NY-DOM Domestic Relations Law NY

Short title. This chapter shall be known as the "Domestic

Relations Law."

Definitions. A "minor" or "infant", as used in this chapter, is

a person under the age of eighteen years.

Incestuous and void marriages. A marriage is incestuous and void

whether the relatives are legitimate or illegitimate between either:

1. An ancestor and a descendant;

2. A brother and sister of either the whole or the half blood;

3. An uncle and niece or an aunt and nephew.

If a marriage prohibited by the foregoing provisions of this section

be solemnized it shall be void, and the parties thereto shall each be

fined not less than fifty nor more than one hundred dollars and may, in

the discretion of the court in addition to said fine, be imprisoned for

a term not exceeding six months. Any person who shall knowingly and

wilfully solemnize such marriage, or procure or aid in the solemnization

of the same, shall be deemed guilty of a misdemeanor and shall be fined

or imprisoned in like manner.

Void marriages. A marriage is absolutely void if contracted by a

person whose husband or wife by a former marriage is living, unless

either:

1. Such former marriage has been annulled or has been dissolved for a

cause other than the adultery of such person; provided, that if such

former marriage has been dissolved for the cause of the adultery of such

person, he or she may marry again in the cases provided for in section

eight of this chapter and such subsequent marriage shall be valid;

3. Such former marriage has been dissolved pursuant to section seven-a

of this chapter.

Voidable marriages. A marriage is void from the time its nullity

is declared by a court of competent jurisdiction if either party

thereto:

1. Is under the age of legal consent, which is eighteen years;

2. Is incapable of consenting to a marriage for want of understanding;

3. Is incapable of entering into the married state from physical

cause;

4. Consent to such marriage by reason of force, duress or fraud;

5. Has been incurably mentally ill for a period of five years or more.

Marriage after divorce. Whenever, and whether prior or subsequent

to September first, nineteen hundred sixty-seven, a marriage has been

dissolved by divorce, either party may marry again.

Marriage a civil contract. Marriage, so far as its validity in

law is concerned, continues to be a civil contract, to which the consent

of parties capable in law of making a contract is essential.

Parties to a marriage. 1. A marriage that is otherwise valid

shall be valid regardless of whether the parties to the marriage are of

the same or different sex.

2. No government treatment or legal status, effect, right, benefit,

privilege, protection or responsibility relating to marriage, whether

deriving from statute, administrative or court rule, public policy,

common law or any other source of law, shall differ based on the parties

to the marriage being or having been of the same sex rather than a

different sex. When necessary to implement the rights and

responsibilities of spouses under the law, all gender-specific language

or terms shall be construed in a gender-neutral manner in all such

sources of law.

Religious exception. 1. Notwithstanding any state, local or

municipal law, rule, regulation, ordinance, or other provision of law to

the contrary, a religious entity as defined under the education law or

section two of the religious corporations law, or a corporation

incorporated under the benevolent orders law or described in the

benevolent orders law but formed under any other law of this state, or a

not-for-profit corporation operated, supervised, or controlled by a

religious corporation, or any employee thereof, being managed, directed,

or supervised by or in conjunction with a religious corporation,

benevolent order, or a not-for-profit corporation as described in this

subdivision, shall not be required to provide services, accommodations,

advantages, facilities, goods, or privileges for the solemnization or

celebration of a marriage. Any such refusal to provide services,

accommodations, advantages, facilities, goods, or privileges shall not

create any civil claim or cause of action or result in any state or

local government action to penalize, withhold benefits, or discriminate

against such religious corporation, benevolent order, a not-for-profit

corporation operated, supervised, or controlled by a religious

corporation, or any employee thereof being managed, directed, or

supervised by or in conjunction with a religious corporation, benevolent

order, or a not-for-profit corporation.

2. Notwithstanding any state, local or municipal law or rule,

regulation, ordinance, or other provision of law to the contrary,

nothing in this article shall limit or diminish the right, pursuant to

subdivision eleven of section two hundred ninety-six of the executive

law, of any religious or denominational institution or organization, or

any organization operated for charitable or educational purposes, which

is operated, supervised or controlled by or in connection with a

religious organization, to limit employment or sales or rental of

housing accommodations or admission to or give preference to persons of

the same religion or denomination or from taking such action as is

calculated by such organization to promote the religious principles for

which it is established or maintained.

3. Nothing in this section shall be deemed or construed to limit the

protections and exemptions otherwise provided to religious organizations

under section three of article one of the constitution of the state of

New York.

By whom a marriage must be solemnized. No marriage shall be

valid unless solemnized by either:

1. A clergyman or minister of any religion, or by the senior leader,

or any of the other leaders, of The Society for Ethical Culture in the

city of New York, having its principal office in the borough of

Manhattan, or by the leader of The Brooklyn Society for Ethical Culture,

having its principal office in the borough of Brooklyn of the city of

New York, or of the Westchester Ethical Society, having its principal

office in Westchester county, or of the Ethical Culture Society of Long

Island, having its principal office in Nassau county, or of the

Riverdale-Yonkers Ethical Society having its principal office in Bronx

county, or by the leader of any other Ethical Culture Society affiliated

with the American Ethical Union; provided that no clergyman or minister

as defined in section two of the religious corporations law, or Society

for Ethical Culture leader shall be required to solemnize any marriage

when acting in his or her capacity under this subdivision.

1-a. A refusal by a clergyman or minister as defined in section two of

the religious corporations law, or Society for Ethical Culture leader to

solemnize any marriage under this subdivision shall not create a civil

claim or cause of action or result in any state or local government

action to penalize, withhold benefits or discriminate against such

clergyman or minister.

2. The current or a former governor, a mayor of a village, a county

executive of a county, or a mayor, recorder, city magistrate, police

justice or police magistrate of a city, a former mayor or the city clerk

of a city of the first class of over one million inhabitants or any of

his or her deputies or not more than four regular clerks, designated by

him or her for such purpose as provided in section eleven-a of this

article, except that in cities which contain more than one hundred

thousand and less than one million inhabitants, a marriage shall be

solemnized by the mayor, or police justice, and by no other officer of

such city, except as provided in subdivisions one and three of this

section.

2-a. A member of the New York state legislature, provided that such

person shall not charge or receive a fee.

3. A judge of the federal circuit court of appeals for the second

circuit, a judge of a federal district court for the northern, southern,

eastern or western district of New York, a judge of the United States

court of international trade, a federal administrative law judge

presiding in this state, a justice or judge of a court of the unified

court system, a housing judge of the civil court of the city of New

York, a retired justice or judge of the unified court system or a

retired housing judge of the civil court of the city of New York

certified pursuant to paragraph (k) of subdivision two of section two

hundred twelve of the judiciary law, the clerk of the appellate division

of the supreme court in each judicial department, a retired city clerk

who served for more than ten years in such capacity in a city having a

population of one million or more or a county clerk of a county wholly

within cities having a population of one million or more; or,

3-a. A judge or peacemaker judge of any Indian tribal court, a chief,

a headman, or any member of any tribal council or other governing body

of any nation, tribe or band of Indians in this state duly designated by

such body for the purpose of officiating at marriages, or any other

persons duly designated by such body, in keeping with the culture and

traditions of any such nation, tribe or band of Indians in this state,

to officiate at marriages.

3-b. A one-day marriage officiant, as designated by a town or city

clerk pursuant to section eleven-d of this article; or,

4. A written contract of marriage signed by both parties and at least

two witnesses, all of whom shall subscribe the same within this state,

stating the place of residence of each of the parties and witnesses and

the date and place of marriage, and acknowledged before a judge of a

court of record of this state by the parties and witnesses in the manner

required for the acknowledgment of a conveyance of real estate to

entitle the same to be recorded.

5. Notwithstanding any other provision of this article, where either

or both of the parties is under the age of eighteen years a marriage

shall be solemnized only by those authorized in subdivision one of this

section or by (1) the mayor of a city or village, or county executive of

a county, or by (2) a judge of the federal circuit court of appeals for

the second circuit, a judge of a federal district court for the

northern, southern, eastern or western district of New York, a judge of

the United States court of international trade, or a justice or a judge

of a court of the unified court system, or by (3) a housing judge of the

civil court of the city of New York, or by (4) a former mayor or the

clerk of a city of the first class of over one million inhabitants or

any of his or her deputies designated by him or her for such purposes as

provided in section eleven-a of this chapter.

6. Notwithstanding any other provisions of this article to the

contrary no marriage shall be solemnized by a public officer specified

in this section, other than a judge of a federal district court for the

northern, southern, eastern or western district of New York, a judge of

the United States court of international trade, a federal administrative

law judge presiding in this state, a judge or justice of the unified

court system of this state, a housing judge of the civil court of the

city of New York, or a retired judge or justice of the unified court

system or a retired housing judge of the civil court certified pursuant

to paragraph (k) of subdivision two of section two hundred twelve of the

judiciary law, nor by any of the persons specified in subdivision

three-a of this section, outside the territorial jurisdiction in which

he or she was elected, appointed or duly designated. Such a public

officer, however, elected or appointed within the city of New York may

solemnize a marriage anywhere within such city.

7. The term "clergyman" or "minister" when used in this article, shall

include those defined in section two of the religious corporations law.

The word "magistrate," when so used, includes any person referred to in

the second or third subdivision.

Duty of city clerk in certain cities of the first class;

facsimile signature of said clerk authorized. 1. a. The city clerk of a

city of the first class of over one million inhabitants may designate in

writing any or all of the deputy city clerks and from among the

permanent members of the city clerk's staff as many staff members as the

city clerk deems necessary to perform marriage ceremonies, which

designation shall be in writing and be filed in the office of such city

clerk. The day of such filing shall be endorsed on the designation. Any

such designation shall be and remain in effect for six months from the

filing thereof.

b. Whenever persons to whom the city clerk of any such city of the

first class shall have issued a marriage license shall request him to

solemnize the rites of matrimony between them and present to him such

license it shall be the duty of such clerk, either in person or by one

of his deputies or the permanent members of his staff so designated by

him to solemnize such marriage; provided, however, that nothing

contained either in this section or in subdivision two of section eleven

of this chapter shall be construed as empowering or requiring either the

said city clerk or any of his designated deputies or the permanent

members of his staff so designated to solemnize marriages at any place

other than at the office of such city clerk.

d. In all cases in which the city clerk of such city or one of his

deputies or the permanent members of his staff so designated shall

perform a marriage ceremony such official shall demand and be entitled

to collect therefor a fee to be fixed by the council of the city of New

York not exceeding twenty-five dollars, which sum shall be paid by the

contracting parties before or immediately upon the solemnization of the

marriage; and all such fees so received shall be paid over to the

commissioner of finance of the city.

2. The signature and seal of said clerk of cities of the first class

of over one million inhabitants upon the marriage license, certificate

of marriage, registration, and marriage search provided by this article

may be a facsimile imprinted, stamped, or engraved thereon.

3. The said clerk of cities of the first class of one million

inhabitants or more may designate among the permanent members of his

staff one or more individuals who shall be permitted to sign his name

and affix his official seal upon the marriage license, certificate of

marriage registration, and marriage search provided by this article

requiring the signature and seal of the city clerk.

Registration of persons performing marriage ceremonies in the

city of New York. Every person authorized by law to perform the

marriage ceremony, before performing any such ceremonies in the city of

New York, shall register his or her name and address in the office of

the city clerk of the city of New York. Every such person, before

performing any marriage ceremonies subsequent to a change in his or her

address, shall likewise register such change of address. Such city

clerk is hereby empowered to cancel the registration of any person so

registered upon satisfactory proof that the registration was fraudulent,

or upon satisfactory proof that such person is no longer entitled to

perform such ceremony.

