  represented  and that where fees and
expenses are to be awarded, they shall be awarded  on  a  timely  basis,
pendente  lite,  so  as  to  enable  adequate  representation  from  the
commencement of the proceeding. Applications for the award of  fees  and
expenses  may be made at any time or times prior to final judgment. Both
parties to the action or  proceeding  and  their  respective  attorneys,
shall  file  an  affidavit with the court detailing the financial agree-
ment, between the party and the attorney. Such affidavit  shall  include
the amount of any retainer, the amounts paid and still owing thereunder,
the  hourly  amount  charged by the attorney, the amounts paid, or to be
paid, any experts, and any additional costs, disbursements or  expenses.
Any applications for fees and expenses may be maintained by the attorney
for  either spouse in counsel's own name in the same proceeding. Payment
of any retainer fees to the attorney for the petitioning party shall not
preclude any awards of fees and expenses to  an  applicant  which  would
otherwise be allowed under this section.
  S  6.  Paragraphs (a) and (a-1) of subdivision 1 of section 240 of the
domestic relations law, paragraph (a) as amended by chapter 476  of  the
laws  of  2009 and paragraph (a-1) as amended by chapter 295 of the laws
of 2009, are amended to read as follows:
  (a) In any action or proceeding brought (1) to annul a marriage or  to
declare  the nullity of a void marriage, or (2) for a separation, or (3)
for a divorce, or (4) to obtain, by a writ of habeas corpus or by  peti-
tion  and  order  to show cause, the custody of or right to [visitation]
PARENTING TIME with any child of a marriage,  the  court  shall  require
verification  of the status of any child of the marriage with respect to
such child's custody and support, including any prior orders, and  shall
enter  orders  for  custody  and  support as, in the court's discretion,
justice requires, having regard to the circumstances of the case and  of
the  respective  parties  and  to  the  best  interests of the child and
subject to the provisions of subdivision one-c of  this  section.  Where
either  party  to an action concerning custody of or a right to [visita-
tion] PARENTING TIME with  a  child  alleges  in  a  sworn  petition  or
complaint  or  sworn answer, cross-petition, counterclaim or other sworn
responsive pleading that the other party has committed an act of  domes-
tic  violence  against  the  party  making the allegation or a family or
household member of either party, as such family or household member  is
defined  in  article eight of the family court act, and such allegations
are proven by a preponderance of the evidence, the court  must  consider
the  effect  of  such  domestic  violence upon the best interests of the
child, together with such other facts and  circumstances  as  the  court
deems  relevant in making a direction pursuant to this section and state
on the record how such findings, facts and circumstances  factored  into
the  direction.  If  a  parent  makes a good faith allegation based on a
reasonable belief supported by facts that the child  is  the  victim  of
child  abuse, child neglect, or the effects of domestic violence, and if
that parent acts lawfully and in good faith in response to that  reason-
able  belief  to protect the child or seek treatment for the child, then
that parent shall not be deprived  of  custody,  [visitation]  PARENTING
TIME  or  contact with the child, or restricted in custody, [visitation]

S. 892--A                           4

PARENTING TIME or contact, based solely on that belief or the reasonable
actions taken based on that belief. If an allegation  that  a  child  is
abused  is  supported by a preponderance of the evidence, then the court
shall  consider  such  evidence  of abuse in determining the [visitation
arrangement] PARENTING TIME that is in the best interest of  the  child,
and  the  court  shall  not place a child in the custody of a parent who
presents a substantial risk of harm to that child, and  shall  state  on
the  record  how  such findings were factored into the determination. An
order directing the payment of child support shall  contain  the  social
security  numbers  of  the named parties. In all cases there shall be no
prima facie right to the custody of the child  in  either  parent.  Such
direction  shall make provision for child support out of the property of
either or both parents. The court shall make its award for child support
pursuant to subdivision  one-b  of  this  section.  Such  direction  may
provide for reasonable visitation rights to the maternal and/or paternal
grandparents  of  any child of the parties. Such direction as it applies
to rights of [visitation] PARENTING TIME with a child remanded or placed
in the care of a person, official, agency  or  institution  pursuant  to
article  ten  of  the  family  court  act,  or pursuant to an instrument
approved  under  section  three  hundred  fifty-eight-a  of  the  social
services law, shall be enforceable pursuant to part eight of article ten
of  the  family  court  act and sections three hundred fifty-eight-a and
three hundred eighty-four-a of the social services law and other  appli-
cable  provisions  of law against any person having care and custody, or
temporary care and custody, of  the  child.  Notwithstanding  any  other
provision of law, any written application or motion to the court for the
establishment, modification or enforcement of a child support obligation
for  persons  not  in receipt of public assistance and care must contain
either a request for child  support  enforcement  services  which  would
authorize  the  collection  of  the  support obligation by the immediate
issuance of an income execution for support enforcement as provided  for
by  this  chapter,  completed  in  the  manner  specified in section one
hundred eleven-g of the social services law; or  a  statement  that  the
applicant has applied for or is in receipt of such services; or a state-
ment  that the applicant knows of the availability of such services, has
declined them at this time and where support enforcement services pursu-
ant to section one hundred eleven-g of the social services law have been
declined that the applicant understands that an income  deduction  order
may  be  issued pursuant to subdivision (c) of section fifty-two hundred
forty-two of the civil  practice  law  and  rules  without  other  child
support  enforcement  services and that payment of an administrative fee
may be required. The court shall provide a copy of any such request  for
child support enforcement services to the support collection unit of the
appropriate  social services district any time it directs payments to be
made to such support collection unit. Additionally, the copy of any such
request shall be accompanied by the name, address  and  social  security
number  of the parties; the date and place of the parties' marriage; the
name and date of birth of the  child  or  children;  and  the  name  and
address  of the employers and income payors of the party from whom child
support is sought or from the party ordered to pay child support to  the
other  party. Such direction may require the payment of a sum or sums of
money either directly to the custodial parent or to  third  persons  for
goods  or services furnished for such child, or for both payments to the
custodial parent and to such  third  persons;  provided,  however,  that
unless  the  party seeking or receiving child support has applied for or
is receiving such services, the court shall not direct such payments  to

