S. 5998 2
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 AN ADJOURNMENT OF NO LONGER THAN THIRTY DAYS TO CONFER WITH
COUNSEL, AND THE RIGHT TO SEEK COUNSEL FEES AND EXPENSES, PURSUANT TO
SECTION TWO HUNDRED THIRTY-SEVEN OF THIS ARTICLE. THE COURT SHALL ASSIGN
COUNSEL TO THE ELIGIBLE PARTIES AND CHILDREN, PURSUANT TO ARTICLE TWO OF
THE FAMILY COURT ACT AND SUBDIVISIONS SEVEN AND EIGHT OF SECTION THIR-
TY-FIVE OF THE JUDICIARY LAW. Where either party to an action concerning
custody of or a right to visitation with a child alleges in a sworn
petition or complaint or sworn answer, cross-petition, counterclaim or
other sworn responsive pleading that the other party has committed an
act of domestic violence against the party making the allegation or a
family or household member of either party, as such family or household
member is defined in article eight of the family court act, and such
allegations are proven by a preponderance of the evidence, the court
[must] SHALL consider the effect of such domestic violence upon the best
interests of the child, together with such other facts and circumstances
as the court deems relevant in making a 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] SHALL determine
custody or visitation in accordance with the terms of this section.
An order directing the payment of child support shall contain the
social security numbers of the named parties. In all cases there shall
be no prima facie right to the custody of the child in either parent.
Such direction shall make provision for child support out of the proper-
ty of either or both parents. The court shall make its award for child
support pursuant to subdivision one-b of this section. Such direction
may provide for reasonable visitation rights to the [maternal and/or
paternal] grandparents of any child of the parties. Such direction as it
applies to rights of visitation with a child remanded or placed in the
care of a person, official, agency or institution pursuant to article
S. 5998 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] SHALL contain either a
request for child support enforcement services which would authorize the
collection of the support obligation by the immediate issuance of an
income execution for support enforcement as provided for by this chap-
ter, completed in the manner specified in section one hundred eleven-g
of the social services law; or a statement that the applicant has
applied for or is in receipt of such services; or a statement that the
applicant knows of the availability of such services, has declined them
at this time and where support enforcement services pursuant to section
one hundred eleven-g of the social services law have been declined that
the applicant understands that an income deduction order may be issued
pursuant to subdivision (c) of section fifty-two hundred forty-two of
the civil practice law and rules without other child support enforcement
services and that payment of an administrative fee may be required. The
court shall provide a copy of any such request for child support
enforcement services to the support collection unit of the appropriate
social services district any time it directs payments to be made to such
support collection unit. Additionally, the copy of any such request
shall be accompanied by the name, address and social security number of
the parties; the date and place of the parties' marriage; the name and
date of birth of the child or children; and the name and address of the
employers and income payors of the party from whom child support is
sought or from the party ordered to pay child support to the other
party. Such direction may require the payment of a sum or sums of money
either directly to the custodial parent or to third persons for goods or
services furnished for such child, or for both payments to the custodial
parent and to such third persons; provided, however, that unless the
party seeking or receiving child support has applied for or is receiving
such services, the court shall not direct such payments to be made to
the support collection unit, as established in section one hundred
eleven-h of the social services law. Every order directing the payment
of support shall require that if either parent currently, or at any time
in the future, has health insurance benefits available that may be
extended or obtained to cover the child, such parent is required to
exercise the option of additional coverage in favor of such child and
execute and deliver to such person any forms, notices, documents or
instruments necessary to assure timely payment of any health insurance
claims for such child.
(a-1)(1) [Permanent and initial temporary orders of custody or visita-
tion. Prior to the issuance of any permanent or initial temporary order
of custody or visitation, the court shall conduct a review of the deci-
sions and reports listed in subparagraph three of this paragraph.
(2) Successive temporary orders of custody or visitation. Prior to the
issuance of any successive temporary order of custody or visitation, the
court shall conduct a review of the decisions and reports listed in
subparagraph three of this paragraph, unless such a review has been
conducted within ninety days prior to the issuance of such order.
S. 5998 4
(3) Decisions and reports for review. The court shall conduct a review
of the following:] PROMPT EVIDENTIARY HEARING. UPON THE APPLICATION OF
ANY PARTY TO AN ACTION CONCERNING CUSTODY OF OR VISITATION WITH A CHILD,
OR OF AN ATTORNEY FOR THE CHILD, ASSERTING FACIALLY CREDIBLE ALLEGA-
TIONS, INCLUDING, BUT NOT LIMITED TO, ALLEGATIONS OF DOMESTIC VIOLENCE
THAT, IF TRUE, WOULD POSE A SUBSTANTIAL RISK TO THE SAFETY OF THE CHILD,
THE COURT SHALL HOLD A PROMPT EVIDENTIARY HEARING TO DETERMINE WHETHER
TEMPORARY LIMITATIONS OR CONDITIONS ON THE CUSTODY OR VISITATION RIGHTS
OF THE PARTY AGAINST WHOM SUCH ALLEGATIONS HAVE BEEN MADE ARE NECESSARY
TO AVOID A SUBSTANTIAL RISK TO THE CHILD'S SAFETY. EXCEPT FOR GOOD CAUSE
SHOWN, THE HEARING FOR SUCH DETERMINATION SHALL COMMENCE WITHIN TWENTY
COURT DAYS OF THE APPLICATION FOR SUCH HEARING WITH AN ADJOURNMENT OF UP
TO THIRTY DAYS, IF NEEDED, FOR THE APPEARANCE BY COUNSEL FOR THE PARTIES
AND ATTORNEY FOR THE CHILD. THE COURT SHALL REMIND THE PARTIES OF THEIR
RIGHT TO THE ASSISTANCE OF COUNSEL FOR THE PROMPT EVIDENTIARY HEARING.
DURING SUCH HEARING, ONLY COMPETENT, MATERIAL AND RELEVANT EVIDENCE
SHALL BE ADMITTED; PROVIDED, HOWEVER, THAT CERTIFICATION OR AUTHENTICA-
TION OF A LAW ENFORCEMENT RECORD OR MEDICAL RECORD SHALL NOT BE REQUIRED
FOR THE RECORD, OR A PORTION THEREOF, TO BE ADMITTED. IF A PARTY WAIVES
THEIR RIGHT TO A HEARING UNDER THIS SECTION, THE COURT SHALL ADVISE SUCH
PARTY AT THAT TIME THAT, NOTWITHSTANDING SUCH WAIVER, AN APPLICATION
UNDER THIS SECTION MAY BE MADE AT ANY TIME DURING THE PENDENCY OF THE
PROCEEDINGS. AFTER A HEARING HAS BEEN HELD PURSUANT TO THIS PROVISION,
A PARTY MAY REQUEST A SUBSEQUENT PROMPT EVIDENTIARY HEARING DURING THE
PENDENCY OF LITIGATION FOR GOOD CAUSE SHOWN.
(2) 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) 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.
