Provides that the issue of military deployment shall not be considered as a factor in the awarding of custody where a suitable child care plan is presented; provides, upon return of a military member from a deployment, for the reinstatement of the child custody order in effect prior to such deployment.
Ayes (62): Adams, Addabbo, Avella, Ball, Bonacic, Boyle, Breslin, Carlucci, DeFrancisco, Diaz, Dilan, Espaillat, Farley, Felder, Flanagan, Fuschillo, Gallivan, Gianaris, Gipson, Golden, Griffo, Grisanti, Hannon, Hassell-Thomps, Hoylman, Kennedy, Klein, Krueger, Lanza, Larkin, Latimer, LaValle, Libous, Little, Marcellino, Marchione, Martins, Maziarz, Montgomery, Nozzolio, O'Brien, O'Mara, Peralta, Perkins, Ranzenhofer, Ritchie, Rivera, Robach, Sampson, Sanders, Savino, Serrano, Seward, Skelos, Smith, Squadron, Stavisky, Stewart-Cousin, Tkaczyk, Valesky, Young, Zeldin
Excused (1): Parker
Ayes (61): Addabbo, Avella, Ball, Bonacic, Boyle, Breslin, Carlucci, DeFrancisco, Diaz, Dilan, Espaillat, Farley, Felder, Flanagan, Gallivan, Gianaris, Gipson, Golden, Griffo, Grisanti, Hannon, Hassell-Thomps, Hoylman, Kennedy, Klein, Krueger, Lanza, Larkin, Latimer, LaValle, Libous, Little, Marcellino, Marchione, Martins, Maziarz, Montgomery, Nozzolio, O'Brien, O'Mara, Parker, Peralta, Perkins, Ranzenhofer, Ritchie, Rivera, Robach, Sampson, Sanders, Savino, Serrano, Seward, Skelos, Smith, Squadron, Stavisky, Stewart-Cousins, Tkaczyk, Valesky, Young, Zeldin
BILL NUMBER:S3507A REVISED MEMO 02/26/2014
TITLE OF BILL: An act to amend the domestic relations law, in relation to child custody when a parent is deployed on military active duty
Provides that the issue of military deployment shall not be considered as a factor in the awarding of custody where a suitable child care plan in presented; provides, upon return of a military member from a deployment, for the reinstatement of the child custody order in effect prior to such deployment.
SUMMARY OF PROVISIONS:
Section One - amends Section 70 of the domestic relations law by adding a new subdivision (c) to state that the court shall not consider the past or current deployment, or possible future deployment of a parent in active service of the armed forces of the United States or of the organized militia of the state as a detrimental factor to the awarding of custody of a child where a suitable child care plan has been presented to the court by the petitioning parent.
Section Two - amends Subdivision 3 of section 75-1 of the domestic relations law to state that within thirty days of such return the child custody order in effect immediately prior to any modifications thereof pursuant to subdivisions one and two of this section shall be reinstated in full force and effect.
Section Three- amends Paragraph (a) of subdivision 1 of section 240 of the domestic relations law, to include subdivision one-d which states that the court shall not consider the past or current deployment, or possible future deployment of a parent in active service of the armed forces of the United States or of the organized militia of the state as a detrimental factor to the awarding of custody of a child to a petitioning parent where a suitable child care plan has been presented to the court by the parent
Section Four - sets forth an immediate effective date
On March 14, 2011, Senator Greg Ball, Chairman of the Committee on Veterans, Homeland Security and Military Affairs held a hearing on the current status, quality of life and health of veterans and military service members in the State of New York. The most startling and emotional testimony came from Mr. Harold Cooney, Northeast Region Liaison from the Office of the Deputy Assistant Secretary of Defense and Ms. Tanya Towne, a veteran of the National Guard, on the current custody issues facing our military service men and women.
According to testimony given by Ms. Towne at this hearing and the poignant account of her story featured in goodhousekeeping.com, she was deployed to Tikrit, Iraq with her National Guard unit in 2004. A temporary order was issued for her son to stay with his father being Ms. Towne's ex-husband. Shortly before Ms. Towne was expected to
return home her ex-husband unexpectedly filed and was granted permanent custody of their son.
When returning home from an 18 month tour guarding convoys in Iraq, away from her home and family, Ms, Towne was not greeted by her son. Her husband refused to let him attend her homecoming. Ten days later Ms. Towne appeared in court to regain custody and was denied. A custody trial was scheduled for February of 2006 and her son was ordered to stay with his father until such proceeding.
