Bill Text: NY A01081 | 2011-2012 | General Assembly | Introduced


Bill Title: Creates the short term military service guardian; allows parent w/o joint custody to appoint service guardian; provides for a maximum appointment of 180 days.

Spectrum: Moderate Partisan Bill (Republican 9-1)

Status: (Introduced - Dead) 2012-05-22 - held for consideration in judiciary [A01081 Detail]

Download: New_York-2011-A01081-Introduced.html
                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         1081
                              2011-2012 Regular Sessions
                                 I N  A S S E M B L Y
                                      (PREFILED)
                                    January 5, 2011
                                      ___________
       Introduced by M. of A. CASTELLI -- read once and referred to the Commit-
         tee on Judiciary
       AN  ACT  to  amend  the  domestic relations law and the military law, in
         relation to the creation of the short-term military service guardian
         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. The domestic relations law is amended by adding a new arti-
    2  cle 6-A to read as follows:
    3                                 ARTICLE 6-A
    4                    SHORT-TERM MILITARY SERVICE GUARDIAN
    5  SECTION 90. DEFINITIONS.
    6          91. SHORT-TERM MILITARY SERVICE GUARDIAN.
    7          92. DUTIES OF A SHORT-TERM MILITARY SERVICE GUARDIAN OF A MINOR.
