Bill Text: NY A03346 | 2023-2024 | General Assembly | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: 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.
Spectrum: Slight Partisan Bill (Democrat 71-26)
Status: (Introduced) 2024-05-07 - print number 3346c [A03346 Detail]
Download: New_York-2023-A03346-Amended.html
Bill Title: 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.
Spectrum: Slight Partisan Bill (Democrat 71-26)
Status: (Introduced) 2024-05-07 - print number 3346c [A03346 Detail]
Download: New_York-2023-A03346-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 3346--B 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 -- read once and referred to the Committee on Judiciary -- 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 AN ACT to amend the domestic relations law and the family court act, 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: 5 The legislature recognizes that the safety of children is of paramount 6 importance and is an integral element of their best interests. To that 7 end, the legislature finds that judicial decisions regarding custody of, 8 and access to, children must ensure children's safety as a threshold 9 issue. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD06231-08-4A. 3346--B 2 1 § 3. Paragraphs (a) and (a-1) of subdivision 1 of section 240 of the 2 domestic relations law, paragraph (a) as amended by chapter 567 of the 3 laws of 2015 and paragraph (a-1) as amended by chapter 295 of the laws 4 of 2009, are amended to read as follows: 5 (a) In any action or proceeding brought (1) to annul a marriage or to 6 declare the nullity of a void marriage, or (2) for a separation, or (3) 7 for a divorce, or (4) to obtain, by a writ of habeas corpus or by peti- 8 tion and order to show cause, the custody of or right to visitation with 9 any child of a marriage, the court shall require verification of the 10 status of any child of the marriage with respect to such child's custody 11 and support, including any prior orders, and shall enter orders for 12 custody and support as, in the court's discretion, justice requires, 13 having regard to the circumstances of the case and of the respective 14 parties and to the best interests of the child and subject to the 15 provisions of subdivision one-c of this section. When the parties first 16 appear in court, the court shall advise the parties before proceeding of 17 the right to be represented by counsel of their own choosing, of the 18 right to have an adjournment of no longer than fourteen court days to 19 confer with counsel, and the right to obtain counsel fees and expenses, 20 pursuant to section two hundred thirty-seven of this article. The court 21 shall assign counsel to the parties and children, pursuant to article 22 two of the family court act. Where either party to an action concerning 23 custody of or a right to visitation with a child alleges in a sworn 24 petition or complaint or sworn answer, cross-petition, counterclaim or 25 other sworn responsive pleading that the other party has committed an 26 act of domestic violence against the party making the allegation or a 27 family or household member of either party, as such family or household 28 member is defined in article eight of the family court act, and such 29 allegations are proven by a preponderance of the evidence, the court 30 must consider the effect of such domestic violence upon the best inter- 31 ests of the child, together with such other facts and circumstances as 32 the court deems relevant in making a direction pursuant to this section 33 and state on the record how such findings, facts and circumstances 34 factored into the direction. If a parent makes a good faith allegation 35 based on a reasonable belief supported by facts that the child is the 36 victim of child abuse, child neglect, or the effects of domestic 37 violence, and if that parent acts lawfully and in good faith in response 38 to that reasonable belief to protect the child or seek treatment for the 39 child, then that parent shall not be deprived of custody, visitation or 40 contact with the child, or restricted in custody, visitation or contact, 41 based solely on that belief or the reasonable actions taken based on 42 that belief. If an allegation that a child is abused is supported by a 43 preponderance of the evidence, then the court shall consider such 44 evidence of abuse in determining the visitation arrangement that is in 45 the best interest of the child, and the court shall not place a child in 46 the custody of a parent who presents a substantial risk of harm to that 47 child, and shall state on the record how such findings were factored 48 into the determination. Where a proceeding filed pursuant to article ten 49 or ten-A of the family court act is pending at the same time as a 50 proceeding brought in the supreme court involving the custody of, or 51 right to visitation with, any child of a marriage, the court presiding 52 over the proceeding under article ten or ten-A of the family court act 53 may jointly hear the dispositional hearing on the petition under article 54 ten or the permanency hearing under article ten-A of the family court 55 act and, upon referral from the supreme court, the hearing to resolve 56 the matter of custody or visitation in the proceeding pending in theA. 3346--B 3 1 supreme court; provided however, the court must determine custody or 2 visitation in accordance with the terms of this section. 3 An order directing the payment of child support shall contain the 4 social security numbers of the named parties. In all cases there shall 5 be no prima facie right to the custody of the child in either parent. 