Ms. Towne withdrew money from her retirement account to pay for a lawyer and prepared to go to trial. When Ms. Towne's husband was asked why he had never fought for custody previously he admitted that until Towne went to Iraq, there were no grounds - drawing the possible conclusion that if Ms. Towne had never gone to serve her country, she would still have primary, uncontested custody of her son. In August of 2006, a Judge ruled the Ms. Towne's ex-husband provided a more stable environment and awarded him primary custody of their son.
Regardless of the financial burden, Ms. Towne continued her plight to recover the life with her son she had prior to serving in Iraq. Her appeal came before the Appellate Division for the Third Judicial Department of New York State Supreme Court in October of 2007. Ms. Towne's attorney vehemently argued it was inappropriate for the family court to use her deployment as grounds to contest a custody arrangement. On January 3, 2008, after a two year custody battle, the Judges ruled that the "consequences of her extended absence" had to be considered in awarding custody of her son. They stated that it was not in the best interest of the child to move him once again. Therefore, Ms. Towne's ex-husband was granted permanent custody.
In Ms. Towne's emotional testimony she stated the obvious - soldiers should not have to choose between serving their country and losing their family. If she had any idea that she would risk losing custody of her child she would have done anything to prevent herself from having to serve overseas for an extended period of time.
Military service members sacrifice an insurmountable amount of time away from their families for the protection of their country. It is completely unjustifiable and embarrassing that New York State would allow them to lose custody of their children based on their military service. Both Arizona and California have laws that bar a parent's deployment from being considered whatsoever in a change-of-custody hearing. In Michigan and Kentucky, the order of custody for Ms. Towne's son would have automatically expired upon Ms. Towne's return.
Pentagon officials and military-family support groups state there are no statistics on the number of military parents who have lost custody of their children following deployments - but they agree that the number is increasing. This legislation is imperative to ensure the best interests of both military service members and their families are protected. Military service men and women should be concerned and focused on the protection of our country and their safety while on duty and not have to worry that their service to this country will jeopardize their standing as a custodial parent in their child or children's lives upon return.
5/21/13 - Passed in Senate, A.6035A - Held in Judiciary 2012 - S 5049, Held in Children & Families, A.8550 - Held in Judiciary
This act shall take effect immediately.
STATE OF NEW YORK ________________________________________________________________________ 3507--A 2013-2014 Regular Sessions IN SENATE February 5, 2013 ___________Introduced by Sens. BALL, RANZENHOFER, ZELDIN -- read twice and ordered printed, and when printed to be committed to the Committee on Children and Families -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the domestic relations law, in relation to child custody when a parent is deployed on military active duty THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 70 of the domestic relations law is amended by adding a new subdivision (c) to read as follows: (C) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, THE COURT SHALL NOT CONSIDER THE PAST OR CURRENT DEPLOYMENT, OR POSSIBLE FUTURE DEPLOYMENT OF A PARENT IN ACTIVE SERVICE OF THE ARMED FORCES OF THE UNITED STATES OR OF THE ORGANIZED MILITIA OF THE STATE AS A DETRI- MENTAL FACTOR TO THE AWARDING OF CUSTODY OF A CHILD WHERE A SUITABLE CHILD CARE PLAN HAS BEEN PRESENTED TO THE COURT BY THE PETITIONING PARENT. S 2. Subdivision 3 of section 75-l of the domestic relations law, as amended by chapter 473 of the laws of 2009, is amended to read as follows: 3. Unless the parties have otherwise stipulated or agreed, if an order is issued under this section, the return of the parent from active mili- tary service, deployment or temporary assignment shall be considered a substantial change in circumstances, AND WITHIN THIRTY DAYS OF SUCH RETURN THE CHILD CUSTODY ORDER IN EFFECT IMMEDIATELY PRIOR TO ANY MODIFICATIONS THEREOF PURSUANT TO SUBDIVISIONS ONE AND TWO OF THIS SECTION SHALL BE REINSTATED AND BE IN FULL FORCE AND EFFECT.