    8    S  90.  DEFINITIONS.  "SHORT-TERM  MILITARY  SERVICE GUARDIAN" MEANS A
    9  GUARDIAN OF THE PERSON OF A MINOR, AS APPOINTED UNDER SECTION NINETY-ONE
   10  OF THIS ARTICLE, EFFECTIVE ON THE DATE OF THE APPOINTMENT OR  TO  BECOME
   11  EFFECTIVE  AT  A  LATER  DATE  UNDER SECTION NINETY-ONE OF THIS ARTICLE,
   12  EXCEPT THAT A  SHORT-TERM  MILITARY  SERVICE  GUARDIAN  SHALL  HAVE  THE
   13  AUTHORITY  TO  APPLY  FOR AND RECEIVE ON BEHALF OF THE MINOR BENEFITS TO
   14  WHICH THE CHILD MAY BE ENTITLED FROM OR UNDER FEDERAL, STATE,  OR  LOCAL
   15  ORGANIZATIONS OR PROGRAMS.
   16    S  91.  SHORT-TERM  MILITARY SERVICE GUARDIAN. 1.   A PERSON WHO IS IN
   17  ACTIVE MILITARY SERVICE AND WHO IS A PARENT, ADOPTIVE PARENT, OR ADJUDI-
   18  CATED PARENT WHO HAS PHYSICAL CUSTODY OF A MINOR CHILD AND WHO DOES  NOT
   19  SHARE  JOINT CUSTODY OF THE CHILD MAY APPOINT IN WRITING, WITH NOTICE TO
   20  THE OTHER LIVING PARENT OF THE CHILD AND TO THE COURT  AS  DESCRIBED  IN
   21  SUBDIVISION  TWO OF THIS SECTION, A SHORT-TERM MILITARY SERVICE GUARDIAN
   22  OF THE MINOR CHILD. THE WRITTEN INSTRUMENT APPOINTING A SHORT-TERM MILI-
   23  TARY SERVICE GUARDIAN SHALL BE DATED AND SHALL IDENTIFY  THE  APPOINTING
   24  PARENT,  THE OTHER LIVING PARENT, THE MINOR, AND THE PERSON APPOINTED TO
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD02598-01-1
       A. 1081                             2
    1  BE THE SHORT-TERM MILITARY  SERVICE  GUARDIAN.  THE  WRITTEN  INSTRUMENT
    2  SHALL BE SIGNED BY, OR AT THE DIRECTION OF, THE APPOINTING PARENT IN THE
    3  PRESENCE  OF AT LEAST TWO CREDIBLE WITNESSES, AT LEAST EIGHTEEN YEARS OF
    4  AGE,  NEITHER  OF WHOM IS RELATED TO THE PARENT NOR THE PERSON APPOINTED
    5  AS THE SHORT-TERM MILITARY SERVICE GUARDIAN. THE PERSON APPOINTED AS THE
    6  SHORT-TERM MILITARY SERVICE GUARDIAN SHALL ALSO SIGN THE WRITTEN INSTRU-
    7  MENT, BUT NEED NOT SIGN AT THE SAME TIME AS THE APPOINTING PARENT.
    8    2. A PARENT SHALL NOT APPOINT A SHORT-TERM MILITARY  SERVICE  GUARDIAN
    9  OF A MINOR CHILD IF THE CHILD HAS ANOTHER LIVING PARENT, ADOPTIVE PARENT
   10  OR ADJUDICATED PARENT:
   11    (A) WHO HAS JOINT CUSTODY OF THE CHILD,
   12    (B) WHOSE PARENTAL RIGHTS HAVE NOT BEEN TERMINATED,
   13    (C) WHOSE WHEREABOUTS ARE KNOWN, AND
   14    (D)  WHO  IS  WILLING  AND ABLE TO MAKE AND CARRY OUT DAY-TO-DAY CHILD
   15  CARE DECISIONS CONCERNING THE MINOR, UNLESS  THE  NON-APPOINTING  PARENT
   16  CONSENTS  TO  THE  APPOINTMENT  BY  SIGNING  THE  WRITTEN  INSTRUMENT OF
   17  APPOINTMENT.
   18    3. THE APPOINTING PARENT SHALL ATTACH TO THE WRITTEN INSTRUMENT HIS OR
