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A03346 Summary:

BILL NOA03346C
 
SAME ASSAME AS S03170-C
 
SPONSORHevesi
 
COSPNSRSillitti, Dickens, Fahy, Clark, Hunter, Lavine, Seawright, Simon, Jackson, Rivera, McDonough, Morinello, Thiele, Burdick, Brown K, Stirpe, Gonzalez-Rojas, Durso, Otis, Brabenec, Manktelow, Angelino, Cook, Gunther, Stern, Jean-Pierre, DeStefano, Blankenbush, Ra, Fitzpatrick, Pheffer Amato, Anderson, Mikulin, Rosenthal L, Lupardo, Simpson, Epstein, Kelles, Jensen, Burgos, Jones, Steck, Zinerman, Cruz, Aubry, Cunningham, Hawley, Paulin, Barrett, Ramos, Gibbs, Jacobson, Dinowitz, Reyes, Conrad, Giglio JA, Maher, Blumencranz, Bores, Gandolfo, Shimsky, McDonald, Bronson, Darling, Bendett, De Los Santos, Woerner, Williams, Eachus, Pretlow, Alvarez, Davila, Benedetto, Smith, Meeks, Simone, Tapia, Buttenschon, Wallace, Ardila, Levenberg, Raga, Septimo, Colton, Lee, Gallahan, Flood, Weprin, Sayegh, Tannousis, Bichotte Hermelyn, Solages, Curran, Taylor, Burke, Slater
 
MLTSPNSR
 
Amd §§240 & 70, add §240-e, Dom Rel L; amd §§1112, 651, 1114 & 249, Fam Ct Act; amd R5521, CPLR
 
Requires the court to consider a child's health and safety when making a decision regarding child custody and visitation; directs the court to review certain information as it relates to allegations of child abuse, domestic violence and child safety; requires the court to appoint an attorney to represent the child when credible allegations of serious risk to the child's safety have been made.
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A03346 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A3346C
 
SPONSOR: Hevesi
  TITLE OF BILL: An act to amend the domestic relations law, the family court act and the civil practice law and rules, in relation to establishing "Kyra's Law"   PURPOSE OR GENERAL IDEA OF BILL: To protect children by ensuring courts promote the safety of children 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 add a new opening paragraph recognizing the para- mount importance of the safety of children in child custody and visita- tion proceedings. Section 3 of the bill amends subdivision 1 of section 240 of the domes- tic relations law to require courts to conduct a prompt evidentiary hearing upon application by any party to a child custody or visitation proceeding, or of an attorney for the child, to determine whether tempo- rary limitations or conditions on the custody or visitation rights of a party who is alleged to have committed child abuse, child neglect or domestic violence is necessary to avoid serious or imminent risk to the child's safety. This section defines what the court shall consider during such -hearing. It clarifies that parties are allowed legal repre- sentation by their own choosing or through a court appointed attorney during such court proceedings, and requires courts to put decision-mak- ing in writing . This section also creates a rebuttable presumption that the court, in a temporary order of custody or visitation, shall not award sole or joint custody or visitation that is unsupervised or with- out sufficient protections of the child's safety to a party who poses a serious or imminent risk to the child's safety. This section also provides a right of appeal of the granting or denial of a temporary order of custody or visitation to any party or attorney for a child in a custody or visitation proceeding where a prompt evidentiary hearing is held regarding imminent risk to the child's safety. Section 4 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 in making such determinations; and creates a rebuttable presumption that custody or visitation that is unsupervised or without sufficient protection of the child's safety shall not be awarded to a party who poses a serious or imminent risk to the safety of the child. Definitions for the terms "coercive control" and "victims of domestic violence" are clarified. This section prohibits the admissibility of allegations a party has alienated the child or children against the other parent or that a child's reluctance to interact with a party was caused by the other party when domestic violence, child neglect or child abuse are credibly alleged. This section also prohibits the court from ordering a child to a reunification camp with a party that poses a serious or imminent risk to the child's safety and prohibits orders of joint custody in cases involving domestic violence, coercive control, child abuse or child neglect. Finally, this section requires the chief administrator of the courts to promulgate rules mandating comprehensive training for judges, referees and other hearing officers who preside over child custody proceedings in which one or more parties have alleged domestic violence, child neglect or child abuse. Section 5 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 6 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 in a manner to permit peti- tioners to identify findings or allegations of child abuse, child neglect, domestic violence, or serious or imminent risk to a child's safety. Section 7 of the bill amends section 651 of the Family Court Act to ensure that the same protections as noted above are in place for custody and visitation proceedings in Family Court. Sections 8 and 9 of the bill amends sections 1112 and 1114 of the family court act to ensure a party's decision to appeal an initial or succes- sive temporary order is permitted. Sections 10 and 11 of the bill amend subdivision a of section 249 of the family court act to ensure the court appoints an attorney to represent a child in any proceeding under article 6 when credible allegations of serious risk to the child's safety have been made. Section 12 of the bill amends rule 5521 of the civil practice law and rules to ensure a party's decision to appeal an initial or successive order is permitted. Section 13 is the effective date.   DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSION (IF APPLICABLE): The amended version of the bill maintains the important policy goals of the original but includes numerous textual revisions, including requir- ing courts to consider whether parties pose a serious or imminent risk to the child's safety. The amended version also clarifies the right of parties and attorneys for children to appeal the issuance or denial of initial or successive orders of custody or visitation.   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. Even when they are not "directly" abused, children 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 Kyra 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, child neglect or child abuse as an attempt by one parent to win custody from the other. Accord- ing to research by Dr. Daniel Saunders of the University of Michigan, in conjunction with the U.S. Department of Justice, "domestic violence is frequently undetected in custody cases or ignored as a significant factor in determining custody or visitation." The study also found that a lack of knowledge in domestic violence and child abuse leads judges to accuse victims of abuse of lying, even when there is evidence the courts dismiss and discount the violence. (2) 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 prompt evidentiary hearing upon application by a party or an attorney for the child in a child custody or visitation proceeding to determine whether temporary limitations or conditions on the custody or visitation rights or a party who is alleged to have committed domestic violence or child abuse is necessary to avoid serious or imminent risk to the child's safety. Such assessment of serious or imminent risk would include, but not be limited to, considering a party's 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 inci- dent reports; and other factors finding or credibly alleging serious or imminent risk to a child's safety. 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 serious or imminent risk to the child's safety. The bill would create a rebuttable presumption that the court shall not award sole or joint custody to any party who poses a serious or imminent risk to the child's safety. The court's decision-making would be stated 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. The court would consider several factors, including a party's history of domestic violence, child abuse, child neglect, child sexual abuse or incidents involving harm to a child or serious or imminent risk to the safety of the child; police reports, such as domestic incident reports or orders of protection; commission of family offenses; whether either party has used or threat- ened to use a weapon or dangerous instrument; threats to harm or kill the child, the other parent, others or companion animals; sexual abuse or other sexual offenses against the child or other parent; and other factors indicating potential serious or imminent risk to a child's safe- ty. Research finds that courts often err in awarding child custody or visi- tation to abusers due to the debunked theory 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 such alienation VIRTUALLY DOUBLE the courts' rejection of parents' abuse claims, causing non-offending parents to lose custody to the parent accused of abuse. This bill would prohibit the court in cases involving domestic violence, child neglect or child abuse from finding that the party who has made such allegations has alienated the child against the other party or failed to support the child's relationship with the other party. Nor in such cases would the court be permitted to order a child to a reunification camp with a party that poses a serious or imminent risk to the child's safety. In any final order of custody or visitation where domestic violence, coercive control, child neglect or child abuse is found, the bill would create a rebuttable presumption that no order of joint custody be made and the court would be prohibited from using a party's refusal to consent to joint custody against such party. To ensure courts are well-equipped to conduct evidentiary hearings to assess child safety, this bill would expand current judicial training requirements to include referees and other hearing officers and would require such individuals to obtain comprehensive training in domestic violence and child abuse, followed by supplemental training every two years. The chief administrator of the courts would promulgate and enforce rules for such training, which would be developed and offered by the Office of Court Administration, in consultation with the Office for the Prevention of Domestic Violence . Such training, which would be updated at least once every two years, would include instruction on: relevant statutes and case law; the power and control dynamics of domes- tic violence and child abuse; abusive tactics and coercive control; increased risk of violence during court proceedings; how to consider serious and imminent risk to a child and a child's parent; etc.   PRIOR LEGISLATIVE HISTORY: 2021-2022: A.5398A, A5398   FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: 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.orq/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/nijigrants/238891.pdf (3) Vincent J. Felitti, Robert F. Anda, D. Nordenberg, D. F. William- son, 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.
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A03346 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         3346--C
 
