NY State Senate Bill 2021-S7311

Senate Bill S7311

2021-2022 Legislative Session

Establishes "Kyra's Law"

download bill text pdf

Archive: Last Bill Status - Stricken

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Aug 11, 2021	recommit, enacting clause stricken
Jul 30, 2021	referred to rules

co-Sponsors

2021-S7311 (ACTIVE) - Details

See Assembly Version of this Bill:: A5398
Law Section:: Domestic Relations Law
Laws Affected:: Amd §§240 & 70, add §240-d, Dom Rel L
Versions Introduced in 2023-2024 Legislative Session:: A3346

2021-S7311 (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.

2021-S7311 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S7311

SPONSOR: THOMAS
 
TITLE OF BILL:

An act to amend the domestic relations law, in relation to establishing
"Kyra's Law"

 
PURPOSE OR GENERAL IDEA OF BILL:

To protect children by prioritizing the health and safety of children
over other best interest factors in child custody and visitation
proceedings.

 
SUMMARY OF PROVISIONS:

Section 1 of the bill amends paragraph (a) of subdivision 1 of the
domestic relations law to require that in child custody or visitation
proceedings in which a party alleges child abuse or domestic violence,
the court must first, before considering any other best interest
factors, conduct an evidentiary hearing and make a finding regarding
such allegations. Should the court find a pattern of domestic violence

or child abuse, this section requires a court to award sole custody to
the non-offending parent.

Section 2 of the bill amends the domestic relations law to create a new
section 240-d to identify specific factors to be given weighted consid-
eration when determining the health and safety of children in child
custody or visitation, to restrict admissibility of non-scientifically
valid or proven theories such as parental alienation, friendly parent or
reunification treatment in such proceedings, and to require specific
training for judges and court personnel handling child custody cases in
which child abuse or domestic violence is alleged.

Section 3 of the bill amends subdivision (a) of section 70 of the domes-
tic relations law to ensure that the same protections as noted above are
in place regardless of whether the parents of the child have ever been
married.

Section 4 is the effective date.

 
JUSTIFICATION:

This bill, known as "Kyra's Law," seeks to address the systemic weak-
nesses in the current law regarding child custody and visitation and the
failures of the court system to keep New York's children safe from
dangerous abusers.

Kyra Franchetti, a toddler, was ordered by the court to have unsuper-
vised visits with her father, despite repeated reports and eyewitness
accounts of his anger and rage issues, suicidal ideation, stalking and
history of coercive tactics and abuse. During two years of child custody
hearings in Nassau County Family Court, Kyra Franchetti's mother repeat-
edly pleaded with the court to acknowledge the risk of harm to Kyra. The
court dismissed these urgent pleas to protect Kyra and permitted unsu-
pervised visitation to proceed. In July 2016, Kyra was on an unsuper-
vised, court-sanctioned visit with her father in Virginia when he shot
her to death while she slept. He then set his house on fire and killed
himself. Kyra was only twenty-eight months old.(1)
Tragically, countless children in New York have been injured or murdered
at the hands of a parent who is seeking to cause pain and trauma to
their intimate partner. Yet courts continue to discount or minimize the
risks posed in cases where domestic violence is present, dismissing
allegations of domestic violence or child abuse as an attempt by one
parent to win custody from the other.

Moreover, there is now a specialized body of scientific research about
domestic violence and child abuse that was not available when custody
courts developed their present practices. The courts have been slow to
integrate this research. Children exposed to domestic violence and child
abuse will live shorter lives and suffer a lifetime of health and social
problems.(2) Most of the harm is not caused by the immediate physical
injuries, but from living with the fear and stress abusers cause. Most
judges, lawyers and evaluators do not have the specific training and
background necessary to evaluate domestic violence and child abuse
cases. This leads to decisions that harm children. This legislation
encourages a multi-disciplinary approach that would include experts in
domestic violence and child sexual abuse.

