Assembly Actions -
Lowercase Senate Actions - UPPERCASE |
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May 23, 2023 |
reported and committed to codes |
Mar 28, 2023 |
print number 3170a |
Mar 28, 2023 |
amend (t) and recommit to judiciary |
Jan 30, 2023 |
referred to judiciary |
Senate Bill S3170A
2023-2024 Legislative Session
Establishes "Kyra's Law"
download bill text pdfSponsored By
(D) 42nd Senate District
Current Bill Status - In Senate Committee Codes Committee
- Introduced
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- In Committee Assembly
- In Committee Senate
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- On Floor Calendar Assembly
- On Floor Calendar Senate
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- Passed Assembly
- Passed Senate
- Delivered to Governor
- Signed By Governor
Actions
Votes
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May 23, 2023 - Judiciary Committee Vote
S3170A17Aye1Nay1Aye with Reservations0Absent0Excused0Abstained
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Bill Amendments
co-Sponsors
(R, C) 57th Senate District
(D) 30th Senate District
(D) 14th Senate District
(D, WF) 56th Senate District
(D) 26th Senate District
(D, WF) 40th Senate District
(D, WF) 41st Senate District
(D, WF) 28th Senate District
(R, C) 7th Senate District
(R, C) 2nd Senate District
(R, C) 3rd Senate District
(R, C) 51st Senate District
(R) 1st Senate District
(D, WF) 13th Senate District
(R) 39th Senate District
(D) 32nd Senate District
(R, C) 38th Senate District
(R, C) 8th Senate District
2023-S3170 - Details
- See Assembly Version of this Bill:
- A3346
- Current Committee:
- Senate Codes
- Law Section:
- Domestic Relations Law
- Laws Affected:
- Amd §§240 & 70, add §240-e, Dom Rel L; amd §§1112 & 651, Fam Ct Act
- Versions Introduced in 2021-2022 Legislative Session:
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S7425, A5398
2023-S3170 - Sponsor Memo
BILL NUMBER: S3170 SPONSOR: SKOUFIS TITLE OF BILL: An act to amend the domestic relations law and the family court act, in relation to establishing "Kyra's Law" PURPOSE OR GENERAL IDEA OF BILL: To protect children by ensuring courts assess any risk to their life and safety in child custody and visitation proceedings. SUMMARY OF PROVISIONS: Section 1 of the bill identifies the name of this legislation as "Kyra's Law." Section 2 of the bill amends subparagraph 5 of paragraph (a-1) of subdi- vision 1 of the domestic relations law to require that in child custody or visitation proceedings in which a party alleges child abuse or domes- tic violence, the court must first conduct a risk assessment regarding
the child's life and safety. Factors to be considered in such hearing include, but are not limited to: allegations of domestic violence, child abuse, child sexual abuse or incidents involving harm or risk of harm to the child, prior reports of violence, access to firearms, valid or prior orders of protection, threats to harm or kill self or others, etc. If the court determines that limitations or restrictions relating to the offending party's custody, visitation, or contact with the child are necessary to avoid significant risk to the child, this section requires a court to issue a temporary emergency order stating as such. The section creates a rebuttable presumption that the court shall not award sole or joint custody or unsupervised visitation to a party who jeopardizes or may jeopardize the life or safety of the child. Further, the section requires the court to state its findings on the record and in writing, to support any future appeals of the c ourt's decision-mak- ing. Section 2 of the bill requires the state Office for the Prevention of Domestic Violence, in coordination with OCA and in consultation with statewide advocacy coalitions, attorneys, researchers and academics, to develop a risk assessment tool to assist courts in assessing significant risks to a child's life and safety. Section 3 of the bill amends the domestic relations law to create a new section 240-e to identify specific best interest of a child factors to be given weighted consideration when the court issues temporary or final custody or visitation orders; and requires in-depth training for judges, referees, and other hearing officers presiding over child custody cases where domestic violence or child abuse is alleged. Section 4 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 5 of the bill amends the Family Court Act by creating a new section 654 to ensure that the same protections as noted above are in place for custody and visitation proceedings in Family Court. Section 6 of the bill amends subdivision (a) of section 1112 of the family court act to ensure a court's decision to grant or deny a tempo- rary emergency order, or limitations or conditions to a parent's custody or visitation set forth in temporary emergency orders, are appealable. Section 7 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. 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 abusers who use coercive power and control tactics against their intimate part- ners go so far as to use their children as pawns, even harming or murdering them, to try to maintain control over or devastate their part- ners. 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 28 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. According to research by Professor Joan S. Meier, Esq., of George Washington 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 skep- tical of mothers' claims of abuse by fathers; this skepticism is great- est when mothers claim child abuse."(2) 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. Children exposed to domestic violence and child abuse will live shorter lives and suffer a lifetime of health and social problems.3 Most of the harm is not caused by the immediate physical injuries, but from living with the fear and stress abusers cause. Tragically, the courts have been slow to integrate this research. This bill would permit parties in custody or visitation proceedings in Supreme and Family courts to motion the court for a temporary emergency order in relation to assessing risk to a child's life or safety. Such risk assessment hearing would be held within 14 court days of the appli- cation, except for good cause shown. Factors for the court to consider during its assessment would include: allegations of domestic violence, child abuse, child sexual abuse or incidents involving harm, or risk of harm, to a child; prior police reports, domestic incident reports or history of family offenses within the household; the parties' access to firearms; relevant orders of protection; confinement of one party by the other party; threats to harm or kill; or one party's concern about future assaults from the other party. A risk assessment tool would be developed by the Office for Prevention of Domestic Violence, in coordi- nation with the Office of Court Administration and in conjunction with other key entities, to assist the court in assessing such risk to a child's life or safety. Any temporary emergency order for custody or visitation issued by the court would remain in effect until such time as either party applies for revision for good cause shown, or if the court issues a final order. The bill would create a rebuttable presumption that the court shall not award sole or joint custody or unsupervised visitation in a temporary emergency order to any party who jeopardizes or may jeopardize the life or safety of the child. The court's decision-making would be stated on the record and in writing, and both parties to the proceeding would have the right to appeal to the appropriate appellate division. If a party waives their right to such hearing, the court would notify the party at that time that an application may be made at any future time during the proceedings. Similarly, courts would be required to hold an additional hearing for a temporary order of custody or visitation whenever a party alleges that such order is needed to promote and protect the best interest of the child pending entry of a final order. The bill specifies that, when making a final determination of custody or visitation based on the best interests of a child, the court must prior- itize and promote the life of safety of the child, including preventing direct physical and/or emotional harm to the child and creating situ- ations that may decrease the likelihood such child will engage in harm- ful behaviors. Weighted consideration would be given to factors such as: whether either party is more likely to ensure the life and safety of the child; any allegations of domestic violence or child abuse; prior police reports, domestic incident reports, commission of family offenses, or orders of protection; whether either party has access to firearms; and any previously made statements by the child about a party indicating they are fearful or resistant to contact with one of the parties. Research finds that courts often err in awarding child custody or visi- tation to abusers due to the debunked theory of "parental alienation," the idea 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 the courts' rejection of parents' abuse claims, causing non-of- fending parents to lose custody to the parent accused of abuse. This bill would prohibit the court from denying custody or visitation to a party due to allegations that the child has become estranged from a parent as a result of "parental alienation." Nor would the court be permitted from ordering reunification treatment designed to repair a party's relationship with a child due to parental alienation. Further, the court would not be able to base custody or visitation decisions on its presumption that a child's deficient or negative relationship with a parent was caused by the other parent. In any final order of custody or visitation where domestic violence or child abuse is found, the bill would prohibit courts from awarding shared parenting or joint legal custody, unless both parties' consent and the court determines the parties can effectively communicate, coop- erate with each other and make joint decisions concerning the Currently, judges hearing custody and visitation cases must obtain training in domestic violence every two years, not nearly enough to understand the complexities and nuances of family violence. This bill would expand those receiving such training to include referees and other hearing officers, in addition to judges, and would require such individ- uals to obtain a minimum of twenty hours of training in domestic violence and child abuse every two years. The Office for Prevention of Domestic Violence would contract with the New York State Coalition Against Domestic Violence, which would have the authority to contract with other not-for-profit organizations specializing in child abuse and gender-based violence, to develop the training. Such training, which would be updated at least once every two years, would include instruc- tion on: relevant statutes and case law; the dynamics of domestic violence and child abuse; abusive tactics and coercive control; increased risk of violence during court proceedings; assessment of leth- ality; etc. Training would be offered by the state agency and domestic violence advocates, in consultation with the office of court adminis- tration. Ten hours of continuing education training would be required for judg es, referees and other hearing officers every two years after the initial foundational training. PRIOR LEGISLATIVE HISTORY: Senate 2021-22 - S07425A, Recommitted to Rules Assembly 2021-22 - A5398-A, amended and recommited to judiciary 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.
