| Assembly Actions - Lowercase Senate Actions - UPPERCASE |
|
|---|---|
| May 18, 2022 | print number 5398a |
| May 18, 2022 | amend (t) and recommit to judiciary |
| Jan 05, 2022 | referred to judiciary |
| Feb 16, 2021 | referred to judiciary |
Archive: Last Bill Status - In Assembly Committee
- Introduced
- In Committee
- On Floor Calendar
- Passed Senate
- Passed Assembly
- Delivered to Governor
- Signed/Vetoed by Governor
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view actions (4)
Co-Sponsors
Gina Sillitti
Charles Barron
Brian Barnwell
Inez E. Dickens
- view additional co-sponsors
Patricia Fahy
Sarah Clark
Pamela J. Hunter
Sandy Galef
Charles Lavine
Rebecca Seawright
Jo Anne Simon
Chantel Jackson
Jose Rivera
David McDonough
Angelo J. Morinello
Fred Thiele
Chris Burdick
Keith Brown
Albert A. Stirpe
Dan Quart
Jessica Gonzalez-Rojas
Michael Durso
Steven Otis
Michael Lawler
Karl Brabenec
Brian Manktelow
Joe Angelino
Vivian Cook
Judy Griffin
Aileen Gunther
Steve Stern
Mathylde Frontus
John T. McDonald III
Kimberly Jean-Pierre
Joe DeStefano
Kenneth Blankenbush
Nathalia Fernandez
Edward Ra
Michael J. Fitzpatrick
Stacey Pheffer Amato
Khaleel Anderson
John K. Mikulin
Linda Rosenthal
Kieran Michael Lalor
Donna Lupardo
Matthew Simpson
Harvey Epstein
Anna Kelles
Doug Smith
Josh Jensen
Kenny Burgos
Billy Jones
Phil Steck
Stefani Zinerman
Catalina Cruz
Jeffrion Aubry
Richard Gottfried
A5398 - Details
A5398 - Summary
Requires the court to consider a child's health and safety when making a decision regarding child custody and visitation; directs presumptions that may be made by the court and admissibility of certain evidence in such cases; requires court officials to take part in training to handle such cases regarding domestic violence and child abuse.
A5398 - Bill Text download pdf
S T A T E O F N E W Y O R K
________________________________________________________________________
5398
2021-2022 Regular Sessions
I N A S S E M B L Y
February 16, 2021
___________
Introduced by M. of A. HEVESI -- read once and referred to the Committee
on Judiciary
AN ACT to amend the domestic relations law, in relation to establishing
"Kyra's Law"
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Short title. This act shall be known as and may be cited as
"Kyra's Law".
§ 2. 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
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 visitation with a child
alleges in a sworn petition or complaint or sworn answer, cross-peti-
tion, counterclaim or other sworn responsive pleading that the other
party has committed an act of CHILD ABUSE AGAINST SUCH CHILD, OR COMMIT-
TED AN ACT OF domestic 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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09163-01-1 A. 5398 2 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 circum- stances factored into the direction] THE COURT MUST FIRST, BEFORE CONSIDERING ANY OTHER BEST INTEREST FACTORS, HEAR AND DETERMINE UPON COMPETENT ADMISSIBLE EVIDENCE SUCH ALLEGATIONS SET FORTH, AND ENTER ANY FINDINGS REGARDING ANY CHILD ABUSE OR DOMESTIC ABUSE. THE EVIDENTIARY HEARING FOR SUCH DETERMINATION SHALL BE HELD WITHIN SIXTY DAYS OF THE FILING OF A VERIFIED PLEADING. THE COURT SHALL NOT BE PRECLUDED FROM ISSUING ANY NECESSARY EMERGENCY ORDERS TO PROTECT THE CHILD. ALL COSTS, INCLUDING ATTORNEY AND EXPERT FEES INCURRED BY THE NON-OFFENDING PARENT AND THE CHILD, TO PREPARE FOR AND PARTICIPATE IN SUCH EVIDENTIARY HEAR- ING, SHALL BE PAID BY THE PARENT WHO IS FOUND TO HAVE COMMITTED CHILD ABUSE OR DOMESTIC VIOLENCE, UNLESS THE OFFENDING PARENT HAS INSUFFICIENT MEANS TO FUND SUCH ACTIVITIES. If a parent makes a good faith allega- tion 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 reasonable 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 determination. 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 disposition's 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] THE COURT FINDS A PATTERN OF DOMESTIC VIOLENCE OR CHILD ABUSE BY A PARENT, THE COURT SHALL AWARD SOLE CUSTODY OF THE CHILD TO THE NON-OFFENDING PARENT OR PARTY AND SHALL SUSPEND VISITATION OR ONLY AWARD PROFESSIONALLY SUPER- VISED VISITATION TO THE PARENT ENGAGED IN A PATTERN OF VIOLENCE OR ABUSIVE BEHAVIOR. IF THE COURT DOES NOT MAKE A FINDING THAT A PARTY HAS ENGAGED IN A PATTERN OF DOMESTIC VIOLENCE OR CHILD ABUSE, THE COURT MAY NOT REFUSE TO CONSIDER ADDITIONAL EVIDENCE OF DOMESTIC VIOLENCE OR CHILD ABUSE PRESENTED LATER IN THE CASE. 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 A. 5398 3 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- 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. § 3. The domestic relations law is amended by adding a new section 240-d to read as follows: § 240-D. CUSTODY AND VISITATION; HEALTH AND SAFETY OF THE CHILD. 1. FOR THE PURPOSES OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS: (A) "ADVERSE CHILDHOOD EXPERIENCES" MEANS ANY STRESSFUL OR TRAUMATIC EXPERIENCE OF A CHILD DURING SUCH CHILD'S CHILDHOOD WHICH ARE STRONGLY RELATED TO THE DEVELOPMENT AND PREVALENCE OF A WIDE RANGE OF HEALTH A. 5398 4 PROBLEMS THROUGHOUT SUCH CHILD'S LIFETIME, INCLUDING, BUT NOT LIMITED TO, PHYSICAL OR SEXUAL ABUSE, DOMESTIC VIOLENCE, PARENTAL MENTAL ILLNESS, SUBSTANCE ABUSE, AND INCARCERATION. (B) "PARENTAL ALIENATION" MEANS CLAIMS THAT A CHILD HAS BECOME ESTRANGED FROM A PARENT OR LEGAL GUARDIAN AS THE RESULT OF PSYCHOLOGICAL MANIPULATION BY THE OTHER PARENT OR LEGAL GUARDIAN. (C) "VICTIM OF DOMESTIC VIOLENCE" SHALL HAVE THE SAME MEANING AS DEFINED IN SECTION FOUR HUNDRED FIFTY-NINE-A OF THE SOCIAL SERVICES LAW. (D) "FRIENDLY PARENT" MEANS THE PROPENSITY OF A PARENT TO ACTIVELY SUPPORT A CHILD'S CONTACT AND RELATIONSHIP WITH THE OTHER PARENT, OR THE ABILITY OF SUCH PARENT TO COOPERATE IN, AND RESOLVE DISPUTES, REGARDING MATTERS AFFECTING SUCH CHILD. (E) "PRIMARY ATTACHMENT FIGURE" MEANS THE PARENT WHO BEST PROVIDES EMOTIONAL SECURITY AND COMFORT TO THE CHILD AND TAKES INTO CONSIDERATION WHICH PARENT PROVIDED MOST OF THE CHILD CARE DURING THE FIRST TWO YEARS OF THE CHILD'S LIFE. 2. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, A COURT MAKING A DETERMINATION BASED ON THE BEST INTERESTS OF A CHILD PURSUANT TO THE PROVISIONS OF THIS CHAPTER SHALL PRIORITIZE AND PROMOTE THE HEALTH AND SAFETY OF SUCH CHILD WHEN MAKING SUCH DETERMINATIONS. PROMOT- ING THE SAFETY OF A CHILD SHALL INCLUDE PREVENTING DIRECT PHYSICAL AND/OR EMOTIONAL HARM TO SUCH CHILD AND CREATING SITUATIONS THAT MAY DECREASE THE LIKELIHOOD SUCH CHILD WILL ENGAGE IN HARMFUL BEHAVIORS. 