Marriage officers. 1. Notwithstanding the provisions of

section eleven of this article or any other law, the governing body of

any village, town, or city may appoint one or more marriage officers who

shall have the authority to solemnize a marriage which marriage shall be

valid if performed in accordance with other provisions of law. Nothing

herein contained shall nullify the authority of other persons authorized

to solemnize marriages.

2. The number of such marriage officers appointed for a municipality

shall be determined by the governing body of the municipality. Such

marriage officers shall be eighteen years of age or over, and they shall

reside in the municipality by which they are appointed. A marriage

officer shall have the authority to solemnize a marriage within the

territory of the municipality which makes the appointment.

3. A marriage officer may receive a salary or wage in an amount to be

determined by the governing body of the municipality which appoints him

or her. In the event that a marriage officer receives a salary or wage,

he or she shall not receive any remuneration or consideration from any

other source for performing his or her duties. In the event that a

marriage officer does not receive a salary or wage, he or she may accept

and keep up to seventy-five dollars for each marriage at which he or she

officiates, paid by or on behalf of the persons married.

4. The term of office of a marriage officer shall be as determined by

the governing body which makes the appointment but shall not exceed four

years. A marriage officer shall serve at the pleasure of the appointing

authority and may be removed from office with or without cause on ten

days written notice filed with the clerk of the municipality and sent by

registered mail return receipt requested to the marriage officer.

One-day marriage officiant license. 1. A town or city clerk

shall issue a one-day marriage officiant license upon request. Such

one-day marriage officiant shall have the authority to solemnize a

marriage which marriage shall be valid if performed in accordance with

other provisions of law. Nothing herein contained shall nullify the

authority of other persons authorized to solemnize marriages.

2. Such one-day marriage officiant shall be eighteen years of age or

over and need not be a resident of the town or city to which they apply

or a resident of the state. A one-day marriage officiant shall have the

authority to solemnize a marriage anywhere in the state.

3. An applicant for a one-day marriage officiant license must apply

for such license in the same town or city clerk's office as the couple

to be married. Such applicant shall not be required to personally

appear.

4. A town or city clerk shall be entitled to a fee of twenty-five

dollars for issuing a one-day marriage officiant license. Such license

shall be issued only after payment of such fee and submission of a

completed application form.

5. The application form shall require the following information of the

applicant: name, date of birth, address, email address and telephone

number. The application form shall also require the following

information of the parties to be married: names, dates of birth, and

addresses as they appear on the application for a marriage license.

6. Such license shall only be valid for the parties to be married as

stated on the application and shall expire upon the earlier of either

completion of such solemnization or the expiration of the marriage

license.

7. One-day marriage officiants shall be exempt from registration as

required pursuant to section eleven-b of this article.

Marriage, how solemnized. No particular form or ceremony is

required when a marriage is solemnized as herein provided by a clergyman

or magistrate, or one-day marriage officiant as designated by a town or

city clerk pursuant to section eleven-d of this article, but the parties

must solemnly declare in the presence of a clergyman, magistrate, or

such one-day marriage officiant and the attending witness or witnesses

that they take each other as spouses. In every case, at least one

witness beside the clergyman, magistrate, or such one-day marriage

officiant must be present at the ceremony.

The preceding provisions of this chapter, so far as they relate to the

manner of solemnizing marriages, shall not affect marriages among the

people called friends or quakers; nor marriages among the people of any

other denominations having as such any particular mode of solemnizing

marriages; but such marriages must be solemnized in the manner

heretofore used and practiced in their respective societies or

denominations, and marriages so solemnized shall be as valid as if this

article had not been enacted.

Marriage licenses. It shall be necessary for all persons

intended to be married in New York state to obtain a marriage license

from a town or city clerk in New York state and to deliver said license,

within sixty days, to the clergyman, magistrate, or one-day marriage

officiant as designated by a town or city clerk pursuant to section

eleven-d of this article who is to officiate before the marriage

ceremony may be performed. In case of a marriage contracted pursuant to

subdivision four of section eleven of this chapter, such license shall

be delivered to the judge of the court of record before whom the

acknowledgment is to be taken. If either party to the marriage resides

upon an island located not less than twenty-five miles from the office

or residence of the town clerk of the town of which such island is a

part, and if such office or residence is not on such island such license

may be obtained from any justice of the peace residing on such island,

and such justice, in respect to powers and duties relating to marriage

licenses, shall be subject to the provisions of this article governing

town clerks and shall file all statements or affidavits received by him

while acting under the provisions of this section with the town clerk of

such town. No application for a marriage license shall be denied on the

ground that the parties are of the same, or a different, sex.

Test to determine the presence of sickle cell anemia. 1. On

and after the effective date of this act, such test as may be necessary

shall be given to each applicant for a marriage license who is not of

the Caucasian, Indian or Oriental race for the purposes of discovering

the existence of sickle cell anemia and notifying the applicant of the

results of such test.

2. No application for a marriage license shall be denied solely on

the ground that such test proves positive, nor shall the absence of such

test invalidate a marriage.

3. The provisions of this section shall not apply to any person who

refuses to take such test because of his religious beliefs.

Time within which marriage may be solemnized. A marriage shall

not be solemnized within twenty-four hours after the issuance of the

marriage license, unless authorized by an order of a court of record as

hereinafter provided, nor shall it be solemnized after sixty days from

the date of the issuance of the marriage license unless authorized

pursuant to section ten of the veterans' services law. Every license to

marry hereafter issued by a town or city clerk, in addition to other

requirements specified by this chapter, must contain a statement of the

day and the hour the license is issued and the period during which the

marriage may be solemnized. It shall be the duty of the clergyman,

magistrate, or one-day marriage officiant, as designated by a town or

city clerk pursuant to section eleven-d of this article, performing the

marriage ceremony, or if the marriage is solemnized by written contract,

of the judge before whom the contract is acknowledged, to annex to or

endorse upon the marriage license the date and hour the marriage is

solemnized. A judge or justice of the supreme court of this state or the

county judge of the county in which either party to be married resides,

or the judge of the family court of such county, if it shall appear from

an examination of the license and any other proofs submitted by the

parties that one of the parties is in danger of imminent death, or by

reason of other emergency public interest will be promoted thereby, or

that such delay will work irreparable injury or great hardship upon the

contracting parties, or one of them, may, make an order authorizing the

immediate solemnization of the marriage and upon filing such order with

the clergyman, magistrate, or one-day marriage officiant performing the

marriage ceremony, or if the marriage is to be solemnized by written

contract, with the judge before whom the contract is acknowledged, such

clergyman, magistrate or such one-day marriage officiant may solemnize

such marriage, or such judge may take such acknowledgment as the case

may be, without waiting for such three day period and twenty-four hour

period to elapse. The clergyman, magistrate, judge, or such one-day

marriage officiant, as designated by a town or city clerk pursuant to

section eleven-d of this article, must file such order with the town or

city clerk who issued the license within five days after the marriage is

solemnized. Such town or city clerk must record and index the order in

the book required to be kept by him or her for recording affidavits,

statements, consents and licenses, and when so recorded the order shall

become a public record and available in any prosecution under this

section. A person who shall solemnize a marriage in violation of this

section shall be guilty of a misdemeanor and upon conviction thereof

shall be punished by a fine of fifty dollars for each offense, and in

addition thereto, his or her right to solemnize a marriage shall be

suspended for ninety days.

* § 13-c. Twenty-four hour provision waived in certain cases. 1.

Notwithstanding the provisions of section thirteen-b of this chapter or

any other provision of law, where either of the parties making

application for a marriage license pursuant to section thirteen of this

chapter, is a member of the armed forces of the United States the

marriage of the parties may be solemnized without waiting for the lapse

of the twenty-four hour period required by section thirteen-b of this

chapter. Proof that the applicant is a member of the armed forces of

the United States shall be furnished to the satisfaction of the official

issuing the marriage license. Every license to marry issued pursuant to

the provisions of this section must state the day and hour the license

is issued and shall contain a recital that it is issued pursuant to the

provisions of this section and that the parties named therein may be

married at any time after such day and hour and within sixty days

thereafter.

2. The provisions of this section shall remain in force and effect

only until July first, nineteen hundred seventy-three.

* NB Expired July 1, 1973

Duty of clerk issuing marriage license. 1. It shall be the

duty of each town and each city clerk or duly authorized deputy acting

in the clerk's stead, upon the issuance of a marriage license to display

to the parties a typed or printed statement containing substantially the

same following information:

"Rubella, also known as 'German measles', is a common childhood

disease. It is usually not serious to children who contract it

themselves, but can be a tragic crippler of unborn babies if transmitted

to pregnant women.

Rubella infection poses a grave threat to the unborn child, especially

during the first four months of pregnancy. It can lead to miscarriage,

stillbirth, or one or all of the tragic defects such as deafness,

blindness, crippling congenital heart disease, developmental disability

and muscular and bone defects.

In order to be immune to rubella, one must either receive the rubella

vaccine or actually have had the disease. To see whether you are

susceptible to rubella, you can get a blood test from your doctor. Even

more important is the availability of a rubella vaccine which will

prevent you from ever contracting the disease.

In order to protect yourself, your family, and your friends, please

take steps to prevent the tragic effects of rubella. Please contact your

family doctor, health care provider, public health facility or clinic

for further information."

2. It shall also be the duty of each town and city clerk or duly

authorized deputy acting in the clerk's stead to provide to each

applicant for a marriage license information regarding the Thalassemia

Trait. The department of health shall prepare information, including but

not limited to, the blood disorder Thalassemia Trait and other inherited

conditions affecting the population of New York state.

3. No cause of action for damages shall arise in favor of any person

or person yet to be born by reason of any failure to comply with the

provisions of this section.

Town and city clerks to issue marriage licenses; form. The town

or city clerk of each and every town or city in this state is hereby

empowered to issue marriage licenses to any parties applying for the

same who may be entitled under the laws of this state to apply therefor

and to contract matrimony, authorizing the marriage of such parties,

which license shall be substantially in the following form:

State of New York

County of ................

City or town of ..........

Know all men by this certificate that any person authorized by law to

perform marriage ceremonies within the state of New York to whom this

may come, he not knowing any lawful impediment thereto, is hereby

authorized and empowered to solemnize the rites of matrimony between

.............. of ........... in the county of ............. and state of

New York and .................. of ................... in the county of

.............. and state of New York and to certify the same to the said

parties or either of them under his hand and seal in his ministerial or

official capacity and thereupon he is required to return his certificate

in the form hereto annexed. The statements endorsed hereon or annexed

hereto, by me subscribed, contain a full and true abstract of all of the

facts concerning such parties disclosed by their affidavits or verified

statements presented to me upon the application for this license. This

certificate is to be returned addressed to the undersigned at

...................., ............................, .................

(Street) (City, Town, Village) (State)

In testimony whereof, I have hereunto set my hand and affixed the seal

of said town or city at .......... this ....... day of ........

nineteen ........, at........m. Seal.

The form of the certificate annexed to said license and therein

referred to shall be as follows:

I, .... a ....., residing at ......... in the county of ........ and

state of New York do hereby certify that I did on this ......... day of

..... in the year, nineteen ......... at .....m, at ....... in the county

of .......... and the state of New York, solemnize the rites of

matrimony between .... of ..... in the county of ........... and state

of New York, and .... of ..... in the county of ............. and state

of New York in the presence of ..... and ..... as witness, and the

license therefor is hereto annexed.

Witness my hand ...... in the county of ....... this ....... day of

......, nineteen .....

In the presence of

...............