2023-S3170 - Bill Text download pdf
S T A T E O F N E W Y O R K ________________________________________________________________________ 3170 2023-2024 Regular Sessions I N S E N A T E January 30, 2023 ___________ Introduced by Sens. SKOUFIS, BORRELLO, CLEARE, COMRIE, COONEY, GOUNARDES, HARCKHAM, KRUEGER, PALUMBO, RAMOS, SEPULVEDA, WEIK -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary AN ACT to amend the domestic relations law and the family court act, in relation to establishing "Kyra's Law" THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Short title. This act shall be known as and may be cited as "Kyra's Law". § 2. Subparagraph 5 of paragraph (a-1) of subdivision 1 of section 240 of the domestic relations law, as amended by chapter 295 of the laws of 2009, is amended to read as follows: (5) Temporary emergency order. (I) NOTWITHSTANDING ANY OTHER PROVISION OF THE LAW, UPON THE APPLICATION OF A PARTY TO AN ACTION CONCERNING CUSTODY OF OR A RIGHT TO VISITATION WITH A CHILD WHO ALLEGES THAT THE OTHER PARTY TO THE PROCEEDING HAS COMMITTED, HAS THREATENED TO COMMIT, OR IS LIKELY TO COMMIT AN ACT OF CHILD ABUSE AGAINST SUCH CHILD, OR HAS COMMITTED, HAS THREATENED TO COMMIT, OR IS LIKELY TO COMMIT AN ACT OF DOMESTIC VIOLENCE AGAINST THE PARTY MAKING THE ALLEGATION OR A FAMILY OR HOUSEHOLD MEMBER OF EITHER PARTY, AS SUCH FAMILY OR HOUSEHOLD MEMBER IS DEFINED IN ARTICLE EIGHT OF THE FAMILY COURT ACT, THE COURT SHALL HOLD A HEARING TO DETERMINE WHETHER TEMPORARY LIMITATIONS OR CONDITIONS ON THE CUSTODY OR VISITATION RIGHTS OF THE PARTY WHO IS ALLEGED TO HAVE COMMITTED AN ACT OF CHILD ABUSE AGAINST THE CHILD, OR COMMITTED AN ACT OF DOMESTIC VIOLENCE AGAINST THE PARTY MAKING THE ALLE- GATION OR A FAMILY OR HOUSEHOLD MEMBER OF EITHER PARTY IS NECESSARY TO AVOID SIGNIFICANT RISK TO THE CHILD'S LIFE OR SAFETY. THE COURT SHALL CONDUCT AN ASSESSMENT OF THE BEST INTERESTS OF THE CHILD TO IDENTIFY SIGNIFICANT RISK TO THE CHILD'S LIFE AND SAFETY, USING A RISK ASSESSMENT EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD06231-01-3 S. 3170 2
TOOL DEVELOPED PURSUANT TO CLAUSE (II) OF THIS SUBPARAGRAPH TO EVALUATE FACTORS WHICH SHALL INCLUDE, BUT SHALL NOT BE LIMITED TO: (A) ALLEGATIONS OF DOMESTIC VIOLENCE, CHILD ABUSE, CHILD SEXUAL ABUSE OR INCIDENTS INVOLVING HARM, OR RISK OF HARM, TO A CHILD; (B) PRIOR POLICE REPORTS OR DOMESTIC VIOLENCE INCIDENT REPORTS DOCU- MENTING PRIOR INCIDENTS INVOLVING CHILD ABUSE OR DOMESTIC VIOLENCE, OR WHETHER EITHER PARTY HAS BEEN CHARGED WITH AN ACT WHICH WOULD CONSTITUTE DISORDERLY CONDUCT, UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE IMAGE, HARASSMENT IN THE FIRST DEGREE, HARASSMENT IN THE SECOND DEGREE, AGGRAVATED HARASSMENT IN THE SECOND DEGREE, SEXUAL MISCONDUCT, FORCIBLE TOUCHING, SEXUAL ABUSE IN THE THIRD DEGREE, SEXUAL ABUSE IN THE SECOND DEGREE AS SET FORTH IN SUBDIVISION ONE OF SECTION 130.60 OF THE PENAL LAW, STALKING IN THE FIRST DEGREE, STALKING IN THE SECOND DEGREE, STALK- ING IN THE THIRD DEGREE, STALKING IN THE FOURTH DEGREE, CRIMINAL MISCHIEF, MENACING IN THE SECOND DEGREE, MENACING IN THE THIRD DEGREE, RECKLESS ENDANGERMENT, CRIMINAL OBSTRUCTION OF BREATHING OR BLOOD CIRCU- LATION, STRANGULATION IN THE SECOND DEGREE, STRANGULATION IN THE FIRST DEGREE, ASSAULT IN THE SECOND DEGREE, ASSAULT IN THE THIRD DEGREE, AN ATTEMPTED ASSAULT, IDENTITY THEFT IN THE FIRST DEGREE, IDENTITY THEFT IN THE SECOND DEGREE, IDENTITY THEFT IN THE THIRD DEGREE, GRAND LARCENY IN THE FOURTH DEGREE, GRAND LARCENY IN THE THIRD DEGREE, COERCION IN THE SECOND DEGREE OR COERCION IN THE THIRD DEGREE AS SET FORTH IN SUBDIVI- SIONS ONE, TWO AND THREE OF SECTION 135.60 OF THE PENAL LAW BETWEEN SPOUSES OR FORMER SPOUSES, OR BETWEEN PARTY AND CHILD OR BETWEEN MEMBERS OF THE SAME FAMILY OR HOUSEHOLD, REGARDLESS OF THE DISPOSITION; (C) WHETHER EITHER PARTY OWNS, POSSESSES OR HAS ACCESS TO A FIREARM, RIFLE OR SHOTGUN; (D) DECISIONS AND REPORTS ON REGISTRIES AS REQUIRED PURSUANT TO SUBPARAGRAPH THREE OF THIS PARAGRAPH; (E) CONFINEMENT OF A PARTY OR CHILD BY THE OTHER PARTY; (F) THREATS TO HARM OR KILL SELF OR OTHERS, OR THREATS TO HARM OR KILL EMOTIONAL SUPPORT OR COMFORT ANIMALS OWNED OR POSSESSED BY SELF OR OTHERS, MADE BY ONE PARTY TO THE OTHER PARTY OR CHILD; AND (G) ONE PARTY'S CONCERN ABOUT FUTURE ASSAULTS FROM THE OTHER PARTY. EXCEPT FOR GOOD CAUSE SHOWN, THE HEARING FOR SUCH DETERMINATION SHALL COMMENCE WITHIN FOURTEEN COURT DAYS OF THE APPLICATION FOR SUCH HEARING AND SHALL NOT BE ADJOURNED. PARTIES SHALL BE NOTICED OF THEIR RIGHT TO THE ASSISTANCE OF COUNSEL AT THE INITIATION OF SUCH HEARING. WHEN THE PARTIES FIRST APPEAR IN COURT, THE JUDGE SHALL ADVISE THEM BEFORE PROCEEDING OF THE RIGHT TO BE REPRESENTED BY COUNSEL OF HIS OR HER OWN CHOOSING, OF THE RIGHT TO HAVE AN ADJOURNMENT TO CONFER WITH COUNSEL, AND THE RIGHT TO OBTAIN COUNSEL FEES AND EXPENSES, PURSUANT TO SECTION TWO HUNDRED THIRTY-SEVEN OF THIS ARTICLE. DURING SUCH HEARING, COMPE- TENT, MATERIAL AND RELEVANT EVIDENCE MAY BE ADMITTED, IN ADDITION TO EVIDENCE THAT MAY INCLUDE OR CONSIST OF HEARSAY AND DOCUMENTS OR PHOTO- GRAPHS FOR WHICH A PROPER FOUNDATION CANNOT BE LAID. IF A PARTY WAIVES HIS OR HER RIGHT TO A HEARING UNDER THIS SECTION, THE COURT SHALL ADVISE SUCH PARTY AT THAT TIME THAT, NOTWITHSTANDING SUCH WAIVER, AN APPLICA- TION UNDER THIS SECTION MAY BE MADE AT ANY TIME DURING THE PENDENCY OF THE PROCEEDINGS. (II) THE OFFICE FOR THE PREVENTION OF DOMESTIC VIOLENCE, IN COORDI- NATION WITH THE OFFICE OF COURT ADMINISTRATION AND IN CONSULTATION WITH THE NEW YORK STATE COALITION AGAINST DOMESTIC VIOLENCE, THE NEW YORK STATE COALITION AGAINST SEXUAL ASSAULT, PREVENT CHILD ABUSE NEW YORK, VICTIMS OF DOMESTIC VIOLENCE, SEXUAL ASSAULT, CHILD ABUSE OR CHILD SEXU- AL ABUSE, CIVIL ATTORNEYS REPRESENTING SUCH VICTIMS IN CUSTODY AND VISI- S. 3170 3 TATION PROCEEDINGS, AND RESEARCHERS AND ACADEMICS WITH EXPERTISE IN DEVELOPING RISK ASSESSMENT TOOLS SHALL DEVELOP A RISK ASSESSMENT TOOL FOR USE BY THE COURT WHEN ASSESSING SIGNIFICANT RISK TO CHILD'S LIFE OR SAFETY FOR THE PURPOSES OF ISSUING A TEMPORARY EMERGENCY ORDER. THESE ENTITIES WILL REVIEW AND, WHEN APPROPRIATE, UPDATE THE RISK ASSESSMENT TOOL AT LEAST ONCE EVERY TWO YEARS. (III) IF THE COURT DETERMINES THAT LIMITATIONS OR RESTRICTIONS OF A PARTY'S CUSTODY, VISITATION OR CONTACT WITH THE CHILD ARE NECESSARY TO AVOID SIGNIFICANT RISK TO THE CHILD'S LIFE OR SAFETY, THE COURT SHALL ISSUE A TEMPORARY EMERGENCY ORDER FOR CUSTODY OR VISITATION STATING AS SUCH. SUCH ORDER SHALL SET FORTH CONDITIONS OF CUSTODY OR VISITATION WHICH MAY BE REVISED BY THE COURT UPON APPLICATION BY EITHER PARTY ONLY FOR GOOD CAUSE SHOWN. ANY ORDER OF THE COURT UNDER THIS SECTION SHALL TERMINATE WHEN THE COURT MAKES A FINAL ORDER OF CUSTODY OR OF VISITATION CONCERNING THE CHILD OR CHILDREN, UNLESS THE SUPREME COURT CONTINUES THE ORDER TO FAMILY COURT. (IV) THERE SHALL BE A REBUTTABLE PRESUMPTION THAT THE COURT SHALL NOT AWARD, IN A TEMPORARY EMERGENCY ORDER FOR CUSTODY OR VISITATION, SOLE OR JOINT CUSTODY OR UNSUPERVISED VISITATION TO A PARTY WHO JEOPARDIZES OR MAY JEOPARDIZE THE LIFE OR SAFETY OF THE CHILD. (V) THE COURT SHALL STATE ON THE RECORD, AND IN WRITING, ITS FINDINGS, THE FACTORS CONSIDERED IN RENDERING ITS DECISION AND THE REASONS FOR THE LIMITATIONS OR RESTRICTIONS PLACED ON A PARTY'S CUSTODY, VISITATION OR CONTACT WITH SUCH CHILD. (VI) ALL COSTS, INCLUDING ATTORNEY AND EXPERT FEES INCURRED BY THE NON-OFFENDING PARTY AND THE CHILD, TO PREPARE FOR AND PARTICIPATE IN SUCH HEARING SHALL BE PAID BY THE PARTY WHO IS FOUND TO HAVE COMMITTED CHILD ABUSE OR DOMESTIC VIOLENCE, UNLESS THE OFFENDING PARTY HAS INSUF- FICIENT MEANS TO FUND SUCH EXPENSES. (VII) IF A PARTY MAKES A GOOD FAITH ALLEGATION BASED ON A REASONABLE BELIEF SUPPORTED BY FACTS THAT A CHILD IS THE VICTIM OF CHILD ABUSE, CHILD NEGLECT, OR HAS BEEN EXPOSED TO DOMESTIC VIOLENCE, AND IF THAT PARTY ACTS LAWFULLY AND IN GOOD FAITH IN RESPONSE TO THAT REASONABLE BELIEF TO PROTECT THE CHILD, SEEK TREATMENT FOR THE CHILD OR TO PROTECT SELF, THEN THAT PARTY SHALL NOT BE DEPRIVED OF CUSTODY, VISITATION OR CONTACT WITH THE CHILD, OR RESTRICTED IN CUSTODY, VISITATION OR CONTACT, BASED SOLELY ON THAT BELIEF OR THE REASONABLE ACTIONS TAKEN BASED ON THAT BELIEF. (VIII) IF THE COURT DOES NOT MAKE A FINDING THAT LIMITATIONS OR RESTRICTIONS ON A PARTY'S CUSTODY OR VISITATION WITH SUCH CHILD ARE NECESSARY TO AVOID SIGNIFICANT RISK TO THE CHILD'S LIFE OR SAFETY, THE COURT SHALL HOLD AN ADDITIONAL HEARING WHENEVER A PARTY ALLEGES THAT A TEMPORARY ORDER MAY BE NECESSARY TO PROMOTE AND PROTECT THE BEST INTER- EST OF THE CHILD PENDING ENTRY OF A FINAL ORDER. (IX) WITH THE EXCEPTION OF HEARSAY OR OTHER NON-COMPETENT EVIDENCE, THE COURT MAY NOT REFUSE TO CONSIDER, AT FURTHER PROCEEDINGS, EVIDENCE PRESENTED DURING A HEARING FOR A TEMPORARY EMERGENCY ORDER OR ADDITIONAL EVIDENCE OF DOMESTIC VIOLENCE OR CHILD ABUSE PRESENTED IN FURTHER PROCEEDINGS. THE PRESENTATION OF ANY FACTS OR EVIDENCE AT A HEARING FOR A TEMPORARY EMERGENCY ORDER SHALL NOT PRECLUDE THE PRESENTATION OF ANY FACTS OR EVIDENCE. (X) NOTHING CONTAINED IN THIS SUBPARAGRAPH SHALL BE DEEMED IN ANY WAY TO LIMIT, RESTRICT, EXPAND OR IMPAIR THE RIGHTS OF ANY PARTY TO FILE FOR A MODIFICATION OF A TEMPORARY EMERGENCY ORDER AS IS OTHERWISE PROVIDED BY LAW. S. 3170 4 (XI) ANY PARTY TO A PROCEEDING FOR A TEMPORARY EMERGENCY ORDER PURSU- ANT TO THIS SECTION SHALL HAVE A RIGHT TO APPEAL TO THE APPROPRIATE APPELLATE DIVISION. AN APPEAL UNDER THIS SUBDIVISION MUST BE TAKEN NO LATER THAN FIVE DAYS AFTER THE SERVICE BY A PARTY OR THE CHILD'S ATTOR- NEY UPON THE APPELLANT OF ANY ORDER FROM WHICH THE APPEAL IS TAKEN OR FIVE DAYS FROM RECEIPT OF THE ORDER BY THE APPELLANT IN COURT, WHICHEVER IS EARLIEST. (XII) Notwithstanding any other provision of the law, upon emergency situations, including computer malfunctions, to serve the best interest of the child, the court may issue a temporary emergency order for custo- dy or visitation in the event that it is not possible to timely review decisions and reports on registries as required pursuant to subparagraph three of this paragraph. § 3. The domestic relations law is amended by adding a new section 240-e to read as follows: § 240-E. CUSTODY AND VISITATION; LIFE AND SAFETY OF THE CHILD. 