3. PRIOR TO THE ISSUANCE OF ANY FORM OF AN ORDER OF CUSTODY OR VISITA- TION, THE COURT SHALL DETERMINE THE SAFETY OF THE CHILD WHO IS THE SUBJECT OF SUCH ORDER BY CONSIDERING ALL RELEVANT FACTORS AND BY GIVING WEIGHTED CONSIDERATION TO THOSE FACTORS WHICH AFFECT THE HEALTH AND SAFETY OF SUCH CHILD, WHICH SHALL INCLUDE, BUT NOT BE LIMITED TO: (A) WHETHER EITHER PARENT IS MORE LIKELY TO ENSURE THE HEALTH AND SAFETY OF THE CHILD. THERE SHALL BE A REBUTTABLE PRESUMPTION THAT CUSTO- DY OR VISITATION SHALL NOT BE AWARDED TO A PARENT OR PARTY WHO JEOPARD- IZES THE HEALTH AND SAFETY OF THE CHILD; (B) THE NEGATIVE CONSEQUENCES ASSOCIATED WITH SEPARATING THE CHILD FROM ITS PRIMARY ATTACHMENT FIGURE; (C) WHETHER EITHER PARENT JEOPARDIZES THE HEALTH AND SAFETY OF THE CHILD BY UNREASONABLY PLACING THE CHILD AT SUBSTANTIAL RISK OF SEVERE EMOTIONAL DISTRESS OR BODILY INJURY; (D) ANY PRESENT OR PAST ABUSE COMMITTED BY A PARENT, OR A MEMBER OF A PARENT'S HOUSEHOLD AGAINST THE CHILD, REGARDLESS OF WHETHER THERE IS CONTINUED RISK OF HARM TO THE CHILD; (E) WHETHER EITHER PARENT HAS COMMITTED AN ACT OF CHILD ABUSE AGAINST THE CHILD, OR COMMITTED AN ACT OF DOMESTIC VIOLENCE AGAINST THE PARTY MAKING THE ALLEGATION, A FAMILY MEMBER, OR A HOUSEHOLD MEMBER OF EITHER PARTY; (F) WHETHER EITHER PARENT IS BETTER ABLE AND MORE LIKELY TO ATTEND TO THE DAILY PHYSICAL, EMOTIONAL, DEVELOPMENTAL, EDUCATIONAL AND SPECIAL NEEDS OF THE CHILD; (G) ANY HISTORY OF VIOLENCE OR ABUSE COMMITTED BY A PARENT OR A MEMBER OF A PARENT'S HOUSEHOLD AGAINST: (1) ANY OTHER PARTY; (2) ANOTHER CHILD IN THE PARENT'S HOUSEHOLD; OR (3) THE CHILD'S OTHER PARENT OR ANY OTHER INDIVIDUAL WHO CURRENTLY RESIDES, OR FORMERLY RESIDED, IN THE OTHER PARENT'S HOUSEHOLD; (H) ANY FEAR HELD BY THE CHILD OF A PARENT BASED ON SUCH PARENT'S SPECIFIC CONDUCT THAT IS CONTRARY TO THE CHILD'S BEST INTEREST, AND SPECIFICALLY TO THE CHILD'S HEALTH AND SAFETY; AND A. 5398 5 (I) THE PRESENCE OF ADVERSE CHILDHOOD EXPERIENCES, AND WHETHER EITHER PARENT'S BEHAVIORS HAVE CONTRIBUTED TO THE PRESENCE OF ADVERSE CHILDHOOD EXPERIENCES FOR SUCH CHILD. 4. (A) THE COURT SHALL NOT PRESUME THAT A CHILD'S DEFICIENT OR NEGA- TIVE RELATIONSHIP WITH A PARENT WAS CAUSED BY THE OTHER PARENT, NOR SHALL A CHILD BE SEPARATED FROM A PARENT FOUND TO BE THE PRIMARY ATTACH- MENT FIGURE FOR THE PURPOSE OF IMPROVING A DEFICIENT RELATIONSHIP WITH THE OTHER PARENT. (B) CONCERNS REGARDING UNCONSCIOUS OR SUBLIMINAL PARENTAL ALIENATION SHALL NOT BE ADMISSIBLE IN ANY PROCEEDING FOR CUSTODY OR VISITATION AND SHALL NOT BE CONSIDERED IN ASSESSING A CHILD'S BEST INTERESTS. (C) NO PSYCHOLOGICAL OR MEDICAL THEORIES OR LABELS RELATED TO A CHILD'S RESISTANCE TO CONTACT WITH ONE PARENT SHALL BE ADMITTED INTO EVIDENCE UNLESS THEY ARE BASED ON EMPIRICAL PROOF OF SCIENTIFIC RELI- ABILITY AND VALIDITY AND GENERALLY ACCEPTED BY THE SCIENTIFIC AND PROFESSIONAL COMMUNITY. (D) NO REUNIFICATION TREATMENT OR ANY SIMILAR PROGRAM SHALL BE ORDERED BY THE COURT WITHOUT SCIENTIFICALLY VALID AND GENERALLY ACCEPTED PROOF OF THE EFFECTIVENESS AND THERAPEUTIC VALUE OF SUCH TREATMENT OR PROGRAM; NOR SHALL A TREATMENT OR PROGRAM BE ORDERED WHICH IS PREDICATED ON SEPA- RATING A CHILD FROM THE CHILD'S PRIMARY ATTACHMENT FIGURE. (E) ANY ORDER ATTEMPTING TO REMEDIATE A CHILD'S RESISTANCE TO CONTACT OR VISITATION WITH A PARENT SHALL ADDRESS ANY PARENTAL BEHAVIORS OR CONTRIBUTIONS THE COURT DETERMINES TO BE THE CAUSE OF, EITHER WHOLLY OR IN PART, SUCH RESISTANCE. (F) IN CASES WHERE THE COURT HAS FOUND A PARENT TO BE A VICTIM OF DOMESTIC VIOLENCE AND/OR WHERE CHILD ABUSE HAS OCCURRED OR IS OCCURRING, A COURT SHALL NOT CONSIDER WHETHER EITHER PARENT IS A FRIENDLY PARENT. 5. IN CASES WHERE THE COURT HAS FOUND A PARENT TO BE A VICTIM OF DOMESTIC VIOLENCE AND/OR WHERE CHILD ABUSE HAS OCCURRED OR IS OCCURRING: (A) THE COURT SHALL NOT BASE DECISIONS ON A LEGAL PRESUMPTION OF SHARED PARENTING; AND (B) ALL COSTS, INCLUDING ATTORNEY AND EXPERT FEES, INCURRED BY THE NON-OFFENDING PARENT AND THE CHILD, SHALL BE PAID BY THE PARENT WHO IS FOUND TO HAVE COMMITTED CHILD ABUSE OR DOMESTIC VIOLENCE, UNLESS THE OFFENDING PARENT HAS INSUFFICIENT MEANS TO PAY SUCH COSTS. 6. (A) BEFORE JUDGES AND OTHER COURT PROFESSIONALS HANDLE CHILD CUSTO- DY PROCEEDINGS IN WHICH ONE OR MORE PARTIES HAVE ALLEGED DOMESTIC VIOLENCE OR CHILD ABUSE, THEY SHALL COMPLETE AT LEAST TWENTY HOURS OF INITIAL TRAINING FOR THE HANDLING OF SUCH CASES. THE OFFICE OF CHILDREN AND FAMILY SERVICES SHALL, WITHIN AMOUNTS APPROPRIATED FOR SUCH PURPOSE, CONTRACT EXCLUSIVELY WITH A NONPROFIT ENTITY DESIGNATED BY THE FEDERAL DEPARTMENT OF HEALTH AND HUMAN SERVICES TO COORDINATE STATEWIDE IMPROVE- MENTS WITHIN LOCAL COMMUNITIES, SOCIAL SERVICES SYSTEMS, AND PROGRAMMING REGARDING THE PREVENTION AND INTERVENTION OF DOMESTIC VIOLENCE IN THE STATE OF NEW YORK, AND OTHER NONPROFIT ENTITIES WITH WHOM IT SUBCON- TRACTS WITH EXPERTISE IN CHILD ABUSE AND ADVERSE CHILDHOOD EXPERIENCES TO DEVELOP SUCH TRAINING. SUCH ENTITY, OR ENTITIES IN PARTNERSHIP, SHALL BE RESPONSIBLE FOR PROVIDING SUCH TRAINING TO JUDGES AND OTHER COURT PROFESSIONALS HANDLING CHILD CUSTODY PROCEEDINGS AND FOR REVIEWING AND UPDATING TRAINING TOPICS AT LEAST ONCE EVERY TWO YEARS. SUCH TRAINING SHALL INCLUDE, BUT NOT BE LIMITED TO: (1) A REVIEW OF RELEVANT STATUTES AND CASE LAW PERTAINING TO DOMESTIC VIOLENCE AND CHILD ABUSE; (2) THE DYNAMICS AND EFFECTS OF DOMESTIC VIOLENCE AND CHILD ABUSE, INCLUDING BUT NOT LIMITED TO, EMOTIONAL, FINANCIAL, PHYSICAL, TECHNOLOG- A. 5398 6 ICAL AND SEXUAL ABUSE, AND AN UNDERSTANDING OF THE BARRIERS AND FEARS ASSOCIATED WITH REPORTING DOMESTIC VIOLENCE AND CHILD ABUSE AND WHY VICTIMS MAY NOT HAVE DOCUMENTED EVIDENCE OF ABUSE; (3) TACTICS COMMONLY USED BY ONE PARTY TO INDUCE FEAR IN ANOTHER PARTY OR CHILD, INCLUDING VERBAL, EMOTIONAL, PSYCHOLOGICAL, AND/OR ECONOMIC ABUSE, ISOLATING TACTICS AND EFFORTS TO BUILD TRUST AND AN EMOTIONAL CONNECTION WITH A CHILD TO SUPPORT FUTURE MANIPULATION, EXPLOITATION AND ABUSE, COERCIVE CONTROL, THREATS, CONTROLLING AND HARASSING BEHAVIORS, INCLUDING MONITORING OF A PARTNER'S LOCATION AND ACTIVITIES, LITIGATION ABUSE AND DEMANDS FOR CUSTODY OR JOINT CUSTODY IN ORDER TO PRESSURE THE PARTNER TO RETURN OR PUNISH THE PARTNER FOR LEAVING; (4) KNOWLEDGE OF TRAUMA, PARTICULARLY AS IT RELATES TO SEXUAL ABUSE AND THE RISKS POSED TO CHILDREN AND THE LONG-TERM DANGERS AND IMPACTS POSED BY THE PRESENCE OF ADVERSE CHILDHOOD EXPERIENCES; (5) THE INCREASED RISK OF ESCALATING VIOLENCE THAT OCCURS DURING CHILD CUSTODY