   19  HER SWORN STATEMENT OF MAILING THAT STATES HE OR SHE SENT, NO LATER THAN
   20  TWO DAYS AFTER THE WRITTEN INSTRUMENT WAS COMPLETED, COPIES  OF  HIS  OR
   21  HER SWORN STATEMENT OF MAILING AND THE WRITTEN INSTRUMENT CONTAINING ALL
   22  REQUIRED  SIGNATURES  AND  DATES BY CERTIFIED OR REGISTERED MAIL, RETURN
   23  RECEIPT REQUESTED TO:
   24    (A) THE LAST KNOWN ADDRESS OF THE OTHER LIVING PARENT,
   25    (B) THE COURT WHICH ISSUED THE ORDER THAT AWARDED PHYSICAL CUSTODY  OF
   26  THE CHILD TO THE APPOINTING PARENT,
   27    (C)  THE  COURT  (IF  DIFFERENT  FROM  THE COURT THAT AWARDED PHYSICAL
   28  CUSTODY OF THE CHILD TO THE APPOINTING PARENT)  WHICH  ISSUED  THE  LAST
   29  ORDER  THAT  CONCERNS  THE  CHILD, THE CHILD'S SUPPORT, OR CUSTODY OF OR
   30  VISITATION WITH THE CHILD, AND
   31    (D) IF THERE IS NO COURT ORDER, THEN TO THE COURT CLERK IN THE  COUNTY
   32  IN WHICH THE CHILD RESIDES.
   33    4.    THE  APPOINTMENT  OF THE SHORT-TERM MILITARY SERVICE GUARDIAN IS
   34  EFFECTIVE IMMEDIATELY UPON THE DATE THE WRITTEN INSTRUMENT IS  EXECUTED,
   35  UNLESS  THE  WRITTEN  INSTRUMENT  PROVIDES FOR THE APPOINTMENT TO BECOME
   36  EFFECTIVE UPON A LATER SPECIFIED  DATE  OR  EVENT.  THE  APPOINTMENT  IS
   37  EFFECTIVE WITHOUT COURT APPROVAL. THE SHORT-TERM MILITARY SERVICE GUARD-
   38  IAN  SHALL HAVE AUTHORITY TO ACT AS GUARDIAN OF THE MINOR AS PROVIDED IN
   39  ARTICLE SIX OF THIS CHAPTER FOR A PERIOD OF ONE HUNDRED EIGHTY DAYS FROM
   40  THE DATE THE APPOINTMENT IS  EFFECTIVE  UNLESS  THE  WRITTEN  INSTRUMENT
   41  PROVIDES FOR THE APPOINTMENT TO TERMINATE UPON AN EARLIER SPECIFIED DATE
   42  OR  EVENT.  ONLY ONE WRITTEN INSTRUMENT APPOINTING A SHORT-TERM MILITARY
   43  SERVICE GUARDIAN MAY BE IN FORCE  AT  ANY  GIVEN  TIME,  BUT  A  WRITTEN
   44  INSTRUMENT  PREPARED  IN  ACCORDANCE  WITH THE SAME REQUIREMENTS OF THIS
   45  SECTION MAY REAPPOINT THE SHORT-TERM MILITARY SERVICE GUARDIAN OR NAME A
   46  DIFFERENT SUCCESSOR SHORT-TERM MILITARY SERVICE GUARDIAN  FOR  AN  ADDI-
   47  TIONAL  PERIOD  OF  ONE  HUNDRED  EIGHTY  DAYS.  A  REAPPOINTMENT OR THE
   48  APPOINTMENT OF A SUCCESSOR SHORT-TERM MILITARY SERVICE GUARDIAN  MAY  BE
   49  ACCOMPLISHED  BY A WRITTEN INSTRUMENT COMPLETED BEFORE THE EXPIRATION OF
   50  THE FIRST WRITTEN INSTRUMENT.
   51    5. EVERY APPOINTMENT OF A SHORT-TERM MILITARY SERVICE GUARDIAN MAY  BE
   52  AMENDED OR REVOKED BY THE APPOINTING PARENT OF THE MINOR AT ANY TIME AND
   53  IN  ANY  MANNER COMMUNICATED TO THE SHORT-TERM MILITARY SERVICE GUARDIAN
   54  OR TO ANY OTHER PERSON. ANY PERSON OTHER THAN  THE  SHORT-TERM  MILITARY