...............

...............

There shall be endorsed upon the license or annexed thereto at the end

thereof, subscribed by the clerk, an abstract of the facts concerning

the parties as disclosed in their affidavits or verified statements at

the time of the application for the license made in conformity to the

provisions of section fifteen of this chapter.

There shall also be stated upon the license the exact period during

which the marriage may be solemnized.

The license issued, including the abstract of facts, and the

certificate duly signed by the person who shall have solemnized the

marriage therein authorized, shall be returned by him, and where the

marriage is solemnized by a written contract, the judge before whom

acknowledgment is made shall forward such contract and marriage license

to the office of the town or city clerk who issued the license within

five days succeeding the date of the solemnizing of the marriage therein

authorized and any person or persons who shall wilfully neglect to make

such return within the time above required shall be deemed guilty of a

misdemeanor and upon conviction thereof shall be punished by a fine of

not less than twenty-five dollars or more than fifty dollars for each

and every offense.

When a marriage is solemnized by a city, town or village justice

outside of the territorial jurisdiction in which such justice was

elected or appointed, as provided in subdivision six of section eleven

of this chapter, there shall be affixed to such license prior to filing,

the official or common seal of the court or of the municipality in which

such justice was elected or appointed.

Town and city clerks to issue certificates of marriage

registration; form. 1. Upon receipt of the return of the marriage

license, properly endorsed and completed by the person who shall have

solemnized a marriage as provided in this article, the town and city

clerks of each and every town or city in the state shall, after

abstracting, recording and indexing the statement of performance of

solemnization, issue to the couple within fifteen days after such

receipt or return of the completed marriage license a certificate of

marriage, which certificate shall be substantially in the following form

and contain the following facts:

Record No............of Year........

THIS IS TO CERTIFY

that ................................................................. ,

first name, premarriage middle and surname,

new middle and/or surname (if applicable)

residing at .......................................................... ,

who was born on ........................., at ........................ ,

date

and .................................................................. ,

first name, premarriage middle and

surname, new middle and/or

surname (if applicable)

residing at .......................................................... ,

who was born ........................, at ............................ ,

date

were married on.......................at ............................. ,

date

as shown by the duly registered license and certificate of

marriage of said persons on file in this office.

(SEAL) ......................................

Town or City Clerk

Dated at.................., N. Y.

.................................

No other facts contained in the affidavits, statements, consents or

licenses shall be certified by such town and city clerks, unless

expressly requested in writing by the man or woman named in such

affidavit, license, statement or record.

2. a. Such town and city clerks shall be entitled to a fee for such

certificate, payable at the time of issuance of the marriage license, in

a sum not exceeding ten dollars, to be fixed in the case of town clerks

by the town board, and in the case of city clerks by the common council

or governing body of such cities. The town and city clerks shall, upon

request of any applicant whose name appears thereon, issue a similar

certificate of marriage, as set forth above, and similarly expanded with

additional facts upon the express additional request, for all marriages

heretofore indexed and recorded in the office of the town or city

clerks. For such certificate of marriage, the town and city clerks shall

be entitled to a fee not exceeding ten dollars, to be fixed in the case

of town clerks by the town board, and in the case of city clerks by the

common council or governing body of such city.

b. In addition to the foregoing, upon request of any applicant whose

name appears thereon for a certificate of marriage, the town or city

clerk may issue a photograph, micro-photograph or photocopy of the

marriage record on file in the office of such clerk. Such photograph,

micro-photograph or photocopy, when certified by the town or city clerk,

shall be deemed an original record for all purposes, including

introduction in evidence in all courts or administrative agencies. For

such certificate of marriage and the certification thereof, the town or

city clerk shall be entitled to a fee not exceeding ten dollars, to be

fixed in the case of town clerks by the town board, and in the case of

city clerks by the common council or governing body of such city.

3. a. No fee shall be charged for any certificate when required by the

United States department of veterans affairs or by the department of

veterans' services of the state of New York to be used in determining

the eligibility of any person to participate in the benefits made

available by the United States department of veterans affairs or by the

state of New York.

b. A town or city may elect to waive the fee for a certificate when

either of the parties making application for such certificate is a

member of the armed forces of the United States on active duty.

4. A copy of the record of marriage registration when properly

certified by the city and town clerks or their duly authorized deputies,

as herein provided, shall be prima facie evidence of the facts therein

stated and in all actions, proceedings or applications, judicial,

administrative or otherwise, and any such certificate of registration of

marriage shall be accepted with the same force and effect with respect

to the facts therein stated as the original certificate of marriage or

certified copy thereof.

5. Upon request of any applicant whose name appears thereon for a

certificate of marriage, the town or city clerk shall be authorized to

correct any errors on such marriage certificate where:

a. such error was not the result of any intended fraud, deception or

attempt to avoid the effect of any valid law, regulation or statute; and

b. either party to the marriage provides proof, satisfactory to the

clerk, of the accuracy of the facts presented in support of correcting

the error.

To effectuate such correction and provide certified copies of the

amended certificate, the town or city clerk shall be entitled to a fee

not exceeding ten dollars to be fixed in the case of town clerks by the

town board, and in the case of city clerks by the common council or

governing body of such city. The clerk shall forward a copy of such

amended certificate to the commissioner of health.

Duty of town and city clerks. 1. (a) It shall be the duty of

the town or city clerk when an application for a marriage license is

made to him or her to require each of the contracting parties to sign

and verify a statement or affidavit before such clerk or one of his or

her deputies, containing the following information. From party one: Full

name, place of residence, social security number, age, occupation, place

of birth, name of father, country of birth, maiden name of mother,

country of birth, number of marriage. From party two: Full name, place

of residence, social security number, age, occupation, place of birth,

name of father, country of birth, maiden name of mother, country of

birth, number of marriage. Both parties shall also be required to

present to the clerk documentary proof of age in the form of an original

or certified copy of a birth record, a certification of birth issued by

the state department of health, a local registrar of vital statistics or

other public officer charged with similar duties by the laws of any

other state, territory or country, a baptismal record, a passport, an

automobile driver's license, any government or school issued

identification card that contains a photograph of the applicant, a life

insurance policy, an employment certificate, a school record, an

immigration record, a naturalization record, a court record or any other

document or record issued by a governmental entity, showing the date of

birth of such parties. The said clerk shall also embody in the statement

if either or both of the applicants have been previously married, a

statement as to whether the former spouse or spouses of the respective

applicants are living or dead and as to whether either or both of said

applicants are divorced persons, if so, when and where and against whom

the divorce or divorces were granted and shall also embody therein a

statement that no legal impediment exists as to the right of each of the

applicants to enter into the marriage state. The town or city clerk is

hereby given full power and authority to administer oaths and may

require the applicants to produce witnesses to identify them or either

of them and may examine under oath or otherwise other witnesses as to

any material inquiry pertaining to the issuing of the license, and if

the applicant is a divorced person the clerk may also require the

production of a certified copy of the decree of the divorce, or proof of

an existing marriage of parties who apply for a license to be used for a

second or subsequent ceremony; provided, however, that in cities or

towns the verified statements and affidavits may be made before any

regular clerk or designee of the clerk's office.

(b) Every application for a marriage license shall contain a statement

to the following effect:

NOTICE TO APPLICANTS

(1) Every person has the right to adopt any name by which he or she

wishes to be known simply by using that name consistently and without

intent to defraud.

(2) A person's last name (surname) does not automatically change upon

marriage, and neither party to the marriage must change his or her last

name. Parties to a marriage need not have the same last name.

(3) One or both parties to a marriage may elect to change the surname

by which he or she wishes to be known after the solemnization of the

marriage by entering the new name in the space below. Such entry shall

consist of one of the following surnames:

(i) the surname of the other spouse; or

(ii) any former surname of either spouse; or

(iii) a name combining into a single surname all or a segment of the

premarriage surname or any former surname of each spouse; or

(iv) a combination name separated by a hyphen or space, provided that

each part of such combination surname is the premarriage surname, or any

former surname, of each of the spouses.

(4) One or both parties to a marriage may elect to change the middle

name by which he or she wishes to be known after the solemnization of

the marriage by entering the new name in the space below. Such entry

shall consist of one of the following options:

(i) the current surname of the spouse electing to change his or her

name; or

(ii) any former surname of the spouse electing to change his or her

name; or

(iii) the surname of the other spouse.

(5) The use of this option will have the effect of providing a record

of the change of name. The marriage certificate, containing the new

name, if any, constitutes proof that the use of the new name, or the

retention of the former name, is lawful.

(6) Neither the use of, nor the failure to use, this option of

selecting a new surname or middle name by means of this application

abrogates the right of each person to adopt a different name through

usage at some future date.

.....................................

(Optional -- Enter new surname above)

2. If it appears from the affidavits and statements so taken, and from

the documentary proof of age presented, that the persons for whose

marriage the license in question is demanded are legally competent to

marry, the said clerk shall issue such license.

4. Before issuing any licenses herein provided for, the town or city

clerk shall be entitled to a fee of thirty dollars, which sum shall be

paid by the applicants before or at the time the license is issued;

provided, however, that when either of the parties applying for such

license is a member of the armed forces of the United States on active

duty (i) a town or city may not collect that portion of the fee which

would otherwise be transmitted to the state commissioner of health

pursuant to this subdivision and (ii) such town or city may elect to

waive the portion of the fee which the town or city is entitled to. Any

town or city clerk who shall issue a license to marry any persons one or

both of whom shall not be at the time of the marriage under such license

legally competent to marry without first requiring the parties to such

marriage to make such affidavits and statements or who shall not require

the production of documentary proof of age or the procuring of the

approval and consents provided for by this article, which shall show

that the parties authorized by said license to be married are legally

competent to marry, shall be guilty of a misdemeanor and on conviction

thereof shall be fined in the sum of one hundred dollars for each and

every offense. On or before the fifteenth day of each month, each town

and city clerk, except in the city of New York, shall transmit to the

state commissioner of health twenty-two dollars and fifty cents of the

amount received for each fee collected, which shall be paid into the

vital records management account as provided by section

ninety-seven-cccc of the state finance law; provided, however, that no

fee shall be collected on behalf of or paid to the commissioner of

health when either of the parties applying for such license is a member

of the armed forces of the United States on active duty. In any city the

balance of all fees collected for the issuing of a marriage license, or

for solemnizing a marriage, so far as collected for services rendered by

any officer or employee of such city, shall be paid monthly into the

city treasury and may by ordinance be credited to any fund therein

designated, and said ordinance, when duly enacted, shall have the force

of law in such city. Notwithstanding any other provisions of this

article, the clerk of any city with the approval of the governing body

of such city is hereby authorized to designate, in writing filed in the

city clerk's office, a deputy clerk, if any, and/or other city employees

in such office to receive applications for, examine applications,

investigate and issue marriage licenses in the absence or inability of

the clerk of said city to act, and said deputy and/or employees so

designated are hereby vested with all the powers and duties of said city

clerk relative thereto. Such deputy and/or employees shall perform said

duties without additional compensation.

5. Notwithstanding any other provision of this section, the city clerk

of the city of New York, before issuing any licenses herein provided

for, shall be entitled to a fee of twenty-five dollars, which sum shall

be paid by the applicants before or at the time the license is issued

and all such fees so received shall be paid monthly into the city

treasury.

Marriages of minors under eighteen years of age. Any marriage

in which either party is under the age of eighteen years is hereby

prohibited. Any town or city clerk who shall knowingly issue a marriage

license to any persons, one or both of whom shall be at the time of

their contemplated marriage actually under the age of eighteen years,

shall be guilty of a misdemeanor and on conviction thereof shall be

fined in the sum of one hundred dollars.

