Amd 76, 76-c, 76-f, 76-g, 77-b, 77-j & 77-l, Dom Rel L
 
Relates to consideration of gender-affirming health care or gender-affirming mental health care in child custody cases for purposes of jurisdiction, forum and enforcement of custody orders.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A6993
SPONSOR: Burdick
 
TITLE OF BILL:
An act to amend the domestic relations law, in relation to consideration
of gender-affirming health care or gender-affirming mental health care
in child custody cases
 
PURPOSE OR GENERAL IDEA OF BILL:
This bill prohibits the enforcement of an order based on another state's
law authorizing a child to be removed from their parent or guardian
based on that parent or guardian allowing their child to receive
gender-affirming health care or gender-affirming mental health care.
 
SUMMARY OF PROVISIONS:
Section 1 amends the domestic relations Law by adding subdivision 4,
relating to jurisdiction of state courts regarding children seeking
gender-affirming care.
Section 2 amends section 76-c of the domestic relations law relating to
emergency jurisdiction to protect a child or siblings of a child seeking
gender-affirming care.
Section 3 amends section 76-f of the domestic relations law to clarify
jurisdiction inconvenience of a forum.
Section 4 amends section 76-g of the domestic relations law clarifies
that gender-affirming care shall not be considered as a form of abuse
that would affect custody issues.
Section 5 amends section 77-b of the domestic relations law to assert it
is against public policy to remove a child based upon their receiving
gender affirming care.
Section 6 amends section 77-j of the domestic relations law permitting a
petitioner to file a verified application for the issuance of a warrant
to take physical custody of the child if the child is at imminent risk
of suffering serious physical harm or of removal from this state.
Section 7 amends section 77-1 of the domestic relations law to provide
that a *law of another state that authorizes a child to be removed from
their parent or guardian based on the parent or guardian allowing their
child to receive gender-affirming health care or gender-affirming mental
health care is against the public policy of this state and shall not be
enforced or applied in a case pending in a court in this state.
Section 8 Establishes the effective date.
 
DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSION (IF APPLICABLE):
New Bill.
 
JUSTIFICATION:
LGBTQ+ individuals and especially transgender children are under attack
across the nation with many states introducing and passing laws prohib-
iting gender-affirming medical and wellness care. This bill seeks to
fill a gap in our domestic relations law so we can protect transgender
children from other states awarding custody based on gender affirming
care in New York.
Other states are introducing and passing legislation claiming that
gender affirming care or living with someone who is undergoing gender
affirming care is now child abuse. New York cannot permit awarding
custody to people who are asserting child abuse based on gender affirm-
ing care for the child, a sibling or parent of the child. These states
are claiming a jurisdictional right to award custody based on these
claims. This bill would prohibit the enforcement of an such an order..
Existing law permits a New York court to decline to exercise its juris-
diction if the petitioner has wrongfully taken the child from another
state.or engaged in similar reprehensible conduct. This bill would
prohibit a court from finding that it is an inconvenient forum where the
law or policy of another state that may take jurisdiction limits the
ability of a parent to obtain gender-affirming health care or gender-af-
firming mental health care and the provision of such care is at issue in
the case before the court. This bill would authorize a New York court to
assert temporary jurisdiction because a child has been unable to obtain
gender-affirming health care. The bill would additionally prohibit a
court from considering the taking or retention of a child from a person
who has legal custody of the child, if the taking or retention was for
obtaining gender-affirming health care or mental health care.
 
PRIOR LEGISLATIVE HISTORY:
New Bill.
 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None to New York State.
 