   55  SERVICE  GUARDIAN  TO  WHOM A REVOCATION OR AMENDMENT IS COMMUNICATED OR
       A. 1081                             3
    1  DELIVERED SHALL MAKE ALL REASONABLE EFFORTS  TO  INFORM  THE  SHORT-TERM
    2  MILITARY SERVICE GUARDIAN OF THAT FACT AS PROMPTLY AS POSSIBLE.
    3    6.  THE  APPOINTMENT  OF  A  SHORT-TERM  MILITARY  SERVICE GUARDIAN OR
    4  SUCCESSOR SHORT-TERM MILITARY  SERVICE  GUARDIAN  DOES  NOT  AFFECT  THE
    5  RIGHTS OF THE OTHER PARENT IN THE MINOR.
    6    7.  THE  WRITTEN  INSTRUMENT  APPOINTING A SHORT-TERM MILITARY SERVICE
    7  GUARDIAN MAY, BUT NEED NOT, BE IN THE FOLLOWING FORM:
    8             APPOINTMENT OF SHORT-TERM MILITARY SERVICE GUARDIAN
    9             IT IS IMPORTANT TO READ THE FOLLOWING INSTRUCTIONS
   10    BY PROPERLY COMPLETING THIS FORM, A  PARENT  OF  THE  MINOR  CHILD  IS
   11  APPOINTING  A  SHORT-TERM  MILITARY  SERVICE  GUARDIAN OF A CHILD OF THE
   12  PARENT FOR A PERIOD OF UP TO ONE HUNDRED EIGHTY (180) DAYS.  A  SEPARATE
   13  FORM  SHOULD  BE  COMPLETED  FOR EACH CHILD. THE PERSON APPOINTED AS THE
   14  SHORT-TERM MILITARY SERVICE GUARDIAN MUST SIGN THE FORM, BUT NEED NOT DO
   15  SO AT THE SAME TIME AS THE PARENT OR PARENTS. THIS FORM MAY BE  USED  TO
   16  REAPPOINT A SHORT-TERM MILITARY SERVICE GUARDIAN OR TO APPOINT A SUCCES-
   17  SOR SHORT-TERM MILITARY SERVICE GUARDIAN SO AS TO EXTEND THE ENTIRE TIME
   18  OF  THE GUARDIANSHIP TO A PERIOD OF THREE HUNDRED SIXTY (360) DAYS. BOTH
   19  LIVING PARENTS OF A CHILD MAY TOGETHER  APPOINT  A  SHORT-TERM  MILITARY
   20  SERVICE  GUARDIAN OF THE CHILD FOR A PERIOD OF UP TO THREE HUNDRED SIXTY
   21  (360) DAYS THROUGH THE USE OF THIS  FORM.  IF  THE  SHORT-TERM  MILITARY
   22  SERVICE  GUARDIAN  IS APPOINTED BY BOTH LIVING PARENTS OF THE CHILD, THE
   23  PARENTS NEED NOT SIGN THE FORM AT THE SAME TIME.
   24    1. PARENT AND CHILD. I (INSERT NAME OF APPOINTING  PARENT),  CURRENTLY
   25  RESIDING  AT  (INSERT  ADDRESS OF APPOINTING PARENT), AM A PARENT OF THE
   26  FOLLOWING CHILD: (INSERT NAME AND DATE OF BIRTH OF CHILD).
   27    2. GUARDIAN. I HEREBY APPOINT THE FOLLOWING PERSON AS  THE  SHORT-TERM
   28  MILITARY  SERVICE  GUARDIAN  FOR  THE CHILD: (INSERT NAME AND ADDRESS OF
   29  APPOINTED PERSON).
   30    3. EFFECTIVE DATE. THIS APPOINTMENT BECOMES EFFECTIVE: (CHECK  ONE  IF
   31  YOU WISH IT TO BE APPLICABLE)
   32    (  )  ON  THE DATE THAT I STATE IN WRITING THAT I AM NO LONGER ABLE TO
   33  MAKE AND CARRY OUT DAY-TO-DAY CHILD CARE DECISIONS CONCERNING THE  CHILD
   34  BECAUSE OF MY ACTIVE DUTY STATUS IN THE MILITARY.
   35    ( ) ON THE FOLLOWING DATE: (INSERT DATE).
   36    ( ) OTHER (INSERT OTHER).
