Fourth Department Holds Credit For College Expenses Not Mandatory

In Pistilli v Pistilli, --- N.Y.S.2d ----, 2008 WL 2713989 (N.Y.A.D. 4 Dept.) following the entry of a judgment that, inter alia, granted plaintiff a divorce, plaintiff moved to modify the judgment by "[d]istributing the actual and anticipated college education costs associated with the parties' children," specifically the parties' daughter, between the parties. Defendant cross-moved for an order directing that he pay 60% of the college education expenses of the parties' daughter and reducing his child support obligation accordingly. Defendant appealed from an order requiring him to pay 80% of the daughter's college expenses based on Supreme Court's determination that defendant "shall contribute to college costs 'in accordance with his percentage' " of the parties' combined parental income and denying his cross motion seeking a reduction in his child support obligation. Pursuant to an oral stipulation of the parties that was incorporated but not merged into the judgment of divorce, the parties "agreed to contribute to [their children's college expenses] as they are then financially able." The Appellate Division held that the court erred in failing to consider defendant's maintenance obligation in calculating the percentage of defendant's contribution to the daughter's college expenses. After subtracting from defendant's income the amount of taxable maintenance paid to plaintiff as indicated on the parties' respective 2005 tax returns, which were used by the court in determining the parties' respective incomes, it concluded that defendant's percentage of the combined parental income was 64% rather than 80%, and thus defendant's pro rata share of the daughter's college expenses was reduced from 80% to 64%. It rejected defendant’s contention that the court erred in determining that he was entitled to a credit against his child support obligation only in the amount of his pro rata share of the daughter's college meal plan. It held that a credit against child support for college expenses is not mandatory but depends upon the facts and circumstances in the particular case, taking into account the needs of the custodial parent to maintain a household and provide certain necessaries. Because plaintiff had to maintain a household for the daughter during the daughter's school breaks and weekend visits, it could not be said that defendant was entitled to a credit for the daughter's rooming expenses. Nevertheless, inasmuch as we it reduced defendant's pro rata share of the daughter's college expenses from 80% to 64%, defendant's child support credit based on the college meal plan had to reflect that reduction and it modified the order accordingly.

District Court Establishes Rules For Default Judgment in Hague Case

In Aguirre v Calle, 2008 WL 4461931 (E. D. N. Y.) Petitioner alleged that her seven-year-old daughter, who resided in Colombia with her from the time she was four months old, was illegally retained in the United States by the child's biological father, Mr. Calle , following an authorized, 30-day custodial visit to his home in Elmhurst, New York. She further alleged that, as the parent with sole custody of her daughter under Colombia law, she made both formal and informal attempts to have her daughter returned to her habitual residence in Colombia. Respondent never responded to the Verified Complaint and failed to appear before the Court in connection with the case. On August 26, 2008, Petitioner filed a Motion for Entry of Default and Notation of Default, in response to which a Clerk's Entry of Default was entered on that same day. The following day, the matter was referred to Magistrate Judge Gold for an inquest as to damages and a report and recommendation under the Notation of Default.