EFFECTIVE DATE:
This act shall take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
6993
2023-2024 Regular Sessions
IN ASSEMBLY
May 10, 2023
___________
Introduced by M. of A. BURDICK -- read once and referred to the Commit-
tee on Judiciary
AN ACT to amend the domestic relations law, in relation to consideration
of gender-affirming health care or gender-affirming mental health care
in child custody cases
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 76 of the domestic relations law is amended by
2 adding a new subdivision 4 to read as follows:
3 4. The presence of a child in this state for the purpose of obtaining
4 gender-affirming health care or gender-affirming mental health care, is
5 sufficient to meet the requirements of this section and to enable the
6 court to obtain initial child custody jurisdiction.
7 § 2. Subdivision 1 of section 76-c of the domestic relations law, as
8 added by chapter 386 of the laws of 2001, is amended to read as follows:
9 1. A court of this state has temporary emergency jurisdiction if the
10 child is present in this state and the child has been abandoned or it is
11 necessary in an emergency to protect the child because the child, or a
12 sibling or parent of the child, is subjected to, or threatened with,
13 mistreatment or abuse, or because the child has been prevented from
14 obtaining gender-affirming health care or gender-affirming mental health
15 care.
16 § 3. Section 76-f of the domestic relations law is amended by adding a
17 new subdivision 5 to read as follows:
18 5. In a case where the provision of gender-affirming health care or
19 gender-affirming mental health care to the child is at issue, a court of
20 this state shall not determine that it is an inconvenient forum where
21 the law or policy of the other state that may take jurisdiction limits
22 the ability of a parent to obtain gender-affirming health care or
23 gender-affirming mental health care for their child.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD11061-01-3
A. 6993 2
1 § 4. Subdivision 4 of section 76-g of the domestic relations law, as
2 added by chapter 386 of the laws of 2001, is amended to read as follows:
3 4. In making a determination under this section, a court shall not
4 consider as a factor weighing against the petitioner any taking of the
5 child, or retention of the child after a visit or other temporary relin-
6 quishment of physical custody, from the person who has legal custody, if
7 there is evidence that the taking or retention of the child was to
8 protect the petitioner from domestic violence or [the child or sibling
9 from mistreatment or abuse] for the purposes of obtaining gender-affirm-
10 ing health care or gender-affirming mental health care for the child and
11 the law or policy of the other state limits the ability of a parent to
12 obtain gender-affirming health care or gender-affirming mental health
13 care for their child.
14 § 5. Section 77-b of the domestic relations law is amended by adding
15 two new subdivisions 3 and 4 to read as follows:
16 3. Notwithstanding the provisions of subdivision one of this section,
17 a law of another state that authorizes a child to be removed from their
18 parent or guardian based on the parent or guardian allowing their child
19 to receive gender-affirming health care or gender-affirming mental
20 health care is against the public policy of this state and shall not be
21 enforced or applied in a case pending in a court in this state.
22 4. A court of this state has jurisdiction to vacate, stay or modify a
23 child custody determination of a court of another state which failed to
24 recognize a child's right to receive gender-affirming health care or
25 gender-affirming mental health care.
26 § 6. Subdivision 1 of section 77-j of the domestic relations law, as
27 added by chapter 386 of the laws of 2001, is amended to read as follows:
28 1. Upon the filing of a petition seeking enforcement of a child custo-
29 dy determination, the petitioner may file a verified application for the
30 issuance of a warrant to take physical custody of the child if the child
31 is at imminent risk of suffering serious physical harm or of removal
32 from this state. As used in this section, "serious physical harm" does
33 not include the provision of gender-affirming health care and/or
34 gender-affirming mental health care.
35 § 7. Section 77-l of the domestic relations law, as added by chapter
36 386 of the laws of 2001, is amended to read as follows:
37 § 77-l. Recognition and enforcement. 1. A court of this state shall
38 accord full faith and credit to an order issued by another state and
39 consistent with this article which enforces a child custody determi-
40 nation by a court of another state unless the order has been vacated,
41 stayed, or modified by a court having jurisdiction to do so under title
42 two of this article, unless recognition and enforcement would violate
43 subdivision one-c of section two hundred forty of this chapter or
44 section one thousand eighty-five of the family court act.
45 2. Notwithstanding the provisions of subdivision one of this section,
46 a law of another state that authorizes a child to be removed from their
47 parent or guardian based on the parent or guardian allowing their child
48 to receive gender-affirming health care or gender-affirming mental
49 health care is against the public policy of this state and shall not be
50 enforced or applied in a case pending in a court in this state.
51 3. A court of this state has jurisdiction to vacate, stay or modify a
52 child custody determination of a court of another state which failed to
53 recognize a child's right to receive gender-affirming health care or
54 gender-affirming mental health care.
55 § 8. This act shall take effect immediately.