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Saturday, September 18, 2010

Summary of Laws of 2010 New York Family Law Legislation

Summary of Laws of 2010 New York Family Law Legislation (September 18, 2010)


Chapter 32

Amends Domestic Relations Law §236 [B][2][b][2]

Exempts from the automatic orders provisions prohibiting transfer of any retirement plan upon commencement of a matrimonial action when the retirement plan is already paying benefits. Effective date March 30, 2010


Chapter 41

Amends CPLR 1101; Amends Domestic Relations Law §§ 236, 75-f, 76-f, 112-b, 113, 115-b, 240 & 254, ; Amends Executive Law §§ 503 & 508; Amends Judiciary Law §§ 35 & 35-a; Amends Family Court Act, generally; Amends Public Health Law §§ 2306 & 2782; Amends Social Services Law §§ 358-a, 372, 383-c, 384, 384-a, 384-b, 409-e, 409-f & 422.

Replaces the term "law guardian" with the term "attorney for the child" to more accurately reflect the attorney's role. Effective date April 14, 2010.


Chapter 182

Amends Tax Law §§ 606, 171-a, 171-h & 697, Tax Law ; amends Family Court §§ Act 451, 461 & 440, adds Family Court Act §437-a; amends Domestic Relations Law §236; amends Social Services Law §111-h.

The "Low Income Support Obligation and Performance Improvement Act." Laws of 2010, Ch 186, § 1, effective October 13, 2010.

Family Court Act § 451 is amended to provide two new bases for modification of an order of child support: (1) the passage of three years since the order was entered, last modified, or adjusted; or (2) a 15 percent change in either party's income since the order was entered, last modified or adjusted provided that any reduction in income was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability and experience. The parties may specifically opt out of the two new bases for modification in a validly executed agreement or stipulation. This section would provide that incarceration is not a bar to finding a substantial change in circumstances under certain conditions and also would clarify that retroactive support is paid and enforceable as provided under Family Court Act § 440. Also conforms the language of the Family Court Act provision governing the modification of child support orders to the Domestic Relations Law so that both provisions provide for a "substantial change in circumstances" as a basis for modification of an order of child support. Laws of 2010, Ch 182, §6 (Effective October 13, 2010 and applicable only to child support orders which incorporate but do not merge stipulations or settlement agreements if the stipulation or agreement was executed on or after the effective date of the bill. Laws of 2010, Ch 186, § 13)

Domestic Relations Law § 236 [B](9)(b) is amended by separating out the "substantial change of circumstances" basis for modification of child support orders into its own section for clarity and provides two new bases for the modification of an order of child support: (1) the passage of three years since the order was entered, last modified, or adjusted; or (2) a 15 percent change in either party's income since the order was entered, last modified or adjusted provided that any reduction in income was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability and experience. The parties may specifically opt out of the two new bases for modification in a validly executed agreement or stipulation. This provision provides that incarceration is not a bar to finding a substantial change in circumstances under certain conditions. Laws of 2010, Ch 186, § 7 (Effective October 13, 2010 and applicable only to child support orders which incorporate but do not merge stipulations or settlement agreements if the stipulation or agreement was executed on or after the effective date of the bill. Laws of 2010, Ch 186, § 13)


Family Court Act §440 is amended to add a subdivision 4 which requires that all orders establishing a child support obligation contain a notice regarding the right to apply for a modification of the order if there has been a substantial change in circumstances or the occurrence of the additional enumerated bases for modification. Laws of 2010, Ch 186, § 8.(Effective October 13, 2010. Laws of 2010, Ch 186, § 13)


Domestic Relations Law § 236 [B](7) is amended to add a new subdivision (d) which require that all orders establishing a child support obligation contain a notice regarding the right to apply for a modification of the order if there has been a substantial change in circum stances or the occurrence of the additional enumerated bases for modification. Laws of 2010, Ch 186, § 9.(Effective October 13, 2010. Laws of 2010, Ch 186, § 13)

Family Court Act § 437-a is added to authorize the Family Court to require the non-custodial parent of a child to seek employment, or to participate in job training, employment counseling or other programs designed to lead to employment, where such programs are available, if he or she is unemployed at the time the court is establishing the support order unless he or she is in receipt of supplemental security income (SSI) or social security disability (SSD) benefits. Laws of 2010, Ch 186, § 10.(Effective October 13, 2010. Laws of 2010, Ch 186, § 13)