The Magistrate judge found that Carolina was born in the United States on November 11, 2000. Aguirre and Calle had never been married to each other and they ended their relationship prior to Carolina's birth. Aguirre informed Calle of her intention to return to Colombia with Carolina and, according to the complaint in this action, Calle did not object. On March 19, 2001, Aguirre and Carolina moved to Colombia where they lived since Carolina was 4 months old. There was no custody agreement between Carolina's parents and there was no judicial or administrative determination of their rights either in Colombia or the United States. In the summer of 2005, Aguirre authorized a visit for Carolina with Calle in the United States for 20 days. Calle returned Carolina to Colombia without incident. In 2007, Aguirre again authorized Carolina to visit with Calle in the United States, for one month from June 27, 2007 through July 27, 2007. On July 4, 2007, Calle told Aguirre that he would not be returning Carolina because he wanted to keep her in New York. Calle failed to return Carolina to Colombia as scheduled. Aguirre had not seen Carolina since June 27, 2007. Aguirre had some telephonic contact with Carolina over the past year, although Calle recently terminated his cell phone service. Aguirre has asked Calle to return Carolina. Aguirre made formal requests for the return of Carolina, filed with the United States Department of State and the National Center for Missing and Exploited Children. The Magistrate judge held that that once found to be in default, a defendant is deemed to have admitted all of the well-pleaded allegations in the complaint pertaining to liability. Citing Greyhound Exhibitgroup, Inc., v. E.L .U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir.1992), cert. denied, 506 U.S. 1080, 113 S.Ct. 1049 (1993); Montcalm Pub. Corp. v. Ryan, 807 F.Supp. 975, 977 (S.D.N.Y.1992). A court, however, retains the discretion to determine whether a final default judgment is appropriate. Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir.1993). Even after a defendant has defaulted, "[a] plaintiff must ... establish that on the law it is entitled to the relief it seeks, given the facts as established by the default." U.S. v. Ponte, 246 F.Supp.2d 74, 76 (D. Me.2003). For petitioner to prevail she had to establish with the facts alleged in her petition--that (1) the child was habitually resident in one country; (2) petitioner had custody rights under the law of the place of habitual residence, and was exercising those rights at the time of the removal or retention; and (3) the removal or retention was in breach of petitioner's custody rights. Villegas Duran v. Arribada Beaumont, 534 F.3d 142, 147 (2d Cir.2008). Aguirre sufficiently alleged these three elements in her petition. The Magistrate judge found that the parents' last shared intent was for Carolina to reside in Colombia. Aguirre took Carolina to Colombia at 4 months old without objection by Calle. For the past six years, Carolina lived in Colombia and attended school there. The only times that Carolina stayed in the United States with her mother's consent were for the first 4 months of her life, during one 20-day visit with Calle in 2005, and for the first 30 days of her visit with Calle in 2007. Although Carolina had now been in the United States for over a year, there was no evidence that Carolina had acclimatized to the United States. The Magistrate judge found that the well-pleaded allegations of the complaint sufficiently established that, prior to the retention, Carolina was a habitual resident of Colombia. Title XII of the Colombian Civil Code sets forth the rights and duties between parents and children. Article 253 provides, "Both parents ... shall exercise the parental care in the upbringing and education of their legitimate children." Title XIV of the Colombian Civil Code sets forth the rights of "Patria Potestas." Article 288 provides that "Paternal authority is the set of rights that the law acknowledges to the parents over their non-emancipated children ...." It further provides that, "The exercise of the parental authority over their legitimate children shall be exercised jointly by both parents. In the absence of one of the parents, the other parent shall exercise the paternal authority." Article 338 of the Colombian Minors' Code provides that, "When a minor is going to go out of the country with one of the parents or with a person different from their legal representatives, they should previously obtain the permission of the parent or legal representative who is not traveling, authenticated before a notary or consular authority." Article 310 of Title XIV of the Colombian Civil Code provides that an individual's parental authority ceases after his "prolonged absence." Accordingly, the Magistrate Judge found that under Colombian law, petitioner and respondent shared joint custodial rights. Because petitioner shared with respondent a joint right and responsibility of "parental care in the upbringing and education" of Carolina, Colombian Civil Code, Art. 253, Aguirre had a right of custody under the Hague Convention. The court noted that the Second Circuit has defined "custody of a child" as "the primary duty and ability to choose and give sustenance, shelter, clothing, moral and spiritual guidance, medical attention, education, etc...." Croll v. Croll, 229 F.3d 133, 138 (2d Cir.2000). Since Carolina's birth, Aguirre had sole custody of Carolina and taken responsibility for raising her. As the sole parent responsible for Carolina's care, Aguirre determined that Carolina would speak Spanish and attend school in Colombia, and that Carolina would be a Colombian National. Clearly, Aguirre had rights of custody under Colombian law that can be enforced by the Hague Convention. The Magistrate found that Aguirre was exercising her custody rights up until the time when Carolina was retained in the United States by Calle. Petitioner authorized Carolina's visit to the United States only for the period from June 27, 2007 through July 27, 2007. On July 4, 2007, Calle informed Aguirre that he would not return Carolina to Colombia at the end of July, and in fact he did not return her on the scheduled date. Over the past year, petitioner made formal and informal requests for Carolina's return to Colombia to no avail. Petitioner had thus sufficiently pled that Calle breached Aguirre's custody rights by his unilateral decision to retain Carolina in the United States after July 27, 2007.
