S T A T E O F N E W Y O R K
________________________________________________________________________
3346--C
2023-2024 Regular Sessions
I N A S S E M B L Y
February 2, 2023
___________
Introduced by M. of A. HEVESI, SILLITTI, DICKENS, FAHY, CLARK, HUNTER,
LAVINE, SEAWRIGHT, SIMON, JACKSON, RIVERA, McDONOUGH, MORINELLO,
THIELE, BURDICK, K. BROWN, STIRPE, GONZALEZ-ROJAS, DURSO, OTIS, BRABE-
NEC, MANKTELOW, ANGELINO, COOK, GUNTHER, STERN, JEAN-PIERRE, DeSTEFA-
NO, BLANKENBUSH, RA, FITZPATRICK, PHEFFER AMATO, ANDERSON, MIKULIN,
L. ROSENTHAL, LUPARDO, SIMPSON, EPSTEIN, KELLES, JENSEN, BURGOS,
JONES, STECK, ZINERMAN, CRUZ, AUBRY, CUNNINGHAM, HAWLEY, PAULIN,
BARRETT, RAMOS, GIBBS, JACOBSON, DINOWITZ, REYES, CONRAD,
J. A. GIGLIO, MAHER, BLUMENCRANZ, BORES, GANDOLFO, SHIMSKY, McDONALD,
BRONSON, DARLING, BENDETT, DE LOS SANTOS, WOERNER, WILLIAMS, EACHUS,
PRETLOW, ALVAREZ, DAVILA, BENEDETTO, SMITH, MEEKS, SIMONE, TAPIA,
BUTTENSCHON, WALLACE, ARDILA, LEVENBERG, RAGA, SEPTIMO, COLTON, LEE,
GALLAHAN, FLOOD, WEPRIN, SAYEGH, TANNOUSIS, BICHOTTE HERMELYN, SOLAG-
ES, CURRAN, TAYLOR -- read once and referred to the Committee on Judi-
ciary -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee -- 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 committee -- recommitted to the Committee on Judi-
ciary in accordance with Assembly Rule 3, sec. 2 -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee
AN ACT to amend the domestic relations law, the family court act and the
civil practice law and rules, 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 and may be cited as
"Kyra's Law".
§ 2. Subdivision 1 of section 240 of the domestic relations law is
amended by adding a new opening paragraph to read as follows:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD06231-12-4
A. 3346--C 2
THE LEGISLATURE RECOGNIZES THAT THE SAFETY OF CHILDREN IS OF PARAMOUNT
IMPORTANCE AND IS AN INTEGRAL ELEMENT OF THEIR BEST INTERESTS. TO THAT
END, THE LEGISLATURE FINDS THAT JUDICIAL DECISIONS REGARDING CUSTODY OF,
AND ACCESS TO, CHILDREN SHALL PROMOTE THE SAFETY OF CHILDREN AS A THRES-
HOLD ISSUE.
§ 3. Paragraphs (a) and (a-1) of subdivision 1 of section 240 of the
domestic relations law, paragraph (a) as amended by chapter 567 of the
laws of 2015 and paragraph (a-1) as amended by chapter 295 of the laws
of 2009, are amended to read as follows:
(a) In any action or proceeding brought (1) to annul a marriage or to
declare the nullity of a void marriage, or (2) for a separation, or (3)
for a divorce, or (4) to obtain, by a writ of habeas corpus or by peti-
tion and order to show cause, the custody of or right to visitation 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. WHEN THE PARTIES FIRST
APPEAR IN COURT, THE COURT SHALL ADVISE THE PARTIES BEFORE PROCEEDING OF
THE RIGHT TO BE REPRESENTED BY COUNSEL OF THEIR OWN CHOOSING, OF THE
RIGHT TO HAVE AN ADJOURNMENT OF NO LONGER THAN FOURTEEN COURT DAYS TO
CONFER WITH COUNSEL, AND THE RIGHT TO OBTAIN COUNSEL FEES AND EXPENSES,
PURSUANT TO SECTION TWO HUNDRED THIRTY-SEVEN OF THIS ARTICLE. THE COURT
SHALL ASSIGN COUNSEL TO THE ELIGIBLE PARTIES AND CHILDREN, PURSUANT TO
ARTICLE TWO OF THE FAMILY COURT ACT AND SUBDIVISIONS SEVEN AND EIGHT OF
SECTION THIRTY-FIVE OF THE JUDICIARY LAW. 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 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] SHALL consider the effect of such domestic
violence upon the best interests of the child, together with such other
facts and circumstances as the court deems relevant in making a direc-
tion pursuant to this section and state on the record how such findings,
facts and circumstances factored into the direction. If a parent makes a
good faith allegation based on a reasonable belief supported by facts
that the child is the victim of child abuse, child neglect, or the
effects of domestic violence, and if that parent acts lawfully and in
good faith in response to that 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 proceed-
ing 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
A. 3346--C 3
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 dispositional hearing
on the petition under article ten or the permanency hearing under arti-
cle 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] SHALL determine custody or visitation in accordance with the
terms of this section.
An order directing the payment of child support shall contain the
social security numbers of the named parties. In all cases there shall
be no prima facie right to the custody of the child in either parent.
Such direction shall make provision for child support out of the proper-
ty of either or both parents. The court shall make its award for child
support pursuant to subdivision one-b of this section. Such direction
may provide for reasonable visitation rights to the maternal and/or
paternal grandparents of any child of the parties. Such direction as it
applies to rights of visitation with a child remanded or placed in the
care of a person, official, agency or institution pursuant to article
ten of the family court act, or pursuant to an instrument approved under
section three hundred fifty-eight-a of the social services law, shall be
enforceable pursuant to part eight of article ten of the family court
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] SHALL 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 chap-
ter, 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
A. 3346--C 4
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.
(a-1)(1) [Permanent and initial temporary orders of custody or visita-
tion. Prior to the issuance of any permanent or initial temporary order
of custody or visitation, the court shall conduct a review of the deci-
sions and reports listed in subparagraph three of this paragraph.
(2) Successive temporary orders of custody or visitation. Prior to the
issuance of any successive temporary order of custody or visitation, the
court shall conduct a review of the decisions and reports listed in
subparagraph three of this paragraph, unless such a review has been
conducted within ninety days prior to the issuance of such order.
(3) Decisions and reports for review. The court shall conduct a review
of] PROMPT EVIDENTIARY HEARING. UPON THE APPLICATION OF ANY PARTY TO AN
ACTION CONCERNING CUSTODY OF OR VISITATION WITH A CHILD, OR OF AN ATTOR-
NEY FOR THE CHILD, ASSERTING CREDIBLE ALLEGATIONS OF INCIDENTS OR
THREATS OF DOMESTIC VIOLENCE, CHILD ABUSE OR CHILD NEGLECT THAT, IF
TRUE, WOULD POSE A SERIOUS OR IMMINENT RISK TO THE SAFETY OF THE CHILD,
THE COURT SHALL HOLD A PROMPT EVIDENTIARY HEARING TO DETERMINE WHETHER
TEMPORARY LIMITATIONS OR CONDITIONS ON THE CUSTODY OR VISITATION RIGHTS
OF THE PARTY WHO IS ALLEGED TO HAVE COMMITTED OR THREATENED TO COMMIT
DOMESTIC VIOLENCE, CHILD ABUSE OR CHILD NEGLECT ARE NECESSARY TO AVOID
SERIOUS OR IMMINENT RISK TO THE CHILD'S SAFETY. EXCEPT FOR GOOD CAUSE
SHOWN, THE HEARING FOR SUCH DETERMINATION SHALL COMMENCE WITHIN TWENTY
COURT DAYS OF THE APPLICATION FOR SUCH HEARING. THE COURT SHALL REMIND
THE PARTIES OF THEIR RIGHT TO THE ASSISTANCE OF COUNSEL FOR THE PROMPT
EVIDENTIARY HEARING. DURING SUCH HEARING, ONLY MATERIAL AND RELEVANT
EVIDENCE SHALL BE ADMITTED. 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 APPLICATION UNDER THIS
SECTION MAY BE MADE AT ANY TIME DURING THE PENDENCY OF THE PROCEEDINGS.