(2-A) EVIDENCE. THE COURT SHALL ALSO CONSIDER COMPETENT, MATERIAL AND
RELEVANT EVIDENCE, IF PRESENTED TO THE COURT, INCLUDING, BUT NOT LIMITED
TO, THE FOLLOWING; PROVIDED, HOWEVER, THAT CERTIFICATION OR AUTHENTICA-
TION OF A LAW ENFORCEMENT RECORD OR MEDICAL RECORD SHALL NOT BE REQUIRED
FOR THE RECORD, OR A PORTION THEREOF, TO BE ADMITTED:
(I) ANY PARTY'S HISTORY OF DOMESTIC VIOLENCE OR CHILD ABUSE, INCIDENTS
INVOLVING HARM TO A CHILD, OR SUBSTANTIAL RISK TO THE CHILD'S SAFETY;
(II) POLICE REPORTS, INCLUDING DOMESTIC VIOLENCE INCIDENT REPORTS OR
REPORTING OF INCIDENTS INVOLVING CHILD ABUSE OR DOMESTIC VIOLENCE BY A
PARTY; AND
(III) EVIDENCE AND PRIOR JUDICIAL FINDINGS OF CHILD ABUSE, DOMESTIC
VIOLENCE, OR SUBSTANTIAL RISK TO THE CHILD'S SAFETY, INCLUDING BUT NOT
LIMITED TO:
(A) AN INCREASE IN FREQUENCY OR SEVERITY OF DOMESTIC VIOLENCE;
(B) USE OR THREATS TO USE A WEAPON OR DANGEROUS INSTRUMENT, OR UNLAW-
FUL POSSESSION OF FIREARMS;
(C) THREATS TO HARM OR KILL THE CHILD, THE OTHER PARTY, THE OTHER
PARTY'S CHILDREN, SELF OR OTHERS, OR COMPANION ANIMALS;
(D) SEXUAL ABUSE OR OTHER SEXUAL OFFENSES AGAINST THE CHILD OR THE
OTHER PARTY;
S. 5998 5
(E) UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE IMAGE, PURSU-
ANT TO SECTION 245.15 OF THE PENAL LAW;
(F) INCIDENTS INVOLVING OBSTRUCTION OF BREATHING OR STRANGULATION;
(G) ANY PARTY'S PATTERN OF ALCOHOL OR SUBSTANCE ABUSE THAT POSES
SUBSTANTIAL RISK TO THE CHILD'S SAFETY;
(H) INCIDENTS OF VIOLENCE DURING PREGNANCY;
(I) INCIDENTS OF STALKING OR CYBER STALKING; AND
(J) COERCIVE CONTROL, AS DEFINED IN PARAGRAPH (B) OF SUBDIVISION ONE
OF SECTION TWO HUNDRED FORTY-E OF THIS ARTICLE.
(3) CONDITIONS OF CUSTODY OR VISITATION. IF THE COURT FINDS UPON THE
EVIDENCE ADDUCED AT THE HEARING THAT A SUBSTANTIAL RISK EXISTS TO THE
SAFETY OF THE CHILD, THE COURT SHALL SET FORTH CONDITIONS OF CUSTODY OR
VISITATION IN A TEMPORARY ORDER OF CUSTODY OR VISITATION THAT PRIOR-
ITIZES THE AVOIDANCE OF SUBSTANTIAL RISK TO THE CHILD'S SAFETY.
(I) THERE SHALL BE A REBUTTABLE PRESUMPTION THAT THE COURT SHALL NOT
AWARD, IN A TEMPORARY ORDER OF CUSTODY OR VISITATION, SOLE OR JOINT
CUSTODY OR VISITATION THAT IS UNSUPERVISED OR WITHOUT SUFFICIENT
PROTECTIONS OF THE CHILD'S SAFETY TO A PARTY WHO POSES A SUBSTANTIAL
RISK TO THE CHILD'S SAFETY. SUPERVISION IN SUCH CASES MAY ALSO BE
PROVIDED BY A RELATIVE OR OTHER RESOURCE DEEMED APPROPRIATE BY THE
COURT.
(II) THE COURT SHALL STATE IN WRITING OR ON THE RECORD ITS DETERMI-
NATION OF WHETHER A SUBSTANTIAL RISK EXISTS TO THE CHILD'S SAFETY, AND
THE FACTORS, DECISIONS AND REPORTS CONSIDERED IN MAKING SUCH FINDINGS
AND THE REASONS FOR THE LIMITATIONS OR RESTRICTIONS PLACED ON A PARTY'S
CUSTODY, VISITATION OR CONTACT WITH SUCH CHILD. WHEN A PROMPT EVIDENTI-
ARY HEARING HAS BEEN HELD REGARDING AN ALLEGATION OF A SUBSTANTIAL RISK
TO THE CHILD'S SAFETY AND THE COURT HAS RENDERED ITS DECISION, THE
PARTIES SHALL BE NOTIFIED OF THEIR RIGHT TO APPEAL.
(III) IN ADDITION TO THE RIGHT OF APPEAL REGARDING A FINAL ORDER, ANY
PARTY OR THE ATTORNEY FOR THE CHILD IN A PROCEEDING FOR A TEMPORARY
ORDER OF CUSTODY OR VISITATION PURSUANT TO THIS SUBPARAGRAPH IN WHICH A
PROMPT EVIDENTIARY HEARING HAS BEEN HELD REGARDING A FACIALLY CREDIBLE
ALLEGATION OF A SUBSTANTIAL RISK TO THE CHILD'S SAFETY PURSUANT TO THE
PROVISIONS OF THIS PARAGRAPH SHALL HAVE A RIGHT TO APPEAL THE GRANTING
OR DENIAL OF THE TEMPORARY ORDER, OR THE TERMS OF SUCH ORDER, TO THE
APPROPRIATE APPELLATE DIVISION. AN APPEAL UNDER THIS SUBPARAGRAPH SHALL
BE GIVEN A PREFERENCE PURSUANT TO RULE FIVE THOUSAND FIVE HUNDRED TWEN-
TY-ONE OF THE CIVIL PRACTICE LAW AND RULES.
A NOTICE OF APPEAL REGARDING THE GRANTING OR DENIAL OF THE TEMPORARY
ORDER, OR THE TERMS OF SUCH ORDER, BY THE SUPREME COURT UNDER THIS
SUBPARAGRAPH SHALL BE FILED IN ACCORDANCE WITH SUBDIVISION (A) OF
SECTION FIVE THOUSAND FIVE HUNDRED THIRTEEN OF THE CIVIL PRACTICE LAW
AND RULES. A NOTICE OF APPEAL REGARDING THE GRANTING OR DENIAL OF THE
TEMPORARY ORDER, OR THE TERMS OF SUCH ORDER, BY A FAMILY COURT UNDER
THIS SUBDIVISION SHALL BE FILED NO LATER THAN THIRTY DAYS AFTER THE
SERVICE BY A PARTY OR THE CHILD'S ATTORNEY UPON THE APPELLANT OF ANY
ORDER FROM WHICH THE APPEAL IS TAKEN OR RECEIPT OF THE ORDER IN COURT OR
THIRTY-FIVE DAYS FROM MAILING OR ELECTRONIC TRANSMISSION OF THE ORDER BY
THE COURT, WHICHEVER IS EARLIEST.