* § 15-b. Temporary provisions authorizing issuance of marriage

license, upon court order, without consent of a parent in armed forces

of United States, merchant marine and allied forces, and absent from the

United States. Notwithstanding the provisions of section fifteen of this

chapter or any other provision of law, the written consent of a parent

of a minor to the marriage of such minor may be dispensed with by order

of a judge or justice of the supreme court of this state or the county

judge of the county in which the minor resides or, in case the minor be

a woman between fourteen and sixteen years of age, of such a justice of

the supreme court or the county judge or judge of the children's court

of the county in which such woman resides, upon proof satisfactory to

such judge or justice that it is impracticable to require such consent

because such parent is a member of the armed forces of the United

States, merchant marine and allied forces, and is absent from the United

States, and any such judge or justice is hereby authorized to make such

an order if satisfied of the existence of such circumstances and that

the public interest will not be injuriously affected by dispensing with

such consent; provided, however, that no such order shall be granted

except upon application therefor both by the minor whose parent is so

absent and by the other parent, or if the other parent be dead or his or

her consent to such marriage be unnecessary for any reason, then by the

person under whose care or government the minor may be. Upon the filing

of such an order with the town or city clerk, he shall issue the license

without the written consent of the parent whose consent is ordered

dispensed with therein, provided all the other provisions of this

chapter in connection with the issuance of the license are complied

with. The provisions of this section shall remain in force and effect

only until July first, nineteen hundred forty-seven.

* NB Expired July 1, 1947

False statements and affidavits. Any person who shall in any

affidavit or statement required or provided for in this article wilfully

and falsely swear in regard to any material fact as to the competency of

any person for whose marriage the license in question or concerning the

procuring or issuing of which such affidavit or statement may be made

shall be deemed guilty of perjury and on conviction thereof shall be

punished as provided by the statutes of this state.

Clergyman or officer violating article; penalty. If any

clergyman or other person authorized by the laws of this state to

perform marriage ceremonies shall solemnize or presume to solemnize any

marriage between any parties without a license being presented to him or

them as herein provided or with knowledge that either party is legally

incompetent to contract matrimony as is provided for in this article he

shall be guilty of a misdemeanor and on conviction thereof shall be

punished by a fine not less than fifty dollars nor more than five

hundred dollars or by imprisonment for a term not exceeding one year.

Clergymen or officer, when protected. Any such clergymen or

officer as aforesaid to whom any such license duly issued may come and

not having personal knowledge of the incompetency of either party

therein named to contract matrimony, may lawfully solemnize matrimony

between them.

Records to be kept by town and city clerks. 1. Each town and

city clerk hereby empowered to issue marriage licenses shall keep a book

supplied by the state department of health in which such clerk shall

record and index such information as is required therein, which book

shall be kept and preserved as a part of the public records of his or

her office. Whenever an application is made for a search of such records

the city or town clerk, excepting the city clerk of the city of New

York, may make such search and furnish a certificate of the result to

the applicant upon the payment of a fee of five dollars for a search of

one year and a further fee of one dollar for the second year for which

such search is requested and fifty cents for each additional year

thereafter, which fees shall be paid in advance of such search. Whenever

an application is made for a search of such records in the city of New

York, the city clerk of the city of New York may make such search and

furnish a certificate of the result to the applicant upon the payment of

a fee of five dollars for a search of one year and a further fee of one

dollar for the second year for which search is requested and fifty cents

each additional year thereafter. Notwithstanding any other provision of

this article, no fee shall be charged for any search or certificate when

required by the United States department of veterans affairs or by the

department of veterans' services of the state of New York to be used in

determining the eligibility of any person to participate in the benefits

made available by the United States department of veterans affairs or by

the state of New York. All such affidavits, statements and consents,

immediately upon the taking or receiving of the same by the town or city

clerk, shall be recorded and indexed as provided herein and shall be

public records and open to public inspection whenever the same may be

necessary or required for judicial or other proper purposes. At such

times as the commissioner shall direct, the said town or city clerk,

excepting the city clerk of the city of New York, shall file in the

office of the state department of health the original of each affidavit,

statement, consent, order of a justice or judge authorizing immediate

solemnization of marriage, license and certificate, filed with or made

before such clerk during the preceding month. Such clerk shall not be

required to file any of said documents with the state department of

health until the license is returned with the certificate showing that

the marriage to which they refer has been actually performed.

The county clerks of the counties comprising the city of New York

shall cause all original applications and original licenses with the

marriage solemnization statements thereon heretofore filed with each,

and all papers and records and binders relating to such original

documents pertaining to marriage licenses issued by said city clerk, in

their custody and possession to be removed, transferred, and delivered

to the borough offices of the city clerk in each of said counties.

2. (a) In lieu of the requirement of maintaining a book supplied by

the state department of health pursuant to subdivision one hereof, each

town or city clerk may cause all information as is required by law or

rule or regulation of the department to be kept in such books to be

photocopied, photographed, microphotographed or reproduced on film which

shall be kept and preserved as part of the public records of his office

together with an index thereto. Such photographic film shall be of

durable material and the device used to reproduce such records on such

film shall be one which accurately reproduces the original record in all

details.

(b) Such photocopy or photographic film shall be deemed to be an

original record for all purposes, including introduction in evidence in

all courts or administrative agencies. A transcript, exemplification or

certified copy thereof shall, for all purposes, be deemed to be a

transcript, exemplification or certified copy of the original.

Marriages on vessels; reports and records. The master, chief

officer, ship's surgeon, or the company, corporation, charterer, or

person having the management and control of any vessel which shall

arrive at the port of New York, shall report, in writing, to the city

clerk of the city of New York within three days after the arrival of

such vessel the marriage of any resident of such city occurring thereon

at sea, and shall file with such clerk a transcript of the entry made in

the log book of such vessel in respect to any such marriage.

Records to be kept by the state department of health and the

city clerk of the city of New York. All original affidavits, statements,

consents and licenses with certificates attached, and also all written

contracts of marriages outside of the city of New York shall be kept on

file and properly indexed by the state department of health, and such

similar evidences of marriage in the city of New York shall be kept on

file and properly indexed by the city clerk of the city of New York.

They shall be carefully examined, and if any such are incomplete or

unsatisfactory the state commissioner of health and in the city of New

York the city clerk shall require such further information to be

supplied as may be necessary to make the record complete and

satisfactory. Whenever it is claimed that a mistake has been made

through inadvertence in any of the statements, affidavits or other

papers required by this section to be filed with the state department of

health, and in the city of New York with the city clerk's office, the

state commissioner of health and in the city of New York the city clerk

may file with the same, affidavits upon the part of the person claiming

to be aggrieved by such mistake, showing the true facts and the reason

for the mistake and may make a note upon such original paper, statement

or affidavit showing that a mistake is claimed to have been made and the

nature thereof.

Certified transcripts of records; state commissioner of health

may furnish. The state commissioner of health or person authorized by

him shall, upon request, supply to any applicant a certified transcript

of any marriage registered under the provisions of this article, unless

he is satisfied that the same does not appear to be necessary or

required for judicial or other proper purposes. Any transcript of the

record of a marriage, when properly certified by the state commissioner

of health or person authorized to act for him, shall be prima facie

evidence in all courts and places of the facts therein stated. For any

search of the files and records conducted for authorized research

purposes, the state commissioner of health shall be entitled to a fee of

twenty dollars for each hour or fractional part of an hour of time of

search, together with a fee of two dollars for each uncertified copy or

abstract of such marriage record requested by the applicant, said fees

to be paid by the applicant. Each applicant for a certified transcript

of a marriage record shall remit to the state commissioner of health a

fee of thirty dollars in payment for the search of the files and records

and the furnishing of a certified copy if such record is found or for a

certification that a search discloses no record of a marriage.

Certification of marriage; state commissioner of health may

furnish. 1. The state commissioner of health or person authorized by him

shall, upon request, issue to any applicant a certification of any

marriage registered under the provisions of this article, unless he is

satisfied that the same does not appear to be necessary or required for

judicial or other proper purposes. Any such certification of marriage

made by such commissioner or person authorized to act for him shall be

prima facie evidence in all courts and places of the facts therein

stated.

2. Such certification shall contain a statement of the respective

names, dates and places of birth and places of the then residence of

each of the parties to such marriage and the date and place thereof.

3. Each applicant for a certification of marriage shall remit to the

commissioner with such application a fee of thirty dollars in payment

for the search of the files and records and the furnishing of such

certification if a record thereof is found or for a certification that a

search discloses no record of a marriage.

4. The federal agency in charge of vital statistics may obtain, at a

fee acceptable to the commissioner, information from marriage records

for use solely as statistical data.

Certification of marriage; new certificate in case of

subsequent change of name or gender. 1. A new marriage certificate shall

be issued by the town or city clerk where the marriage license and

certificate was issued, upon receipt of proper proof of a change of name

or gender designation. Proper proof shall consist of: (a) a judgment,

order or decree affirming a change of name or gender designation of

either party to a marriage; (b) an amended birth certificate

demonstrating a change of name or gender designation; (c) in the case of

a change of gender designation, a notarized affidavit from the

individual attesting to their change of gender designation; or (d) such

other proof as may be established by the commissioner of health.

2. When a new marriage certificate is made pursuant to this section,

the town or city clerk shall substitute such new certificate for the

marriage certificate then on file, if any, and shall send the state

commissioner of health a digital copy of the new marriage certificate in

a format prescribed by the commissioner, with the exception of the city

clerk of New York who shall retain their copy. The town or city clerk

shall make a copy of the new marriage certificate for the local record

and hold the contents of the original marriage certificate confidential

along with all supporting documentation, papers and copies pertaining

thereto. It shall not be released or otherwise divulged except by order

of a court of competent jurisdiction.

3. The town or city clerk shall be entitled to a fee of ten dollars

for the amendment and certified copy of any marriage certificate in

accordance with the provisions of this section.

4. The state commissioner of health may, in their discretion, report

to the attorney general any town or city clerk that, without cause,

fails to issue a new marriage certificate upon receipt of proper proof

of a change of name or gender designation in accordance with this

section. The attorney general shall thereupon, in the name of the state

commissioner of health or the people of the state, institute such action

or proceeding as may be necessary to compel the issuance of such new

marriage certificate.

Forms and books to be furnished. The proper books for

registration, blank forms for marriage licenses, certificates,

statements and affidavits and such other blanks as shall be necessary to

comply with the provisions of this article, shall be prepared by the

state department of health and shall be furnished by said department at

the expense of the state to the town and city clerks filing records with

the state department of health in such quantities as their necessities

shall require.

Penalty for violation. Any town or city clerk who shall violate

any of the provisions of this article or shall fail to comply therewith

shall be deemed guilty of a misdemeanor and shall pay a fine not

exceeding the sum of one hundred dollars on conviction thereof.

Supervision of and inspection of town and city clerks' records

by state commissioner of health. The registration and recording of all

marriages outside the city of New York shall be under the supervision of

the state commissioner of health. The commissioner, either personally or

by an accredited representative, may at any time inspect the record and

index of marriage licenses issued by any town or city clerk and

promulgate rules and regulations for insuring complete registration.

When he shall deem it necessary, he shall report cases of violation of

any of the provisions of this article to the district attorney of the

county, with a statement of the facts and circumstances; and when any

such case is reported to him by the state commissioner of health, the

prosecuting attorney shall forthwith initiate and promptly follow up the

necessary court proceedings against the person or persons responsible

for the alleged violation of law. Upon request of the state commissioner

of health, the attorney-general shall assist in the enforcement of the

provisions of this article.

