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Family Court Law

Consolidated Laws of NY's FCA code

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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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