S. 892--A                           5

be  made  to  the support collection unit, as established in section one
hundred eleven-h of the social services law. Every order  directing  the
payment  of support shall require that if either parent currently, or at
any time in the future, has health insurance benefits available that may
be  extended  or obtained to cover the child, such parent is required to
exercise the option of additional coverage in favor of  such  child  and
execute  and  deliver  to  such  person any forms, notices, documents or
instruments necessary to assure timely payment of any  health  insurance
claims for such child.
  (a-1)(1) Permanent and initial temporary orders of custody or [visita-
tion] PARENTING TIME.  Prior to the issuance of any permanent or initial
temporary  order  of  custody  or [visitation] PARENTING TIME, the court
shall conduct a review of the decisions and reports listed  in  subpara-
graph three of this paragraph.
  (2)  Successive  temporary orders of custody or [visitation] PARENTING
TIME.  Prior to the issuance of any successive temporary order of custo-
dy or [visitation] PARENTING TIME, the court shall conduct a  review  of
the  decisions  and  reports  listed in subparagraph three of this para-
graph, unless such a review has been conducted within ninety days  prior
to the issuance of such order.
  (3) Decisions and reports for review. The court shall conduct a review
of the following:
  (i) related decisions in court proceedings initiated pursuant to arti-
cle ten of the family court act, and all warrants issued under the fami-
ly court act; and
  (ii)  reports  of  the  statewide  computerized  registry of orders of
protection established and maintained pursuant to  section  two  hundred
twenty-one-a  of  the  executive  law,  and  reports of the sex offender
registry established and maintained  pursuant  to  section  one  hundred
sixty-eight-b of the correction law.
  (4)  Notifying counsel and issuing orders. Upon consideration of deci-
sions pursuant to article ten of the  family  court  act,  and  registry
reports  and  notifying  counsel  involved  in the proceeding, or in the
event of a self-represented party, notifying such party of  the  results
thereof,  including any court appointed attorney for children, the court
may issue a temporary, successive temporary or final order of custody or
[visitation] PARENTING TIME.
  (5) Temporary emergency order. Notwithstanding any other provision  of
the  law, upon emergency situations, including computer malfunctions, to
serve the best interest of the child, the court may  issue  a  temporary
emergency  order for custody or [visitation] PARENTING TIME in the event
that it is not possible to timely review decisions and reports on regis-
tries as required pursuant to subparagraph three of this paragraph.
  (6) After issuing a temporary emergency order. After issuing a  tempo-
rary  emergency  order  of  custody  or [visitation] PARENTING TIME, the
court shall conduct reviews of the decisions and reports  on  registries
as  required  pursuant  to  subparagraph  three of this paragraph within
twenty-four hours of the issuance of  such  temporary  emergency  order.
Should  such  twenty-four hour period fall on a day when court is not in
session, then the required reviews shall take place  the  next  day  the
court  is  in  session.  Upon  reviewing decisions and reports the court
shall notify associated counsel, self-represented parties and  attorneys
for  children  pursuant  to  subparagraph four of this paragraph and may
issue temporary or permanent  custody  or  [visitation]  PARENTING  TIME
orders.