1. FOR THE PURPOSES OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOW- ING MEANINGS: (A) "PARENTAL ALIENATION" MEANS CLAIMS THAT A CHILD HAS BECOME ESTRANGED FROM A PARENT OR LEGAL GUARDIAN AS A RESULT OF PSYCHOLOGICAL MANIPULATION BY THE OTHER PARENT OR LEGAL GUARDIAN. (B) "VICTIM OF DOMESTIC VIOLENCE" SHALL HAVE THE SAME MEANING AS DEFINED IN SECTION FOUR HUNDRED FIFTY-NINE-A OF THE SOCIAL SERVICES LAW. (C) "FRIENDLY PARENT" MEANS THE PROPENSITY OF A PARENT OR LEGAL GUARD- IAN TO ACTIVELY SUPPORT A CHILD'S CONTACT AND RELATIONSHIP WITH THE OTHER PARENT OR LEGAL GUARDIAN, OR THE ABILITY OF SUCH PARENT OR LEGAL GUARDIAN TO COOPERATE IN, AND RESOLVE DISPUTES, REGARDING MATTERS AFFECTING SUCH CHILD. 2. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, A COURT MAKING A FINAL DETERMINATION OF CUSTODY OR VISITATION BASED ON THE BEST INTERESTS OF A CHILD PURSUANT TO THE PROVISIONS OF THIS CHAPTER SHALL PRIORITIZE AND PROMOTE THE LIFE AND SAFETY OF SUCH CHILD WHEN MAKING SUCH DETERMINATIONS. PROMOTING THE LIFE AND SAFETY OF A CHILD SHALL INCLUDE PREVENTING DIRECT PHYSICAL AND/OR EMOTIONAL HARM TO SUCH CHILD. 3. PRIOR TO THE ISSUANCE OF A FINAL ORDER OF CUSTODY OR VISITATION, DURING ITS ASSESSMENT OF THE BEST INTERESTS OF THE CHILD, THE COURT SHALL DETERMINE THE LIFE AND SAFETY OF THE CHILD WHO IS THE SUBJECT OF SUCH ORDER BY CONSIDERING ALL RELEVANT FACTORS AND BY GIVING WEIGHTED CONSIDERATION TO THOSE FACTORS WHICH AFFECT THE LIFE AND SAFETY OF SUCH CHILD, WHICH SHALL INCLUDE, BUT NOT BE LIMITED TO: (A) WHETHER EITHER PARTY IS MORE LIKELY TO ENSURE THE LIFE AND SAFETY OF THE CHILD AND WHETHER EITHER PARTY JEOPARDIZES THE LIFE OR SAFETY OF THE CHILD. THERE SHALL BE A REBUTTABLE PRESUMPTION THAT CUSTODY OR VISI- TATION SHALL NOT BE AWARDED TO A PARTY WHO JEOPARDIZES THE LIFE OR SAFE- TY OF THE CHILD; (B) THE IMPACT OF DISRUPTING CONTINUITY IN THE CHILD'S HOME, ENVIRON- MENT AND ESTABLISHED PARENTING CONTACTS; (C) ANY ALLEGATIONS OF DOMESTIC VIOLENCE, CHILD ABUSE OR CHILD SEXUAL ABUSE, OR INCIDENTS INVOLVING HARM, OR RISK OF HARM, TO A CHILD; (D) PRIOR POLICE REPORTS OR DOMESTIC VIOLENCE INCIDENT REPORTS DOCU- MENTING INCIDENTS INVOLVING CHILD ABUSE OR DOMESTIC VIOLENCE, OR WHETHER EITHER PARTY HAS BEEN CHARGED WITH AN ACT WHICH WOULD CONSTITUTE DISOR- DERLY CONDUCT, UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE IMAGE, HARASSMENT IN THE FIRST DEGREE, HARASSMENT IN THE SECOND DEGREE, AGGRAVATED HARASSMENT IN THE SECOND DEGREE, SEXUAL MISCONDUCT, FORCIBLE TOUCHING, SEXUAL ABUSE IN THE THIRD DEGREE, SEXUAL ABUSE IN THE SECOND S. 3170 5 DEGREE AS SET FORTH IN SUBDIVISION ONE OF SECTION 130.60 OF THE PENAL LAW, STALKING IN THE FIRST DEGREE, STALKING IN THE SECOND DEGREE, STALK- ING IN THE THIRD DEGREE, STALKING IN THE FOURTH DEGREE, CRIMINAL MISCHIEF, MENACING IN THE SECOND DEGREE, MENACING IN THE THIRD DEGREE, RECKLESS ENDANGERMENT, CRIMINAL OBSTRUCTION OF BREATHING OR BLOOD CIRCU- LATION, STRANGULATION IN THE SECOND DEGREE, STRANGULATION IN THE FIRST DEGREE, ASSAULT IN THE SECOND DEGREE, ASSAULT IN THE THIRD DEGREE, AN ATTEMPTED ASSAULT, IDENTITY THEFT IN THE FIRST DEGREE, IDENTITY THEFT IN THE SECOND DEGREE, IDENTITY THEFT IN THE THIRD DEGREE, GRAND LARCENY IN THE FOURTH DEGREE, GRAND LARCENY IN THE THIRD DEGREE, COERCION IN THE SECOND DEGREE OR COERCION IN THE THIRD DEGREE AS SET FORTH IN SUBDIVI- SIONS ONE, TWO AND THREE OF SECTION 135.60 OF THE PENAL LAW BETWEEN SPOUSES OR FORMER SPOUSES, OR BETWEEN PARENT AND CHILD OR BETWEEN MEMBERS OF THE SAME FAMILY OR HOUSEHOLD, REGARDLESS OF THE DISPOSITION; (E) WHETHER EITHER PARTY OWNS, POSSESSES OR HAS ACCESS TO A FIREARM, RIFLE OR SHOTGUN; (F) WHETHER EITHER PARTY IS BETTER ABLE AND MORE LIKELY TO ATTEND TO THE DAILY PHYSICAL, EMOTIONAL, DEVELOPMENTAL, EDUCATIONAL AND SPECIAL NEEDS OF THE CHILD; AND (G) ANY PREVIOUSLY MADE STATEMENTS BY THE CHILD ABOUT A PARTY INDICAT- ING THEY ARE FEARFUL OF OR RESISTANT TO HAVING CONTACT OR VISITATION WITH SUCH PARTY. 4. (A) THE COURT SHALL NOT PRESUME THAT A CHILD'S DEFICIENT OR NEGA- TIVE RELATIONSHIP WITH A PARTY WAS CAUSED BY THE OTHER PARTY, NOR SHALL A PARTY BE GIVEN CUSTODY FOR THE PURPOSE OF IMPROVING A DEFICIENT RELATIONSHIP BETWEEN THE CHILD AND SUCH PARTY OR IN AN ATTEMPT TO REME- DIATE A CHILD'S RESISTANCE TO CONTACT OR VISITATION WITH A PARTY. (B) ALLEGATIONS REGARDING PARENTAL ALIENATION SHALL NOT BE ADMISSIBLE IN ANY PROCEEDING FOR CUSTODY OR VISITATION AND SHALL NOT BE CONSIDERED IN ASSESSING A CHILD'S BEST INTERESTS. (C) NO PSYCHOLOGICAL OR MEDICAL THEORIES OR LABELS RELATED TO A CHILD'S RESISTANCE TO CONTACT WITH A PARTY SHALL BE ADMITTED INTO EVIDENCE UNLESS THEY ARE BASED ON EMPIRICAL PROOF OF SCIENTIFIC RELI- ABILITY AND VALIDITY AND GENERALLY ACCEPTED BY THE SCIENTIFIC AND PROFESSIONAL COMMUNITY. (D) NO REUNIFICATION TREATMENT OR ANY SIMILAR PROGRAM DESIGNED TO REPAIR A PARTY'S RELATIONSHIP WITH A CHILD DUE TO PARENTAL ALIENATION SHALL BE ORDERED BY THE COURT WITHOUT SCIENTIFICALLY VALID AND GENERALLY ACCEPTED PROOF OF THE EFFECTIVENESS AND THERAPEUTIC VALUE OF SUCH TREAT- MENT OR PROGRAM; NOR SHALL A TREATMENT OR PROGRAM BE ORDERED WHICH IS PREDICATED ON SEPARATING A CHILD FROM THEIR PRIMARY CAREGIVER. (E) IN CASES INVOLVING DOMESTIC VIOLENCE OR CHILD ABUSE, WHETHER SUCH ABUSE HAS OCCURRED OR IS OCCURRING, A COURT SHALL NOT CONSIDER WHETHER EITHER PARENT IS A FRIENDLY PARENT. 5. IN CASES WHERE THE COURT HAS FOUND A PARENT TO BE A VICTIM OF DOMESTIC VIOLENCE AND/OR WHERE CHILD ABUSE HAS OCCURRED OR IS OCCURRING: (A) THE COURT SHALL AWARD JOINT LEGAL CUSTODY ONLY ON CONSENT OF THE PARTIES OR WHERE IT HAS BEEN DETERMINED THAT THE PARTIES CAN EFFECTIVELY COMMUNICATE, COOPERATE WITH EACH OTHER, AND MAKE JOINT DECISIONS CONCERNING THE CHILD; PROVIDED, HOWEVER, THAT WHERE FINAL ORDERS ARE ON THE CONSENT OF THE PARTIES, IN NO EVENT SHALL AN ORDER OF JOINT LEGAL CUSTODY BE AWARDED WHEN THERE IS AN EXISTING OR PRIOR FULL STAY AWAY ORDER OF PROTECTION AGAINST A PARTY ON BEHALF OF ANOTHER PARTY TO THE PROCEEDING OR WHEN THERE IS AN EXISTING TEMPORARY ORDER OF PROTECTION ENTERED EX PARTE; AND S. 3170 6 (B) ALL COSTS, INCLUDING ATTORNEY AND EXPERT FEES, INCURRED BY THE NON-OFFENDING PARENT AND THE CHILD, SHALL BE PAID BY THE PARENT WHO IS FOUND TO HAVE COMMITTED CHILD ABUSE OR DOMESTIC VIOLENCE, UNLESS THE OFFENDING PARENT HAS INSUFFICIENT MEANS TO PAY SUCH COSTS. 6. (A) BEFORE JUDGES, REFEREES, OR OTHER HEARING OFFICERS PRESIDE OVER CHILD CUSTODY PROCEEDINGS IN WHICH ONE OR MORE PARTIES HAVE ALLEGED DOMESTIC VIOLENCE OR CHILD ABUSE, THEY SHALL COMPLETE AT LEAST TWENTY HOURS OF INITIAL TRAINING FOR THE HANDLING OF SUCH CASES. THE OFFICE FOR PREVENTION OF DOMESTIC VIOLENCE SHALL, WITHIN AMOUNTS APPROPRIATED FOR SUCH PURPOSE, CONTRACT EXCLUSIVELY WITH THE NEW YORK STATE COALITION AGAINST DOMESTIC VIOLENCE, AND OTHER NONPROFIT ENTITIES WITH WHOM IT SUBCONTRACTS WITH EXPERTISE IN CHILD ABUSE OR GENDER-BASED VIOLENCE, TO DEVELOP SUCH TRAINING. SUCH ENTITY, OR ENTITIES IN PARTNERSHIP, SHALL REVIEW AND UPDATE THE TRAINING AT LEAST ONCE EVERY TWO YEARS. IN CONSULTATION WITH THE OFFICE OF COURT ADMINISTRATION, SUCH ENTITIES, OR ENTITIES IN PARTNERSHIP, SHALL BE RESPONSIBLE FOR PROVIDING SUCH TRAIN- ING TO JUDGES, REFEREES, AND OTHER HEARING OFFICERS HANDLING CHILD CUSTODY PROCEEDINGS. SUCH TRAINING SHALL INCLUDE, BUT NOT BE LIMITED TO: (1) A REVIEW OF RELEVANT STATUTES AND CASE LAW PERTAINING TO DOMESTIC VIOLENCE AND CHILD ABUSE; (2) THE DYNAMICS AND EFFECTS OF DOMESTIC VIOLENCE AND CHILD ABUSE, INCLUDING BUT NOT LIMITED TO, EMOTIONAL, FINANCIAL, PHYSICAL, TECHNOLOG- ICAL AND SEXUAL ABUSE, AND AN UNDERSTANDING OF THE BARRIERS AND FEARS ASSOCIATED WITH REPORTING DOMESTIC VIOLENCE AND CHILD ABUSE AND WHY VICTIMS MAY NOT HAVE DOCUMENTED EVIDENCE OF ABUSE; (3) TACTICS COMMONLY USED BY ONE PARTY TO INDUCE FEAR IN, OR DOMINATE OR CONTROL A PARTNER OR CHILD, INCLUDING VERBAL, EMOTIONAL, PSYCHOLOG- ICAL, AND/OR ECONOMIC ABUSE; ISOLATION; EFFORTS TO BUILD TRUST AND AN EMOTIONAL CONNECTION WITH A CHILD TO SUPPORT FUTURE MANIPULATION; EXPLOITATION; ABUSE; THREATS; CONTROLLING AND HARASSING BEHAVIORS, INCLUDING MONITORING OF A PARTNER'S LOCATION AND ACTIVITIES; USE OF OPPRESSIVE BEHAVIOR DESIGNED TO DEPRIVE A PARTNER OF THEIR RIGHTS AND LIBERTIES AND ESTABLISHING A REGIME OF DOMINATION IN THE PARTNER'S PERSONAL LIFE; LITIGATION ABUSE; AND DEMANDS FOR CUSTODY IN ORDER TO PRESSURE THE PARTNER TO RETURN OR PUNISH THE PARTNER FOR LEAVING; (4) KNOWLEDGE OF TRAUMA, PARTICULARLY AS IT RELATES TO SEXUAL ABUSE AND THE RISKS POSED TO CHILDREN AND THE LONG-TERM DANGERS AND IMPACTS POSED BY THE PRESENCE OF ADVERSE CHILDHOOD EXPERIENCES; (5) THE INCREASED RISK OF ESCALATING VIOLENCE THAT OCCURS DURING CHILD CUSTODY PROCEEDINGS AND METHODS FOR ASSESSING A CHILD'S SAFETY DURING CUSTODY AND VISITATION PROCEEDINGS, PARTICULARLY IN CASES INVOLVING DOMESTIC VIOLENCE OR CHILD