   37    (NOTE:  IF  THIS  ITEM  IS NOT COMPLETED, THE APPOINTMENT IS EFFECTIVE
   38  IMMEDIATELY UPON THE DATE THE FORM IS SIGNED AND DATED BELOW.)
   39    4. TERMINATION. THIS APPOINTMENT SHALL TERMINATE  ONE  HUNDRED  EIGHTY
   40  (180)  DAYS  AFTER  THE  EFFECTIVE  DATE, UNLESS IT TERMINATES SOONER AS
   41  DETERMINED BY THE EVENT OR DATE I HAVE INDICATED BELOW:   (CHECK ONE  IF
   42  YOU WISH IT TO BE APPLICABLE)
   43    (  ) ON THE DATE THAT I STATE IN WRITING THAT I AM WILLING AND ABLE TO
   44  MAKE AND CARRY OUT DAY-TO-DAY CHILD CARE DECISIONS CONCERNING THE CHILD.
   45    ( ) ON THE DATE WHICH IS (STATE A NUMBER OF DAYS, BUT NO MORE THAN ONE
   46  HUNDRED EIGHTY (180) DAYS) DAYS AFTER THE EFFECTIVE DATE.
   47    ( ) OTHER: (INSERT OTHER). (NOTE: IF THIS ITEM IS NOT  COMPLETED,  THE
   48  APPOINTMENT  WILL  BE EFFECTIVE FOR A PERIOD OF ONE HUNDRED EIGHTY (180)
   49  DAYS, BEGINNING ON THE EFFECTIVE DATE.)
   50    5. DATE AND SIGNATURE OF APPOINTING PARENT. THIS APPOINTMENT  IS  MADE
   51  THIS (INSERT DAY) DAY OF (INSERT MONTH AND YEAR).
   52    SIGNED: (APPOINTING PARENT)
   53    6.  WITNESSES.  I  SAW THE APPOINTING PARENT SIGN THIS INSTRUMENT OR I
   54  SAW THE PARENT DIRECT SOMEONE TO SIGN THIS INSTRUMENT  FOR  THE  PARENT.
   55  THEN  I  SIGNED  THIS  INSTRUMENT  AS  A  WITNESS IN THE PRESENCE OF THE
   56  PARENT. I AM NOT APPOINTED IN THIS INSTRUMENT TO ACT AS  THE  SHORT-TERM
       A. 1081                             4
    1  MILITARY  SERVICE GUARDIAN FOR THE CHILD. I AM NOT RELATED TO THE PARENT
    2  OR TO THE PERSON APPOINTED AS THE SHORT-TERM MILITARY SERVICE  GUARDIAN.
    3  (INSERT SPACE FOR NAMES, ADDRESSES, AND SIGNATURES OF TWO (2) WITNESSES)
