Bill S7533-2011

Relates to orders of custody involving a parent activated, deployed or temporarily assigned to military service

Relates to orders of custody involving a parent activated, deployed or temporarily assigned to the military service.

Details

Actions

  • Jun 13, 2012: referred to judiciary
  • Jun 13, 2012: DELIVERED TO ASSEMBLY
  • Jun 13, 2012: PASSED SENATE
  • Jun 13, 2012: ORDERED TO THIRD READING CAL.1216
  • Jun 13, 2012: COMMITTEE DISCHARGED AND COMMITTED TO RULES
  • May 31, 2012: REFERRED TO CHILDREN AND FAMILIES

Meetings

Votes

VOTE: COMMITTEE VOTE: - Rules - Jun 13, 2012
Ayes (23): Skelos, Alesi, Farley, Fuschillo, Hannon, Johnson, Larkin, LaValle, Libous, Marcellino, Maziarz, Nozzolio, Saland, Seward, Sampson, Breslin, Dilan, Duane, Hassell-Thompson, Montgomery, Parker, Smith, Stewart-Cousins
Ayes W/R (1): Perkins
Excused (1): Krueger

Memo

BILL NUMBER:S7533

TITLE OF BILL:

An act to amend the domestic relations law and the family court act, in relation to orders of custody involving a parent activated, deployed or temporarily assigned to military service

PURPOSE OF BILL:

The purpose of this bill is to mandate that all custody orders that are issued as a result of a custodial parent's military service be temporary, and would automatically expire ten days after the parent returns.

SUMMARY OF PROVISIONS:

Section 1 of the bill would amend Domestic Relations Law ("DRL") §75-1 to authorize the Family Court to issue only a temporary order of custody to a non-custodial parent when the custodial military parent receives mobilization or deployment orders. The temporary Family Court order would end no later than 10 days after the parent's return from ordered military service and the original order of custody to the custodial military parent would be reinstated. The mobilization or deployment of a reserve component service member could not be a factor in determining a change in circumstances if a petition is filed to transfer custody away from the military parent.

Section 2 of the bill would amend DRL §240 (a-2) to make conforming changes to those amendments made in section 1 of the bill.

Section 3 of the bill would amend Family Court Act ("FCA") § 651 (f) to make conforming changes to those amendments made in section] of the bill.

Section 4 of the bill provides for an effective date of 30 days after enactment

EXISTING LAW:

Under existing law, permanent custody orders are issued to the non-military parent upon mobilization of the custodial military parent, thereby forcing returning service members to petition to have their pre-deployment parental rights restored. Under DRL § 75-1, when a custodial parent who is a member of the reserve component of the armed forces is called to active duty, the non-custodial parent, upon petition, may receive a permanent order of custody. The law, in effect, terminates the military parent's custodial rights and privileges based solely on military service. Though the existing law provides that the service member's return from active duty automatically constitutes a "substantial change in circumstance" that would allow either parent to obtain standing to

request reconsideration of a prior custody or visitation order, this nonetheless places a significant financial and emotional burden.

PRIOR LEGISLATIVE HISTORY:

This is a new bill. As background, a law was passed in 2008 requiring that all custody orders made because of military service be temporary. Upon the service member's return, and upon a request by either parent, there was a hearing to determine whether there was a change of circumstances such that the original custody order should be changed. This was prompted by reports that custodial parents were losing custody of their children while they were deployed.

In 2009, upon recommendation by the Chief Administrative Judge and Office of Court Administration, the law was changed to its current state which permits permanent orders, but allows for either parent to petition to change the order, thus placing the burden on the returning parent to change the order.

STATEMENT IN SUPPORT:

The United States Department of Defense cites child custody issues for mobilized reservists as one of the top quality of life issues for members of the Armed Forces of the United States. Currently 16 states, excluding New York, have child custody laws that meet the Department of Defense's desired level of protection in child custody cases.

Experience in the New York National Guard indicates that often, when a custodial parent service member is called away on active duty, the other biological parent seeks custody of the child. The proceeding frequently occurs soon after the service member leaves the country on deployment. Ultimately, the law places the financial and emotional burden on the returning veteran to petition to have their pre-deployment parental rights restored.

There is pending federal legislation that would accomplish similar ends and preempt state law which has passed the House and is supported by the Department of Defense.

BUDGET IMPLICATIONS:

None.

EFFECTIVE DATE:

The bill would take effect 30 days after enactment.