S. 892--A                           6

  (7)  Feasibility study. The commissioner of the office of children and
family services, in conjunction with the office of court administration,
is hereby authorized and directed to examine, study, evaluate  and  make
recommendations concerning the feasibility of the utilization of comput-
ers  in  courts which are connected to the statewide central register of
child abuse and maltreatment  established  and  maintained  pursuant  to
section  four  hundred twenty-two of the social services law, as a means
of providing courts with information regarding parties requesting orders
of custody or [visitation] PARENTING TIME.  Such commissioner shall make
a preliminary report to the governor and the  legislature  of  findings,
conclusions  and recommendations not later than January first, two thou-
sand nine, and a final report of findings, conclusions  and  recommenda-
tions  not  later  than  June first, two thousand nine, and shall submit
with the reports such legislative proposals as are deemed  necessary  to
implement the commissioner's recommendations.
  S  7. Subdivision 1-a of section 240 of the domestic relations law, as
amended by chapter 12 of the  laws  of  1996,  is  amended  to  read  as
follows:
  1-a.  In  any proceeding brought pursuant to this section to determine
the custody or [visitation] PARENTING TIME of minors, a report  made  to
the statewide central register of child abuse and maltreatment, pursuant
to  title  six  of  article six of the social services law, or a portion
thereof, which is otherwise admissible as a business record pursuant  to
rule  forty-five  hundred  eighteen  of the civil practice law and rules
shall not be admissible in evidence, notwithstanding such  rule,  unless
an investigation of such report conducted pursuant to title six of arti-
cle  six  of  the  social services law has determined that there is some
credible evidence of the alleged abuse  or  maltreatment  and  that  the
subject  of  the  report has been notified that the report is indicated.
In addition, if such report has been reviewed by the state  commissioner
of  [social]  THE OFFICE OF CHILDREN AND FAMILY services or his designee
and has been determined to be unfounded, it shall not be  admissible  in
evidence.  If  such  report has been so reviewed and has been amended to
delete any finding, each such deleted finding shall not  be  admissible.
If  the state commissioner of [social] THE OFFICE OF CHILDREN AND FAMILY
services or his designee has amended the report to add any new  finding,
each  such new finding, together with any portion of the original report
not deleted by [the] SUCH commissioner or his designee, shall be  admis-
sible  if  it  meets  the  other requirements of this subdivision and is
otherwise admissible as a business record. If such a report, or  portion
thereof,  is  admissible in evidence but is uncorroborated, it shall not
be sufficient to make a fact finding of abuse or  maltreatment  in  such
proceeding.  Any  other  evidence  tending to support the reliability of
such report shall be sufficient corroboration.
  S 8. Subparagraph 9 of paragraph (f) of subdivision 1-b of section 240
of the domestic relations law, as added by chapter 567 of  the  laws  of
1989, is amended to read as follows:
  (9)  Provided  that the child is not on public assistance (i) extraor-
dinary expenses incurred  by  the  non-custodial  parent  in  exercising
[visitation] PARENTING TIME, or (ii) expenses incurred by the non-custo-
dial  parent  in  extended [visitation] PARENTING TIME provided that the
custodial parent's expenses are substantially reduced as a result there-
of; and
  S 9. Paragraph c of subdivision 3  of  section  240  of  the  domestic
relations law, as amended by chapter 597 of the laws of 1998, is amended
to read as follows:

S. 892--A                           7

  c.  An order of protection entered pursuant to this subdivision may be
made in the final judgment in any matrimonial action or in a  proceeding
to obtain custody of or [visitation] PARENTING TIME with any child under
this  section,  or  by  one  or  more orders from time to time before or
subsequent  to  final  judgment, or by both such order or orders and the
final judgment. The order of protection may remain in effect after entry
of a final matrimonial judgment and during the  minority  of  any  child
whose  custody  or  [visitation]  PARENTING  TIME  is  the  subject of a
provision of a final judgment or any order. An order of  protection  may
be  entered  notwithstanding  that  the court for any reason whatsoever,
other than lack of jurisdiction, refuses to grant the  relief  requested
in the action or proceeding.
  S 10. Section 241 of the domestic relations law, as amended by chapter
892 of the laws of 1986, is amended to read as follows:
  S 241. Interference with or withholding of [visitation] PARENTING TIME
rights; alimony or maintenance suspension. When it appears to the satis-
faction  of the court that a custodial parent receiving alimony or main-
tenance pursuant to an order, judgment or decree of a court of competent
jurisdiction has wrongfully interfered  with  or  withheld  [visitation]
PARENTING  TIME  rights  provided by such order, judgment or decree, the
court, in its discretion,  may  suspend  such  payments  or  cancel  any
arrears  that may have accrued during the time that [visitation] PARENT-
ING TIME rights have been or are  being  interfered  with  or  withheld.
Nothing  in  this  section shall constitute a defense in any court to an
application to enforce payment of  child  support  or  grounds  for  the
cancellation of arrears for child support.
  S  11.  Section 251 of the domestic relations law, as added by chapter
164 of the laws of 1973, is amended to read as follows:
  S 251. Filing of order in family court. When, in a matrimonial action,
the supreme court refers the issues of support, custody or  [visitation]
PARENTING  TIME to the family court, the order or judgment shall provide
that a copy thereof shall be filed by the plaintiff's  attorney,  within
ten days, with the clerk of the family court therein specified.
  S  12.  Paragraph  (b) of subdivision 1 of section 252 of the domestic
relations law, as amended by chapter 526 of the laws of 2013, is amended
to read as follows:
  (b) to permit a parent, or a person entitled to visitation OR  PARENT-
ING  TIME by a court order or a separation agreement, to [visit] BE WITH
the child at stated periods;
  S 13. Subdivision 3 of section 252 of the domestic relations  law,  as
added by chapter 349 of the laws of 1995, is amended to read as follows:
  3.  An order of protection entered pursuant to this subdivision may be
made in the final judgment in any matrimonial action, or by one or  more
orders  from  time to time before or subsequent to final judgment, or by
both such  order  or  orders  and  the  final  judgment.  The  order  of
protection may remain in effect after entry of a final matrimonial judg-
ment  and during the minority of any child whose custody or [visitation]
PARENTING TIME is the subject of a provision of a final judgment or  any
order.  An  order  of protection may be entered notwithstanding that the
court for any  reason  whatsoever,  other  than  lack  of  jurisdiction,
refuses to grant the relief requested in the action or proceeding.
  S  14. Subparagraph 9 of paragraph (f) of subdivision 1 of section 413
of the family court act, as amended by chapter 567 of the laws of  1989,
is amended to read as follows:
  (9)  Provided  that the child is not on public assistance (i) extraor-
dinary expenses incurred  by  the  non-custodial  parent  in  exercising

S. 892--A                           8

[visitation] PARENTING TIME, or (ii) expenses incurred by the non-custo-
dial  parent  in  extended [visitation] PARENTING TIME provided that the
custodial parent's expenses are substantially reduced as a result there-
of; and
  S 15. Subdivisions (a) and (c) of section 439 of the family court act,
subdivision  (a)  as  amended by section 1 of chapter 468 of the laws of
2012, and subdivision (c) as amended by chapter 576 of the laws of 2005,
are amended to read as follows:
  (a) The chief administrator of the courts shall provide, in accordance
with subdivision (f) of this section, for the appointment  of  a  suffi-
cient  number  of  support  magistrates  to  hear  and determine support
proceedings. Except as hereinafter provided, support  magistrates  shall
be  empowered  to hear, determine and grant any relief within the powers
of the court in  any  proceeding  under  this  article,  articles  five,
five-A,  and five-B and sections two hundred thirty-four and two hundred
thirty-five of this act, and objections raised pursuant to section  five
thousand  two  hundred  forty-one  of  the civil practice law and rules.
Support magistrates shall not be empowered to hear, determine and  grant
any  relief  with  respect  to  issues specified in section four hundred
fifty-five of this article,  issues  of  contested  paternity  involving
claims  of  equitable  estoppel,  custody,  [visitation]  PARENTING TIME
including [visitation] PARENTING  TIME  as  a  defense,  and  orders  of
protection  or exclusive possession of the home, which shall be referred
to a judge as provided in subdivision (b) or (c) of this section.  Where
an order of filiation is issued by a judge in a paternity proceeding and
child  support is in issue, the judge, or support magistrate upon refer-
ral from the judge, shall be authorized to immediately make a  temporary
or  final  order  of  support, as applicable. A support magistrate shall
have the authority to hear and decide motions and  issue  summonses  and
subpoenas to produce persons pursuant to section one hundred fifty-three
of  this act, hear and decide proceedings and issue any order authorized
by subdivision (g) of section five thousand two hundred forty-one of the
civil practice law and  rules,  issue  subpoenas  to  produce  prisoners
pursuant to section two thousand three hundred two of the civil practice
law  and  rules  and  make  a  determination  that any person before the
support magistrate is in violation of an order of the court  as  author-
ized  by  section one hundred fifty-six of this act subject to confirma-
tion by a judge of the court who shall impose any  punishment  for  such
violation  as  provided  by law. A determination by a support magistrate
that a person is in willful violation  of  an  order  under  subdivision
three of section four hundred fifty-four of this article and that recom-
mends  commitment  shall  be  transmitted to the parties, accompanied by
findings of fact, but the determination shall have no force  and  effect
until confirmed by a judge of the court.
  (c)  The  support magistrate, in any proceeding in which issues speci-
fied in section four hundred fifty-five of this [act] ARTICLE, or issues
of custody, [visitation] PARENTING TIME, including [visitation]  PARENT-
ING  TIME  as a defense, orders of protection or exclusive possession of
the home are present or in which paternity is contested on  the  grounds
of equitable estoppel, shall make a temporary order of support and refer
the  proceeding to a judge. Upon determination of such issue by a judge,
the judge may make a final determination of the  issue  of  support,  or
immediately  refer  the  proceeding  to a support magistrate for further
proceedings regarding child support or other matters within the authori-
ty of the support magistrate.