ABUSE; (6) THE ASSESSMENT OF LETHALITY OR SIGNS OF LETHAL VIOLENCE, AND INSTRUCTION ON THE USE OF A RISK ASSESSMENT TOOL TO ASSESS RISK TO A CHILD'S LIFE OR SAFETY FOR THE PURPOSE OF ISSUING A TEMPORARY EMERGENCY ORDER; (7) EDUCATION REGARDING THE HARM COURTS MAY CAUSE CHILDREN IN CHILD CUSTODY CASES WHERE DOMESTIC VIOLENCE OR CHILD ABUSE IS PRESENT BY RELY- ING ON NON-SCIENTIFIC THEORIES SUCH AS PARENTAL ALIENATION, PARENTAL ALIENATION SYNDROME, THE FRIENDLY PARENT CONCEPT, OR ANY OTHER THEORY OR LABEL THAT IS NOT SUPPORTED BY SCIENTIFIC RESEARCH AND NOT GENERALLY ACCEPTED BY THE SCIENTIFIC COMMUNITY; (8) THE INVESTIGATION PROCESS ONCE A LAW ENFORCEMENT AGENCY OR A LOCAL DEPARTMENT OF SOCIAL SERVICES HAS RECEIVED A REPORT OF SUSPECTED CHILD S. 3170 7 ABUSE, INCLUDING THE LIMITATIONS OF INVESTIGATING REPORTS OF SUSPECTED CHILD ABUSE; AND (9) APPROPRIATE EXPERIENCE AND QUALIFICATIONS OF CHILD CUSTODY EVALU- ATORS AND MENTAL HEALTH TREATMENT PROVIDERS. (B) ONCE INITIAL TRAINING REQUIREMENTS HAVE BEEN MET, JUDGES, REFER- EES, AND OTHER HEARING OFFICERS PRESIDING OVER CHILD CUSTODY PROCEEDINGS IN WHICH ONE OR MORE PARTIES HAVE ALLEGED DOMESTIC VIOLENCE OR CHILD SEXUAL ABUSE SHALL COMPLETE AT LEAST TEN HOURS OF TRAINING EVERY TWO YEARS IN ORDER TO REMAIN ELIGIBLE TO HANDLE SUCH PROCEEDINGS. § 4. Subdivision (a) of section 70 of the domestic relations law, as amended by chapter 457 of the laws of 1988, is amended to read as follows: (a) (I) Where a minor child is residing within this state, either parent may apply to the supreme court for a writ of habeas corpus to have such minor child brought before such court; and on the return ther- eof, the court, on due consideration, may award the natural guardian- ship, charge and custody of such child to either parent for such time, under such regulations and restrictions, and with such provisions and directions, as the case may require, and may at any time thereafter vacate or modify such order. In all cases there shall be no prima facie right to the custody of the child in either parent, but the court shall determine solely what is for the best interest of the child, and what will best promote its welfare and happiness, and make award accordingly. WHERE EITHER PARTY TO AN ACTION CONCERNING CUSTODY OF OR A RIGHT TO VISITATION WITH A CHILD ALLEGES THAT THE OTHER PARTY HAS COMMITTED AN ACT OF CHILD ABUSE AGAINST SUCH CHILD, OR COMMITTED AN ACT OF DOMESTIC VIOLENCE AGAINST THE PARTY MAKING THE ALLEGATION OR A FAMILY OR HOUSE- HOLD MEMBER OF EITHER PARTY, AS SUCH FAMILY OR HOUSEHOLD IS DEFINED IN ARTICLE EIGHT OF THE FAMILY COURT ACT, THE COURT MUST FIRST, BEFORE CONSIDERING ANY OTHER BEST INTEREST FACTORS, HOLD A HEARING TO DETERMINE WHETHER TEMPORARY LIMITATIONS OR CONDITIONS ON THE CUSTODY OR VISITATION RIGHTS OF THE PARTY WHO IS ALLEGED TO HAVE COMMITTED AN ACT OF CHILD ABUSE AGAINST THE CHILD, OR COMMITTED AN ACT OF DOMESTIC VIOLENCE AGAINST THE PARTY MAKING THE ALLEGATION OR A FAMILY OR HOUSEHOLD MEMBER OF EITHER PARTY IS NECESSARY TO AVOID SIGNIFICANT RISK TO THE CHILD'S LIFE OR SAFETY, AS DESCRIBED PURSUANT TO SUBDIVISION FIVE OF SECTION TWO HUNDRED FORTY OF THIS CHAPTER. (II) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, A COURT MAKING A DETERMINATION THAT LIMITATIONS OR RESTRICTIONS OF A PARTY'S CUSTODY, VISITATION OR CONTACT WITH THE CHILD ARE NECESSARY TO AVOID SIGNIFICANT RISK TO THE CHILD'S LIFE OR SAFETY SHALL ISSUE A TEMPORARY EMERGENCY ORDER FOR CUSTODY OR VISITATION STATING AS SUCH. (III) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, PRIOR TO THE ISSUANCE OF A TEMPORARY EMERGENCY ORDER OF CUSTODY OR VISI- TATION, THE COURT SHALL CONDUCT AN ASSESSMENT OF THE BEST INTERESTS OF THE CHILD TO IDENTIFY SIGNIFICANT RISK TO THE LIFE OR SAFETY OF THE CHILD WHO IS THE SUBJECT OF SUCH ORDER BY CONSIDERING THE FACTORS DESCRIBED IN SECTION TWO HUNDRED FORTY OF THIS CHAPTER. (IV) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, A COURT MAKING A FINAL DETERMINATION OF CUSTODY OR VISITATION BASED ON THE BEST INTERESTS OF A CHILD PURSUANT TO THE PROVISIONS OF THIS CHAPTER SHALL PRIORITIZE AND PROMOTE THE LIFE AND SAFETY OF SUCH CHILD WHEN MAKING SUCH DETERMINATIONS. PROMOTING THE SAFETY OF A CHILD SHALL INCLUDE PREVENTING DIRECT PHYSICAL AND/OR EMOTIONAL HARM TO SUCH CHILD. PRIOR TO THE ISSUANCE OF A FINAL ORDER OF CUSTODY OR VISITATION, DURING ITS ASSESSMENT OF THE BEST INTERESTS OF THE CHILD, THE COURT SHALL S. 3170 8 DETERMINE THE SAFETY OF THE CHILD WHO IS THE SUBJECT OF SUCH ORDER BY CONSIDERING ALL RELEVANT FACTORS AND BY GIVING WEIGHTED CONSIDERATION TO THOSE FACTORS WHICH AFFECT THE LIFE AND SAFETY OF SUCH CHILD, PURSUANT TO SUBDIVISION THREE OF SECTION TWO HUNDRED FORTY-D OF THIS CHAPTER. (V) IN MAKING A DECISION PURSUANT TO PARAGRAPH (I) OF THIS SUBDIVI- SION, THE COURT SHALL BE BOUND BY THE PRESUMPTIONS AND ADMISSIBILITY DESCRIBED PURSUANT TO SECTION TWO HUNDRED FORTY-D OF THIS CHAPTER. FURTHER, THE COURT SHALL NOT TAKE INTO CONSIDERATION WHETHER EITHER PARTY IS MARRIED, WAS FORMERLY MARRIED OR HAS EVER BEEN MARRIED TO THE OTHER PARTY OR ANYONE ELSE. (VI) IN CASES WHERE THE COURT HAS FOUND A PARTY TO BE A VICTIM OF DOMESTIC VIOLENCE AND/OR WHERE CHILD ABUSE HAS OCCURRED OR IS OCCURRING, THE COURT SHALL AWARD JOINT LEGAL CUSTODY ONLY ON CONSENT OF THE PARTIES OR WHERE IT HAS BEEN DETERMINED THAT THE PARTIES CAN EFFECTIVELY COMMU- NICATE, COOPERATE WITH EACH OTHER, AND MAKE JOINT DECISIONS CONCERNING THE CHILD; PROVIDED, HOWEVER, THAT WHERE FINAL ORDERS ARE ON THE CONSENT OF THE PARTIES, IN NO EVENT SHALL AN ORDER OF JOINT LEGAL CUSTODY BE AWARDED WHEN THERE IS AN EXISTING OR PRIOR FULL STAY AWAY ORDER OF PROTECTION AGAINST A PARTY ON BEHALF OF ANOTHER PARTY TO THE PROCEEDING OR WHEN THERE IS AN EXISTING TEMPORARY ORDER OF PROTECTION ENTERED EX PARTE AND ALL COSTS, INCLUDING ATTORNEY AND EXPERT FEES, INCURRED BY THE NON-OFFENDING PARENT AND THE CHILD, SHALL BE PAID BY THE PARENT WHO IS FOUND TO HAVE COMMITTED CHILD ABUSE OR DOMESTIC VIOLENCE, UNLESS THE OFFENDING PARENT HAS INSUFFICIENT MEANS TO PAY SUCH COSTS. (VII) BEFORE JUDGES, REFEREES AND OTHER HEARING OFFICERS PRESIDE OVER CHILD CUSTODY PROCEEDINGS IN WHICH ONE OR MORE PARTIES HAVE ALLEGED DOMESTIC VIOLENCE OR CHILD ABUSE, THEY SHALL COMPLETE INITIAL TRAINING FOR THE HANDLING OF SUCH CASES AS DESCRIBED PURSUANT TO SECTION TWO HUNDRED FORTY-D OF THIS CHAPTER. ONCE INITIAL TRAINING REQUIREMENTS HAVE BEEN MET, JUDGES, REFEREES AND OTHER HEARING OFFICERS SHALL COMPLETE ADDITIONAL TRAINING EVERY TWO YEARS AS DESCRIBED PURSUANT TO SECTION TWO HUNDRED FORTY-D OF THIS CHAPTER. § 5. The family court act is amended by adding a new section 654 to read as follows: § 654. TEMPORARY ORDER OF CUSTODY OR OF VISITATION. (A) NOTWITHSTAND- ING ANY OTHER PROVISION OF THE LAW, UPON THE APPLICATION OF EITHER PARTY TO AN ACTION CONCERNING CUSTODY OF OR A RIGHT TO VISITATION WITH A CHILD WHO ALLEGES THAT THE OTHER PARTY HAS COMMITTED AN ACT OF CHILD ABUSE AGAINST SUCH CHILD, OR COMMITTED AN ACT OF DOMESTIC VIOLENCE AGAINST THE PARTY MAKING THE ALLEGATION OR A FAMILY OR HOUSEHOLD MEMBER OF EITHER PARTY, AS SUCH FAMILY OR HOUSEHOLD MEMBER IS DEFINED IN ARTICLE EIGHT OF THE FAMILY COURT ACT, THE COURT SHALL HOLD A HEARING TO DETERMINE WHETH- ER TEMPORARY LIMITATIONS OR CONDITIONS ON THE CUSTODY OR VISITATION RIGHTS OF THE PARTY WHO IS ALLEGED TO HAVE COMMITTED AN ACT OF CHILD ABUSE AGAINST THE CHILD, OR COMMITTED AN ACT OF DOMESTIC VIOLENCE AGAINST THE PARTY MAKING THE ALLEGATION OR A FAMILY OR HOUSEHOLD MEMBER OF EITHER PARTY IS NECESSARY TO AVOID SIGNIFICANT RISK TO THE CHILD'S LIFE OR SAFETY, IN ACCORDANCE WITH SUBPARAGRAPH FIVE OF PARAGRAPH (A-1) OF SUBDIVISION ONE OF SECTION TWO HUNDRED FORTY OF THE DOMESTIC RELATIONS LAW. IF THE COURT DETERMINES THAT LIMITATIONS OR RESTRICTIONS OF A PARTY'S CUSTODY, VISITATION OR CONTACT WITH THE CHILD ARE NECESSARY TO AVOID SIGNIFICANT RISK TO THE CHILD'S LIFE OR SAFETY, THE COURT SHALL ISSUE A TEMPORARY EMERGENCY ORDER FOR CUSTODY OR VISITATION STATING AS SUCH, IN ACCORDANCE WITH CLAUSE (III) OF SUBPARAGRAPH FIVE OF PARAGRAPH (A-1) OF SUBDIVISION ONE OF SECTION TWO HUNDRED FORTY OF THE DOMESTIC RELATIONS LAW. S. 3170 9 (B) SUCH TEMPORARY ORDER OF CUSTODY OR OF VISITATION MAY BE TAKEN AS OF RIGHT TO THE APPELLATE DIVISION OF THE SUPREME COURT. PENDING THE DETERMINATION OF SUCH APPEAL, SUCH ORDER SHALL BE STAYED WHERE THE EFFECT OF SUCH ORDER WOULD BE TO DISCHARGE THE CHILD, IF THE FAMILY COURT OR THE COURT BEFORE WHICH SUCH APPEAL IS PENDING FINDS THAT SUCH A STAY IS NECESSARY TO AVOID SIGNIFICANT RISK TO THE CHILD'S LIFE OR SAFE- TY. A PREFERENCE IN ACCORDANCE WITH RULE FIVE THOUSAND FIVE HUNDRED TWENTY-ONE OF THE CIVIL PRACTICE LAW AND RULES SHALL BE AFFORDED, WITH- OUT THE NECESSITY OF A MOTION, FOR APPEALS UNDER ARTICLE THREE; PARTS ONE AND TWO OF ARTICLE SIX; ARTICLES SEVEN, TEN, AND TEN-A OF THIS ACT; AND SECTIONS THREE HUNDRED FIFTY-EIGHT-A, THREE HUNDRED EIGHTY-THREE-C, THREE HUNDRED EIGHTY-FOUR, AND THREE HUNDRED EIGHTY-FOUR-B OF THE SOCIAL SERVICES LAW. AN APPEAL UNDER THIS SUBDIVISION MUST BE TAKEN NO LATER THAN FIVE DAYS AFTER THE SERVICE BY A PARTY OR THE CHILD'S ATTORNEY UPON THE APPELLANT OF ANY ORDER FROM WHICH THE APPEAL IS TAKEN, FIVE DAYS FROM RECEIPT OF THE ORDER BY THE APPELLANT IN COURT. § 6. Subdivision a of section 1112 of the family court act, as amended by section 28 of part A of chapter 3 of the laws of 2005, is amended to read as follows: a. An appeal may be taken as of right from any order of disposition and, in the discretion of the appropriate appellate division, from