[Upon the request of either parent, the court shall determine on the basis of the child's best interests whether the custody judgment or order previously in effect should be modified.]EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD07304-02-3 S. 3507--A 2
S 3. Paragraph (a) of subdivision 1 of section 240 of the domestic relations law, as amended by chapter 476 of the laws of 2009, is amended and a new subdivision 1-d is added to read as follows: (a) In any action or proceeding brought (1) to annul a marriage or to declare the nullity of a void marriage, or (2) for a separation, or (3) for a divorce, or (4) to obtain, by a writ of habeas corpus or by peti- tion and order to show cause, the custody of or right to visitation with any child of a marriage, the court shall require verification of the status of any child of the marriage with respect to such child's custody and support, including any prior orders, and shall enter orders for custody and support as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child and subject to the provisions of
[subdivision]SUBDIVISIONS one-c AND ONE-D of this section. Where either party to an action concerning custody of or a right to visitation with a child alleges in a sworn petition or complaint or sworn answer, cross-petition, counterclaim or other sworn responsive pleading that the other party has committed an act of domes- tic violence against the party making the allegation or a family or household member of either party, as such family or household member is defined in article eight of the family court act, and such allegations are proven by a preponderance of the evidence, the court must consider the effect of such domestic violence upon the best interests of the child, together with such other facts and circumstances as the court deems relevant in making a direction pursuant to this section and state on the record how such findings, facts and circumstances factored into the direction. If a parent makes a good faith allegation based on a reasonable belief supported by facts that the child is the victim of child abuse, child neglect, or the effects of domestic violence, and if that parent acts lawfully and in good faith in response to that reason- able belief to protect the child or seek treatment for the child, then that parent shall not be deprived of custody, visitation or contact with the child, or restricted in custody, visitation or contact, based solely on that belief or the reasonable actions taken based on that belief. If an allegation that a child is abused is supported by a preponderance of the evidence, then the court shall consider such evidence of abuse in determining the visitation arrangement that is in the best interest of the child, and the court shall not place a child in the custody of a parent who presents a substantial risk of harm to that child, and shall state on the record how such findings were factored into the determi- nation. An order directing the payment of child support shall contain the social security numbers of the named parties. In all cases there shall be no prima facie right to the custody of the child in either parent. Such direction shall make provision for child support out of the property of either or both parents. The court shall make its award for child support pursuant to subdivision one-b of this section. Such direc- tion may provide for reasonable visitation rights to the maternal and/or paternal grandparents of any child of the parties. Such direction as it applies to rights of visitation with a child remanded or placed in the care of a person, official, agency or institution pursuant to article ten of the family court act, or pursuant to an instrument approved under section three hundred fifty-eight-a of the social services law, shall be enforceable pursuant to part eight of article ten of the family court act and sections three hundred fifty-eight-a and three hundred eighty- four-a of the social services law and other applicable provisions of law against any person having care and custody, or temporary care and custo-S. 3507--A 3
dy, of the child. Notwithstanding any other provision of law, any writ- ten application or motion to the court for the establishment, modifica- tion or enforcement of a child support obligation for persons not in receipt of public assistance and care must contain either a request for child support enforcement services which would authorize the collection of the support obligation by the immediate issuance of an income execution for support enforcement as provided for by this chapter, completed in the manner specified in section one hundred eleven-g of the social services law; or a statement that the applicant has applied for or is in receipt of such services; or a statement that the applicant knows of the availability of such services, has declined them at this time and where support enforcement services pursuant to section one hundred eleven-g of the social services law have been declined that the applicant understands that an income deduction order may be issued pursuant to subdivision (c) of section fifty-two hundred forty-two of the civil practice law and rules without other child support enforcement services and that payment of an administrative fee may be required. The court shall provide a copy of any such request for child support enforcement services to the support collection unit of the appropriate social services district any time it directs payments to be made to such support collection unit. Additionally, the copy of any such request shall be accompanied by the name, address and social security number of the parties; the date and place of the parties' marriage; the name and date of birth of the child or children; and the name and address of the employers and income payors of the party from whom child support is sought or from the party ordered to pay child support to the other party. Such direction may require the payment of a sum or sums of money either directly to the custodial parent or to third persons for goods or services furnished for such child, or for both payments to the custodial parent and to such third persons; provided, however, that unless the party seeking or receiving child support has applied for or is receiving such services, the court shall not direct such payments to be made to the support collection unit, as established in section one hundred eleven-h of the social services law. Every order directing the payment of support shall require that if either parent currently, or at any time in the future, has health insurance benefits available that may be extended or obtained to cover the child, such parent is required to exercise the option of additional coverage in favor of such child and execute and deliver to such person any forms, notices, documents or instruments necessary to assure timely payment of any health insurance claims for such child. 1-D. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, THE COURT SHALL NOT CONSIDER THE PAST OR CURRENT DEPLOYMENT, OR POSSIBLE FUTURE DEPLOYMENT OF A PARENT IN ACTIVE SERVICE OF THE ARMED FORCES OF THE UNITED STATES OR OF THE ORGANIZED MILITIA OF THE STATE AS A DETRI- MENTAL FACTOR TO THE AWARDING OF CUSTODY OF A CHILD TO A PETITIONING PARENT WHERE A SUITABLE CHILD CARE PLAN HAS BEEN PRESENTED TO THE COURT BY SUCH PARENT. S 4. This act shall take effect immediately.