LAWS OF NEW YORK, 1998
CHAPTER 150
CRUZ MEMORIAL


EXPLANATION—Matter in italics is new; matter in brackets [ ] is
old law to be omitted.


LAWS OF NEW YORK, 1998
Chapter 150

AN ACT to amend the domestic relations law and the family court act, in
relation to visitation and custody rights of a parent convicted of
murder

Became a law July 7, 1998, with the approval of the Governor. Passed on
message of necessity pursuant to Article III, section 14 of the
Constitution by a majority vote, three-fifths being present.

The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:

Section 1. Section 240 of the domestic relations law is amended by
adding a new subdivision 1-c to read as follows:
1-c. (a) Notwithstanding any other provision of this chapter to the
contrary, no court shall make an order providing for visitation or
custody to a person who has been convicted of murder in the first or
second degree in this state, or convicted or an offense in another
jurisdiction which, if committed in this state, would constitute either
murder in the first or second degree, of a parent, legal custodian or
legal guardian of any child who is the subject of the proceeding. Pend-
ing determination of a petition for visitation or custody, such child
shall not visit and no person shall visit with such child present, such
person who has been convicted of murder in the first or second degree in
this state, or convicted or an offense in another jurisdiction which, if
committed in this state, would constitute either murder in the first or
second degree, of a parent, legal custodian or legal guardian of such
child without the consent of such child's custodian or legal guardian.
(b) Notwithstanding paragraph (a) of this subdivision a court may
order visitation or custody where:
(i) (A) such child is of suitable age to signify assent and such child
assents to such visitation or custody; or
(B) if such child is not of suitable age to signify assent, the
child's custodian or legal guardian assents to such order; or
(C) the person who has been convicted of murder in the first or second
degree, or an offense in another jurisdiction which if committed in this
state, would constitute either murder in the first or second degree, can
prove by a preponderance of the evidence that:
(1) he or she, or a family or household member of either party, was a
victim of domestic violence by the victim of such murder; and
(2) the domestic violence was causally related to the commission of
such murder; and
(ii) the court finds that such visitation or custody is in the best
interests of the child.
(c) For the purposes of making a determination pursuant to clause (C)
of subparagraph (i) of paragraph (b) of this subdivision, the court
shall not be bound by the findings of fact, conclusions of law or ulti-
mate conclusion as determined by the proceedings leading to the
conviction of murder in the first or second degree in this state or of
an offense in another jurisdiction which, if committed in this state,
would constitute murder in either the first or second degree, of such
parent, legal guardian or legal custodian.
§ 2. Subdivision 1 of section 240 of the domestic relations law, as
amended by chapter 398 of the laws of 1997, is amended to read as
follows:
1. 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 one-c 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-peti-
tion, counterclaim or other sworn responsive pleading that the other
party has committed an act of domestic 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. 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 direction 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 appli-
cable provisions of law against any person having care and custody, or
temporary care and custody, of the child. Notwithstanding any other
provision of law, any written application or motion to the court for the
establishment, modification or enforcement of a child support obligation
for persons not in receipt of family assistance 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 chap-
ter, 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 [five thousand two hundred
forty-two ] 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. Such direction shall require that if either parent
currently, or at any time in the future, has health insurance available
through an employer or organization that may be extended to cover the
child, such parent is required to exercise the option of additional
coverage in favor of such child and execute and deliver any forms,
notices, documents or instruments necessary to assure timely payment of
any health insurance claims for such child. Where employer or organiza-
tion health insurance coverage is available, the court shall order the
legally responsible relative immediately to enroll the eligible depen-
dents named in the order who are otherwise eligible for such coverage
without regard to any seasonal enrollment restrictions. Such order
shall further direct the legally responsible relative to maintain such
coverage as long as it remains available to such relative. Upon a find-
ing that a responsible relative wilfully failed to obtain such health
insurance in violation of a court order, such relative will be presump-
tively liable for all medical expenses incurred on behalf of such depen-
dents from the first date such dependent was eligible to be enrolled in
medical insurance coverage after the issuance of the order of support
directing the acquisition of such coverage. In making an order for
employer or organization provided health insurance pursuant to this
section the court shall consider the availability of such insurance to
all parties to the order and direct that either or both parties obtain
such insurance and allocate the costs therefor consistent with obtaining
comprehensive medical insurance for the child at reasonable cost to the
parties. In making such direction, the court shall determine the iden-
tity and nature of any and all group health plans available to each
party for the provision of care or other medical benefits by insurance
or otherwise for the benefit of the child or children for whom support
is sought, and shall identify and include all information necessary to
ensure the order's characterization as a qualified medical child support
order as defined by section six hundred nine of the employee retirement
income security act of 1974 (29 USC 1169). Such order shall: (i) clear-
ly state that it creates or recognizes the existence of the right of the
named dependent to be enrolled and to receive benefits for which the
legally responsible relative is eligible under the available group
health plans, and shall clearly specify the name, social security number
and mailing address of the legally responsible relative, the alternate
recipient and of each dependent to be covered by the order; (ii) provide
a clear description of the type of coverage to be provided by the group
health plan to each such dependent or the manner in which the type of
coverage is to be determined; and (iii) specify the period of time to
which the qualified order applies and the identity of each group health
plan to which the qualified order applies. The court shall not require