The bill requires the court to conduct an evidentiary hearing within 60
days of the filing of the verified pleading to determine upon competent
admissible evidence and enter findings regarding child abuse, family
violence or domestic abuse

Requiring the evidentiary hearing at the outset of child custody and
visitation proceedings will ensure that future decision-making takes
into account the risks posed to that child, that the courts quickly
address these issues and minimize the timeframe for which a violent
offender may have access to a child at risk.

This hearing will not preclude the court from issuing emergency orders
necessary to protect the child. If the court concludes a parent is
abusive, the court may require such abuser to pay the legal fees for
both parties, if the abuser has the economic means to do so.

By evaluating domestic violence and child abuse allegations at the
initiation of court proceedings, the court will be better able to under-
stand why one -parent may not be fostering a relationship between an
offending parent and the child.

Currently, although New York State statute specifically restricts the
court from depriving a parent of custody, visitation or contacts with a
child if such parent makes a good faith allegation of domestic violence,
non-offending parents typically have their children removed from their
care for making such allegations.

According to research by Professor Joan S. Meier, Esq., of George Wash-
ington University Law School, in conjunction with the National Institute
of Justice, an analysis of more than 2,000 court opinions across the
country confirms "courts are skeptical of mothers' claims of abuse by
fathers; this skepticism is greatest when mothers claim child abuse.(3)

This bill requires the Court, when making a determination based on the
'best interest of the child' shall prioritize and promote the health and
safety of the child.


Promoting safety of a child includes preventing direct physical and/or
emotional harm to the child and creating situations that may decrease
the likelihood such child will engage in harmful behaviors.  This bill
requires, that prior to the issuance of any order of custody of visita-
tion, the court shall determine the safety of the child by considering
and giving weighted consideration to the following factors:

1.) Whether either parent is more likely to ensure the health and safety
of the child.

2) The substantial risks associated with separating the child from his
or her primary attachment figure.

3) 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.

4) 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.

5) Whether either parent has committed an act of child abuse against the
child or committed an act of family violence or domestic violence
against the party making the allegation, a family member, or a household
member of either party.

6) Whether either parent is better able and is more likely to provide
adequate health and safety safeguards and supervision of the child.

7) Any history of violence or abuse committed by a parent or a member of
a parents' household against any other party, another child in the
parent's household, or the child's other parent or any individual that
resides, or formerly resided, in the other parents household.

8) Any fear held by the child of a parent based on such parent's specif-
ic conduct that is contrary to the child's best interest, specifically
the child's health and safety.

9) The presence of Adverse Childhood Experiences (ACEs) and whether
either parent's behaviors have contributed to the presence of ACEs for
the child.

Far too often, domestic violence abusers are granted child custody or
unsupervised visitation because they are deemed to be better able to
support their child economically. While a determination of which parent
can better economically support a child is an important one, it is not
more important than assessing whether either parent places the child at
substantial risk of bodily injury or severe emotional distress. Such an
approach also does not take into account the resulting trauma from
removing a child from their primary attachment figure, provided such
parent is non-abusive.  This bill prevents courts from factoring into
custody or visitation proceedings the following:

1.) The court shall not presume that a child's deficient or negative
relationship with a parent was caused by the other parent. No child's
contact with a parent found to be the primary attachment figure shall be
restricted as a means of attempting to improve a deficient relationship
with the other parent.
2) Concerns regarding unconscious or subliminal parental alienation
shall be not admissible and shall not be considered in assessing a
child's best interests.

3) 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 generally accepted by the scientific and professional
community based on empirical proof or scientific reliability and validi-
ty

4) No reunification treatment or 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. No
treatment or program shall be ordered which is predicated on separating
a child from such child's primary attachment figure.

5) 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.

6) In cases where the court has found a parent to be a victim of domes-
tic violence, and/or where child abuse has occurred or is occurring, a
court shall not consider whether either parent is a friendly parent.

Research finds that courts often err in awarding child custody or visi-
tation to abusers due to the debunked theory of parental alienation, the
theory that when parents allege that a child is not safe with the
offending parent, they are doing so illegitimately, to alienate the
child from such parent. In fact, cross-claims of parental alienation
"virtually double" courts' rejection of parents' abuse claims, causing
non-offending parents to lose custody to the parent accused of abuse.(4)
This bill restricts parents from using such theories or labels in court.