                               2023-2024 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 2, 2023
                                       ___________
 
        Introduced  by  M. of A. HEVESI, SILLITTI, DICKENS, FAHY, CLARK, HUNTER,
          LAVINE,  SEAWRIGHT,  SIMON,  JACKSON,  RIVERA,  McDONOUGH,  MORINELLO,
          THIELE, BURDICK, K. BROWN, STIRPE, GONZALEZ-ROJAS, DURSO, OTIS, BRABE-
          NEC,  MANKTELOW, ANGELINO, COOK, GUNTHER, STERN, JEAN-PIERRE, DeSTEFA-
          NO, BLANKENBUSH, RA, FITZPATRICK,  PHEFFER AMATO,  ANDERSON,  MIKULIN,
          L. ROSENTHAL,  LUPARDO,  SIMPSON,  EPSTEIN,  KELLES,  JENSEN,  BURGOS,
          JONES, STECK,  ZINERMAN,  CRUZ,  AUBRY,  CUNNINGHAM,  HAWLEY,  PAULIN,
          BARRETT,    RAMOS,   GIBBS,   JACOBSON,   DINOWITZ,   REYES,   CONRAD,
          J. A. GIGLIO, MAHER, BLUMENCRANZ, BORES, GANDOLFO, SHIMSKY,  McDONALD,
          BRONSON,  DARLING,  BENDETT, DE LOS SANTOS, WOERNER, WILLIAMS, EACHUS,
          PRETLOW, ALVAREZ, DAVILA,  BENEDETTO,  SMITH,  MEEKS,  SIMONE,  TAPIA,
          BUTTENSCHON,  WALLACE,  ARDILA, LEVENBERG, RAGA, SEPTIMO, COLTON, LEE,
          GALLAHAN, FLOOD, WEPRIN, SAYEGH, TANNOUSIS, BICHOTTE HERMELYN,  SOLAG-
          ES, CURRAN, TAYLOR -- read once and referred to the Committee on Judi-
          ciary  --  committee  discharged,  bill  amended, ordered reprinted as
          amended and recommitted  to  said  committee  --  recommitted  to  the
          Committee  on  Judiciary in accordance with Assembly Rule 3, sec. 2 --
          committee discharged, bill amended, ordered reprinted as  amended  and
          recommitted to said committee -- recommitted to the Committee on Judi-
          ciary  in  accordance  with  Assembly  Rule  3,  sec.  2  -- committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to said committee
 
        AN ACT to amend the domestic relations law, the family court act and the
          civil practice law and rules, in relation to establishing "Kyra's Law"
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  Short  title. This act shall be known and may be cited as
     2  "Kyra's Law".
     3    § 2. Subdivision 1 of section 240 of the  domestic  relations  law  is
     4  amended by adding a new opening paragraph to read as follows:

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD06231-12-4

        A. 3346--C                          2
 
     1    The legislature recognizes that the safety of children is of paramount
     2  importance  and  is an integral element of their best interests. To that
     3  end, the legislature finds that judicial decisions regarding custody of,
     4  and access to, children shall promote the safety of children as a thres-
     5  hold issue.
     6    §  3.  Paragraphs (a) and (a-1) of subdivision 1 of section 240 of the
     7  domestic relations law, paragraph (a) as amended by chapter 567  of  the
     8  laws  of  2015 and paragraph (a-1) as amended by chapter 295 of the laws
     9  of 2009, are amended to read as follows:
    10    (a) In any action or proceeding brought (1) to annul a marriage or  to
    11  declare  the nullity of a void marriage, or (2) for a separation, or (3)
    12  for a divorce, or (4) to obtain, by a writ of habeas corpus or by  peti-
    13  tion and order to show cause, the custody of or right to visitation with
    14  any  child  of  a  marriage, the court shall require verification of the
    15  status of any child of the marriage with respect to such child's custody
    16  and support, including any prior orders,  and  shall  enter  orders  for
    17  custody  and  support  as,  in the court's discretion, justice requires,
    18  having regard to the circumstances of the case  and  of  the  respective
    19  parties  and  to  the  best  interests  of  the child and subject to the
    20  provisions of subdivision one-c of this section.  When the parties first
    21  appear in court, the court shall advise the parties before proceeding of
    22  the right to be represented by counsel of their  own  choosing,  of  the
    23  right  to  have  an adjournment of no longer than fourteen court days to
    24  confer with counsel, and the right to obtain counsel fees and  expenses,
    25  pursuant  to section two hundred thirty-seven of this article. The court
    26  shall assign counsel to the eligible parties and children,  pursuant  to
    27  article  two of the family court act and subdivisions seven and eight of
    28  section thirty-five of the judiciary  law.  Where  either  party  to  an
    29  action  concerning  custody  of  or  a  right to visitation with a child
    30  alleges in a sworn petition or complaint or  sworn  answer,  cross-peti-
    31  tion,  counterclaim  or  other  sworn responsive pleading that the other
    32  party has committed an act of domestic violence against the party making
    33  the allegation or a family or household member of either party, as  such
    34  family  or  household  member  is defined in article eight of the family
    35  court act, and such allegations are proven by  a  preponderance  of  the
    36  evidence,  the  court  [must] shall consider the effect of such domestic
    37  violence upon the best interests of the child, together with such  other
    38  facts  and  circumstances as the court deems relevant in making a direc-
    39  tion pursuant to this section and state on the record how such findings,
    40  facts and circumstances factored into the direction. If a parent makes a
    41  good faith allegation based on a reasonable belief  supported  by  facts
    42  that  the  child  is  the  victim  of child abuse, child neglect, or the
    43  effects of domestic violence, and if that parent acts  lawfully  and  in
    44  good faith in response to that reasonable belief to protect the child or
    45  seek  treatment for the child, then that parent shall not be deprived of
    46  custody, visitation or contact with the child, or restricted in custody,
    47  visitation or contact, based solely on that  belief  or  the  reasonable
    48  actions  taken  based  on  that belief. If an allegation that a child is
    49  abused is supported by a preponderance of the evidence, then  the  court
    50  shall  consider  such  evidence  of  abuse in determining the visitation
    51  arrangement that is in the best interest of the  child,  and  the  court
    52  shall  not  place  a  child  in  the  custody of a parent who presents a
    53  substantial risk of harm to that child, and shall state  on  the  record
    54  how such findings were factored into the determination. Where a proceed-
    55  ing  filed  pursuant  to article ten or ten-A of the family court act is
    56  pending at the same time as a proceeding brought in  the  supreme  court

