New York Law
Family Court Laws
Consolidated Laws of New York
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Article 6 - Part 3 - Family Court
CUSTODY
Section |
Description |
651 |
Jurisdiction over habeas corpus proceedings and petitions for custody and visitation of minors. |
651-A |
Reports of child abuse and maltreatment; admissibility. |
652 |
Jurisdiction over applications to fix custody in matrimonial actions on referral from supreme court. |
653 |
Rules of court. |
655 |
Temporary order of protection. |
656 |
Order of protection. |
656-A |
Firearms; surrender and license suspension, revocation and ineligibility. |
657 |
Certain provisions relating to the guardianship and custody of children by persons who are not the parents of such children. |
S 651. Jurisdiction over habeas corpus proceedings and petitions for
custody and visitation of minors. (a) When referred from the supreme
court or county court to the family court, the family court has
jurisdiction to determine, in accordance with subdivision one of section
two hundred forty of the domestic relations law and with the same powers
possessed by the supreme court in addition to its own powers, habeas
corpus proceedings and proceedings brought by petition and order to show
cause, for the determination of the custody or visitation of minors.
(b) When initiated in the family court, the family court has
jurisdiction to determine, in accordance with subdivision one of section
two hundred forty of the domestic relations law and with the same powers
possessed by the supreme court in addition to its own powers, habeas
corpus proceedings and proceedings brought by petition and order to show
cause, for the determination of the custody or visitation of minors,
including applications by a grandparent or grandparents for visitation
or custody rights pursuant to section seventy-two or two hundred forty
of the domestic relations law.
(c) When initiated in the family court pursuant to a petition under
part eight of article ten of this act or section three hundred
fifty-eight-a of the social services law, the family court has
jurisdiction to enforce or modify orders or judgments of the supreme
court relating to the visitation of minors in foster care,
notwithstanding any limitation contained in subdivision (b) of section
four hundred sixty-seven of this act.
(d) With respect to applications by a grandparent or grandparents for
visitation or custody rights, made pursuant to section seventy-two or
two hundred forty of the domestic relations law, with a child remanded
or placed in the care of a person, official, agency or institution
pursuant to the provisions of article ten of this act, the applicant, in
such manner as the court shall prescribe, shall serve a copy of the
application upon the social services official having care and custody of
such child, and the child's attorney, who shall be afforded an
opportunity to be heard thereon.
(e) 1. Permanent and initial temporary orders of custody or
visitation. Prior to the issuance of any permanent or initial temporary
order of custody or visitation, the court shall conduct a review of the
decisions and reports listed in paragraph three of this subdivision.
2. Successive temporary orders of custody or visitation. Prior to the
issuance of any successive temporary order of custody or visitation, the
court shall conduct a review of the decisions and reports listed in
paragraph three of this subdivision, unless such a review has been
conducted within ninety days prior to the issuance of such order.
3. Decisions and reports for review. The court shall conduct a review
of the following:
(i) related decisions in court proceedings initiated pursuant to
article ten of this act, and all warrants issued under this act; and
(ii) reports of the statewide computerized registry of orders of
protection established and maintained pursuant to section two hundred
twenty-one-a of the executive law, and reports of the sex offender
registry established and maintained pursuant to section one hundred
sixty-eight-b of the correction law.
4. Notifying counsel and issuing orders. Upon consideration of
decisions pursuant to article ten of this act, and registry reports and
notifying counsel involved in the proceeding, or in the event of a
self-represented party, notifying such party of the results thereof,
including any court appointed attorney for children, the court may issue
a temporary, successive temporary or final order of custody or
visitation.
5. Temporary emergency order. Notwithstanding any other provision of
the law, upon emergency situations, including computer malfunctions, to
serve the best interest of the child, the court may issue a temporary
emergency order for custody or visitation in the event that it is not
possible to timely review decisions and reports on registries as
required pursuant to paragraph three of this subdivision.