6 Such direction shall make provision for child support out of the proper- 7 ty of either or both parents. The court shall make its award for child 8 support pursuant to subdivision one-b of this section. Such direction 9 may provide for reasonable visitation rights to the maternal and/or 10 paternal grandparents of any child of the parties. Such direction as it 11 applies to rights of visitation with a child remanded or placed in the 12 care of a person, official, agency or institution pursuant to article 13 ten of the family court act, or pursuant to an instrument approved under 14 section three hundred fifty-eight-a of the social services law, shall be 15 enforceable pursuant to part eight of article ten of the family court 16 act and sections three hundred fifty-eight-a and three hundred eighty- 17 four-a of the social services law and other applicable provisions of law 18 against any person having care and custody, or temporary care and custo- 19 dy, of the child. Notwithstanding any other provision of law, any writ- 20 ten application or motion to the court for the establishment, modifica- 21 tion or enforcement of a child support obligation for persons not in 22 receipt of public assistance and care must contain either a request for 23 child support enforcement services which would authorize the collection 24 of the support obligation by the immediate issuance of an income 25 execution for support enforcement as provided for by this chapter, 26 completed in the manner specified in section one hundred eleven-g of the 27 social services law; or a statement that the applicant has applied for 28 or is in receipt of such services; or a statement that the applicant 29 knows of the availability of such services, has declined them at this 30 time and where support enforcement services pursuant to section one 31 hundred eleven-g of the social services law have been declined that the 32 applicant understands that an income deduction order may be issued 33 pursuant to subdivision (c) of section fifty-two hundred forty-two of 34 the civil practice law and rules without other child support enforcement 35 services and that payment of an administrative fee may be required. The 36 court shall provide a copy of any such request for child support 37 enforcement services to the support collection unit of the appropriate 38 social services district any time it directs payments to be made to such 39 support collection unit. Additionally, the copy of any such request 40 shall be accompanied by the name, address and social security number of 41 the parties; the date and place of the parties' marriage; the name and 42 date of birth of the child or children; and the name and address of the 43 employers and income payors of the party from whom child support is 44 sought or from the party ordered to pay child support to the other 45 party. Such direction may require the payment of a sum or sums of money 46 either directly to the custodial parent or to third persons for goods or 47 services furnished for such child, or for both payments to the custodial 48 parent and to such third persons; provided, however, that unless the 49 party seeking or receiving child support has applied for or is receiving 50 such services, the court shall not direct such payments to be made to 51 the support collection unit, as established in section one hundred 52 eleven-h of the social services law. Every order directing the payment 53 of support shall require that if either parent currently, or at any time 54 in the future, has health insurance benefits available that may be 55 extended or obtained to cover the child, such parent is required to 56 exercise the option of additional coverage in favor of such child andA. 3346--B 4 1 execute and deliver to such person any forms, notices, documents or 2 instruments necessary to assure timely payment of any health insurance 3 claims for such child. 4 (a-1)(1) [Permanent and initial temporary orders of custody or visita-5tion. Prior to the issuance of any permanent or initial temporary order6of custody or visitation, the court shall conduct a review of the deci-7sions and reports listed in subparagraph three of this paragraph.8(2) Successive temporary orders of custody or visitation. Prior to the9issuance of any successive temporary order of custody or visitation, the10court shall conduct a review of the decisions and reports listed in11subparagraph three of this paragraph, unless such a review has been12conducted within ninety days prior to the issuance of such order.13(3) Decisions and reports for review. The court shall conduct a14review] Prompt evidentiary hearing. Upon the application of a party to 15 an action concerning custody of or visitation with a child, or of an 16 attorney for the child, credibly alleging that the other party has 17 committed, has threatened to commit, or is likely to commit an act of 18 child abuse or neglect against such child, or has committed, has threat- 19 ened to commit, or is likely to commit domestic violence against the 20 party making the allegation or a family or household member of either 21 party, and that allegation, if true, would pose a serious risk to the 22 safety of the child, the court shall hold a prompt evidentiary hearing 23 to determine whether temporary limitations or conditions on the custody 24 or visitation rights of the party who is alleged to have committed an 25 act of child abuse against the child, or committed an act of domestic 26 violence against the party making the allegation or a family or house- 27 hold member of either party is necessary to avoid serious risk to the 28 child's safety. Except for good cause shown, the hearing for such deter- 29 mination shall commence within twenty court days of the application for 30 such hearing. Parties shall be notified of their right to the assistance 31 of counsel at the initiation of such hearing. During such hearing, only 32 material and relevant evidence shall be admitted. If a party waives his 33 or her right to a hearing under this section, the court shall advise 34 such party at that time that, notwithstanding such waiver, an applica- 35 tion under this section may be made at any time during the pendency of 36 the proceedings. During the hearing, the court shall conduct an assess- 37 ment of serious risk to the child's safety, which shall include, but not 38 be limited to, consideration of the following: 39 (i) related decisions in court proceedings initiated pursuant to arti- 40 cle ten of the family court act, and all warrants issued under the fami- 41 ly court act; [and] 42 (ii) a party's history of domestic violence, child abuse or neglect, 43 child sexual abuse or incidents involving harm, or risk of harm, to a 44 child; 45 (iii) police reports, including domestic violence incident reports of 46 incidents involving child abuse or domestic violence by a party; 47 (iv) evidence and findings of child abuse, domestic violence, serious 48 risk of safety or risk of lethality by a party, including