Bill Text: NY A04946 | 2011-2012 | General Assembly | Introduced
Bill Title: Prevents parents and guardians who have committed manslaughter or criminally negligent homicide from having custody or visitation of children.
Spectrum: Slight Partisan Bill (Democrat 13-6)
Status: (Introduced - Dead) 2011-04-20 - enacting clause stricken [A04946 Detail]
Download: New_York-2011-A04946-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
4946
2011-2012 Regular Sessions
I N A S S E M B L Y
February 9, 2011
___________
Introduced by M. of A. MAYERSOHN, GALEF, CUSICK, P. RIVERA -- Multi-
Sponsored by -- M. of A. BURLING, CROUCH, CYMBROWITZ, FINCH, FITZPA-
TRICK, HOOPER, KOLB, McENENY, J. MILLER, NOLAN, PHEFFER, RAMOS, SWEE-
NEY, TOWNS, WEISENBERG -- read once and referred to the Committee on
Children and Families
AN ACT to amend the domestic relations law and the family court act, in
relation to the custody of children by parents or guardians who have
committed certain homicidal offenses
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Subdivision 1-c of section 240 of the domestic relations
2 law, as added by chapter 150 of the laws of 1998, paragraph (a) as
3 amended by chapter 378 of the laws of 1999 and paragraph (c) as amended
4 by chapter 41 of the laws of 2010, is amended to read as follows:
5 1-c. (a) Notwithstanding any other provision of this chapter to the
6 contrary, no court shall make an order providing for visitation or
7 custody to a person who has been convicted of murder in the first or
8 second degree, MANSLAUGHTER IN THE FIRST OR SECOND DEGREE, OR CRIMINALLY
9 NEGLIGENT HOMICIDE in this state, or convicted of an offense in another
10 jurisdiction which, if committed in this state, would constitute either
11 murder in the first or second degree, MANSLAUGHTER IN THE FIRST OR
12 SECOND DEGREE, OR CRIMINALLY NEGLIGENT HOMICIDE, of a parent, legal
13 custodian, legal guardian, sibling , half-sibling or step-sibling of any
14 child who is the subject of the proceeding. Pending determination of a
15 petition for visitation or custody, such child shall not visit and no
16 person shall visit with such child present, such person who has been
17 convicted of murder in the first or second degree, MANSLAUGHTER IN THE
18 FIRST OR SECOND DEGREE, OR CRIMINALLY NEGLIGENT HOMICIDE in this state,
19 or convicted of [and] AN offense in another jurisdiction which, if
20 committed in this state, would constitute either murder in the first or
21 second degree, MANSLAUGHTER IN THE FIRST OR SECOND DEGREE, OR CRIMINALLY
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08658-01-1
A. 4946 2
1 NEGLIGENT HOMICIDE, of a parent, legal custodian, legal guardian,
2 sibling, half-sibling or step-sibling of a child who is the subject of
3 the proceeding [without the consent of such child's custodian or legal
4 guardian].
5 (b) Notwithstanding paragraph (a) of this subdivision a court may
6 order visitation or custody where:
7 (i) (A) such child is [of suitable] AT LEAST FIFTEEN YEARS OF age [to
8 signify assent] and such child assents to such visitation or custody; or
9 (B) [if such child is not of suitable age to signify assent, the
10 child's custodian or legal guardian assents to such order; or
11 (C)] the person who has been convicted of murder in the first or
12 second degree, MANSLAUGHTER IN THE FIRST OR SECOND DEGREE, OR CRIMINALLY
13 NEGLIGENT HOMICIDE, or an offense in another jurisdiction which if
14 committed in this state, would constitute either murder in the first or
15 second degree, MANSLAUGHTER IN THE FIRST OR SECOND DEGREE, OR CRIMINALLY
16 NEGLIGENT HOMICIDE, can prove by a preponderance of the evidence that:
17 (1) he or she, or a family or household member of either party, was a
18 victim of domestic violence by the victim of such [murder] HOMICIDE; and
19 (2) the domestic violence was causally related to the commission of
20 such [murder] HOMICIDE; and
21 (ii) the court finds that such visitation or custody is in the best
22 interests of the child.