AFTER A HEARING HAS BEEN HELD PURSUANT TO THIS PROVISION, A PARTY MAY
REQUEST A SUBSEQUENT PROMPT EVIDENTIARY HEARING DURING THE PENDENCY OF
LITIGATION FOR GOOD CAUSE SHOWN. DURING A PROMPT EVIDENTIARY HEARING,
THE COURT SHALL CONSIDER the following, IF AVAILABLE:
(i) related decisions in court proceedings initiated pursuant to arti-
cle ten of the family court act, and all warrants issued under the fami-
ly court act; [and]
(ii) ANY PARTY'S HISTORY OF DOMESTIC VIOLENCE, CHILD ABUSE OR CHILD
NEGLECT, CHILD SEXUAL ABUSE OR INCIDENTS INVOLVING HARM TO A CHILD, OR
SERIOUS OR IMMINENT RISK TO THE CHILD'S SAFETY;
(III) POLICE REPORTS, INCLUDING DOMESTIC VIOLENCE INCIDENT REPORTS OR
REPORTING OF INCIDENTS INVOLVING CHILD ABUSE, CHILD NEGLECT OR DOMESTIC
VIOLENCE BY A PARTY;
(IV) EVIDENCE AND FINDINGS OF CHILD ABUSE, CHILD NEGLECT, DOMESTIC
VIOLENCE, OR SERIOUS OR IMMINENT RISK TO THE CHILD'S SAFETY, INCLUDING
BUT NOT LIMITED TO:
(A) AN INCREASE IN FREQUENCY OR SEVERITY OF DOMESTIC VIOLENCE;
A. 3346--C 5
(B) USE OR THREATS TO USE A WEAPON OR DANGEROUS INSTRUMENT, OR UNLAW-
FUL POSSESSION OF FIREARMS;
(C) THREATS TO HARM OR KILL THE CHILD, THE OTHER PARTY, THE OTHER
PARTY'S CHILDREN, SELF OR OTHERS, OR COMPANION ANIMALS;
(D) SEXUAL ABUSE OR OTHER SEXUAL OFFENSES AGAINST THE CHILD OR THE
OTHER PARTY;
(E) UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE IMAGE, PURSU-
ANT TO SECTION 245.15 OF THE PENAL LAW;
(F) INCIDENTS INVOLVING OBSTRUCTION OF BREATHING OR STRANGULATION;
(G) ANY PARTY'S PATTERN OF ALCOHOL OR SUBSTANCE ABUSE THAT POSES SERI-
OUS OR IMMINENT RISK TO THE CHILD'S SAFETY;
(H) INCIDENTS OF VIOLENCE DURING PREGNANCY;
(I) INCIDENTS OF STALKING OR CYBER STALKING; AND
(J) COERCIVE CONTROL, AS DEFINED IN PARAGRAPH (B) OF SUBDIVISION ONE
OF SECTION TWO HUNDRED FORTY-E OF THIS ARTICLE; AND
(V) reports of the statewide computerized registry of orders of
protection established and maintained pursuant to section two hundred
twenty-one-a of the executive law, and reports of the sex offender
registry established and maintained pursuant to section one hundred
sixty-eight-b of the correction law.
[(4)] (2) CONDITIONS OF CUSTODY OR VISITATION. IF THE COURT DETER-
MINES THAT LIMITATIONS OR RESTRICTIONS OF A PARTY'S CUSTODY, VISITATION
OR CONTACT WITH THE CHILD ARE NECESSARY PURSUANT TO A REVIEW OF ANY
FINDINGS OR CREDIBLE ALLEGATIONS OF CHILD ABUSE, CHILD NEGLECT, DOMESTIC
VIOLENCE, OR SERIOUS OR IMMINENT RISK TO THE CHILD'S SAFETY, AND THE
DECISIONS AND REPORTS LISTED IN SUBPARAGRAPH ONE OF THIS PARAGRAPH, THE
COURT SHALL SET FORTH CONDITIONS OF CUSTODY OR VISITATION IN A TEMPORARY
ORDER OF CUSTODY OR VISITATION THAT PRIORITIZES THE AVOIDANCE OF SERIOUS
OR IMMINENT RISK TO THE CHILD'S SAFETY.
(I) THERE SHALL BE A REBUTTABLE PRESUMPTION THAT THE COURT SHALL NOT
AWARD, IN A TEMPORARY ORDER OF CUSTODY OR VISITATION, SOLE OR JOINT
CUSTODY OR VISITATION THAT IS UNSUPERVISED OR WITHOUT SUFFICIENT
PROTECTIONS OF THE CHILD'S SAFETY TO A PARTY WHO POSES A SERIOUS OR
IMMINENT RISK TO THE CHILD'S SAFETY.
(II) THE COURT SHALL STATE IN WRITING ANY FINDINGS OF CHILD ABUSE,
CHILD NEGLECT, DOMESTIC VIOLENCE, OR SERIOUS OR IMMINENT RISK TO THE
CHILD'S SAFETY, AND THE FACTORS, DECISIONS AND REPORTS CONSIDERED IN
MAKING SUCH FINDINGS AND THE REASONS FOR THE LIMITATIONS OR RESTRICTIONS
PLACED ON A PARTY'S CUSTODY, VISITATION OR CONTACT WITH SUCH CHILD.
WHEN A PROMPT EVIDENTIARY HEARING HAS BEEN HELD REGARDING SERIOUS OR
IMMINENT RISK TO THE CHILD'S SAFETY AND THE COURT HAS RENDERED SUCH
DECISION, THE PARTIES SHALL BE NOTIFIED OF THEIR RIGHT TO APPEAL.
(III) IN ADDITION TO THE RIGHT OF APPEAL REGARDING A FINAL ORDER, ANY
PARTY OR THE ATTORNEY FOR THE CHILD IN A PROCEEDING FOR A TEMPORARY
ORDER OF CUSTODY OR VISITATION PURSUANT TO THIS SUBPARAGRAPH IN WHICH A
PROMPT EVIDENTIARY HEARING HAS BEEN HELD REGARDING IMMINENT RISK TO THE
CHILD'S SAFETY PURSUANT TO THE PROVISIONS OF THIS PARAGRAPH SHALL HAVE A
RIGHT TO APPEAL THE GRANTING OR DENIAL OF THE TEMPORARY ORDER, OR THE
TERMS OF SUCH ORDER, TO THE APPROPRIATE APPELLATE DIVISION. AN APPEAL
UNDER THIS SUBPARAGRAPH SHALL BE GIVEN A PREFERENCE PURSUANT TO RULE
FIVE THOUSAND FIVE HUNDRED TWENTY-ONE OF THE CIVIL PRACTICE LAW AND
RULES.
A NOTICE OF APPEAL REGARDING THE GRANTING OR DENIAL OF THE TEMPORARY
ORDER, OR THE TERMS OF SUCH ORDER, BY THE SUPREME COURT UNDER THIS
SUBPARAGRAPH SHALL BE FILED IN ACCORDANCE WITH SUBDIVISION (A) OF
SECTION FIVE THOUSAND FIVE HUNDRED THIRTEEN OF THE CIVIL PRACTICE LAW
A. 3346--C 6
AND RULES. A NOTICE OF APPEAL REGARDING THE GRANTING OR DENIAL OF THE
TEMPORARY ORDER, OR THE TERMS OF SUCH ORDER, BY A FAMILY COURT UNDER
THIS SUBDIVISION SHALL BE FILED NO LATER THAN THIRTY DAYS AFTER THE
SERVICE BY A PARTY OR THE CHILD'S ATTORNEY UPON THE APPELLANT OF ANY
ORDER FROM WHICH THE APPEAL IS TAKEN OR RECEIPT OF THE ORDER IN COURT OR
THIRTY-FIVE DAYS FROM MAILING OR ELECTRONIC TRANSMISSION OF THE ORDER BY
THE COURT, WHICHEVER IS EARLIEST.