On September 9, 2008, the Magistrate Judge issued a Report and Recommendation, recommending that the Court enter a judgment in favor of Petitioner "and that an order be entered directing the prompt return of Carolina Gutierrez Aguirre to her habitual residence" in Colombia. The Magistrate Judge recommended that Respondent be held liable for Petitioner's attorney's fees and costs, pursuant to Article 26 of the Hague Convention and 42 U.S.C. 11607. No objections to the Report were filed with the Court. The Court found no basis upon which to disturb the findings made by the Magistrate Judge. Therefore, the Court adopted and affirmed the Report in its entirety. Respondent was ordered immediately to return his daughter, Carolina Gutierrez Aguirre, to her habitual residence in Colombia and into the custody of her mother. The matter was referred back to the Magistrate Judge for an inquest with respect to the amount of attorney's fees and costs.

Fifth Circuit Holds Ne Exeat Rights Are Not "Rights of Custody"

In Abbott v Abbott, --- F.3d ----, 2008 WL 4210541 (5th Cir. 2008) the Fifth Circuit held that ne exeat rights do not constitute "rights of custody" within the meaning of the Hague Convention and affirmed the district court's judgment. Petitioner Timothy Abbott was a British citizen, and Respondent Jacquelyn Abbott was a U.S. citizen. The parties married in November 1992 in England, and their son was born in Hawaii in June 1995. Beginning in 2002, the parties and their son resided in La Serena, Chile. After the parties separated in March 2003, they litigated in the Chilean family courts. The mother was awarded custody, and the father was granted visitation rights. The Chilean courts entered four separate orders. The first, entered in January 2004, provided visitation rights to the father. The second, entered in November 2004, required the parties and their son to undergo private therapy, denied the father's request for custody rights, and granted all custodial rights to the mother. The third, entered in February 2005, expanded the father's visitation rights, including visitation for an entire month of summer vacation. On January 13, 2004, at the mother's request, the Chilean court entered a fourth order prohibiting the child's removal from Chile by either the father or the mother without their mutual consent (the "ne exeat order"). In August 2005, the mother removed the child from Chile without the father's consent. She and the child departed without notice in the midst of disputes over visitation and other issues. Motions were pending before the Chilean family court at the time of the child's removal, but the Chilean court had previously awarded all custody rights to the mother in its November 2004 order. The father located his son in Texas and then filed suit in the District Court and sought an order requiring that the child be returned to Chile pursuant to the Hague Convention. The district court held a bench trial in February 2007. The mother conceded that she had violated both the Chilean family court's ne exeat order and a Chilean statute that required the father's authorization before the child could leave Chile. The father argued that the ne exeat order and the statutory ne exeat provision gave him "rights of custody" within the meaning of the Hague Convention. The father also argued that Article 229 of the Chilean Civil Code afforded him certain "residual custodial rights," but the district court concluded that the statute clearly provides only for "access" or visitation rights (the right to "maintain a direct and regular relationship with the child"), not custody rights. See Villegas Duran v. Arribada Beaumont, No. 06-5614, 2008 U.S.App. LEXIS 15299, at *13-14 (2d Cir. July 18, 2008, amended July 22, 2008) (holding in Hague Convention case that Article 229 of the Chilean Civil Code addresses only visitation rights, not custody rights). The district court denied return of the child, finding that the child's removal from Chile did not constitute a breach of the father's "rights of custody" as defined by the Hague Convention. The Fifth Circuit pointed out that a Chilean statute concerning the departure of minors from Chile provides that if a non-custodial parent has visitation rights, that parent's authorization is required before the custodial parent can take the child out of the country (although a custodial parent may apply to the court for permission to remove the child for an authorized period of time). The Chilean statute concerning the departure of minors from Chile, according to the father's expert witness, provides in relevant part:“If the judge has entrusted custody to one of the parents or to a third party, the legitimate child may not leave except under authorization of the person to whom he has been entrusted. Once the court has decreed the obligation to allow visits pursuant to thepreceding article, authorization of the father or mother who has the right to visit a child shall also be required .... If the authorization cannot be granted or is denied without good reason by one of those who must give it by virtue of this article, it may be grantedby the Family Court Judge in the location where the minor resides. MINORS LAW 16,618 OF CHILE art. 49. The mother conceded that she violated the ne exeat order by unilaterally removing the parties' son. The Fifth Circuit held that the district court correctly found that the Chilean statute "does not confer rights distinguishable in any significant way from those conferred by the Chilean court's ne exeat order." Abbott v. Abbott, 495 F.Supp.2d 635, 638 n. 3 (W.D.Tex.2007). Therefore, in its analysis, any rights accruing to the father under the ne exeat order was treated the same as rights accruing under the statutory ne exeat provision. The Fifth Circuit noted that three federal appellate courts have determined that ne exeat orders and statutory ne exeat provisions do not