PROCEEDINGS; (6) EDUCATION REGARDING THE HARM COURTS MAY CAUSE CHILDREN IN CHILD CUSTODY CASES WHERE DOMESTIC VIOLENCE OR CHILD ABUSE IS PRESENT BY RELY- ING ON NON-SCIENTIFIC THEORIES SUCH AS PARENTAL ALIENATION, PARENTAL ALIENATION SYNDROME, THE FRIENDLY PARENT CONCEPT, OR ANY OTHER THEORY OR LABEL THAT IS NOT SUPPORTED BY SCIENTIFIC RESEARCH AND NOT GENERALLY ACCEPTED BY THE SCIENTIFIC COMMUNITY; (7) THE INVESTIGATION PROCESS ONCE A LAW ENFORCEMENT AGENCY OR A LOCAL DEPARTMENT OF SOCIAL SERVICES HAS RECEIVED A REPORT OF SUSPECTED CHILD ABUSE, INCLUDING THE LIMITATIONS OF INVESTIGATING REPORTS OF SUSPECTED CHILD ABUSE; AND (8) APPROPRIATE EXPERIENCE AND QUALIFICATIONS OF CHILD CUSTODY EVALU- ATORS AND MENTAL HEALTH TREATMENT PROVIDERS. (B) ONCE INITIAL TRAINING REQUIREMENTS HAVE BEEN MET, JUDGES AND OTHER COURT PROFESSIONALS HANDLING CHILD CUSTODY PROCEEDINGS IN WHICH ONE OR MORE PARTIES HAVE ALLEGED DOMESTIC VIOLENCE OR CHILD SEXUAL ABUSE SHALL COMPLETE AT LEAST TEN HOURS OF TRAINING EVERY TWO YEARS IN ORDER TO REMAIN ELIGIBLE TO HANDLE SUCH PROCEEDINGS. § 4. Subdivision (a) of section 70 of the domestic relations law, as amended by chapter 457 of the laws of 1988, is amended to read as follows: (a) (I) Where a minor child is residing within this state, either parent may apply to the supreme court for a writ of habeas corpus to have such minor child brought before such court; and on the return ther- eof, the court, on due consideration, may award the natural guardian- ship, charge and custody of such child to either parent for such time, under such regulations and restrictions, and with such provisions and directions, as the case may require, and may at any time thereafter vacate or modify such order. In all cases there shall be no prima facie right to the custody of the child in either parent, but the court shall determine solely what is for the best interest of the child, and what will best promote its welfare and happiness, and make award accordingly. 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 CHILD ABUSE AGAINST SUCH CHILD, OR COMMITTED AN ACT OF DOMESTIC VIOLENCE AGAINST THE PARTY MAKING THE ALLEGATION OR FAMILY OR HOUSEHOLD MEMBER OF EITHER PARTY, AS SUCH FAMILY OR HOUSEHOLD IS DEFINED IN SECTION FOUR HUNDRED FIFTY-NINE-A OF THE SOCIAL SERVICES LAW, THE COURT MUST FIRST, BEFORE CONSIDERING ANY OTHER BEST INTEREST FACTORS, CONDUCT AN EVIDENTIARY A. 5398 7 HEARING AND ENTER FINDINGS REGARDING ANY CHILD ABUSE OR DOMESTIC ABUSE, AS DESCRIBED PURSUANT TO SECTION TWO HUNDRED FORTY-A OF THIS CHAPTER. (II) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, A COURT MAKING A DETERMINATION BASED ON THE BEST INTERESTS OF A CHILD PURSUANT TO THE PROVISIONS OF THIS CHAPTER SHALL PRIORITIZE AND PROMOTE THE HEALTH AND SAFETY OF SUCH CHILD WHEN MAKING SUCH DETERMINATIONS. PROMOTING THE SAFETY OF SUCH CHILD SHALL INCLUDE PREVENTING DIRECT PHYS- ICAL AND/OR EMOTIONAL HARM TO SUCH CHILD AND CREATING SITUATIONS THAT MAY DECREASE THE LIKELIHOOD SUCH CHILD WILL ENGAGE IN HARMFUL BEHAVIORS. (III) PRIOR TO THE ISSUANCE OF ANY FORM OF ANY ORDER OF CUSTODY OR VISITATION, THE COURT SHALL DETERMINE THE SAFETY OF THE CHILD WHO IS THE SUBJECT OF SUCH ORDER BY CONSIDERING THE FACTORS DESCRIBED IN SECTION TWO HUNDRED FORTY-D OF THIS CHAPTER AND BY GIVING WEIGHTED CONSIDERATION TO THOSE FACTORS WHICH AFFECT THE HEALTH AND SAFETY OF SUCH CHILD. (IV) IN MAKING A DECISION PURSUANT TO PARAGRAPH (I) OF THIS SUBDIVI- SION, THE COURT SHALL BE BOUND BY THE PRESUMPTIONS AND ADMISSIBILITY DESCRIBED PURSUANT TO SECTION TWO HUNDRED FORTY-D OF THIS CHAPTER. FURTHER, THE COURT SHALL NOT TAKE INTO CONSIDERATION WHETHER EITHER PARENT IS MARRIED, WAS FORMERLY MARRIED OR HAS EVER BEEN MARRIED TO THE OTHER PARENT OR ANYONE ELSE. (V) IN CASES WHERE THE COURT HAS FOUND A PARENT TO BE A VICTIM OF DOMESTIC VIOLENCE AND/OR WHERE CHILD ABUSE HAS OCCURRED OR IS OCCURRING, THE COURT SHALL NOT BASE DECISIONS ON A LEGAL PRESUMPTION OF SHARED PARENTING AND ALL COSTS, INCLUDING ATTORNEY AND EXPERT FEES, INCURRED BY THE NON-OFFENDING PARENT AND THE CHILD, SHALL BE PAID BY THE PARENT WHO IS FOUND TO HAVE COMMITTED CHILD ABUSE OR DOMESTIC VIOLENCE, UNLESS THE OFFENDING PARENT HAS INSUFFICIENT MEANS TO PAY SUCH COSTS. (VI) BEFORE JUDGES AND OTHER COURT PROFESSIONALS HANDLE CHILD CUSTODY PROCEEDINGS IN WHICH ONE OR MORE PARTIES HAVE ALLEGED DOMESTIC VIOLENCE OR CHILD ABUSE, THEY SHALL COMPLETE INITIAL TRAINING FOR THE HANDLING OF SUCH CASES AS DESCRIBED PURSUANT TO SECTION TWO HUNDRED FORTY-D OF THIS CHAPTER. ONCE INITIAL TRAINING REQUIREMENTS HAVE BEEN MET, JUDGES AND OTHER COURT PROFESSIONALS SHALL COMPLETE ADDITIONAL TRAINING EVERY TWO YEARS AS DESCRIBED PURSUANT TO SECTION TWO HUNDRED FORTY-D OF THIS CHAP- TER. § 5. This act shall take effect on the ninetieth day after it shall have become a law. Effective immediately, the addition, amendment and/or repeal of any rule or regulation necessary for the implementation of this act on its effective date are authorized to be made on or before such effective date.
Co-Sponsors
Gina Sillitti
Charles Barron
Brian Barnwell
Inez E. Dickens
- view additional co-sponsors
Patricia Fahy
Sarah Clark
Pamela J. Hunter
Sandy Galef
Charles Lavine
Rebecca Seawright
Jo Anne Simon
Chantel Jackson
Jose Rivera
David McDonough
Angelo J. Morinello
Fred Thiele
Chris Burdick
Keith Brown
Albert A. Stirpe
Dan Quart
Jessica Gonzalez-Rojas
Michael Durso
Steven Otis
Michael Lawler
Karl Brabenec
Brian Manktelow
Joe Angelino
Vivian Cook
Judy Griffin
Aileen Gunther
Steve Stern
Mathylde Frontus
John T. McDonald III
Kimberly Jean-Pierre
Joe DeStefano
Kenneth Blankenbush
Nathalia Fernandez
Edward Ra
Michael J. Fitzpatrick
Stacey Pheffer Amato
Khaleel Anderson
John K. Mikulin
Linda Rosenthal
Kieran Michael Lalor
Donna Lupardo
Matthew Simpson
Harvey Epstein
Anna Kelles
Doug Smith
Josh Jensen
Kenny Burgos
Billy Jones
Phil Steck
Stefani Zinerman
Catalina Cruz
Jeffrion Aubry
Richard Gottfried
Brian Cunningham
Thomas Abinanti
Stephen Hawley
Amy Paulin
Michael Cusick
Didi Barrett
Philip Ramos
Eddie Gibbs
Jonathan Jacobson
Jeffrey Dinowitz
Steven Englebright
Karines Reyes
William Conrad
Jodi Giglio
A5398A (ACTIVE) - Details
A5398A (ACTIVE) - Summary
Requires the court to consider a child's health and safety when making a decision regarding child custody and visitation; directs presumptions that may be made by the court and admissibility of certain evidence in such cases; requires court officials to take part in training to handle such cases regarding domestic violence and child abuse.