Social Services Law § 111-h is amended to state that if the respondent is required to participate in work programs or activities, and if the order of support is made payable on behalf of persons in receipt of public assistance, the support collection unit may not file a petition to increase the support obligation for twelve months from the date of entry of the order if the respondent's income is derived from the work activity or program. Laws of 2010, Ch 186, § 11. (Effective October 13, 2010. Laws of 2010, Ch 186, § 13)


Family Court Act § 461 is amended to reflect the two new bases for modification of an order of child support. Laws of 2010, Ch 186, § 12. (Effective October 13, 2010. Laws of 2010, Ch 186, § 13)

These provisions are effective October 13, 2010, except that: (1) sections 6 and 7 only apply to child support orders which incorporate but do not merge stipulations or settlement agreements if the stipulation or agreement was executed on or after the effective date of the bill. Laws of 2010, Ch 186, § 13


Chapter 325

Amends Family Court Act § 842

Authorizes the family court in family offense proceedings to extend an order of protection upon the showing of good cause or consent of the parties. Effective date August 13, 2010. ( § 3.This act shall take effect immediately, and shall apply to all orders entered prior to such effective date, and to all actions and proceedings pending on or commenced on or after such effective date.) Laws of 2010, Ch 325 (8.13.10)


Chapter 329

Amends Domestic Relations Law § § 237 & 238.

Laws of 2010, Ch 329, as amended by Laws of 2010, Ch 415, effective October 12, 2010, amended Domestic Relations Law §§ 237 and 238 to create a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. It adds actions to obtain maintenance or distribution of property after a foreign judgment of divorce to the actions for which such fees shall be awarded. In exercising the court's discretion, the court is required to seek to assure that each party is adequately represented and that where fees and expenses are to be awarded, they shall be awarded on a timely basis pendente lite, so as to enable adequate representation from the commencement of the proceeding. In addition the court is authorized to order expert fees to be paid by one party to the other to enable the party to carry on or defend the action. The parties and their attorneys are also required to submit an affidavit to the court with financial information to enable the court to make its determination. The monied spouse is now required to disclose how much he has agreed to pay and how much he has paid his attorney. The affidavit must include the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged by the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements or expenses. In addition, Domestic Relations Law § 238 was also amended to add to the actions for which such fees shall be awarded “actions to enforce a court order”.


Chapter 341

Amends Family Court Act §§ 446, 551, 656, 759 and 1056 . Amends Domestic Relations Law § 240(3)(e). Amends Family Court Act 812 (1). Amends Family Court Act 842.

Provides that orders of protection shall not be denied, in support proceedings, paternity proceedings, termination of parental rights proceedings, person in need of supervision proceedings, family offense proceedings and child protective proceedings, solely on the basis that the events alleged are not contemporaneous with the application therefor or the conclusion of the action. Effective date August 13, 2010. Laws of 2010, Ch 341 (8.13.10)

In addition these sections provide that the duration of any temporary order
shall not by itself determine the length or issuance of any final order.

