Kyra’s Law advances in Senate; aimed at protecting children in custody and visitation cases

JULIA J. CARROCCIA

April 26, 2022

Originally published in The Legislative Gazette on April 26, 2022.

A bill that would change the way New York courts handle child custody and parental visitation decisions has moved out of committee after a unanimous, bi-partisan vote and has now advanced to a third reading in the Senate. 

Kyra’s Law (S.7425/A.5398), which is currently awaiting a vote on the Senate floor, would require court officials to take part in new training for handling cases regarding domestic violence and child abuse. The bill would require that courts make a child’s safety the top priority when hearing custody and visitation cases.

The bill is sponsored by Sen. Anna Kaplan, D-North Hills. The bill is sponsored in the Assembly by Andrew Hevesi, D-Forest Hills. The Assembly bill currently resides in the Judiciary Committee.

“This legislation is long overdue and its advancement is an important step at protecting New York’s children from abuse,” said Sen. Anthony Palumbo, co-sponsor of the bill.

A goal of the legislation is to keep children away from a potentially dangerous parent by requiring courts to consider the health and safety of the child before making any decisions related to visitation or custody. 

Some of the factors that would need to be considered by the courts are past and present abuse committed by the parent against the child, violence committed by the parent to their partner or other children in the home, and if the child is actively fearful of the parent and their behavior. 

The bill also would require courts to hold an evidentiary hearing which would be used to enter findings of child abuse, domestic abuse, and family violence before any final decisions are made.

The law is named after Kyra Franchetti, who, at 28 months old, was shot twice and killed by her father while she was sleeping during an unsupervised court-ordered visit. Her mother, Jacqueline Franchetti, advocated against any visits and had brought concerns of violence, stalking and abuse to family court multiple times.

Kyra’s father was emotionally and verbally abusive to Jacqueline during their relationship, and when Jacqueline became pregnant, she left him. After Kyra was born, he reappeared, seeking custody. During the two years of custody hearings, the court was repeatedly notified that Kyra’s father was dangerous, angry, and suicidal. During the years of court proceedings, he stalked, harassed, and threatened her.

Jacqueline’s repeated warnings and pleas for help fell on deaf ears. Despite these abusive and dangerous behaviors, the forensic evaluator recommended joint custody, and Kyra’s attorney refused to take actions that would have protected Kyra. Just days before her murder at the hands of her father, the family court judge remarked that the case was “not a life-or-death situation.”

The family court ignored Kyra’s mother, as well as others who gave eyewitness reports about the fathers abusive and threatening behavior, falling into the common trap of courts dismissing allegations of domestic violence or child abuse as an attempt of one parent trying to win full custody over the other.

Kyra’s Law will work to change that, preventing courts from presuming that a child’s negative relationship with one parent was caused by another and stopping the practice of restricting a child’s time spent with one parent in order to improve the relationship with another.

The bill would also forbid courts from considering concerns of parental alienation, with claims of such being inadmissible in evaluating a child’s best interests.

Parental alienation refers to a strategy where one parent intentionally speaks or acts negatively about the other in front of their children in order to damage the relationship between them and turn the child against the other parent. This practice is falsely attributed to many reports of domestic and child abuse and can result in abusers getting custody over the non-offending parent who reported their concerns.

In the United States, an estimated 1,840 children died from abuse or neglect in 2019. Parents, whether acting alone or with others, are responsible for 79.9 percent of these fatalities.

Bills such as Kyra’s Law can play a part in avoiding some of these deaths through giving children the ability to advocate for themselves in family court. Under the new law judges would have to consider a mature child’s preference for one parent over another due to fear or safety concerns, something that is not currently required under New York state law.

“Kyra’s law wouldn’t have been advanced today without the passionate advocacy of Jacqueline Franchetti and the countless New Yorkers who support her efforts,” said Sen. Palumbo, R-New Suffolk. “This legislation is long overdue and its advancement is an important step at protecting New York’s children from abuse.”