Effect of marriage on legitimacy of children. 1. A child

heretofore or hereafter born of parents who prior or subsequent to the

birth of such child shall have entered into a civil or religious

marriage, or shall have consummated a common-law marriage where such

marriage is recognized as valid, in the manner authorized by the law of

the place where such marriage takes place, is the legitimate child of

both birth parents notwithstanding that such marriage is void or

voidable or has been or shall hereafter be annulled or judicially

declared void.

2. Nothing herein contained shall be deemed to affect the construction

of any will or other instrument executed before the time this act shall

take effect or any right or interest in property or right of action

vested or accrued before the time this act shall take effect, or to

limit the operation of any judicial determination heretofore made

containing express provision with respect to the legitimacy, maintenance

or custody of any child, or to affect any adoption proceeding heretofore

commenced, or limit the effect of any order or orders entered in such

adoption proceeding.

License, when to be obtained. The provisions of this article

pertaining to the granting of the licenses before a marriage can be

lawfully celebrated apply to all persons who assume the marriage

relation in accordance with subdivision four of section eleven of this

chapter. Nothing in this article contained shall be construed to render

void by reason of a failure to procure a marriage license any marriage

solemnized between persons of full age.

Property of married woman. Property, real or personal, now owned

by a married woman, or hereafter owned by a woman at the time of her

marriage, or acquired by her as prescribed in this chapter, and the

rents, issues, proceeds and profits thereof, shall continue to be her

sole and separate property as if she were unmarried, and shall not be

subject to her husband's control or disposal nor liable for his debts.

Insurance of married person's life. The right of a married

person to cause the life of his or her spouse or any other person to be

insured and to dispose of any interest such married person may have in a

policy of insurance on the life of the other spouse or of any other

person shall be governed by the insurance law and by statutes and rules

of law governing rights of a married person in respect to property and

the acquisition, use, enjoyment and disposition thereof.

Pardon not to restore marital rights. A pardon granted to a

person sentenced to imprisonment for life within this state does not

restore that person to the rights of a previous marriage or to the

guardianship of a child, the issue of such a marriage.

Married person's domicile. The domicile of a married man or

woman shall be established for all purposes without regard to sex.

Habeas corpus for child detained by parent. (a) Where a minor

child is residing within this state, either parent may apply to the

supreme court for a writ of habeas corpus to have such minor child

brought before such court; and on the return thereof, the court, on due

consideration, may award the natural guardianship, charge and custody of

such child to either parent for such time, under such regulations and

restrictions, and with such provisions and directions, as the case may

require, and may at any time thereafter vacate or modify such order. In

all cases there shall be no prima facie right to the custody of the

child in either parent, but the court shall determine solely what is for

the best interest of the child, and what will best promote its welfare

and happiness, and make award accordingly.

(b) Any order under this section which 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 the provisions of part eight of article ten of such act, 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 or official having care and custody, or temporary care and

custody, of such child.

Special proceeding or habeas corpus to obtain visitation rights

in respect to certain infant siblings. Where circumstances show that

conditions exist which equity would see fit to intervene, a brother or

sister or, if he or she be a minor, a proper person on his or her behalf

of a child, whether by half or whole blood, may apply to the supreme

court by commencing a special proceeding or for a writ of habeas corpus

to have such child brought before such court, or may apply to the family

court pursuant to subdivision (b) of section six hundred fifty-one of

the family court act; and on the return thereof, the court, by order,

after due notice to the parent or any other person or party having the

care, custody, and control of such child, to be given in such manner as

the court shall prescribe, may make such directions as the best interest

of the child may require, for visitation rights for such brother or

sister in respect to such child.

Special proceeding or habeas corpus to obtain visitation rights

or custody in respect to certain infant grandchildren. 1. Where either

or both of the parents of a minor child, residing within this state, is

or are deceased, or where circumstances show that conditions exist which

equity would see fit to intervene, a grandparent or the grandparents of

such child may apply to the supreme court by commencing a special

proceeding or for a writ of habeas corpus to have such child brought

before such court, or may apply to the family court pursuant to

subdivision (b) of section six hundred fifty-one of the family court

act; and on the return thereof, the court, by order, after due notice to

the parent or any other person or party having the care, custody, and

control of such child, to be given in such manner as the court shall

prescribe, may make such directions as the best interest of the child

may require, for visitation rights for such grandparent or grandparents

in respect to such child.

2. (a) Where a grandparent or the grandparents of a minor child,

residing within this state, can demonstrate to the satisfaction of the

court the existence of extraordinary circumstances, such grandparent or

grandparents of such child may apply to the supreme court by commencing

a special proceeding or for a writ of habeas corpus to have such child

brought before such court, or may apply to family court pursuant to

subdivision (b) of section six hundred fifty-one of the family court

act; and on the return thereof, the court, by order, after due notice to

the parent or any other person or party having the care, custody, and

control of such child, to be given in such manner as the court shall

prescribe, may make such directions as the best interests of the child

may require, for custody rights for such grandparent or grandparents in

respect to such child. An extended disruption of custody, as such term

is defined in this section, shall constitute an extraordinary

circumstance.

(b) For the purposes of this section "extended disruption of custody"

shall include, but not be limited to, a prolonged separation of the

respondent parent and the child for at least twenty-four continuous

months during which the parent voluntarily relinquished care and control

of the child and the child resided in the household of the petitioner

grandparent or grandparents, provided, however, that the court may find

that extraordinary circumstances exist should the prolonged separation

have lasted for less than twenty-four months.

(c) Nothing in this section shall limit the ability of parties to

enter into consensual custody agreements absent the existence of

extraordinary circumstances.

Certain provisions relating to the custody of children by

persons who are not the parents of such children. 1. Notwithstanding any

provision of law to the contrary, a person possessing a lawful order of

guardianship or custody of a minor child, who is not the parent of such

child, may enroll such child in public school in the applicable school

district where he or she and such child reside. Upon application for

enrollment of a minor child by a guardian or custodian who is not the

parent of such child, a public school shall enroll such child for such

time as the child resides with the guardian or custodian in the

applicable school district, upon verification that the guardian or

custodian possess a lawful order of custody for such child and that the

guardian or custodian and the child properly reside in the same

household within the school district.

2. Notwithstanding any provision of law to the contrary, persons

possessing a lawful order of custody of a child who are not a parent of

such child shall have the right to enroll and receive coverage for such

child in their employer based health insurance plan and to assert the

same legal rights under such employer based health insurance plans as

persons who possess lawful orders of guardianship of the person for a

child pursuant to rule twelve hundred ten of the civil practice laws and

rules, article seventeen of the surrogate's court procedure act, or part

four of article six of the family court act.

Initial child custody jurisdiction. 1. Except as otherwise

provided in section seventy-six-c of this title, a court of this state

has jurisdiction to make an initial child custody determination only if:

(a) this state is the home state of the child on the date of the

commencement of the proceeding, or was the home state of the child

within six months before the commencement of the proceeding and the

child is absent from this state but a parent or person acting as a

parent continues to live in this state;

(b) a court of another state does not have jurisdiction under

paragraph (a) of this subdivision, or a court of the home state of the

child has declined to exercise jurisdiction on the ground that this

state is the more appropriate forum under section seventy-six-f or

seventy-six-g of this title, and:

(i) the child and the child's parents, or the child and at least one

parent or a person acting as a parent, have a significant connection

with this state other than mere physical presence; and

(ii) substantial evidence is available in this state concerning the

child's care, protection, training, and personal relationships;

(c) all courts having jurisdiction under paragraph (a) or (b) of this

subdivision have declined to exercise jurisdiction on the ground that a

court of this state is the more appropriate forum to determine the

custody of the child under section seventy-six-f or seventy-six-g of

this title; or

(d) no court of any other state would have jurisdiction under the

criteria specified in paragraph (a), (b) or (c) of this subdivision.

2. Subdivision one of this section is the exclusive jurisdictional

basis for making a child custody determination by a court of this state.

3. Physical presence of, or personal jurisdiction over, a party or a

child is not necessary or sufficient to make a child custody

determination.

Exclusive, continuing jurisdiction. 1. Except as otherwise

provided in section seventy-six-c of this title, a court of this state

which has made a child custody determination consistent with section

seventy-six or seventy-six-b of this title has exclusive, continuing

jurisdiction over the determination until:

(a) a court of this state determines that neither the child, the child

and one parent, nor the child and a person acting as a parent have a

significant connection with this state and that substantial evidence is

no longer available in this state concerning the child's care,

protection, training, and personal relationships; or

(b) a court of this state or a court of another state determines that

the child, the child's parents, and any person acting as a parent do not

presently reside in this state.

2. A court of this state which has made a child custody determination

and does not have exclusive, continuing jurisdiction under this section

may modify that determination only if it has jurisdiction to make an

initial determination under section seventy-six of this title.

Jurisdiction to modify determination. Except as otherwise

provided in section seventy-six-c of this title, a court of this state

may not modify a child custody determination made by a court of another

state unless a court of this state has jurisdiction to make an initial

determination under paragraph (a) or (b) of subdivision one of section

seventy-six of this title and:

1. The court of the other state determines it no longer has exclusive,

continuing jurisdiction under section seventy-six-a of this title or

that a court of this state would be a more convenient forum under

section seventy-six-f of this title; or

2. A court of this state or a court of the other state determines that

the child, the child's parents, and any person acting as a parent do not

presently reside in the other state.

Temporary emergency jurisdiction. 1. A court of this state has

temporary emergency jurisdiction if the child is present in this state

and the child has been abandoned or it is necessary in an emergency to

protect the child, a sibling or parent of the child.

2. If there is no previous child custody determination that is

entitled to be enforced under this article and a child custody

proceeding has not been commenced in a court of a state having

jurisdiction under sections seventy-six through seventy-six-b of this

title, a child custody determination made under this section remains in

effect until an order is obtained from a court of a state having

jurisdiction under sections seventy-six through seventy-six-b of this

title. Where the child who is the subject of a child custody

determination under this section is in imminent risk of harm, any order

issued under this section shall remain in effect until a court of a

state having jurisdiction under sections seventy-six through

seventy-six-b of this title has taken steps to assure the protection of

the child. If a child custody proceeding has not been or is not

commenced in a court of a state having jurisdiction under sections

seventy-six through seventy-six-b of this title, a child custody

determination made under this section becomes a final determination, if

it so provides and this state becomes the home state of the child.

3. If there is a previous child custody determination that is entitled

to be enforced under this article, or a child custody proceeding has

been commenced in a court of a state having jurisdiction under sections

seventy-six through seventy-six-b of this title, any order issued by a

court of this state under this section must specify in the order a

period that the court considers adequate to allow the person seeking an

order to obtain an order from the state having jurisdiction under

sections seventy-six through seventy-six-b of this title. The order

issued in this state remains in effect until an order is obtained from

the other state within the period specified or the period expires,

provided, however, that where the child who is the subject of a child

custody determination under this section is in imminent risk of harm,

any order issued under this section shall remain in effect until a court

of a state having jurisdiction under sections seventy-six through

seventy-six-b of this title has taken steps to assure the protection of

the child.

4. A court of this state which has been asked to make a child custody

determination under this section, upon being informed that a child

custody proceeding has been commenced in, or a child custody

determination has been made by, a court of a state having jurisdiction

under sections seventy-six through seventy-six-b of this title, shall

immediately communicate with the other court. A court of this state

which is exercising jurisdiction pursuant to sections seventy-six

through seventy-six-b of this title, upon being informed that a child

custody proceeding has been commenced in, or a child custody

determination has been made by, a court of another state under a statute

similar to this section shall immediately communicate with the court of

that state to resolve the emergency, protect the safety of the parties

and the child, and determine a period for the duration of the temporary

order.