S. 892--A                           9

  S 16. Subdivision (a) of section 439  of  the  family  court  act,  as
amended  by  section 2 of chapter 468 of the laws of 2012, is amended to
read as follows:
  (a) The chief administrator of the courts shall provide, in accordance
with  subdivision  (f)  of this section, for the appointment of a suffi-
cient number of  support  magistrates  to  hear  and  determine  support
proceedings.  Except  as hereinafter provided, support magistrates shall
be empowered to hear, determine and grant any relief within  the  powers
of  the  court  in  any  proceeding  under  this article, articles five,
five-A, and five-B and sections two hundred thirty-four and two  hundred
thirty-five  of this act, and objections raised pursuant to section five
thousand two hundred forty-one of the  civil  practice  law  and  rules.
Support  magistrates shall not be empowered to hear, determine and grant
any relief with respect to issues  specified  in  section  four  hundred
fifty-five  of  this  article,  issues  of contested paternity involving
claims of  equitable  estoppel,  custody,  [visitation]  PARENTING  TIME
including  [visitation]  PARENTING  TIME  as  a  defense,  and orders of
protection or exclusive possession of the home, which shall be  referred
to  a judge as provided in subdivision (b) or (c) of this section. Where
an order of filiation is issued by a judge in a paternity proceeding and
child support is in issue, the judge, or support magistrate upon  refer-
ral  from the judge, shall be authorized to immediately make a temporary
or final order of support, as applicable.  A  support  magistrate  shall
have  the  authority  to hear and decide motions and issue summonses and
subpoenas to produce persons pursuant to section one hundred fifty-three
of this act, hear and decide proceedings and issue any order  authorized
by subdivision (g) of section five thousand two hundred forty-one of the
civil  practice  law  and  rules,  issue  subpoenas to produce prisoners
pursuant to section two thousand three hundred two of the civil practice
law and rules and make  a  determination  that  any  person  before  the
support  magistrate  is in violation of an order of the court as author-
ized by section one hundred fifty-six of this act subject  to  confirma-
tion  by  a  judge of the court who shall impose any punishment for such
violation as provided by law. A determination by  a  support  magistrate
that  a  person  is  in  willful violation of an order under subdivision
three of section four hundred fifty-four of this article and that recom-
mends commitment shall be transmitted to  the  parties,  accompanied  by
findings  of  fact, but the determination shall have no force and effect
until confirmed by a judge of the court.
  S 17. Subdivision (b) of section 446  of  the  family  court  act,  as
amended  by  chapter  526  of  the  laws  of 2013, is amended to read as
follows:
  (b) to permit a parent, or a person entitled to visitation OR  PARENT-
ING  TIME by a court order or a separation agreement, to [visit] BE WITH
the child at stated periods;
  S 18. Section 447 of the family court act, subdivision (a) as  amended
by chapter 85 of the laws of 1996, is amended to read as follows:
  S 447. Order of [visitation] PARENTING TIME.  (a) In the absence of an
order  of  custody  or  of  [visitation]  PARENTING  TIME entered by the
supreme court, the court may make an order of custody or of [visitation]
PARENTING TIME, in  accordance  with  subdivision  one  of  section  two
hundred  forty  of  the  domestic relations law, requiring one parent to
permit the other to [visit] BE WITH the children at stated periods with-
out an order of protection, even where the parents are divorced and  the
support order is for a child only.