Text

STATE OF NEW YORK ________________________________________________________________________ 7533 IN SENATE May 31, 2012 ___________
Introduced by Sen. RANZENHOFER -- (at request of the Division of Mili- tary & Naval Affairs) -- 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 orders of custody involving a parent activated, deployed or temporarily assigned to military service THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 75-l of the domestic relations law, as amended by chapter 473 of the laws of 2009, is amended to read as follows. S 75-l. Military service by parent; effect on child custody orders [pursuant to this article]. 1. During the period of time that a parent is activated, deployed or temporarily assigned to military service, such that the parent's ability to continue as a joint caretaker or the prima- ry caretaker of a minor child is materially affected by such military service, A COURT SHALL BE PROHIBITED FROM ISSUING any PERMANENT orders, [issued pursuant to this article] MODIFICATIONS OR AMENDMENTS based on the fact that the parent is activated, deployed or temporarily assigned to military service, which would [materially] IN ANY WAY affect or change a previous judgment or order regarding custody of that parent's child or children as such judgment or order existed on the date the parent was activated, deployed, or temporarily assigned to military service [shall be subject to review pursuant to subdivision three of this section]. Any relevant provisions of the Service Member's Civil Relief Act shall apply to all proceedings governed by this section. 2. During such period the court may enter [an] A TEMPORARY order to modify OR AMEND custody if there is clear and convincing evidence that the TEMPORARY modification OR AMENDMENT is in the best interests of the child. An attorney for the child shall be appointed in all cases where a TEMPORARY modification is sought during such military service. [Such order shall be subject to review pursuant to subdivision three of this section.] When entering [an] A TEMPORARY order under this section, the court shall consider and provide for, if feasible and if in the best interests of the child, contact between the military service member and
his or her child including, but not limited to, electronic communication by e-mail, webcam, telephone, or other available means. During the period of the parent's leave from military service, the court shall consider the best interests of the child when establishing a parenting schedule, including visiting and other contact. For such purpose, a "leave from service" shall be a period of not more than three months. 3. [Unless the parties have otherwise stipulated or agreed, if an] IF A TEMPORARY order is issued under this section, IT SHALL EXPIRE WITHIN TEN DAYS AFTER the return of the parent from active military service, deployment or temporary assignment [shall be considered a substantial change in circumstances. 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]. 4. This section shall not apply to assignments to permanent duty stations or permanent changes of station. S 2. Paragraph (a-2) of subdivision 1 of section 240 of the domestic relations law, as added by chapter 473 of the laws of 2009, is amended to read as follows: (a-2) Military service by parent; effect on child custody orders. (1) During the period of time that a parent is activated, deployed or tempo- rarily assigned to military service, such that the parent's ability to continue as a joint caretaker or the primary caretaker of a minor child is materially affected by such military service, A COURT SHALL BE PROHIBITED FROM ISSUING any PERMANENT orders, [issued pursuant to this section] MODIFICATIONS OR AMENDMENTS based on the fact that the parent is activated, deployed or temporarily assigned to military service, which would [materially] IN ANY WAY affect or change a previous judgment or order regarding custody of that parent's child or children as such judgment or order existed on the date the parent was activated, deployed, or temporarily assigned to military service[, shall be subject to review pursuant to subparagraph three of this paragraph]. Any rele- vant provisions of the Service Member's Civil Relief Act shall apply to all proceedings governed by this section. (2) During such period, the court may enter [an] A TEMPORARY order to modify OR AMEND custody if there is clear and convincing evidence that the TEMPORARY modification OR AMENDMENT is in the best interests of the child. An attorney for the child shall be appointed in all cases where a TEMPORARY modification is sought during such military service. [Such order shall be subject to review pursuant to subparagraph three of this paragraph.] When entering [an] A TEMPORARY order pursuant to this section, the court shall consider and provide for, if feasible and if in the best interests of the child, contact between the military service member and his or her child, including, but not limited to, electronic communication by e-mail, webcam, telephone, or other available means. During the period of the parent's leave from military service, the court shall consider the best interests of the child when establishing a parenting schedule, including visiting and other contact. For such purposes, a "leave from military service" shall be a period of not more than three months. (3) [Unless the parties have otherwise stipulated or agreed, if an] IF A TEMPORARY order is issued pursuant to this paragraph, IT SHALL EXPIRE WITHIN TEN DAYS AFTER the return of the parent from active military service, deployment or temporary assignment [shall be considered a substantial change in circumstances. 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]
. (4) This paragraph shall not apply to assignments to permanent duty stations or permanent changes of station. S 3. Subdivision (f) of section 651 of the family court act, as added by chapter 473 of the laws of 2009, is amended to read as follows: (f) Military service by parent; effect on child custody orders. 1. During the period of time that a parent is activated, deployed or tempo- rarily assigned to military service, such that the parent's ability to continue as a joint caretaker or the primary caretaker of a minor child is materially affected by such military service, A COURT SHALL BE PROHIBITED FROM ISSUING any PERMANENT orders, [issued pursuant to this section] MODIFICATIONS OR AMENDMENTS based on the fact that the parent is activated, deployed or temporarily assigned to military service, which would [materially] IN ANY WAY affect or change a previous judgment or order regarding custody of that parent's child or children as such judgment or order existed on the date the parent was activated, deployed, or temporarily assigned to military service[, shall be subject to review pursuant to paragraph three of this subdivision]. Any relevant provisions of the Service Member's Civil Relief Act shall apply to all proceedings governed by this section. 2. During such period, the court may enter [an] A TEMPORARY order to modify OR AMEND custody if there is clear and convincing evidence that the TEMPORARY modification OR AMENDMENT is in the best interests of the child. An attorney for the child shall be appointed in all cases where a TEMPORARY modification is sought during such military service. [Such order shall be subject to review pursuant to paragraph three of this subdivision.] When entering [an] A TEMPORARY order pursuant to this section, the court shall consider and provide for, if feasible and if in the best interests of the child, contact between the military service member and his or her child including, but not limited to, electronic communication by e-mail, webcam, telephone, or other available means. During the period of the parent's leave from military service, the court shall consider the best interests of the child when establishing a parenting schedule, including visiting and other contact. For such purpose, a "leave from military service" shall be a period of not more than three months. 3. [Unless the parties have otherwise stipulated or agreed, if an] IF A TEMPORARY order is issued pursuant to this subdivision, IT SHALL EXPIRE WITHIN TEN DAYS AFTER the return of the parent from active mili- tary service, deployment or temporary assignment [shall be considered a substantial change in circumstances. 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]. 4. This subdivision shall not apply to assignments to permanent duty stations or permanent changes of station. S 4. This act shall take effect on the thirtieth day after it shall become law.

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