but not limit- 49 ed to: 50 (a) an increase in frequency or severity of domestic violence; 51 (b) use or threats to use a weapon or dangerous instrument, or unlaw- 52 ful possession of firearms; 53 (c) threats to harm or kill the child, the other party, the other 54 party's children, self or others, or companion animals; 55 (d) sexual abuse or other sexual offenses against the child or the 56 other party;A. 3346--B 5 1 (e) unlawful dissemination or publication of an intimate image, pursu- 2 ant to section 245.15 of the penal law; 3 (f) incidents involving obstruction of breathing or strangulation; 4 (g) a party's pattern of alcohol or substance abuse that places the 5 child at serious risk or risk of lethality; 6 (h) incidents of violence during pregnancy; 7 (i) incidents of stalking or cyber stalking; and 8 (j) coercive control, as defined in paragraph (c) of subdivision one 9 of section two hundred forty-e of this article; and 10 (v) reports of the statewide computerized registry of orders of 11 protection established and maintained pursuant to section two hundred 12 twenty-one-a of the executive law, and reports of the sex offender 13 registry established and maintained pursuant to section one hundred 14 sixty-eight-b of the correction law. 15 [(4)] (2) Conditions of custody or visitation. If the court deter- 16 mines that limitations or restrictions of a party's custody, visitation 17 or contact with the child are necessary pursuant to a review of any 18 findings or credible allegations of child abuse, domestic violence, 19 serious risk of safety and risk of lethality to the child, and the deci- 20 sions and reports listed in subparagraph one of this paragraph, the 21 court shall set forth conditions of custody or visitation in a temporary 22 order of custody or visitation that prioritizes the avoidance of serious 23 risk to the child's safety. When the court decides to issue or to not 24 issue such temporary order, the parties shall be notified of their right 25 to appeal, pursuant to article eleven of the family court act. 26 (i) There shall be a rebuttable presumption that the court shall not 27 award, in a temporary order for custody or visitation, sole or joint 28 custody or unsupervised visitation to a party who poses a serious risk 29 to the child's safety. 30 (ii) The court shall state on the record, and in writing, any findings 31 or credible allegations of child abuse, domestic violence, serious risk 32 of safety or risk of lethality, and any decisions and reports considered 33 in rendering its decision and the reasons for the limitations or 34 restrictions placed on a party's custody, visitation or contact with 35 such child. 36 (iii) Nothing contained in this subparagraph shall be deemed in any 37 way to limit, restrict, expand or impair the rights of any party to file 38 for a modification of a temporary order as is otherwise provided by law. 39 (3) Notifying counsel and issuing orders. Upon consideration of deci- 40 sions pursuant to article ten of the family court act, and registry 41 reports and notifying counsel involved in the proceeding, or in the 42 event of a self-represented party, notifying such party of the results 43 thereof, including any court appointed attorney for children, the court 44 may issue a temporary, successive temporary or final order of custody or 45 visitation. 46 [(5)] (4) Temporary emergency order. Notwithstanding any other 47 provision of the law, upon emergency situations, including computer 48 malfunctions, to serve the best interest of the child, the court may 49 issue a temporary emergency order for custody or visitation in the event 50 that it is not possible to timely review decisions and reports on regis- 51 tries as required pursuant to subparagraph [three] one of this para- 52 graph. 53 [(6)] (5) After issuing a temporary emergency order. After issuing a 54 temporary emergency order of custody or visitation, the court shall 55 conduct reviews of the decisions and reports on registries as required 56 pursuant to subparagraph [three] one of this paragraph within twenty-A. 3346--B 6 1 four hours of the issuance of such temporary emergency order. Should 2 such twenty-four hour period fall on a day when court is not in session, 3 then the required reviews shall take place the next day the court is in 4 session. Upon reviewing decisions and reports the court shall notify 5 associated counsel, self-represented parties and attorneys for children 6 pursuant to subparagraph [four] three of this paragraph and may issue 7 temporary or permanent custody or visitation orders. 8 [(7)] (6) Feasibility study. The commissioner of the office of chil- 9 dren and family services, in conjunction with the office of court admin- 10 istration, is hereby authorized and directed to examine, study, evaluate 11 and make recommendations concerning the feasibility of the utilization 12 of computers in courts which are connected to the statewide central 13 register of child abuse and maltreatment established and maintained 14 pursuant to section four hundred twenty-two of the social services law, 15 as a means of providing courts with information regarding parties 16 requesting orders of custody or visitation. Such commissioner shall make 17 a preliminary report to the governor and the legislature of findings, 18 conclusions and recommendations not later than January first, two thou- 19 sand nine, and a final report of findings, conclusions and recommenda- 20 tions not later than June first, two thousand nine, and shall submit 21 with the reports such legislative proposals as are deemed necessary to 22 implement the commissioner's recommendations. 23 § 4. The domestic relations law is amended by adding a new section 24 240-e to read as follows: 25 § 240-e. Custody and visitation; safety of the child. 1. For the 26 purposes of this section, the following terms shall have the following 27 meanings: 28 (a) "Victim of domestic violence" shall have the same meaning as 29 defined in section four hundred fifty-nine-a of the social services law. 30 (b) "Friendly parent" means the actions of a parent or legal guardian 31 that support a child's contact and relationship with the other parent or 32 legal guardian. 