6. After issuing a temporary emergency order. After issuing a
temporary emergency order of custody or visitation, the court shall
conduct reviews of the decisions and reports on registries as required
pursuant to paragraph three of this subdivision within twenty-four hours
of the issuance of such temporary emergency order. Should such
twenty-four hour period fall on a day when court is not in session, then
the required reviews shall take place the next day the court is in
session. Upon reviewing decisions and reports the court shall notify
associated counsel, self-represented parties and attorneys for children
pursuant to paragraph four of this subdivision and may issue temporary
or permanent custody or visitation orders.
7. Feasibility study. The commissioner of the office of children and
family services, in conjunction with the office of court administration,
is hereby authorized and directed to examine, study, evaluate and make
recommendations concerning the feasibility of the utilization of
computers in family courts which are connected to the statewide central
register of child abuse and maltreatment established and maintained
pursuant to section four hundred twenty-two of the social services law,
as a means of providing family courts with information regarding parties
requesting orders of custody or visitation. Such commissioner shall make
a preliminary report to the governor and the legislature of findings,
conclusions and recommendations not later than January thirty-first, two
thousand nine, and a final report of findings, conclusions and
recommendations not later than June first, two thousand nine, and shall
submit with the reports such legislative proposals as are deemed
necessary to implement the commissioner's recommendations.
(f) Military service by parent; effect on child custody orders. 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 primary caretaker of a minor
child is materially affected by such military service, any orders issued
pursuant to this section, based on the fact that the parent is
activated, deployed or temporarily assigned to military service, which
would materially 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 order to modify custody
if there is clear and convincing evidence that the modification is in
the best interests of the child. An attorney for the child shall be
appointed in all cases where a modification is sought during such
military service. Such order shall be subject to review pursuant to
paragraph three of this subdivision. When entering an 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 order
is issued pursuant to this subdivision, 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 subdivision shall not apply to assignments to permanent duty
stations or permanent changes of station.
S 651a. Reports of child abuse and maltreatment; admissibility. In
any proceeding brought pursuant to this section to determine the custody
or visitation of minors, a report made to the statewide central register
of child abuse and maltreatment, pursuant to title six of article six of
the social services law, or a portion thereof, which is otherwise
admissible as a business record pursuant to rule forty-five hundred
eighteen of the civil practice law and rules shall not be admissible in
evidence, notwithstanding such rule, unless an investigation of such
report conducted pursuant to title six of article six of the social
services law has determined that there is some credible evidence of the
alleged abuse or maltreatment, that the subject of the report has been
notified that the report is indicated. In addition, if such report has
been reviewed by the state commissioner of social services or his
designee and has been determined to be unfounded, it shall not be
admissible in evidence. If such report has been so reviewed and has been
amended to delete any finding, each such deleted finding shall not be
admissible. If the state commissioner of social services or his designee
has amended the report to add any new finding, each such new finding,
together with any portion of the original report not deleted by the
commissioner or his designee, shall be admissible if it meets the other
requirements of this section and is otherwise admissible as a business
record. If such a report, or portion thereof, is admissible in evidence
but is uncorroborated, it shall not be sufficient to make a fact finding
of abuse or maltreatment in such proceeding. Any other evidence tending
to support the reliability of such report shall be sufficient
corroboration.
S 652. Jurisdiction over applications to fix custody in matrimonial
actions on referral from supreme court. (a) When referred from the
supreme court to the family court, the family court has jurisdiction to
determine, with the same powers possessed by the supreme court,
applications to fix temporary or permanent custody and applications to
modify judgments and orders of custody or visitation in actions and
proceedings for marital separation, divorce, annulment of marriage and
dissolution of marriage. Applications to modify judgments and orders of
custody may be granted by the family court under this section only upon
the showing to the family court that there has been a subsequent change
of circumstances and that modification is required.