PENDING THE DETERMINATION OF SUCH APPEAL, THE APPELLATE DIVISION IN
WHICH THE APPEAL IS PENDING MAY STAY THE ORDER ON APPEAL PURSUANT TO
SUBDIVISION (C) OF SECTION FIVE THOUSAND FIVE HUNDRED NINETEEN OF THE
CIVIL PRACTICE LAW AND RULES WHERE SUCH COURT DETERMINES THAT THE EFFECT
OF THE ORDER ON APPEALS CREATES AN IMMINENT RISK TO THE SAFETY OF THE
CHILD AND THAT A STAY IS NECESSARY TO AVOID SUCH RISK. THE PARTY APPLY-
ING FOR THE STAY SHALL NOTIFY THE ATTORNEYS FOR ALL PARTIES AND THE
ATTORNEY FOR THE CHILD OF THE TIME AND PLACE OF SUCH APPLICATION. THE
PARTY APPLYING FOR THE STAY SHALL STATE IN THE APPLICATION THE ERRORS OF
FACT OR LAW ALLEGEDLY COMMITTED BY THE TRIAL COURT. A PARTY APPLYING TO
THE APPELLATE DIVISION FOR THE STAY SHALL MAKE EVERY REASONABLE EFFORT
TO OBTAIN A COMPLETE TRANSCRIPT OF THE PROCEEDING BEFORE THE TRIAL COURT
IN ACCORDANCE WITH THE RULES OF THE APPLICABLE APPELLATE DIVISION.
(IV) 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 ORDER AS IS OTHERWISE PROVIDED BY LAW.
(3) Notifying counsel and issuing orders. Upon consideration of deci-
sions pursuant to article ten of the family court act, and registry
reports and notifying counsel involved in the proceeding, or in the
event of a self-represented party, notifying such party of the results
thereof, including any court appointed attorney for children, the court
may issue a temporary, successive temporary or final order of custody or
visitation.
[(5)] (4) Temporary emergency order. Notwithstanding any other
provision of the law, upon emergency situations, including computer
malfunctions, to serve the best interest of the child, the court may
issue a temporary emergency order for custody or visitation in the event
that it is not possible to timely review decisions and reports on regis-
tries as required pursuant to subparagraph [three] ONE of this para-
graph.
[(6)] (5) After issuing a temporary emergency order. After issuing a
temporary emergency order of custody or visitation, the court shall
conduct reviews of the decisions and reports on registries as required
pursuant to subparagraph [three] ONE of this paragraph within twenty-
four hours of the issuance of such temporary emergency order. Should
such twenty-four hour period fall on a day when court is not in session,
then the required reviews shall take place the next day the court is in
session. Upon reviewing decisions and reports the court shall notify
associated counsel, self-represented parties and attorneys for children
pursuant to subparagraph [four] THREE of this paragraph and may issue
temporary or permanent custody or visitation orders.
[(7)] (6) Feasibility study. The commissioner of the office of chil-
dren and family services, in conjunction with the office of court admin-
istration, is hereby authorized and directed to examine, study, evaluate
and make recommendations concerning the feasibility of the utilization
of computers in courts which are connected to the statewide central
register of child abuse and maltreatment established and maintained
pursuant to section four hundred twenty-two of the social services law,
as a means of providing courts with information regarding parties
A. 3346--C 7
requesting orders of custody or visitation. Such commissioner shall make
a preliminary report to the governor and the legislature of findings,
conclusions and recommendations not later than January first, two thou-
sand nine, and a final report of findings, conclusions and recommenda-
tions not later than June first, two thousand nine, and shall submit
with the reports such legislative proposals as are deemed necessary to
implement the commissioner's recommendations.
§ 4. The domestic relations law is amended by adding a new section
240-e to read as follows:
§ 240-E. CUSTODY AND VISITATION; SAFETY OF THE CHILD. THE LEGISLATURE
RECOGNIZES THAT THE SAFETY OF CHILDREN IS OF PARAMOUNT IMPORTANCE AND IS
AN INTEGRAL ELEMENT OF THEIR BEST INTERESTS. TO THAT END, THE LEGISLA-
TURE FINDS THAT JUDICIAL DECISIONS REGARDING CUSTODY OF, AND ACCESS TO,
CHILDREN SHALL PROMOTE THE SAFETY OF CHILDREN AS A THRESHOLD ISSUE. 1.
FOR THE PURPOSES OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE
FOLLOWING MEANINGS:
(A) "VICTIM OF DOMESTIC VIOLENCE" SHALL HAVE THE SAME MEANING AS
DEFINED IN SECTION FOUR HUNDRED FIFTY-NINE-A OF THE SOCIAL SERVICES LAW.
(B) "COERCIVE CONTROL" MEANS A PATTERN OF BEHAVIOR THAT IN PURPOSE OR
EFFECT UNREASONABLY RESTRICTS A PARTY'S SAFETY OR AUTONOMY THROUGH
IMPLICIT OR EXPLICIT THREATS, OR INTIMIDATION, OR BY COMPELLING COMPLI-
ANCE. THIS CONDUCT INCLUDES, BUT IS NOT LIMITED TO:
(I) ISOLATING THE OTHER PARTY FROM FRIENDS, FAMILY OR OTHER SOURCES OF
SUPPORT;
(II) INTERFERING WITH A PARTY'S FREEDOM OF MOVEMENT;
(III) DEPRIVING THE OTHER PARTY OF BASIC NECESSITIES SUCH AS FOOD,
SLEEP, CLOTHING, HOUSING, MEDICATION OR MEDICAL CARE;
(IV) CONTROLLING, REGULATING, SURVEILLING OR MONITORING THE OTHER
PARTY'S MOVEMENTS, COMMUNICATIONS, DAILY BEHAVIOR, APPEARANCE, FINANCES,
ECONOMIC RESOURCES OR ACCESS TO SERVICES;
(V) COMPELLING THE OTHER PARTY BY FORCE, THREAT OF FORCE OR INTIM-
IDATION, INCLUDING BUT NOT LIMITED TO THREATS BASED ON ACTUAL OR
SUSPECTED IMMIGRATION STATUS, TO ENGAGE IN CONDUCT FROM WHICH THE OTHER
PARTY HAS A RIGHT TO ABSTAIN OR TO ABSTAIN FROM CONDUCT IN WHICH THE
OTHER PARTY HAS A RIGHT TO ENGAGE;
(VI) INTERFERING WITH THE OTHER PARTY'S EDUCATION OR EMPLOYMENT;
(VII) FORCING OR COMPELLING THE OTHER PARTY TO PERFORM SEX ACTS, OR
THREATS OF A SEXUAL NATURE, INCLUDING BUT NOT LIMITED TO THREATENED ACTS
OF SEXUAL CONDUCT, THREATS BASED ON A PERSON'S SEXUALITY OR THREATS TO
RELEASE INTIMATE IMAGES; OR
(VIII) CLEANING, ACCESSING, DISPLAYING, USING OR WEARING A FIREARM OR
OTHER DANGEROUS WEAPON IN AN INTIMIDATING OR THREATENING MANNER.