According to the Assembly Memorandum this legislation is intended to overturn a line of Appellate Division cases that have attempted to institute a statute of limitations on incidents of abuse that a victim of domestic violence may plead and prove, where the legislature specifically did not institute one. (See, Yoba v. Yoba, 183 A.D.2d 418(1st Dept.,1992); Swersky v. Swersky, 299 A.D.2d 540(2d Dept., 2002); Thomas v. Thomas, 32 A.D.3d 521 (2d Dept., 2006);Matter of Ashley P., 31 A.D.3d 767 (2d Dept., 2006); Matter of Ann P. v.Nicholas C.F., 44 A.D.3d 776 (2d Dept., 2007); Matter of Hall v. Hall, 45 A.D.2d 842 (2d Dept., 2007); Matter of Loriann Q. v. Frank R., 53 A.D.3d 735 (3d Dept., 2008), denying civil orders of protection as a primary, or as a secondary basis, because the incidents pled were not "relatively contemporaneous"). The memorandum states that there is a disturbing trend in the Family, Supreme and Integrated Domestic Violence Courts of denying civil orders of protection where incidents of abuse alleged are considered by the courts as not "relatively contemporaneous" with the filing of the petition, the findings of fact, or the dispositional stage of the proceeding, presumably in reliance on the Appellate Division cases. Furthermore, some trial courts have been denying a final order order or protection on the basis that the temporary order of protection was in effect for too long. This legislation is also intended to address such denials of final orders of protection that are based on the duration of a temporary order issued during the pendency of a case. It is important for a court to hear and consider the history of violence to craft a careful and meaningful order that accomplishes the purpose of securing safety. Allegations that are more remote in time can give the finder of fact an enormous amount of information including how long the violent relationship has lasted so the finder of fact can craft a meaningful order of protection. Any incident of abuse that precipitates the filing for an order of protection must be viewed in the context of the history of the pattern of abuse suffered by the applicant and there is no statutory requirement to limit incidents pled to be within a specific period of time.
See NY Legis Memo 341(2010)



Chapter 342

Amends Family Court Act §§1055, 1087, 1088, 1089 & 1090; Adds Article 10-B, Section 109; Amends Social Services Law § § 371 & 409-a.

Relates to trial discharges of children in foster care and voluntary re-placements of older adolescents in foster care; amends the provisions of Articles 10 and 10-A of the Family Court Act to extend trial discharges at court permanency hearings for successive periods of up to six months until a child turns 21. The trial discharges require the consent of the child. The law also adds a new Article 10-B to permit youths between 18 and 21 who have opted to leave state care within the past 24 months to seek to return voluntarily. In such cases, the court must find that the youth has no reasonable alternatives to foster care, that he or she consents to an appropriate vocational or educational program and that a return would be in his or her best interests. Attorneys who previously represented the youths would continue to do so.

Laws of 2010, Ch 342. Effective November 11, 2010.



Chapter 343

Adds Family Court Act Article 6 Part 1-A, Sections 635 - 637; Amends Family Court Act §1089; Amends Social Services Law §384-b.

Provides a process for a petition to restore previously terminated parental rights under certain circumstances.

Effective date November 11, 2010 (§ 4. This act shall take effect on the ninetieth day after it shall have become a law. Laws of 2010, Ch 343).

This legislation amends the provisions of the Family Court Act and the Social Services Law to authorize Family Court, in narrowly-defined circumstances, to restore a birth parent's parental rights after they have been terminated. With the consent of the respondent in the original termination of parental rights proceeding, as well as that of the child, a petition to restore parental rights could be filed provided: (i) at least two years had elapsed since issuance of the order transferring guardianship and custody of the child; (ii) the original adjudication terminating parental rights could not have been based upon severe or repeated child abuse; and (iii) the child would have to be under the jurisdiction of the Family Court and have a permanency goal other than adoption. The agency to which guardianship and custody had been committed must consent unless the court finds that the consent had been withheld without good cause. Family Court is authorized to grant the petition where clear and convincing proof establishes that restoration of parental rights would be in the child's best interests. This restoration would, in effect, revoke the disposition transferring guardianship and custody of the child but would leave in place the fact-finding upon which the termination of parental rights adjudication had been based. A clause also would be added to the permanency hearing order provision permitting the Court to recommend the filing of a petition to restore parental rights.

The court has the authority to grant the restoration petition conditionally. This option would retain guardianship and custody of the child with the agency but authorize the child to reside with the birth parent on a trial discharge for a period of up. to six months, during which time the agency may be directed to supervise the family and to develop a reunification plan with appropriate transitional services. If temporary restoration proves successful and in the child's best interests, it could be made final at the end of the designated period and guardianship and custody would be transferred at that time to the birth parent. If, however, the child were removed from the birth parent during the designated period by reason of abuse or neglect, the Court could dismiss the restoration petition and direct the agency that retains guardianship and custody to make efforts to further an alternative permanency plan for the child. See NY Legis Memo 343 (2010).


Chapter 363

Repealed & Added Judiciary Law §212 sub 2 P(n).