A5398A (ACTIVE) - Bill Text download pdf
S T A T E O F N E W Y O R K
________________________________________________________________________
5398--A
2021-2022 Regular Sessions
I N A S S E M B L Y
February 16, 2021
___________
Introduced by M. of A. HEVESI, SILLITTI, BARNWELL, DICKENS, FAHY, CLARK,
HUNTER, GALEF, LAVINE, SEAWRIGHT, SIMON, JACKSON, J. RIVERA, McDO-
NOUGH, MORINELLO, THIELE, BURDICK, K. BROWN, STIRPE, QUART, GONZALEZ-
ROJAS, DURSO, OTIS, LAWLER, BRABENEC, MANKTELOW, ANGELINO, COOK, GRIF-
FIN, GUNTHER, STERN, FRONTUS, McDONALD, JEAN-PIERRE, DeSTEFANO,
BLANKENBUSH, FERNANDEZ, RA, FITZPATRICK, PHEFFER AMATO, ANDERSON,
MIKULIN, L. ROSENTHAL, LALOR, LUPARDO, SIMPSON, EPSTEIN, KELLES,
SMITH, JENSEN, BURGOS, JONES, STECK, ZINERMAN, CRUZ, AUBRY, GOTTFRIED,
CUNNINGHAM, ABINANTI, HAWLEY -- read once and referred to the Commit-
tee on Judiciary -- recommitted to the Committee on Judiciary in
accordance with Assembly Rule 3, sec. 2 -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee
AN ACT to amend the domestic relations law and the family court act, in
relation to establishing "Kyra's Law"
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Short title. This act shall be known as and may be cited as
"Kyra's Law".
§ 2. Subparagraph 5 of paragraph (a-1) of subdivision 1 of section 240
of the domestic relations law, as amended by chapter 295 of the laws of
2009, is amended to read as follows:
(5) Temporary emergency order. (I) NOTWITHSTANDING ANY OTHER
PROVISION OF THE LAW, UPON THE APPLICATION OF A PARTY TO AN ACTION
CONCERNING CUSTODY OF OR A RIGHT TO VISITATION WITH A CHILD WHO ALLEGES
THAT THE OTHER PARTY TO THE PROCEEDING HAS COMMITTED, HAS THREATENED TO
COMMIT, OR IS LIKELY TO COMMIT AN ACT OF CHILD ABUSE AGAINST SUCH CHILD,
OR HAS COMMITTED, HAS THREATENED TO COMMIT, OR IS LIKELY TO COMMIT AN
ACT OF DOMESTIC 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, THE COURT
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09163-02-2
A. 5398--A 2 SHALL HOLD A HEARING TO DETERMINE WHETHER TEMPORARY LIMITATIONS OR CONDITIONS ON THE CUSTODY OR VISITATION RIGHTS OF THE PARTY WHO IS ALLEGED TO HAVE COMMITTED AN ACT OF CHILD ABUSE AGAINST THE CHILD, OR COMMITTED AN ACT OF DOMESTIC VIOLENCE AGAINST THE PARTY MAKING THE ALLE- GATION OR A FAMILY OR HOUSEHOLD MEMBER OF EITHER PARTY IS NECESSARY TO AVOID SIGNIFICANT RISK TO THE CHILD'S LIFE OR SAFETY. THE COURT SHALL CONDUCT AN ASSESSMENT OF THE BEST INTERESTS OF THE CHILD TO IDENTIFY SIGNIFICANT RISK TO THE CHILD'S LIFE AND SAFETY, USING A RISK ASSESSMENT TOOL DEVELOPED PURSUANT TO CLAUSE (II) OF THIS SUBPARAGRAPH TO EVALUATE FACTORS WHICH SHALL INCLUDE, BUT SHALL NOT BE LIMITED TO: (A) ALLEGATIONS OF DOMESTIC VIOLENCE, CHILD ABUSE, CHILD SEXUAL ABUSE OR INCIDENTS INVOLVING HARM, OR RISK OF HARM, TO A CHILD; (B) PRIOR POLICE REPORTS OR DOMESTIC VIOLENCE INCIDENT REPORTS DOCU- MENTING PRIOR INCIDENTS INVOLVING CHILD ABUSE OR DOMESTIC VIOLENCE, OR WHETHER EITHER PARTY HAS BEEN CHARGED WITH AN ACT WHICH WOULD CONSTITUTE DISORDERLY CONDUCT, UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE IMAGE, HARASSMENT IN THE FIRST DEGREE, HARASSMENT IN THE SECOND DEGREE, AGGRAVATED HARASSMENT IN THE SECOND DEGREE, SEXUAL MISCONDUCT, FORCIBLE TOUCHING, SEXUAL ABUSE IN THE THIRD DEGREE, SEXUAL ABUSE IN THE SECOND DEGREE AS SET FORTH IN SUBDIVISION ONE OF SECTION 130.60 OF THE PENAL LAW, STALKING IN THE FIRST DEGREE, STALKING IN THE SECOND DEGREE, STALK- ING IN THE THIRD DEGREE, STALKING IN THE FOURTH DEGREE, CRIMINAL MISCHIEF, MENACING IN THE SECOND DEGREE, MENACING IN THE THIRD DEGREE, RECKLESS ENDANGERMENT, CRIMINAL OBSTRUCTION OF BREATHING OR BLOOD CIRCU- LATION, STRANGULATION IN THE SECOND DEGREE, STRANGULATION IN THE FIRST DEGREE, ASSAULT IN THE SECOND DEGREE, ASSAULT IN THE THIRD DEGREE, AN ATTEMPTED ASSAULT, IDENTITY THEFT IN THE FIRST DEGREE, IDENTITY THEFT IN THE SECOND DEGREE, IDENTITY THEFT IN THE THIRD DEGREE, GRAND LARCENY IN THE FOURTH DEGREE, GRAND LARCENY IN THE THIRD DEGREE, COERCION IN THE SECOND DEGREE OR COERCION IN THE THIRD DEGREE AS SET FORTH IN SUBDIVI- SIONS ONE, TWO AND THREE OF SECTION 135.60 OF THE PENAL LAW BETWEEN SPOUSES OR FORMER SPOUSES, OR BETWEEN PARTY AND CHILD OR BETWEEN MEMBERS OF THE SAME FAMILY OR HOUSEHOLD, REGARDLESS OF THE DISPOSITION; (C) WHETHER EITHER PARTY OWNS, POSSESSES OR HAS ACCESS TO A FIREARM, RIFLE OR SHOTGUN; (D) DECISIONS AND REPORTS ON REGISTRIES AS REQUIRED PURSUANT TO SUBPARAGRAPH THREE OF THIS PARAGRAPH; (E) CONFINEMENT OF A PARTY OR CHILD BY THE OTHER PARTY; (F) THREATS TO HARM OR KILL SELF OR OTHERS, OR THREATS TO HARM OR KILL EMOTIONAL SUPPORT OR COMFORT ANIMALS OWNED OR POSSESSED BY SELF OR OTHERS, MADE BY ONE PARTY TO THE OTHER PARTY OR CHILD; AND (G) ONE PARTY'S CONCERN ABOUT FUTURE ASSAULTS FROM THE OTHER PARTY. EXCEPT FOR GOOD CAUSE SHOWN, THE HEARING FOR SUCH DETERMINATION SHALL COMMENCE WITHIN FOURTEEN COURT DAYS OF THE APPLICATION FOR SUCH HEARING AND SHALL NOT BE ADJOURNED. PARTIES SHALL BE NOTICED OF THEIR RIGHT TO THE ASSISTANCE OF COUNSEL AT THE INITIATION OF SUCH HEARING. WHEN THE PARTIES FIRST APPEAR IN COURT, THE JUDGE SHALL ADVISE THEM BEFORE PROCEEDING OF THE RIGHT TO BE REPRESENTED BY COUNSEL OF HIS OR HER OWN CHOOSING, OF THE RIGHT TO HAVE AN ADJOURNMENT TO CONFER WITH COUNSEL, AND THE RIGHT TO OBTAIN COUNSEL FEES AND EXPENSES, PURSUANT TO SECTION TWO HUNDRED THIRTY-SEVEN OF THIS ARTICLE. DURING SUCH HEARING, COMPE- TENT, MATERIAL AND RELEVANT EVIDENCE MAY BE ADMITTED, IN ADDITION TO EVIDENCE THAT MAY INCLUDE OR CONSIST OF HEARSAY AND DOCUMENTS OR PHOTO- GRAPHS FOR WHICH A PROPER FOUNDATION CANNOT BE LAID. IF A PARTY WAIVES HIS OR HER RIGHT TO A HEARING UNDER THIS SECTION, THE COURT SHALL ADVISE SUCH PARTY AT THAT TIME THAT, NOTWITHSTANDING SUCH WAIVER, AN APPLICA- A. 5398--A 3 TION UNDER THIS SECTION MAY BE MADE AT ANY TIME DURING THE PENDENCY OF THE PROCEEDINGS. (II) THE OFFICE FOR THE PREVENTION OF DOMESTIC VIOLENCE, IN COORDI- NATION WITH THE OFFICE OF COURT ADMINISTRATION AND IN CONSULTATION WITH THE NEW YORK STATE COALITION AGAINST DOMESTIC