any other order under this act. An appeal from an intermediate or final order in a case involving abuse or neglect, THE DECISION TO GRANT OR DENY A TEMPORARY EMERGENCY ORDER, AS DETERMINED PURSUANT TO SECTION SIX HUNDRED FIFTY-FOUR OF THIS ACT, OR A TEMPORARY EMERGENCY ORDER ISSUED TO AVOID SIGNIFICANT RISK TO THE CHILD'S LIFE OR SAFETY, AS DETERMINED PURSUANT TO SECTION SIX HUNDRED FIFTY-FOUR OF THIS ACT, may be taken as of right to the appellate division of the supreme court. Pending the determination of such appeal, such order shall be stayed where the effect of such order would be to discharge the child, if the family court or the court before which such appeal is pending finds that such a stay is necessary to avoid imminent risk to the child's life or health. A preference in accordance with rule five thousand five hundred twenty- one of the civil practice law and rules shall be afforded, without the necessity of a motion, for appeals under article three; parts one and two of article six; articles seven, ten, and ten-A of this act; and sections three hundred fifty-eight-a, three hundred eighty-three-c, three hundred eighty-four, and three hundred eighty-four-b of the social services law. § 7. This act shall take effect on the ninetieth day after it shall have become a law. Effective immediately, the addition, amendment and/or repeal of any rule or regulation necessary for the implementation of this act on its effective date are authorized to be made on or before such effective date.
co-Sponsors
(D) 15th Senate District
(R) 43rd Senate District
(R, C) 57th Senate District
(D, WF) 46th Senate District
(R, C) 9th Senate District
(D, WF) 17th Senate District
(D) 30th Senate District
(D) 14th Senate District
(D, WF) 56th Senate District
(D) 26th Senate District
(D, WF) 40th Senate District
(D, WF) 41st Senate District
(D, WF) 47th Senate District
(D, WF) 63rd Senate District
(D, WF) 28th Senate District
(R, C) 7th Senate District
(R, C) 2nd Senate District
(D, WF) 48th Senate District
(D, WF) 37th Senate District
(R, C) 3rd Senate District
(D) 20th Senate District
(R, C) 51st Senate District
(R, C) 58th Senate District
(R) 1st Senate District
(D, WF) 13th Senate District
(R, C) 5th Senate District
(D, WF) 33rd Senate District
(R) 39th Senate District
(D) 23rd Senate District
(D) 32nd Senate District
(D, WF) 52nd Senate District
(R, C) 38th Senate District
(R, C) 8th Senate District
2023-S3170A (ACTIVE) - Details
- See Assembly Version of this Bill:
- A3346
- Current Committee:
- Senate Codes
- Law Section:
- Domestic Relations Law
- Laws Affected:
- Amd §§240 & 70, add §240-e, Dom Rel L; amd §§1112 & 651, Fam Ct Act
- Versions Introduced in 2021-2022 Legislative Session:
-
S7425, A5398
2023-S3170A (ACTIVE) - Sponsor Memo
BILL NUMBER: S3170A SPONSOR: SKOUFIS TITLE OF BILL: An act to amend the domestic relations law and the family court act, in relation to establishing "Kyra's Law" PURPOSE OR GENERAL IDEA OF BILL: To protect children by ensuring courts assess any risk to their safety in child custody and visitation proceedings. SUMMARY OF PROVISIONS: Section 1 of the bill identifies the name of this legislation as "Kyra's Law. Section 2 of the bill amends subdivision 1 of section 240 of the domes- tic relations law to require courts to conduct a review of any findings or allegations of child abuse, domestic violence, heightened danger and risk of lethality prior to the issuance of any permanent, initial tempo-
rary, or successive temporary order of custody or visitation. This section defines what the court shall consider when assessing findings and allegations of child abuse, domestic violence, heightened danger or risk of lethality. It clarifies that parties are allowed legal represen- tation by their own choosing or through a court appointed attorney during such court proceedings, and requires courts to put decision-mak- ing in writing and on the record. This section also creates a rebuttable presumption that the court shall not award sole or joint custody or unsupervised visitation to a party who poses a significant risk to the child's safety. Section 2 of the bill amends the domestic relations law to create a new section 240-e to ensure the court prioritizes and promotes the safety of children when making a final determination of custody or visitation. This section identifies specific factors to be considered during this assessment; and creates a rebuttable presumption that custody or visita- tion shall not be awarded to a party who jeopardizes the safety of the child. Definitions for the terms "parental alienation", "friendly parent", "coercive control," and "victims of domestic violence" are clarified. This section prohibits the admissibility of allegations regarding parental alienation or friendly parent when a party credibly alleges domestic violence or child abuse, nor shall such allegations be considered in assessing a child's best interests. Reunification therapy can only be ordered when both parties and the child's attorney agree and the program meets scientific reliability and validity standards. Further, in cases involving domestic violence, child abuse and neglect, or in cases when parties cannot effectively communicate, cooperate with each other and make joint decisions concerning the child, or in cases involving certain orders of protection or a history of coercive control, this section prohibits joint custody without the consent of both parties. Finally, this section requires comprehensive training for judg- es, referees and other hearing officers who preside over child custody proceedings in which one or more parties have alleged domestic violence or child abuse. 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 of the bill amends Section 651 of the Family Court Act to require the Office of Court Administration in collaboration with the Office for the Prevention of Domestic Violence to update petitions to initiate custody and visitation proceedings to include findings or alle- gations of child abuse, domestic violence, heighted danger and risk of lethality to a child safety. Section 5 of the bill amends the Family Court Act to ensure that the same protections as noted above are in place for custody and visitation proceedings in Family Court. Section 6 of the bill amends subdivision a of section eleven hundred twelve of the family court act to ensure a party's decision to appeal an initial or successive temporary order is permitted. Section 7 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. 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. Too many abus- ers 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 former partners. 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-ordered visit with her abusive 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 2 years 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 former intimate partners. Yet courts continue to discount or mini- mize 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. According to research by Dr. Daniel Saunders of the University of Michigan, in conjunction with the U.S. Department of Justice, "domestic violence is frequently unde- tected in custody cases or ignored as a significant factor in determin- ing custody or visitation." The study also found that a lack of know- ledge in domestic violence and child abuse leads judges to accuse victims of abuse of lying, and even when there is evidence the courts dismiss and discount the violence. (2) 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. Children exposed to domestic violence and child abuse will live shorter lives and suffer a lifetime of health and social problems.(3) Most of the harm is not caused by the immediate physical injuries, but from living with the fear and stress abusers cause. Tragically, the courts have been slow to integrate this research into its practices. This bill would require Family and Supreme courts to conduct a review of any findings or allegations of child abuse, domestic violence, height- ened danger, and risk of lethality prior to issuing a permanent, initial temporary or successive temporary order of custody or visitation. Such review would include assessing allegations that one party committed or threatened to commit, an act of domestic violence; a history of domestic violence, child abuse or neglect, child sexual abuse or incidents involving harm or risk of harm to the child; police reports, including domestic incident reports; and other factors finding or alleging height- ened danger or risk of lethality for the child. If the court determines that limitations or restrictions of a party's custody, visitation or contact with the child are necessary, the bill requires the court to issue a temporary order of custody or visitation that prioritizes the avoidance of significant risk to the child's safe- ty. The bill would create a rebuttable presumption that the court shall not award sole or joint custody to any party who jeopardizes or may jeopard- ize the safety of the child. The court's decision-making would be stated on the record and in writing, and both parties to the proceeding would have the right to appeal to the appropriate appellate division. The bill specifies that, when making a final determination of custody or visitation based on the best interests of a child, the court must prior- itize and promote the safety of the child. Such assessment would include: whether either party is more likely to protect the safety of the child; any allegations of domestic violence or child abuse; prior police reports, such as domestic