(b) In the event no such referral has been made and unless the supreme
court provides in the order or judgment awarding custody or visitation
in an action for divorce, separation or annulment, that it may be
enforced or modified only in the supreme court, the family court may:
(i) determine an application to enforce the order or judgment awarding
custody or visitation, or (ii) determine an application to modify the
order or judgment awarding custody or visitation upon a showing that
there has been a subsequent change of circumstances and modification is
required.
(c) In any determination of an application pursuant to this section,
the family court shall have jurisdiction to determine such applications,
in accordance with subdivision one of section two hundred forty of the
domestic relations law, with the same powers possessed by the supreme
court, and the family court's disposition of any such application is an
order of the family court appealable only under article eleven of this
act.
S 653. Rules of court. Rules of court, not inconsistent with any law,
may authorize the probation service to interview such persons and obtain
such data as will aid the court in determining a habeas corpus or
custody proceeding under section six hundred fifty-one.
S 655. Temporary order of protection. (a) Upon the filing of a
petition or counter-claim under this article, the court for good cause
shown may issue a temporary order of protection which may contain any of
the provisions authorized on the making of an order of protection under
section six hundred fifty-six of this article.
(b) A temporary order of protection is not a finding of wrongdoing.
(c) The court may issue or extend a temporary order of protection ex
parte or on notice simultaneously with the issuance of a warrant
directing that the respondent be arrested and brought before the court
pursuant to section six hundred seventy-one of this article.
(d) The court shall not require anyone seeking a temporary order of
protection under this section to first request that child protective
services investigate the allegations or to first request permission to
file a petition under article ten of this act.
Notwithstanding the foregoing provisions, an order of protection, or
temporary order of protection where applicable, may be entered against a
former spouse and persons who have a child in common, regardless of
whether such persons have been married or have lived together at any
time, or against a member of the same family or household as defined in
subdivision one of section eight hundred twelve of this act.
S 656. Order of protection. The court may make an order of protection
and an order of probation in assistance or as a condition of any other
order made under this part. The order of protection may set forth
reasonable conditions of behavior to be observed for a specific time by
any petitioner or any respondent, and shall specify if an order of
probation is in effect. No order of protection may direct any party to
observe conditions of behavior unless the party requesting the order of
protection has served and filed a petition or counter-claim in
accordance with section one hundred fifty-four-b of this act. Such an
order may require the petitioner or the respondent:
(a) to stay away from the home, school, business or place of
employment of any other party, the other spouse or parent, or the child,
and to stay away from any other specific location designated by the
court;
(b) to permit a parent, or a person entitled to visitation by a court
order or a separation agreement, to visit the child at stated periods;
(c) to refrain from committing a family offense, as defined in
subdivision one of section eight hundred twelve of this act, or any
criminal offense against the child or against the other parent or
against any person to whom custody of the child is awarded, or from
harassing, intimidating or threatening such persons;
(d) to permit a designated party to enter the residence during a
specified period of time in order to remove personal belongings not in
issue in this proceeding or in any other proceeding or action under this
act or the domestic relations law;
(e) to refrain from acts of commission or omission that create an
unreasonable risk to the health, safety or welfare of a child;
(f) to participate in an educational program and to pay the costs
thereof if the person has the means to do so, provided however that
nothing contained herein shall be deemed to require payment of the costs
of any such program by the state or any political subdivision thereof;
(g) to provide, either directly or by means of medical and health
insurance, for expenses incurred for medical care and treatment arising
from the incident or incidents forming the basis for the issuance of the
order;
(h) to pay the reasonable counsel fees and disbursements involved in
obtaining or enforcing the order of the person who is protected by such
order if such order is issued or enforced;
(i) 1. to refrain from intentionally injuring or killing, without
justification, any companion animal the respondent knows to be owned,
possessed, leased, kept or held by the petitioner or a minor child
residing in the household.
2. "Companion animal", as used in this section, shall have the same
meaning as in subdivision five of section three hundred fifty of the
agriculture and markets law;
(j) 1. to promptly return specified identification documents to the
protected party, in whose favor the order of protection or temporary
order of protection is issued; provided, however, that such order may:
(A) include any appropriate provision designed to ensure that any such
document is available for use as evidence in this proceeding, and
available if necessary for legitimate use by the party against whom such
order is issued; and (B) specify the manner in which such return shall
be accomplished.