        A. 3346--C                          3
 
     1  involving  the  custody  of, or right to visitation with, any child of a
     2  marriage, the court presiding over the proceeding under article  ten  or
     3  ten-A of the family court act may jointly hear the dispositional hearing
     4  on  the petition under article ten or the permanency hearing under arti-
     5  cle ten-A of the family court act and, upon referral  from  the  supreme
     6  court, the hearing to resolve the matter of custody or visitation in the
     7  proceeding  pending  in  the  supreme court; provided however, the court
     8  [must] shall determine custody or  visitation  in  accordance  with  the
     9  terms of this section.
    10    An  order  directing  the  payment  of child support shall contain the
    11  social security numbers of the named parties. In all cases  there  shall
    12  be  no  prima  facie right to the custody of the child in either parent.
    13  Such direction shall make provision for child support out of the proper-
    14  ty of either or both parents. The court shall make its award  for  child
    15  support  pursuant  to  subdivision one-b of this section. Such direction
    16  may provide for reasonable visitation  rights  to  the  maternal  and/or
    17  paternal  grandparents of any child of the parties. Such direction as it
    18  applies to rights of visitation with a child remanded or placed  in  the
    19  care  of  a  person, official, agency or institution pursuant to article
    20  ten of the family court act, or pursuant to an instrument approved under
    21  section three hundred fifty-eight-a of the social services law, shall be
    22  enforceable pursuant to part eight of article ten of  the  family  court
    23  act  and  sections three hundred fifty-eight-a and three hundred eighty-
    24  four-a of the social services law and other applicable provisions of law
    25  against any person having care and custody, or temporary care and custo-
    26  dy, of the child. Notwithstanding any other provision of law, any  writ-
    27  ten  application or motion to the court for the establishment, modifica-
    28  tion or enforcement of a child support obligation  for  persons  not  in
    29  receipt  of  public  assistance  and  care [must] shall contain either a
    30  request for child support enforcement services which would authorize the
    31  collection of the support obligation by the  immediate  issuance  of  an
    32  income  execution  for support enforcement as provided for by this chap-
    33  ter, completed in the manner specified in section one  hundred  eleven-g
    34  of  the  social  services  law;  or  a  statement that the applicant has
    35  applied for or is in receipt of such services; or a statement  that  the
    36  applicant  knows of the availability of such services, has declined them
    37  at this time and where support enforcement services pursuant to  section
    38  one  hundred eleven-g of the social services law have been declined that
    39  the applicant understands that an income deduction order may  be  issued
    40  pursuant  to  subdivision  (c) of section fifty-two hundred forty-two of
    41  the civil practice law and rules without other child support enforcement
    42  services and that payment of an administrative fee may be required.  The
    43  court  shall  provide  a  copy  of  any  such  request for child support
    44  enforcement services to the support collection unit of  the  appropriate
    45  social services district any time it directs payments to be made to such
    46  support  collection  unit.  Additionally,  the  copy of any such request
    47  shall be accompanied by the name, address and social security number  of
    48  the  parties;  the date and place of the parties' marriage; the name and
    49  date of birth of the child or children; and the name and address of  the
    50  employers  and  income  payors  of  the party from whom child support is
    51  sought or from the party ordered to  pay  child  support  to  the  other
    52  party.  Such direction may require the payment of a sum or sums of money
    53  either directly to the custodial parent or to third persons for goods or
    54  services furnished for such child, or for both payments to the custodial
    55  parent and to such third persons; provided,  however,  that  unless  the
    56  party seeking or receiving child support has applied for or is receiving

        A. 3346--C                          4

     1  such  services,  the  court shall not direct such payments to be made to
     2  the support collection unit,  as  established  in  section  one  hundred
     3  eleven-h  of  the social services law. Every order directing the payment
     4  of support shall require that if either parent currently, or at any time
     5  in  the  future,  has  health  insurance  benefits available that may be
     6  extended or obtained to cover the child,  such  parent  is  required  to
     7  exercise  the  option  of additional coverage in favor of such child and
     8  execute and deliver to such person  any  forms,  notices,  documents  or
     9  instruments  necessary  to assure timely payment of any health insurance
    10  claims for such child.
    11    (a-1)(1) [Permanent and initial temporary orders of custody or visita-
    12  tion. Prior to the issuance of any permanent or initial temporary  order
    13  of  custody or visitation, the court shall conduct a review of the deci-
    14  sions and reports listed in subparagraph three of this paragraph.
    15    (2) Successive temporary orders of custody or visitation. Prior to the
    16  issuance of any successive temporary order of custody or visitation, the
    17  court shall conduct a review of the  decisions  and  reports  listed  in
    18  subparagraph  three  of  this  paragraph,  unless such a review has been
    19  conducted within ninety days prior to the issuance of such order.
    20    (3) Decisions and reports for review. The court shall conduct a review
    21  of] Prompt evidentiary hearing. Upon the application of any party to  an
    22  action concerning custody of or visitation with a child, or of an attor-
    23  ney  for  the  child,  asserting  credible  allegations  of incidents or
    24  threats of domestic violence, child abuse  or  child  neglect  that,  if
    25  true,  would pose a serious or imminent risk to the safety of the child,
    26  the court shall hold a prompt evidentiary hearing to  determine  whether
    27  temporary  limitations or conditions on the custody or visitation rights
    28  of the party who is alleged to have committed or  threatened  to  commit
    29  domestic  violence,  child abuse or child neglect are necessary to avoid
    30  serious or imminent risk to the child's safety. Except  for  good  cause
    31  shown,  the  hearing for such determination shall commence within twenty
    32  court days of the application for such hearing.  The court shall  remind
    33  the  parties  of their right to the assistance of counsel for the prompt
    34  evidentiary hearing.  During such hearing, only  material  and  relevant
    35  evidence  shall  be  admitted.  If  a party waives his or her right to a
    36  hearing under this section, the court shall advise such  party  at  that
    37  time  that,  notwithstanding  such  waiver,  an  application  under this
    38  section may be made at any time during the pendency of the  proceedings.
    39  After  a  hearing  has been held pursuant to this provision, a party may
    40  request a subsequent prompt evidentiary hearing during the  pendency  of
    41  litigation  for  good cause shown.  During a prompt evidentiary hearing,
    42  the court shall consider the following, if available:
    43    (i) related decisions in court proceedings initiated pursuant to arti-
    44  cle ten of the family court act, and all warrants issued under the fami-
    45  ly court act; [and]
    46    (ii) any party's history of domestic violence, child  abuse  or  child
    47  neglect,  child  sexual abuse or incidents involving harm to a child, or
    48  serious or imminent risk to the child's safety;
    49    (iii) police reports, including domestic violence incident reports  or
    50  reporting  of incidents involving child abuse, child neglect or domestic
    51  violence by a party;
    52    (iv) evidence and findings of child  abuse,  child  neglect,  domestic
    53  violence,  or  serious or imminent risk to the child's safety, including
    54  but not limited to:
    55    (a) an increase in frequency or severity of domestic violence;

        A. 3346--C                          5
 
     1    (b) use or threats to use a weapon or dangerous instrument, or  unlaw-
     2  ful possession of firearms;
     3    (c)  threats  to  harm  or  kill the child, the other party, the other
     4  party's children, self or others, or companion animals;
     5    (d) sexual abuse or other sexual offenses against  the  child  or  the
     6  other party;
     7    (e) unlawful dissemination or publication of an intimate image, pursu-
     8  ant to section 245.15 of the penal law;
     9    (f) incidents involving obstruction of breathing or strangulation;
    10    (g) any party's pattern of alcohol or substance abuse that poses seri-
    11  ous or imminent risk to the child's safety;
    12    (h) incidents of violence during pregnancy;
    13    (i) incidents of stalking or cyber stalking; and
    14    (j)  coercive  control, as defined in paragraph (b) of subdivision one
    15  of section two hundred forty-e of this article; and
    16    (v) reports of  the  statewide  computerized  registry  of  orders  of
    17  protection  established  and  maintained pursuant to section two hundred
    18  twenty-one-a of the executive law,  and  reports  of  the  sex  offender
    19  registry  established  and  maintained  pursuant  to section one hundred
    20  sixty-eight-b of the correction law.
    21    [(4)] (2) Conditions of custody or visitation.   If the  court  deter-
    22  mines  that limitations or restrictions of a party's custody, visitation
    23  or contact with the child are necessary pursuant  to  a  review  of  any
    24  findings or credible allegations of child abuse, child neglect, domestic
    25  violence,  or  serious  or  imminent risk to the child's safety, and the
    26  decisions and reports listed in subparagraph one of this paragraph,  the
    27  court shall set forth conditions of custody or visitation in a temporary
    28  order of custody or visitation that prioritizes the avoidance of serious
    29  or imminent risk to the child's safety.
    30    (i)  There  shall be a rebuttable presumption that the court shall not
    31  award, in a temporary order of custody  or  visitation,  sole  or  joint
    32  custody  or  visitation  that  is  unsupervised  or  without  sufficient
    33  protections of the child's safety to a party  who  poses  a  serious  or
    34  imminent risk to the child's safety.
    35    (ii)  The  court  shall  state in writing any findings of child abuse,
    36  child neglect, domestic violence, or serious or  imminent  risk  to  the
    37  child's  safety,  and  the  factors, decisions and reports considered in
    38  making such findings and the reasons for the limitations or restrictions
    39  placed on a party's custody, visitation  or  contact  with  such  child.
    40  When  a  prompt  evidentiary  hearing has been held regarding serious or
    41  imminent risk to the child's safety and  the  court  has  rendered  such
    42  decision, the parties shall be notified of their right to appeal.
    43    (iii)  In addition to the right of appeal regarding a final order, any
    44  party or the attorney for the child in  a  proceeding  for  a  temporary
    45  order  of custody or visitation pursuant to this subparagraph in which a
    46  prompt evidentiary hearing has been held regarding imminent risk to  the
    47  child's safety pursuant to the provisions of this paragraph shall have a
    48  right  to  appeal  the granting or denial of the temporary order, or the
    49  terms of such order, to the appropriate appellate  division.  An  appeal
    50  under  this  subparagraph  shall  be given a preference pursuant to rule
    51  five thousand five hundred twenty-one of  the  civil  practice  law  and
    52  rules.
    53    A  notice  of appeal regarding the granting or denial of the temporary
    54  order, or the terms of such order,  by  the  supreme  court  under  this
    55  subparagraph  shall  be  filed  in  accordance  with  subdivision (a) of
    56  section five thousand five hundred thirteen of the  civil  practice  law