33 (c) "Coercive control" means a pattern of behavior that in purpose or 34 effect unreasonably restricts a party's safety or autonomy through 35 implicit or explicit threats, or intimidation, or by compelling compli- 36 ance. This conduct includes, but is not limited to: 37 (i) isolating the other party from friends, family or other sources of 38 support; 39 (ii) interfering with a party's freedom of movement; 40 (iii) depriving the other party of basic necessities such as food, 41 sleep, clothing, housing, medication or medical care; 42 (iv) controlling, regulating, surveilling or monitoring the other 43 party's movements, communications, daily behavior, appearance, finances, 44 economic resources or access to services; 45 (v) compelling the other party by force, threat of force or intim- 46 idation, including but not limited to threats based on actual or 47 suspected immigration status, to engage in conduct from which the other 48 party has a right to abstain or to abstain from conduct in which the 49 other party has a right to engage; 50 (vi) interfering with the other party's education or employment; 51 (vii) forcing or compelling the other party to perform sex acts, or 52 threats of a sexual nature, including but not limited to threatened acts 53 of sexual conduct, threats based on a person's sexuality or threats to 54 release intimate images; or 55 (viii) cleaning, accessing, displaying, using or wearing a firearm or 56 other dangerous weapon in an intimidating or threatening manner.A. 3346--B 7 1 2. Notwithstanding any other provision of law to the contrary, a court 2 making a final determination of custody or visitation based on the best 3 interests of a child pursuant to the provisions of this chapter shall 4 prioritize and promote the safety of such child when making such deter- 5 minations. Only competent, material, and relevant evidence shall be 6 admitted, however, the hearsay statements of the child may be admitted 7 when corroborated by other evidence, pursuant to article ten of the 8 family court act. Promoting the safety of a child shall include prevent- 9 ing direct physical and/or emotional harm to such child. Factors the 10 court shall consider in making such determination shall include, but not 11 be limited to: 12 (a) which party is more likely to protect the safety of the child, and 13 whether either party poses a serious risk to the safety of the child; 14 (b) a history of domestic violence, child abuse or neglect, child 15 sexual abuse or incidents involving harm, or risk of harm, to a child; 16 (c) any findings or credible allegations of child abuse, domestic 17 violence, serious risk or risk of lethality to the child, including but 18 not limited to: 19 (i) an increase in frequency or severity of domestic violence; 20 (ii) use or threats to use a weapon or dangerous instrument, or unlaw- 21 ful possession of firearms; 22 (iii) threats to harm or kill the child, the other party, the other 23 party's children, self or others, or companion animals; 24 (iv) sexual abuse or coerced sexual activity of the child or other 25 party; 26 (v) unlawful dissemination or publication of an intimate image, pursu- 27 ant to section 245.15 of the penal law; 28 (vi) incidents involving obstruction of breathing or strangulation; 29 (vii) a party's pattern of alcohol or substance abuse that places the 30 child at serious risk or risk of lethality; 31 (viii) incidents of violence during pregnancy; 32 (ix) incidents of stalking or cyber stalking; and 33 (x) coercive control, as defined in paragraph (c) of subdivision one 34 of this section; 35 (d) whether either party has been found to have committed an act which 36 would constitute disorderly conduct, unlawful dissemination or publica- 37 tion of an intimate image, harassment in the first degree, harassment in 38 the second degree, aggravated harassment in the second degree, sexual 39 misconduct, forcible touching, sexual abuse in the third degree, sexual 40 abuse in the second degree as set forth in subdivision one of section 41 130.60 of the penal law, stalking in the first degree, stalking in the 42 second degree, stalking in the third degree, stalking in the fourth 43 degree, criminal mischief, menacing in the second degree, menacing in 44 the third degree, reckless endangerment, criminal obstruction of breath- 45 ing or blood circulation, strangulation in the second degree, strangula- 46 tion in the first degree, assault in the second degree, assault in the 47 third degree, an attempted assault, identity theft in the first degree, 48 identity theft in the second degree, identity theft in the third degree, 49 grand larceny in the fourth degree, grand larceny in the third degree, 50 coercion in the second degree or coercion in the third degree as set 51 forth in subdivisions one, two and three of section 135.60 of the penal 52 law between spouses or former spouses, or between parent and child or 53 between members of the same family or household; 54 (e) whether either party has used or threatened to use a dangerous 55 instrument to harm the other party, child, or a third party, including a 56 firearm, except in incidents involving self-defense, or has unlawfullyA. 3346--B 8 1 possessed a weapon or firearm, or has been convicted of criminal 2 possession of a weapon or criminal use of a firearm pursuant to article 3 two hundred sixty-five of the penal law, or is or has been subject to an 4 extreme risk protection order, pursuant to article sixty-three-A of the 5 civil practice law and rules; and 6 (f) which party has been attending to the daily physical, emotional, 7 developmental, educational, and special needs of the child. 8 3. There shall be a rebuttable presumption that custody or unsuper- 9 vised visitation shall not be awarded to a party who jeopardizes the 10 safety of the child. 11 4. (a) In any proceeding for custody or visitation where a party cred- 12 ibly alleges domestic violence or child abuse, allegations that a party 13 is not a friendly parent or has alienated the child or children against 14 the other party shall not be considered in assessing a child's or chil- 15 dren's best interests. 16 (b) The court shall not presume that a child's reluctance to interact 17 with a party was caused by the other party, nor shall a party be given 18 custody for the purpose of improving a relationship between the child 19 and such party or in an attempt to address the child's reluctance to 20 interact with such party. 