VIOLENCE, THE NEW YORK STATE COALITION AGAINST SEXUAL ASSAULT, PREVENT CHILD ABUSE NEW YORK, VICTIMS OF DOMESTIC VIOLENCE, SEXUAL ASSAULT, CHILD ABUSE OR CHILD SEXU- AL ABUSE, CIVIL ATTORNEYS REPRESENTING SUCH VICTIMS IN CUSTODY AND VISI- TATION PROCEEDINGS, AND RESEARCHERS AND ACADEMICS WITH EXPERTISE IN DEVELOPING RISK ASSESSMENT TOOLS SHALL DEVELOP A RISK ASSESSMENT TOOL FOR USE BY THE COURT WHEN ASSESSING SIGNIFICANT RISK TO CHILD'S LIFE OR SAFETY FOR THE PURPOSES OF ISSUING A TEMPORARY EMERGENCY ORDER. THESE ENTITIES WILL REVIEW AND, WHEN APPROPRIATE, UPDATE THE RISK ASSESSMENT TOOL AT LEAST ONCE EVERY TWO YEARS. (III) IF THE COURT DETERMINES THAT LIMITATIONS OR RESTRICTIONS OF A PARTY'S CUSTODY, VISITATION OR CONTACT WITH THE CHILD ARE NECESSARY TO AVOID SIGNIFICANT RISK TO THE CHILD'S LIFE OR SAFETY, THE COURT SHALL ISSUE A TEMPORARY EMERGENCY ORDER FOR CUSTODY OR VISITATION STATING AS SUCH. SUCH ORDER SHALL SET FORTH CONDITIONS OF CUSTODY OR VISITATION WHICH MAY BE REVISED BY THE COURT UPON APPLICATION BY EITHER PARTY ONLY FOR GOOD CAUSE SHOWN. ANY ORDER OF THE COURT UNDER THIS SECTION SHALL TERMINATE WHEN THE COURT MAKES A FINAL ORDER OF CUSTODY OR OF VISITATION CONCERNING THE CHILD OR CHILDREN, UNLESS THE SUPREME COURT CONTINUES THE ORDER TO FAMILY COURT. (IV) THERE SHALL BE A REBUTTABLE PRESUMPTION THAT THE COURT SHALL NOT AWARD, IN A TEMPORARY EMERGENCY ORDER FOR CUSTODY OR VISITATION, SOLE OR JOINT CUSTODY OR UNSUPERVISED VISITATION TO A PARTY WHO JEOPARDIZES OR MAY JEOPARDIZE THE LIFE OR SAFETY OF THE CHILD. (V) THE COURT SHALL STATE ON THE RECORD, AND IN WRITING, ITS FINDINGS, THE FACTORS CONSIDERED IN RENDERING ITS DECISION AND THE REASONS FOR THE LIMITATIONS OR RESTRICTIONS PLACED ON A PARTY'S CUSTODY, VISITATION OR CONTACT WITH SUCH CHILD. (VI) ALL COSTS, INCLUDING ATTORNEY AND EXPERT FEES INCURRED BY THE NON-OFFENDING PARTY AND THE CHILD, TO PREPARE FOR AND PARTICIPATE IN SUCH HEARING SHALL BE PAID BY THE PARTY WHO IS FOUND TO HAVE COMMITTED CHILD ABUSE OR DOMESTIC VIOLENCE, UNLESS THE OFFENDING PARTY HAS INSUF- FICIENT MEANS TO FUND SUCH EXPENSES. (VII) IF A PARTY MAKES A GOOD FAITH ALLEGATION BASED ON A REASONABLE BELIEF SUPPORTED BY FACTS THAT A CHILD IS THE VICTIM OF CHILD ABUSE, CHILD NEGLECT, OR HAS BEEN EXPOSED TO DOMESTIC VIOLENCE, AND IF THAT PARTY ACTS LAWFULLY AND IN GOOD FAITH IN RESPONSE TO THAT REASONABLE BELIEF TO PROTECT THE CHILD, SEEK TREATMENT FOR THE CHILD OR TO PROTECT SELF, THEN THAT PARTY 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. (VIII) IF THE COURT DOES NOT MAKE A FINDING THAT LIMITATIONS OR RESTRICTIONS ON A PARTY'S CUSTODY OR VISITATION WITH SUCH CHILD ARE NECESSARY TO AVOID SIGNIFICANT RISK TO THE CHILD'S LIFE OR SAFETY, THE COURT SHALL HOLD AN ADDITIONAL HEARING WHENEVER A PARTY ALLEGES THAT A TEMPORARY ORDER MAY BE NECESSARY TO PROMOTE AND PROTECT THE BEST INTER- EST OF THE CHILD PENDING ENTRY OF A FINAL ORDER. (IX) WITH THE EXCEPTION OF HEARSAY OR OTHER NON-COMPETENT EVIDENCE, THE COURT MAY NOT REFUSE TO CONSIDER, AT FURTHER PROCEEDINGS, EVIDENCE PRESENTED DURING A HEARING FOR A TEMPORARY EMERGENCY ORDER OR ADDITIONAL EVIDENCE OF DOMESTIC VIOLENCE OR CHILD ABUSE PRESENTED IN FURTHER A. 5398--A 4 PROCEEDINGS. THE PRESENTATION OF ANY FACTS OR EVIDENCE AT A HEARING FOR A TEMPORARY EMERGENCY ORDER SHALL NOT PRECLUDE THE PRESENTATION OF ANY FACTS OR EVIDENCE. (X) NOTHING CONTAINED IN THIS SUBPARAGRAPH SHALL BE DEEMED IN ANY WAY TO LIMIT, RESTRICT, EXPAND OR IMPAIR THE RIGHTS OF ANY PARTY TO FILE FOR A MODIFICATION OF A TEMPORARY EMERGENCY ORDER AS IS OTHERWISE PROVIDED BY LAW. (XI) ANY PARTY TO A PROCEEDING FOR A TEMPORARY EMERGENCY ORDER PURSU- ANT TO THIS SECTION SHALL HAVE A RIGHT TO APPEAL TO THE APPROPRIATE APPELLATE DIVISION. AN APPEAL UNDER THIS SUBDIVISION MUST BE TAKEN NO LATER THAN FIVE DAYS AFTER THE SERVICE BY A PARTY OR THE CHILD'S ATTOR- NEY UPON THE APPELLANT OF ANY ORDER FROM WHICH THE APPEAL IS TAKEN OR FIVE DAYS FROM RECEIPT OF THE ORDER BY THE APPELLANT IN COURT, WHICHEVER IS EARLIEST. (XII) 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 custo- dy or visitation in the event that it is not possible to timely review decisions and reports on registries as required pursuant to subparagraph three of this paragraph. § 3. The domestic relations law is amended by adding a new section 240-e to read as follows: § 240-E. CUSTODY AND VISITATION; LIFE AND SAFETY OF THE CHILD. 1. FOR THE PURPOSES OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOW- ING MEANINGS: (A) "PARENTAL ALIENATION" MEANS CLAIMS THAT A CHILD HAS BECOME ESTRANGED FROM A PARENT OR LEGAL GUARDIAN AS A RESULT OF PSYCHOLOGICAL MANIPULATION BY THE OTHER PARENT OR LEGAL GUARDIAN. (B) "VICTIM OF DOMESTIC VIOLENCE" SHALL HAVE THE SAME MEANING AS DEFINED IN SECTION FOUR HUNDRED FIFTY-NINE-A OF THE SOCIAL SERVICES LAW. (C) "FRIENDLY PARENT" MEANS THE PROPENSITY OF A PARENT OR LEGAL GUARD- IAN TO ACTIVELY SUPPORT A CHILD'S CONTACT AND RELATIONSHIP WITH THE OTHER PARENT OR LEGAL GUARDIAN, OR THE ABILITY OF SUCH PARENT OR LEGAL GUARDIAN TO COOPERATE IN, AND RESOLVE DISPUTES, REGARDING MATTERS AFFECTING SUCH CHILD. 2. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, A COURT MAKING A FINAL DETERMINATION OF CUSTODY OR VISITATION BASED ON THE BEST INTERESTS OF A CHILD PURSUANT TO THE PROVISIONS OF THIS CHAPTER SHALL PRIORITIZE AND PROMOTE THE LIFE AND SAFETY OF SUCH CHILD WHEN MAKING SUCH DETERMINATIONS. PROMOTING THE LIFE AND SAFETY OF A CHILD SHALL INCLUDE PREVENTING DIRECT PHYSICAL AND/OR EMOTIONAL HARM TO SUCH CHILD. 