        A. 3346--C                          6
 
     1  and  rules.  A  notice of appeal regarding the granting or denial of the
     2  temporary order, or the terms of such order, by  a  family  court  under
     3  this  subdivision  shall  be  filed  no later than thirty days after the
     4  service  by  a  party  or the child's attorney upon the appellant of any
     5  order from which the appeal is taken or receipt of the order in court or
     6  thirty-five days from mailing or electronic transmission of the order by
     7  the court, whichever is earliest.
     8    Pending the determination of such appeal, the  appellate  division  in
     9  which  the  appeal  is  pending may stay the order on appeal pursuant to
    10  subdivision (c) of section five thousand five hundred  nineteen  of  the
    11  civil practice law and rules where such court determines that the effect
    12  of  the  order  on appeals creates an imminent risk to the safety of the
    13  child and that a stay is necessary to avoid such risk. The party  apply-
    14  ing  for  the  stay  shall  notify the attorneys for all parties and the
    15  attorney for the child of the time and place of  such  application.  The
    16  party applying for the stay shall state in the application the errors of
    17  fact  or law allegedly committed by the trial court. A party applying to
    18  the appellate division for the stay shall make every  reasonable  effort
    19  to obtain a complete transcript of the proceeding before the trial court
    20  in accordance with the rules of the applicable appellate division.
    21    (iv) Nothing contained in this subparagraph shall be deemed in any way
    22  to limit, restrict, expand or impair the rights of any party to file for
    23  a modification of a temporary order as is otherwise provided by law.
    24    (3)  Notifying counsel and issuing orders. Upon consideration of deci-
    25  sions pursuant to article ten of the  family  court  act,  and  registry
    26  reports  and  notifying  counsel  involved  in the proceeding, or in the
    27  event of a self-represented party, notifying such party of  the  results
    28  thereof,  including any court appointed attorney for children, the court
    29  may issue a temporary, successive temporary or final order of custody or
    30  visitation.
    31    [(5)]  (4)  Temporary  emergency  order.  Notwithstanding  any   other
    32  provision  of  the  law,  upon  emergency situations, including computer
    33  malfunctions, to serve the best interest of the  child,  the  court  may
    34  issue a temporary emergency order for custody or visitation in the event
    35  that it is not possible to timely review decisions and reports on regis-
    36  tries  as  required  pursuant  to subparagraph [three] one of this para-
    37  graph.
    38    [(6)] (5) After issuing a temporary emergency order. After  issuing  a
    39  temporary  emergency  order  of  custody  or visitation, the court shall
    40  conduct reviews of the decisions and reports on registries  as  required
    41  pursuant  to  subparagraph  [three] one of this paragraph within twenty-
    42  four hours of the issuance of such  temporary  emergency  order.  Should
    43  such twenty-four hour period fall on a day when court is not in session,
    44  then  the required reviews shall take place the next day the court is in
    45  session. Upon reviewing decisions and reports  the  court  shall  notify
    46  associated  counsel, self-represented parties and attorneys for children
    47  pursuant to subparagraph [four] three of this paragraph  and  may  issue
    48  temporary or permanent custody or visitation orders.
    49    [(7)]  (6)  Feasibility study. The commissioner of the office of chil-
    50  dren and family services, in conjunction with the office of court admin-
    51  istration, is hereby authorized and directed to examine, study, evaluate
    52  and make recommendations concerning the feasibility of  the  utilization
    53  of  computers  in  courts  which  are connected to the statewide central
    54  register of child abuse  and  maltreatment  established  and  maintained
    55  pursuant  to section four hundred twenty-two of the social services law,
    56  as a means  of  providing  courts  with  information  regarding  parties

        A. 3346--C                          7
 
     1  requesting orders of custody or visitation. Such commissioner shall make
     2  a  preliminary  report  to the governor and the legislature of findings,
     3  conclusions and recommendations not later than January first, two  thou-
     4  sand  nine,  and a final report of findings, conclusions and recommenda-
     5  tions not later than June first, two thousand  nine,  and  shall  submit
     6  with  the  reports such legislative proposals as are deemed necessary to
     7  implement the commissioner's recommendations.
     8    § 4. The domestic relations law is amended by  adding  a  new  section
     9  240-e to read as follows:
    10    § 240-e. Custody and visitation; safety of the child.  The legislature
    11  recognizes that the safety of children is of paramount importance and is
    12  an  integral  element of their best interests. To that end, the legisla-
    13  ture finds that judicial decisions regarding custody of, and access  to,
    14  children  shall  promote the safety of children as a threshold issue. 1.
    15  For the purposes of this section, the following  terms  shall  have  the
    16  following meanings:
    17    (a)  "Victim  of  domestic  violence"  shall  have the same meaning as
    18  defined in section four hundred fifty-nine-a of the social services law.
    19    (b) "Coercive control" means a pattern of behavior that in purpose  or
    20  effect  unreasonably  restricts  a  party's  safety  or autonomy through
    21  implicit or explicit threats, or intimidation, or by compelling  compli-
    22  ance. This conduct includes, but is not limited to:
    23    (i) isolating the other party from friends, family or other sources of
    24  support;
    25    (ii) interfering with a party's freedom of movement;
    26    (iii)  depriving  the  other  party of basic necessities such as food,
    27  sleep, clothing, housing, medication or medical care;
    28    (iv) controlling, regulating,  surveilling  or  monitoring  the  other
    29  party's movements, communications, daily behavior, appearance, finances,
    30  economic resources or access to services;
    31    (v)  compelling  the  other  party by force, threat of force or intim-
    32  idation, including but  not  limited  to  threats  based  on  actual  or
    33  suspected  immigration status, to engage in conduct from which the other
    34  party has a right to abstain or to abstain from  conduct  in  which  the
    35  other party has a right to engage;
    36    (vi) interfering with the other party's education or employment;
    37    (vii)  forcing  or  compelling the other party to perform sex acts, or
    38  threats of a sexual nature, including but not limited to threatened acts
    39  of sexual conduct, threats based on a person's sexuality or  threats  to
    40  release intimate images; or
    41    (viii)  cleaning, accessing, displaying, using or wearing a firearm or
    42  other dangerous weapon in an intimidating or threatening manner.
    43    2. Notwithstanding any other provision of law to the contrary, a court
    44  making a final determination of custody or visitation based on the  best
    45  interests  of  a  child pursuant to the provisions of this chapter shall
    46  prioritize and promote the safety of such child when making such  deter-
    47  minations.  Only  competent,  material,  and  relevant evidence shall be
    48  admitted, however, the hearsay statements of the child may  be  admitted
    49  when  corroborated  by  other  evidence,  pursuant to article ten of the
    50  family court act. Promoting the safety of a child shall include prevent-
    51  ing direct physical or emotional harm to such child.    In  making  such
    52  final determinations, the court, if possible, should consider:
    53    (a) which party is more likely to protect the safety of the child, and
    54  whether  any party poses a serious or imminent risk to the safety of the
    55  child;