PENDING THE DETERMINATION OF SUCH APPEAL, THE APPELLATE DIVISION IN
WHICH THE APPEAL IS PENDING MAY STAY THE ORDER ON APPEAL PURSUANT TO
SUBDIVISION (C) OF SECTION FIVE THOUSAND FIVE HUNDRED NINETEEN OF THE
CIVIL PRACTICE LAW AND RULES WHERE SUCH COURT DETERMINES THAT THE EFFECT
OF THE ORDER ON APPEAL CREATES A SUBSTANTIAL RISK TO THE SAFETY OF THE
CHILD AND THAT A STAY IS NECESSARY TO AVOID SUCH RISK. THE PARTY APPLY-
S. 5998 6
ING FOR THE STAY SHALL PROVIDE REASONABLE NOTICE TO THE ATTORNEYS FOR
ALL PARTIES AND THE ATTORNEY FOR THE CHILD OF THE TIME AND PLACE OF SUCH
APPLICATION. THE PARTY APPLYING FOR THE STAY SHALL STATE IN THE APPLICA-
TION THE ERRORS OF FACT OR LAW ALLEGEDLY COMMITTED BY THE TRIAL COURT. A
PARTY APPLYING TO THE APPELLATE DIVISION FOR THE STAY SHALL MAKE REASON-
ABLE EFFORT TO OBTAIN A COMPLETE TRANSCRIPT OF THE PROCEEDING BEFORE THE
TRIAL COURT IN ACCORDANCE WITH THE RULES OF THE APPLICABLE APPELLATE
DIVISION.
(IV) NOTHING CONTAINED IN THIS SUBPARAGRAPH SHALL BE DEEMED IN ANY WAY
TO LIMIT, RESTRICT, EXPAND OR IMPAIR THE RIGHTS OF ANY PARTY TO FILE FOR
A MODIFICATION OF A TEMPORARY ORDER AS IS OTHERWISE PROVIDED BY LAW.
(4) 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) 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 subparagraph [three] TWO of this paragraph.
(6) After issuing a temporary emergency order. After issuing a tempo-
rary emergency order of custody or visitation, the court shall conduct
reviews of the decisions and reports on registries as required pursuant
to subparagraph [three] TWO 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 of this paragraph and may issue temporary or permanent
custody or visitation orders.
(7) EXPEDITED HEARING REQUEST. NOTHING IN THIS PARAGRAPH SHALL BE
CONSTRUED TO LIMIT THE ABILITY OF A PARTY OR THE CHILD'S ATTORNEY TO
REQUEST, OR THE ABILITY OF THE COURT TO HOLD, AN EXPEDITED HEARING TO
ADDRESS OTHER URGENT MATTERS THAT AFFECT THE CHILD'S WELL-BEING.
(8) Feasibility study. The commissioner of the office of children and
family services, in conjunction with the office of court administration,
is hereby authorized and directed to examine, study, evaluate and make
recommendations concerning the feasibility of the utilization of comput-
ers in 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 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 commis-
sioner's recommendations.
§ 4. The domestic relations law is amended by adding a new section
240-e to read as follows:
S. 5998 7
§ 240-E. CUSTODY AND VISITATION; SAFETY OF THE CHILD. 1. FOR THE
PURPOSES OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING
MEANINGS:
(A) "VICTIM OF DOMESTIC VIOLENCE" SHALL HAVE THE SAME MEANING AS
DEFINED IN SECTION FOUR HUNDRED FIFTY-NINE-A OF THE SOCIAL SERVICES LAW.
(B) "COERCIVE CONTROL" MEANS A PATTERN OF BEHAVIOR THAT UNREASONABLY
RESTRICTS A PARTY'S SAFETY OR AUTONOMY THROUGH THREATS, OR INTIMIDATION,
OR BY COMPELLING COMPLIANCE. THIS CONDUCT INCLUDES, BUT IS NOT LIMITED
TO:
(I) ISOLATING THE OTHER PARTY FROM FRIENDS, FAMILY OR OTHER SOURCES OF
SUPPORT;
(II) INTERFERING WITH A PARTY'S FREEDOM OF MOVEMENT;
(III) DEPRIVING THE OTHER PARTY OF BASIC NECESSITIES SUCH AS FOOD,
SLEEP, CLOTHING, HOUSING, MEDICATION OR MEDICAL CARE;
(IV) CONTROLLING, REGULATING, SURVEILLING OR MONITORING THE OTHER
PARTY'S MOVEMENTS, COMMUNICATIONS, DAILY BEHAVIOR, APPEARANCE, FINANCES,
ECONOMIC RESOURCES OR ACCESS TO SERVICES;
(V) COMPELLING THE OTHER PARTY BY FORCE, THREAT OF FORCE OR INTIM-
IDATION, INCLUDING BUT NOT LIMITED TO THREATS BASED ON ACTUAL OR
SUSPECTED IMMIGRATION STATUS, TO ENGAGE IN CONDUCT FROM WHICH THE OTHER
PARTY HAS A RIGHT TO ABSTAIN OR TO ABSTAIN FROM CONDUCT IN WHICH THE
OTHER PARTY HAS A RIGHT TO ENGAGE;
(VI) INTERFERING WITH THE OTHER PARTY'S EDUCATION OR EMPLOYMENT;
(VII) FORCING OR COMPELLING THE OTHER PARTY TO PERFORM SEX ACTS, OR
THREATS OF A SEXUAL NATURE, INCLUDING BUT NOT LIMITED TO THREATENED ACTS
OF SEXUAL CONDUCT, THREATS BASED ON A PERSON'S SEXUALITY OR THREATS TO
RELEASE INTIMATE IMAGES; OR
(VIII) CLEANING, ACCESSING, DISPLAYING, USING OR WEARING A FIREARM OR
OTHER DANGEROUS WEAPON IN AN INTIMIDATING OR THREATENING MANNER.
2. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, A COURT
MAKING A FINAL DETERMINATION OF CUSTODY OR VISITATION BASED ON THE BEST
INTERESTS OF A CHILD PURSUANT TO THE PROVISIONS OF THIS CHAPTER SHALL
PRIORITIZE AND PROMOTE THE SAFETY OF SUCH CHILD WHEN MAKING SUCH DETER-
MINATIONS. ONLY COMPETENT, MATERIAL, AND RELEVANT EVIDENCE SHALL BE
ADMITTED. PROMOTING THE SAFETY OF A CHILD SHALL INCLUDE EFFORTS TO
PREVENT PHYSICAL OR EMOTIONAL HARM TO SUCH CHILD. IN MAKING SUCH FINAL
DETERMINATIONS, THE COURT SHOULD CONSIDER EVIDENCE, IF ANY, PRESENTED BY
THE PARTIES AND ATTORNEY FOR THE CHILD INCLUDING, BUT NOT LIMITED TO:
(A) WHICH PARTY IS MORE LIKELY TO PROTECT THE SAFETY OF THE CHILD, AND
WHETHER ANY PARTY POSES A SUBSTANTIAL RISK TO THE SAFETY OF THE CHILD;
(B) WHETHER ANY PARTY TO THE PROCEEDING HAS COMMITTED, OR HAS THREAT-
ENED TO COMMIT AN ACT OF CHILD ABUSE AGAINST THE CHILD, OR HAS COMMITTED
OR THREATENED TO COMMIT AN ACT OF DOMESTIC VIOLENCE AGAINST THE PARTY
MAKING THE ALLEGATION, OR A FAMILY OR HOUSEHOLD MEMBER OF EITHER PARTY
AS SUCH FAMILY OR HOUSEHOLD MEMBER IS DEFINED IN ARTICLE EIGHT OF THE
FAMILY COURT ACT;
(C) ANY PARTY'S HISTORY OF DOMESTIC VIOLENCE, CHILD ABUSE, INCIDENTS
INVOLVING HARM TO A CHILD OR SUBSTANTIAL RISK TO THE CHILD'S SAFETY;
(D) POLICE REPORTS, INCLUDING DOMESTIC VIOLENCE INCIDENT REPORTS OR
REPORTING OF INCIDENTS INVOLVING CHILD ABUSE OR DOMESTIC VIOLENCE BY A
PARTY;
(E) INCIDENTS OF CHILD ABUSE, DOMESTIC VIOLENCE, OR SUBSTANTIAL RISK
TO THE CHILD'S SAFETY, INCLUDING BUT NOT LIMITED TO:
(I) AN INCREASE IN FREQUENCY OR SEVERITY OF DOMESTIC VIOLENCE;
(II) USE OR THREATS TO USE A WEAPON OR DANGEROUS INSTRUMENT, OR UNLAW-
FUL POSSESSION OF FIREARMS;
S. 5998 8
(III) THREATS TO HARM OR KILL THE CHILD, THE OTHER PARTY, THE OTHER
PARTY'S CHILDREN, SELF OR OTHERS, OR COMPANION ANIMALS;
(IV) SEXUAL ABUSE OR OTHER SEXUAL OFFENSES AGAINST THE CHILD OR OTHER
PARTY;
(V) UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE IMAGE, PURSU-
ANT TO SECTION 245.15 OF THE PENAL LAW;
(VI) INCIDENTS INVOLVING OBSTRUCTION OF BREATHING OR STRANGULATION;
(VII) ANY PARTY'S PATTERN OF ALCOHOL OR SUBSTANCE ABUSE THAT POSES A
SUBSTANTIAL RISK TO THE CHILD'S SAFETY;
(VIII) INCIDENTS OF VIOLENCE DURING PREGNANCY;
(IX) INCIDENTS OF STALKING OR CYBER STALKING; AND
(X) COERCIVE CONTROL, AS DEFINED IN PARAGRAPH (B) OF SUBDIVISION ONE
OF THIS SECTION;
(F) WHETHER ANY PARTY HAS BEEN FOUND TO HAVE COMMITTED AN ACT PURSUANT
TO SECTION EIGHT HUNDRED TWELVE OF THE FAMILY COURT ACT BETWEEN SPOUSES
OR FORMER SPOUSES, OR BETWEEN PARENT AND CHILD OR BETWEEN MEMBERS OF THE
SAME FAMILY OR HOUSEHOLD; AND
(G) WHETHER ANY PARTY HAS USED OR THREATENED TO USE A DANGEROUS
INSTRUMENT TO HARM THE OTHER PARTY, CHILD, OR A THIRD PARTY, INCLUDING A
FIREARM, EXCEPT IN INCIDENTS INVOLVING SELF-DEFENSE, OR HAS UNLAWFULLY
POSSESSED A WEAPON OR FIREARM, OR HAS BEEN CONVICTED OF CRIMINAL
POSSESSION OF A WEAPON OR CRIMINAL USE OF A FIREARM PURSUANT TO ARTICLE
TWO HUNDRED SIXTY-FIVE OF THE PENAL LAW, OR IS OR HAS BEEN SUBJECT TO AN
EXTREME RISK PROTECTION ORDER, PURSUANT TO ARTICLE SIXTY-THREE-A OF THE
CIVIL PRACTICE LAW AND RULES.
3. THERE SHALL BE A REBUTTABLE PRESUMPTION THAT CUSTODY OR VISITATION
THAT IS UNSUPERVISED OR WITHOUT SUFFICIENT PROTECTION OF THE CHILD'S
SAFETY SHALL NOT BE AWARDED TO A PARTY WHO POSES A SUBSTANTIAL RISK TO
THE CHILD'S SAFETY. SUPERVISION IN SUCH CASES MAY ALSO BE PROVIDED BY A
RELATIVE OR OTHER RESOURCE DEEMED APPROPRIATE BY THE COURT.
4. (A) IN ANY PROCEEDING FOR CUSTODY OR VISITATION WHERE A PARTY
ASSERTS CREDIBLE ALLEGATIONS OF INCIDENTS OR THREATS OF DOMESTIC
VIOLENCE, CHILD ABUSE OR A SUBSTANTIAL RISK TO THE CHILD'S SAFETY, THE
COURT SHALL NOT FIND THAT PROTECTIVE BEHAVIORS TO SAFEGUARD THE CHILD
WHICH WERE ENGAGED IN BY THE PARTY WHO HAS MADE SUCH ALLEGATIONS CONSTI-
TUTE FAILURE TO SUPPORT THE CHILD'S RELATIONSHIP WITH THE OTHER PARTY.
(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 SOLE 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. WHERE APPROPRIATE, HOWEVER, THE COURT MAY
ENTER AN ORDER DIRECTING ONE OR MORE PARTIES TO REFRAIN FROM DISPARAGING
THE OTHER PARTY OR PARTIES IN THE PRESENCE OF THE CHILD OR CHILDREN.
(C) NOTHING IN THIS SECTION SHALL BE CONSTRUED TO CREATE AN EXCEPTION
TO SECTION SEVEN HUNDRED FIFTY-THREE OF THE JUDICIARY LAW, OR ANY OTHER
ENFORCEMENT PROVISION, SUCH THAT A PARTY MAY SEEK TO ENFORCE ANY PROPER
RULING OF THE COURT, UNLESS STAYED, CONCERNING ACCESS TO THE CHILD OR
CONDITIONS OF ACCESS TO THE CHILD.
5. THE CHIEF ADMINISTRATOR OF THE COURTS SHALL PROMULGATE AND ENFORCE
RULES MANDATING COMPREHENSIVE TRAINING ON DOMESTIC VIOLENCE, CHILD ABUSE
AND CHILD NEGLECT BEFORE JUDGES, REFEREES, AND OTHER HEARING OFFICERS
PRESIDE OVER CHILD CUSTODY PROCEEDINGS IN WHICH ONE OR MORE PARTIES HAVE
ALLEGED SUBSTANTIAL RISK TO THE CHILD'S SAFETY, AND SUPPLEMENTAL TRAIN-
ING EVERY TWO YEARS THEREAFTER TO REMAIN ELIGIBLE TO PRESIDE OVER SUCH
PROCEEDINGS. SUCH TRAINING SHALL ADDRESS CURRENT KNOWLEDGE AND LAW
RELATING TO DOMESTIC VIOLENCE, CHILD ABUSE AND CHILD NEGLECT, WITH THE
S. 5998 9
GOAL OF MAKING APPROPRIATE CUSTODY AND VISITATION DECISIONS THAT PRIOR-
ITIZE CHILDREN'S SAFETY AND ARE CULTURALLY SENSITIVE AND APPROPRIATE FOR
DIVERSE COMMUNITIES. SUCH TRAINING SHALL INCLUDE, BUT NOT BE LIMITED
TO, TRAUMA-INFORMED JUDICIAL PRACTICES, THE DYNAMICS AND EFFECTS OF
DOMESTIC VIOLENCE AND CHILD ABUSE, INCLUDING, BUT NOT LIMITED TO,
EMOTIONAL, FINANCIAL, PHYSICAL, TECHNOLOGICAL AND SEXUAL ABUSE; ASSESS-
MENT OF DOMESTIC VIOLENCE, COERCIVE CONTROL, CHILD ABUSE, LETHALITY RISK
FACTORS AND HEIGHTENED DANGER TO A CHILD'S SAFETY; TACTICS USED BY ABUSE
PARTNERS, INCLUDING, BUT NOT LIMITED TO ALLEGATIONS OF PARENTAL ALIEN-
ATION AND PARENTAL GATEKEEPING, LITIGATION ABUSE, AND CYBER ABUSE; AND
THE DISTINCTION BETWEEN INAPPROPRIATE INTERFERENCE WITH THE CHILD-PARENT
RELATIONSHIP AND PROTECTIVE PARENTING IN THE CONTEXT OF DOMESTIC
VIOLENCE OR CHILD ABUSE. THE OFFICE OF COURT ADMINISTRATION, IN CONSUL-
TATION WITH THE OFFICE FOR THE PREVENTION OF DOMESTIC VIOLENCE, SHALL
DEVELOP AND CONDUCT SUCH TRAINING, WHICH SHALL BE REVIEWED AND UPDATED
AT LEAST ONCE EVERY TWO YEARS.
