There is a newer version of the New York Consolidated Laws
2013 New York Consolidated Laws
DOM - Domestic Relations
Article 13 - (230 - 255) PROVISIONS APPLICABLE TO MORE THAN ONE TYPE OF MATRIMONIAL ACTION
240 - Custody and child support; orders of protection.
NY Dom Rel L § 240 (2012) What's This?
§ 240. Custody and child support; orders of protection. 1. (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 petition 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-petition,
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 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 reasonable 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 determination. 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 applicable 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 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.
(a-1)(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 subparagraph three of this paragraph.
(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
subparagraph three of this paragraph, 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 the family court act, and all warrants issued under the
family court 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 the family court 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 subparagraph three of this paragraph.
(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 subparagraph three of this paragraph 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 subparagraph four of this paragraph 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 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 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 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.
(a-2) 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
subparagraph three of this paragraph. 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
subparagraph three of this paragraph. 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 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
order is issued pursuant to this paragraph, 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.
(b) As used in this section, the following terms shall have the
following meanings:
(1) "Health insurance benefits" means any medical, dental, optical and
prescription drugs and health care services or other health care
benefits that may be provided for a dependent through an employer or
organization, including such employers or organizations which are self
insured, or through other available health insurance or health care
coverage plans.
(2) "Available health insurance benefits" means any health insurance
benefits that are reasonable in cost and that are reasonably accessible
to the person on whose behalf the petition is brought. Health insurance
benefits that are not reasonable in cost or whose services are not
reasonably accessible to such person, shall be considered unavailable.
(3) When the person on whose behalf the petition is brought is a child
in accordance with paragraph (c) of this subdivision, health insurance
benefits shall be considered "reasonable in cost" if the cost of health
insurance benefits does not exceed five percent of the combined parental
gross income. The cost of health insurance benefits shall refer to the
cost of the premium and deductible attributable to adding the child or
children to existing coverage or the difference between such costs for
self-only and family coverage. Provided, however, the presumption that
the health insurance benefits are reasonable in cost may be rebutted
upon a finding that the cost is unjust or inappropriate which finding
shall be based on the circumstances of the case, the cost and
comprehensiveness of the health insurance benefits for which the child
or children may otherwise be eligible, and the best interests of the
child or children. In no instance shall health insurance benefits be
considered "reasonable in cost" if a parent's share of the cost of
extending such coverage would reduce the income of that parent below the
self-support reserve. Health insurance benefits are "reasonably
accessible" if the child lives within the geographic area covered by the
plan or lives within thirty minutes or thirty miles of travel time from
the child's residence to the services covered by the health insurance
benefits or through benefits provided under a reciprocal agreement;
provided, however, this presumption may be rebutted for good cause shown
including, but not limited to, the special health needs of the child.
The court shall set forth such finding and the reasons therefor in the
order of support.
(c) When the person on whose behalf the petition is brought is a
child, the court shall consider the availability of health insurance
benefits to all parties and shall take the following action to ensure
that health insurance benefits are provided for the benefit of the
child:
(1) Where the child is presently covered by health insurance benefits,
the court shall direct in the order of support that such coverage be
maintained, unless either parent requests the court to make a direction
for health insurance benefits coverage pursuant to paragraph two of this
subdivision.
(2) Where the child is not presently covered by health insurance
benefits, the court shall make a determination as follows:
(i) If only one parent has available health insurance benefits, the
court shall direct in the order of support that such parent provide
health insurance benefits.
(ii) If both parents have available health insurance benefits the
court shall direct in the order of support that either parent or both
parents provide such health insurance. The court shall make such
determination based on the circumstances of the case, including, but not
limited to, the cost and comprehensiveness of the respective health
insurance benefits and the best interests of the child.
(iii) If neither parent has available health insurance benefits, the
court shall direct in the order of support that the custodial parent
apply for the state's child health insurance plan pursuant to title
one-A of article twenty-five of the public health law and the medical
assistance program established pursuant to title eleven of article five
of the social services law. A direction issued under this subdivision
shall not limit or alter either parent's obligation to obtain health
insurance benefits at such time as they become available, as required
pursuant to paragraph (a) of this subdivision. Nothing in this
subdivision shall alter or limit the authority of the medical assistance
program to determine when it is considered cost effective to require a
custodial parent to enroll a child in an available group health
insurance plan pursuant to paragraphs (b) and (c) of subdivision one of
section three hundred sixty-seven-a of the social services law.
(d) The cost of providing health insurance benefits or benefits under
the state's child health insurance plan or the medical assistance
program, pursuant to paragraph (c) of this subdivision, shall be deemed
cash medical support, and the court shall determine the obligation of
either or both parents to contribute to the cost thereof pursuant to
subparagraph five of paragraph (c) of subdivision one-b of this section.
(e) The court shall provide in the order of support that the legally
responsible relative immediately notify the other party, or the other
party and the support collection unit when the order is issued on behalf
of a child in receipt of public assistance and care or in receipt of
services pursuant to section one hundred eleven-g of the social services
law, of any change in health insurance benefits, including any
termination of benefits, change in the health insurance benefit carrier,
premium, or extent and availability of existing or new benefits.
(f) Where the court determines that health insurance benefits are
available, the court shall provide in the order of support that the
legally responsible relative immediately enroll the eligible dependents
named in the order who are otherwise eligible for such benefits without
regard to any seasonal enrollment restrictions. Such order shall further
direct the legally responsible relative to maintain such benefits as
long as they remain available to such relative. Such order shall further
direct the legally responsible relative to assign all insurance
reimbursement payments for health care expenses incurred for his or her
eligible dependents to the provider of such services or the party
actually having incurred and satisfied such expenses, as appropriate.
(g) When the court issues an order of child support or combined child
and spousal support on behalf of persons in receipt of public assistance
and care or in receipt of services pursuant to section one hundred
eleven-g of the social services law, such order shall further direct
that the provision of health care benefits shall be immediately enforced
pursuant to section fifty-two hundred forty-one of the civil practice
law and rules.
(h) When the court issues an order of child support or combined child
and spousal support on behalf of persons other than those in receipt of
public assistance and care or in receipt of services pursuant to section
one hundred eleven-g of the social services law, the court shall also
issue a separate order which shall include the necessary direction 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) clearly
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, 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 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.