Notice; opportunity to be heard; joinder. 1. Before a child

custody determination is made under this article, notice and an

opportunity to be heard in accordance with the standards of section

seventy-five-g of this article must be given to all persons entitled to

notice under the law of this state as in child custody proceedings

between residents of this state, any parent whose parental rights have

not been previously terminated, and any person having physical custody

of the child.

2. This article does not govern the enforceability of a child custody

determination made without notice or an opportunity to be heard.

3. The obligation to join a party and the right to intervene as a

party in a child custody proceeding under this article are governed by

the laws of this state as in child custody proceedings between residents

of this state.

Simultaneous proceedings. 1. Except as otherwise provided in

section seventy-six-c of this title, a court of this state may not

exercise its jurisdiction under this title if, at the time of the

commencement of the proceeding, a proceeding concerning the custody of

the child has been commenced in a court of another state having

jurisdiction substantially in conformity with this article, unless the

proceeding has been terminated or is stayed by the court of the other

state because a court of this state is a more convenient forum under

section seventy-six-f of this title.

2. Except as otherwise provided in section seventy-six-c of this

title, a court of this state, before hearing a child custody proceeding,

shall examine the court documents and other information supplied by the

parties pursuant to section seventy-six-h of this title. If the court

determines that a child custody proceeding has been commenced in a court

in another state having jurisdiction substantially in accordance with

this article, the court of this state shall stay its proceeding and

communicate with the court of the other state. If the court of the state

having jurisdiction substantially in accordance with this article does

not determine that the court of this state is a more appropriate forum,

the court of this state shall dismiss the proceeding.

3. In a proceeding to modify a child custody determination, a court of

this state shall determine whether a proceeding to enforce the

determination has been commenced in another state. If a proceeding to

enforce a child custody determination has been commenced in another

state, the court may:

(a) stay the proceeding for modification pending the entry of an order

of a court of the other state enforcing, staying, denying, or dismissing

the proceeding for enforcement:

(b) enjoin the parties from continuing with the proceeding for

enforcement; or

(c) proceed with the modification under conditions it considers

appropriate.

Inconvenient forum. 1. A court of this state which has

jurisdiction under this article to make a child custody determination

may decline to exercise its jurisdiction at any time if it determines

that it is an inconvenient forum under the circumstances and that a

court of another state is a more appropriate forum. The issue of

inconvenient forum may be raised upon motion of a party, the child or

the child's attorney, or upon the court's own motion, or request of

another court.

2. Before determining whether it is an inconvenient forum, a court of

this state shall consider whether it is appropriate for a court of

another state to exercise jurisdiction. For this purpose, the court

shall allow the parties to submit information and shall consider all

relevant factors, including:

(a) whether domestic violence or mistreatment or abuse of a child or

sibling has occurred and is likely to continue in the future and which

state could best protect the parties and the child;

(b) the length of time the child has resided outside this state;

(c) the distance between the court in this state and the court in the

state that would assume jurisdiction;

(d) the relative financial circumstances of the parties;

(e) any agreement of the parties as to which state should assume

jurisdiction;

(f) the nature and location of the evidence required to resolve the

pending litigation, including testimony of the child;

(g) the ability of the court of each state to decide the issue

expeditiously and the procedures necessary to present the evidence; and

(h) the familiarity of the court of each state with the facts and

issues in the pending litigation.

3. If a court of this state determines that it is an inconvenient

forum and that a court of another state is a more appropriate forum, it

shall stay the proceedings upon condition that a child custody

proceeding be promptly commenced in another designated state and may

impose any other condition the court considers just and proper.

4. A court of this state may decline to exercise its jurisdiction

under this article if a child custody determination is incidental to an

action for divorce or another proceeding while still retaining

jurisdiction over the divorce or other proceeding.

Jurisdiction declined by reason of conduct. 1. Except as

otherwise provided in section seventy-six-c of this title or by other

law of this state, if a court of this state has jurisdiction under this

article because a person seeking to invoke its jurisdiction has engaged

in unjustifiable conduct, the court shall decline to exercise its

jurisdiction unless:

(a) the parents and all persons acting as parents have acquiesced in

the exercise of jurisdiction;

(b) a court of the state otherwise having jurisdiction under sections

seventy-six through seventy-six-b of this title determines that this

state is a more appropriate forum under section seventy-six-f of this

title; or

(c) no court of any other state would have jurisdiction under the

criteria specified in sections seventy-six through seventy-six-b of this

title.

2. If a court of this state declines to exercise its jurisdiction

pursuant to subdivision one of this section, it may fashion an

appropriate remedy to ensure the safety of the child and prevent a

repetition of the unjustifiable conduct, including staying the

proceeding until a child custody proceeding is commenced in a court

having jurisdiction under sections seventy-six through seventy-six-b of

this title.

3. If a court dismisses a petition or stays a proceeding because it

declines to exercise its jurisdiction pursuant to subdivision one of

this section, it shall assess against the party seeking to invoke its

jurisdiction necessary and reasonable expenses including costs,

communication expenses, attorney's fees, investigative fees, expenses

for witnesses, travel expenses, and child care during the course of the

proceedings, unless the party from whom fees are sought establishes that

the assessment would be inappropriate. No fees, costs or expenses shall

be assessed against a party who is fleeing an incident or pattern of

domestic violence or mistreatment or abuse of a child or sibling, unless

the court is convinced by a preponderance of evidence that such

assessment would be clearly appropriate. The court may not assess fees,

costs, or expenses against this state unless authorized by law other

than this article.

4. In making a determination under this section, a court shall not

consider as a factor weighing against the petitioner any taking of the

child, or retention of the child after a visit or other temporary

relinquishment of physical custody, from the person who has legal

custody, if there is evidence that the taking or retention of the child

was to protect the petitioner from domestic violence or the child or

sibling from mistreatment or abuse.

Information to be submitted to court. 1. Subject to

subdivision five of this section, in a child custody proceeding, each

party, in its first pleading or in an attached affidavit, shall give

information, if reasonably ascertainable, under oath as to the child's

present address or whereabouts, the places where the child has lived

during the last five years, and the names and present addresses of the

persons with whom the child has lived during that period. The pleading

or affidavit must state whether the party:

(a) has participated, as a party or witness or in any other capacity,

in any other proceeding concerning the custody of or visitation with the

child and, if so, identify the court, the case number, and the date of

the child custody determination, if any;

(b) knows of any proceeding that could affect the current proceeding,

including proceedings for enforcement and proceedings relating to

domestic violence, protective orders, termination of parental rights,

and adoptions and, if so, identify the court, the case number, and the

nature of the proceeding; and

(c) knows the names and addresses of any person not a party to the

proceeding who has physical custody of the child or claims rights of

legal custody or physical custody of, or visitation with, the child and,

if so, the names and addresses of those persons.

2. If the information required by subdivision one of this section is

not furnished, the court, upon motion of a party or its own motion, may

stay the proceeding until the information is furnished.

3. If the declaration as to any of the items described in paragraphs

(a) through (c) of subdivision one of this section is in the

affirmative, the declarant shall give additional information under oath

as required by the court. The court may examine the parties under oath

as to details of the information furnished and other matters pertinent

to the court's jurisdiction and the disposition of the case.

4. Each party has a continuing duty to inform the court of any

proceeding in this or any other state that could affect the current

proceeding.

5. Upon a finding, which may be made ex parte, that the health or

safety of a party or child would be unreasonably put at risk by the

disclosure of identifying information, or if an existing order so

provides, a tribunal shall order that the address of the child or party

or other identifying information not be disclosed in a pleading or other

document filed in a proceeding under this article. Notwithstanding any

other provision of law, if the party seeking custody of the child has

resided or resides in a residential program for victims of domestic

violence as defined in section four hundred fifty-nine-a of the social

services law, the present address of the child and the present address

of the party seeking custody and the address of the residential program

for victims of domestic violence shall not be revealed. Upon making an

order that the address of the child or party or other identifying

information not be disclosed, the court shall designate the clerk of the

court or such other disinterested person as the agent for service of

process for the party whose address is to remain confidential and shall

notify the adverse party of such designation in writing. The clerk or

disinterested person designated by the court shall, when served with

process on behalf of the party whose address is to remain confidential,

promptly notify such party whose address is to remain confidential and

forward such process to him or her. The party whose address is to remain

confidential shall inform the clerk of the court or disinterested person

designated by the court of any change in address for purposes of receipt

of service of process.

Appearance of parties and child. 1. In a child custody

proceeding in this state, the court may order a party to the proceeding

who is in this state to appear before the court in person with or

without the child. The court may order any person who is in this state

and who has physical custody or control of the child to appear in person

with the child.

2. If a party to a child custody proceeding whose presence is desired

by the court is outside this state, the court may order that a notice

given pursuant to section seventy-five-g of this article include a

statement directing the party to appear in person with or without the

child and informing the party that failure to appear may result in a

decision adverse to the party.

3. The court may enter any orders necessary to ensure the safety of

the child and of any person ordered to appear under this section.

4. If a party to a child custody proceeding who is outside this state

is directed to appear under subdivision two of this section or desires

to appear personally before the court with or without the child, the

court may require another party to pay reasonable and necessary travel

and other expenses of the party so appearing and of the child.

Definitions. As used in this title:

1. "Petitioner" means a person who seeks enforcement of an order for

return of a child under the Hague Convention on the Civil Aspects of

International Child Abduction or enforcement of a child custody

determination.

2. "Respondent" means a person against whom a proceeding has been

commenced for enforcement of an order for return of a child under the

Hague Convention on the Civil Aspects of International Child Abduction

or enforcement of a child custody determination.

Enforcement under Hague Convention. Under this act, a court of

this state may enforce an order for the return of the child made under

the Hague Convention on the Civil Aspects of International Child

Abduction as if it were a child custody determination.

Duty to enforce. 1. A court of this state shall recognize and

enforce a child custody determination of a court of another state if the

latter court exercised jurisdiction in substantial conformity with this

article or the determination was made under factual circumstances

meeting the jurisdictional standards of this article and the

determination has not been modified in accordance with this article;

provided, however, that recognition and enforcement of the determination

would not violate subdivision one-c of section two hundred forty of this

chapter or section one thousand eighty-five of the family court act.

2. A court of this state may utilize any remedy available under other

law of this state to enforce a child custody determination made by a

court of another state. The remedies provided in this title are

cumulative and do not affect the availability of other remedies to

enforce a child custody determination.

Temporary visitation. 1. A court of this state which does not

have jurisdiction to modify a child custody determination, may, if

consistent with subdivision one-c of section two hundred forty of this

chapter or section one thousand eighty-five of the family court act,

issue a temporary order enforcing:

(a) a visitation schedule made by a court of another state; or

(b) the visitation provisions of a child custody determination of

another state that does not provide for a specific visitation schedule.

2. If a court of this state makes an order under paragraph (b) of

subdivision one of this section, it shall specify in the order a period

that it considers adequate to allow the petitioner to obtain an order

from a court having jurisdiction under the criteria specified in title

two of this article. The order remains in effect until an order is

obtained from the other court or the period expires.

Registration of child custody determination. 1. A child

custody determination issued by a court of another state may be

registered in this state, with or without a simultaneous request for

enforcement, by sending to the appropriate court in this state;

(a) a letter or other document requesting registration;

(b) two copies, including one certified copy, of the determination

sought to be registered, and a statement under penalty of perjury that

to the best of the knowledge and belief of the person seeking

registration the order has not been modified; and

(c) except as otherwise provided in section seventy-six-h of this

article, the name and address of the person seeking registration and any

parent or person acting as a parent who has been awarded custody or

visitation in the child custody determination sought to be registered.