create "rights of custody" under the Hague Convention. See Fawcett v. McRoberts, 326 F.3d 491, 500 (4th Cir.2003); Gonzalez v. Gutierrez, 311 F.3d 942, 948 (9th Cir.2002); Croll v. Croll, 229 F.3d 133, 138-39 (2d Cir.2000). One federal appellate court, however, has reached the opposite conclusion. See Furnes v. Reeves, 362 F.3d 702, 719 (11th Cir.2004). The issue was one of first impression in the Fifth Circuit. It noted that in Croll, the custodial mother removed the parties' child from Hong Kong without the consent of the child's father in violation of a Hong Kong court's custody order. The Second Circuit considered whether a ne exeat clause in the custody order coupled with rights of access (visitation) conferred "rights of custody" within the meaning of the Hague Convention. Recognizing that it was the first federal appellate court to consider the issue, the Second Circuit engaged in an exhaustive analysis of the purpose and design of the Hague Convention, its wording, the intent of its drafters and the case law of other signatory states. The Croll court considered the ordinary meaning of the phrase "rights of custody" and determined that the Hague Convention referred to a bundle of rights relating to custody, such that possessing only one of the rights did not amount to having "rights of custody." The Fifth Circuit found that the Second Circuit's analysis was consistent with the emphasis the Hague Convention places on "the right to determine the child's place of residence" because a ne exeat veto right is only a partial power--in other words, only one of a bundle of residence-determining rights. The Croll court stated that this "single veto power, even if leveraged, falls short of conferring a joint right to determine the child's residence, particularly since an earlier clause in the custody order awards 'custody[,] care and control' solely to the mother." The mother had the right to choose where the child would live within Hong Kong, and the father had no control over her choice. Furthermore, although the father could refuse to consent to the child's removal from Hong Kong, he could not require that the child live in another country; thus, he had only a veto right over the child's removal from Hong Kong rather than an affirmative right to determine the child's residence. The Fourth and Ninth Circuits have followed Croll, holding that ne exeat rights are not "rights of custody" under the Hague Convention. See Fawcett, 326 F.3d at 500; Gonzalez, 311 F.3d at 948. The Fifth Circuit also noted that the Eleventh Circuit had explicitly rejected Croll. Furnes, 362 F.3d at 719. The Furnes court determined that the custodial mother (who could determine where the child lived within Norway) and the non-custodial father (who could veto the child's removal from Norway) "each possessed elements of [the] place-of-residence right, which they exercised jointly." The Eleventh Circuit then held that a ne exeat right alone is sufficient to constitute a custody right: "We conclude that this ne exeat right grants [the father] a right of custody under the Hague Convention." The court explained, [E]ven if [the father's] ne exeat right is (we believe incorrectly) viewed as a mere "veto right" or limitation on [the mother's] right to determine [the child's] place of residence, we nevertheless believe that the ne exeat right under Norwegian law is a right of custody under the Convention .... [E]ven assuming arguendo that [the father] does not have the right to determine [the child's] place of residence, he has at the very least a veto right relating to the determination of her place of residence--that is, a right "relating to the care of the person" of [the child]. As such, the ne exeat right ... provides [the father] with a right of custody over [the child] as defined by the Hague Convention. The District Court found that although Ms. Abbott's removal of [the parties' son] violated and frustrated the Chilean court's order, so too would the removal of a child from a country in which any parent with rights of access resided. Mr. Abbott's right of access, however enhanced and protected by the ne exeat order, was simply not sufficient to create rights of custody that warrant the greater protection intended under the Hague Convention. This Court in no way condoned Ms. Abbott's action .... [The child's] residence in the United States obviously interferes with Mr. Abbott's visitation rights, as established by the Chilean court. However, the Hague Convention explicitly creates a different set of remedies for those parents whose rights of access are frustrated by the custodial parent's removal of a child .... Id. at 640-41 (citation and footnotes omitted). The district court denied return of the child, finding that the father did not establish by a preponderance of the evidence that his son's removal constituted a breach of "rights of custody" as defined by the Hague Convention. The Fifth Circuit noted that the ne exeat order prohibited either parent from removing the child from Chile without the consent of the other. The ne exeat order thus gave the father a veto right over his son's departure from Chile, but it did not give him any rights to determine where in Chile his child would live. Furthermore, the Chilean family court, in its second order, expressly denied the father's request for custody rights and awarded all custody rights to the mother. The Fifth Circuit found persuasive Croll's reasoning that the Hague Convention clearly distinguishes between "rights of custody" and "rights of access" and that ordering the return of a child in the absence of "rights of custody" in an effort to serve the overarching purposes of the Hague Convention would be an impermissible judicial amendment of the Convention. It held that ne exeat rights, even when coupled with "rights of access," do not constitute "rights of custody" within the meaning of the Hague Convention.