(i) Upon a finding that a legally responsible relative wilfully failed
to obtain health insurance benefits in violation of a court order, such
relative will be presumptively liable for all health care expenses
incurred on behalf of such dependents from the first date such
dependents were eligible to be enrolled to receive health insurance
benefits after the issuance of the order of support directing the
acquisition of such coverage.
(j) 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
pursuant to an execution for support enforcement as provided for in
subdivision (b) of section fifty-two hundred forty-one of the civil
practice law and rules, or in such periodic payments as would have been
authorized 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 judgment 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
notwithstanding that the court for any reason whatsoever, other than
lack of jurisdiction, refuses to grant the relief requested in the
action or proceeding. 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 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
declaring the nullity of a void marriage rendered on or after September
first, nineteen hundred forty, or any judgment of separation or divorce
whenever 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.
1-a. 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 and 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 subdivision 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.
1-b. (a) The court shall make its award for child support pursuant to
the provisions of this subdivision. The court may vary from the amount
of the basic child support obligation determined pursuant to paragraph
(c) of this subdivision only in accordance with paragraph (f) of this
subdivision.
(b) For purposes of this subdivision, the following definitions shall
be used:
(1) "Basic child support obligation" shall mean the sum derived by
adding the amounts determined by the application of subparagraphs two
and three of paragraph (c) of this subdivision except as increased
pursuant to subparagraphs four, five, six and seven of such paragraph.
(2) "Child support" shall mean a sum to be paid pursuant to court
order or decree by either or both parents or pursuant to a valid
agreement between the parties for care, maintenance and education of any
unemancipated child under the age of twenty-one years.
(3) "Child support percentage" shall mean:
(i) seventeen percent of the combined parental income for one child;
(ii) twenty-five percent of the combined parental income for two
children;
(iii) twenty-nine percent of the combined parental income for three
children;
(iv) thirty-one percent of the combined parental income for four
children; and
(v) no less than thirty-five percent of the combined parental income
for five or more children.
(4) "Combined parental income" shall mean the sum of the income of
both parents.
(5) "Income" shall mean, but shall not be limited to, the sum of the
amounts determined by the application of clauses (i), (ii), (iii), (iv),
(v) and (vi) of this subparagraph reduced by the amount determined by
the application of clause (vii) of this subparagraph:
(i) gross (total) income as should have been or should be reported in
the most recent federal income tax return. If an individual files
his/her federal income tax return as a married person filing jointly,
such person shall be required to prepare a form, sworn to under penalty
of law, disclosing his/her gross income individually;
(ii) to the extent not already included in gross income in clause (i)
of this subparagraph, investment income reduced by sums expended in
connection with such investment;
(iii) to the extent not already included in gross income in clauses
(i) and (ii) of this subparagraph, the amount of income or compensation
voluntarily deferred and income received, if any, from the following
sources:
(A) workers' compensation,
(B) disability benefits,
(C) unemployment insurance benefits,
(D) social security benefits,
(E) veterans benefits,
(F) pensions and retirement benefits,
(G) fellowships and stipends, and
(H) annuity payments;
(iv) at the discretion of the court, the court may attribute or impute
income from, such other resources as may be available to the parent,
including, but not limited to:
(A) non-income producing assets,
(B) meals, lodging, memberships, automobiles or other perquisites that
are provided as part of compensation for employment to the extent that
such perquisites constitute expenditures for personal use, or which
expenditures directly or indirecly confer personal economic benefits,
(C) fringe benefits provided as part of compensation for employment,
and
(D) money, goods, or services provided by relatives and friends;
(v) an amount imputed as income based upon the parent's former
resources or income, if the court determines that a parent has reduced
resources or income in order to reduce or avoid the parent's obligation
for child support;
(vi) to the extent not already included in gross income in clauses (i)
and (ii) of this subparagraph, the following self-employment deductions
attributable to self-employment carried on by the taxpayer:
(A) any depreciation deduction greater than depreciation calculated on
a straight-line basis for the purpose of determining business income or
investment credits, and
(B) entertainment and travel allowances deducted from business income
to the extent said allowances reduce personal expenditures;
(vii) the following shall be deducted from income prior to applying
the provisions of paragraph (c) of this subdivision:
(A) unreimbursed employee business expenses except to the extent said
expenses reduce personal expenditures,
(B) alimony or maintenance actually paid to a spouse not a party to
the instant action pursuant to court order or validly executed written
agreement,
(C) alimony or maintenance actually paid or to be paid to a spouse
that is a party to the instant action pursuant to an existing court
order or contained in the order to be entered by the court, or pursuant
to a validly executed written agreement, provided the order or agreement
provides for a specific adjustment, in accordance with this subdivision,
in the amount of child support payable upon the termination of alimony
or maintenance to such spouse,
(D) child support actually paid pursuant to court order or written
agreement on behalf of any child for whom the parent has a legal duty of
support and who is not subject to the instant action,
(E) public assistance,
(F) supplemental security income,
(G) New York city or Yonkers income or earnings taxes actually paid,
and
(H) federal insurance contributions act (FICA) taxes actually paid.
(6) "Self-support reserve" shall mean one hundred thirty-five percent
of the poverty income guidelines amount for a single person as reported
by the federal department of health and human services. For the calendar
year nineteen hundred eighty-nine, the self-support reserve shall be
eight thousand sixty-five dollars. On March first of each year, the
self-support reserve shall be revised to reflect the annual updating of
the poverty income guidelines as reported by the federal department of
health and human services for a single person household.
(c) The amount of the basic child support obligation shall be
determined in accordance with the provision of this paragraph:
(1) The court shall determine the combined parental income.
(2) The court shall multiply the combined parental income up to the
amount set forth in paragraph (b) of subdivision two of section one
hundred eleven-i of the social services law by the appropriate child
support percentage and such amount shall be prorated in the same
proportion as each parent's income is to the combined parental income.
(3) Where the combined parental income exceeds the dollar amount set
forth in subparagraph two of this paragraph, the court shall determine
the amount of child support for the amount of the combined parental
income in excess of such dollar amount through consideration of the
factors set forth in paragraph (f) of this subdivision and/or the child
support percentage.