        A. 3346--C                          8
 
     1    (b) whether any party to the proceeding has committed, or has  threat-
     2  ened  to  commit,  an  act  of  child abuse or child neglect against the
     3  child, or has committed or threatened  to  commit  an  act  of  domestic
     4  violence  against the party making the allegation, or a family or house-
     5  hold  member  of  either  party  as  such  family or household member is
     6  defined in article eight of the family court act;
     7    (c) any party's history of domestic violence,  child  abuse  or  child
     8  neglect,  child  sexual  abuse or incidents involving harm to a child or
     9  serious or imminent risk to the child's safety;
    10    (d) police reports, including domestic violence  incident  reports  or
    11  reporting  of incidents involving child abuse, child neglect or domestic
    12  violence by a party;
    13    (e) evidence  and  findings  or  allegations  of  child  abuse,  child
    14  neglect,  domestic  violence, or serious or imminent risk to the child's
    15  safety, including but not limited to:
    16    (i) an increase in frequency or severity of domestic violence;
    17    (ii) use or threats to use a weapon or dangerous instrument, or unlaw-
    18  ful possession of firearms;
    19    (iii) threats to harm or kill the child, the other  party,  the  other
    20  party's children, self or others, or companion animals;
    21    (iv)  sexual abuse or other sexual offenses against the child or other
    22  party;
    23    (v) unlawful dissemination or publication of an intimate image, pursu-
    24  ant to section 245.15 of the penal law;
    25    (vi) incidents involving obstruction of breathing or strangulation;
    26    (vii) any party's pattern of alcohol or  substance  abuse  that  poses
    27  serious or imminent risk to the child's safety;
    28    (viii) incidents of violence during pregnancy;
    29    (ix) incidents of stalking or cyber stalking; and
    30    (x)  coercive  control, as defined in paragraph (b) of subdivision one
    31  of this section;
    32    (f) whether any party has been found to have committed an act pursuant
    33  to section eight hundred twelve of the family court act between  spouses
    34  or former spouses, or between parent and child or between members of the
    35  same family or household;
    36    (g)  whether  any  party  has  used  or  threatened to use a dangerous
    37  instrument to harm the other party, child, or a third party, including a
    38  firearm, except in incidents involving self-defense, or  has  unlawfully
    39  possessed  a  weapon  or  firearm,  or  has  been  convicted of criminal
    40  possession of a weapon or criminal use of a firearm pursuant to  article
    41  two hundred sixty-five of the penal law, or is or has been subject to an
    42  extreme  risk protection order, pursuant to article sixty-three-A of the
    43  civil practice law and rules; and
    44    (h) which party has been the primary caretaker of the child, primarily
    45  attending to the physical, emotional,  developmental,  educational,  and
    46  any special needs of the child.
    47    3.  There shall be a rebuttable presumption that custody or visitation
    48  that is unsupervised or without sufficient  protection  of  the  child's
    49  safety  shall  not be awarded to a party who poses a serious or imminent
    50  risk to the child's safety.
    51    4. (a) In any proceeding for  custody  or  visitation  where  a  party
    52  asserts  credible  allegations  of  incidents  or  threats  of  domestic
    53  violence, child abuse or child neglect, the court shall  not  find  that
    54  the  party who has made such allegations has alienated the child against
    55  the other party or failed to support the child's relationship  with  the
    56  other party.

        A. 3346--C                          9
 
     1    (b)  The court shall not presume that a child's reluctance to interact
     2  with a party was caused by the other party, nor shall a party  be  given
     3  custody  for  the  purpose of improving a relationship between the child
     4  and such party or in an attempt to address  the  child's  reluctance  to
     5  interact with such party.
     6    (c)  In  cases  involving  domestic  violence, coercive control, child
     7  abuse or child neglect, the  court  shall  not  order  the  child  to  a
     8  reunification camp with a party that poses a serious or imminent risk to
     9  the child's safety.
    10    (d)  Nothing in this section shall be construed to create an exception
    11  to section seven hundred fifty-three of the judiciary law, or any  other
    12  enforcement  provision, such that a party may seek to enforce any proper
    13  ruling of the court, unless stayed, concerning access to  the  child  or
    14  conditions of access to the child.
    15    5. In cases involving domestic violence, coercive control, child abuse
    16  or  child neglect, there shall be a rebuttable presumption that no order
    17  of joint custody shall be made. The court  shall  not  suggest  that  in
    18  order  to retain custody, a party must agree to joint custody. The court
    19  shall not use a party's refusal to consent to joint custody against such
    20  party when making its final custody or visitation determination.
    21    6. (a) The chief administrator of  the  courts  shall  promulgate  and
    22  enforce  rules  mandating  comprehensive  training on domestic violence,
    23  child abuse and child neglect before judges, referees, or other  hearing
    24  officers  preside  over  child  custody proceedings in which one or more
    25  parties have alleged domestic violence or child abuse  and  supplemental
    26  training  every  two years thereafter to remain eligible to preside over
    27  such proceedings. Such training shall address current knowledge and  law
    28  relating  to  domestic violence, child abuse and child neglect, with the
    29  goal of making appropriate custody and visitation decisions that  prior-
    30  itize children's safety and are culturally sensitive and appropriate for
    31  diverse communities. The office of court administration, in consultation
    32  with  the  office for the prevention of domestic violence, shall develop
    33  and conduct such training, which shall be reviewed and updated at  least
    34  once  every  two years.  Such training shall include, but not be limited
    35  to:
    36    (1) relevant statutes and case law pertaining to domestic violence and
    37  child abuse;
    38    (2) the power and control dynamics  of  domestic  violence  and  child
    39  abuse, including but not limited to, stalking, and emotional, financial,
    40  physical,  technological,  cyber,  sexual, and litigation abuse, and the
    41  tactics commonly used to induce fear in or  to  dominate  or  control  a
    42  partner or child, including coercive control;
    43    (3) the barriers and fears associated with reporting domestic violence
    44  and  child  abuse  and  neglect,  and  the  increased risk of escalating
    45  violence during child custody and visitation proceedings;
    46    (4) the science and  experience  of  trauma  and  other  psychological
    47  impacts  of  abuse  in  adults and children, including the importance of
    48  judges maintaining trauma-informed courts, and the dangers and  inadmis-
    49  sibility  of  non-scientific  theories,  such  as  parental  alienation,
    50  parental alienation syndrome, parental gatekeeping, or any other  theory
    51  that  is not supported by scientific research and not generally accepted
    52  by the scientific community;
    53    (5) the distinction between inappropriate interference with the child-
    54  parent relationship versus protective parenting in the context of domes-
    55  tic violence or child abuse and neglect;

        A. 3346--C                         10
 
     1    (6) how to consider serious and imminent  risk  to  a  child  or  such
     2  child's parent, pursuant to subdivision one of section two hundred forty
     3  of  this article for the purpose of issuing a temporary order of custody
     4  or visitation;
     5    (7)  best  practices in assessing allegations of domestic violence and
     6  child abuse and neglect; in  assessing  the  value  and  limitations  of
     7  reports of suspected child abuse or neglect conducted by law enforcement
     8  or departments of social services; and
     9    (8)  assessing  the qualifications and reports of child custody evalu-
    10  ators and mental health treatment providers.
    11    § 5. Section 70 of the domestic relations law, as amended  by  chapter
    12  457 of the laws of 1988, is amended to read as follows:
    13    § 70. Habeas corpus for child detained by parent.  (a) The legislature
    14  recognizes that the safety of children is of paramount importance and is
    15  an  integral element of their best interests.  To that end, the legisla-
    16  ture finds that judicial decisions regarding custody of, and access  to,
    17  children shall promote the safety of children as a threshold issue.
    18    (b)(i)  Where  a  minor  child  is  residing within this state, either
    19  parent may apply to the supreme court for a writ  of  habeas  corpus  to
    20  have such minor child brought before such court; and on the return ther-
    21  eof,  the  court,  on due consideration, may award the natural guardian-
    22  ship, charge and custody of such child to either parent for  such  time,
    23  under  such  regulations  and restrictions, and with such provisions and
    24  directions, as the case may require, and  may  at  any  time  thereafter
    25  vacate  or modify such order. In all cases there shall be no prima facie
    26  right to the custody of the child in either parent, but the court  shall
    27  determine  solely  what  is for the best interest of the child, and what
    28  will best promote its welfare and happiness, and make award accordingly.
    29  [(b)] Where the court issues any initial or successive  temporary  order
    30  of  custody  or  visitation or permanent order of custody or visitation,
    31  the court shall conduct a review of any findings or credible allegations
    32  of child abuse, child neglect, domestic violence, or serious or imminent
    33  risk to the child's safety, and the  decisions  and  reports  listed  in
    34  subparagraph  one  of  paragraph (a-1) of subdivision one of section two
    35  hundred forty of this chapter, unless such a review has  been  conducted
    36  within ninety days prior to the issuance of such order.
    37    (ii)  When  issuing  any temporary order of custody or visitation, the
    38  court shall state in writing any findings of child abuse, child neglect,
    39  domestic violence, or serious or imminent risk to  the  child's  safety,
    40  and  the  factors, decisions and reports considered in making such find-
    41  ings, and the reasons for any limitations or restrictions  placed  on  a
    42  party's custody, visitation or contact with such child. Any party or the
    43  attorney  for the child in a proceeding for a temporary order in which a
    44  prompt evidentiary hearing has been held regarding imminent risk to  the
    45  child's  safety pursuant to this chapter shall have a right to appeal to
    46  the appropriate appellate division, pursuant to article  eleven  of  the
    47  family court act.
    48    (iii)  Notwithstanding  any  other provision of law to the contrary, a
    49  court making a final determination of custody or visitation based on the
    50  best interests of a child pursuant to the  provisions  of  this  chapter
    51  shall  prioritize  and promote the safety of such child when making such
    52  determinations. Only competent, material and relevant evidence shall  be
    53  admitted,  pursuant to article ten of the family court act,  however the
    54  hearsay statements of the child may be  admitted  when  corroborated  by
    55  other evidence. Promoting the safety of a child shall include preventing
    56  direct physical or emotional harm to such child and shall be assessed by