2. On receipt of the documents required by subdivision one of this

section, the registering court shall:

(a) cause the determination to be filed as a foreign judgment,

together with one copy of any accompanying documents and information,

regardless of their form; and

(b) serve notice upon the persons named pursuant to subdivision one of

this section and provide them with an opportunity to contest the

registration in accordance with this section.

3. The notice required by paragraph (b) of subdivision two of this

section must state that:

(a) a registered determination is enforceable as of the date of the

registration in the same manner as a determination issued by a court of

this state;

(b) a hearing to contest the validity of the registered determination

must be requested within twenty days after service of notice; and

(c) failure to contest the registration will result in confirmation of

the child custody determination and preclude further contest of that

determination with respect to any matter that could have been asserted.

4. A person seeking to contest the validity of a registered order must

request a hearing within twenty days after service of the notice. At

that hearing, the court shall confirm the registered order unless the

person contesting registration establishes that:

(a) the issuing court did not have jurisdiction under title two of

this article;

(b) the child custody determination sought to be registered has been

vacated, stayed, or modified by a court having jurisdiction to do so

under title two of this article; or

(c) the person contesting registration was entitled to notice, but

notice was not given in accordance with the standards of section

seventy-five-g of this article, in the proceedings before the court that

issued the order for which registration is sought.

5. If a timely request for a hearing to contest the validity of the

registration is not made, the registration is confirmed as a matter of

law and the person requesting registration and all persons served must

be notified of the confirmation.

6. Confirmation of a registered order, whether by operation of law or

after notice and hearing, precludes further contest of the order with

respect to any matter that could have been asserted at the time of

registration.

Enforcement of registered determination. 1. A court of this

state may grant any relief normally available under the laws of this

state to enforce a registered child custody determination made by a

court of another state.

2. A court of this state shall recognize and enforce, but may not

modify, except in accordance with title two of this article, a

registered child custody determination of a court of another state;

provided, however, that recognition and enforcement of the determination

would not violate subdivision one-c of section two hundred forty of this

chapter or section one thousand eighty-five of the family court act.

Simultaneous proceedings. If a proceeding for enforcement

under this title is commenced in a court of this state and the court

determines that a proceeding to modify the determination is pending in a

court of another state having jurisdiction to modify the determination

under title two of this article, the enforcing court shall immediately

communicate with the modifying court. The proceeding for enforcement

continues unless the enforcing court, after consultation with the

modifying court, stays or dismisses the proceeding.

Expedited enforcement of child custody determination. 1. A

petition under this title must be verified. Certified copies of all

orders sought to be enforced and of any order confirming registration

must be attached to the petition. A copy of a certified copy of an order

may be attached instead of the original.

2. A petition for enforcement of a child custody determination must

state:

(a) whether the court that issued the determination identified the

jurisdictional basis it relied upon in exercising jurisdiction and, if

so, what the basis was;

(b) whether the determination for which enforcement is sought has been

vacated, stayed, or modified by a court whose decision must be enforced

under this article and, if so, identify the court, the case number, and

the nature of the proceeding;

(c) whether any proceeding has been commenced that could affect the

current proceeding, including proceedings relating to domestic violence,

child abuse or neglect, protective orders, termination of parental

rights, and adoptions and, if so, identify the court, the case number,

and the nature of the proceeding;

(d) the present physical address of the child and the respondent, if

known;

(e) whether relief in addition to the immediate physical custody of

the child and attorney's fees is sought, including a request for

assistance from law enforcement officials and, if so, the relief sought;

and

(f) if the child custody determination has been registered and

confirmed under section seventy-seven-d of this title, the date and

place of registration.

3. Upon the filing of a petition, the court shall issue an order

directing the respondent to appear in person with or without the child

at a hearing within three court days and may enter any order necessary

to ensure the safety of the parties and the child. The hearing must be

held not more than three court days after the filing of the petition,

provided that the petition has been served not less than twenty-four

hours prior to the hearing. Service may be by any means directed by the

court pursuant to section three hundred eight of the civil practice law

and rules. The court may extend the date of the hearing briefly for good

cause shown or upon the request of the petitioner.

4. An order issued under subdivision three of this section must state

the time and place of the hearing and advise the respondent that at the

hearing the court will order that the petitioner may take immediate

physical custody of the child and the payment of fees, costs, and

expenses under section seventy-seven-k of this title, and may schedule a

hearing to determine whether further relief is appropriate, unless the

respondent appears and establishes that:

(a) the child custody determination has not been registered and

confirmed under section seventy-seven-d of this title and that:

(1) the issuing court did not have jurisdiction under title two of

this article;

(2) the child custody determination for which enforcement is sought

has been vacated, stayed, or modified by a court having jurisdiction to

do so under title two of this article or that enforcement would violate

subdivision one-c of section two hundred forty of this chapter or

section one thousand eighty-five of the family court act;

(3) the respondent was entitled to notice, but notice was not given in

accordance with the standards of section seventy-five-g of this article,

in the proceedings before the court that issued the order for which

enforcement is sought; or

(b) the child custody determination for which enforcement is sought

was registered and confirmed under section seventy-seven-c of this

title, but has been vacated, stayed, or modified by a court of a state

having jurisdiction to do so under title two of this article.

Service of petition and order. Except as otherwise provided in

section seventy-seven-j of this title, the petition and order must be

served, by any method authorized by the law of this state, upon

respondent and any person who has physical custody of the child. Service

may be made outside the state in the manner prescribed by section

seventy-five-g of this article.

Hearing and order. 1. Unless the court issues a temporary

emergency order pursuant to section seventy-six-c of this article, upon

a finding that a petitioner is entitled to immediate physical custody of

the child, the court shall order that the petitioner may take immediate

physical custody of the child unless the respondent establishes that:

(a) the child custody determination has not been registered and

confirmed under section seventy-seven-d of this title and that:

(i) the issuing court did not have jurisdiction under title two of

this article;

(ii) the child custody determination for which enforcement is sought

has been vacated, stayed, or modified by a court of a state having

jurisdiction to do so under title two of this article or enforcement of

the determination would violate subdivision one-c of section two hundred

forty of this chapter or section one thousand eighty-five of the family

court act; or

(iii) the respondent was entitled to notice, but notice was not given

in accordance with the standards of section seventy-five-g of this

article, in the proceedings before the court that issued the order for

which enforcement is sought; or

(b) the child custody determination for which enforcement is sought

was registered and confirmed under section seventy-seven-d of this title

but has been vacated, stayed, or modified by a court of a state having

jurisdiction to do so under title two of this article.

2. The court shall award the fees, costs, and expenses authorized

under section seventy-seven-k of this title and may grant additional

relief, including a request for the assistance of law enforcement

officials, and set a further hearing to determine whether additional

relief is appropriate.

3. If a party called to testify refuses to answer on the ground that

the testimony may be self-incriminating, the court may draw an adverse

inference from the refusal.

4. A privilege against disclosure of communications between spouses

and a defense of immunity based on the relationship of husband and wife

or parent and child may not be invoked in a proceeding under this act.

Warrant to take physical custody of child. 1. Upon the filing

of a petition seeking enforcement of a child custody determination, the

petitioner may file a verified application for the issuance of a warrant

to take physical custody of the child if the child is at imminent risk

of suffering serious physical harm or of removal from this state.

2. If the court, upon the testimony of the petitioner or other

witness, finds that the child is likely to suffer imminent serious

physical harm or to be removed from this state, it may issue a warrant

to take physical custody of the child. Except in extraordinary

circumstances, the petition must be heard on the next court day after

the warrant is executed. Any adjournment for extraordinary circumstances

shall be for not more than three court days. The application for the

warrant must include the statements required by subdivision two of

section seventy-seven-g of this title.

3. A warrant to take physical custody of a child must:

(a) recite the facts upon which a conclusion of imminent serious

physical harm or removal from the jurisdiction is based;

(b) direct law enforcement officers to take physical custody of the

child immediately and deliver the child to the petitioner or, where

necessary, to act jointly with the local child protective service to

take immediate steps to protect the child; and

(c) provide for the placement of the child pending final relief.

4. The respondent must be served with the petition, warrant, and order

immediately after the child is taken into physical custody.

5. A warrant to take physical custody of a child is enforceable

throughout this state. If the court finds on the basis of the testimony

of the petitioner or other witness that a less intrusive remedy is not

effective, it may authorize law enforcement officers to enter private

property in order to execute the warrant and take physical custody of

the child. If required by exigent circumstances of the case and

necessary to the protection of the child, the court may authorize law

enforcement officers to make a forcible entry at any hour.

6. The court may impose conditions upon placement of a child to ensure

the appearance of the child and the child's custodian.

Costs, fees and expenses. 1. The court shall award the

prevailing party, including a state, necessary and reasonable expenses

incurred by or on behalf of the party, including costs, communication

expenses, attorney's fees, investigative fees, expenses for witnesses,

travel expenses, and child care during the course of the proceedings,

unless the party from whom fees or expenses are sought establishes that

the award would be inappropriate. No fees, costs or expenses shall be

assessed against a party who is fleeing an incident of domestic violence

or mistreatment or abuse of a child or sibling, unless the court is

convinced by a preponderance of evidence that such assessment would be

clearly appropriate.

2. The court may not assess fees, costs, or expenses against a state

unless authorized by law other than this article.

Recognition and enforcement. A court of this state shall

accord full faith and credit to an order issued by another state and

consistent with this article which enforces a child custody

determination by a court of another state unless the order has been

vacated, stayed, or modified by a court having jurisdiction to do so

under title two of this article, unless recognition and enforcement

would violate subdivision one-c of section two hundred forty of this

chapter or section one thousand eighty-five of the family court act.

Appeals. An appeal may be taken from a final order in a

proceeding under this title in accordance with article fifty-five of the

civil practice law and rules and article eleven of the family court act

and may be granted a preference in the discretion of the court to which

the appeal is taken. Unless the court enters a temporary emergency order

under section seventy-six-c of this article, the enforcing court may not

stay an order enforcing a child custody determination pending appeal.

Role of prosecutor or public official. 1. In a case arising

under this article or involving the Hague Convention on the Civil

Aspects of International Child Abduction, the prosecutor or other

appropriate public official may take any lawful action, including resort

to a proceeding under this title or any other available civil proceeding

to locate a child, obtain the return of a child, or enforce a child

custody determination if there is:

(a) an existing child custody determination;

(b) a request to do so from a court in a pending child custody

proceeding;

(c) a reasonable belief that a criminal statute has been violated; or

(d) a reasonable belief that the child has been wrongfully removed or

retained in violation of the Hague Convention on the Civil Aspects of

International Child Abduction.

2. A prosecutor or appropriate public official acting under this

section acts on behalf of the state or local government entity and may

not represent any private party.

Role of law enforcement. At the request of a prosecutor or

other appropriate public official acting under section seventy-seven-n

of this title, a law enforcement officer, as defined in subdivision

thirty-four of section 1.20 of the criminal procedure law, may take any

lawful action reasonably necessary to locate a child or a party and

assist a prosecutor or appropriate public official with responsibilities

under section seventy-seven-n of this title.

Costs and expenses. If the respondent is not the prevailing

party, the court may assess against the respondent all direct expenses

and costs incurred by the prosecutor or other appropriate public

official and law enforcement officers under section seventy-seven-n or

seventy-seven-o of this title.

Application and construction. In applying and construing this

article, consideration must be given to the need to promote uniformity

of the law with respect to its subject matter among states that enact

it.