(4) Where the custodial parent is working, or receiving elementary or
secondary education, or higher education or vocational training which
the court determines will lead to employment, and incurs child care
expenses as a result thereof, the court shall determine reasonable child
care expenses and such child care expenses, where incurred, shall be
prorated in the same proportion as each parent's income is to the
combined parental income. Each parent's pro rata share of the child care
expenses shall be separately stated and added to the sum of
subparagraphs two and three of this paragraph.
(5) The court shall determine the parties' obligation to provide
health insurance benefits pursuant to this section and to pay cash
medical support as provided under this subparagraph.
(i) "Cash medical support" means an amount ordered to be paid toward
the cost of health insurance provided by a public entity or by a parent
through an employer or organization, including such employers or
organizations which are self insured, or through other available health
insurance or health care coverage plans, and/or for other health care
expenses not covered by insurance.
(ii) Where health insurance benefits pursuant to subparagraph one and
clauses (i) and (ii) of subparagraph two of paragraph (c) of subdivision
one of this section are determined by the court to be available, the
cost of providing health insurance benefits shall be prorated between
the parties in the same proportion as each parent's income is to the
combined parental income. If the custodial parent is ordered to provide
such benefits, the non-custodial parent's pro rata share of such costs
shall be added to the basic support obligation. If the non-custodial
parent is ordered to provide such benefits, the custodial parent's pro
rata share of such costs shall be deducted from the basic support
obligation.
(iii) Where health insurance benefits pursuant to subparagraph one and
clauses (i) and (ii) of subparagraph two of paragraph (c) of subdivision
one of this section are determined by the court to be unavailable, if
the child or children are determined eligible for coverage under the
medical assistance program established pursuant to title eleven of
article five of the social services law, the court shall order the
non-custodial parent to pay cash medical support as follows:
(A) In the case of a child or children authorized for managed care
coverage under the medical assistance program, the lesser of the amount
that would be required as a family contribution under the state's child
health insurance plan pursuant to title one-A of article twenty-five of
the public health law for the child or children if they were in a
two-parent household with income equal to the combined income of the
non-custodial and custodial parents or the premium paid by the medical
assistance program on behalf of the child or children to the managed
care plan. The court shall separately state the non-custodial parent's
monthly obligation. The non-custodial parent's cash medical support
obligation under this clause shall not exceed five percent of his or her
gross income, or the difference between the non-custodial parent's
income and the self-support reserve, whichever is less.
(B) In the case of a child or children authorized for fee-for-service
coverage under the medical assistance program other than a child or
children described in item (A) of this clause, the court shall determine
the non-custodial parent's maximum annual cash medical support
obligation, which shall be equal to the lesser of the monthly amount
that would be required as a family contribution under the state's child
health insurance plan pursuant to title one-A of article twenty-five of
the public health law for the child or children if they were in a
two-parent household with income equal to the combined income of the
non-custodial and custodial parents times twelve months or the number of
months that the child or children are authorized for fee-for-service
coverage during any year. The court shall separately state in the order
the non-custodial parent's maximum annual cash medical support
obligation and, upon proof to the court that the non-custodial parent,
after notice of the amount due, has failed to pay the public entity for
incurred health care expenses, the court shall order the non-custodial
parent to pay such incurred health care expenses up to the maximum
annual cash medical support obligation. Such amounts shall be support
arrears/past due support and shall be subject to any remedies as
provided by law for the enforcement of support arrears/past due support.
The total annual amount that the non-custodial parent is ordered to pay
under this clause shall not exceed five percent of his or her gross
income or the difference between the non-custodial parent's income and
the self-support reserve, whichever is less.
(C) The court shall order cash medical support to be paid by the
non-custodial parent for health care expenses of the child or children
paid by the medical assistance program prior to the issuance of the
court's order. The amount of such support shall be calculated as
provided under item (A) or (B) of this clause, provided that the amount
that the non-custodial parent is ordered to pay under this item shall
not exceed five percent of his or her gross income or the difference
between the non-custodial parent's income and the self-support reserve,
whichever is less, for the year when the expense was incurred. Such
amounts shall be support arrears/past due support and shall be subject
to any remedies as provided by law for the enforcement of support
arrears/past due support.
(iv) Where health insurance benefits pursuant to subparagraph one and
clauses (i) and (ii) of subparagraph two of paragraph (c) of subdivision
one of this section are determined by the court to be unavailable, and
the child or children are determined eligible for coverage under the
state's child health insurance plan pursuant to title one-A of article
twenty-five of the public health law, the court shall prorate each
parent's share of the cost of the family contribution required under
such child health insurance plan in the same proportion as each parent's
income is to the combined parental income, and state the amount of the
non-custodial parent's share in the order. The total amount of cash
medical support that the non-custodial parent is ordered to pay under
this clause shall not exceed five percent of his or her gross income, or
the difference between the non-custodial parent's income and the
self-support reserve, whichever is less.
(v) In addition to the amounts ordered under clause (ii), (iii), or
(iv), the court shall pro rate each parent's share of reasonable health
care expenses not reimbursed or paid by insurance, the medical
assistance program established pursuant to title eleven of article five
of the social services law, or the state's child health insurance plan
pursuant to title one-A of article twenty-five of the public health law,
in the same proportion as each parent's income is to the combined
parental income, and state the non-custodial parent's share as a
percentage in the order. The non-custodial parent's pro rata share of
such health care expenses determined by the court to be due and owing
shall be support arrears/past due support and shall be subject to any
remedies provided by law for the enforcement of support arrears/past due
support. In addition, the court may direct that the non-custodial
parent's pro rata share of such health care expenses be paid in one sum
or in periodic sums, including direct payment to the health care
provider.
(vi) Upon proof by either party that cash medical support pursuant to
clause (ii), (iii), (iv), or (v) of this subparagraph would be unjust or
inappropriate pursuant to paragraph (f) of this subdivision, the court
shall:
(A) order the parties to pay cash medical support as the court finds
just and appropriate, considering the best interests of the child; and
(B) set forth in the order the factors it considered, the amount
calculated under this subparagraph, the reason or reasons the court did
not order such amount, and the basis for the amount awarded.
