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.
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.
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.