21 (c) No psychological or medical theories related to a child's reluc- 22 tance to interact with a party shall be admitted into evidence or 23 considered by the court unless based on empirical proof of scientific 24 reliability and validity and generally accepted by the scientific and 25 professional community. 26 (d) No treatment program intended to reunite a child with a party whom 27 that child is estranged shall be ordered by the court without consent of 28 both parties and the attorney for the child and supported by scientif- 29 ically valid and generally accepted proof of the effectiveness and ther- 30 apeutic value of such program. 31 5. In cases involving domestic violence, child abuse or neglect, or a 32 history of coercive control, or where the parties cannot effectively 33 communicate, cooperate with each other and make joint decisions concern- 34 ing the child, or in cases where there is an existing or prior full stay 35 away order of protection against a party or when there is an existing 36 temporary order of protection entered ex parte, no order of joint custo- 37 dy shall be made without the consent of both parties. The court shall 38 not suggest that in order to retain custody, a party must agree to joint 39 custody. The court shall not use a party's refusal to consent to joint 40 custody against such party when making its final custody or visitation 41 determination. 42 6. (a) Before judges, referees, or other hearing officers preside over 43 child custody proceedings in which one or more parties have alleged 44 domestic violence or child abuse, they shall complete comprehensive 45 training on domestic violence and child abuse that addresses current 46 knowledge and law relating to domestic violence and child abuse and 47 neglect, with the goal of making appropriate custody and visitation 48 decisions that prioritize children's safety and are culturally sensitive 49 and appropriate for diverse communities. Such judges, referees and other 50 hearing officers shall complete supplemental training every two years 51 thereafter to remain eligible to preside over such proceedings. The 52 office of court administration, in consultation with the office for the 53 prevention of domestic violence, shall develop and conduct such train- 54 ing, which shall be reviewed and updated at least once every two years. 55 Such training shall include, but not be limited to:A. 3346--B 9 1 (1) relevant statutes and case law pertaining to domestic violence and 2 child abuse; 3 (2) the power and control dynamics of domestic violence and child 4 abuse, including but not limited to, stalking, and emotional, financial, 5 physical, technological, cyber, sexual, and litigation abuse, and the 6 tactics commonly used to induce fear in or to dominate or control a 7 partner or child, including coercive control; 8 (3) the barriers and fears associated with reporting domestic violence 9 and child abuse and neglect, and the increased risk of escalating 10 violence during child custody and visitation proceedings; 11 (4) the science and experience of trauma and other psychological 12 impacts of abuse in adults and children, including the importance of 13 judges maintaining trauma-informed courts, and the dangers and inadmis- 14 sibility of non-scientific theories, such as parental alienation, 15 parental alienation syndrome, parental gatekeeping, or any other theory 16 that is not supported by scientific research and not generally accepted 17 by the scientific community; 18 (5) the distinction between inappropriate interference with the child- 19 parent relationship versus protective parenting in the context of domes- 20 tic violence or child abuse and neglect; 21 (6) how to conduct an assessment of serious risk and risk of lethality 22 to a child or such child's parent, pursuant to subdivision four of this 23 section for the purpose of issuing a temporary order of custody or visi- 24 tation; 25 (7) best practices in assessing allegations of domestic violence and 26 child abuse and neglect; in assessing the value and limitations of 27 reports of suspected child abuse or neglect conducted by law enforcement 28 or departments of social services; and 29 (8) assessing the qualifications and reports of child custody evalu- 30 ators and mental health treatment providers. 31 § 5. Subdivision (a) of section 70 of the domestic relations law, as 32 amended by chapter 457 of the laws of 1988, is amended to read as 33 follows: 34 (a) (i) Where a minor child is residing within this state, either 35 parent may apply to the supreme court for a writ of habeas corpus to 36 have such minor child brought before such court; and on the return ther- 37 eof, the court, on due consideration, may award the natural guardian- 38 ship, charge and custody of such child to either parent for such time, 39 under such regulations and restrictions, and with such provisions and 40 directions, as the case may require, and may at any time thereafter 41 vacate or modify such order. In all cases there shall be no prima facie 42 right to the custody of the child in either parent, but the court shall 43 determine solely what is for the best interest of the child, and what 44 will best promote its welfare and happiness, and make award accordingly. 45 Where the court issues any initial or successive temporary order of 46 custody or visitation or permanent order of custody or visitation, the 47 court shall conduct a review of any findings or credible allegations of 48 child abuse, domestic violence, serious risk and risk of lethality, and 49 the decisions and reports listed in subparagraph one of paragraph (a-1) 50 of subdivision one of section two hundred forty of this chapter, unless 51 such a review has been conducted within ninety days prior to the issu- 52 ance of such order. 