(6) Where the court determines that the custodial parent is seeking
work and incurs child care expenses as a result thereof, the court may
determine reasonable child care expenses and may apportion the same
between the custodial and non-custodial parent. The non-custodial
parent's share of such expenses shall be separately stated and paid in a
manner determined by the court.
(7) Where the court determines, having regard for the circumstances of
the case and of the respective parties and in the best interests of the
child, and as justice requires, that the present or future provision of
post-secondary, private, special, or enriched education for the child is
appropriate, the court may award educational expenses. The non-custodial
parent shall pay educational expenses, as awarded, in a manner
determined by the court, including direct payment to the educational
provider.
(d) Notwithstanding the provisions of paragraph (c) of this
subdivision, where the annual amount of the basic child support
obligation would reduce the non-custodial parent's income below the
poverty income guidelines amount for a single person as reported by the
federal department of health and human services, the basic child support
obligation shall be twenty-five dollars per month, provided, however,
that if the court finds that such basic child support obligation is
unjust or inappropriate, which finding shall be based upon
considerations of the factors set forth in paragraph (f) of this
subdivision, the court shall order the non-custodial parent to pay such
amount of the child support as the court finds just and appropriate.
Notwithstanding the provisions of paragraph (c) of this subdivision,
where the annual amount of the basic child support obligation would
reduce the non-custodial parent's income below the self-support reserve
but not below the poverty income guidelines amount for a single person
as reported by the federal department of health and human services, the
basic child support obligation shall be fifty dollars per month or the
difference between the non-custodial parent's income and the
self-support reserve, whichever is greater, in addition to any amounts
that the court may, in its discretion, order in accordance with
subparagraphs four, five, six and/or seven of paragraph (c) of this
subdivision.
(e) Where a parent is or may be entitled to receive non-recurring
payments from extraordinary sources not otherwise considered as income
pursuant to this section, including but not limited to:
(1) Life insurance policies;
(2) Discharges of indebtedness;
(3) Recovery of bad debts and delinquency amounts;
(4) Gifts and inheritances; and
(5) Lottery winnings,
the court, in accordance with paragraphs (c), (d) and (f) of this
subdivision may allocate a proportion of the same to child support, and
such amount shall be paid in a manner determined by the court.
(f) The court shall calculate the basic child support obligation, and
the non-custodial parent's pro rata share of the basic child support
obligation. Unless the court finds that the non-custodial parents's
pro-rata share of the basic child support obligation is unjust or
inappropriate, which finding shall be based upon consideration of the
following factors:
(1) The financial resources of the custodial and non-custodial parent,
and those of the child;
(2) The physical and emotional health of the child and his/her special
needs and aptitudes;
(3) The standard of living the child would have enjoyed had the
marriage or household not been dissolved;
(4) The tax consequences to the parties;
(5) The non-monetary contributions that the parents will make toward
the care and well-being of the child;
(6) The educational needs of either parent;
(7) A determination that the gross income of one parent is
substantially less than the other parent's gross income;
(8) The needs of the children of the non-custodial parent for whom the
non-custodial parent is providing support who are not subject to the
instant action and whose support has not been deducted from income
pursuant to subclause (D) of clause (vii) of subparagraph five of
paragraph (b) of this subdivision, and the financial resources of any
person obligated to support such children, provided, however, that this
factor may apply only if the resources available to support such
children are less than the resources available to support the children
who are subject to the instant action;
(9) Provided that the child is not on public assistance (i)
extraordinary expenses incurred by the non-custodial parent in
exercising visitation, or (ii) expenses incurred by the non-custodial
parent in extended visitation provided that the custodial parent's
expenses are substantially reduced as a result thereof; and
(10) Any other factors the court determines are relevant in each case,
the court shall order the non-custodial parent to pay his or her pro
rata share of the basic child support obligation, and may order the
non-custodial parent to pay an amount pursuant to paragraph (e) of this
subdivision.
(g) Where the court finds that the non-custodial parent's pro rata
share of the basic child support obligation is unjust or inappropriate,
the court shall order the non-custodial parent to pay such amount of
child support as the court finds just and appropriate, and the court
shall set forth, in a written order, the factors it considered; the
amount of each party's pro rata share of the basic child support
obligation; and the reasons that the court did not order the basic child
support obligation. Such written order may not be waived by either party
or counsel; provided, however, and notwithstanding any other provision
of law, the court shall not find that the non-custodial parent's pro
rata share of such obligation is unjust or inappropriate on the basis
that such share exceeds the portion of a public assistance grant which
is attributable to a child or children. Where the non-custodial parent's
income is less than or equal to the poverty income guidelines amount for
a single person as reported by the federal department of health and
human services, unpaid child support arrears in excess of five hundred
dollars shall not accrue.
(h) A validly executed agreement or stipulation voluntarily entered
into between the parties after the effective date of this subdivision
presented to the court for incorporation in an order or judgment shall
include a provision stating that the parties have been advised of the
provisions of this subdivision, and that the basic child support
obligation provided for therein would presumptively result in the
correct amount of child support to be awarded. In the event that such
agreement or stipulation deviates from the basic child support
obligation, the agreement or stipulation must specify the amount that
such basic child support obligation would have been and the reason or
reasons that such agreement or stipulation does not provide for payment
of that amount. Such provision may not be waived by either party or
counsel. Nothing contained in this subdivision shall be construed to
alter the rights of the parties to voluntarily enter into validly
executed agreements or stipulations which deviate from the basic child
support obligation provided such agreements or stipulations comply with
the provisions of this paragraph. The court shall, however, retain
discretion with respect to child support pursuant to this section. Any
court order or judgment incorporating a validly executed agreement or
stipulation which deviates from the basic child support obligation shall
set forth the court's reasons for such deviation.
