S T A T E O F N E W Y O R K
________________________________________________________________________
4967--A
2015-2016 Regular Sessions
I N S E N A T E
April 27, 2015
___________
Introduced by Sen. CROCI -- read twice and ordered printed, and when
printed to be committed to the Committee on Children and Families --
recommitted to the Committee on Children and Families 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, in relation to child custody
when a parent is deployed on military active duty
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 70 of the domestic relations law is amended by
adding a new subdivision (c) to read as follows:
(C) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, THE
COURT SHALL NOT CONSIDER THE PAST OR CURRENT DEPLOYMENT, OR POSSIBLE
FUTURE DEPLOYMENT OF A PARENT IN ACTIVE SERVICE OF THE ARMED FORCES OF
THE UNITED STATES OR OF THE ORGANIZED MILITIA OF THE STATE AS A DETRI-
MENTAL FACTOR TO THE AWARDING OF CUSTODY OF A CHILD WHERE A SUITABLE
CHILD CARE PLAN HAS BEEN PRESENTED TO THE COURT BY THE PETITIONING
PARENT.
S 2. Subdivision 3 of section 75-l of the domestic relations law, as
amended by chapter 473 of the laws of 2009, is amended to read as
follows:
3. Unless the parties have otherwise stipulated or agreed, if an order
is issued under this section, the return of the parent from active mili-
tary service, deployment or temporary assignment shall be considered a
substantial change in circumstances, AND WITHIN THIRTY DAYS OF SUCH
RETURN THE CHILD CUSTODY ORDER IN EFFECT IMMEDIATELY PRIOR TO ANY
MODIFICATIONS THEREOF PURSUANT TO SUBDIVISIONS ONE AND TWO OF THIS
SECTION SHALL BE REINSTATED AND BE IN FULL FORCE AND EFFECT. [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.]
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03495-02-6
S. 4967--A 2
S 3. Paragraph (a) of subdivision 1 of section 240 of the domestic
relations law, as amended by chapter 476 of the laws of 2009, is amended
and a new subdivision 1-d is added 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 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] SUBDIVISIONS one-c AND ONE-D of this
section. Where either party to an action concerning custody of or a
right to visitation 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 or contact with
the child, or restricted in custody, visitation 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 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 determi-
nation. 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 direc-
tion 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 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 applicable provisions of law
against any person having care and custody, or temporary care and custo-
S. 4967--A 3
dy, of the child. Notwithstanding any other provision of law, any writ-
ten application or motion to the court for the establishment, modifica-
tion 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 statement that the applicant
knows of the availability of such services, has declined them at this
time and where support enforcement services pursuant 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 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.
1-D. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, THE
COURT SHALL NOT CONSIDER THE PAST OR CURRENT DEPLOYMENT, OR POSSIBLE
FUTURE DEPLOYMENT OF A PARENT IN ACTIVE SERVICE OF THE ARMED FORCES OF
THE UNITED STATES OR OF THE ORGANIZED MILITIA OF THE STATE AS A DETRI-
MENTAL FACTOR TO THE AWARDING OF CUSTODY OF A CHILD TO A PETITIONING
PARENT WHERE A SUITABLE CHILD CARE PLAN HAS BEEN PRESENTED TO THE COURT
BY SUCH PARENT.
S 3-a. Paragraph (a) of subdivision 1 of section 240 of the domestic
relations law, as amended by chapter 567 of the laws of 2015, is 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 with
any child of a marriage, the court shall require verification of the
S. 4967--A 4
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] SUBDIVISIONS one-c AND ONE-D of this
section. Where either party to an action concerning custody of or a
right to visitation 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 or contact with
the child, or restricted in custody, visitation 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 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 determi-
nation. Where a proceeding filed pursuant to article ten or ten-A of the
family court act is pending at the same time as a proceeding brought in
the supreme court involving the custody of, or right to visitation with,
any child of a marriage, the court presiding over the proceeding under
article ten or ten-A of the family court act may jointly hear the dispo-
sitional hearing on the petition under article ten or the permanency
hearing under article ten-A of the family court act and, upon referral
from the supreme court, the hearing to resolve the matter of custody or
visitation in the proceeding pending in the supreme court; provided
however, the court must determine custody or visitation in accordance
with the terms of this section.
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 proper-
ty 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 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
S. 4967--A 5
act and sections three hundred fifty-eight-a and three hundred eighty-
four-a of the social services law and other applicable provisions of law
against any person having care and custody, or temporary care and custo-
dy, of the child. Notwithstanding any other provision of law, any writ-
ten application or motion to the court for the establishment, modifica-
tion 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 statement that the applicant
knows of the availability of such services, has declined them at this
time and where support enforcement services pursuant 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 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.
S 4. This act shall take effect immediately; provided, however, that
section three-a of this act shall take effect on the same date as
section 12 of chapter 567 of the laws of 2015, takes effect.