3. PRIOR TO THE ISSUANCE OF A FINAL ORDER OF CUSTODY OR VISITATION, DURING ITS ASSESSMENT OF THE BEST INTERESTS OF THE CHILD, THE COURT SHALL DETERMINE THE LIFE AND SAFETY OF THE CHILD WHO IS THE SUBJECT OF SUCH ORDER BY CONSIDERING ALL RELEVANT FACTORS AND BY GIVING WEIGHTED CONSIDERATION TO THOSE FACTORS WHICH AFFECT THE LIFE AND SAFETY OF SUCH CHILD, WHICH SHALL INCLUDE, BUT NOT BE LIMITED TO: (A) WHETHER EITHER PARTY IS MORE LIKELY TO ENSURE THE LIFE AND SAFETY OF THE CHILD AND WHETHER EITHER PARTY JEOPARDIZES THE LIFE OR SAFETY OF THE CHILD. THERE SHALL BE A REBUTTABLE PRESUMPTION THAT CUSTODY OR VISI- TATION SHALL NOT BE AWARDED TO A PARTY WHO JEOPARDIZES THE LIFE OR SAFE- TY OF THE CHILD; (B) THE IMPACT OF DISRUPTING CONTINUITY IN THE CHILD'S HOME, ENVIRON- MENT AND ESTABLISHED PARENTING CONTACTS; (C) ANY ALLEGATIONS OF DOMESTIC VIOLENCE, CHILD ABUSE OR CHILD SEXUAL ABUSE, OR INCIDENTS INVOLVING HARM, OR RISK OF HARM, TO A CHILD; A. 5398--A 5 (D) PRIOR POLICE REPORTS OR DOMESTIC VIOLENCE INCIDENT REPORTS DOCU- MENTING INCIDENTS INVOLVING CHILD ABUSE OR DOMESTIC VIOLENCE, OR WHETHER EITHER PARTY HAS BEEN CHARGED WITH AN ACT WHICH WOULD CONSTITUTE DISOR- DERLY CONDUCT, UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE IMAGE, HARASSMENT IN THE FIRST DEGREE, HARASSMENT IN THE SECOND DEGREE, AGGRAVATED HARASSMENT IN THE SECOND DEGREE, SEXUAL MISCONDUCT, FORCIBLE TOUCHING, SEXUAL ABUSE IN THE THIRD DEGREE, SEXUAL ABUSE IN THE SECOND DEGREE AS SET FORTH IN SUBDIVISION ONE OF SECTION 130.60 OF THE PENAL LAW, STALKING IN THE FIRST DEGREE, STALKING IN THE SECOND DEGREE, STALK- ING IN THE THIRD DEGREE, STALKING IN THE FOURTH DEGREE, CRIMINAL MISCHIEF, MENACING IN THE SECOND DEGREE, MENACING IN THE THIRD DEGREE, RECKLESS ENDANGERMENT, CRIMINAL OBSTRUCTION OF BREATHING OR BLOOD CIRCU- LATION, STRANGULATION IN THE SECOND DEGREE, STRANGULATION IN THE FIRST DEGREE, ASSAULT IN THE SECOND DEGREE, ASSAULT IN THE THIRD DEGREE, AN ATTEMPTED ASSAULT, IDENTITY THEFT IN THE FIRST DEGREE, IDENTITY THEFT IN THE SECOND DEGREE, IDENTITY THEFT IN THE THIRD DEGREE, GRAND LARCENY IN THE FOURTH DEGREE, GRAND LARCENY IN THE THIRD DEGREE, COERCION IN THE SECOND DEGREE OR COERCION IN THE THIRD DEGREE AS SET FORTH IN SUBDIVI- SIONS ONE, TWO AND THREE OF SECTION 135.60 OF THE PENAL LAW BETWEEN SPOUSES OR FORMER SPOUSES, OR BETWEEN PARENT AND CHILD OR BETWEEN MEMBERS OF THE SAME FAMILY OR HOUSEHOLD, REGARDLESS OF THE DISPOSITION; (E) WHETHER EITHER PARTY OWNS, POSSESSES OR HAS ACCESS TO A FIREARM, RIFLE OR SHOTGUN; (F) WHETHER EITHER PARTY IS BETTER ABLE AND MORE LIKELY TO ATTEND TO THE DAILY PHYSICAL, EMOTIONAL, DEVELOPMENTAL, EDUCATIONAL AND SPECIAL NEEDS OF THE CHILD; AND (G) ANY PREVIOUSLY MADE STATEMENTS BY THE CHILD ABOUT A PARTY INDICAT- ING THEY ARE FEARFUL OF OR RESISTANT TO HAVING CONTACT OR VISITATION WITH SUCH PARTY. 4. (A) THE COURT SHALL NOT PRESUME THAT A CHILD'S DEFICIENT OR NEGA- TIVE RELATIONSHIP WITH A PARTY WAS CAUSED BY THE OTHER PARTY, NOR SHALL A PARTY BE GIVEN CUSTODY FOR THE PURPOSE OF IMPROVING A DEFICIENT RELATIONSHIP BETWEEN THE CHILD AND SUCH PARTY OR IN AN ATTEMPT TO REME- DIATE A CHILD'S RESISTANCE TO CONTACT OR VISITATION WITH A PARTY. (B) ALLEGATIONS REGARDING PARENTAL ALIENATION SHALL NOT BE ADMISSIBLE IN ANY PROCEEDING FOR CUSTODY OR VISITATION AND SHALL NOT BE CONSIDERED IN ASSESSING A CHILD'S BEST INTERESTS. (C) NO PSYCHOLOGICAL OR MEDICAL THEORIES OR LABELS RELATED TO A CHILD'S RESISTANCE TO CONTACT WITH A PARTY SHALL BE ADMITTED INTO EVIDENCE UNLESS THEY ARE BASED ON EMPIRICAL PROOF OF SCIENTIFIC RELI- ABILITY AND VALIDITY AND GENERALLY ACCEPTED BY THE SCIENTIFIC AND PROFESSIONAL COMMUNITY. (D) NO REUNIFICATION TREATMENT OR ANY SIMILAR PROGRAM DESIGNED TO REPAIR A PARTY'S RELATIONSHIP WITH A CHILD DUE TO PARENTAL ALIENATION SHALL BE ORDERED BY THE COURT WITHOUT SCIENTIFICALLY VALID AND GENERALLY ACCEPTED PROOF OF THE EFFECTIVENESS AND THERAPEUTIC VALUE OF SUCH TREAT- MENT OR PROGRAM; NOR SHALL A TREATMENT OR PROGRAM BE ORDERED WHICH IS PREDICATED ON SEPARATING A CHILD FROM THEIR PRIMARY CAREGIVER. (E) IN CASES INVOLVING DOMESTIC VIOLENCE OR CHILD ABUSE, WHETHER SUCH ABUSE HAS OCCURRED OR IS OCCURRING, A COURT SHALL NOT CONSIDER WHETHER EITHER PARENT IS A FRIENDLY PARENT. 5. IN CASES WHERE THE COURT HAS FOUND A PARENT TO BE A VICTIM OF DOMESTIC VIOLENCE AND/OR WHERE CHILD ABUSE HAS OCCURRED OR IS OCCURRING: (A) THE COURT SHALL AWARD JOINT LEGAL CUSTODY ONLY ON CONSENT OF THE PARTIES OR WHERE IT HAS BEEN DETERMINED THAT THE PARTIES CAN EFFECTIVELY COMMUNICATE, COOPERATE WITH EACH OTHER, AND MAKE JOINT DECISIONS A. 5398--A 6 CONCERNING THE CHILD; PROVIDED, HOWEVER, THAT WHERE FINAL ORDERS ARE ON THE CONSENT OF THE PARTIES, IN NO EVENT SHALL AN ORDER OF JOINT LEGAL CUSTODY BE AWARDED WHEN THERE IS AN EXISTING OR PRIOR FULL STAY AWAY ORDER OF PROTECTION AGAINST A PARTY ON BEHALF OF ANOTHER PARTY TO THE PROCEEDING OR WHEN THERE IS AN EXISTING TEMPORARY ORDER OF PROTECTION ENTERED EX PARTE; AND (B) ALL COSTS, INCLUDING ATTORNEY AND EXPERT FEES, INCURRED BY THE NON-OFFENDING PARENT AND THE CHILD, SHALL BE PAID BY THE PARENT WHO IS FOUND TO HAVE COMMITTED CHILD ABUSE OR DOMESTIC VIOLENCE, UNLESS THE OFFENDING PARENT HAS INSUFFICIENT MEANS TO PAY SUCH COSTS. 6. (A) BEFORE JUDGES, REFEREES, OR OTHER HEARING OFFICERS PRESIDE OVER CHILD CUSTODY PROCEEDINGS IN WHICH ONE OR MORE PARTIES HAVE ALLEGED DOMESTIC VIOLENCE OR CHILD ABUSE, THEY SHALL COMPLETE AT LEAST TWENTY HOURS OF INITIAL TRAINING FOR THE HANDLING OF SUCH CASES. THE OFFICE FOR PREVENTION OF DOMESTIC VIOLENCE SHALL, WITHIN AMOUNTS APPROPRIATED FOR SUCH PURPOSE, CONTRACT EXCLUSIVELY WITH THE NEW YORK STATE COALITION AGAINST DOMESTIC VIOLENCE, AND OTHER NONPROFIT ENTITIES WITH WHOM IT SUBCONTRACTS WITH EXPERTISE IN CHILD ABUSE OR GENDER-BASED VIOLENCE, TO DEVELOP SUCH TRAINING. SUCH ENTITY, OR ENTITIES IN PARTNERSHIP, SHALL REVIEW AND UPDATE THE TRAINING AT LEAST ONCE EVERY TWO YEARS. IN CONSULTATION WITH THE OFFICE OF COURT ADMINISTRATION, SUCH ENTITIES, OR ENTITIES IN PARTNERSHIP, SHALL BE RESPONSIBLE FOR PROVIDING SUCH TRAIN- ING TO JUDGES, REFEREES, AND OTHER HEARING OFFICERS HANDLING CHILD CUSTODY PROCEEDINGS. SUCH TRAINING SHALL INCLUDE, BUT NOT BE LIMITED TO: (1) A REVIEW OF RELEVANT STATUTES AND CASE LAW PERTAINING TO DOMESTIC VIOLENCE AND CHILD ABUSE; (2) THE DYNAMICS AND EFFECTS OF DOMESTIC VIOLENCE AND CHILD ABUSE, INCLUDING BUT NOT LIMITED TO, EMOTIONAL, FINANCIAL, PHYSICAL, TECHNOLOG- ICAL AND SEXUAL ABUSE, AND AN UNDERSTANDING OF THE BARRIERS AND FEARS ASSOCIATED WITH REPORTING DOMESTIC VIOLENCE AND CHILD ABUSE AND