(i) Where either or both parties are unrepresented, the court shall
not enter an order or judgment other than a temporary order pursuant to
section two hundred thirty-seven of this article, that includes a
provision for child support unless the unrepresented party or parties
have received a copy of the child support standards chart promulgated by
the commissioner of the office of temporary and disability assistance
pursuant to subdivision two of section one hundred eleven-i of the
social services law. Where either party is in receipt of child support
enforcement services through the local social services district, the
local social services district child support enforcement unit shall
advise such party of the amount derived from application of the child
support percentage and that such amount serves as a starting point for
the determination of the child support award, and shall provide such
party with a copy of the child support standards chart.
(j) In addition to financial disclosure required in section two
hundred thirty-six of this article, the court may require that the
income and/or expenses of either party be verified with documentation
including, but not limited to, past and present income tax returns,
employer statements, pay stubs, corporate, business, or partnership
books and records, corporate and business tax returns, and receipts for
expenses or such other means of verification as the court determines
appropriate. Nothing herein shall affect any party's right to pursue
discovery pursuant to this chapter, the civil practice law and rules, or
the family court act.
(k) When a party has defaulted and/or the court is otherwise presented
with insufficient evidence to determine gross income, the court shall
order child support based upon the needs or standard of living of the
child, whichever is greater. Such order may be retroactively modified
upward, without a showing of change in circumstances.
(l) In any action or proceeding for modification of an order of child
support existing prior to the effective date of this paragraph, brought
pursuant to this article, the child support standards set forth in this
subdivision shall not constitute a change of circumstances warranting
modification of such support order; provided, however, that (1) where
the circumstances warrant modification of such order, or (2) where any
party objects to an adjusted child support order made or proposed at the
direction of the support collection unit pursuant to section one hundred
eleven-h or one hundred eleven-n of the social services law, and the
court is reviewing the current order of child support, such standards
shall be applied by the court in its determination with regard to the
request for modification, or disposition of an objection to an adjusted
child support order made or proposed by a support collection unit. In
applying such standards, when the order to be modified incorporates by
reference or merges with a validly executed separation agreement or
stipulation of settlement, the court may consider, in addition to the
factors set forth in paragraph (f) of this subdivision, the provisions
of such agreement or stipulation concerning property distribution,
distributive award and/or maintenance in determining whether the amount
calculated by using the standards would be unjust or inappropriate.
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 of 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,
legal guardian, sibling, half-sibling or step-sibling of any child who
is the subject of the proceeding. Pending 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 of
and 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, legal guardian, sibling, half-sibling or
step-sibling of a child who is the subject of the proceeding without the
consent of such child's custodian or legal guardian.
(b) Notwithstanding any other provision of this chapter to the
contrary, there shall be a rebuttable presumption that it is not in the
best interests of the child to be placed in the custody of or to visit
with a person who has been convicted of one or more of the following
sexual offenses in this state or convicted of one or more offenses in
another jurisdiction which, if committed in this state, would constitute
one or more of the following offenses, when a child who is the subject
of the proceeding was conceived as a result: (A) rape in the first or
second degree; (B) course of sexual conduct against a child in the first
degree; (C) predatory sexual assault; or (D) predatory sexual assault
against a child.
(c) Notwithstanding paragraph (a) or (b) 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;
(ii) and the court finds that such visitation or custody is in the
best interests of the child.
(d) For the purpose of making a determination pursuant to clause (C)
of subparagraph (i) of paragraph (c) of this subdivision, the court
shall not be bound by the findings of fact, conclusions of law or
ultimate 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 a
parent, legal guardian, legal custodian, sibling, half-sibling or
step-sibling of a child who is the subject of the proceeding. In all
proceedings under this section, an attorney shall be appointed for the
child.
2. (a) An order directing payment of money for child support shall be
enforceable pursuant to section fifty-two hundred forty-one or fifty-two
hundred forty-two of the civil practice law and rules or in any other
manner provided by law. Such orders or judgments for child support and
maintenance shall also be enforceable pursuant to article fifty-two of
the civil practice law and rules upon a debtor's default as such term is
defined in paragraph seven of subdivision (a) of section fifty-two
hundred forty-one of the civil practice law and rules. The establishment
of a default shall be subject to the procedures established for the
determination of a mistake of fact for income executions pursuant to
subdivision (e) of section fifty-two hundred forty-one of the civil
practice law and rules. For the purposes of enforcement of child support
orders or combined spousal and child support orders pursuant to section
five thousand two hundred forty-one of the civil practice law and rules,
a "default" shall be deemed to include amounts arising from retroactive
support.
b. (1) 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 direct that the child support payments be made to
the support collection unit. Unless (i) the court finds and sets forth
in writing the reasons that there is good cause not to require immediate
income withholding; or (ii) when the child is not in receipt of public
assistance, a written agreement providing for an alternative arrangement
has been reached between the parties, the support collection unit shall
issue an income execution immediately for child support or combined
maintenance and child support, and may issue an execution for medical
support enforcement in accordance with the provisions of the order of
support. Such written agreement may include an oral stipulation made on
the record resulting in a written order. For purposes of this paragraph,
good cause shall mean substantial harm to the debtor. The absence of an
arrearage or the mere issuance of an income execution shall not
constitute good cause. When an immediate income execution or an
execution for medical support enforcement is issued by the support
collection unit, such income execution shall be issued pursuant to
section five thousand two hundred forty-one of the civil practice law
and rules, except that the provisions thereof relating to mistake of
fact, default and any other provisions which are not relevant to the
issuance of an income execution pursuant to this paragraph shall not
apply; provided, however, that if the support collection unit makes an
error in the issuance of an income execution pursuant to this paragraph,
and such error is to the detriment of the debtor, the support collection
unit shall have thirty days after notification by the debtor to correct
the error. Where permitted under federal law and where the record of the
proceedings contains such information, such order shall include on its
face the social security number and the name and address of the
employer, if any, of the person chargeable with support; provided,
however, that failure to comply with this requirement shall not
invalidate such order. When the court determines that there is good
cause not to immediately issue an income execution or when the parties
agree to an alternative arrangement as provided in this paragraph, the
court shall provide expressly in the order of support that the support
collection unit shall not issue an immediate income execution.
Notwithstanding any such order, the support collection unit shall issue
an income execution for support enforcement when the debtor defaults on
the support obligation, as defined in section five thousand two hundred
forty-one of the civil practice law and rules.
