N.Y. Family Court Act § 651: Jurisdiction over habeas corpus proceedings and petitions for custody and visitation of minors

§ 651. Jurisdiction over habeas corpus proceedings and petitions for

custody and visitation of minors. (a) When referred from the supreme

court or county court to the family court, the family court has

jurisdiction to determine, in accordance with subdivisions one and one-c

of section two hundred forty of the domestic relations law and with the

same powers possessed by the supreme court in addition to its own

powers, habeas corpus proceedings and proceedings brought by petition

and order to show cause, for the determination of the custody or

visitation of minors.

(b) When initiated in the family court, the family court has

jurisdiction to determine, in accordance with subdivision one of section

two hundred forty of the domestic relations law and with the same powers

possessed by the supreme court in addition to its own powers, habeas

corpus proceedings and proceedings brought by petition and order to show

cause, for the determination of the custody or visitation of minors,

including applications by a grandparent or grandparents for visitation

or custody rights pursuant to section seventy-two or two hundred forty

of the domestic relations law.

(c) When initiated in the family court pursuant to a petition under

part eight of article ten of this act or section three hundred

fifty-eight-a of the social services law, the family court has

jurisdiction to enforce or modify orders or judgments of the supreme

court relating to the visitation of minors in foster care,

notwithstanding any limitation contained in subdivision (b) of section

four hundred sixty-seven of this act.

(c-1) Where a proceeding filed pursuant to article ten or ten-A of

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

family court pursuant to this article, the court presiding over the

proceeding under article ten or ten-A of this act may jointly hear the

hearing on the custody and visitation petition under this article and

the dispositional hearing on the petition under article ten or the

permanency hearing under article ten-A of this act; provided, however,

the court must determine the custody and visitation petition in

accordance with the terms of this article.

(d) With respect to applications by a grandparent or grandparents for

visitation or custody rights, made pursuant to section seventy-two or

two hundred forty of the domestic relations law, with a child remanded

or placed in the care of a person, official, agency or institution

pursuant to the provisions of article ten of this act, the applicant, in

such manner as the court shall prescribe, shall serve a copy of the

application upon the social services official having care and custody of

such child, and the child's attorney, who shall be afforded an

opportunity to be heard thereon.

(e) 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 paragraph three of this subdivision.

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

paragraph three of this subdivision, 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 this act, and all warrants issued under this 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 this 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 paragraph three of this subdivision.

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 paragraph three of this subdivision 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 paragraph four of this subdivision 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 family 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 family 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 thirty-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.

(f) 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

paragraph three of this subdivision. 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

paragraph three of this subdivision. 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 purpose, 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 subdivision, 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 subdivision shall not apply to assignments to permanent duty

stations or permanent changes of station.