    4    7.  ACCEPTANCE  OF SHORT-TERM MILITARY SERVICE GUARDIAN. I ACCEPT THIS
    5  APPOINTMENT AS SHORT-TERM MILITARY SERVICE GUARDIAN ON THIS (INSERT DAY)
    6  DAY OF (INSERT MONTH AND YEAR).
    7    SIGNED: (SHORT-TERM MILITARY SERVICE GUARDIAN)
    8    8. CONSENT OF CHILD'S OTHER PARENT-IF APPLICABLE. I  (INSERT  NAME  OF
    9  THE  CHILD'S OTHER LIVING PARENT), CURRENTLY RESIDING AT (INSERT ADDRESS
   10  OF CHILD'S OTHER LIVING PARENT), HEREBY CONSENT TO THIS  APPOINTMENT  ON
   11  THIS (INSERT DAY) DAY OF (INSERT MONTH AND YEAR).
   12    SIGNED: (CONSENTING PARENT)
   13    (NOTE: THE SIGNATURE OF A CONSENTING PARENT IS NOT NECESSARY IF ONE OF
   14  THE  FOLLOWING APPLIES: (I) THE OTHER PARENT DOES NOT HAVE JOINT CUSTODY
   15  OF THE CHILD; (II) THE CHILD'S OTHER  PARENT  HAS  DIED;  OR  (III)  THE
   16  WHEREABOUTS  OF  THE  CHILD'S  OTHER  PARENT  ARE NOT KNOWN; OR (IV) THE
   17  CHILD'S OTHER PARENT IS NOT WILLING  OR  ABLE  TO  MAKE  AND  CARRY  OUT
   18  DAY-TO-DAY  CHILD  CARE  DECISIONS CONCERNING THE CHILD; (V) THE CHILD'S
   19  PARENTS WERE NEVER MARRIED AND NO COURT HAS ISSUED AN ORDER ESTABLISHING
   20  PARENTAGE; OR (VI) THE PARENTAL RIGHTS OF THE CHILD'S OTHER PARENT  HAVE
   21  BEEN TERMINATED BY A COURT ORDER.)
   22    SWORN STATEMENT OF MAILING
   23    I  (INSERT  NAME  OF APPOINTING PARENT), CURRENTLY RESIDING AT (INSERT
   24  ADDRESS OF APPOINTING PARENT), DELIVERED A SIGNED AND DATED COPY OF  THE
   25  ATTACHED APPOINTMENT OF SHORT-TERM MILITARY SERVICE GUARDIAN BY DEPOSIT-
   26  ING IT IN A UNITED STATES POST OFFICE OR POST OFFICE BOX, ENCLOSED IN AN
   27  ENVELOPE,  PLAINLY ADDRESSED TO EACH PERSON OR OFFICE AT THE APPROPRIATE
   28  ADDRESS LISTED BELOW, WITH POSTAGE FULLY PREPAID FOR DELIVERY BY  CERTI-
   29  FIED OR REGISTERED MAIL TO:
   30    (1)  (NAME  OF  OTHER  LIVING  PARENT) (INSERT ADDRESS OF OTHER LIVING
   31  PARENT);
   32    (2) NAME OF THE COURT WHICH ISSUED THE  ORDER  THAT  AWARDED  PHYSICAL
   33  CUSTODY OF THE CHILD TO THE APPOINTING PARENT (INSERT ADDRESS OF COURT);
   34    (3) THE COURT WHICH ISSUED THE LAST ORDER THAT CONCERNS THE CHILD, THE
   35  CHILD'S SUPPORT, CUSTODY OR VISITATION WITH THE CHILD (INSERT ADDRESS OF
   36  COURT); AND
   37    (4)  IF THERE IS NO COURT ORDER, THEN TO THE COURT CLERK IN THE COUNTY
   38  IN WHICH THE CHILD RESIDES (INSERT ADDRESS OF COURT CLERK)
   39    DATE AND SIGNATURE. DATED THIS (INSERT DAY) DAY OF (INSERT  MONTH  AND
   40  YEAR).
   41    SIGNED:  (DESIGNATING PARENT OR GUARDIAN)
   42    COUNTY OF __________________________________
   43    STATE OF  __________________________________
   44    ON  THIS  (INSERT  DAY) OF (INSERT MONTH AND YEAR) AT (INSERT CITY AND
   45  STATE), (INSERT NAME OF APPOINTING PARENT), APPEARED BEFORE ME, A NOTARY
   46  PUBLIC OF AND FOR THE COUNTY AND STATE FIRST ABOVE WRITTEN  AND  IDENTI-
   47  FIED  HIMSELF  OR HERSELF TO BE OR PERSONALLY KNOWN TO ME TO BE, (INSERT
   48  NAME OF APPOINTING PARENT) AND BEING FIRST DULY SWORN, SIGNED HIS OR HER
   49  SIGNATURE ABOVE.
   50    (SEAL)
   51    SIGNED (NAME OF NOTARY PUBLIC)
   52    (PRINTED NAME OF NOTARY PUBLIC)
   53    S 92. DUTIES OF A SHORT-TERM MILITARY SERVICE GUARDIAN OF A MINOR.  1.
   54  IMMEDIATELY  UPON  THE EFFECTIVE DATE OR THE APPOINTMENT OF A SHORT-TERM
   55  MILITARY SERVICE GUARDIAN,  THE  SHORT-TERM  MILITARY  SERVICE  GUARDIAN
   56  SHALL  ASSUME  ALL DUTIES AS SHORT-TERM MILITARY SERVICE GUARDIAN OF THE
       A. 1081                             5
    1  MINOR AS PROVIDED IN THIS SECTION. THE SHORT-TERM MILITARY SERVICE GUAR-
    2  DIAN OF THE PERSON SHALL HAVE AUTHORITY TO ACT  AS  SHORT-TERM  MILITARY
    3  SERVICE  GUARDIAN  WITHOUT  DIRECTION  OF COURT, FOR THE DURATION OF THE
    4  APPOINTMENT WHICH IN NO CASE SHALL EXCEED A PERIOD OF ONE HUNDRED EIGHTY
    5  DAYS.  THE  AUTHORITY OF THE SHORT-TERM MILITARY SERVICE GUARDIAN MAY BE
    6  LIMITED OR TERMINATED BY A COURT OF COMPETENT JURISDICTION.
    7    2. UNLESS FURTHER SPECIFICALLY LIMITED BY  THE  INSTRUMENT  APPOINTING
    8  THE  SHORT-TERM MILITARY SERVICE GUARDIAN, A SHORT-TERM MILITARY SERVICE
    9  GUARDIAN SHALL HAVE THE AUTHORITY TO ACT AS A GUARDIAN OF THE PERSON  OF
   10  A MINOR AS PRESCRIBED IN ARTICLE SIX OF THIS CHAPTER, BUT SHALL NOT HAVE
   11  ANY AUTHORITY TO ACT AS GUARDIAN OF THE ESTATE OF A MINOR, EXCEPT THAT A
   12  SHORT-TERM  MILITARY  SERVICE GUARDIAN SHALL HAVE THE AUTHORITY TO APPLY
   13  FOR AND RECEIVE ON BEHALF OF THE MINOR BENEFITS TO WHICH THE  CHILD  MAY
   14  BE  ENTITLED  FROM  OR  UNDER  FEDERAL,  STATE OR LOCAL ORGANIZATIONS OR
   15  PROGRAMS.
   16    S 2. The military law is amended by adding a new section 255  to  read
   17  as follows:
   18    S  255. SHORT-TERM MILITARY SERVICE GUARDIAN. NOTWITHSTANDING ANY LAW,
   19  RULE OR REGULATION TO THE CONTRARY, CHILD CUSTODY PROCEEDINGS FILED IN A
   20  COURT OF COMPETENT JURISDICTION IN THIS STATE,  INVOLVING  A  SHORT-TERM
   21  MILITARY  SERVICE  GUARDIAN  SHALL  BE  GOVERNED BY ARTICLE SIX-A OF THE
   22  DOMESTIC RELATIONS LAW.
   23    S 3. This act shall take effect on the one hundred twentieth day after
   24  it shall have become a law.
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