        A. 3346--C                         11
 
     1  considering  any  findings or credible allegations of child abuse, child
     2  neglect, domestic violence, or serious or imminent risk to  the  child's
     3  safety,  and  decisions  and  reports  identified in subparagraph one of
     4  paragraph  (a-1) of subdivision one of section two hundred forty of this
     5  chapter.
     6    (iv) In making a decision pursuant to paragraph (i) of  this  subdivi-
     7  sion,  the  court  shall  be bound by the presumptions and admissibility
     8  described pursuant  to  section  two  hundred  forty  of  this  chapter.
     9  Further,  the  court  shall  not  take into consideration whether either
    10  party is married, was formerly married or has ever been married  to  the
    11  other party or anyone else.
    12    (v)  In  cases  involving  domestic  violence, coercive control, child
    13  abuse or child neglect, there shall be a rebuttable presumption that  no
    14  order  of  joint custody shall be made. The court shall not suggest that
    15  in order to retain custody, a party must agree  to  joint  custody.  The
    16  court  shall  not  use  a  party's  refusal  to consent to joint custody
    17  against such party when making its final custody or visitation  determi-
    18  nation,  as described in subdivision five of section two hundred forty-e
    19  of this chapter.
    20    (vi) Before judges, referees and other hearing officers  preside  over
    21  child  custody  proceedings  in  which  one or more parties have alleged
    22  domestic violence or child abuse, they shall complete  initial  training
    23  for the handling of such cases as described pursuant to paragraph (a) of
    24  subdivision  six  of  section  two hundred forty-e of this chapter. Once
    25  initial training requirements have been met, judges, referees and  other
    26  hearing  officers  shall  complete  additional  training every two years
    27  thereafter to remain  eligible  to  preside  over  such  proceedings  as
    28  described  pursuant  to  paragraph (a) of subdivision six of section two
    29  hundred forty-e of this chapter.
    30    (c) Any order under this section which applies to rights of visitation
    31  with a child remanded or placed in the care of a person, official, agen-
    32  cy or institution pursuant to article ten of the  family  court  act  or
    33  pursuant  to  an  instrument approved under section three hundred fifty-
    34  eight-a of the social services law, shall be enforceable pursuant to the
    35  provisions of part eight of article ten  of  such  act,  sections  three
    36  hundred  fifty-eight-a  and  three  hundred  eighty-four-a of the social
    37  services law and other applicable provisions of law against  any  person
    38  or  official  having care and custody, or temporary care and custody, of
    39  such child.
    40    § 6. Subdivision (b) of section  651  of  the  family  court  act,  as
    41  amended  by  chapter  657  of  the  laws  of 2003, is amended to read as
    42  follows:
    43    (b) (i) When initiated in the  family  court,  the  family  court  has
    44  jurisdiction to determine, in accordance with subdivision one of section
    45  two hundred forty of the domestic relations law and with the same powers
    46  possessed  by  the  supreme  court in addition to its own powers, habeas
    47  corpus proceedings and proceedings brought by petition and order to show
    48  cause, for the determination of the custody  or  visitation  of  minors,
    49  including  applications  by a grandparent or grandparents for visitation
    50  or custody rights pursuant to section seventy-two or two  hundred  forty
    51  of the domestic relations law.
    52    (ii)  The family court shall, in collaboration with the office for the
    53  prevention of domestic violence, update its petition used by parties  to
    54  initiate  child custody and visitation proceedings in a manner to permit
    55  petitioners to identify findings or allegations of  child  abuse,  child

        A. 3346--C                         12
 
     1  neglect,  domestic  violence,  or  serious or imminent risk to a child's
     2  safety.
     3    §  7.  Subdivision  (e)  of  section  651  of the family court act, as
     4  amended by chapter 295 of the laws  of  2009,  is  amended  to  read  as
     5  follows:
     6    (e) The legislature recognizes that the safety of children is of para-
     7  mount  importance and is an integral element of their best interests. To
     8  that end, the legislature finds that judicial decisions regarding custo-
     9  dy of, and access to, children shall promote the safety of children as a
    10  threshold issue.
    11    1. [Permanent and initial temporary orders of custody  or  visitation.
    12  Prior  to  the  issuance  of any permanent or initial temporary order of
    13  custody or visitation, the court shall conduct a review of the decisions
    14  and reports listed in  paragraph  three  of  this  subdivision.]  Prompt
    15  evidentiary  hearing.  Upon  the  application  of  a  party to an action
    16  concerning custody of or visitation with a child, or of an attorney  for
    17  the  child,  asserting  credible  allegations of incidents or threats of
    18  domestic violence, child abuse or child neglect that,   if  true,  would
    19  pose  a  serious  or imminent risk to the safety of the child, the court
    20  shall hold a prompt evidentiary hearing to determine  whether  temporary
    21  limitations  or  conditions  on  the custody or visitation rights of the
    22  party who is alleged to have committed or threatened to commit  domestic
    23  violence, child abuse or child neglect are necessary to avoid serious or
    24  imminent  risk  to  the  child's  safety, pursuant to paragraph (a-1) of
    25  subdivision one of section two hundred forty  and  section  two  hundred
    26  forty-e  of the domestic relations law. When the parties first appear in
    27  court, the court shall advise the parties before proceeding of the right
    28  to be represented by counsel of their own choosing, of the right to have
    29  an adjournment of no longer than fourteen  court  days  to  confer  with
    30  counsel,  and the right to obtain counsel fees and expenses, pursuant to
    31  section two hundred thirty-seven of  the  domestic  relations  law.  The
    32  court  shall assign counsel to the eligible parties and children, pursu-
    33  ant to article two of this chapter and subdivisions seven and  eight  of
    34  section thirty-five of the judiciary law.
    35    2. [Successive temporary orders of custody or visitation. Prior to the
    36  issuance of any successive temporary order of custody or visitation, the
    37  court  shall  conduct  a  review  of the decisions and reports listed in
    38  paragraph three of this subdivision,  unless  such  a  review  has  been
    39  conducted within ninety days prior to the issuance of such order.
    40    3.  Decisions] Findings and allegations of child abuse, child neglect,
    41  domestic violence, and serious or imminent risk to a child's safety, and
    42  the decisions and reports for review. The court shall conduct  a  review
    43  of the following, if available:
    44    (i) related decisions in court proceedings initiated pursuant to arti-
    45  cle ten of this act, and all warrants issued under this act; [and]
    46    (ii)  whether  any party to the action alleges that the other party to
    47  the proceeding has committed, or has threatened to  commit,  an  act  of
    48  child abuse or child neglect against the child, or has committed, or has
    49  threatened  to  commit,  an  act  of domestic violence against the party
    50  making the allegation or a family or household member of  either  party,
    51  as  such  family or household member is defined in article eight of this
    52  chapter;
    53    (iii) any party's history of domestic violence, child abuse  or  child
    54  neglect,  child  sexual abuse or incidents involving harm to a child, or
    55  serious or imminent risk to a child's safety;