Eighth Circuit Concludes Abstention Inappropriate in Hague Convention Cases.

In Barzilay v Barzilay, 536 F.3d 844 (8th Cir. 2008) Sagi and Tamar Barzilay were both Israeli citizens. They had three children, all of whom were Israeli citizens. None of the children lived in Israel for an extended period of time. In 2001 the family moved to Missouri from the Netherlands, and Tamar and the children lived there since that time. On January 6, 2005 a Missouri state court entered a divorce decree in accordance with an agreement reached by the parties. It established joint custody of the children. In the decree the parties agreed that upon the repatriation of one parent to Israel, the other parent would "forthwith" return to Israel with the minor children to live. On September 15, 2005 Sagi repatriated to Israel, but Tamar and the children remained in Missouri. In June 2006 Tamar took the children to Israel for a visit, intending to return to the United States on July 9, 2006. On July 3, 2006 Sagi filed an ex parte request for stay of exit of minors in the family court of K'far Saba, Israel and argued that Tamar had violated the Missouri court decree by failing to repatriate to Israel with the children. The parties entered into a consent agreement in which Tamar agreed to an interim international parenting agreement pending her repatriation to Israel consistent with the Missouri divorce decree and to repatriate to Israel with the children by August 1, 2009. The parties agreed, among other things, that Tamar's repatriation by the appointed date was an "irrevocable commitment" and that the "sole and only international authority in regards to the minors' immigration, repatriation and custody" was the court in K'far Saba. The consent agreement was formalized in a verdict of the Israeli court. Tamar testified in an affidavit submitted to the federal district court that she only signed the Israeli consent agreement so that she would be permitted to leave the country with the children and that she had no intention of complying with its terms. On December 3, 2006, Sagi sued Tamar in the Israeli court, on the grounds that she had not complied with the consent decree by refusing to permit the children to visit Israel as agreed upon in the consent agreement. On July 3, 2007, the Israeli court issued a judgment holding Tamar in contempt of court for failing to return the children to Israel for a visit as required under the agreement and ordered her to do so by July 10, 2007. She appealed, but the lower court was affirmed on November 26, 2007. Meanwhile on June 6, 2007, Tamar filed a petition in Missouri state court to modify the couple's divorce decree to restrict Sagi's visitation rights with the children and a month later she moved for a temporary restraining order to prevent the enforcement of the Israeli judgment requiring her to send the children to Israel by July 10. Sagi entered an appearance for limited purpose in state court to challenge its jurisdiction, but at no time did he file a Hague petition there. On October 16, 2007, the state court issued an order denying Sagi's motion to dismiss or in the alternative to decline jurisdiction. In its two page order the court stated that "[t]he mere presence of the minor children on vacation in Israel is insufficient to establish a 'habitual presence' [under ICARA]." Sagi filed suit in the Eastern District of Missouri on October 18, 2007, seeking immediate access to the children and their return to Israel under ICARA.3(b). The district court abstained from hearing the case pursuant to Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971 to avoid interfering with a state court ruling on what it considered the merits of a Hague Convention claim.