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 SAFETY OF SUCH CHILD WHEN MAKING SUCH DETER-
MINATIONS. ONLY COMPETENT, MATERIAL, AND RELEVANT EVIDENCE SHALL BE
ADMITTED, HOWEVER, THE HEARSAY STATEMENTS OF THE CHILD MAY BE ADMITTED
WHEN CORROBORATED BY OTHER EVIDENCE, PURSUANT TO ARTICLE TEN OF THE
FAMILY COURT ACT. PROMOTING THE SAFETY OF A CHILD SHALL INCLUDE PREVENT-
ING DIRECT PHYSICAL OR EMOTIONAL HARM TO SUCH CHILD. IN MAKING SUCH
FINAL DETERMINATIONS, THE COURT, IF POSSIBLE, SHOULD CONSIDER:
(A) WHICH PARTY IS MORE LIKELY TO PROTECT THE SAFETY OF THE CHILD, AND
WHETHER ANY PARTY POSES A SERIOUS OR IMMINENT RISK TO THE SAFETY OF THE
CHILD;
A. 3346--C 8
(B) WHETHER ANY PARTY TO THE PROCEEDING HAS COMMITTED, OR HAS THREAT-
ENED TO COMMIT, AN ACT OF CHILD ABUSE OR CHILD NEGLECT AGAINST THE
CHILD, OR HAS COMMITTED OR THREATENED TO COMMIT 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 MEMBER IS
DEFINED IN ARTICLE EIGHT OF THE FAMILY COURT ACT;
(C) ANY PARTY'S HISTORY OF DOMESTIC VIOLENCE, CHILD ABUSE OR CHILD
NEGLECT, CHILD SEXUAL ABUSE OR INCIDENTS INVOLVING HARM TO A CHILD OR
SERIOUS OR IMMINENT RISK TO THE CHILD'S SAFETY;
(D) POLICE REPORTS, INCLUDING DOMESTIC VIOLENCE INCIDENT REPORTS OR
REPORTING OF INCIDENTS INVOLVING CHILD ABUSE, CHILD NEGLECT OR DOMESTIC
VIOLENCE BY A PARTY;
(E) EVIDENCE AND FINDINGS OR ALLEGATIONS OF CHILD ABUSE, CHILD
NEGLECT, DOMESTIC VIOLENCE, OR SERIOUS OR IMMINENT RISK TO THE CHILD'S
SAFETY, INCLUDING BUT NOT LIMITED TO:
(I) AN INCREASE IN FREQUENCY OR SEVERITY OF DOMESTIC VIOLENCE;
(II) USE OR THREATS TO USE A WEAPON OR DANGEROUS INSTRUMENT, OR UNLAW-
FUL POSSESSION OF FIREARMS;
(III) THREATS TO HARM OR KILL THE CHILD, THE OTHER PARTY, THE OTHER
PARTY'S CHILDREN, SELF OR OTHERS, OR COMPANION ANIMALS;
(IV) SEXUAL ABUSE OR OTHER SEXUAL OFFENSES AGAINST THE CHILD OR OTHER
PARTY;
(V) UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE IMAGE, PURSU-
ANT TO SECTION 245.15 OF THE PENAL LAW;
(VI) INCIDENTS INVOLVING OBSTRUCTION OF BREATHING OR STRANGULATION;
(VII) ANY PARTY'S PATTERN OF ALCOHOL OR SUBSTANCE ABUSE THAT POSES
SERIOUS OR IMMINENT RISK TO THE CHILD'S SAFETY;
(VIII) INCIDENTS OF VIOLENCE DURING PREGNANCY;
(IX) INCIDENTS OF STALKING OR CYBER STALKING; AND
(X) COERCIVE CONTROL, AS DEFINED IN PARAGRAPH (B) OF SUBDIVISION ONE
OF THIS SECTION;
(F) WHETHER ANY PARTY HAS BEEN FOUND TO HAVE COMMITTED AN ACT PURSUANT
TO SECTION EIGHT HUNDRED TWELVE OF THE FAMILY COURT ACT BETWEEN SPOUSES
OR FORMER SPOUSES, OR BETWEEN PARENT AND CHILD OR BETWEEN MEMBERS OF THE
SAME FAMILY OR HOUSEHOLD;
(G) WHETHER ANY PARTY HAS USED OR THREATENED TO USE A DANGEROUS
INSTRUMENT TO HARM THE OTHER PARTY, CHILD, OR A THIRD PARTY, INCLUDING A
FIREARM, EXCEPT IN INCIDENTS INVOLVING SELF-DEFENSE, OR HAS UNLAWFULLY
POSSESSED A WEAPON OR FIREARM, OR HAS BEEN CONVICTED OF CRIMINAL
POSSESSION OF A WEAPON OR CRIMINAL USE OF A FIREARM PURSUANT TO ARTICLE
TWO HUNDRED SIXTY-FIVE OF THE PENAL LAW, OR IS OR HAS BEEN SUBJECT TO AN
EXTREME RISK PROTECTION ORDER, PURSUANT TO ARTICLE SIXTY-THREE-A OF THE
CIVIL PRACTICE LAW AND RULES; AND
(H) WHICH PARTY HAS BEEN THE PRIMARY CARETAKER OF THE CHILD, PRIMARILY
ATTENDING TO THE PHYSICAL, EMOTIONAL, DEVELOPMENTAL, EDUCATIONAL, AND
ANY SPECIAL NEEDS OF THE CHILD.
3. THERE SHALL BE A REBUTTABLE PRESUMPTION THAT CUSTODY OR VISITATION
THAT IS UNSUPERVISED OR WITHOUT SUFFICIENT PROTECTION OF THE CHILD'S
SAFETY SHALL NOT BE AWARDED TO A PARTY WHO POSES A SERIOUS OR IMMINENT
RISK TO THE CHILD'S SAFETY.
4. (A) IN ANY PROCEEDING FOR CUSTODY OR VISITATION WHERE A PARTY
ASSERTS CREDIBLE ALLEGATIONS OF INCIDENTS OR THREATS OF DOMESTIC
VIOLENCE, CHILD ABUSE OR CHILD NEGLECT, THE COURT SHALL NOT FIND THAT
THE PARTY WHO HAS MADE SUCH ALLEGATIONS HAS ALIENATED THE CHILD AGAINST
THE OTHER PARTY OR FAILED TO SUPPORT THE CHILD'S RELATIONSHIP WITH THE
OTHER PARTY.
A. 3346--C 9
(B) THE COURT SHALL NOT PRESUME THAT A CHILD'S RELUCTANCE TO INTERACT
WITH A PARTY WAS CAUSED BY THE OTHER PARTY, NOR SHALL A PARTY BE GIVEN
CUSTODY FOR THE PURPOSE OF IMPROVING A RELATIONSHIP BETWEEN THE CHILD
AND SUCH PARTY OR IN AN ATTEMPT TO ADDRESS THE CHILD'S RELUCTANCE TO
INTERACT WITH SUCH PARTY.
(C) IN CASES INVOLVING DOMESTIC VIOLENCE, COERCIVE CONTROL, CHILD
ABUSE OR CHILD NEGLECT, THE COURT SHALL NOT ORDER THE CHILD TO A
REUNIFICATION CAMP WITH A PARTY THAT POSES A SERIOUS OR IMMINENT RISK TO
THE CHILD'S SAFETY.
(D) NOTHING IN THIS SECTION SHALL BE CONSTRUED TO CREATE AN EXCEPTION
TO SECTION SEVEN HUNDRED FIFTY-THREE OF THE JUDICIARY LAW, OR ANY OTHER
ENFORCEMENT PROVISION, SUCH THAT A PARTY MAY SEEK TO ENFORCE ANY PROPER
RULING OF THE COURT, UNLESS STAYED, CONCERNING ACCESS TO THE CHILD OR
CONDITIONS OF ACCESS TO THE CHILD.
5. IN CASES INVOLVING DOMESTIC VIOLENCE, COERCIVE CONTROL, CHILD ABUSE
OR CHILD NEGLECT, THERE SHALL BE A REBUTTABLE PRESUMPTION THAT NO ORDER
OF JOINT CUSTODY SHALL BE MADE. THE COURT SHALL NOT SUGGEST THAT IN
ORDER TO RETAIN CUSTODY, A PARTY MUST AGREE TO JOINT CUSTODY. THE COURT
SHALL NOT USE A PARTY'S REFUSAL TO CONSENT TO JOINT CUSTODY AGAINST SUCH
PARTY WHEN MAKING ITS FINAL CUSTODY OR VISITATION DETERMINATION.