(2) When the court issues an order of child support or combined child
and spousal support on behalf of persons other than those in receipt of
public assistance or in receipt of services pursuant to section one
hundred eleven-g of the social services law, the court shall issue an
income deduction order pursuant to subdivision (c) of section five
thousand two hundred forty-two of the civil practice law and rules at
the same time it issues the order of support. The court shall enter the
income deduction order unless the court finds and sets forth in writing
(i) the reasons that there is good cause not to require immediate income
withholding; or (ii) that an agreement providing for an alternative
arrangement has been reached between the parties. Such agreement may
include a written agreement or an oral stipulation, made on the record,
that results in a written order. For purposes of this paragraph, good
cause shall mean substantial harm to the debtor. The absence of an
arrearage or the mere issuance of an income deduction order shall not
constitute good cause. Where permitted under federal law and where the
record of the proceedings contains such information, such order shall
include on its face the social security number and the name and address
of the employer, if any, of the person chargeable with support;
provided, however, that failure to comply with this requirement shall
not invalidate the order. When the court determines that there is good
cause not to issue an income deduction order immediately or when the
parties agree to an alternative arrangement as provided in this
paragraph, the court shall provide expressly in the order of support the
basis for its decision and shall not issue an income deduction order.
c. Any order of support issued on behalf of a child in receipt of
family assistance or child support enforcement services pursuant to
section one hundred eleven-g of the social services law shall be subject
to review and adjustment by the support collection unit pursuant to
section one hundred eleven-n of the social services law. Such review and
adjustment shall be in addition to any other activities undertaken by
the support collection unit relating to the establishment, modification,
and enforcement of support orders payable to such unit.
3. Order of protection. a. The court may make an order of protection
in assistance or as a condition of any other order made under this
section. The order of protection may set forth reasonable conditions of
behavior to be observed for a specified time by any party. Such an order
may require any party:
(1) to stay away from the home, school, business or place of
employment of the child, other parent or any other party, and to stay
away from any other specific location designated by the court;
(2) 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;
(3) to refrain from committing a family offense, as defined in
subdivision one of section 530.11 of the criminal procedure law, 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;
(4) 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 a proceeding or action under this chapter or the family court
act; or
(5) to refrain from acts of commission or omission that create an
unreasonable risk to the health, safety or welfare of a child.
(6) 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.
(7) 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 person protected by the order or
a minor child residing in such person's household. "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.
(8) to observe such other conditions as are necessary to further the
purposes of protection.
* b. An order of protection entered pursuant to this subdivision shall
bear in a conspicuous manner, on the front page of said order, the
language "Order of protection issued pursuant to section two hundred
forty of the domestic relations law". The absence of such language shall
not affect the validity of such order. The presentation of a copy of
such an order to any peace officer acting pursuant to his or her special
duties, or police officer, shall constitute authority, for that officer
to arrest a person when that person has violated the terms of such an
order, and bring such person before the court and, otherwise, so far as
lies within the officer's power, to aid in securing the protection such
order was intended to afford.
* NB Effective until January 12, 2014
* b. An order of protection entered pursuant to this subdivision shall
bear in a conspicuous manner, on the front page of said order, the
language "Order of protection issued pursuant to section two hundred
forty of the domestic relations law". The order of protection shall also
contain the following notice: "This order of protection will remain in
effect even if the protected party has, or consents to have, contact or
communication with the party against whom the order is issued. This
order of protection can only be modified or terminated by the court. The
protected party cannot be held to violate this order nor be arrested for
violating this order.". The absence of such language shall not affect
the validity of such order. The presentation of a copy of such an order
to any peace officer acting pursuant to his or her special duties, or
police officer, shall constitute authority, for that officer to arrest a
person when that person has violated the terms of such an order, and
bring such person before the court and, otherwise, so far as lies within
the officer's power, to aid in securing the protection such order was
intended to afford.
* NB Effective January 12, 2014
c. An order of protection entered pursuant to this subdivision may be
made in the final judgment in any matrimonial action or in a proceeding
to obtain custody of or visitation with any child under this section, 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. The
order of protection may remain in effect after entry of a final
matrimonial judgment and during the minority of any child whose custody
or visitation is the subject of a provision of a final judgment or any
order. An order of protection may be entered notwithstanding that the
court for any reason whatsoever, other than lack of jurisdiction,
refuses to grant the relief requested in the action or proceeding.
d. The chief administrator of the courts shall promulgate appropriate
uniform temporary orders of protection and orders of protection forms,
applicable to proceedings under this article, to be used throughout the
state. Such forms shall be promulgated and developed in a manner to
ensure the compatibility of such forms with the statewide computerized
registry established pursuant to section two hundred twenty-one-a of the
executive law.
e. No order of protection may direct any party to observe conditions
of behavior unless: (i) the party requesting the order of protection has
served and filed an action, proceeding, counter-claim or written motion
and, (ii) the court has made a finding on the record that such party is
entitled to issuance of the order of protection which may result from a
judicial finding of fact, judicial acceptance of an admission by the
party against whom the order was issued or judicial finding that the
party against whom the order is issued has given knowing, intelligent
and voluntary consent to its issuance. The provisions of this
subdivision shall not preclude the court from issuing a temporary order
of protection upon the court's own motion or where a motion for such
relief is made to the court, for good cause shown. 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.
f. 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.
g. Any party moving for a temporary order of protection pursuant to
this subdivision during hours when the court is open shall be entitled
to file such motion or pleading containing such prayer for emergency
relief on the same day that such person first appears at such court, and
a hearing on the motion or portion of the pleading requesting such
emergency relief shall be held on the same day or the next day that the
court is in session following the filing of such motion or pleading.
h. Upon 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 sections eight hundred forty-two-a and eight hundred
forty-six-a of the family court act, as applicable. Upon issuance of an
order of protection pursuant to this section or upon a finding of a
violation thereof, the court also may direct payment of restitution in
an amount not to exceed ten thousand dollars in accordance with
subdivision (e) of section eight hundred forty-one of such act;
provided, however, that in no case shall an order of restitution be
issued where the court determines that the party against whom the order
would be issued has already compensated the injured party or where such
compensation is incorporated in a final judgment or settlement of the
action.
