N.Y. Domestic Relations Law § 240: Custody and child support; orders of protection

§ 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. Where a

proceeding filed pursuant to article ten or ten-A of the family court

act is pending at the same time as a proceeding brought in the supreme

court involving the custody of, or right to visitation with, any child

of a marriage, the court presiding over the proceeding under article ten

or ten-A of the family court act may jointly hear the dispositional

hearing on the petition under article ten or the permanency hearing

under article ten-A of the family court act and, upon referral from the

supreme court, the hearing to resolve the matter of custody or

visitation in the proceeding pending in the supreme court; provided

however, the court must determine custody or visitation in accordance

with the terms of this section.

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.

(a-3) Court ordered forensic evaluations involving child custody and

visitation. (1) The court may appoint a forensic evaluator on behalf of

the court to evaluate and investigate the parties and a child or

children in a proceeding involving child custody and visitation provided

that the child custody forensic evaluator is a psychologist, social

worker or psychiatrist who is licensed in the state of New York and has

received within the last two years, a certification of completion for

completing the training program pursuant to paragraph (o) of subdivision

three of section five hundred seventy-five of the executive law.

(2) Notwithstanding any provision of law to the contrary, no

individual shall be appointed by a court to conduct a forensic

evaluation in a proceeding involving child custody and visitation

pursuant to this paragraph unless such individual has received within

the last two years, a certification of completion for completing the

training program pursuant to paragraph (o) of subdivision three of

section five hundred seventy-five of the executive law.

(3) A psychologist, social worker or psychiatrist authorized to

conduct court ordered child custody forensic evaluations pursuant to

this section shall notify the court in which such individual requests to

be considered for such court ordered evaluations. Any psychologist,

social worker or psychiatrist who no longer meets the requirements of

this section in regards to completing within the last two years the

training program pursuant to paragraph (o) of subdivision three of

section five hundred seventy-five of the executive law shall be

obligated to inform such courts within seventy-two hours of

noncompliance so as to be removed from consideration for court ordered

evaluations.

(4) Upon appointment, the court shall require such child custody

forensic evaluator to show proof of certification for completing within

the last two years the training program pursuant to paragraph (o) of

subdivision three of section five hundred seventy-five of the executive

law.

(5) A court shall appoint a forensic evaluator who has completed the

training program pursuant to paragraph (o) of subdivision three of

section five hundred seventy-five of the executive law when the child is

living out-of-state and is farther than one hundred miles from the New

York state border; provided, however, that such forensic custody

evaluation may be conducted remotely utilizing videoconferencing

technology. The evaluator must take all steps reasonably available to

protect the confidentiality of the child's disclosures for any

evaluation conducted remotely utilizing videoconferencing technology, as

needed.

(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,

(H) annuity payments, and

(I) alimony or maintenance actually paid or to be paid to a spouse who

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, in which event the order or

agreement shall provide 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; provided, however,

that the specific adjustment in the amount of child support is without

prejudice to either party's right to seek a modification in accordance

with subparagraph two of paragraph b of subdivision nine of part B of

section two hundred thirty-six of this article. In an action or

proceeding to modify an order of child support, including an order

incorporating without merging an agreement, issued prior to the

effective date of this subclause, the provisions of this subclause shall

not, by themselves, constitute a substantial change of circumstances

pursuant to paragraph b of subdivision nine of part B of section two

hundred thirty-six of this article.