Extends for two years authorization of courts to designate referees to determine order-of-protection applications by Family Courts based, in part, on ex parte conversations. The state empowered the referees to issue the orders when first approving their use against non-family members in 2008. Grants the chief administrator of the courts the authority to allow referees to determine applications to a family court for an order of protection when such application is made ex parte or without the presence of all the parties except the applicant; specifies that such provisions shall only apply during those hours that the family court is in session and after 5:00 p.m.

Effective date August 13, 2010. (Laws of 2010, Ch 363 effective 8.13.10 (This act shall take effect immediately; provided that paragraph (n) of subdivision 2 of section 212 of the judiciary law, as Added by section one of this act, shall expire and be deemed repealed September 1, 2012.)


Chapter 371

Amends Domestic Relations Law § 236.

Amends Domestic Relations Law § 236 [B][6] to add a subdivision 5-a which revises the process for setting awards of temporary maintenance during the pendency of a matrimonial action, by creating a formula and list of factors that presumptively govern such awards. It amends Domestic Relations Law § 236 [B][1][a] to update the definition of “maintenance” by cross-referencing it to Domestic Relations Law § 236 [B] [6] subdivision 5-a.
It also amends Domestic Relations Law § 236 [B][6] to add 5 new factors for the court to consider in determining the amount and duration of maintenance. Subdivision 3 directs the law revision commission to study the effects of divorce and maintenance.

Effective date August 13, 2010. (Laws of 2010, Ch 371 (8.13.10) (§ 6. This act shall take effect immediately; provided, however, that sections one, two and four of this act shall take effect on the sixtieth day after this act shall have become a law and shall apply to matrimonial actions commenced on or after the effective date of such sections.)


Chapter 384

Amends Domestic Relations Law 170 to add subdivision 7.

Provides that spouses may be granted a judgment of divorce in a timely fashion provided the relationship between husband and wife is irretrievably broken” for a period of at least six months, provided that one party has so stated under oath. No judgment of divorce may be granted unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.

Effective October 12, 2010. Laws of 2010, Ch 384, (8.13.10) (§ 2. This act shall take effect on the sixtieth day after it shall have become a law and shall apply to matrimonial actions commenced on or after such effective date.)


Chapter 415

Amends Chapter 329 of the Laws of 2010 (which amended DRL 237 and 238) to change its effective date from 120 days after it shall have become a law to 60 days after it shall have become a law. Effective date August 13, 2010. Laws of 2010, Ch 415. (8.13.10)

Chapter 421

Amends Family Court Act 352.3 to add (1-a)

Authorizes family courts to issue orders of protection for the protection of witnesses.
Provides that upon the issuance of an order pursuant to Family Court Act 315.3 or the
entry of an order of disposition pursuant to Family Court Act 352.2, a court may, for good cause shown, enter an order of protection against any respondent requiring that the respondent refrain from engaging in conduct, against any designated witness specifically named by the court in the order, that would constitute intimidation of a witness pursuant to section 215.15, 215.16 or 215.17 of the penal law or an attempt thereof provided that the court makes a finding that the respondent did previously, or is likely to in the future, intimidate or attempt to intimidate such witness in such manner.

Effective November 28, 2010


Chapter 446

Amends Family Court Act 153-b; amends Domestic Relations Law 240 (3-a) in relation to service of orders of protection including applications to extend and petitions for violations of orders of protection and temporary orders of protection in family court.

Clarifies that litigants have the same options of peace and police officer service for orders and temporary orders and legal papers issued in later stages of family offense proceedings including service of extended orders and for petitions
alleging violations of orders of protection as they have for original orders and accompanying pleadings. Makes it clear that such service must be available
without fee to the litigants. The provision prohibiting fees from being charged by police and peace officers for service of all orders of
protection, whether issued upon default, temporary, modified, final, or
extended as well as associated petitions and summonses, emphasizes legislation enacted in 2007. That statute amended section 8011 of the Civil Practice Law and Rules to prohibit sheriffs from charging the statutory $45 fee and any mileage fees for service of orders of protection and related orders or papers when service has been directed by the court. See L. 2007, c. 36. The statute is essential to ensure compliance by New York State with The Federal Violence Against Women Act.
42 U.S.C.A. S3796hh(c)(4).

Effective August 30, 2010.

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