6. (A) THE CHIEF ADMINISTRATOR OF THE COURTS SHALL PROMULGATE AND
ENFORCE RULES MANDATING COMPREHENSIVE TRAINING ON DOMESTIC VIOLENCE,
CHILD ABUSE AND CHILD NEGLECT 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 AND SUPPLEMENTAL
TRAINING EVERY TWO YEARS THEREAFTER TO REMAIN ELIGIBLE TO PRESIDE OVER
SUCH PROCEEDINGS. SUCH TRAINING SHALL ADDRESS CURRENT KNOWLEDGE AND LAW
RELATING TO DOMESTIC VIOLENCE, CHILD ABUSE AND CHILD NEGLECT, WITH THE
GOAL OF MAKING APPROPRIATE CUSTODY AND VISITATION DECISIONS THAT PRIOR-
ITIZE CHILDREN'S SAFETY AND ARE CULTURALLY SENSITIVE AND APPROPRIATE FOR
DIVERSE COMMUNITIES. THE OFFICE OF COURT ADMINISTRATION, IN CONSULTATION
WITH THE OFFICE FOR THE PREVENTION OF DOMESTIC VIOLENCE, SHALL DEVELOP
AND CONDUCT SUCH TRAINING, WHICH SHALL BE REVIEWED AND UPDATED AT LEAST
ONCE EVERY TWO YEARS. SUCH TRAINING SHALL INCLUDE, BUT NOT BE LIMITED
TO:
(1) RELEVANT STATUTES AND CASE LAW PERTAINING TO DOMESTIC VIOLENCE AND
CHILD ABUSE;
(2) THE POWER AND CONTROL DYNAMICS OF DOMESTIC VIOLENCE AND CHILD
ABUSE, INCLUDING BUT NOT LIMITED TO, STALKING, AND EMOTIONAL, FINANCIAL,
PHYSICAL, TECHNOLOGICAL, CYBER, SEXUAL, AND LITIGATION ABUSE, AND THE
TACTICS COMMONLY USED TO INDUCE FEAR IN OR TO DOMINATE OR CONTROL A
PARTNER OR CHILD, INCLUDING COERCIVE CONTROL;
(3) THE BARRIERS AND FEARS ASSOCIATED WITH REPORTING DOMESTIC VIOLENCE
AND CHILD ABUSE AND NEGLECT, AND THE INCREASED RISK OF ESCALATING
VIOLENCE DURING CHILD CUSTODY AND VISITATION PROCEEDINGS;
(4) THE SCIENCE AND EXPERIENCE OF TRAUMA AND OTHER PSYCHOLOGICAL
IMPACTS OF ABUSE IN ADULTS AND CHILDREN, INCLUDING THE IMPORTANCE OF
JUDGES MAINTAINING TRAUMA-INFORMED COURTS, AND THE DANGERS AND INADMIS-
SIBILITY OF NON-SCIENTIFIC THEORIES, SUCH AS PARENTAL ALIENATION,
PARENTAL ALIENATION SYNDROME, PARENTAL GATEKEEPING, OR ANY OTHER THEORY
THAT IS NOT SUPPORTED BY SCIENTIFIC RESEARCH AND NOT GENERALLY ACCEPTED
BY THE SCIENTIFIC COMMUNITY;
(5) THE DISTINCTION BETWEEN INAPPROPRIATE INTERFERENCE WITH THE CHILD-
PARENT RELATIONSHIP VERSUS PROTECTIVE PARENTING IN THE CONTEXT OF DOMES-
TIC VIOLENCE OR CHILD ABUSE AND NEGLECT;
A. 3346--C 10
(6) HOW TO CONSIDER SERIOUS AND IMMINENT RISK TO A CHILD OR SUCH
CHILD'S PARENT, PURSUANT TO SUBDIVISION ONE OF SECTION TWO HUNDRED FORTY
OF THIS ARTICLE FOR THE PURPOSE OF ISSUING A TEMPORARY ORDER OF CUSTODY
OR VISITATION;
(7) BEST PRACTICES IN ASSESSING ALLEGATIONS OF DOMESTIC VIOLENCE AND
CHILD ABUSE AND NEGLECT; IN ASSESSING THE VALUE AND LIMITATIONS OF
REPORTS OF SUSPECTED CHILD ABUSE OR NEGLECT CONDUCTED BY LAW ENFORCEMENT
OR DEPARTMENTS OF SOCIAL SERVICES; AND
(8) ASSESSING THE QUALIFICATIONS AND REPORTS OF CHILD CUSTODY EVALU-
ATORS AND MENTAL HEALTH TREATMENT PROVIDERS.
§ 5. Section 70 of the domestic relations law, as amended by chapter
457 of the laws of 1988, is amended to read as follows:
§ 70. Habeas corpus for child detained by parent. (a) THE LEGISLATURE
RECOGNIZES THAT THE SAFETY OF CHILDREN IS OF PARAMOUNT IMPORTANCE AND IS
AN INTEGRAL ELEMENT OF THEIR BEST INTERESTS. TO THAT END, THE LEGISLA-
TURE FINDS THAT JUDICIAL DECISIONS REGARDING CUSTODY OF, AND ACCESS TO,
CHILDREN SHALL PROMOTE THE SAFETY OF CHILDREN AS A THRESHOLD ISSUE.
(B)(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.
[(b)] WHERE THE COURT ISSUES ANY INITIAL OR SUCCESSIVE TEMPORARY ORDER
OF CUSTODY OR VISITATION OR PERMANENT ORDER OF CUSTODY OR VISITATION,
THE COURT SHALL CONDUCT A REVIEW OF ANY FINDINGS OR CREDIBLE ALLEGATIONS
OF CHILD ABUSE, CHILD NEGLECT, DOMESTIC VIOLENCE, OR SERIOUS OR IMMINENT
RISK TO THE CHILD'S SAFETY, AND THE DECISIONS AND REPORTS LISTED IN
SUBPARAGRAPH ONE OF PARAGRAPH (A-1) OF SUBDIVISION ONE OF SECTION TWO
HUNDRED FORTY OF THIS CHAPTER, UNLESS SUCH A REVIEW HAS BEEN CONDUCTED
WITHIN NINETY DAYS PRIOR TO THE ISSUANCE OF SUCH ORDER.
(II) WHEN ISSUING ANY TEMPORARY ORDER OF CUSTODY OR VISITATION, THE
COURT SHALL STATE IN WRITING ANY FINDINGS OF CHILD ABUSE, CHILD NEGLECT,
DOMESTIC VIOLENCE, OR SERIOUS OR IMMINENT RISK TO THE CHILD'S SAFETY,
AND THE FACTORS, DECISIONS AND REPORTS CONSIDERED IN MAKING SUCH FIND-
INGS, AND THE REASONS FOR ANY LIMITATIONS OR RESTRICTIONS PLACED ON A
PARTY'S CUSTODY, VISITATION OR CONTACT WITH SUCH CHILD. ANY PARTY OR THE
ATTORNEY FOR THE CHILD IN A PROCEEDING FOR A TEMPORARY ORDER IN WHICH A
PROMPT EVIDENTIARY HEARING HAS BEEN HELD REGARDING IMMINENT RISK TO THE
CHILD'S SAFETY PURSUANT TO THIS CHAPTER SHALL HAVE A RIGHT TO APPEAL TO
THE APPROPRIATE APPELLATE DIVISION, PURSUANT TO ARTICLE ELEVEN OF THE
FAMILY COURT ACT.
(III) 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 SAFETY OF SUCH CHILD WHEN MAKING SUCH
DETERMINATIONS. ONLY COMPETENT, MATERIAL AND RELEVANT EVIDENCE SHALL BE
ADMITTED, PURSUANT TO ARTICLE TEN OF THE FAMILY COURT ACT, HOWEVER THE
HEARSAY STATEMENTS OF THE CHILD MAY BE ADMITTED WHEN CORROBORATED BY
OTHER EVIDENCE. PROMOTING THE SAFETY OF A CHILD SHALL INCLUDE PREVENTING
DIRECT PHYSICAL OR EMOTIONAL HARM TO SUCH CHILD AND SHALL BE ASSESSED BY
A. 3346--C 11
CONSIDERING ANY FINDINGS OR CREDIBLE ALLEGATIONS OF CHILD ABUSE, CHILD
NEGLECT, DOMESTIC VIOLENCE, OR SERIOUS OR IMMINENT RISK TO THE CHILD'S
SAFETY, AND DECISIONS AND REPORTS IDENTIFIED IN SUBPARAGRAPH ONE OF
PARAGRAPH (A-1) OF SUBDIVISION ONE OF SECTION TWO HUNDRED FORTY OF THIS
CHAPTER.
(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 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.
(V) IN CASES INVOLVING DOMESTIC VIOLENCE, COERCIVE CONTROL, CHILD
ABUSE OR CHILD NEGLECT, THERE SHALL BE A REBUTTABLE PRESUMPTION THAT NO
ORDER OF JOINT CUSTODY SHALL BE MADE. THE COURT SHALL NOT SUGGEST THAT
IN ORDER TO RETAIN CUSTODY, A PARTY MUST AGREE TO JOINT CUSTODY. THE
COURT SHALL NOT USE A PARTY'S REFUSAL TO CONSENT TO JOINT CUSTODY
AGAINST SUCH PARTY WHEN MAKING ITS FINAL CUSTODY OR VISITATION DETERMI-
NATION, AS DESCRIBED IN SUBDIVISION FIVE OF SECTION TWO HUNDRED FORTY-E
OF THIS CHAPTER.