WHY VICTIMS MAY NOT HAVE DOCUMENTED EVIDENCE OF ABUSE; (3) TACTICS COMMONLY USED BY ONE PARTY TO INDUCE FEAR IN, OR DOMINATE OR CONTROL A PARTNER OR CHILD, INCLUDING VERBAL, EMOTIONAL, PSYCHOLOG- ICAL, AND/OR ECONOMIC ABUSE; ISOLATION; EFFORTS TO BUILD TRUST AND AN EMOTIONAL CONNECTION WITH A CHILD TO SUPPORT FUTURE MANIPULATION; EXPLOITATION; ABUSE; THREATS; CONTROLLING AND HARASSING BEHAVIORS, INCLUDING MONITORING OF A PARTNER'S LOCATION AND ACTIVITIES; USE OF OPPRESSIVE BEHAVIOR DESIGNED TO DEPRIVE A PARTNER OF THEIR RIGHTS AND LIBERTIES AND ESTABLISHING A REGIME OF DOMINATION IN THE PARTNER'S PERSONAL LIFE; LITIGATION ABUSE; AND DEMANDS FOR CUSTODY IN ORDER TO PRESSURE THE PARTNER TO RETURN OR PUNISH THE PARTNER FOR LEAVING; (4) KNOWLEDGE OF TRAUMA, PARTICULARLY AS IT RELATES TO SEXUAL ABUSE AND THE RISKS POSED TO CHILDREN AND THE LONG-TERM DANGERS AND IMPACTS POSED BY THE PRESENCE OF ADVERSE CHILDHOOD EXPERIENCES; (5) THE INCREASED RISK OF ESCALATING VIOLENCE THAT OCCURS DURING CHILD CUSTODY PROCEEDINGS AND METHODS FOR ASSESSING A CHILD'S SAFETY DURING CUSTODY AND VISITATION PROCEEDINGS, PARTICULARLY IN CASES INVOLVING DOMESTIC VIOLENCE OR CHILD ABUSE; (6) THE ASSESSMENT OF LEGALITY OR SIGNS OF LETHAL VIOLENCE, AND INSTRUCTION ON THE USE OF A RISK ASSESSMENT TOOL TO ASSESS RISK TO A CHILD'S LIFE OR SAFETY FOR THE PURPOSE OF ISSUING A TEMPORARY EMERGENCY ORDER; (7) EDUCATION REGARDING THE HARM COURTS MAY CAUSE CHILDREN IN CHILD CUSTODY CASES WHERE DOMESTIC VIOLENCE OR CHILD ABUSE IS PRESENT BY RELY- ING ON NON-SCIENTIFIC THEORIES SUCH AS PARENTAL ALIENATION, PARENTAL A. 5398--A 7 ALIENATION SYNDROME, THE FRIENDLY PARENT CONCEPT, OR ANY OTHER THEORY OR LABEL THAT IS NOT SUPPORTED BY SCIENTIFIC RESEARCH AND NOT GENERALLY ACCEPTED BY THE SCIENTIFIC COMMUNITY; (8) THE INVESTIGATION PROCESS ONCE A LAW ENFORCEMENT AGENCY OR A LOCAL DEPARTMENT OF SOCIAL SERVICES HAS RECEIVED A REPORT OF SUSPECTED CHILD ABUSE, INCLUDING THE LIMITATIONS OF INVESTIGATING REPORTS OF SUSPECTED CHILD ABUSE; AND (9) APPROPRIATE EXPERIENCE AND QUALIFICATIONS OF CHILD CUSTODY EVALU- ATORS AND MENTAL HEALTH TREATMENT PROVIDERS. (B) ONCE INITIAL TRAINING REQUIREMENTS HAVE BEEN MET, JUDGES, REFER- EES, AND OTHER HEARING OFFICERS PRESIDING OVER CHILD CUSTODY PROCEEDINGS IN WHICH ONE OR MORE PARTIES HAVE ALLEGED DOMESTIC VIOLENCE OR CHILD SEXUAL ABUSE SHALL COMPLETE AT LEAST TEN HOURS OF TRAINING EVERY TWO YEARS IN ORDER TO REMAIN ELIGIBLE TO HANDLE SUCH PROCEEDINGS. § 4. Subdivision (a) of section 70 of the domestic relations law, as amended by chapter 457 of the laws of 1988, is amended to read as follows: (a) (I) Where a minor child is residing within this state, either parent may apply to the supreme court for a writ of habeas corpus to have such minor child brought before such court; and on the return ther- eof, the court, on due consideration, may award the natural guardian- ship, charge and custody of such child to either parent for such time, under such regulations and restrictions, and with such provisions and directions, as the case may require, and may at any time thereafter vacate or modify such order. In all cases there shall be no prima facie right to the custody of the child in either parent, but the court shall determine solely what is for the best interest of the child, and what will best promote its welfare and happiness, and make award accordingly. WHERE EITHER PARTY TO AN ACTION CONCERNING CUSTODY OF OR A RIGHT TO VISITATION WITH A CHILD ALLEGES THAT THE OTHER PARTY HAS COMMITTED AN ACT OF CHILD ABUSE AGAINST SUCH CHILD, OR COMMITTED AN ACT OF DOMESTIC VIOLENCE AGAINST THE PARTY MAKING THE ALLEGATION OR A FAMILY OR HOUSE- HOLD MEMBER OF EITHER PARTY, AS SUCH FAMILY OR HOUSEHOLD IS DEFINED IN ARTICLE EIGHT OF THE FAMILY COURT ACT, THE COURT MUST FIRST, BEFORE CONSIDERING ANY OTHER BEST INTEREST FACTORS, HOLD A HEARING TO DETERMINE WHETHER TEMPORARY LIMITATIONS OR CONDITIONS ON THE CUSTODY OR VISITATION RIGHTS OF THE PARTY WHO IS ALLEGED TO HAVE COMMITTED AN ACT OF CHILD ABUSE AGAINST THE CHILD, OR COMMITTED AN ACT OF DOMESTIC VIOLENCE AGAINST THE PARTY MAKING THE ALLEGATION OR A FAMILY OR HOUSEHOLD MEMBER OF EITHER PARTY IS NECESSARY TO AVOID SIGNIFICANT RISK TO THE CHILD'S LIFE OR SAFETY, AS DESCRIBED PURSUANT TO SUBDIVISION FIVE OF SECTION TWO HUNDRED FORTY OF THIS CHAPTER. (II) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, A COURT MAKING A DETERMINATION THAT LIMITATIONS OR RESTRICTIONS OF A PARTY'S CUSTODY, VISITATION OR CONTACT WITH THE CHILD ARE NECESSARY TO AVOID SIGNIFICANT RISK TO THE CHILD'S LIFE OR SAFETY SHALL ISSUE A TEMPORARY EMERGENCY ORDER FOR CUSTODY OR VISITATION STATING AS SUCH. (III) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, PRIOR TO THE ISSUANCE OF A TEMPORARY EMERGENCY ORDER OF CUSTODY OR VISI- TATION, THE COURT SHALL CONDUCT AN ASSESSMENT OF THE BEST INTERESTS OF THE CHILD TO IDENTIFY SIGNIFICANT RISK TO THE LIFE OR SAFETY OF THE CHILD WHO IS THE SUBJECT OF SUCH ORDER BY CONSIDERING THE FACTORS DESCRIBED IN SECTION TWO HUNDRED FORTY OF THIS CHAPTER. (IV) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, A COURT MAKING A FINAL DETERMINATION OF CUSTODY OR VISITATION BASED ON THE BEST INTERESTS OF A CHILD PURSUANT TO THE PROVISIONS OF THIS CHAPTER A. 5398--A 8 SHALL PRIORITIZE AND PROMOTE THE LIFE AND SAFETY OF SUCH CHILD WHEN MAKING SUCH DETERMINATIONS. PROMOTING THE SAFETY OF A CHILD SHALL INCLUDE PREVENTING DIRECT PHYSICAL AND/OR EMOTIONAL HARM TO SUCH CHILD. PRIOR TO THE ISSUANCE OF A FINAL ORDER OF CUSTODY OR VISITATION, DURING ITS ASSESSMENT OF THE BEST INTERESTS OF THE CHILD, THE COURT SHALL DETERMINE THE SAFETY OF THE CHILD WHO IS THE SUBJECT OF SUCH ORDER BY CONSIDERING ALL RELEVANT FACTORS AND BY GIVING WEIGHTED CONSIDERATION TO THOSE FACTORS WHICH AFFECT THE LIFE AND SAFETY OF SUCH CHILD, PURSUANT TO SUBDIVISION THREE OF SECTION TWO HUNDRED FORTY-D OF THIS CHAPTER. (V) IN MAKING A DECISION PURSUANT TO PARAGRAPH (I) OF THIS SUBDIVI- SION, THE COURT SHALL BE BOUND BY THE PRESUMPTIONS AND ADMISSIBILITY DESCRIBED PURSUANT TO SECTION TWO