53 (ii) When issuing any temporary order of custody or visitation, the 54 court shall state on the record, and in writing, any findings or credi- 55 ble allegations of child abuse, domestic violence, serious risk or risk 56 of lethality, and the prior decisions and reports considered in render-A. 3346--B 10 1 ing its decision and the reasons for any limitations or restrictions 2 placed on a party's custody, visitation or contact with such child. Any 3 party to a proceeding for a temporary order pursuant to this chapter 4 shall have a right to appeal to the appropriate appellate division, 5 pursuant to article eleven of the family court act. 6 (iii) Notwithstanding any other provision of law to the contrary, a 7 court making a final determination of custody or visitation based on the 8 best interests of a child pursuant to the provisions of this chapter 9 shall prioritize and promote the safety of such child when making such 10 determinations. Only competent, material and relevant evidence shall be 11 admitted, pursuant to article ten of the family court act, however the 12 hearsay statements of the child may be admitted when corroborated by 13 other evidence. Promoting the safety of a child shall include preventing 14 direct physical and/or emotional harm to such child and shall be 15 assessed by considering any findings or credible allegations of child 16 abuse, domestic violence, serious risk and risk of lethality, and deci- 17 sions and reports identified in subparagraph one of paragraph (a-1) of 18 subdivision one of section two hundred forty of this chapter. 19 (iv) In making a decision pursuant to paragraph (i) of this subdivi- 20 sion, the court shall be bound by the presumptions and admissibility 21 described pursuant to section two hundred forty of this chapter. 22 Further, the court shall not take into consideration whether either 23 party is married, was formerly married or has ever been married to the 24 other party or anyone else. 25 (v) In cases involving domestic violence, child abuse or neglect, or a 26 history of coercive control, or where the parties cannot effectively 27 communicate, cooperate with each other and make joint decisions concern- 28 ing the child, or in cases where there is an existing or prior full stay 29 away order of protection against a party or when there is an existing 30 temporary order of protection entered ex parte, no order of joint custo- 31 dy shall be made without the consent of both parties. The court shall 32 not suggest that in order to retain custody, a party must agree to joint 33 custody. The court shall not use a party's refusal to consent to joint 34 custody against such party when making its final custody or visitation 35 determination, as described in subdivision five of section two hundred 36 forty-e of this chapter. 37 (vi) Before judges, referees and other hearing officers preside over 38 child custody proceedings in which one or more parties have alleged 39 domestic violence or child abuse, they shall complete initial training 40 for the handling of such cases as described pursuant to paragraph a of 41 subdivision six of section two hundred forty-e of this chapter. Once 42 initial training requirements have been met, judges, referees and other 43 hearing officers shall complete additional training every two years as 44 described pursuant to paragraph (a) of subdivision six of section two 45 hundred forty-e of this chapter. 46 § 6. Subdivision (b) of section 651 of the family court act, as 47 amended by chapter 657 of the laws of 2003, is amended to read as 48 follows: 49 (b) (i) When initiated in the family court, the family court has 50 jurisdiction to determine, in accordance with subdivision one of section 51 two hundred forty of the domestic relations law and with the same powers 52 possessed by the supreme court in addition to its own powers, habeas 53 corpus proceedings and proceedings brought by petition and order to show 54 cause, for the determination of the custody or visitation of minors, 55 including applications by a grandparent or grandparents for visitationA. 3346--B 11 1 or custody rights pursuant to section seventy-two or two hundred forty 2 of the domestic relations law. 3 (ii) The family court shall, in collaboration with the office for the 4 prevention of domestic violence, update its petition used by parties to 5 initiate child custody and visitation proceedings in a manner to permit 6 petitioners to identify findings or allegations of child abuse, domestic 7 violence, serious risk or risk of lethality to a child's safety. 8 § 7. Subdivision (e) of section 651 of the family court act, as 9 amended by chapter 295 of the laws of 2009, is amended to read as 10 follows: 11 (e) The legislature recognizes that the safety of children is of para- 12 mount importance and is an integral element of their best interests. To 13 that end, the legislature finds that judicial decisions regarding custo- 14 dy of, and access to, children must ensure children's safety as a thres- 15 hold issue. 16 1. Permanent and initial temporary orders of custody or visitation. 17 Prior to the issuance of any permanent or initial temporary order of 18 custody or visitation, the court shall conduct a review of any findings 19 or credible allegations of child abuse, domestic violence, serious risk 20 and risk of lethality to a child's safety, and the decisions and reports 21 listed in [paragraph three of this subdivision] subparagraph one of 22 paragraph (a-1) of subdivision one of section two hundred forty of this 23 chapter. When the parties first appear in court, the court shall advise 24 the parties before proceeding of the right to be represented by counsel 25 of their own choosing, of the right to have an adjournment of no longer 26 than fourteen court days to confer with counsel, and the right to obtain 27 counsel fees and expenses, pursuant to section two hundred thirty-seven 28 of the domestic relations law. The court shall assign counsel to the 29 parties and children, pursuant to article two of this chapter. 30 2. Successive temporary orders of custody or visitation. Prior to the 31 issuance of any successive temporary order of custody or visitation, the 32 court shall conduct a review of any findings or credible allegations of 33 child abuse, domestic violence, serious risk and risk of lethality, and 34 the decisions and reports listed in [paragraph three of this subdivi-35sion,] subparagraph one of paragraph (a-1) of subdivision one of section 36 two hundred forty of this chapter unless such a review has been 37 conducted within ninety days prior to the issuance of such order. 