(VI) 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 PARAGRAPH (A) OF
SUBDIVISION SIX OF SECTION TWO HUNDRED FORTY-E OF THIS CHAPTER. ONCE
INITIAL TRAINING REQUIREMENTS HAVE BEEN MET, JUDGES, REFEREES AND OTHER
HEARING OFFICERS SHALL COMPLETE ADDITIONAL TRAINING EVERY TWO YEARS
THEREAFTER TO REMAIN ELIGIBLE TO PRESIDE OVER SUCH PROCEEDINGS AS
DESCRIBED PURSUANT TO PARAGRAPH (A) OF SUBDIVISION SIX OF SECTION TWO
HUNDRED FORTY-E OF THIS CHAPTER.
(C) Any order under this section which applies to rights of visitation
with a child remanded or placed in the care of a person, official, agen-
cy or institution pursuant to article ten of the family court act or
pursuant to an instrument approved under section three hundred fifty-
eight-a of the social services law, shall be enforceable pursuant to the
provisions of part eight of article ten of such act, sections three
hundred fifty-eight-a and three hundred eighty-four-a of the social
services law and other applicable provisions of law against any person
or official having care and custody, or temporary care and custody, of
such child.
§ 6. Subdivision (b) of section 651 of the family court act, as
amended by chapter 657 of the laws of 2003, is amended to read as
follows:
(b) (I) When initiated in the family court, the family court has
jurisdiction to determine, in accordance with subdivision one of section
two hundred forty of the domestic relations law and with the same powers
possessed by the supreme court in addition to its own powers, habeas
corpus proceedings and proceedings brought by petition and order to show
cause, for the determination of the custody or visitation of minors,
including applications by a grandparent or grandparents for visitation
or custody rights pursuant to section seventy-two or two hundred forty
of the domestic relations law.
(II) THE FAMILY COURT SHALL, IN COLLABORATION WITH THE OFFICE FOR THE
PREVENTION OF DOMESTIC VIOLENCE, UPDATE ITS PETITION USED BY PARTIES TO
INITIATE CHILD CUSTODY AND VISITATION PROCEEDINGS IN A MANNER TO PERMIT
PETITIONERS TO IDENTIFY FINDINGS OR ALLEGATIONS OF CHILD ABUSE, CHILD
A. 3346--C 12
NEGLECT, DOMESTIC VIOLENCE, OR SERIOUS OR IMMINENT RISK TO A CHILD'S
SAFETY.
§ 7. Subdivision (e) of section 651 of the family court act, as
amended by chapter 295 of the laws of 2009, is amended to read as
follows:
(e) THE LEGISLATURE RECOGNIZES THAT THE SAFETY OF CHILDREN IS OF PARA-
MOUNT IMPORTANCE AND IS AN INTEGRAL ELEMENT OF THEIR BEST INTERESTS. TO
THAT END, THE LEGISLATURE FINDS THAT JUDICIAL DECISIONS REGARDING CUSTO-
DY OF, AND ACCESS TO, CHILDREN SHALL PROMOTE THE SAFETY OF CHILDREN AS A
THRESHOLD ISSUE.
1. [Permanent and initial temporary orders of custody or visitation.
Prior to the issuance of any permanent or initial temporary order of
custody or visitation, the court shall conduct a review of the decisions
and reports listed in paragraph three of this subdivision.] PROMPT
EVIDENTIARY HEARING. UPON THE APPLICATION OF A PARTY TO AN ACTION
CONCERNING CUSTODY OF OR VISITATION WITH A CHILD, OR OF AN ATTORNEY FOR
THE CHILD, ASSERTING CREDIBLE ALLEGATIONS OF INCIDENTS OR THREATS OF
DOMESTIC VIOLENCE, CHILD ABUSE OR CHILD NEGLECT THAT, IF TRUE, WOULD
POSE A SERIOUS OR IMMINENT RISK TO THE SAFETY OF THE CHILD, THE COURT
SHALL HOLD A PROMPT EVIDENTIARY HEARING TO DETERMINE WHETHER TEMPORARY
LIMITATIONS OR CONDITIONS ON THE CUSTODY OR VISITATION RIGHTS OF THE
PARTY WHO IS ALLEGED TO HAVE COMMITTED OR THREATENED TO COMMIT DOMESTIC
VIOLENCE, CHILD ABUSE OR CHILD NEGLECT ARE NECESSARY TO AVOID SERIOUS OR
IMMINENT RISK TO THE CHILD'S SAFETY, PURSUANT TO PARAGRAPH (A-1) OF
SUBDIVISION ONE OF SECTION TWO HUNDRED FORTY AND SECTION TWO HUNDRED
FORTY-E OF THE DOMESTIC RELATIONS LAW. WHEN THE PARTIES FIRST APPEAR IN
COURT, THE COURT SHALL ADVISE THE PARTIES BEFORE PROCEEDING OF THE RIGHT
TO BE REPRESENTED BY COUNSEL OF THEIR OWN CHOOSING, OF THE RIGHT TO HAVE
AN ADJOURNMENT OF NO LONGER THAN FOURTEEN COURT DAYS TO CONFER WITH
COUNSEL, AND THE RIGHT TO OBTAIN COUNSEL FEES AND EXPENSES, PURSUANT TO
SECTION TWO HUNDRED THIRTY-SEVEN OF THE DOMESTIC RELATIONS LAW. THE
COURT SHALL ASSIGN COUNSEL TO THE ELIGIBLE PARTIES AND CHILDREN, PURSU-
ANT TO ARTICLE TWO OF THIS CHAPTER AND SUBDIVISIONS SEVEN AND EIGHT OF
SECTION THIRTY-FIVE OF THE JUDICIARY LAW.
2. [Successive temporary orders of custody or visitation. Prior to the
issuance of any successive temporary order of custody or visitation, the
court shall conduct a review of the decisions and reports listed in
paragraph three of this subdivision, unless such a review has been
conducted within ninety days prior to the issuance of such order.
3. Decisions] FINDINGS AND ALLEGATIONS OF CHILD ABUSE, CHILD NEGLECT,
DOMESTIC VIOLENCE, AND SERIOUS OR IMMINENT RISK TO A CHILD'S SAFETY, AND
THE DECISIONS and reports for review. The court shall conduct a review
of the following, IF AVAILABLE:
(i) related decisions in court proceedings initiated pursuant to arti-
cle ten of this act, and all warrants issued under this act; [and]
(ii) WHETHER ANY PARTY TO THE ACTION ALLEGES THAT THE OTHER PARTY TO
THE PROCEEDING HAS COMMITTED, OR HAS THREATENED TO COMMIT, AN ACT OF
CHILD ABUSE OR CHILD NEGLECT AGAINST THE CHILD, OR HAS COMMITTED, OR HAS
THREATENED 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 THIS
CHAPTER;
(III) ANY PARTY'S HISTORY OF DOMESTIC VIOLENCE, CHILD ABUSE OR CHILD
NEGLECT, CHILD SEXUAL ABUSE OR INCIDENTS INVOLVING HARM TO A CHILD, OR
SERIOUS OR IMMINENT RISK TO A CHILD'S SAFETY;
A. 3346--C 13
(IV) POLICE REPORTS, INCLUDING DOMESTIC VIOLENCE INCIDENT REPORTS, OR
REPORTING OF INCIDENTS INVOLVING CHILD ABUSE, CHILD NEGLECT OR DOMESTIC
VIOLENCE BY A PARTY;
(V) EVIDENCE, FINDINGS AND CREDIBLE ALLEGATIONS OF CHILD ABUSE, CHILD
NEGLECT, DOMESTIC VIOLENCE, OR SERIOUS OR IMMINENT RISK TO A CHILD'S
SAFETY, INCLUDING BUT NOT LIMITED TO:
(A) AN INCREASE IN FREQUENCY OR SEVERITY OF DOMESTIC VIOLENCE;
(B) USE OR THREATS TO USE A WEAPON OR DANGEROUS INSTRUMENT, OR UNLAW-
FUL POSSESSION OF FIREARMS;
(C) THREATS TO HARM OR KILL THE CHILD, THE OTHER PARTY, THE OTHER
PARTY'S CHILDREN, SELF OR OTHERS, OR COMPANION ANIMALS;
(D) SEXUAL ABUSE OR OTHER SEXUAL OFFENSES AGAINST THE CHILD OR OTHER
PARTY;
(E) UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE IMAGE, PURSU-
ANT TO SECTION 245.15 OF THE PENAL LAW;
(F) INCIDENTS INVOLVING OBSTRUCTION OF BREATHING OR STRANGULATION;
(G) ANY PARTY'S PATTERN OF ALCOHOL OR SUBSTANCE ABUSE THAT POSES SERI-
OUS OR IMMINENT RISK TO THE CHILD'S SAFETY;
(H) INCIDENTS OF VIOLENCE DURING PREGNANCY;
(I) INCIDENTS OF STALKING OR CYBER STALKING; AND
(J) COERCIVE CONTROL, AS DEFINED IN PARAGRAPH (B) OF SUBDIVISION ONE
OF SECTION TWO HUNDRED FORTY-E OF THE DOMESTIC RELATIONS LAW; AND
(VI) reports of the statewide computerized registry of orders of
protection established and maintained pursuant to section two hundred
twenty-one-a of the executive law, and reports of the sex offender
registry established and maintained pursuant to section one hundred
sixty-eight-b of the correction law.
