Bill Text: NY S06402 | 2017-2018 | General Assembly | Introduced

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Bill Title: Establishes the intent of the legislature to generally defer to parental choices regarding the care, custody and control of their children; mandates that the death of a parent shall be a factor when considering a grandparent's standing to receive visitation or custody; directs that costs be payable by an unsuccessful petitioner where a contest was brought in bad faith.

Spectrum: Bipartisan Bill

Status: (Introduced - Dead) 2018-06-20 - COMMITTED TO RULES [S06402 Detail]

Download: New_York-2017-S06402-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________
                                          6402
                               2017-2018 Regular Sessions
                    IN SENATE
                                      May 16, 2017
                                       ___________
        Introduced by Sen. MARCHIONE -- 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, in relation to the rights of
          grandparents  with  respect  to  visitation rights or custody of minor
          children
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
     1    Section  1.  Section  72  of the domestic relations law, as amended by
     2  chapter 657 of the laws of 2003, is amended to read as follows:
     3    § 72. Special proceeding or habeas corpus to obtain visitation  rights
     4  or  custody  in  respect  to certain infant grandchildren. 1.  (a) Where
     5  [either or both of the parents of a minor child,  residing  within  this
     6  state,  is or are deceased, or where] circumstances show that conditions
     7  exist which equity would see fit to  intervene,  a  grandparent  or  the
     8  grandparents  of  [such child] a minor child, residing within this state
     9  may apply to the supreme court by commencing a special proceeding or for
    10  a writ of habeas corpus to have such child brought before such court, or
    11  may apply to the family court pursuant to subdivision (b) of section six
    12  hundred fifty-one of the family court act[; and on].
    13    (b) When determining whether such grandparent  or  grandparents  shall
    14  have  standing to commence such proceedings pursuant to paragraph (a) of
    15  this subdivision, a strong presumption exists in favor of parental deci-
    16  sions concerning visitation. Further, the  court  shall  not  appoint  a
    17  guardian  ad  litem  until  such time as standing of such grandparent or
    18  grandparents has been determined. A petitioner  seeking  to  overturn  a
    19  parental  decision  must  allege,  with detail and specificity, that the
    20  child would experience significant harm to his or her health, safety, or
    21  welfare if visitation were denied. Prior to  filing  the  petition,  the
    22  petitioner  must  have  made a good faith attempt at reconciliation with
    23  the respondent and the petition must allege  so  with  specificity,  and
    24  must  be verified or accompanied by a verified affidavit. The petitioner
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07794-05-7
        S. 6402                             2
     1  must demonstrate that he or she is a fit and proper person to have visi-
     2  tation rights with the child and that he or she has no reported  history
     3  of  domestic  violence.   The court shall also conduct its own search to
     4  determine  whether the petitioner has ever had a domestic violence inci-
     5  dent report filed against him or her. The court shall further conduct  a
     6  search to determine whether the petitioner is, or ever has been, subject
     7  to  an  order  of protection or has any criminal history.  The court may
     8  also consider whether or not either or both of the parents of such child
     9  is or are deceased, however, such factor shall not automatically grant a
    10  grandparent or the grandparents of such child standing to commence  such
    11  proceedings pursuant to paragraph (a) of this subdivision.
    12    (c)  On  the  return thereof, the court, by order, after due notice to
    13  the parent or any other person or party having the  care,  custody,  and
    14  control  of  such  child,  to be given in such manner as the court shall
    15  prescribe, may make such directions as the best interest  of  the  child
    16  may  require, for visitation rights for such grandparent or grandparents
    17  in respect to such child.  Any finding concerning the best interests  of
    18  the  child  shall be subject to the strong presumption that the parents'
    19  decision is in the child's best interest, and  visitation  may  only  be
    20  ordered  in circumstances in which the child's health, safety or welfare
    21  would be adversely affected by the denial  of  visitation.  The  court's
    22  finding supporting an order of visitation shall be in writing.
    23    2.  (a)  Where  a  grandparent  or  the grandparents of a minor child,
    24  residing within this state, can demonstrate to the satisfaction  of  the
    25  court  the existence of extraordinary circumstances, such grandparent or
    26  grandparents of such child may apply to the supreme court by  commencing
    27  a  special  proceeding or for a writ of habeas corpus to have such child
    28  brought before such court, or may apply  to  family  court  pursuant  to
    29  subdivision  (b)  of  section  six hundred fifty-one of the family court
    30  act; and on the return thereof, the court, by order, after due notice to
    31  the parent or any other person or party having the  care,  custody,  and
    32  control  of  such  child,  to be given in such manner as the court shall
    33  prescribe, may make such directions as the best interests of  the  child
    34  may  require, for custody rights for such grandparent or grandparents in
    35  respect to such child. An extended disruption of custody, as  such  term
    36  is  defined  in  this section, shall constitute an extraordinary circum-
    37  stance.
    38    (b) For the purposes of this section "extended disruption of  custody"
    39  shall  include,  but  not  be  limited to, a prolonged separation of the
    40  respondent parent and the child  for  at  least  twenty-four  continuous
    41  months during which the parent voluntarily relinquished care and control
    42  of  the  child  and the child resided in the household of the petitioner
    43  grandparent or grandparents, provided, however, that the court may  find
    44  that  extraordinary  circumstances exist should the prolonged separation
    45  have lasted for less than twenty-four months.
    46    (c) Nothing in this section shall limit  the  ability  of  parties  to
    47  enter  into  consensual  custody  agreements  absent  the  existence  of
    48  extraordinary circumstances.
    49    3. The court may direct that costs and allowances in whole or in part,
    50  including attorney's fees, be  payable  by  an  unsuccessful  petitioner
    51  where  the  court finds that the contest was brought in bad faith or was
    52  frivolous or non-meritorious.
    53    § 2. This act shall take effect on the ninetieth day  after  it  shall
    54  have become a law.