Bill Text: NY S00074 | 2019-2020 | General Assembly | Introduced
Bill Title: Prohibits the court from granting custody of or unsupervised visitation with a child to a person who has been convicted or accused of raping the parent of the child.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Introduced - Dead) 2020-01-08 - REFERRED TO CHILDREN AND FAMILIES [S00074 Detail]
Download: New_York-2019-S00074-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 74 2019-2020 Regular Sessions IN SENATE (Prefiled) January 9, 2019 ___________ Introduced by Sen. ROBACH -- read twice and ordered printed, and when printed to be committed to the Committee on Children and Families AN ACT to amend the domestic relations law and the family court act, in relation to prohibiting the court from granting custody of or unsuper- vised visitation with a child to a person who has been convicted of or charged with raping the parent of the child The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Paragraph (a) of subdivision 1 of section 240 of the domes- 2 tic relations law, as amended by chapter 567 of the laws of 2015, is 3 amended to read as follows: 4 (a) In any action or proceeding brought (1) to annul a marriage or to 5 declare the nullity of a void marriage, or (2) for a separation, or (3) 6 for a divorce, or (4) to obtain, by a writ of habeas corpus or by peti- 7 tion and order to show cause, the custody of or right to visitation with 8 any child of a marriage, the court shall require verification of the 9 status of any child of the marriage with respect to such child's custody 10 and support, including any prior orders, and shall enter orders for 11 custody and support as, in the court's discretion, justice requires, 12 having regard to the circumstances of the case and of the respective 13 parties and to the best interests of the child and subject to the 14 provisions of subdivision one-c of this section. Where either party to 15 an action concerning custody of or a right to visitation with a child 16 alleges in a sworn petition or complaint or sworn answer, cross-peti- 17 tion, counterclaim or other sworn responsive pleading that the other 18 party has committed an act of domestic violence against the party making 19 the allegation or a family or household member of either party, as such 20 family or household member is defined in article eight of the family 21 court act, and such allegations are proven by a preponderance of the 22 evidence, the court must consider the effect of such domestic violence EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD05350-01-9S. 74 2 1 upon the best interests of the child, together with such other facts and 2 circumstances as the court deems relevant in making a direction pursuant 3 to this section and state on the record how such findings, facts and 4 circumstances factored into the direction. No court shall award custody 5 to or allow unsupervised visitation with a person who has been convicted 6 of raping the parent of such child and any request for custody or unsu- 7 pervised visitation by a person charged with raping the parent of such 8 child shall be stayed pending resolution of any criminal charges of 9 rape. If a parent makes a good faith allegation based on a reasonable 10 belief supported by facts that the child is the victim of child abuse, 11 child neglect, or the effects of domestic violence, and if that parent 12 acts lawfully and in good faith in response to that reasonable belief to 13 protect the child or seek treatment for the child, then that parent 14 shall not be deprived of custody, visitation or contact with the child, 15 or restricted in custody, visitation or contact, based solely on that 16 belief or the reasonable actions taken based on that belief. If an alle- 17 gation that a child is abused is supported by a preponderance of the 18 evidence, then the court shall consider such evidence of abuse in deter- 19 mining the visitation arrangement that is in the best interest of the 20 child, and the court shall not place a child in the custody of a parent 21 who presents a substantial risk of harm to that child, and shall state 22 on the record how such findings were factored into the determination. 23 Where a proceeding filed pursuant to article ten or ten-A of the family 24 court act is pending at the same time as a proceeding brought in the 25 supreme court involving the custody of, or right to visitation with, any 26 child of a marriage, the court presiding over the proceeding under arti- 27 cle ten or ten-A of the family court act may jointly hear the disposi- 28 tional hearing on the petition under article ten or the permanency hear- 29 ing under article ten-A of the family court act and, upon referral from 30 the supreme court, the hearing to resolve the matter of custody or visi- 31 tation in the proceeding pending in the supreme court; provided however, 32 the court must determine custody or visitation in accordance with the 33 terms of this section. 34 An order directing the payment of child support shall contain the 35 social security numbers of the named parties. In all cases there shall 36 be no prima facie right to the custody of the child in either parent. 37 Such direction shall make provision for child support out of the proper- 38 ty of either or both parents. The court shall make its award for child 39 support pursuant to subdivision one-b of this section. Such direction 40 may provide for reasonable visitation rights to the maternal and/or 41 paternal grandparents of any child of the parties. Such direction as it 42 applies to rights of visitation with a child remanded or placed in the 43 care of a person, official, agency or institution pursuant to article 44 ten of the family court act, or pursuant to an instrument approved under 45 section three hundred fifty-eight-a of the social services law, shall be 46 enforceable pursuant to part eight of article ten of the family court 47 act and sections three hundred fifty-eight-a and three hundred eighty- 48 four-a of the social services law and other applicable provisions of law 49 against any person having care and custody, or temporary care and custo- 50 dy, of the child. Notwithstanding any other provision of law, any writ- 51 ten application or motion to the court for the