§ 5. Section 70 of the domestic relations law, as amended by chapter
457 of the laws of 1988, is amended to read as follows:
§ 70. Habeas corpus for child detained by parent. (a) (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 thereof, the court, on due
consideration, may award the natural guardianship, 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 PERMA-
NENT ORDER OF CUSTODY OR VISITATION, THE COURT SHALL CONDUCT A REVIEW OF
THE DECISIONS AND REPORTS LISTED IN SUBPARAGRAPH TWO 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 ISSU-
ANCE OF SUCH ORDER.
(II) WHEN ISSUING ANY TEMPORARY ORDER OF CUSTODY OR VISITATION, OR
DENYING AN APPLICATION FOR A TEMPORARY ORDER AFTER A PROMPT EVIDENTIARY
HEARING, THE COURT SHALL STATE IN WRITING OR ON THE RECORD ITS DETERMI-
NATION OF WHETHER THERE IS A SUBSTANTIAL RISK TO THE CHILD'S SAFETY, AND
THE FACTORS, DECISIONS AND REPORTS CONSIDERED IN MAKING SUCH FINDINGS,
AND THE REASONS FOR ANY LIMITATIONS OR RESTRICTIONS PLACED ON A PARTY'S
CUSTODY, VISITATION OR CONTACT WITH SUCH CHILD. ANY PARTY OR THE ATTOR-
NEY FOR THE CHILD IN A PROCEEDING FOR A TEMPORARY ORDER IN WHICH A
PROMPT EVIDENTIARY HEARING HAS BEEN HELD REGARDING A SUBSTANTIAL RISK TO
THE CHILD'S SAFETY PURSUANT TO THIS CHAPTER SHALL HAVE A RIGHT TO APPEAL
TO THE APPROPRIATE APPELLATE DIVISION, PURSUANT TO ARTICLE ELEVEN OF THE
FAMILY COURT ACT.
(III) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, A
COURT MAKING A FINAL DETERMINATION OF CUSTODY OR VISITATION BASED ON THE
BEST INTERESTS OF A CHILD PURSUANT TO THE PROVISIONS OF THIS CHAPTER
SHALL PRIORITIZE AND PROMOTE THE SAFETY OF SUCH CHILD WHEN MAKING SUCH
DETERMINATIONS. ONLY COMPETENT, MATERIAL AND RELEVANT EVIDENCE SHALL BE
ADMITTED. PROMOTING THE SAFETY OF A CHILD SHALL INCLUDE EFFORTS TO
PREVENT PHYSICAL OR EMOTIONAL HARM TO SUCH CHILD AND SHALL BE ASSESSED
BY CONSIDERING ANY EVIDENCE ADDUCED OF A SUBSTANTIAL RISK TO THE CHILD'S
S. 5998 10
SAFETY, INCLUDING DECISIONS AND REPORTS IDENTIFIED IN SUBPARAGRAPH TWO
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.
(V) 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 AND IN
ACCORDANCE WITH THE RULES OF THE CHIEF ADMINISTRATOR OF THE COURTS. ONCE
INITIAL TRAINING REQUIREMENTS HAVE BEEN MET, JUDGES, REFEREES AND OTHER
HEARING OFFICERS SHALL COMPLETE ADDITIONAL TRAINING EVERY TWO YEARS
THEREAFTER TO REMAIN ELIGIBLE TO PRESIDE OVER SUCH PROCEEDINGS AS
DESCRIBED PURSUANT TO SUBDIVISION FIVE OF SECTION TWO HUNDRED FORTY-E OF
THIS CHAPTER AND IN ACCORDANCE WITH SUCH RULES.
(b) Any order under this section which applies to rights of visitation
with a child remanded or placed in the care of a person, official, agen-
cy or institution pursuant to article ten of the family court act or
pursuant to an instrument approved under section three hundred fifty-
eight-a of the social services law, shall be enforceable pursuant to the
provisions of part eight of article ten of such act, sections three
hundred fifty-eight-a and three hundred eighty-four-a of the social
services law and other applicable provisions of law against any person
or official having care and custody, or temporary care and custody, of
such child.
§ 6. Subdivision (b) of section 651 of the family court act, as
amended by chapter 657 of the laws of 2003, is amended to read as
follows:
(b) (I) When initiated in the family court, the family court has
jurisdiction to determine, in accordance with subdivision one of section
two hundred forty of the domestic relations law and with the same powers
possessed by the supreme court in addition to its own powers, habeas
corpus proceedings and proceedings brought by petition and order to show
cause, for the determination of the custody or visitation of minors,
including applications by a grandparent or grandparents for visitation
or custody rights pursuant to section seventy-two or two hundred forty
of the domestic relations law.
(II) THE FAMILY COURT SHALL UPDATE ITS PETITION USED BY PARTIES TO
INITIATE CHILD CUSTODY AND VISITATION PROCEEDINGS IN A MANNER TO PERMIT
PETITIONERS TO SPECIFY ALLEGATIONS OF CHILD ABUSE, DOMESTIC VIOLENCE, OR
A SUBSTANTIAL RISK TO A CHILD'S SAFETY.
§ 7. Subdivision (e) of section 651 of the family court act, as
amended by chapter 295 of the laws of 2009, is amended to read as
follows:
(e) 1. [Permanent and initial temporary orders of custody or visita-
tion. Prior to the issuance of any permanent or initial temporary order
of custody or visitation, the court shall conduct a review of the deci-
sions and reports listed in paragraph three of this subdivision.] PROMPT
EVIDENTIARY HEARING. UPON THE APPLICATION OF A PARTY TO AN ACTION
CONCERNING CUSTODY OF OR VISITATION WITH A CHILD, OR OF AN ATTORNEY FOR
THE CHILD, ASSERTING FACIALLY CREDIBLE ALLEGATIONS, INCLUDING ALLEGA-
TIONS OF DOMESTIC VIOLENCE THAT, IF TRUE, WOULD POSE A SUBSTANTIAL RISK
TO THE SAFETY OF THE CHILD, THE COURT SHALL HOLD A PROMPT EVIDENTIARY
HEARING TO DETERMINE WHETHER TEMPORARY LIMITATIONS OR CONDITIONS ON THE
S. 5998 11
CUSTODY OR VISITATION RIGHTS OF THE PARTY AGAINST WHOM SUCH ALLEGATIONS
HAVE BEEN MADE ARE NECESSARY TO AVOID A SUBSTANTIAL RISK TO THE CHILD'S
SAFETY, PURSUANT TO PARAGRAPH (A-1) OF SUBDIVISION ONE OF SECTION TWO
HUNDRED FORTY AND SECTION TWO HUNDRED FORTY-E OF THE DOMESTIC RELATIONS
LAW. WHEN THE PARTIES FIRST APPEAR IN COURT, THE COURT SHALL ADVISE THE
PARTIES BEFORE PROCEEDING OF THE RIGHT TO BE REPRESENTED BY COUNSEL OF
THEIR OWN CHOOSING, OF THE RIGHT TO HAVE AN ADJOURNMENT OF NO LONGER
THAN THIRTY DAYS TO CONFER WITH COUNSEL, AND THE RIGHT TO SEEK COUNSEL
FEES AND EXPENSES, PURSUANT TO SECTION TWO HUNDRED THIRTY-SEVEN OF THE
DOMESTIC RELATIONS LAW. THE COURT SHALL ASSIGN COUNSEL TO THE ELIGIBLE
PARTIES AND CHILDREN, PURSUANT TO ARTICLE TWO OF THIS CHAPTER AND SUBDI-
VISIONS SEVEN AND EIGHT OF SECTION THIRTY-FIVE OF THE JUDICIARY LAW.