* i. The protected party in whose favor the order of protection or
temporary order of protection is issued may not be held to violate such
an order nor may such protected party be arrested for violating such
order.
* NB Effective January 12, 2014
* 3-a. Service of order of protection. a. If a temporary order of
protection has been issued or an order of protection has been issued
upon a default, unless the party requesting the order states on the
record that she or he will arrange for other means for service or
deliver the order to a peace or police officer directly for service, the
court shall immediately deliver a copy of the temporary order of
protection or order of protection to a peace officer, acting pursuant to
his or her special duties and designated by the court, or to a police
officer as defined in paragraph (b) or (d) of subdivision thirty-four of
section 1.20 of the criminal procedure law, or, in the city of New York,
to a designated representative of the police department of the city of
New York. Any peace or police officer or designated person receiving a
temporary order of protection or an order of protection as provided
hereunder shall serve or provide for the service thereof together with
any associated papers that may be served simultaneously, at any address
designated therewith, including the summons and petition or complaint if
not previously served. Service of such temporary order of protection or
order of protection and associated papers shall, insofar as practicable,
be achieved promptly. An officer or designated person obliged to perform
service pursuant to this subdivision, and his or her employer, shall not
be liable for damages resulting from failure to achieve service where,
having made a reasonable effort, such officer or designated person is
unable to locate and serve the temporary order of protection or order of
protection at any address provided by the party requesting the order. A
statement subscribed by the officer or designated person, and affirmed
by him or her to be true under the penalties of perjury, stating the
papers served, the date, time, address or in the event there is no
address, place, and manner of service, the name and a brief physical
description of the party served, shall be proof of service of the
summons, petition and temporary order of protection or order of
protection. When the temporary order of protection or order of
protection and other papers, if any, have been served, such officer or
designated person shall provide the court with an affirmation,
certificate or affidavit of service and shall provide notification of
the date and time of such service to the statewide computer registry
established pursuant to section two hundred twenty-one-a of the
executive law.
b. Notwithstanding any other provision of law, all orders of
protection and temporary orders of protection filed and entered along
with any associated papers that may be served simultaneously may be
transmitted by facsimile transmission or electronic means for expedited
service in accordance with the provisions of this subdivision. For
purposes of this subdivision, "facsimile transmission" and "electronic
means" shall be as defined in subdivision (f) of rule twenty-one hundred
three of the civil practice law and rules.
* NB Separately amended cannot be put together
* 3-a. Service of order of protection. (a) If a temporary order of
protection has been issued or an order of protection has been issued
upon a default, unless the party requesting the order states on the
record that she or he will arrange for other means for service or
deliver the order to a peace or police officer directly for service, the
court shall immediately deliver a copy of the temporary order of
protection or order of protection together with any associated papers
that may be served simultaneously including the summons and petition, to
a peace officer, acting pursuant to his or her special duties and
designated by the court, or to a police officer as defined in paragraph
(b) or (d) of subdivision thirty-four of section 1.20 of the criminal
procedure law, or, in the city of New York, to a designated
representative of the police department of the city of New York. Any
peace or police officer or designated person receiving a temporary order
of protection or an order of protection as provided in this section
shall serve or provide for the service thereof together with any
associated papers that may be served simultaneously, at any address
designated therewith, including the summons and petition or complaint if
not previously served. Service of such temporary order of protection or
order of protection and associated papers shall, insofar as practicable,
be achieved promptly. An officer or designated person obliged to perform
service pursuant to this subdivision, and his or her employer, shall not
be liable for damages resulting from failure to achieve service where,
having made a reasonable effort, such officer or designated person is
unable to locate and serve the temporary order of protection or order of
protection at any address provided by the party requesting the order.
(b) When the temporary order of protection or order of protection and
associated papers, if any, have been served, such officer or designated
person shall provide the court with an affirmation, certificate or
affidavit of service when the temporary order of protection or order of
protection has been served, and shall provide notification of the date
and time of such service to the statewide computer registry established
pursuant to section two hundred twenty-one-a of the executive law. A
statement subscribed by the officer or designated person, and affirmed
by him or her to be true under the penalties of perjury, stating the
papers served, the date, time, address or in the event there is no
address, place, and manner of service, the name and a brief physical
description of the party served, shall be proof of service of the
summons, petition and temporary order of protection or order of
protection.
(c) Where an officer or designated person obliged to perform service
pursuant to this section is unable to complete service of the temporary
order of protection or order of protection, such officer or designated
person shall provide the court with proof of attempted service of the
temporary order of protection or order of protection with information
regarding the dates, times, locations and manner of attempted service.
An affirmation, certificate or affidavit of service with a statement
subscribed by the officer or designated person, and affirmed by him or
her to be true under the penalties of perjury, stating the name of the
party and the papers attempted to be served on said person, and for each
attempted service, the date, time, address or in the event there is no
address, place, and manner of attempted service, shall be proof of
attempted service.
(d) Any peace or police officer or designated person performing
service under this subdivision shall not charge a fee for such service,
including, but not limited to, fees as provided under section eight
thousand eleven of the civil practice law and rules.
* NB Separately amended cannot be put together
3-b. Emergency powers; local criminal court. If the court that issued
an order of protection or temporary order of protection under this
section or warrant in connection thereto is not in session when an
arrest is made for an alleged violation of the order or upon a warrant
issued in connection with such violation, the arrested person shall be
brought before a local criminal court in the county of arrest or in the
county in which such warrant is returnable pursuant to article one
hundred twenty of the criminal procedure law and arraigned by such
court. Such local criminal court shall order the commitment of the
arrested person to the custody of the sheriff, admit to, fix or accept
bail, or release the arrested person on his or her recognizance pending
appearance in the court that issued the order of protection, temporary
order of protection or warrant. In making such order, such local
criminal court shall consider the bail recommendation, if any, made by
the supreme or family court as indicated on the warrant or certificate
of warrant. Unless the petitioner or complainant requests otherwise, the
court, in addition to scheduling further criminal proceedings, if any,
regarding such alleged family offense or violation allegation, shall
make such matter returnable in the supreme or family court, as
applicable, on the next day such court is in session.