S. 892--A                          10

  (b)  Any  order of the family court under this section shall terminate
when the supreme court makes an order  of  custody  or  of  [visitation]
PARENTING TIME concerning the children, unless the supreme court contin-
ues the order of the family court.
  S  19.  Subdivision  (a)  of  section  456 of the family court act, as
amended by chapter 809 of the laws  of  1963,  is  amended  to  read  as
follows:
  (a) No person may be placed on probation under this article unless the
court makes an order to that effect, either at the time of the making of
an  order  of  support  or under section four hundred fifty-four OF THIS
PART. The period of probation may  continue  so  long  as  an  order  of
support,  order  of  protection  or order of [visitation] PARENTING TIME
applies to such person.
  S 20. Subdivisions (a) and (b) of section 467 of the family court act,
as amended by chapter 40 of the laws of 1981, are  amended  to  read  as
follows:
  (a)  In  an  action  for divorce, separation or annulment, the supreme
court may refer to the family court the determination of applications to
fix temporary or  permanent  custody  or  [visitation]  PARENTING  TIME,
applications  to enforce judgments and orders of custody or [visitation]
PARENTING TIME, and applications  to  modify  judgments  and  orders  of
custody  which  modification  may  be granted only upon a showing to the
family court that there has been a subsequent  change  of  circumstances
and that modification is required.
  (b) In the event no such referral has been made and unless the supreme
court provides in the order or judgment awarding custody or [visitation]
PARENTING  TIME  in an action for divorce, separation or annulment, that
it may be enforced or modified only in the  supreme  court,  the  family
court may: (i) determine an application to enforce the order or judgment
awarding  custody  or  [visitation] PARENTING TIME, or (ii) determine an
application to modify the order or judgment awarding custody or [visita-
tion] PARENTING TIME upon a showing that there  has  been  a  subsequent
change of circumstances and modification is required.
  S  21.  Section 511 of the family court act, as amended by chapter 533
of the laws of 1999, is amended to read as follows:
  S 511. Jurisdiction. Except as otherwise provided,  the  family  court
has exclusive original jurisdiction in proceedings to establish paterni-
ty  and, in any such proceedings in which it makes a finding of paterni-
ty, to order support and to make orders of custody  or  of  [visitation]
PARENTING  TIME,  as  set  forth in this article. On its own motion, the
court may at any time in the proceedings also direct  the  filing  of  a
neglect  petition  in  accord with the provisions of article ten of this
act. In accordance with the provisions of section one  hundred  eleven-b
of the domestic relations law, the surrogate's court has original juris-
diction  concurrent with the family court to determine the issues relat-
ing to the establishment of paternity.
  S 22. Section 549 of the family court act, as added by chapter 952  of
the  laws  of 1971, subdivision (a) as amended by chapter 85 of the laws
of 1996, is amended to read as follows:
  S 549. Order of [visitation] PARENTING TIME.  (a) If an order of fili-
ation is made or if a paternity agreement or compromise is  approved  by
the  court,  in  the  absence  of an order of custody or of [visitation]
PARENTING TIME entered by the supreme court the family court may make an
order of custody or of [visitation] PARENTING TIME, in  accordance  with
subdivision  one  of section two hundred forty of the domestic relations

S. 892--A                          11

law, requiring one parent to permit the other to  [visit]  BE  WITH  the
child or children at stated periods.
  (b)  Any  order of the family court under this section shall terminate
when the supreme court makes an order  of  custody  or  of  [visitation]
PARENTING  TIME  concerning  the  child  or children, unless the supreme
court continues the order of the family court.
  S 23. Subdivision (b) of section 551  of  the  family  court  act,  as
amended  by  chapter  526  of  the  laws  of 2013, is amended to read as
follows:
  (b) to permit a parent PARENTING TIME, or a person entitled to visita-
tion by a court order or a separation agreement to [visit] BE  WITH  the
child at stated periods;
  S 24. Section 651 of the family court act, as amended by chapter 85 of
the  laws of 1996, subdivision (b) as amended by chapter 657 of the laws
of 2003, subdivision (d) as amended by chapter 41 of the laws  of  2010,
subdivision (e) as amended by chapter 295 of the laws of 2009 and subdi-
vision  (f)  as  added by chapter 473 of the laws of 2009, is amended to
read as follows:
  S 651. Jurisdiction over habeas corpus proceedings and  petitions  for
custody  [and],  visitation  AND  PARENTING  TIME  of  minors.  (a) When
referred from the supreme court or county court to the family court, the
family court has jurisdiction to determine, in accordance with  subdivi-
sion  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 peti-
tion and order to show cause, for the determination of the custody [or],
visitation AND PARENTING TIME of minors.
  (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 AND PARENT-
ING TIME of minors, including applications by a grandparent or grandpar-
ents for visitation or custody rights pursuant to section seventy-two or
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] PARENTING TIME of minors in foster care,  notwithstand-
ing  any limitation contained in subdivision (b) of section four hundred
sixty-seven of this act.
  (d) With respect to applications by a grandparent or grandparents  for
visitation  or  custody  rights, made pursuant to section seventy-two or
two hundred forty of the domestic relations law, with a  child  remanded
or  placed  in  the  care  of  a person, official, agency or institution
pursuant to the provisions of article ten of this act, the applicant, in
such manner as the court shall prescribe, shall  serve  a  copy  of  the
application upon the social services official having care and custody of
such  child, and the child's attorney, who shall be afforded an opportu-
nity to be heard thereon.
  (e) 1. Permanent and initial temporary orders of custody  or  [visita-
tion] PARENTING TIME.  Prior to the issuance of any permanent or initial
temporary  order  of  custody  or [visitation] PARENTING TIME, the court