(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 indirectly 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;

In determining the amount of income that may be attributed or imputed,

the court shall consider the specific circumstances of the parent, to

the extent known, including such factors as the parent's assets,

residence, employment and earning history, job skills, educational

attainment, literacy, age, health, criminal record and other employment

barriers, record of seeking work, the local job market, the availability

of employers willing to hire the parent, prevailing earnings level in

the local community, and other relevant background factors such as the

age, number, needs, and care of the children covered by the child

support order. Attribution or imputation of income shall be accompanied

by specific written findings identifying the basis or bases for such

determination utilizing factors required or permitted to be considered

pursuant to this clause;

(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; provided that incarceration shall not be considered

voluntary unemployment;

(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 who

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, in which event the order or

agreement shall provide 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; provided, however,

that the specific adjustment in the amount of child support is without

prejudice to either party's right to seek a modification in accordance

with subparagraph two of paragraph b of subdivision nine of part B of

section two hundred thirty-six of this article. In an action or

proceeding to modify an order of child support, including an order

incorporating without merging an agreement, issued prior to the

effective date of this subclause, the provisions of this subclause shall

not, by themselves, constitute a substantial change of circumstances

pursuant to paragraph b of subdivision nine of part B of section two

hundred thirty-six of this article.

(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 support

obligation shall be based on available information about the specific

circumstances of the parent, in accordance with clause (iv) of

subparagraph five of paragraph (b) of this subdivision. 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:

(A) 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:

(1) rape in the first or second degree;

(2) course of sexual conduct against a child in the first degree;

(3) predatory sexual assault; or

(4) predatory sexual assault against a child; or

(B) be placed in the custody of or have unsupervised visits with a

person who has been convicted of a felony sex offense, as defined in

section 70.80 of the penal law, or convicted of an offense in another

jurisdiction which, if committed in this state, would constitute such a

felony sex offense, where the victim of such offense was the child who

is the subject of the proceeding.

(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;

(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) (i) to promptly return specified identification documents to the

protected party, in whose favor the order of protection or temporary

order of protection is issued; provided, however, that such order may:

(A) include any appropriate provision designed to ensure that any such

document is available for use as evidence in this proceeding, and

available if necessary for legitimate use by the party against whom such

order is issued; and (B) specify the manner in which such return shall

be accomplished.

(ii) For purposes of this subparagraph, "identification document"

shall mean any of the following: (A) exclusively in the name of the

protected party: birth certificate, passport, social security card,

health insurance or other benefits card, a card or document used to

access bank, credit or other financial accounts or records, tax returns,

any driver's license, and immigration documents including but not

limited to a United States permanent resident card and employment

authorization document; and (B) upon motion and after notice and an

opportunity to be heard, any of the following, including those that may

reflect joint use or ownership, that the court determines are necessary

and are appropriately transferred to the protected party: any card or

document used to access bank, credit or other financial accounts or

records, tax returns, and any other identifying cards and documents;

(9) (i) to refrain from remotely controlling any connected devices

affecting the home, vehicle or property of the person protected by the

order.

(ii) For purposes of this subparagraph, "connected device" shall mean

any device, or other physical object that is capable of connecting to

the internet, directly or indirectly, and that is assigned an internet

protocol address or bluetooth address; and

(10) to observe such other conditions as are necessary to further the

purposes of protection.

a-1. Translation and interpretation of orders of protection. The

office of court administration shall, in accordance with paragraph (t)

of subdivision two of section two hundred twelve of the judiciary law,

ensure that a court order of protection and temporary order of

protection is translated in writing into the appropriate language for a

party to a proceeding where the court has appointed an interpreter. The

office of court administration shall ensure that the standard language

of the office of court administration order of protection and temporary

order of protection forms shall be translated in writing in the

languages most frequently used in the courts of each judicial department

in accordance with paragraph (t) of subdivision two of section two

hundred twelve of the judiciary law. A copy of the written translation

shall be given to each party in the proceeding, along with the original

order or temporary order of protection issued in English. A copy of this

written translation shall also be included as part of the record of the

proceeding. The court shall read the essential terms and conditions of

the order aloud on the record and direct the court appointed interpreter

to interpret the same terms and conditions. Such written translation or

interpretation shall not affect the validity or enforceability of the

order. In every case a party to a proceeding shall be provided with an

English copy of any court order of protection or temporary order of

protection issued. The authority provided herein shall be in addition to

and shall not be deemed to diminish or reduce any rights of the parties

under existing law.

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.

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.

* 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