38 3. [Decisions] Findings and allegations of child abuse, domestic 39 violence, serious risk or risk of lethality, and the decisions and 40 reports for review. The court shall conduct a review of the following: 41 (i) related decisions in court proceedings initiated pursuant to arti- 42 cle ten of this act, and all warrants issued under this act; [and] 43 (ii) whether either party to the action alleges that the other party 44 to the proceeding has committed, or has threatened to commit, an act of 45 child abuse against such child, or has committed, or has threatened to 46 commit, an act of domestic violence against the party making the allega- 47 tion or a family or household member of either party, as such family or 48 household member is defined in article eight of this chapter; 49 (iii) a history of domestic violence, child abuse or neglect, child 50 sexual abuse or incidents involving harm, or risk of harm, to a child; 51 (iv) police reports, including domestic violence incident reports, 52 reporting incidents involving child abuse or domestic violence; 53 (v) findings and credible allegations of child abuse, domestic 54 violence, serious risk or risk of lethality, including but not limited 55 to: 56 (a) an increase in frequency or severity of domestic violence;A. 3346--B 12 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 coerced sexual activity of the child or other 6 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) a party's pattern of alcohol or substance abuse that places the 11 child at serious risk or risk of lethality; 12 (h) incidents of violence during pregnancy; 13 (i) incidents of stalking or cyber stalking; and 14 (j) coercive control, as defined in paragraph (c) of subdivision one 15 of section two hundred forty-e of the domestic relations law; and 16 (vi) 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. Appeal. Such permanent and temporary orders of custody or visita- 22 tion may be taken as of right to the appellate division of the supreme 23 court. Pending the determination of such appeal, such order shall be 24 stayed. A preference in accordance with rule fifty-five hundred twenty- 25 one of the civil practice law and rules shall be afforded, without the 26 necessity of a motion, for appeals under article three; parts one and 27 two of article six; articles seven, ten and ten-A of this act; and 28 sections three hundred fifty-eight-a, three hundred eighty-three-c, 29 three hundred eighty-four, and three hundred eighty-four-b of the social 30 services law. A notice to appeal under this subdivision must be taken 31 no later than twenty court days after the service by a party or the 32 child's attorney upon the appellant of any order from which the appeal 33 is taken, or twenty court days from receipt of the order by the appel- 34 lant in court, whichever is earliest. Except for good cause shown, the 35 appeal hearing shall be expedited and held no later than ninety court 36 days from the notice to appeal. Whenever an attorney has been appointed 37 to represent a party in a proceeding described in this paragraph, the 38 appointment shall continue without further court order or appointment, 39 pursuant to subdivision (b) of section eleven hundred twenty of this 40 chapter. 41 5. Notifying counsel and issuing orders. Upon consideration of deci- 42 sions pursuant to article ten of this act, and registry reports and 43 notifying counsel involved in the proceeding, or in the event of a self- 44 represented party, notifying such party of the results thereof, includ- 45 ing any court appointed attorney for children, the court may issue a 46 temporary, successive temporary or final order of custody or visitation. 47 [5.] 6. Temporary emergency order. Notwithstanding any other provision 48 of the law, upon emergency situations, including computer malfunctions, 49 to serve the best interest of the child, the court may issue a temporary 50 emergency order for custody or visitation in the event that it is not 51 possible to timely review decisions and reports on registries as 52 required pursuant to paragraph three of this subdivision. 53 [6.] 7. After issuing a temporary emergency order. After issuing a 54 temporary emergency order of custody or visitation, the court shall 55 conduct reviews of the decisions and reports on registries as required 56 pursuant to paragraph three of this subdivision within twenty-four hoursA. 3346--B 13 1 of the issuance of such temporary emergency order. Should such twenty- 2 four hour period fall on a day when court is not in session, then the 3 required reviews shall take place the next day the court is in session. 4 Upon reviewing decisions and reports the court shall notify associated 5 counsel, self-represented parties and attorneys for children pursuant to 6 paragraph [four] five of this subdivision and may issue temporary or 7 permanent custody or visitation orders. 8 [7.] 8. Feasibility study. The commissioner of the office of children 9 and family services, in conjunction with the office of court adminis- 10 tration, is hereby authorized and directed to examine, study, evaluate 11 and make recommendations concerning the feasibility of the utilization 12 of computers in family courts which are connected to the statewide 13 central register of child abuse and maltreatment established and main- 14 tained pursuant to section four hundred twenty-two of the social 15 services law, as a means of providing family courts with information 16 regarding parties requesting orders of custody or visitation. Such 17 commissioner shall make a preliminary report to the governor and the 18 legislature of findings, conclusions and recommendations not later than 19 January thirty-first, two thousand nine, and a final report of findings, 20 conclusions and recommendations not later than June first, two thousand 21 nine, and shall submit with the reports such legislative proposals as 22 are deemed necessary to implement the commissioner's recommendations. 