        A. 3346--C                         13
 
     1    (iv) police reports, including domestic violence incident reports,  or
     2  reporting  of incidents involving child abuse, child neglect or domestic
     3  violence by a party;
     4    (v)  evidence, findings and credible allegations of child abuse, child
     5  neglect, domestic violence, or serious or imminent  risk  to  a  child's
     6  safety, including but not limited to:
     7    (a) an increase in frequency or severity of domestic violence;
     8    (b)  use or threats to use a weapon or dangerous instrument, or unlaw-
     9  ful possession of firearms;
    10    (c) threats to harm or kill the child,  the  other  party,  the  other
    11  party's children, self or others, or companion animals;
    12    (d)  sexual  abuse or other sexual offenses against the child or other
    13  party;
    14    (e) unlawful dissemination or publication of an intimate image, pursu-
    15  ant to section 245.15 of the penal law;
    16    (f) incidents involving obstruction of breathing or strangulation;
    17    (g) any party's pattern of alcohol or substance abuse that poses seri-
    18  ous or imminent risk to the child's safety;
    19    (h) incidents of violence during pregnancy;
    20    (i) incidents of stalking or cyber stalking; and
    21    (j) coercive control, as defined in paragraph (b) of  subdivision  one
    22  of section two hundred forty-e of the domestic relations law; and
    23    (vi)  reports  of  the  statewide  computerized  registry of orders of
    24  protection established and maintained pursuant to  section  two  hundred
    25  twenty-one-a  of  the  executive  law,  and  reports of the sex offender
    26  registry established and maintained  pursuant  to  section  one  hundred
    27  sixty-eight-b of the correction law.
    28    3. Appeal. In addition to the right of appeal regarding a final order,
    29  any  party or the attorney for the child in a proceeding for a temporary
    30  order of custody or visitation pursuant to this  paragraph  in  which  a
    31  prompt  evidentiary hearing has been held regarding imminent risk to the
    32  child's safety by reason of a family offense or child maltreatment in an
    33  application for a permanent or temporary order of custody or  visitation
    34  shall  have  a  right  to appeal the granting or denial of the temporary
    35  order, or the terms of such order, to the  appropriate  appellate  divi-
    36  sion.  An  appeal  under  this  subparagraph shall be given a preference
    37  pursuant to rule five thousand five  hundred  twenty-one  of  the  civil
    38  practice law and rules.
    39    A  notice  of appeal regarding the granting or denial of the temporary
    40  order, or the terms of such order,  by  the  supreme  court  under  this
    41  subdivision shall be filed in accordance with subdivision (a) of section
    42  five thousand five hundred thirteen of the civil practice law and rules.
    43  A  notice  of  appeal  regarding the granting or denial of the temporary
    44  order, or the terms of such order, by a family court under this subdivi-
    45  sion shall be filed no later than thirty days after  the  service  by  a
    46  party or the child's attorney upon the appellant of any order from which
    47  the appeal is taken or receipt of the order in court or thirty-five days
    48  from  mailing  or  electronic  transmission  of  the order by the court,
    49  whichever is earliest.
    50    Pending the determination of such appeal, the  appellate  division  in
    51  which  the  appeal  is  pending may stay the order on appeal pursuant to
    52  subdivision (c) of section five thousand five hundred  nineteen  of  the
    53  civil practice law and rules where such court determines that the effect
    54  of  the  order  on appeals creates an imminent risk to the safety of the
    55  child and that a stay is necessary to avoid such risk. The party  apply-
    56  ing  for  the  stay  shall  notify the attorneys for all parties and the

        A. 3346--C                         14
 
     1  attorney for the child of the time and place of  such  application.  The
     2  party applying for the stay shall state in the application the errors of
     3  fact  or law allegedly committed by the trial court. A party applying to
     4  the  appellate  division for the stay shall make every reasonable effort
     5  to obtain a complete transcript of the proceeding before the trial court
     6  in accordance with the rules of the applicable appellate division.
     7    4. Notifying counsel and issuing orders. Upon consideration  of  deci-
     8  sions  pursuant  to  article  ten  of this act, and registry reports and
     9  notifying counsel involved in the proceeding, or in the event of a self-
    10  represented party, notifying such party of the results thereof,  includ-
    11  ing  any  court  appointed  attorney for children, the court may issue a
    12  temporary, successive temporary or final order of custody or visitation.
    13    5. Temporary emergency order. Notwithstanding any other  provision  of
    14  the  law, upon emergency situations, including computer malfunctions, to
    15  serve the best interest of the child, the court may  issue  a  temporary
    16  emergency  order  for  custody or visitation in the event that it is not
    17  possible to  timely  review  decisions  and  reports  on  registries  as
    18  required pursuant to paragraph [three] two of this subdivision.
    19    6.  After  issuing a temporary emergency order. After issuing a tempo-
    20  rary emergency order of custody or visitation, the court  shall  conduct
    21  reviews  of the decisions and reports on registries as required pursuant
    22  to paragraph [three] two of this subdivision within twenty-four hours of
    23  the issuance of such temporary emergency order. Should such  twenty-four
    24  hour  period  fall  on  a  day  when  court  is not in session, then the
    25  required reviews shall take place the next day the court is in  session.
    26  Upon  reviewing  decisions and reports the court shall notify associated
    27  counsel, self-represented parties and attorneys for children pursuant to
    28  paragraph four of this subdivision and may issue temporary or  permanent
    29  custody or visitation orders.
    30    7.  Feasibility  study. The commissioner of the office of children and
    31  family services, in conjunction with the office of court administration,
    32  is hereby authorized and directed to examine, study, evaluate  and  make
    33  recommendations concerning the feasibility of the utilization of comput-
    34  ers in family courts which are connected to the statewide central regis-
    35  ter  of child abuse and maltreatment established and maintained pursuant
    36  to section four hundred twenty-two of the  social  services  law,  as  a
    37  means  of  providing  family  courts  with information regarding parties
    38  requesting orders of custody or visitation. Such commissioner shall make
    39  a preliminary report to the governor and the  legislature  of  findings,
    40  conclusions and recommendations not later than January thirty-first, two
    41  thousand nine, and a final report of findings, conclusions and recommen-
    42  dations  not  later than June first, two thousand nine, and shall submit
    43  with the reports such legislative proposals as are deemed  necessary  to
    44  implement the commissioner's recommendations.
    45    § 8. Subdivision a of section 1112 of the family court act, as amended
    46  by  section 28 of part A of chapter 3 of the laws of 2005, is amended to
    47  read as follows:
    48    a. An appeal may be taken as of right from any  order  of  disposition
    49  and,  in  the discretion of the appropriate appellate division, from any
    50  other order under this act. An appeal may be taken as of  right  to  the
    51  appropriate appellate division of the supreme court from an intermediate
    52  or  final order in a case involving abuse or neglect [may be taken as of
    53  right to the appellate division of the supreme court] under article  ten
    54  of  this  act  or  from an order of the court after a prompt evidentiary
    55  hearing under section six hundred  fifty-one  of  this  act  or  section
    56  seventy  or  two hundred forty of the domestic relations law determining