2. [Successive temporary orders of custody or visitation. Prior to the
issuance of any successive temporary order of custody or visitation, the
court shall conduct a review of the decisions and reports listed in
paragraph three of this subdivision, unless such a review has been
conducted within ninety days prior to the issuance of such order.
3.] Decisions 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) 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.
2-A. EVIDENCE. THE COURT SHALL ALSO CONSIDER COMPETENT, MATERIAL AND
RELEVANT EVIDENCE, IF PRESENTED TO THE COURT, INCLUDING, BUT NOT LIMITED
TO, THE FOLLOWING; PROVIDED, HOWEVER, THAT CERTIFICATION OR AUTHENTICA-
TION OF A LAW ENFORCEMENT RECORD OR MEDICAL RECORD SHALL NOT BE REQUIRED
FOR THE RECORD, OR A PORTION THEREOF, TO BE ADMITTED:
(I) ANY PARTY'S HISTORY OF DOMESTIC VIOLENCE OR CHILD ABUSE, INCIDENTS
INVOLVING HARM TO A CHILD, OR A SUBSTANTIAL RISK TO A CHILD'S SAFETY;
(II) POLICE REPORTS, INCLUDING DOMESTIC VIOLENCE INCIDENT REPORTS, OR
REPORTS OF INCIDENTS INVOLVING CHILD ABUSE OR DOMESTIC VIOLENCE BY A
PARTY; AND
(III) EVIDENCE AND PRIOR JUDICIAL FINDINGS OF INCIDENTS OF CHILD
ABUSE, DOMESTIC VIOLENCE, OR A SUBSTANTIAL RISK TO A CHILD'S SAFETY,
INCLUDING BUT NOT LIMITED TO:
(A) AN INCREASE IN FREQUENCY OR SEVERITY OF DOMESTIC VIOLENCE;
(B) USE OR THREATS TO USE A WEAPON OR DANGEROUS INSTRUMENT, OR UNLAW-
FUL POSSESSION OF FIREARMS;
(C) THREATS TO HARM OR KILL THE CHILD, THE OTHER PARTY, THE OTHER
PARTY'S CHILDREN, SELF OR OTHERS, OR COMPANION ANIMALS;
(D) SEXUAL ABUSE OR OTHER SEXUAL OFFENSES AGAINST THE CHILD OR OTHER
PARTY;
(E) UNLAWFUL DISSEMINATION OR PUBLICATION OF AN INTIMATE IMAGE, PURSU-
ANT TO SECTION 245.15 OF THE PENAL LAW;
(F) INCIDENTS INVOLVING OBSTRUCTION OF BREATHING OR STRANGULATION;
(G) ANY PARTY'S PATTERN OF ALCOHOL OR SUBSTANCE ABUSE THAT POSES A
SUBSTANTIAL RISK TO THE CHILD'S SAFETY;
(H) INCIDENTS OF VIOLENCE DURING PREGNANCY;
(I) INCIDENTS OF STALKING OR CYBER STALKING; AND
(J) COERCIVE CONTROL, AS DEFINED IN PARAGRAPH (B) OF SUBDIVISION ONE
OF SECTION TWO HUNDRED FORTY-E OF THE DOMESTIC RELATIONS LAW.
S. 5998 12
3. APPEAL. IN ADDITION TO THE RIGHT OF APPEAL REGARDING A FINAL ORDER,
ANY PARTY OR THE ATTORNEY FOR THE CHILD IN A PROCEEDING FOR A TEMPORARY
ORDER OF CUSTODY OR VISITATION PURSUANT TO THIS PARAGRAPH IN WHICH A
PROMPT EVIDENTIARY HEARING HAS BEEN HELD REGARDING AN ALLEGATION OF A
SUBSTANTIAL RISK TO THE CHILD'S SAFETY BY REASON OF A FAMILY OFFENSE OR
CHILD MALTREATMENT IN AN APPLICATION FOR A PERMANENT OR TEMPORARY ORDER
OF CUSTODY OR VISITATION SHALL HAVE A RIGHT TO APPEAL THE GRANTING OR
DENIAL OF THE TEMPORARY ORDER, OR THE TERMS OF SUCH ORDER, TO THE APPRO-
PRIATE APPELLATE DIVISION. AN APPEAL UNDER THIS SUBPARAGRAPH SHALL BE
GIVEN A PREFERENCE PURSUANT TO SUBDIVISION (B) OF RULE FIVE THOUSAND
FIVE HUNDRED TWENTY-ONE OF THE CIVIL PRACTICE LAW AND RULES.
A NOTICE OF APPEAL REGARDING THE GRANTING OR DENIAL OF THE TEMPORARY
ORDER, OR THE TERMS OF SUCH ORDER, BY THE SUPREME COURT UNDER THIS
SUBDIVISION SHALL BE FILED IN ACCORDANCE WITH SUBDIVISION (A) OF SECTION
FIVE THOUSAND FIVE HUNDRED THIRTEEN OF THE CIVIL PRACTICE LAW AND RULES.
A NOTICE OF APPEAL REGARDING THE GRANTING OR DENIAL OF THE TEMPORARY
ORDER, OR THE TERMS OF SUCH ORDER, BY A FAMILY COURT UNDER THIS SUBDIVI-
SION SHALL BE FILED NO LATER THAN THIRTY DAYS AFTER THE SERVICE BY A
PARTY OR THE CHILD'S ATTORNEY UPON THE APPELLANT OF ANY ORDER FROM WHICH
THE APPEAL IS TAKEN OR RECEIPT OF THE ORDER IN COURT OR THIRTY-FIVE DAYS
FROM MAILING OR ELECTRONIC TRANSMISSION OF THE ORDER BY THE COURT,
WHICHEVER IS EARLIEST.