23 § 8. Subdivision a of section 1112 of the family court act, as amended 24 by section 28 of part A of chapter 3 of the laws of 2005, is amended to 25 read as follows: 26 a. An appeal may be taken as of right from any order of disposition 27 and, in the discretion of the appropriate appellate division, from any 28 other order under this act. An appeal from an intermediate or final 29 order in a case involving abuse or neglect pursuant to section six 30 hundred fifty-one of this act may be taken as of right to the appellate 31 division of the supreme court. Pending the determination of such 32 appeal, such order shall be stayed where the effect of such order would 33 be to discharge the child, if the family court or the court before which 34 such appeal is pending finds that such a stay is necessary to avoid 35 imminent risk to the child's life or health. A preference in accordance 36 with rule [five thousand five] fifty-five hundred twenty-one of the 37 civil practice law and rules shall be afforded, without the necessity of 38 a motion, for appeals under article three; parts one and two of article 39 six; articles seven, ten, and ten-A of this act; and sections three 40 hundred fifty-eight-a, three hundred eighty-three-c, three hundred 41 eighty-four, and three hundred eighty-four-b of the social services law. 42 § 9. Subdivision (a) of section 249 of the family court act, as 43 amended by chapter 3 of the laws of 2012, is amended to read as follows: 44 (a) In a proceeding under article three, seven, ten, ten-A or ten-C of 45 this act or where a revocation of an adoption consent is opposed under 46 section one hundred fifteen-b of the domestic relations law or in any 47 proceeding under section three hundred fifty-eight-a, three hundred 48 eighty-three-c, three hundred eighty-four or three hundred eighty-four-b 49 of the social services law or when a minor is sought to be placed in 50 protective custody under section one hundred fifty-eight of this act or 51 in any proceeding where a minor is detained under or governed by the 52 interstate compact for juveniles established pursuant to section five 53 hundred one-e of the executive law, the family court shall appoint an 54 attorney to represent a minor who is the subject of the proceeding or 55 who is sought to be placed in protective custody, if independent legal 56 representation is not available to such minor. In any proceeding toA. 3346--B 14 1 extend or continue the placement of a juvenile delinquent or person in 2 need of supervision pursuant to section seven hundred fifty-six or 353.3 3 of this act or any proceeding to extend or continue a commitment to the 4 custody of the commissioner of mental health or the commissioner of 5 people with developmental disabilities pursuant to section 322.2 of this 6 act, the court shall not permit the respondent to waive the right to be 7 represented by counsel chosen by the respondent, respondent's parent, or 8 other person legally responsible for the respondent's care, or by 9 assigned counsel. In any proceeding under article ten-B of this act, the 10 family court shall appoint an attorney to represent a youth, under the 11 age of twenty-one, who is the subject of the proceeding, if independent 12 legal representation is not available to such youth. In any proceeding 13 under article six of this act, the court shall appoint an attorney to 14 represent the child when credible allegations of serious risk to the 15 child's safety have been made. In any other proceeding in which the 16 court has jurisdiction, the court may appoint an attorney to represent 17 the child, when, in the opinion of the family court judge, such repre- 18 sentation will serve the purposes of this act, if independent legal 19 counsel is not available to the child. The family court on its own 20 motion may make such appointment. 21 § 10. Subdivision (a) of section 249 of the family court act, as 22 amended by chapter 672 of the laws of 2019, is amended to read as 23 follows: 24 (a) In a proceeding under article three, seven, ten, ten-A or ten-C of 25 this act or where a revocation of an adoption consent is opposed under 26 section one hundred fifteen-b of the domestic relations law or in any 27 proceeding under section three hundred fifty-eight-a, three hundred 28 eighty-three-c, three hundred eighty-four or three hundred eighty-four-b 29 of the social services law or when a minor is sought to be placed in 30 protective custody under section one hundred fifty-eight of this act, 31 the family court shall appoint an attorney to represent a minor who is 32 the subject of the proceeding or who is sought to be placed in protec- 33 tive custody, if independent legal representation is not available to 34 such minor. In any proceeding to extend or continue the placement of a 35 juvenile delinquent or person in need of supervision pursuant to section 36 seven hundred fifty-six or 353.3 of this act or any proceeding to extend 37 or continue a commitment to the custody of the commissioner of mental 38 health or the commissioner of the office for people with developmental 39 disabilities pursuant to section 322.2 of this act, the court shall not 40 permit the respondent to waive the right to be represented by counsel 41 chosen by the respondent, respondent's parent, or other person legally 42 responsible for the respondent's care, or by assigned counsel. In any 43 proceeding under article ten-B of this act, the family court shall 44 appoint an attorney to represent a youth, under the age of twenty-one, 45 who is the subject of the proceeding, if independent legal represen- 46 tation is not available to such youth. In any proceeding under article 47 six of this act, the court shall appoint an attorney to represent the 48 child when credible allegations of serious risk to the child's safety 49 have been made. In any other proceeding in which the court has jurisdic- 50 tion, the court may appoint an attorney to represent the child, when, in 51 the opinion of the family court judge, such representation will serve 52 the purposes of this act, if independent legal counsel is not available 53 to the child. The family court on its own motion may make such appoint- 54 ment. 55 § 11. This act shall take effect on the one hundred twentieth day 56 after it shall have become a law; provided, however, that the amendmentsA. 3346--B 15 1 to subdivision (a) of section 249 of the family court act made by 2 section nine of this act shall be subject to the expiration and rever- 3 sion of such subdivision pursuant to section 8 of chapter 29 of the laws 4 of 2011, as amended, when upon such date the provisions of section ten 5 of this act shall take effect. Effective immediately, the addition, 6 amendment and/or repeal of any rule or regulation necessary for the 7 implementation of this act on its effective date are authorized to be 8 made and completed on or before such effective date.