        A. 3346--C                         15
 
     1  an allegation of imminent risk to the child's  safety  and  granting  or
     2  denying a temporary emergency order of custody or visitation.  (i) Pend-
     3  ing  the  determination of such appeal, such order shall be stayed where
     4  the  effect  of  [such]  the  order  on appeal would be to discharge the
     5  child[, if the family court or the court before  which  such  appeal  is
     6  pending  finds  that  such a stay is necessary to avoid imminent risk to
     7  the child's life or health] in a case alleging abuse or neglect pursuant
     8  to article ten of this act.  In an appeal from an order in a custody  or
     9  visitation  proceeding  under article six of this act or section seventy
    10  or two hundred forty of the domestic relations law that was issued  upon
    11  a prompt evidentiary hearing regarding an allegation of imminent risk to
    12  a  child's  safety,  the court before which the appeal is taken may stay
    13  the order on appeal where the order would cause an imminent risk to  the
    14  child's  safety  during  the pendency of the appeal and where such court
    15  finds that a stay is necessary to avoid such  imminent  risk.    (ii)  A
    16  preference in accordance with rule five thousand five hundred twenty-one
    17  of  the  civil  practice  law  and  rules shall be afforded, without the
    18  necessity of a motion, for appeals under article three;  parts  one  and
    19  two  of  article  six;  articles  seven, ten, and ten-A of this act; and
    20  sections three  hundred  fifty-eight-a,  three  hundred  eighty-three-c,
    21  three hundred eighty-four, and three hundred eighty-four-b of the social
    22  services  law and appeals from orders issued under part three of article
    23  six of this act or section seventy or two hundred forty of the  domestic
    24  relations  law upon a prompt evidentiary hearing regarding an allegation
    25  of imminent risk to the child's safety.
    26    § 9. Subdivision (d) of section 1114  of  the  family  court  act,  as
    27  amended  by  chapter  41  of  the  laws  of  2010, is amended to read as
    28  follows:
    29    (d) Any party to a child protective proceeding, or  the  attorney  for
    30  the  child,  may apply to a justice of the appellate division for a stay
    31  of an order issued pursuant to part two of article ten of  this  chapter
    32  returning  a  child to the custody of a respondent.  Such an application
    33  may also be made in accordance with section  one  thousand  one  hundred
    34  twelve  of  this  act  or  subdivision (c) of section five thousand five
    35  hundred nineteen of the civil practice law and rules  to  stay  a  court
    36  order  of  custody  or  visitation  pursuant to this act or the domestic
    37  relations law where the order on appeal would cause an imminent risk  to
    38  the child's safety and where the court before which such appeal is pend-
    39  ing finds that such a stay is necessary to avoid such imminent risk. The
    40  party  applying  for the stay shall notify the attorneys for all parties
    41  and the attorney for the child of the time and place  of  such  applica-
    42  tion.  If  requested by any party present, oral argument shall be had on
    43  the application, except for good cause stated upon the record. The party
    44  applying for the stay shall state in the application the errors of  fact
    45  or law allegedly committed by the [family] trial court. A party applying
    46  to  the  [court]  appellate division for the granting or continuation of
    47  such stay shall make every reasonable effort to obtain a complete  tran-
    48  script  of  the proceeding before the [family] trial court in accordance
    49  with the rules of the applicable appellate division.
    50    § 10. Subdivision (a) of section 249  of  the  family  court  act,  as
    51  amended by chapter 3 of the laws of 2012, is amended to read as follows:
    52    (a) In a proceeding under article three, seven, ten, ten-A or ten-C of
    53  this  act  or where a revocation of an adoption consent is opposed under
    54  section one hundred fifteen-b of the domestic relations law  or  in  any
    55  proceeding  under  section  three  hundred  fifty-eight-a, three hundred
    56  eighty-three-c, three hundred eighty-four or three hundred eighty-four-b

        A. 3346--C                         16
 
     1  of the social services law or when a minor is sought  to  be  placed  in
     2  protective  custody under section one hundred fifty-eight of this act or
     3  in any proceeding where a minor is detained under  or  governed  by  the
     4  interstate  compact  for  juveniles established pursuant to section five
     5  hundred one-e of the executive law, the family court  shall  appoint  an
     6  attorney  to  represent  a minor who is the subject of the proceeding or
     7  who is sought to be placed in protective custody, if  independent  legal
     8  representation  is  not  available  to  such minor. In any proceeding to
     9  extend or continue the placement of a juvenile delinquent or  person  in
    10  need of supervision pursuant to section seven hundred fifty-six or 353.3
    11  of  this act or any proceeding to extend or continue a commitment to the
    12  custody of the commissioner of mental  health  or  the  commissioner  of
    13  people with developmental disabilities pursuant to section 322.2 of this
    14  act,  the court shall not permit the respondent to waive the right to be
    15  represented by counsel chosen by the respondent, respondent's parent, or
    16  other person legally  responsible  for  the  respondent's  care,  or  by
    17  assigned counsel. In any proceeding under article ten-B of this act, the
    18  family  court  shall appoint an attorney to represent a youth, under the
    19  age of twenty-one, who is the subject of the proceeding, if  independent
    20  legal  representation is not available to such youth.  In any proceeding
    21  under article six of this act, the court shall appoint  an  attorney  to
    22  represent  the  child  when  credible allegations of serious or imminent
    23  risk to the child's safety have been made. In any  other  proceeding  in
    24  which  the court has jurisdiction, including all proceedings under arti-
    25  cle six of this act, the court may appoint an attorney to represent  the
    26  child,  when,  in  the opinion of the family court judge, such represen-
    27  tation will serve the purposes of this act, if independent legal counsel
    28  is not available to the child. The family court on its  own  motion  may
    29  make such appointment.
    30    §  11.  Subdivision  (a)  of  section  249 of the family court act, as
    31  amended by chapter 672 of the laws  of  2019,  is  amended  to  read  as
    32  follows:
    33    (a) In a proceeding under article three, seven, ten, ten-A or ten-C of
    34  this  act  or where a revocation of an adoption consent is opposed under
    35  section one hundred fifteen-b of the domestic relations law  or  in  any
    36  proceeding  under  section  three  hundred  fifty-eight-a, three hundred
    37  eighty-three-c, three hundred eighty-four or three hundred eighty-four-b
    38  of the social services law or when a minor is sought  to  be  placed  in
    39  protective  custody  under  section one hundred fifty-eight of this act,
    40  the family court shall appoint an attorney to represent a minor  who  is
    41  the  subject  of the proceeding or who is sought to be placed in protec-
    42  tive custody, if independent legal representation is  not  available  to
    43  such  minor.  In any proceeding to extend or continue the placement of a
    44  juvenile delinquent or person in need of supervision pursuant to section
    45  seven hundred fifty-six or 353.3 of this act or any proceeding to extend
    46  or continue a commitment to the custody of the  commissioner  of  mental
    47  health  or  the commissioner of the office for people with developmental
    48  disabilities pursuant to section 322.2 of this act, the court shall  not
    49  permit  the  respondent  to waive the right to be represented by counsel
    50  chosen by the respondent, respondent's parent, or other  person  legally
    51  responsible  for  the  respondent's care, or by assigned counsel. In any
    52  proceeding under article ten-B of  this  act,  the  family  court  shall
    53  appoint  an  attorney to represent a youth, under the age of twenty-one,
    54  who is the subject of the proceeding,  if  independent  legal  represen-
    55  tation  is not available to such youth.  In any proceeding under article
    56  six of this act, the court shall appoint an attorney  to  represent  the

        A. 3346--C                         17
 
     1  child  when  credible  allegations  of  serious  or imminent risk to the
     2  child's safety have been made. In any  other  proceeding  in  which  the
     3  court  has  jurisdiction, including all proceedings under article six of
     4  this  act,  the  court  may  appoint an attorney to represent the child,
     5  when, in the opinion of the family court judge, such representation will
     6  serve the purposes of this act, if  independent  legal  counsel  is  not
     7  available to the child. The family court on its own motion may make such
     8  appointment.
     9    §  12.  Subdivision  (b)  of  rule  5521 of the civil practice law and
    10  rules, as amended by chapter 707 of the laws of 2019, is amended to read
    11  as follows:
    12    (b) Consistent with the provisions of section one thousand one hundred
    13  twelve of the family  court  act,  appeals  from  orders,  judgments  or
    14  decrees  in  proceedings  brought pursuant to articles three, seven, ten
    15  and ten-A and parts one and two of article six of the family court  act,
    16  and  pursuant  to  sections  three  hundred fifty-eight-a, three hundred
    17  eighty-three-c, three hundred eighty-four,  and  three  hundred  eighty-
    18  four-b  of  the  social  services  law, and pursuant to paragraph (d) of
    19  subdivision four and subparagraph (ii) of paragraph (d)  of  subdivision
    20  five of section eighty-nine of the public officers law, and appeals from
    21  orders issued under part three of article six of the family court act or
    22  section  seventy or two hundred forty of the domestic relations law upon
    23  a prompt evidentiary hearing regarding an allegation of imminent risk to
    24  a child's safety shall be given preference and may  be  brought  on  for
    25  argument  on  such  terms and conditions as the court may direct without
    26  the necessity of a motion.
    27    § 13. This act shall take effect on  the  one  hundred  twentieth  day
    28  after it shall have become a law; provided, however, that the amendments
    29  to  subdivision  (a)  of  section  249  of  the family court act made by
    30  section ten of this act shall be subject to the expiration and reversion
    31  of such subdivision pursuant to section 8 of chapter 29 of the  laws  of
    32  2011,  as  amended, when upon such date the provisions of section eleven
    33  of this act shall take  effect.  Effective  immediately,  the  addition,
    34  amendment  and/or  repeal  of  any  rule or regulation necessary for the
    35  implementation of this act on its effective date are  authorized  to  be
    36  made and completed on or before such effective date.
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