PENDING THE DETERMINATION OF SUCH APPEAL, THE APPELLATE DIVISION IN
WHICH THE APPEAL IS PENDING MAY STAY THE ORDER ON APPEAL PURSUANT TO
SUBDIVISION (C) OF SECTION FIVE THOUSAND FIVE HUNDRED NINETEEN OF THE
CIVIL PRACTICE LAW AND RULES WHERE SUCH COURT DETERMINES THAT THE EFFECT
OF THE ORDER ON APPEAL CREATES A SUBSTANTIAL RISK TO THE SAFETY OF THE
CHILD AND THAT A STAY IS NECESSARY TO AVOID SUCH RISK. THE PARTY APPLY-
ING FOR THE STAY SHALL PROVIDE REASONABLE NOTICE TO THE ATTORNEYS FOR
ALL PARTIES AND THE ATTORNEY FOR THE CHILD OF THE TIME AND PLACE OF SUCH
APPLICATION. THE PARTY APPLYING FOR THE STAY SHALL STATE IN THE APPLICA-
TION THE ERRORS OF FACT OR LAW ALLEGEDLY COMMITTED BY THE TRIAL COURT. A
PARTY APPLYING TO THE APPELLATE DIVISION FOR THE STAY SHALL MAKE REASON-
ABLE EFFORT TO OBTAIN A COMPLETE TRANSCRIPT OF THE PROCEEDING BEFORE THE
TRIAL COURT IN ACCORDANCE WITH THE RULES OF THE APPLICABLE APPELLATE
DIVISION.
4. Notifying counsel and issuing orders. Upon consideration of deci-
sions pursuant to article ten of this act, and registry reports and
notifying counsel involved in the proceeding, or in the event of a self-
represented party, notifying such party of the results thereof, includ-
ing any court appointed attorney for children, the court may issue a
temporary, successive temporary or final order of custody or visitation.
5. Temporary emergency order. Notwithstanding any other provision of
the law, upon emergency situations, including computer malfunctions, to
serve the best interest of the child, the court may issue a temporary
emergency order for custody or visitation in the event that it is not
possible to timely review decisions and reports on registries as
required pursuant to paragraph [three] TWO of this subdivision.
6. After issuing a temporary emergency order. After issuing a tempo-
rary emergency order of custody or visitation, the court shall conduct
reviews of the decisions and reports on registries as required pursuant
to paragraph [three] TWO of this subdivision within twenty-four hours of
the issuance of such temporary emergency order. Should such twenty-four
hour period fall on a day when court is not in session, then the
required reviews shall take place the next day the court is in session.
Upon reviewing decisions and reports the court shall notify associated
S. 5998 13
counsel, self-represented parties and attorneys for children pursuant to
paragraph four of this subdivision and may issue temporary or permanent
custody or visitation orders.
7. EXPEDITED HEARING REQUEST. NOTHING IN THIS PARAGRAPH SHALL BE
CONSTRUED TO LIMIT THE ABILITY OF A PARTY OR THE CHILD'S ATTORNEY TO
REQUEST, OR THE ABILITY OF THE COURT TO HOLD, AN EXPEDITED HEARING TO
ADDRESS OTHER URGENT MATTERS THAT AFFECT THE CHILD'S WELL-BEING.
8. Feasibility study. The commissioner of the office of children and
family services, in conjunction with the office of court administration,
is hereby authorized and directed to examine, study, evaluate and make
recommendations concerning the feasibility of the utilization of comput-
ers in family courts which are connected to the statewide central regis-
ter of child abuse and maltreatment established and maintained pursuant
to section four hundred twenty-two of the social services law, as a
means of providing family courts with information regarding parties
requesting orders of custody or visitation. Such commissioner shall make
a preliminary report to the governor and the legislature of findings,
conclusions and recommendations not later than January thirty-first, two
thousand nine, and a final report of findings, conclusions and recommen-
dations not later than June first, two thousand nine, and shall submit
with the reports such legislative proposals as are deemed necessary to
implement the commissioner's recommendations.
§ 8. Subdivision a of section 1112 of the family court act, as amended
by section 28 of part A of chapter 3 of the laws of 2005, is amended to
read as follows:
a. An appeal may be taken as of right from any order of disposition
and, in the discretion of the appropriate appellate division, from any
other order under this act. An appeal MAY BE TAKEN AS OF RIGHT TO THE
APPROPRIATE APPELLATE DIVISION OF THE SUPREME COURT from an intermediate
or final order in a case involving abuse or neglect [may be taken as of
right to the appellate division of the supreme court] UNDER ARTICLE TEN
OF THIS ACT OR FROM AN ORDER OF THE COURT AFTER A PROMPT EVIDENTIARY
HEARING UNDER SECTION SIX HUNDRED FIFTY-ONE OF THIS ACT OR SECTION
SEVENTY OR TWO HUNDRED FORTY OF THE DOMESTIC RELATIONS LAW DETERMINING
AN ALLEGATION OF A SUBSTANTIAL RISK TO THE CHILD'S SAFETY AND GRANTING
OR DENYING A TEMPORARY EMERGENCY ORDER OF CUSTODY OR VISITATION. (I)
Pending the determination of such appeal, such order shall be stayed
where the effect of [such] THE order ON APPEAL would be to discharge the
child[, if the family court or the court before which such appeal is
pending finds that such a stay is necessary to avoid imminent risk to
the child's life or health] IN A CASE ALLEGING ABUSE OR NEGLECT PURSUANT
TO ARTICLE TEN OF THIS ACT. IN AN APPEAL FROM AN ORDER IN A CUSTODY OR
VISITATION PROCEEDING UNDER ARTICLE SIX OF THIS ACT OR SECTION SEVENTY
OR TWO HUNDRED FORTY OF THE DOMESTIC RELATIONS LAW THAT WAS ISSUED UPON
A PROMPT EVIDENTIARY HEARING REGARDING AN ALLEGATION OF A SUBSTANTIAL
RISK TO A CHILD'S SAFETY, THE COURT BEFORE WHICH THE APPEAL IS TAKEN MAY
STAY THE ORDER ON APPEAL WHERE THE ORDER WOULD CAUSE A SUBSTANTIAL RISK
TO THE CHILD'S SAFETY DURING THE PENDENCY OF THE APPEAL AND WHERE SUCH
COURT FINDS THAT A STAY IS NECESSARY TO AVOID SUCH RISK. (II) A prefer-
ence in accordance with rule five thousand five hundred twenty-one of
the civil practice law and rules shall be afforded, without the necessi-
ty of a motion, for appeals under article three; parts one and two of
article six; articles seven, ten, and ten-A of this act; and sections
three hundred fifty-eight-a, three hundred eighty-three-c, three hundred
eighty-four, and three hundred eighty-four-b of the social services law
AND APPEALS FROM ORDERS ISSUED UNDER PART THREE OF ARTICLE SIX OF THIS
S. 5998 14
ACT OR SECTION SEVENTY OR TWO HUNDRED FORTY OF THE DOMESTIC RELATIONS
LAW UPON A PROMPT EVIDENTIARY HEARING REGARDING A FACIALLY CREDIBLE
ALLEGATION OF A SUBSTANTIAL RISK TO THE CHILD'S SAFETY.