3-c. Orders of protection; filing and enforcement of out-of-state
orders. A valid order of protection or temporary order of protection
issued by a court of competent jurisdiction in another state,
territorial or tribal jurisdiction shall be accorded full faith and
credit and enforced as if it were issued by a court within the state for
as long as the order remains in effect in the issuing jurisdiction in
accordance with sections two thousand two hundred sixty-five and two
thousand two hundred sixty-six of title eighteen of the United States
Code.
a. An order issued by a court of competent jurisdiction in another
state, territorial or tribal jurisdiction shall be deemed valid if:
(1) the issuing court had personal jurisdiction over the parties and
over the subject matter under the law of the issuing jurisdiction;
(2) the person against whom the order was issued had reasonable notice
and an opportunity to be heard prior to issuance of the order; provided,
however, that if the order was a temporary order of protection issued in
the absence of such person, that notice had been given and that an
opportunity to be heard had been provided within a reasonable period of
time after the issuance of the order; and
(3) in the case of orders of protection or temporary orders of
protection issued against both a petitioner and respondent, the order or
portion thereof sought to be enforced was supported by: (i) a pleading
requesting such order, including, but not limited to, a petition,
cross-petition or counterclaim; and (ii) a judicial finding that the
requesting party is entitled to the issuance of the order, which may
result from a judicial finding of fact, judicial acceptance of an
admission by the party against whom the order was issued or judicial
finding that the party against whom the order was issued had give
knowing, intelligent and voluntary consent to its issuance.
b. Notwithstanding the provisions of article fifty-four of the civil
practice law and rules, an order of protection or temporary order of
protection issued by a court of competent jurisdiction in another state,
territorial or tribal jurisdiction, accompanied by a sworn affidavit
that upon information and belief such order is in effect as written and
has not been vacated or modified, may be filed without fee with the
clerk of the court, who shall transmit information regarding such order
to the statewide registry of orders of protection and warrants
established pursuant to section two hundred twenty-one-a of the
executive law; provided, however, that such filing and registry entry
shall not be required for enforcement of the order.
4. One-time adjustment of child support orders issued prior to
September fifteenth, nineteen hundred eighty-nine. Any party to a child
support order issued prior to September fifteenth, nineteen hundred
eighty-nine on the behalf of a child in receipt of public assistance or
child support services pursuant to section one hundred eleven-g of the
social services law may request that the support collection unit
undertake one review of the order for adjustment purposes pursuant to
section one hundred eleven-h of the social services law. A hearing on
the adjustment of such order shall be granted upon the objection of
either party pursuant to the provisions of this section. An order shall
be adjusted if as of the date of the support collection unit's review of
the correct amount of child support as calculated pursuant to the
provisions of this section would deviate by at least ten percent from
the child support ordered in the current order of support. Additionally,
a new order shall be issued upon a showing that the current order of
support does not provide for the health care needs of the child through
insurance or otherwise. Eligibility of the child for medical assistance
shall not relieve any obligation the parties otherwise have to provide
for the health care needs of the child. The support collection unit's
review of a child support order shall be made on notice to all parties
to the current support order. Nothing herein shall be deemed in any way
to limit, restrict, expand or impair the rights of any party to file for
a modification of a child support order as is otherwise provided by law.
(1) Upon mailing of an adjustment finding and where appropriate a
proposed order in conformity with such finding filed by either party or
by the support collection unit, a party shall have thirty-five days from
the date of mailing to submit to the court identified thereon specific
written objections to such finding and proposed order.
(a) If specific written objections are submitted by either party or by
the support collection unit, a hearing shall be scheduled by the court
on notice to the parties and the support collection unit, who then shall
have the right to be heard by the court and to offer evidence in support
of or in opposition to adjustment of the support order.
(b) The party filing the specific written objections shall bear the
burden of going forward and the burden of proof; provided, however, that
if the support collection unit has failed to provide the documentation
and information required by subdivision fourteen of section one hundred
eleven-h of the social services law, the court shall first require the
support collection unit to furnish such documents and information to the
parties and the court.
(c) If the court finds by a preponderance of the evidence that the
specific written objections have been proven, the court shall
recalculate or readjust the proposed adjusted order accordingly or, for
good cause, shall remand the order to the support collection unit for
submission of a new proposed adjusted order. Any readjusted order so
issued by the court or resubmitted by the support collection unit after
a remand by the court shall be effective as of the date the proposed
adjusted order would have been effective had no specific written
objections been filed.
(d) If the court finds that the specific written objections have not
been proven by a preponderance of the evidence, the court shall
immediately issue the adjusted order as submitted by the support
collection unit, which shall be effective as of the date the order would
have been effective had no specific written exceptions been filed.
(e) If the court receives no specific written objections to the
support order within thirty-five days of the mailing of the proposed
order the clerk of the court shall immediately enter the order without
further review, modification, or other prior action by the court or any
judge or support magistrate thereof, and the clerk shall immediately
transmit copies of the order of support to the parties and to the
support collection unit.
(2) A motion to vacate an order of support adjusted pursuant to this
section may be made no later than forty-five days after an adjusted
support order is executed by the court where no specific written
objections to the proposed order have been timely received by the court.
Such motion shall be granted only upon a determination by the court
issuing such order that personal jurisdiction was not timely obtained
over the moving party.
* 5. Provision of child support orders to the state case registry. The
court shall direct that a copy of any child support or combined child
and spousal support order issued by the court on or after the first day
of October, nineteen hundred ninety-eight, in any proceeding under this
section be provided promptly to the state case registry established
pursuant to subdivision four-a of section one hundred eleven-b of the
social services law.
* NB There are 2 subdivision 5's
* 5. On-going cost of living adjustment of child support orders issued
prior to September fifteenth, nineteen hundred eighty-nine. Any party to
a child support order issued prior to September fifteenth, nineteen
hundred eighty-nine on the behalf of a child in receipt of public
assistance or child support services pursuant to section one hundred
eleven-g of the social services law may request that the support
collection unit review the order for a cost of living adjustment in
accordance with the provisions of section two hundred forty-c of this
article.
* NB There are 2 subdivision 5's
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