2. For purposes of this subdivision, "identification document" shall
mean any of the following: (A) exclusively in the name of the protected
party: birth certificate, passport, social security card, health
insurance or other benefits card, a card or document used to access
bank, credit or other financial accounts or records, tax returns, any
driver's license, and immigration documents including but not limited to
a United States permanent resident card and employment authorization
document; and (B) upon motion and after notice and an opportunity to be
heard, any of the following, including those that may reflect joint use
or ownership, that the court determines are necessary and are
appropriately transferred to the protected party: any card or document
used to access bank, credit or other financial accounts or records, tax
returns, and any other identifying cards and documents; and
(k) to observe such other conditions as are necessary to further the
purposes of protection.
The court shall not require anyone seeking an order of protection
under this section to first request that child protective services
investigate the allegations or to first request permission to file a
petition under article ten of this act.
Notwithstanding the foregoing provisions, an order of protection, or
temporary order of protection where applicable, may be entered against a
former spouse and persons who have a child in common, regardless of
whether such persons have been married or have lived together at any
time, or against a member of the same family or household as defined in
subdivision one of section eight hundred twelve of this act.
In addition to the foregoing provisions, the court may issue an order,
pursuant to section two hundred twenty-seven-c of the real property law,
authorizing the party for whose benefit any order of protection has been
issued to terminate a lease or rental agreement pursuant to section two
hundred twenty-seven-c of the real property law.
In any proceeding pursuant to this article, a court shall not deny an
order of protection, or dismiss an application for such an order, solely
on the basis that the acts or events alleged are not relatively
contemporaneous with the date of the application or the conclusion of
the action. The duration of any temporary order shall not by itself be a
factor in determining the length or issuance of any final order.
The protected party in whose favor the order of protection or
temporary order of protection is issued may not be held to violate an
order issued in his or her favor nor may such protected party be
arrested for violating such order.
S 656a. Firearms; surrender and license suspension, revocation and
ineligibility. Upon the issuance of an order of protection or temporary
order of protection, or upon a violation of such order, the court shall
make a determination regarding the suspension and revocation of a
license to carry, possess, repair or dispose of a firearm or firearms,
ineligibility for such a license and the surrender of firearms in
accordance with section eight hundred forty-two-a of this act.
S 657. Certain provisions relating to the guardianship and custody of
children by persons who are not the parents of such children. (a)
Notwithstanding any provision of the law to the contrary, a person
possessing a lawful order of guardianship or custody of a minor child,
who is not the parent of such child, may enroll such child in public
school in the applicable school district where he or she and such child
reside. Upon application for enrollment of a minor child by a guardian
or custodian who is not the parent of such child, a public school shall
enroll such child for such time as the child resides with the guardian
or custodian in the applicable school district, upon verification that
the guardian or custodian possess a lawful order of guardianship or
custody for such child and that the guardian or custodian and the child
properly reside in the same household within the school district.
(b) Notwithstanding any provision of law to the contrary, persons
possessing a lawful order of custody of a child who are not a parent of
such child shall have the same right to enroll and receive coverage for
such child in their employer based health insurance plan and to assert
the same legal rights under such employer based health insurance plans
as persons who possess lawful orders of guardianship of the person for a
child pursuant to rule twelve hundred ten of the civil practice laws and
rules, article seventeen of the surrogate's court procedure act, or part
4 of this article.
(c) Notwithstanding any other provision of law to the contrary,
persons possessing a lawful order of guardianship of a child shall have
the right and responsibility to make decisions, including issuing any
necessary consents, regarding the child's protection, education, care
and control, health and medical needs, and the physical custody of the
person of the child. Provided, however, that nothing in this subdivision
shall be construed to limit the ability of a child to consent to his or
her own medical care as may be otherwise provided by law.
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