§ 9. Subdivision (d) of section 1114 of the family court act, as
amended by chapter 41 of the laws of 2010, is amended to read as
follows:
(d) Any party to a child protective proceeding, or the attorney for
the child, may apply to a justice of the appellate division for a stay
of an order issued pursuant to part two of article ten of this chapter
returning a child to the custody of a respondent. SUCH AN APPLICATION
MAY ALSO BE MADE IN ACCORDANCE WITH SECTION ONE THOUSAND ONE HUNDRED
TWELVE OF THIS ACT OR SUBDIVISION (C) OF SECTION FIVE THOUSAND FIVE
HUNDRED NINETEEN OF THE CIVIL PRACTICE LAW AND RULES TO STAY A COURT
ORDER OF CUSTODY OR VISITATION PURSUANT TO THIS ACT OR THE DOMESTIC
RELATIONS LAW WHERE THE ORDER ON APPEAL WOULD CAUSE A SUBSTANTIAL RISK
TO THE CHILD'S SAFETY AND WHERE THE COURT BEFORE WHICH SUCH APPEAL IS
PENDING FINDS THAT SUCH A STAY IS NECESSARY TO AVOID SUCH RISK. The
party applying for the stay shall notify the attorneys for all parties
and the attorney for the child of the time and place of such applica-
tion. [If] IN AN APPEAL FROM AN ORDER OF ABUSE OF NEGLECT PURSUANT TO
ARTICLE TEN OF THIS ACT, IF requested by any party present, oral argu-
ment shall be had on the application, except for good cause stated upon
the record. [The] IN ALL APPLICATIONS FOR STAYS UNDER THIS SUBDIVISION,
THE party applying for the stay shall state in the application the
errors of fact or law allegedly committed by the [family] TRIAL court. A
party applying to the [court] APPELLATE DIVISION for the granting or
continuation of such stay shall make [every] reasonable effort to obtain
a complete transcript of the proceeding before the [family] TRIAL court
IN ACCORDANCE WITH THE RULES OF THE APPLICABLE APPELLATE DIVISION.
If a stay is granted, a schedule shall be set for an expedited appeal.
§ 10. Subdivision (a) of section 249 of the family court act, as
amended by chapter 3 of the laws of 2012, is amended to read as follows:
(a) In a proceeding under article three, seven, ten, ten-A or ten-C of
this act or where a revocation of an adoption consent is opposed under
section one hundred fifteen-b of the domestic relations law or in any
proceeding under section three hundred fifty-eight-a, three hundred
eighty-three-c, three hundred eighty-four or three hundred eighty-four-b
of the social services law or when a minor is sought to be placed in
protective custody under section one hundred fifty-eight of this act or
in any proceeding where a minor is detained under or governed by the
interstate compact for juveniles established pursuant to section five
hundred one-e of the executive law, the family court shall appoint an
attorney to represent a minor who is the subject of the proceeding or
who is sought to be placed in protective custody, if independent legal
representation is not available to such minor. In any proceeding to
extend or continue the placement of a juvenile delinquent or person in
need of supervision pursuant to section seven hundred fifty-six or 353.3
of this act or any proceeding to extend or continue a commitment to the
custody of the commissioner of mental health or the commissioner of
people with developmental disabilities pursuant to section 322.2 of this
act, the court shall not permit the respondent to waive the right to be
represented by counsel chosen by the respondent, respondent's parent, or
other person legally responsible for the respondent's care, or by
assigned counsel. In any proceeding under article ten-B of this act, the
family court shall appoint an attorney to represent a youth, under the
age of twenty-one, who is the subject of the proceeding, if independent
S. 5998 15
legal representation is not available to such youth. IN ANY PROCEEDING
UNDER ARTICLE SIX OF THIS ACT, THE COURT SHALL APPOINT AN ATTORNEY TO
REPRESENT THE CHILD WHEN FACIALLY CREDIBLE ALLEGATIONS OF SUBSTANTIAL
RISK TO THE CHILD'S SAFETY HAVE BEEN MADE. In any other proceeding in
which the court has jurisdiction, INCLUDING ALL PROCEEDINGS UNDER ARTI-
CLE SIX OF THIS ACT, the court may appoint an attorney to represent the
child, when, in the opinion of the family court judge, such represen-
tation will serve the purposes of this act, if independent legal counsel
is not available to the child. The family court on its own motion may
make such appointment.
§ 11. Subdivision (a) of section 249 of the family court act, as
amended by chapter 672 of the laws of 2019, is amended to read as
follows:
(a) In a proceeding under article three, seven, ten, ten-A or ten-C of
this act or where a revocation of an adoption consent is opposed under
section one hundred fifteen-b of the domestic relations law or in any
proceeding under section three hundred fifty-eight-a, three hundred
eighty-three-c, three hundred eighty-four or three hundred eighty-four-b
of the social services law or when a minor is sought to be placed in
protective custody under section one hundred fifty-eight of this act,
the family court shall appoint an attorney to represent a minor who is
the subject of the proceeding or who is sought to be placed in protec-
tive custody, if independent legal representation is not available to
such minor. In any proceeding to extend or continue the placement of a
juvenile delinquent or person in need of supervision pursuant to section
seven hundred fifty-six or 353.3 of this act or any proceeding to extend
or continue a commitment to the custody of the commissioner of mental
health or the commissioner of the office for people with developmental
disabilities pursuant to section 322.2 of this act, the court shall not
permit the respondent to waive the right to be represented by counsel
chosen by the respondent, respondent's parent, or other person legally
responsible for the respondent's care, or by assigned counsel. In any
proceeding under article ten-B of this act, the family court shall
appoint an attorney to represent a youth, under the age of twenty-one,
who is the subject of the proceeding, if independent legal represen-
tation is not available to such youth. IN ANY PROCEEDING UNDER ARTICLE
SIX OF THIS ACT, THE COURT SHALL APPOINT AN ATTORNEY TO REPRESENT THE
CHILD WHEN FACIALLY CREDIBLE ALLEGATIONS OF SUBSTANTIAL RISK TO THE
CHILD'S SAFETY HAVE BEEN MADE. In any other proceeding in which the
court has jurisdiction, INCLUDING ALL PROCEEDINGS UNDER ARTICLE SIX OF
THIS ACT, the court may appoint an attorney to represent the child,
when, in the opinion of the family court judge, such representation will
serve the purposes of this act, if independent legal counsel is not
available to the child. The family court on its own motion may make such
appointment.
§ 12. Subdivision (b) of rule 5521 of the civil practice law and
rules, as amended by chapter 707 of the laws of 2019, is amended to read
as follows:
(b) Consistent with the provisions of section one thousand one hundred
twelve of the family court act, appeals from orders, judgments or
decrees in proceedings brought pursuant to articles three, seven, ten
and ten-A and parts one and two of article six of the family court act,
and pursuant to sections three hundred fifty-eight-a, three hundred
eighty-three-c, three hundred eighty-four, and three hundred eighty-
four-b of the social services law, and pursuant to paragraph (d) of
subdivision four and subparagraph (ii) of paragraph (d) of subdivision
S. 5998 16
five of section eighty-nine of the public officers law, AND APPEALS FROM
ORDERS ISSUED UNDER PART THREE OF ARTICLE SIX OF THE FAMILY COURT ACT OR
SECTION SEVENTY OR TWO HUNDRED FORTY OF THE DOMESTIC RELATIONS LAW UPON
A PROMPT EVIDENTIARY HEARING REGARDING A FACIALLY CREDIBLE ALLEGATION OF
A SUBSTANTIAL RISK TO A CHILD'S SAFETY shall be given preference and may
be brought on for argument on such terms and conditions as the court may
direct without the necessity of a motion.
§ 13. This act shall take effect on the two hundred seventieth day
after it shall have become a law; provided, however, that the amendments
to subdivision (a) of section 249 of the family court act made by
section ten of this act shall be subject to the expiration and reversion
of such subdivision pursuant to section 8 of chapter 29 of the laws of
2011, as amended, when upon such date the provisions of section eleven
of this act shall take effect. Effective immediately, the addition,
amendment and/or repeal of any rule or regulation necessary for the
implementation of this act on its effective date are authorized to be
made and completed on or before such effective date.