incident reports or orders of protection; commission of family offenses; whether either party has access to firearms; threats to harm or kill the child, the other parent, others or companion animals; sexual abuse or coerced sexual activity; and other factors indicating potential heightened danger and risk of lethality for the child. Research finds that courts often err in awarding child custody or visi- tation to abusers due to the debunked theory of "parental alienation," the idea 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 the courts' rejection of parents' abuse claims, causing non-of- fending parents to lose custody to the parent accused of abuse. This bill would prohibit the court in cases involving domestic violence or child abuse from denying custody or visitation to a party due to allega- tions that the child has become estranged from a parent as a result of "parental alienation." Nor would the court be permitted from ordering reunification treatment designed to repair a party's relationship with a child due to parental alienation. Further, the court would not be able to base custody or visitation decisions on its presumption that a child's deficient or negative relationship with a parent was caused by the other parent. In any final order of custody or visitation where domestic violence or child abuse is found, the bill would prohibit courts from awarding joint custody, unless both parties' consent and the court determines the parties can effectively communicate, cooperate with each other and make joint decisions concerning the child. Currently, judges hearing custody and visitation cases must obtain training in domestic violence every two years, not nearly enough to understand the complexities and nuances of family violence. This bill would expand those receiving such training to include referees and other hearing officers and would require such individuals to obtain a minimum of thirty hours of initial training in domestic violence and child abuse, followed with ten hours of additional training every two years. The Office for the Prevention of Domestic Violence would contract with the New York State Coalition Against Domestic Violence, to develop the training, along with other nonprofit entities with expertise in child abuse or gender-based violence. Such training, which would be updated at least once every two years, would include instruction on: relevant stat- utes and case law; the dynamics of domestic violence and child abuse; abusive tactics and coercive control; increased risk of violence during court proceedings; assessment of lethality; etc. Training would be offered by the state agency and domestic violence advocates, in consul- tation with the office of court administration. PRIOR LEGISLATIVE HISTORY: Senate 2021-2022: S07425A, Recommitted to Rules Assembly 2021-2022: A5398A, Amended and Recommitted to Judiciary FISCAL IMPLICATIONS: Undetermined EFFECTIVE DATE: The 120th 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://kyraschampions.org/kyras-story/ (2) Daniel G. Saunders, Ph.D., Kathleen C. Faller, Ph.D., Richard M. Tolman, Ph.D., Child Custody Evaluators' Beliefs About Domestic Abuse Allegations: Their Relationship to Evaluator Demographics, Background, Domestic Violence Knowledge and Custody-Visitation Recommendations (2012) Available at https://www.ojp.gov/pdffilesl/nij/grants/238891.pdf (3) 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 Medi- cine. 1998; 14:245- 258. Available at https://www.ncbi.nlm.nih.gov/pubmed/9635069.
2023-S3170A (ACTIVE) - Bill Text download pdf
S T A T E O F N E W Y O R K ________________________________________________________________________ 3170--A 2023-2024 Regular Sessions I N S E N A T E January 30, 2023 ___________ Introduced by Sens. SKOUFIS, BORRELLO, CLEARE, COMRIE, COONEY, GOUNARDES, HARCKHAM, HINCHEY, KRUEGER, MARTINS, MATTERA, MURRAY, OBER- ACKER, PALUMBO, RAMOS, ROLISON, SEPULVEDA, WEBER, WEIK -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the domestic relations law and the family court act, in relation to 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: 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 MUST ENSURE CHILDREN'S SAFETY AS A THRESHOLD 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 added 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, EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD06231-03-3
S. 3170--A 2 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. WHEN APPROPRIATE, THE COURT SHALL ASSIGN COUNSEL TO THE PARTIES, PURSUANT TO ARTICLE TWO OF THE FAMILY COURT ACT. 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, counter- claim or other sworn responsive pleading that the other party has committed an act of domestic violence against the party making the alle- gation or a family or household member of either party, as such family or household member is defined in article eight of the family court act, and such allegations are proven by a preponderance of the evidence, the court must consider the effect of such domestic violence upon the best interests of the child, together with such other facts and circumstances as the court deems relevant in making a direction pursuant to this section and state on the record how such findings, facts and circum- stances 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 treat- ment for the child, then that parent shall not be deprived of custody, visitation or contact with the child, or restricted in custody, visita- tion 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 arrange- ment 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 dispositional hearing on the petition under article ten or the permanency hearing under article ten-A of the family court act and, upon referral from the supreme court, the hearing to resolve the matter of custody or visitation in the proceeding pending in the supreme court; provided however, the court must determine custody or visitation in accordance with the terms of this section. An order directing the payment of child support shall contain the social security numbers of the named parties. In all cases there shall be no prima facie right to the custody of the child in either parent. Such direction shall make provision for child support out of the proper- ty of either or both parents. The court shall make its award for child support pursuant to subdivision one-b of this section. Such direction may provide for reasonable visitation rights to the maternal and/or paternal grandparents of any child of the parties. Such direction as it applies to rights of visitation with a child remanded or placed in the care of a person, official, agency or institution pursuant to article S. 3170--A 3 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. (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 ANY FIND- INGS OR ALLEGATIONS OF CHILD ABUSE, DOMESTIC VIOLENCE, HEIGHTENED DANGER AND RISK OF LETHALITY, AND the decisions and reports listed in subpara- graph 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 ANY FINDINGS OR ALLEGATIONS OF CHILD S. 3170--A 4 ABUSE, DOMESTIC VIOLENCE, HEIGHTENED DANGER AND RISK OF LETHALITY, AND the decisions and reports listed in subparagraph three of this para- graph, unless such a review has been conducted within ninety days prior to the issuance of such order. (3) [Decisions] FINDINGS AND ALLEGATIONS OF CHILD ABUSE, DOMESTIC VIOLENCE, HEIGHTENED DANGER AND RISK OF LETHALITY, AND THE DECISIONS and reports for review. The court shall conduct a review of the following: (i) related decisions in court proceedings initiated pursuant to arti- cle ten of the family court act, and all warrants issued under the fami- ly court act; [and] (ii) WHETHER EITHER PARTY TO THE ACTION ALLEGES THAT THE OTHER PARTY TO THE PROCEEDING HAS COMMITTED, OR HAS THREATENED TO COMMIT, AN ACT OF CHILD ABUSE AGAINST SUCH CHILD, OR HAS COMMITTED, OR HAS THREATENED TO COMMIT, AN ACT OF DOMESTIC VIOLENCE AGAINST THE PARTY MAKING THE ALLEGA- TION 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; (III) A HISTORY OF DOMESTIC VIOLENCE, CHILD ABUSE OR NEGLECT, CHILD SEXUAL ABUSE OR INCIDENTS INVOLVING HARM, OR RISK OF HARM, TO A CHILD; (IV) POLICE REPORTS, INCLUDING DOMESTIC VIOLENCE INCIDENT REPORTS, REPORTING INCIDENTS INVOLVING CHILD ABUSE OR DOMESTIC VIOLENCE; (V) FINDINGS AND ALLEGATIONS OF CHILD ABUSE, DOMESTIC VIOLENCE, HEIGHTENED DANGER AND RISK OF LETHALITY, 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 POSSESSION OF OR ACCESS TO 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 COERCED SEXUAL ACTIVITY OF 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) A PARTY'S PATTERN OF ALCOHOL OR SUBSTANCE ABUSE THAT PLACES THE CHILD AT HEIGHTENED DANGER OR RISK OF LETHALITY; (H) INCIDENTS OF VIOLENCE DURING PREGNANCY; (I) INCIDENTS OF STALKING OR CYBER STALKING; AND (J) COERCIVE CONTROL, AS DEFINED IN PARAGRAPH (D) OF SUBDIVISION ONE OF SECTION TWO HUNDRED FORTY-E OF THIS ARTICLE; 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. (4) CONDITIONS OF CUSTODY OR VISITATION. IF THE COURT DETERMINES 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 ALLEGATIONS OF CHILD ABUSE, DOMESTIC VIOLENCE, HEIGHTENED DANGER AND RISK OF LETHALITY, AND THE DECISIONS AND REPORTS LISTED IN SUBPARAGRAPH THREE OF THIS PARAGRAPH, THE COURT SHALL SET FORTH CONDITIONS OF CUSTODY OR VISITATION IN A TEMPORARY ORDER OF CUSTODY OR VISITATION THAT PRIOR- ITIZES THE AVOIDANCE OF SIGNIFICANT RISK TO THE CHILD'S SAFETY. WHEN THE COURT DECIDES TO ISSUE OR TO NOT ISSUE SUCH TEMPORARY ORDER, THE PARTIES SHALL BE NOTIFIED OF THEIR RIGHT TO APPEAL, PURSUANT TO ARTICLE ELEVEN OF THE FAMILY COURT ACT. (I) THERE SHALL BE A REBUTTABLE PRESUMPTION THAT THE COURT SHALL NOT AWARD, IN A TEMPORARY ORDER FOR CUSTODY OR VISITATION, SOLE OR JOINT S. 3170--A 5 CUSTODY OR UNSUPERVISED VISITATION TO A PARTY WHO POSES A SIGNIFICANT RISK TO THE CHILD'S SAFETY. (II) THE COURT SHALL STATE ON THE RECORD, AND IN WRITING, ANY FINDINGS OR ALLEGATIONS OF CHILD ABUSE, DOMESTIC VIOLENCE, HEIGHTENED DANGER AND RISK OF LETHALITY, AND ANY DECISIONS AND REPORTS CONSIDERED IN RENDERING ITS DECISION AND THE REASONS FOR THE LIMITATIONS OR RESTRICTIONS PLACED ON A PARTY'S CUSTODY, VISITATION OR CONTACT WITH SUCH CHILD. (III) 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. (5) 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)] (6) 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 of this paragraph. [(6)] (7) 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 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] FIVE of this paragraph and may issue temporary or permanent custody or visitation orders. [(7)] (8) 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 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. 