23 (c) For the purpose of making a determination pursuant to clause [(C)]
24 (B) of subparagraph (i) of paragraph (b) of this subdivision, the court
25 shall not be bound by the findings of fact, conclusions of law or ulti-
26 mate conclusion as determined by the proceedings leading to the
27 conviction of murder in the first or second degree, MANSLAUGHTER IN THE
28 FIRST OR SECOND DEGREE, OR CRIMINALLY NEGLIGENT HOMICIDE in this state
29 or of an offense in another jurisdiction which, if committed in this
30 state, would constitute murder in either the first or second degree,
31 MANSLAUGHTER IN THE FIRST OR SECOND DEGREE, OR CRIMINALLY NEGLIGENT
32 HOMICIDE, of a parent, legal guardian, legal custodian, sibling, half-
33 sibling or step-sibling of a child who is the subject of the proceeding.
34 In all proceedings under this section, an attorney shall be appointed
35 for the child.
36 S 2. Section 1085 of the family court act, as amended by chapter 378
37 of the laws of 1999 and subdivision 4 as amended by chapter 41 of the
38 laws of 2010, is amended to read as follows:
39 S 1085. Visitation and custody rights unenforceable; murder of parent,
40 custodian, guardian, or child. 1. No visitation or custody order shall
41 be enforceable under this part by a person who has been convicted of
42 murder in the first or second degree, MANSLAUGHTER IN THE FIRST OR
43 SECOND DEGREE, OR CRIMINALLY NEGLIGENT HOMICIDE in this state, or
44 convicted of an offense in another jurisdiction which, if committed in
45 this state, would constitute either murder in the first or second
46 degree, MANSLAUGHTER IN THE FIRST OR SECOND DEGREE, OR CRIMINALLY NEGLI-
47 GENT HOMICIDE, of a parent, legal custodian, legal guardian, sibling,
48 half-sibling or step-sibling of the child unless:
49 (i) (A) such child is [of suitable] AT LEAST FIFTEEN YEARS OF age [to
50 signify assent] and such child assents to such visitation or custody; or
51 (B) [if such child is not of suitable age to signify assent the
52 child's custodian or legal guardian assents to such order; or
53 (C)] the person who has been convicted of murder in the first or
54 second degree, MANSLAUGHTER IN THE FIRST OR SECOND DEGREE, OR CRIMINALLY
55 NEGLIGENT HOMICIDE, or an offense in another jurisdiction which if
56 committed in this state, would constitute either murder in the first or
A. 4946 3
1 second degree, MANSLAUGHTER IN THE FIRST OR SECOND DEGREE, OR CRIMINALLY
2 NEGLIGENT HOMICIDE, can prove by a preponderance of the evidence that:
3 (1) he or she, or a family or household member of either party, was a
4 victim of domestic violence by the victim of such [murder] HOMICIDE; and
5 (2) the domestic violence was causally related to the commission of
6 such [murder] HOMICIDE; and
7 (ii) the court finds that such visitation or custody is in the best
8 interest of the child.
9 2. Pending determination of a petition for visitation or custody such
10 child shall not visit and no person shall visit, with such child pres-
11 ent, such person, legal guardian or legal custodian who has been
12 convicted of murder in the first or second degree, MANSLAUGHTER IN THE
13 FIRST OR SECOND DEGREE, OR CRIMINALLY NEGLIGENT HOMICIDE in this state,
14 or an offense in another jurisdiction which, if committed in this state,
15 would constitute either murder in the first or second degree,
16 MANSLAUGHTER IN THE FIRST OR SECOND DEGREE, OR CRIMINALLY NEGLIGENT
17 HOMICIDE, of the other parent, legal guardian, legal custodian, sibling,
18 half-sibling or step-sibling of such child[, without the consent of such
19 child's custodian or legal guardian].
20 3. Nothing contained in this section shall be construed to require a
21 court, without petition from any of the interested parties, to review a
22 previously issued order of visitation or custody or denial of such peti-
23 tion.
24 4. For the purposes of making a determination pursuant to subparagraph
25 [(C)] (B) of paragraph (i) of subdivision one of this section, the court
26 shall not be bound by the findings of fact, conclusions of law or ulti-
27 mate conclusion as determined by the proceedings leading to the
28 conviction of murder in the first or second degree, MANSLAUGHTER IN THE
29 FIRST OR SECOND DEGREE, OR CRIMINALLY NEGLIGENT HOMICIDE in this state
30 or of an offense in another jurisdiction which, if committed in this
31 state, would constitute murder in either the first or second degree,
32 MANSLAUGHTER IN THE FIRST OR SECOND DEGREE, OR CRIMINALLY NEGLIGENT
33 HOMICIDE, of a parent, legal guardian, legal custodian, sibling, half-
34 sibling or step-sibling of a child who is the subject of the proceeding.
35 In all proceedings under this section, an attorney shall be appointed
36 for the child.
37 S 3. This act shall take effect immediately.