3. APPEAL. IN ADDITION TO THE RIGHT OF APPEAL REGARDING A FINAL ORDER,
ANY PARTY OR THE ATTORNEY FOR THE CHILD IN A PROCEEDING FOR A TEMPORARY
ORDER OF CUSTODY OR VISITATION PURSUANT TO THIS PARAGRAPH IN WHICH A
PROMPT EVIDENTIARY HEARING HAS BEEN HELD REGARDING IMMINENT RISK TO THE
CHILD'S SAFETY BY REASON OF A FAMILY OFFENSE OR CHILD MALTREATMENT IN AN
APPLICATION FOR A PERMANENT OR TEMPORARY ORDER OF CUSTODY OR VISITATION
SHALL HAVE A RIGHT TO APPEAL THE GRANTING OR DENIAL OF THE TEMPORARY
ORDER, OR THE TERMS OF SUCH ORDER, TO THE APPROPRIATE APPELLATE DIVI-
SION. AN APPEAL UNDER THIS SUBPARAGRAPH SHALL BE GIVEN A PREFERENCE
PURSUANT TO RULE FIVE THOUSAND FIVE HUNDRED TWENTY-ONE OF THE CIVIL
PRACTICE LAW AND RULES.
A NOTICE OF APPEAL REGARDING THE GRANTING OR DENIAL OF THE TEMPORARY
ORDER, OR THE TERMS OF SUCH ORDER, BY THE SUPREME COURT UNDER THIS
SUBDIVISION SHALL BE FILED IN ACCORDANCE WITH SUBDIVISION (A) OF SECTION
FIVE THOUSAND FIVE HUNDRED THIRTEEN OF THE CIVIL PRACTICE LAW AND RULES.
A NOTICE OF APPEAL REGARDING THE GRANTING OR DENIAL OF THE TEMPORARY
ORDER, OR THE TERMS OF SUCH ORDER, BY A FAMILY COURT UNDER THIS SUBDIVI-
SION SHALL BE FILED NO LATER THAN THIRTY DAYS AFTER THE SERVICE BY A
PARTY OR THE CHILD'S ATTORNEY UPON THE APPELLANT OF ANY ORDER FROM WHICH
THE APPEAL IS TAKEN OR RECEIPT OF THE ORDER IN COURT OR THIRTY-FIVE DAYS
FROM MAILING OR ELECTRONIC TRANSMISSION OF THE ORDER BY THE COURT,
WHICHEVER IS EARLIEST.
PENDING THE DETERMINATION OF SUCH APPEAL, THE APPELLATE DIVISION IN
WHICH THE APPEAL IS PENDING MAY STAY THE ORDER ON APPEAL PURSUANT TO
SUBDIVISION (C) OF SECTION FIVE THOUSAND FIVE HUNDRED NINETEEN OF THE
CIVIL PRACTICE LAW AND RULES WHERE SUCH COURT DETERMINES THAT THE EFFECT
OF THE ORDER ON APPEALS CREATES AN IMMINENT RISK TO THE SAFETY OF THE
CHILD AND THAT A STAY IS NECESSARY TO AVOID SUCH RISK. THE PARTY APPLY-
ING FOR THE STAY SHALL NOTIFY THE ATTORNEYS FOR ALL PARTIES AND THE
A. 3346--C 14
ATTORNEY FOR THE CHILD OF THE TIME AND PLACE OF SUCH APPLICATION. THE
PARTY APPLYING FOR THE STAY SHALL STATE IN THE APPLICATION THE ERRORS OF
FACT OR LAW ALLEGEDLY COMMITTED BY THE TRIAL COURT. A PARTY APPLYING TO
THE APPELLATE DIVISION FOR THE STAY SHALL MAKE EVERY REASONABLE EFFORT
TO OBTAIN A COMPLETE TRANSCRIPT OF THE PROCEEDING BEFORE THE TRIAL COURT
IN ACCORDANCE WITH THE RULES OF THE APPLICABLE APPELLATE DIVISION.
4. Notifying counsel and issuing orders. Upon consideration of deci-
sions pursuant to article ten of this act, and registry reports and
notifying counsel involved in the proceeding, or in the event of a self-
represented party, notifying such party of the results thereof, includ-
ing any court appointed attorney for children, the court may issue a
temporary, successive temporary or final order of custody or visitation.
5. Temporary emergency order. Notwithstanding any other provision of
the law, upon emergency situations, including computer malfunctions, to
serve the best interest of the child, the court may issue a temporary
emergency order for custody or visitation in the event that it is not
possible to timely review decisions and reports on registries as
required pursuant to paragraph [three] TWO of this subdivision.
6. After issuing a temporary emergency order. After issuing a tempo-
rary emergency order of custody or visitation, the court shall conduct
reviews of the decisions and reports on registries as required pursuant
to paragraph [three] TWO of this subdivision within twenty-four hours of
the issuance of such temporary emergency order. Should such twenty-four
hour period fall on a day when court is not in session, then the
required reviews shall take place the next day the court is in session.
Upon reviewing decisions and reports the court shall notify associated
counsel, self-represented parties and attorneys for children pursuant to
paragraph four of this subdivision and may issue temporary or permanent
custody or visitation orders.
7. Feasibility study. The commissioner of the office of children and
family services, in conjunction with the office of court administration,
is hereby authorized and directed to examine, study, evaluate and make
recommendations concerning the feasibility of the utilization of comput-
ers in family courts which are connected to the statewide central regis-
ter of child abuse and maltreatment established and maintained pursuant
to section four hundred twenty-two of the social services law, as a
means of providing family courts with information regarding parties
requesting orders of custody or visitation. Such commissioner shall make
a preliminary report to the governor and the legislature of findings,
conclusions and recommendations not later than January thirty-first, two
thousand nine, and a final report of findings, conclusions and recommen-
dations not later than June first, two thousand nine, and shall submit
with the reports such legislative proposals as are deemed necessary to
implement the commissioner's recommendations.
§ 8. 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 MAY BE TAKEN AS OF RIGHT TO THE
APPROPRIATE APPELLATE DIVISION OF THE SUPREME COURT from an intermediate
or final order in a case involving abuse or neglect [may be taken as of
right to the appellate division of the supreme court] UNDER ARTICLE TEN
OF THIS ACT OR FROM AN ORDER OF THE COURT AFTER A PROMPT EVIDENTIARY
HEARING UNDER SECTION SIX HUNDRED FIFTY-ONE OF THIS ACT OR SECTION
SEVENTY OR TWO HUNDRED FORTY OF THE DOMESTIC RELATIONS LAW DETERMINING
A. 3346--C 15
AN ALLEGATION OF IMMINENT RISK TO THE CHILD'S SAFETY AND GRANTING OR
DENYING A TEMPORARY EMERGENCY ORDER OF CUSTODY OR VISITATION. (I) Pend-
ing the determination of such appeal, such order shall be stayed where
the effect of [such] THE order ON APPEAL 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] IN A CASE ALLEGING ABUSE OR NEGLECT PURSUANT
TO ARTICLE TEN OF THIS ACT. IN AN APPEAL FROM AN ORDER IN A CUSTODY OR
VISITATION PROCEEDING UNDER ARTICLE SIX OF THIS ACT OR SECTION SEVENTY
OR TWO HUNDRED FORTY OF THE DOMESTIC RELATIONS LAW THAT WAS ISSUED UPON
A PROMPT EVIDENTIARY HEARING REGARDING AN ALLEGATION OF IMMINENT RISK TO
A CHILD'S SAFETY, THE COURT BEFORE WHICH THE APPEAL IS TAKEN MAY STAY
THE ORDER ON APPEAL WHERE THE ORDER WOULD CAUSE AN IMMINENT RISK TO THE
CHILD'S SAFETY DURING THE PENDENCY OF THE APPEAL AND WHERE SUCH COURT
FINDS THAT A STAY IS NECESSARY TO AVOID SUCH IMMINENT RISK. (II) 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 AND APPEALS FROM ORDERS ISSUED UNDER PART THREE OF ARTICLE
SIX OF THIS ACT OR SECTION SEVENTY OR TWO HUNDRED FORTY OF THE DOMESTIC
RELATIONS LAW UPON A PROMPT EVIDENTIARY HEARING REGARDING AN ALLEGATION
OF IMMINENT RISK TO THE CHILD'S SAFETY.