1. FOR THE PURPOSES OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS: S. 3170--A 6 (A) "PARENTAL ALIENATION" MEANS CLAIMS THAT A CHILD HAS BECOME ESTRANGED FROM A PARENT OR LEGAL GUARDIAN AS A RESULT OF PSYCHOLOGICAL MANIPULATION BY THE OTHER PARENT OR LEGAL GUARDIAN. (B) "VICTIM OF DOMESTIC VIOLENCE" SHALL HAVE THE SAME MEANING AS DEFINED IN SECTION FOUR HUNDRED FIFTY-NINE-A OF THE SOCIAL SERVICES LAW. (C) "FRIENDLY PARENT" MEANS THE PROPENSITY OF A PARENT OR LEGAL GUARD- IAN TO ACTIVELY SUPPORT A CHILD'S CONTACT AND RELATIONSHIP WITH THE OTHER PARENT OR LEGAL GUARDIAN, OR THE ABILITY OF SUCH PARENT OR LEGAL GUARDIAN TO COOPERATE IN, AND RESOLVE DISPUTES, REGARDING MATTERS AFFECTING SUCH CHILD. (D) "COERCIVE CONTROL" MEANS A PATTERN OF BEHAVIOR THAT IN PURPOSE OR EFFECT UNREASONABLY RESTRICTS A PARENT'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 PARENT FROM FRIENDS, FAMILY OR OTHER SOURCES OF SUPPORT; (II) INTERFERING WITH THE OTHER PARENT'S FREEDOM OF MOVEMENT; (III) DEPRIVING THE OTHER PARENT OF BASIC NECESSITIES SUCH AS FOOD, SLEEP, CLOTHING, HOUSING, MEDICATION OR MEDICAL CARE; (IV) CONTROLLING, REGULATING, SURVEILLING OR MONITORING THE OTHER PARENT'S MOVEMENTS, COMMUNICATIONS, DAILY BEHAVIOR, APPEARANCE, FINANCES, ECONOMIC RESOURCES OR ACCESS TO SERVICES; (V) COMPELLING THE OTHER PARENT 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 PARENT HAS A RIGHT TO ABSTAIN OR TO ABSTAIN FROM CONDUCT IN WHICH THE OTHER PARENT HAS A RIGHT TO ENGAGE; (VI) INTERFERING WITH THE OTHER PARENT'S EDUCATION OR EMPLOYMENT; (VII) FORCING OR COMPELLING THE OTHER PARENT 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 MAY BE ADMIT- TED, PURSUANT TO ARTICLE TEN OF THE FAMILY COURT ACT. PROMOTING THE SAFETY OF A CHILD SHALL INCLUDE PREVENTING DIRECT PHYSICAL AND/OR EMOTIONAL HARM TO SUCH CHILD. SUCH ASSESSMENT SHALL INCLUDE, BUT NOT BE LIMITED TO: (A) WHETHER EITHER PARTY IS MORE LIKELY TO PROTECT THE SAFETY OF THE CHILD, AND WHETHER EITHER PARTY POSES A SIGNIFICANT RISK TO THE SAFETY OF THE CHILD; (B) WHETHER SUCH ORDER WOULD DISRUPT CONTINUITY IN THE CHILD'S HOME, ENVIRONMENT OR EXISTING PRIMARY CARETAKING RELATIONSHIPS; (C) A HISTORY OF DOMESTIC VIOLENCE, CHILD ABUSE OR NEGLECT, CHILD SEXUAL ABUSE OR INCIDENTS INVOLVING HARM, OR RISK OF HARM, TO A CHILD; (D) ANY FINDINGS OR ALLEGATIONS OF CHILD ABUSE, DOMESTIC VIOLENCE, HEIGHTENED DANGER AND RISK OF LETHALITY, 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 POSSESSION OF OR ACCESS TO FIREARMS; S. 3170--A 7 (III) THREATS TO HARM OR KILL THE CHILD, THE OTHER PARENT, THAT PARENT'S CHILDREN, SELF OR OTHERS, OR COMPANION ANIMALS; (IV) SEXUAL ABUSE OR COERCED SEXUAL ACTIVITY OF THE CHILD OR OTHER PARENT; (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) A PARTY'S PATTERN OF ALCOHOL OR SUBSTANCE ABUSE THAT PLACES THE CHILD AT HEIGHTENED DANGER OR RISK OF LETHALITY; (VIII) INCIDENTS OF VIOLENCE DURING PREGNANCY; (IX) INCIDENTS OF STALKING OR CYBER STALKING; AND (X) COERCIVE CONTROL, AS DEFINED IN PARAGRAPH (D) OF SUBDIVISION ONE OF THIS SECTION; (E) WHETHER EITHER PARTY HAS BEEN FOUND TO HAVE COMMITTED AN ACT WHICH WOULD CONSTITUTE DISORDERLY CONDUCT, UNLAWFUL DISSEMINATION OR PUBLICA- TION OF AN INTIMATE IMAGE, HARASSMENT IN THE FIRST DEGREE, HARASSMENT IN THE SECOND DEGREE, AGGRAVATED HARASSMENT IN THE SECOND DEGREE, SEXUAL MISCONDUCT, FORCIBLE TOUCHING, SEXUAL ABUSE IN THE THIRD DEGREE, SEXUAL ABUSE IN THE SECOND DEGREE AS SET FORTH IN SUBDIVISION ONE OF SECTION 130.60 OF THE PENAL LAW, STALKING IN THE FIRST DEGREE, STALKING IN THE SECOND DEGREE, STALKING IN THE THIRD DEGREE, STALKING IN THE FOURTH DEGREE, CRIMINAL MISCHIEF, MENACING IN THE SECOND DEGREE, MENACING IN THE THIRD DEGREE, RECKLESS ENDANGERMENT, CRIMINAL OBSTRUCTION OF BREATH- ING OR BLOOD CIRCULATION, STRANGULATION IN THE SECOND DEGREE, STRANGULA- TION IN THE FIRST DEGREE, ASSAULT IN THE SECOND DEGREE, ASSAULT IN THE THIRD DEGREE, AN ATTEMPTED ASSAULT, IDENTITY THEFT IN THE FIRST DEGREE, IDENTITY THEFT IN THE SECOND DEGREE, IDENTITY THEFT IN THE THIRD DEGREE, GRAND LARCENY IN THE FOURTH DEGREE, GRAND LARCENY IN THE THIRD DEGREE, COERCION IN THE SECOND DEGREE OR COERCION IN THE THIRD DEGREE AS SET FORTH IN SUBDIVISIONS ONE, TWO AND THREE OF SECTION 135.60 OF THE PENAL LAW BETWEEN SPOUSES OR FORMER SPOUSES, OR BETWEEN PARENT AND CHILD OR BETWEEN MEMBERS OF THE SAME FAMILY OR HOUSEHOLD; (F) WHETHER EITHER 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 (G) WHICH PARTY HAS BEEN ATTENDING TO THE DAILY PHYSICAL, EMOTIONAL, DEVELOPMENTAL, EDUCATIONAL, AND SPECIAL NEEDS OF THE CHILD. 3. THERE SHALL BE A REBUTTABLE PRESUMPTION THAT CUSTODY OR VISITATION SHALL NOT BE AWARDED TO A PARTY WHO JEOPARDIZES THE SAFETY OF THE CHILD. 4. (A) IN ANY PROCEEDING FOR CUSTODY OR VISITATION WHERE A PARTY CRED- IBLY ALLEGES DOMESTIC VIOLENCE OR CHILD ABUSE, ALLEGATIONS REGARDING PARENTAL ALIENATION OR FRIENDLY PARENT SHALL NOT BE ADMISSIBLE AGAINST THE PARTY THAT HAS CREDIBLY ALLEGED DOMESTIC VIOLENCE OR CHILD ABUSE, NOR SHALL ALLEGATIONS OF PARENTAL ALIENATION OR FRIENDLY PARENT BE CONSIDERED IN ASSESSING A CHILD'S BEST INTERESTS. (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. S. 3170--A 8 (C) NO PSYCHOLOGICAL OR MEDICAL THEORIES OR LABELS RELATED TO A CHILD'S RELUCTANCE TO INTERACT WITH A PARTY SHALL BE ADMITTED INTO EVIDENCE UNLESS THEY ARE BASED ON EMPIRICAL PROOF OF SCIENTIFIC RELI- ABILITY AND VALIDITY AND GENERALLY ACCEPTED BY THE SCIENTIFIC AND PROFESSIONAL COMMUNITY. (D) NO TREATMENT PROGRAM INTENDED TO REUNITE A CHILD WITH A PARTY FOR WHOM THAT CHILD IS ESTRANGED SHALL BE ORDERED BY THE COURT WITHOUT CONSENT OF BOTH PARTIES AND THE ATTORNEY FOR THE CHILD AND SCIENTIF- ICALLY VALID AND GENERALLY ACCEPTED PROOF OF THE EFFECTIVENESS AND THER- APEUTIC VALUE OF SUCH PROGRAM. 5. IN CASES INVOLVING DOMESTIC VIOLENCE, CHILD ABUSE OR NEGLECT, OR A HISTORY OF COERCIVE CONTROL, OR WHERE THE PARTIES CANNOT EFFECTIVELY COMMUNICATE, COOPERATE WITH EACH OTHER AND MAKE JOINT DECISIONS CONCERN- ING THE CHILD, OR IN CASES WHERE THERE IS AN EXISTING OR PRIOR FULL STAY AWAY ORDER OF PROTECTION AGAINST A PARTY OR WHEN THERE IS AN EXISTING TEMPORARY ORDER OF PROTECTION ENTERED EX PARTE, NO ORDER OF JOINT CUSTO- DY SHALL BE MADE WITHOUT THE CONSENT OF BOTH PARTIES. 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) BEFORE JUDGES, REFEREES, OR OTHER HEARING OFFICERS PRESIDE OVER CHILD CUSTODY PROCEEDINGS IN WHICH ONE OR MORE PARTIES HAVE ALLEGED DOMESTIC VIOLENCE OR CHILD ABUSE, THEY SHALL COMPLETE AT LEAST THIRTY HOURS OF INITIAL TRAINING FOR THE HANDLING OF SUCH CASES. THE OFFICE FOR THE PREVENTION OF DOMESTIC VIOLENCE SHALL, WITHIN AMOUNTS APPROPRIATED FOR SUCH PURPOSE, CONTRACT EXCLUSIVELY WITH THE ORGANIZATION DESIGNATED BY THE FEDERAL DEPARTMENT OF HEALTH AND HUMAN SERVICES TO COORDINATE STATEWIDE IMPROVEMENTS WITHIN LOCAL COMMUNITIES, SOCIAL SERVICES SYSTEMS, AND PROGRAMMING REGARDING THE PREVENTION AND INTERVENTION OF DOMESTIC VIOLENCE IN NEW YORK STATE AND OTHER NONPROFIT ENTITIES WITH WHOM IT SUBCONTRACTS WITH EXPERTISE IN CHILD ABUSE OR GENDER-BASED VIOLENCE, TO DEVELOP SUCH TRAINING. SUCH ENTITY, OR ENTITIES IN PARTNER- SHIP, SHALL REVIEW AND UPDATE THE TRAINING AT LEAST ONCE EVERY TWO YEARS. IN CONSULTATION WITH THE OFFICE OF COURT ADMINISTRATION, SUCH ENTITIES, OR ENTITIES IN PARTNERSHIP, SHALL BE RESPONSIBLE FOR PROVIDING SUCH TRAINING TO JUDGES, REFEREES, AND OTHER HEARING OFFICERS HANDLING CHILD CUSTODY PROCEEDINGS. SUCH TRAINING SHALL INCLUDE, BUT NOT BE LIMITED TO: (1) A REVIEW OF RELEVANT STATUTES AND CASE LAW PERTAINING TO DOMESTIC VIOLENCE AND CHILD ABUSE; (2) THE DYNAMICS AND EFFECTS OF DOMESTIC VIOLENCE AND CHILD ABUSE, INCLUDING BUT NOT LIMITED TO, EMOTIONAL, FINANCIAL, PHYSICAL, TECHNOLOG- ICAL AND SEXUAL ABUSE, AND AN UNDERSTANDING OF THE BARRIERS AND FEARS ASSOCIATED WITH REPORTING DOMESTIC VIOLENCE AND CHILD ABUSE AND WHY VICTIMS MAY NOT HAVE DOCUMENTED EVIDENCE OF ABUSE; (3) TACTICS COMMONLY USED BY ONE PARTY TO INDUCE FEAR IN, OR DOMINATE OR CONTROL A PARTNER OR CHILD, INCLUDING VERBAL, EMOTIONAL, PSYCHOLOG- ICAL, AND/OR ECONOMIC ABUSE; ISOLATION; EFFORTS TO BUILD TRUST AND AN EMOTIONAL CONNECTION WITH A CHILD TO SUPPORT FUTURE MANIPULATION; COER- CIVE CONTROL; EXPLOITATION; ABUSE; THREATS; CONTROLLING AND HARASSING BEHAVIORS, INCLUDING MONITORING OF A PARTNER'S LOCATION AND ACTIVITIES; USE OF OPPRESSIVE BEHAVIOR DESIGNED