HUNDRED FORTY-D OF THIS CHAPTER. FURTHER, THE COURT SHALL NOT TAKE INTO CONSIDERATION WHETHER EITHER PARTY IS MARRIED, WAS FORMERLY MARRIED OR HAS EVER BEEN MARRIED TO THE OTHER PARTY OR ANYONE ELSE. (VI) IN CASES WHERE THE COURT HAS FOUND A PARTY TO BE A VICTIM OF DOMESTIC VIOLENCE AND/OR WHERE CHILD ABUSE HAS OCCURRED OR IS OCCURRING, THE COURT SHALL AWARD JOINT LEGAL CUSTODY ONLY ON CONSENT OF THE PARTIES OR WHERE IT HAS BEEN DETERMINED THAT THE PARTIES CAN EFFECTIVELY COMMU- NICATE, COOPERATE WITH EACH OTHER, AND MAKE JOINT DECISIONS CONCERNING THE CHILD; PROVIDED, HOWEVER, THAT WHERE FINAL ORDERS ARE ON THE CONSENT OF THE PARTIES, IN NO EVENT SHALL AN ORDER OF JOINT LEGAL CUSTODY BE AWARDED WHEN THERE IS AN EXISTING OR PRIOR FULL STAY AWAY ORDER OF PROTECTION AGAINST A PARTY ON BEHALF OF ANOTHER PARTY TO THE PROCEEDING OR WHEN THERE IS AN EXISTING TEMPORARY ORDER OF PROTECTION ENTERED EX PARTE AND ALL COSTS, INCLUDING ATTORNEY AND EXPERT FEES, INCURRED BY THE NON-OFFENDING PARENT AND THE CHILD, SHALL BE PAID BY THE PARENT WHO IS FOUND TO HAVE COMMITTED CHILD ABUSE OR DOMESTIC VIOLENCE, UNLESS THE OFFENDING PARENT HAS INSUFFICIENT MEANS TO PAY SUCH COSTS. (VII) BEFORE JUDGES, REFEREES AND OTHER HEARING OFFICERS PRESIDE OVER CHILD CUSTODY PROCEEDINGS IN WHICH ONE OR MORE PARTIES HAVE ALLEGED DOMESTIC VIOLENCE OR CHILD ABUSE, THEY SHALL COMPLETE INITIAL TRAINING FOR THE HANDLING OF SUCH CASES AS DESCRIBED PURSUANT TO SECTION TWO HUNDRED FORTY-D OF THIS CHAPTER. ONCE INITIAL TRAINING REQUIREMENTS HAVE BEEN MET, JUDGES, REFEREES AND OTHER HEARING OFFICERS SHALL COMPLETE ADDITIONAL TRAINING EVERY TWO YEARS AS DESCRIBED PURSUANT TO SECTION TWO HUNDRED FORTY-D OF THIS CHAPTER. § 5. The family court act is amended by adding a new section 654 to read as follows: § 654. TEMPORARY ORDER OF CUSTODY OR OF VISITATION. (A) NOTWITHSTAND- ING ANY OTHER PROVISION OF THE LAW, UPON THE APPLICATION OF EITHER PARTY TO AN ACTION CONCERNING CUSTODY OF OR A RIGHT TO VISITATION WITH A CHILD WHO ALLEGES THAT THE OTHER PARTY HAS COMMITTED AN ACT OF CHILD ABUSE AGAINST SUCH CHILD, OR COMMITTED AN ACT OF DOMESTIC 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, THE COURT SHALL HOLD A HEARING TO DETERMINE WHETH- ER TEMPORARY LIMITATIONS OR CONDITIONS ON THE CUSTODY OR VISITATION RIGHTS OF THE PARTY WHO IS ALLEGED TO HAVE COMMITTED AN ACT OF CHILD ABUSE AGAINST THE CHILD, OR COMMITTED AN ACT OF DOMESTIC VIOLENCE AGAINST THE PARTY MAKING THE ALLEGATION OR A FAMILY OR HOUSEHOLD MEMBER OF EITHER PARTY IS NECESSARY TO AVOID SIGNIFICANT RISK TO THE CHILD'S LIFE OR SAFETY, IN ACCORDANCE WITH SUBPARAGRAPH FIVE OF PARAGRAPH (A-1) OF SUBDIVISION ONE OF SECTION TWO HUNDRED FORTY OF THE DOMESTIC RELATIONS LAW. IF THE COURT DETERMINES THAT LIMITATIONS OR RESTRICTIONS OF A PARTY'S CUSTODY, VISITATION OR CONTACT WITH THE CHILD ARE NECESSARY A. 5398--A 9 TO AVOID SIGNIFICANT RISK TO THE CHILD'S LIFE OR SAFETY, THE COURT SHALL ISSUE A TEMPORARY EMERGENCY ORDER FOR CUSTODY OR VISITATION STATING AS SUCH, IN ACCORDANCE WITH CLAUSE (III) OF SUBPARAGRAPH FIVE OF PARAGRAPH (A-1) OF SUBDIVISION ONE OF SECTION TWO HUNDRED FORTY OF THE DOMESTIC RELATIONS LAW. (B) SUCH TEMPORARY ORDER OF CUSTODY OR OF VISITATION MAY BE TAKEN AS OF RIGHT TO THE APPELLATE DIVISION OF THE SUPREME COURT. PENDING THE DETERMINATION OF SUCH APPEAL, SUCH ORDER SHALL BE STAYED WHERE THE EFFECT OF SUCH ORDER WOULD BE TO DISCHARGE THE CHILD, IF THE FAMILY COURT OR THE COURT BEFORE WHICH SUCH APPEAL IS PENDING FINDS THAT SUCH A STAY IS NECESSARY TO AVOID SIGNIFICANT RISK TO THE CHILD'S LIFE OR SAFE- TY. A PREFERENCE IN ACCORDANCE WITH RULE FIVE THOUSAND FIVE HUNDRED TWENTY-ONE OF THE CIVIL PRACTICE LAW AND RULES SHALL BE AFFORDED, WITH- OUT THE NECESSITY OF A MOTION, FOR APPEALS UNDER ARTICLE THREE; PARTS ONE AND TWO OF ARTICLE SIX; ARTICLES SEVEN, TEN, AND TEN-A OF THIS ACT; AND SECTIONS THREE HUNDRED FIFTY-EIGHT-A, THREE HUNDRED EIGHTY-THREE-C, THREE HUNDRED EIGHTY-FOUR, AND THREE HUNDRED EIGHTY-FOUR-B OF THE SOCIAL SERVICES LAW. AN APPEAL UNDER THIS SUBDIVISION MUST BE TAKEN NO LATER THAN FIVE DAYS AFTER THE SERVICE BY A PARTY OR THE CHILD'S ATTORNEY UPON THE APPELLANT OF ANY ORDER FROM WHICH THE APPEAL IS TAKEN, FIVE DAYS FROM RECEIPT OF THE ORDER BY THE APPELLANT IN COURT. § 6. Subdivision a of section 1112 of the family court act, as amended by section 28 of part A of chapter 3 of the laws of 2005, is amended to read as follows: a. An appeal may be taken as of right from any order of disposition and, in the discretion of the appropriate appellate division, from any other order under this act. An appeal from an intermediate or final order in a case involving abuse or neglect, THE DECISION TO GRANT OR DENY A TEMPORARY EMERGENCY ORDER, AS DETERMINED PURSUANT TO SECTION SIX HUNDRED FIFTY-FOUR OF THIS ACT, OR A TEMPORARY EMERGENCY ORDER ISSUED TO AVOID SIGNIFICANT RISK TO THE CHILD'S LIFE OR SAFETY, AS DETERMINED PURSUANT TO SECTION SIX HUNDRED FIFTY-FOUR OF THIS ACT, may be taken as of right to the appellate division of the supreme court. Pending the determination of such appeal, such order shall be stayed where the effect of such order would be to discharge the child, if the family court or the court before which such appeal is pending finds that such a stay is necessary to avoid imminent risk to the child's life or health. A preference in accordance with rule five thousand five hundred twenty- one of the civil practice law and rules shall be afforded, without the necessity of a motion, for appeals under article three; parts one and two of article six; articles seven, ten, and ten-A of this act; and sections three hundred fifty-eight-a, three hundred eighty-three-c, three hundred eighty-four, and three hundred eighty-four-b of the social services law. § 7. This act shall take effect on the ninetieth day after it shall have become a law. Effective immediately, the addition, amendment and/or repeal of any rule or regulation necessary for the implementation of this act on its effective date are authorized to be made on or before such effective date.