S. 892--A                          12

shall conduct a review of the decisions and reports listed in  paragraph
three of this subdivision.
  2.  Successive  temporary  orders of custody or [visitation] PARENTING
TIME.  Prior to the issuance of any successive temporary order of custo-
dy or [visitation] PARENTING TIME, the court shall conduct a  review  of
the decisions and reports listed in paragraph three of this subdivision,
unless  such a review has been conducted within ninety days prior to the
issuance of such order.
  3. Decisions and reports for review. The court shall conduct a  review
of the following:
  (i) related decisions in court proceedings initiated pursuant to arti-
cle ten of this act, and all warrants issued under this act; and
  (ii)  reports  of  the  statewide  computerized  registry of orders of
protection established and maintained pursuant to  section  two  hundred
twenty-one-a  of  the  executive  law,  and  reports of the sex offender
registry established and maintained  pursuant  to  section  one  hundred
sixty-eight-b of the correction law.
  4.  Notifying  counsel and issuing orders. Upon consideration of deci-
sions pursuant to article ten of this  act,  and  registry  reports  and
notifying counsel involved in the proceeding, or in the event of a self-
represented  party, notifying such party of the results thereof, includ-
ing any court appointed attorney for children, the  court  may  issue  a
temporary,  successive  temporary  or final order of custody or [visita-
tion] PARENTING TIME.
  5. Temporary emergency order. Notwithstanding any other  provision  of
the  law, upon emergency situations, including computer malfunctions, to
serve the best interest of the child, the court may  issue  a  temporary
emergency  order for custody or [visitation] PARENTING TIME in the event
that it is not possible to timely review decisions and reports on regis-
tries as required pursuant to paragraph three of this subdivision.
  6. After issuing a temporary emergency order. After issuing  a  tempo-
rary  emergency  order  of  custody  or [visitation] PARENTING TIME, the
court shall conduct reviews of the decisions and reports  on  registries
as required pursuant to paragraph three of this subdivision within twen-
ty-four  hours of the issuance of such temporary emergency order. Should
such twenty-four hour period fall on a day when court is not in session,
then the required reviews shall take place the next day the court is  in
session.  Upon  reviewing  decisions  and reports the court shall notify
associated counsel, self-represented parties and attorneys for  children
pursuant  to  paragraph four of this subdivision and may issue temporary
or permanent custody or [visitation] PARENTING TIME orders.
  7. Feasibility study. The commissioner of the office of  children  and
family services, in conjunction with the office of court administration,
is  hereby  authorized and directed to examine, study, evaluate and make
recommendations concerning the feasibility of the utilization of comput-
ers in family courts which are connected to the statewide central regis-
ter of child abuse and maltreatment established and maintained  pursuant
to  section  four  hundred  twenty-two  of the social services law, as a
means of providing family  courts  with  information  regarding  parties
requesting  orders  of  custody  or  [visitation]  PARENTING  TIME. Such
commissioner shall make a preliminary report to  the  governor  and  the
legislature  of findings, conclusions and recommendations not later than
January thirty-first, two thousand nine, and a final report of findings,
conclusions and recommendations not later than June first, two  thousand
nine,  and  shall  submit with the reports such legislative proposals as
are deemed necessary to implement the commissioner's recommendations.

S. 892--A                          13

  (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 25. Section 651-a of the family court act, as amended by chapter  12
of the laws of 1996, is amended to read as follows:
  S  651-a.  Reports  of child abuse and maltreatment; admissibility. In
any proceeding brought pursuant to this section to determine the custody
[or], visitation OR PARENTING TIME of  minors,  a  report  made  to  the
statewide  central register of child abuse and maltreatment, pursuant to
title six of article six of the social services law, or a portion there-
of, which is otherwise admissible as a business record pursuant to  rule
forty-five  hundred  eighteen  of the civil practice law and rules shall
not be admissible in evidence,  notwithstanding  such  rule,  unless  an
investigation  of such report conducted pursuant to title six of article
six of the social services law has determined that there is some  credi-
ble  evidence  of the alleged abuse or maltreatment, that the subject of
the report has been notified that the report is indicated.  In addition,
if such report has been reviewed by the state commissioner  of  [social]
THE  OFFICE OF CHILDREN AND FAMILY services or his designee and has been
determined to be unfounded, it shall not be admissible in  evidence.  If
such  report  has  been  so  reviewed and has been amended to delete any