This bill requires 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 following:

1) The court shall not base decisions on a legal presumption of shared
parenting.

2) 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.

Domestic violence can have very harmful effects on children. When there
is domestic violence in the home, children are at greater risk of being
abused or neglected. But even when they are not "directly" abused, chil-
dren who witness violence and abuse by one parent against another can be
affected in ways similar to children who are physically abused. Seeing
or hearing violence at home can hurt children emotionally, psychologi-
cally, and even physically due to the stress they suffer.

Some individuals who use coercive power and control tactics against
their intimate partners go so far as to use their children as pawns,
even harming or murdering them, to try to maintain control over or
devastate their partners.
This bill enhances current training requirements for judges and court
personnel and requires such training be developed and offered by domes-
tic violence and child abuse experts working in the field to support and
advocate on behalf of New York's domestic violence survivors and chil-
dren.

1) Any judges and other court professionals handling child custody
proceedings in which one or more of the parties have alleged domestic
violence or child sexual abuse shall complete training for the handling
of such cases at least once annually. Such training shall be developed
by the Office of Children and Family Services (OCFS)

2) This training shall include but not be limited to:

* the dynamics of domestic violence and child abuse: emotional, finan-
cial, physical, technological, and sexual abuse.

* Tactics commonly used by one party to induce fear in another pasty or
child. Including verbal, emotional, psychological, and/or economic
abuse, isolating tactics, threats, controlling behaviors, monitoring,
litigation abuse, and demands for custody or joint custody in order to
pressure the partner to return or punish the partner for leaving.

* Knowledge of trauma, particularly as it relates to sexual abuse and
the risks posed to children, and the long-term dangers posed by the
presence of ACEs.

* The increased risk of escalating violence that occurs during child
custody proceedings

* Education regarding the harms 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 that is generally
accepted by the scientific community.

Less than 4% of child custody cases require trial; most are settled
outside of court. Research shows that the majority of contested custody
cases that do go to trial involve domestic violence and/or child abuse.

Therefore, it is critical for judges and court personnel who hear child
custody and visitation cases involving domestic violence or child abuse
receive consistent, comprehensive training in the dynamics of domestic
violence, trauma, coercive control, the harm courts may cause children
by relying on nonscientific theories such as parental alienation, the
increased risk of escalating violence that occurs during child custody
proceedings, the impacts of Adverse Childhood Experiences on children,
and other issues.

 
PRIOR LEGISLATIVE HISTORY:

New bill

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

Undetermined.

 
EFFECTIVE DATE:
The 90th day after it shall have become 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 made and completed on or before such effective date.
(1) https://kyrafranchetti.org/kyras-story/
(2) Vincent J. Felitti, Robert F. Anda, D. Nordenberg, D. F. Williamson,
AM Spitz, V. Edwards., MP Ross, at al.  The Relationship of Adult Health
Status to Childhood Abuse and Household Dysfunction." American Journal
of Preventive Medicine. 1998; 14:245-258. Available at https://www.
ncbi.nlm.nih.gov/pubmed/9635069.
(3) Meier, Joan S. and Dickson, Sean and 08A39;Sullivan, Chris and
Rosen, Leora and Hayes, Jeffrey, Child Custody Outcomes in Cases Involv-
ing Parental Alienation and Abuse Allegations (2019). GWU Law School
Public Law Research Paper No. 2019-56; GWU Legal Studies Research Paper
No. 2019-56. Available at SSRN: https://ssrn.com/abstract=3448062 or
http://dx.doLorg/10.2139/ssrn.3448062 (4) Ibid.

2021-S7311 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7311
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                               July 30, 2021
                                ___________
 
 Introduced  by  Sen.  THOMAS -- read twice and ordered printed, and when
   printed to be committed to the Committee on Rules
 
 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

 S. 7311                             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

 S. 7311                             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

 S. 7311                             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

 S. 7311                             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-

 S. 7311                             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

 S. 7311                             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.

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Senate Bill S7311

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