TO DEPRIVE A PARTNER OF THEIR RIGHTS AND LIBERTIES AND ESTABLISHING A REGIME OF DOMINATION IN THE PARTNER'S PERSONAL LIFE; LITIGATION ABUSE; UNLAWFUL DISSEMINATION OR PUBLICATION S. 3170--A 9 OF AN INTIMATE IMAGE; AND DEMANDS FOR CUSTODY IN ORDER TO PRESSURE THE PARTNER TO RETURN OR PUNISH THE PARTNER FOR LEAVING; (4) KNOWLEDGE OF TRAUMA, PARTICULARLY AS IT RELATES TO SEXUAL ABUSE AND THE RISKS POSED TO CHILDREN AND THE LONG-TERM DANGERS AND IMPACTS POSED BY THE PRESENCE OF ADVERSE CHILDHOOD EXPERIENCES; (5) THE INCREASED RISK OF ESCALATING VIOLENCE THAT OCCURS DURING CHILD CUSTODY PROCEEDINGS; (6) HOW TO ASSESS FINDINGS OR ALLEGATIONS OF CHILD ABUSE, DOMESTIC VIOLENCE, HEIGHTENED DANGER AND RISK OF LETHALITY TO A CHILD'S SAFETY, PURSUANT TO PARAGRAPH (D) OF SUBDIVISION TWO OF THIS SECTION FOR THE PURPOSE OF ISSUING A TEMPORARY EMERGENCY ORDER; (7) EDUCATION REGARDING THE HARM COURTS MAY CAUSE CHILDREN IN CHILD CUSTODY CASES WHERE DOMESTIC VIOLENCE OR CHILD ABUSE IS PRESENT BY RELY- ING ON NON-SCIENTIFIC THEORIES SUCH AS PARENTAL ALIENATION, PARENTAL 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 AND THE DANGER OF BASING CHILD CUSTODY DECISIONS ON CLAIMS THAT A CHILD'S DEFICIENT OR NEGATIVE RELATIONSHIP WITH A PARENT IS CAUSED BY THE OTHER PARENT; (8) THE INVESTIGATION PROCESS ONCE A LAW ENFORCEMENT AGENCY OR A LOCAL DEPARTMENT OF SOCIAL SERVICES HAS RECEIVED A REPORT OF SUSPECTED CHILD ABUSE, INCLUDING THE LIMITATIONS OF INVESTIGATING REPORTS OF SUSPECTED CHILD ABUSE; AND (9) APPROPRIATE EXPERIENCE AND QUALIFICATIONS OF CHILD CUSTODY EVALU- ATORS AND MENTAL HEALTH TREATMENT PROVIDERS. (B) ONCE INITIAL TRAINING REQUIREMENTS HAVE BEEN MET, JUDGES, REFER- EES, AND OTHER HEARING OFFICERS PRESIDING OVER CHILD CUSTODY PROCEEDINGS IN WHICH ONE OR MORE PARTIES HAVE ALLEGED DOMESTIC VIOLENCE OR CHILD SEXUAL ABUSE SHALL COMPLETE AT LEAST TEN HOURS OF TRAINING EVERY TWO YEARS IN ORDER TO REMAIN ELIGIBLE TO HANDLE SUCH PROCEEDINGS. § 5. 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 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 ALLEGATIONS OF CHILD ABUSE, DOMESTIC VIOLENCE, HEIGHTENED DANGER AND RISK OF LETHALITY, AND THE DECISIONS AND REPORTS LISTED IN SUBPARAGRAPH THREE 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 ON THE RECORD, AND IN WRITING, ANY FINDINGS OR ALLEGA- TIONS OF CHILD ABUSE, DOMESTIC VIOLENCE, HEIGHTENED DANGER AND RISK OF LETHALITY, AND THE PRIOR DECISIONS AND REPORTS CONSIDERED IN RENDERING S. 3170--A 10 ITS DECISION AND THE REASONS FOR ANY LIMITATIONS OR RESTRICTIONS PLACED ON A PARTY'S CUSTODY, VISITATION OR CONTACT WITH SUCH CHILD. ANY PARTY TO A PROCEEDING FOR A TEMPORARY ORDER 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 MAY BE ADMITTED, PURSUANT TO ARTICLE TEN OF THE FAMILY COURT ACT. PROMOTING THE SAFETY OF A CHILD SHALL INCLUDE PREVENTING DIRECT PHYSICAL AND/OR EMOTIONAL HARM TO SUCH CHILD AND SHALL BE ASSESSED BY CONSIDERING ANY FINDINGS OR ALLEGATIONS OF CHILD ABUSE, DOMESTIC VIOLENCE, HEIGHTENED DANGER AND RISK OF LETHALITY, AND DECISIONS AND REPORTS IDENTIFIED IN SUBPARAGRAPH THREE 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, CHILD ABUSE OR NEGLECT, OR A HISTORY OF COERCIVE CONTROL, OR WHERE THE PARTIES CANNOT EFFECTIVELY COMMUNICATE, COOPERATE WITH EACH OTHER AND MAKE JOINT DECISIONS CONCERN- ING THE CHILD, OR IN CASES WHERE THERE IS AN EXISTING OR PRIOR FULL STAY AWAY ORDER OF PROTECTION AGAINST A PARTY OR WHEN THERE IS AN EXISTING TEMPORARY ORDER OF PROTECTION ENTERED EX PARTE, NO ORDER OF JOINT CUSTO- DY SHALL BE MADE WITHOUT THE CONSENT OF BOTH PARTIES. 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, 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 AS DESCRIBED PURSUANT TO PARAGRAPH (B) OF SUBDIVISION SIX OF SECTION TWO HUNDRED FORTY-E OF THIS CHAPTER. § 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. S. 3170--A 11 (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, DOMESTIC VIOLENCE, HEIGHTENED DANGER AND RISK OF LETHALITY 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 MUST ENSURE CHILDREN'S SAFETY AS A THRES- HOLD 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 ANY FINDINGS OR ALLEGATIONS OF CHILD ABUSE, DOMESTIC VIOLENCE, HEIGHTENED DANGER AND RISK OF LETHALITY TO A CHILD'S SAFETY, AND the decisions and reports listed in paragraph three of this subdivision. 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. WHEN APPROPRIATE, THE COURT SHALL ASSIGN COUNSEL TO THE PARTIES, PURSUANT TO ARTICLE TWO OF THIS CHAPTER. 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 ANY FINDINGS OR ALLEGATIONS OF CHILD ABUSE, DOMESTIC VIOLENCE, HEIGHTENED DANGER AND RISK OF LETHALITY, AND 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, DOMESTIC VIOLENCE, HEIGHTENED DANGER AND RISK OF LETHALITY, AND THE DECISIONS and reports for review. The court shall conduct a review of the following: (i) related decisions in court proceedings initiated pursuant to arti- cle ten of this act, and all warrants issued under this act; [and] (ii) WHETHER EITHER PARTY TO THE ACTION ALLEGES THAT THE OTHER PARTY TO THE PROCEEDING HAS COMMITTED, OR HAS THREATENED TO COMMIT, AN ACT OF CHILD ABUSE AGAINST SUCH CHILD, OR HAS COMMITTED, OR HAS THREATENED TO COMMIT, AN ACT OF DOMESTIC VIOLENCE AGAINST THE PARTY MAKING THE ALLEGA- TION OR A FAMILY OR HOUSEHOLD MEMBER OF EITHER PARTY, AS SUCH FAMILY OR HOUSEHOLD MEMBER IS DEFINED IN ARTICLE EIGHT OF THIS CHAPTER; (III) A HISTORY OF DOMESTIC VIOLENCE, CHILD ABUSE OR NEGLECT, CHILD SEXUAL ABUSE OR INCIDENTS INVOLVING HARM, OR RISK OF HARM, TO A CHILD; (IV) POLICE REPORTS, INCLUDING DOMESTIC VIOLENCE INCIDENT REPORTS, REPORTING INCIDENTS INVOLVING CHILD ABUSE OR DOMESTIC VIOLENCE; (V) FINDINGS AND ALLEGATIONS OF CHILD ABUSE, DOMESTIC VIOLENCE, HEIGHTENED DANGER AND RISK OF LETHALITY, 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 POSSESSION OF OR ACCESS TO FIREARMS; (C) THREATS TO HARM OR KILL THE CHILD, THE OTHER PARENT, THAT PARENT'S CHILDREN, SELF OR OTHERS, OR COMPANION ANIMALS; S. 3170--A 12 (D) SEXUAL ABUSE OR COERCED SEXUAL ACTIVITY OF THE CHILD OR OTHER PARENT; (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) A PARTY'S PATTERN OF ALCOHOL OR SUBSTANCE ABUSE THAT PLACES THE CHILD AT HEIGHTENED DANGER OR RISK OF LETHALITY; (H) INCIDENTS OF VIOLENCE DURING PREGNANCY; (I) INCIDENTS OF STALKING OR CYBER STALKING; AND (J) COERCIVE CONTROL, AS DEFINED IN PARAGRAPH (D) 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. 4. APPEAL. SUCH PERMANENT AND TEMPORARY ORDERS OF CUSTODY OR VISITA- TION MAY BE TAKEN AS OF RIGHT TO THE APPELLATE DIVISION OF THE SUPREME COURT. PENDING THE DETERMINATION OF SUCH APPEAL, SUCH ORDER SHALL BE STAYED. A PREFERENCE IN ACCORDANCE WITH RULE FIFTY-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. A NOTICE TO APPEAL UNDER THIS SUBDIVISION MUST BE TAKEN NO LATER THAN TWENTY COURT 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 TWENTY COURT DAYS FROM RECEIPT OF THE ORDER BY THE APPEL- LANT IN COURT, WHICHEVER IS EARLIEST. EXCEPT FOR GOOD CAUSE SHOWN, THE APPEAL HEARING SHALL BE EXPEDITED AND HELD NO LATER THAN NINETY COURT DAYS FROM THE NOTICE TO APPEAL. WHENEVER AN ATTORNEY HAS BEEN APPOINTED TO REPRESENT A PARTY IN A PROCEEDING DESCRIBED IN THIS PARAGRAPH, THE APPOINTMENT SHALL CONTINUE WITHOUT FURTHER COURT ORDER OR APPOINTMENT, PURSUANT TO SUBDIVISION (B) OF SECTION ELEVEN HUNDRED TWENTY OF THIS CHAPTER. 5. 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.] 6. 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 of this subdivision. [6.] 7. 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 paragraph three 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 S. 3170--A 13 counsel, self-represented parties and attorneys for children pursuant to paragraph [four] FIVE of this subdivision and may issue temporary or permanent custody or visitation orders. [7.] 8. Feasibility study. The commissioner of the office of children and family services, in conjunction with the office of court adminis- tration, is hereby authorized and directed to examine, study, evaluate and make recommendations concerning the feasibility of the utilization of computers in family courts which are connected to the statewide central register of child abuse and maltreatment established and main- tained 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 recommendations not later than June first, two thousand nine, and shall submit with the reports such legislative proposals as are deemed necessary to implement the commissioner's recommendations. § 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 from an intermediate or final order in a case involving abuse or neglect PURSUANT TO SECTION SIX HUNDRED FIFTY-ONE OF THIS ACT may be taken as of right to the appellate division of the supreme court. Pending the determination of such appeal, such order shall be stayed where the effect of such order would be to discharge the child, if the family court or the court before which such appeal is pending finds that such a stay is necessary to avoid imminent risk to the child's life or health. A preference in accordance with rule [five thousand five] FIFTY-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. § 9. This act shall take effect on the one hundred twentieth day after it shall have become a law. Effective immediately, the addition, amend- ment and/or repeal of any rule or regulation necessary for the implemen- tation of this act on its effective date are authorized to be made and completed on or before such effective date.
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