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

In 2008, legislation was enacted requiring that all orders issued in child custody and visitation proceedings involving a parent in active military service be deemed temporary. See L. 2008, c. 576. Upon return from military service, chapter 576 permits the parent to reopen custody and visitation proceedings for a determination of whether the return from service constitutes a change of circumstances sufficient to afford him or her standing to seek modification of a prior order.

This measure would amend Article 6 of the Family Court Act and section 240 of the Domestic Relations Law, as well as section 75-1 of such Law, the provision added by chapter 576. Section 75-1 was added to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), the uniform act promulgated by the National Conference of Commissioners of Uniform State Laws to address custody and visitation cases in which parties are domiciled in different states or countries. Article 6 of the Family Court Act and section 240 of the Domestic Relations Law are the statutes addressing custody and visitation issues where parties reside in New York State and are thus the primary statutes governing custody and visitation litigation in the State. Since the vast majority of custody and visitation proceedings in New York courts involve New York residents, these statutes, not simply the UCCJEA, must be amended if the purposes of chapter 576 are to be fully achieved.

This measure would guarantee that, unless the parties have stipulated or agreed to the contrary, a parent's return from active deployment in the military would automatically constitute a "substantial change in circum- stance" that will afford the parent standing to obtain reconsideration of a prior custody or visitation order. Chapter 576 simply permitted the returning parent to seek the court's threshold determination of whether the return constitutes a sufficient change in circumstances, which had already been permitted under prior case law.

This measure also deletes the requirement that all orders issued during or in anticipation of the parent's active deployment be termed "tempo- rary." Since the measure would render automatic a parent's standing to reopen a custody or visitation order upon his or her return from mili- tary service, there would be no need to label all orders issued during the parent's service as "temporary."

Moreover, there is no need to deem all such orders "temporary," as courts are already required to issue stays of proceedings where appro- priate.

Summary of provisions

Section 1. Amends section 75-1 of the Domestic Relations Law to remove the requirement that all orders issued in child custody and visitation proceedings involving a parent in active military service be deemed temporary to instead provide that, unless the parties have stipulated or agreed to the contrary, a parent's return from active deployment in the military would automatically constitute a "substantial change in circum- stance" that will afford the parent standing to obtain reconsideration of a prior custody or visitation order.

Sections 2 and 3. Amend section 240 of the Domestic Relations Law to add a new paragraph (a-2) and section 651 of the Family Court Act to add a new subdivision (f) to conform them to section 75-1 of the Domestic Relations Law as amended by this legislation.

Section 4. Amends section 253 of the Military Law to make clear that any child custody proceeding which involves a parent who is activated, deployed, or temporarily assigned to military service shall be governed by the new provisions of the Family Court Act and the Domestic Relations Law set out in sections 2 and 3 of this legislation.

Section 5. Establishes the effective date of this legislation.

2008 LEGISLATIVE HISTORY: None. New proposal.