establishment, modifica- 52 tion or enforcement of a child support obligation for persons not in 53 receipt of public assistance and care must contain either a request for 54 child support enforcement services which would authorize the collection 55 of the support obligation by the immediate issuance of an income 56 execution for support enforcement as provided for by this chapter,S. 74 3 1 completed in the manner specified in section one hundred eleven-g of the 2 social services law; or a statement that the applicant has applied for 3 or is in receipt of such services; or a statement that the applicant 4 knows of the availability of such services, has declined them at this 5 time and where support enforcement services pursuant to section one 6 hundred eleven-g of the social services law have been declined that the 7 applicant understands that an income deduction order may be issued 8 pursuant to subdivision (c) of section fifty-two hundred forty-two of 9 the civil practice law and rules without other child support enforcement 10 services and that payment of an administrative fee may be required. The 11 court shall provide a copy of any such request for child support 12 enforcement services to the support collection unit of the appropriate 13 social services district any time it directs payments to be made to such 14 support collection unit. Additionally, the copy of any such request 15 shall be accompanied by the name, address and social security number of 16 the parties; the date and place of the parties' marriage; the name and 17 date of birth of the child or children; and the name and address of the 18 employers and income payors of the party from whom child support is 19 sought or from the party ordered to pay child support to the other 20 party. Such direction may require the payment of a sum or sums of money 21 either directly to the custodial parent or to third persons for goods or 22 services furnished for such child, or for both payments to the custodial 23 parent and to such third persons; provided, however, that unless the 24 party seeking or receiving child support has applied for or is receiving 25 such services, the court shall not direct such payments to be made to 26 the support collection unit, as established in section one hundred 27 eleven-h of the social services law. Every order directing the payment 28 of support shall require that if either parent currently, or at any time 29 in the future, has health insurance benefits available that may be 30 extended or obtained to cover the child, such parent is required to 31 exercise the option of additional coverage in favor of such child and 32 execute and deliver to such person any forms, notices, documents or 33 instruments necessary to assure timely payment of any health insurance 34 claims for such child. 35 § 2. The family court act is amended by adding a new section 553 to 36 read as follows: 37 § 553. Paternity proceedings stayed for rape charges against putative 38 father. 1. If criminal charges alleging an act of rape are brought 39 against the putative father of a child conceived as the result of that 40 act of rape, the court shall issue an automatic stay of any paternity 41 proceeding involving both the child and the alleged putative father. The 42 stay shall not be lifted until there is a final disposition of such 43 criminal charges. 44 2. In any future custody proceeding, any denial of visitation under 45 this section shall not be used against the mother of the child when 46 determining any support obligation. 47 § 3. Subdivisions (a), (b) and (c) of section 651 of the family court 48 act, subdivisions (a) and (c) as amended by chapter 85 of the laws of 49 1996 and subdivision (b) as amended by chapter 657 of the laws of 2003, 50 are amended to read as follows: 51 (a) When referred from the supreme court or county court to the family 52 court, the family court has jurisdiction to determine, in accordance 53 with subdivision one of section two hundred forty of the domestic 54 relations law and with the same powers possessed by the supreme court in 55 addition to its own powers, habeas corpus proceedings and proceedings 56 brought by petition and order to show cause, for the determination ofS. 74 4 1 the custody or visitation of minors subject, however, to the provisions 2 of paragraph (a) of subdivision one of section two hundred forty of the 3 domestic relations law prohibiting the court from granting custody or 4 unsupervised visitation of a child to a person who has been convicted of 5 or charged with raping the parent of the child. 6 (b) When initiated in the family court, the family court has jurisdic- 7 tion to determine, in accordance with subdivision one of section two 8 hundred forty of the domestic relations law and with the same powers 9 possessed by the supreme court in addition to its own powers, habeas 10 corpus proceedings and proceedings brought by petition and order to show 11 cause, for the determination of the custody or visitation of minors, 12 including applications by a grandparent or grandparents for visitation 13 or custody rights pursuant to section seventy-two or two hundred forty 14 of the domestic relations law subject, however, to the provisions of 15 paragraph (a) of subdivision one of section two hundred forty of the 16 domestic relations law prohibiting the court from granting custody or 17 unsupervised visitation of a child to a person who has been convicted of 18 or charged with raping the parent of the child. 19 (c) When initiated in the family court pursuant to a petition under 20 part eight of article ten of this act or section three hundred fifty- 21 eight-a of the social services law, the family court has jurisdiction to 22 enforce or modify orders or judgments of the supreme court relating to 23 the visitation of minors in foster care, notwithstanding any limitation 24 contained in subdivision (b) of section four hundred sixty-seven of this 25 act but subject to the provisions of paragraph (a) of subdivision one of 26 section two hundred forty of the domestic relations law prohibiting the 27 court from granting custody or unsupervised visitation of a child to a 28 person who has been convicted of or charged with raping the parent of 29 the child. 30 § 4. This act shall take effect immediately.