S. 892--A                          14

finding, each such deleted finding shall not be admissible. If the state
commissioner of [social] THE OFFICE OF CHILDREN AND FAMILY  services  or
his  designee  has  amended the report to add any new finding, each such
new  finding,  together  with  any  portion  of  the original report not
deleted by [the] SUCH commissioner or his designee, shall be  admissible
if  it  meets  the  other  requirements of this section and is otherwise
admissible as a business record. If such a report, or  portion  thereof,
is  admissible in evidence but is uncorroborated, it shall not be suffi-
cient to make a fact finding of abuse or maltreatment in  such  proceed-
ing.  Any  other  evidence  tending  to  support the reliability of such
report shall be sufficient corroboration.
  S 26. Subdivisions (a) and (b) of section 652 of the family court act,
as amended by chapter 40 of the laws of 1981, are  amended  to  read  as
follows:
  (a)  When  referred  from  the  supreme court to the family court, the
family court  has  jurisdiction  to  determine,  with  the  same  powers
possessed  by the supreme court, applications to fix temporary or perma-
nent custody and applications to modify judgments and orders of  custody
or  [visitation]  PARENTING  TIME in actions and proceedings for marital
separation, divorce, annulment of marriage and dissolution of  marriage.
Applications to modify judgments and orders of custody may be granted by
the  family court under this section only upon the showing to the family
court that there has been a subsequent change of circumstances and  that
modification is required.
  (b) In the event no such referral has been made and unless the supreme
court provides in the order or judgment awarding custody or [visitation]
PARENTING  TIME  in an action for divorce, separation or annulment, that
it may be enforced or modified only in the  supreme  court,  the  family
court may: (i) determine an application to enforce the order or judgment
awarding  custody  or  [visitation] PARENTING TIME, or (ii) determine an
application to modify the order or judgment awarding custody or [visita-
tion] PARENTING TIME upon a showing that there  has  been  a  subsequent
change of circumstances and modification is required.
  S  27.  Subdivision  (b)  of  section  656 of the family court act, as
amended by chapter 526 of the laws  of  2013,  is  amended  to  read  as
follows:
  (b) to permit a parent PARENTING TIME, or a person entitled to visita-
tion  by a court order or a separation agreement, to [visit] BE WITH the
child at stated periods;
  S 28. Subdivision (b) of section 759  of  the  family  court  act,  as
amended  by  chapter  483  of  the  laws  of 1995, is amended to read as
follows:
  (b) to permit a parent PARENTING TIME, or a person entitled to visita-
tion by a court order or a separation agreement, to [visit] BE WITH  the
child at stated periods;
  S  29.  Subdivision  (b)  of  section  842 of the family court act, as
amended by chapter 483 of the laws  of  1995,  is  amended  to  read  as
follows:
  (b) to permit a parent PARENTING TIME, or a person entitled to visita-
tion  by a court order or a separation agreement, to [visit] BE WITH the
child at stated periods;
  S 30. Section 119 of the family court act is amended by adding two new
subdivisions (d) and (e) to read as follows:
  (D) "VISITATION" REFERS TO TIME PERMITTED TO BE  SPENT  WITH  A  CHILD
PURSUANT TO A COURT ORDER UNDER THIS CHAPTER, THE FAMILY COURT ACT OR AN
ORDER  ENFORCED UNDER ARTICLE FIVE-A OF THIS CHAPTER, BY A PERSON WHO IS

S. 892--A                          15

NOT A PARENT OF THE CHILD. THIS SHALL INCLUDE GRANDPARENTS, SIBLINGS AND
STEP-PARENTS.
  (E)  "PARENTING  TIME"  REFERS TO THE PERIOD OF TIME THAT A PARENT MAY
SPEND WITH HIS OR HER CHILD PURSUANT TO A COURT ORDER UNDER  THIS  CHAP-
TER,  THE  FAMILY COURT ACT OR AN ORDER ENFORCED UNDER ARTICLE FIVE-A OF
THIS CHAPTER.
  S 31. This act shall take effect immediately, provided that the amend-
ments to subdivision (a) of section 439 of the family court act made  by
section  fifteen  of  this  act  shall  be subject to the expiration and
reversion of such subdivision pursuant to section 246 of chapter  81  of
the  laws  of  1995,  as  amended, when upon such date the provisions of
section sixteen of this act shall take effect.

Comments

Open Legislation comments facilitate discussion of New York State legislation. All comments are subject to moderation. Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity or hate speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Comment moderation is generally performed Monday through Friday.

By contributing or voting you agree to the Terms of Participation and verify you are over 13.