§ 9. Subdivision (d) of section 1114 of the family court act, as
amended by chapter 41 of the laws of 2010, is amended to read as
follows:
(d) Any party to a child protective proceeding, or the attorney for
the child, may apply to a justice of the appellate division for a stay
of an order issued pursuant to part two of article ten of this chapter
returning a child to the custody of a respondent. SUCH AN APPLICATION
MAY ALSO BE MADE IN ACCORDANCE WITH SECTION ONE THOUSAND ONE HUNDRED
TWELVE OF THIS ACT OR SUBDIVISION (C) OF SECTION FIVE THOUSAND FIVE
HUNDRED NINETEEN OF THE CIVIL PRACTICE LAW AND RULES TO STAY A COURT
ORDER OF CUSTODY OR VISITATION PURSUANT TO THIS ACT OR THE DOMESTIC
RELATIONS LAW WHERE THE ORDER ON APPEAL WOULD CAUSE AN IMMINENT RISK TO
THE CHILD'S SAFETY AND WHERE THE COURT BEFORE WHICH SUCH APPEAL IS PEND-
ING FINDS THAT SUCH A STAY IS NECESSARY TO AVOID SUCH IMMINENT RISK. The
party applying for the stay shall notify the attorneys for all parties
and the attorney for the child of the time and place of such applica-
tion. If requested by any party present, oral argument shall be had on
the application, except for good cause stated upon the record. The party
applying for the stay shall state in the application the errors of fact
or law allegedly committed by the [family] TRIAL court. A party applying
to the [court] APPELLATE DIVISION for the granting or continuation of
such stay shall make every reasonable effort to obtain a complete tran-
script of the proceeding before the [family] TRIAL court IN ACCORDANCE
WITH THE RULES OF THE APPLICABLE APPELLATE DIVISION.
§ 10. Subdivision (a) of section 249 of the family court act, as
amended by chapter 3 of the laws of 2012, is amended to read as follows:
(a) In a proceeding under article three, seven, ten, ten-A or ten-C of
this act or where a revocation of an adoption consent is opposed under
section one hundred fifteen-b of the domestic relations law or in any
proceeding under section three hundred fifty-eight-a, three hundred
eighty-three-c, three hundred eighty-four or three hundred eighty-four-b
A. 3346--C 16
of the social services law or when a minor is sought to be placed in
protective custody under section one hundred fifty-eight of this act or
in any proceeding where a minor is detained under or governed by the
interstate compact for juveniles established pursuant to section five
hundred one-e of the executive law, the family court shall appoint an
attorney to represent a minor who is the subject of the proceeding or
who is sought to be placed in protective custody, if independent legal
representation is not available to such minor. In any proceeding to
extend or continue the placement of a juvenile delinquent or person in
need of supervision pursuant to section seven hundred fifty-six or 353.3
of this act or any proceeding to extend or continue a commitment to the
custody of the commissioner of mental health or the commissioner of
people with developmental disabilities pursuant to section 322.2 of this
act, the court shall not permit the respondent to waive the right to be
represented by counsel chosen by the respondent, respondent's parent, or
other person legally responsible for the respondent's care, or by
assigned counsel. In any proceeding under article ten-B of this act, the
family court shall appoint an attorney to represent a youth, under the
age of twenty-one, who is the subject of the proceeding, if independent
legal representation is not available to such youth. IN ANY PROCEEDING
UNDER ARTICLE SIX OF THIS ACT, THE COURT SHALL APPOINT AN ATTORNEY TO
REPRESENT THE CHILD WHEN CREDIBLE ALLEGATIONS OF SERIOUS OR IMMINENT
RISK TO THE CHILD'S SAFETY HAVE BEEN MADE. In any other proceeding in
which the court has jurisdiction, INCLUDING ALL PROCEEDINGS UNDER ARTI-
CLE SIX OF THIS ACT, the court may appoint an attorney to represent the
child, when, in the opinion of the family court judge, such represen-
tation will serve the purposes of this act, if independent legal counsel
is not available to the child. The family court on its own motion may
make such appointment.
§ 11. Subdivision (a) of section 249 of the family court act, as
amended by chapter 672 of the laws of 2019, is amended to read as
follows:
(a) In a proceeding under article three, seven, ten, ten-A or ten-C of
this act or where a revocation of an adoption consent is opposed under
section one hundred fifteen-b of the domestic relations law or in any
proceeding under section three hundred fifty-eight-a, three hundred
eighty-three-c, three hundred eighty-four or three hundred eighty-four-b
of the social services law or when a minor is sought to be placed in
protective custody under section one hundred fifty-eight of this act,
the family court shall appoint an attorney to represent a minor who is
the subject of the proceeding or who is sought to be placed in protec-
tive custody, if independent legal representation is not available to
such minor. In any proceeding to extend or continue the placement of a
juvenile delinquent or person in need of supervision pursuant to section
seven hundred fifty-six or 353.3 of this act or any proceeding to extend
or continue a commitment to the custody of the commissioner of mental
health or the commissioner of the office for people with developmental
disabilities pursuant to section 322.2 of this act, the court shall not
permit the respondent to waive the right to be represented by counsel
chosen by the respondent, respondent's parent, or other person legally
responsible for the respondent's care, or by assigned counsel. In any
proceeding under article ten-B of this act, the family court shall
appoint an attorney to represent a youth, under the age of twenty-one,
who is the subject of the proceeding, if independent legal represen-
tation is not available to such youth. IN ANY PROCEEDING UNDER ARTICLE
SIX OF THIS ACT, THE COURT SHALL APPOINT AN ATTORNEY TO REPRESENT THE
A. 3346--C 17
CHILD WHEN CREDIBLE ALLEGATIONS OF SERIOUS OR IMMINENT RISK TO THE
CHILD'S SAFETY HAVE BEEN MADE. In any other proceeding in which the
court has jurisdiction, INCLUDING ALL PROCEEDINGS UNDER ARTICLE SIX OF
THIS ACT, the court may appoint an attorney to represent the child,
when, in the opinion of the family court judge, such representation will
serve the purposes of this act, if independent legal counsel is not
available to the child. The family court on its own motion may make such
appointment.
§ 12. Subdivision (b) of rule 5521 of the civil practice law and
rules, as amended by chapter 707 of the laws of 2019, is amended to read
as follows:
(b) Consistent with the provisions of section one thousand one hundred
twelve of the family court act, appeals from orders, judgments or
decrees in proceedings brought pursuant to articles three, seven, ten
and ten-A and parts one and two of article six of the family court act,
and pursuant to 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, and pursuant to paragraph (d) of
subdivision four and subparagraph (ii) of paragraph (d) of subdivision
five of section eighty-nine of the public officers law, AND APPEALS FROM
ORDERS ISSUED UNDER PART THREE OF ARTICLE SIX OF THE FAMILY COURT ACT OR
SECTION SEVENTY OR TWO HUNDRED FORTY OF THE DOMESTIC RELATIONS LAW UPON
A PROMPT EVIDENTIARY HEARING REGARDING AN ALLEGATION OF IMMINENT RISK TO
A CHILD'S SAFETY shall be given preference and may be brought on for
argument on such terms and conditions as the court may direct without
the necessity of a motion.
§ 13. This act shall take effect on the one hundred twentieth day
after it shall have become a law; provided, however, that the amendments
to subdivision (a) of section 249 of the family court act made by
section ten of this act shall be subject to the expiration and reversion
of such subdivision pursuant to section 8 of chapter 29 of the laws of
2011, as amended, when upon such date the provisions of section eleven
of this act shall take effect. 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 and completed on or before such effective date.