The Eighth Circuit reversed. It pointed out that Federal courts have a "virtually unflagging obligation ... to exercise the jurisdiction given them." Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). However, the Supreme Court has articulated several abstention doctrines as exceptions to this rule, one of which is the Younger doctrine. In order for a federal court to abstain under the Younger doctrine there must be an ongoing state proceeding which implicates important state interests and which affords an adequate opportunity to raise the federal issues. Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982); Silverman I, 267 F.3d at 792. It noted that the Hague Convention requires that state court custody proceedings be stayed until the resolution of the Hague litigation. ("[T]he judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention.") Yang v. Tsui, 416 F.3d 199, 201 (3d Cir.2005). It is consistent with this purpose that it is the custody determination, not the Hague Convention Petition, that should be held in abeyance if proceedings are going forward in both state and federal courts." The pendency of state custody proceedings does not support Younger abstention in the Hague Convention context. Moreover, given that Sagi obtained a custody determination from an Israeli court and Tamar obtained a custody determination from a state court in this country, the federal district court was uniquely situated to adjudicate the question of whether Israel or Missouri was the habitual residence of the Barzilay children and whether they were wrongfully removed from that residence. Although the state clearly has an important interest in child custody matters, that interest has not been considered to be a significant factor in terms of abstention where ICARA is involved. See Yang, 416 F.3d at 204 ("It would make the Hague Convention and ICARA meaningless if a federal court abstained in a Hague Convention Petition because child custody was being disputed in state court."). The Court found that the state court proceedings did not afford Sagi an adequate opportunity to raise the Hague Convention issues. The controlling case in the Eighth Circuit was Silverman I, which concluded that abstention was inappropriate in Hague Convention cases. 267 F.3d at 792. The district court sought to distinguish Silverman I, citing the Third Circuit's decision in Yang which recognized situations in which the Hague Convention issues could be litigated in state court. The Eighth Circuit noted that it is the "petitioner [who] is free to choose between state or federal court." Yang, 416 F.3d at 203. Neither Tamar nor Sagi filed a Hague petition in state court. Tamar merely referenced the Hague Convention twice, in her motion to modify the divorce decree, and in her motion for a temporary restraining order. At no time did Tamar file a Hague petition in the Missouri court. She did not request the state court to make a habitual residence determination under the Hague Convention. She did not allege or ask the state court to rule that Sagi had wrongfully removed the children to Israel or wrongfully retained them there. Sagi's special appearance in Missouri was for the "limited purpose of opposing [the state court's] jurisdiction." Sagi restricted his state court arguments to jurisdictional issues. He never raised the Hague Convention before the state court except to contest its exercise of jurisdiction. Sagi never engaged in an argument in the state court on the merits of the Hague Convention considerations--habitual residence and wrongful removal. Rather, he informed the state court that he intended to file a Hague petition in federal district court to litigate the merits of the Hague issues in that forum. Because neither parent filed a Hague petition in state court, the Eighth Circuit concluded that the Hague Convention issues were not properly or fully raised in that proceeding. The parties did not litigate the merits of such issues, and any statement by the state court touching on an issue under the Hague Convention inquiry is not controlling. It is "the petitioner [who] is free to choose between state or federal court," Yang, 416 F.3d at 203, and in the absence of a Hague petition the state court proceeding did not present an adequate opportunity to litigate ICARA issues. It was therefore an abuse of discretion for the district court to abstain.

Good Faith Allegation of Abuse Cannot Be Held Against Accuser in Custody Proceedings

Domestic Relations Law § 240, subdivision 1 (a) was amended to provide that a good faith allegation of abuse cannot be held against the accuser in child custody proceedings. The amendment to the statute is intended to ensure that the accuser engaging in a good faith effort to protect or seek treatment for the child due to the child abuse or neglect cannot have these actions used against them when determining custody or visitation. If a parent makes a good faith allegation based on a reasonable belief which is 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 may 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 must consider such evidence of abuse in determining the visitation arrangement that is in the best interest of the child, and the court may not place a child in the custody of a parent who presents a substantial risk of harm to that child. Laws of 2008, Ch 538, effective September 4, 2008.