the group health plan to provide any type or form of benefit or option
not otherwise provided under the group health plan except to the extent
necessary to meet the requirements of a law relating to medical child
support described in section one thousand three hundred and ninety-six g
of title forty-two of the United States code. The court's issuance of a
qualified medical child support order shall be made separately from the
order of support. The order shall be effective as of the date of the
application therefor, and any retroactive amount of child support due
shall be support arrears/past due support and shall, except as provided
for herein, be paid in one lump sum or periodic sums, as the court shall
direct, taking into account any amount of temporary support which has
been paid. In addition, such retroactive child support shall be
enforceable in any manner provided by law including, but not limited to,
an execution for support enforcement pursuant to subdivision (b) of
section fifty-two hundred forty-one of the civil practice law and rules.
When a child receiving support is a public assistance recipient, or the
order of support is being enforced or is to be enforced pursuant to
section one hundred eleven-g of the social services law, the court shall
establish the amount of retroactive child support and notify the parties
that such amount shall be enforced by the support collection unit pursu-
ant to an execution for support enforcement as provided for in subdivi-
sion (b) of section fifty-two hundred forty-one of the civil practice
law and rules, or in such periodic payments as would have been author-
ized had such an execution been issued. In such case, the courts shall
not direct the schedule of repayment of retroactive support. Where such
direction is for child support and paternity has been established by a
voluntary acknowledgement of paternity as defined in section forty-one
hundred thirty-five-b of the public health law, the court shall inquire
of the parties whether the acknowledgement has been duly filed, and
unless satisfied that it has been so filed shall require the clerk of
the court to file such acknowledgement with the appropriate registrar
within five business days. Such direction may be made in the final judg-
ment in such action or proceeding, or by one or more orders from time to
time before or subsequent to final judgment, or by both such order or
orders and the final judgment. Such direction may be made notwithstand-
ing that the court for any reason whatsoever, other than lack of juris-
diction, refuses to grant the relief requested in the action or proceed-
ing. Any order or judgment made as in this section provided may combine
in one lump sum any amount payable to the custodial parent under this
section with any amount payable to such parent under section two hundred
thirty-six of this [chapter ] article. Upon the application of either
parent, or of any other person or party having the care, custody and
control of such child pursuant to such judgment or order, after such
notice to the other party, parties or persons having such care, custody
and control and given in such manner as the court shall direct, the
court may annul or modify any such direction, whether made by order or
final judgment, or in case no such direction shall have been made in the
final judgment may, with respect to any judgment of annulment or declar-
ing the nullity of a void marriage rendered on or after September first,
nineteen hundred forty, or any judgment of separation or divorce whenev-
er rendered, amend the judgment by inserting such direction. Subject to
the provisions of section two hundred forty-four of this article, no
such modification or annulment shall reduce or annul arrears accrued
prior to the making of such application unless the defaulting party
shows good cause for failure to make application for relief from the
judgment or order directing such payment prior to the accrual of such
arrears. Such modification may increase such child support nunc pro tunc
as of the date of application based on newly discovered evidence. Any
retroactive amount of child support due shall be support arrears/past
due support and shall be paid in one lump sum or periodic sums, as the
court shall direct, taking into account any amount of temporary child
support which has been paid. In addition, such retroactive child support
shall be enforceable in any manner provided by law including, but not
limited to, an execution for support enforcement pursuant to subdivision
(b) of section fifty-two hundred forty-one of the civil practice law and
rules.
§ 3. The family court act is amended by adding a new section 1085 to
read as follows:
§ 1085. Visitation and custody rights unenforceable; murder of parent,
custodian or guardian. 1. No visitation or custody order shall be
enforceable under this part by a person who has been convicted of murder
in the first or second degree in this state, or convicted of an offense
in another jurisdiction which, if committed in this state, would consti-
tute either murder in the first or second degree, of a parent, legal
custodian or legal guardian of the child unless:
(i) (A) such child is of suitable age to signify assent and such child
assents to such visitation or custody; or
(B) if such child is not of suitable age to signify assent the child's
custodian or legal guardian assents to such order; or
(C) the person who has been convicted of murder in the first or second
degree, or an offense in another jurisdiction which if committed in this
state, would constitute either murder in the first or second degree, can
prove by a preponderance of the evidence that:
(1) he or she, or a family or household member of either party, was a
victim of domestic violence by the victim of such murder; and
(2) the domestic violence was causally related to the commission of
such murder; and
(ii) the court finds that such visitation or custody is in the best
interests of the child.
2. Pending determination of a petition for visitation or custody such
child shall not visit and no person shall visit, with such child pres-
ent, such person, legal guardian or legal custodian who has been
convicted of murder in the first or second degree in this state, or an
offense in another jurisdiction which, if committed in this state, would
constitute either murder in the first or second degree, of the other
parent, legal guardian or legal custodian of such child, without the
consent of such child's custodian or legal guardian.
3. Nothing contained in this section shall be construed to require a
court, without petition from any of the interested parties, to review a
previously issued order of visitation or custody or denial of such peti-
tion.
§ 4. This act shall take effect immediately.

The Legislature of the STATE OF NEW YORK ss:
Pursuant to the authority vested in us by section 70-b of the Public
Officers Law, we hereby jointly certify that this slip copy of this
session law was printed under our direction and, in accordance with such
section, is entitled to be read into evidence.

 

JOSEPH L. BRUNO SHELDON SILVER
Temporary President of the Senate Speaker of the Assembly