Severability clause. If any provision of this article or its

application to any person or circumstance is held invalid, the

invalidity does not affect other provisions or applications of this

article which can be given effect without the invalid provision or

application, and to this end the provisions of this article are

severable.

Guardians in socage. Where a minor for whom a general guardian

of the property has not been appointed shall acquire real property, the

guardianship of his property with the rights, powers and duties of a

guardian in socage belongs: (1) to the parents jointly, or, if they be

separated, or divorced, to the parent who has been given the custody of

the minor by a decree of court, or in the absence of such a decree, to

the parent having the actual custody of the minor; (2) if one of the

parents be dead, to the sole surviving parent; (3) if there be no father

or mother, to the nearest and eldest relative of full age, not under any

legal incapacity.

The rights and authority of every such guardian shall be superseded by

a testamentary or other guardian appointed in pursuance of this article

or in pursuance of article ten of the surrogates court act.

Appointment of guardians by parent. A married woman is a joint

guardian of her children with her husband, with equal powers, rights and

duties in regard to them. Upon the death of either father or mother, the

surviving parent, whether of full age or a minor, of a child likely to

be born, or of any living child under the age of eighteen years and

unmarried, may, by deed or last will, duly executed, dispose of the

custody and tuition of such child during its minority or for any less

time, to any person or persons. Such surviving parent may appoint a

guardian or guardians of the person and of the property of the infant

and in making such appointment shall not be limited to the appointment

of the same person or persons in both capacities. Either the father or

mother may in the life-time of them both, by last will duly executed,

appoint the other the guardian of the person and property of such child,

during its minority. Either the father or mother may in the life-time

of them both by last will duly executed, and with the written consent of

the other duly acknowledged, appoint the other and a third person to be

the guardians of the person and property of such child during its

minority, and in making such appointment shall not be limited to the

appointment of the same person or persons in both capacities. Such

consent must have as part thereof a sworn statement that the consenting

parent in so consenting, is motivated solely by the welfare of the child

or children, the guardianship of whom is the subject of such consent,

and that such consenting parent has not received and will not receive

any consideration for such consent, and such consent may be revoked by

such consenting parent at any time prior to the death of the other, by

filing in the office of the county clerk of the county in which said

other then resides, a written revocation of such consent, subscribed and

acknowledged by the person so revoking, with proof of service of a copy

thereof on such other parent in the manner provided for service of a

summons. An appointment of a guardian of the person and property of an

infant made by duly executed last will of his father or mother shall be

valid and effective if at the time the will is admitted to probate the

other parent shall have died or the surviving parent be an adjudicated

incompetent. If both parents die under circumstances which render it

difficult or impossible to determine which of them died first and both

of them left last wills appointing the same person as guardian, the

appointment shall be valid and effective. If both parents die under

circumstances which render it difficult or impossible to determine which

of them died first, leaving last wills appointing different persons as

guardians, the surrogate's court shall determine which of the

appointments will best serve the welfare of the child and issue letters

of guardianship accordingly. If at any time during the minority of the

infant the surviving parent becomes competent to serve as guardian, he

may apply to the court which issued letters of guardianship to the

guardian appointed by will for a decree revoking such letters and the

court shall on such application make such order or decree as justice

requires. A person appointed guardian in pursuance of this section

shall not exercise the power of authority thereof unless such will is

admitted to probate, or such deed executed and recorded as provided by

SCPA 1710.

Powers and duties of such guardians. Every such disposition,

from the time it takes effect, shall vest in the person to whom made, if

he accepts the appointment, all the rights and powers, and subject him

to all the duties and obligations of a guardian of such minor, and shall

be valid and effectual against every other person claiming the custody

and tuition of such minor, as guardian in socage or otherwise. He may

take the custody and charge of the tuition of such minor, and may

maintain all proper actions for the wrongful taking or detention of the

minor, and shall recover damages in such actions for the benefit of his

ward. He shall also take the custody and management of the personal

estate of such minor and the profits of his real estate, during the time

for which such disposition shall have been made, and may bring such

actions in relation thereto as a guardian in socage might by law.

Duties and liabilities of all general guardians. A general

guardian or guardian in socage shall safely keep the property of his

ward that shall come into his custody, and shall not make or suffer any

waste, sale or destruction of such property or inheritance, but shall

keep in repair and maintain the houses, gardens and other appurtenances

to the lands of his ward, by and with the issues and profits thereof, or

with such other moneys belonging to his ward as shall be in his

possession; and shall deliver the same to his ward, when he comes to

full age, in at least as good condition as such guardian received the

same, inevitable decay and injury only excepted; and shall answer to his

ward for the issues and profits of the real estate, received by him, by

a lawful account, to be settled before any court, judge or surrogate

having authority to settle the accounts of general and testamentary

guardians; and any order, judgment or decree in any action or proceeding

to settle such accounts may be enforced to the same extent, and in like

manner as in the case of general and testamentary guardians. If any

guardian shall make or suffer any waste, sale or destruction of the

inheritance of his ward, he shall lose the custody of the same, and of

such ward, and shall be liable to the ward for any damage caused

thereby.

Investment of trust funds by guardian. A guardian holding funds

for investment has the powers provided by section twenty-one of the

personal property law and must not invest the funds in any other

securities or manner.

Definitions. When used in this article, unless the context or

subject matter manifestly requires a different interpretation:

1. "Adoptive parent" or "adoptor" shall mean a person adopting and

"adoptive child" or "adoptee" shall mean a person adopted.

2. "Judge" shall mean a judge of the family court of any county in the

state.

3. "Surrogate" shall mean the surrogate of any county in the state and

any other judicial officer while acting in the capacity of surrogate.

4. "Authorized agency" shall mean an authorized agency as defined in

the social services law and, for the purpose of this article, shall

include such corporations incorporated or organized under the laws of

this state as may be specifically authorized by their certificates of

incorporation to receive children for purposes of adoption.

5. "Private-placement adoption" shall mean any adoption other than

that of a minor who has been placed for adoption by an authorized

agency.

6. "Lawful custody" shall mean a custody (a) specifically authorized

by statute or (b) pursuant to judgment, decree or order of a court or

(c) otherwise authorized by law.

7. "A child who has been surrendered to an authorized agency for the

purpose of adoption" shall mean a child who has been surrendered to such

an agency pursuant to the provisions of section three hundred

eighty-three-c or three hundred eighty-four of the social services law.

Who may adopt; effect of article. An adult unmarried person,

an adult married couple together, or any two unmarried adult intimate

partners together may adopt another person. An adult married person who

is living separate and apart from his or her spouse pursuant to a decree

or judgment of separation or pursuant to a written agreement of

separation subscribed by the parties thereto and acknowledged or proved

in the form required to entitle a deed to be recorded or an adult

married person who has been living separate and apart from his or her

spouse for at least three years prior to commencing an adoption

proceeding may adopt another person; provided, however, that the person

so adopted shall not be deemed the child or step-child of the

non-adopting spouse for the purposes of inheritance or support rights or

obligations or for any other purposes. An adult or minor married couple

together may adopt a child of either of them born in or out of wedlock

and an adult or minor spouse may adopt such a child of the other spouse.

No person shall hereafter be adopted except in pursuance of this

article, and in conformity with section three hundred seventy-three of

the social services law.

An adult married person who has executed a legally enforceable

separation agreement or is a party to a marriage in which a valid decree

of separation has been entered or has been living separate and apart

from his or her spouse for at least three years prior to commencing an

adoption proceeding and who becomes or has been the custodian of a child

placed in their care as a result of court ordered foster care may apply

to such authorized agency for placement of said child with them for the

purpose of adoption. Final determination of the propriety of said

adoption of such foster child, however, shall be within the sole

discretion of the court, as otherwise provided herein.

Adoption is the legal proceeding whereby a person takes another person

into the relation of child and thereby acquires the rights and incurs

the responsibilities of parent in respect of such other person.

A proceeding conducted in pursuance of this article shall constitute a

judicial proceeding. An order of adoption or abrogation made therein by

a surrogate or by a judge shall have the force and effect of and shall

be entitled to all the presumptions attaching to a judgment rendered by

a court of general jurisdiction in a common law action.

No adoption heretofore lawfully made shall be abrogated by the

enactment of this article. All such adoptions shall have the effect of

lawful adoptions hereunder.

Nothing in this article in regard to a minor adopted pursuant hereto

inheriting from the adoptive parent applies to any will, devise or trust

made or created before June twenty-fifth, eighteen hundred

seventy-three, nor alters, changes or interferes with such will, devise

or trust. As to any such will, devise or trust a minor adopted before

that date is not an heir so as to alter estates or trusts or devises in

wills so made or created. Nothing in this article in regard to an adult

adopted pursuant hereto inheriting from the adoptive parent applies to

any will, devise or trust made or created before April twenty-second,

nineteen hundred fifteen, nor alters, changes or interferes with such

will, devise or trust. As to any such will, devise or trust an adult so

adopted is not an heir so as to alter estates or trusts or devises in

wills so made or created.

It shall be unlawful to preclude a prospective adoptive parent or

parents solely on the basis that the adoptor or adopters has had, or has

cancer, or any other disease. Nothing herein shall prevent the rejection

of a prospective applicant based upon his or her poor health or limited

life expectancy.

A petition to adopt, pursuant to the terms of this article, where the

petitioner's parentage is legally-recognized under New York State law

shall not be denied solely on the basis that the petitioner's parentage

is already legally-recognized.

Whose consent required. 1. Subject to the limitations

hereinafter set forth consent to adoption shall be required as follows:

(a) Of the adoptive child, if over fourteen years of age, unless the

judge or surrogate in his discretion dispenses with such consent;

(b) Of the parents or surviving parent, whether adult or infant, of a

child conceived or born in wedlock;

(c) Of the mother, whether adult or infant, of a child born out of

wedlock;

(d) Of any person or authorized agency having lawful custody or

guardianship of the adoptive child;

(e) In the case of the adoption of a child transferred to the custody

and guardianship of an authorized agency, foster parent, or relative

pursuant to section three hundred eighty-four-b of the social services

law or a child transferred to the custody and guardianship of an

authorized agency pursuant to section three hundred eighty-three-c of

the social services law:

(i) Of any person adjudicated by a court of this state or a court of

any other state or territory of the United States to be the father of

the child prior to the filing of a petition to terminate parental rights

to the child pursuant to section three hundred eighty-four-b of the

social services law, an application to execute a judicial surrender of

rights to the child pursuant to subdivision three of section three

hundred eighty-three-c of the social services law, or an application for

approval of an extra-judicial surrender pursuant to subdivision four of

section three hundred eighty-three-c of the social services law;

(ii) Of any person who filed a petition in a court in this state

seeking to be adjudicated the father of the child prior to the filing of

a petition to terminate parental rights to the child pursuant to section

three hundred eighty-four-b of the social services law, an application

to execute a judicial surrender of rights to the child pursuant to

subdivision three of section three hundred eighty-three-c of the social

services law, or an application for approval of an extra-judicial

surrender pursuant to subdivision four of section three hundred

eighty-three-c of the social services law, provided that the parentage

petition has been resolved in the petitioner's favor or remains pending

at the conclusion of the proceedings pursuant to section three hundred

eighty-four-b, three hundred eighty-three-c, or three hundred

eighty-four of the social services law;

(iii) Of any person who has executed an acknowledgment of parentage

pursuant to section one hundred eleven-k of the social services law,

section five hundred sixteen-a of the family court act, or section

forty-one hundred thirty-five-b of the public health law prior to the

filing of a petition to terminate parental rights to the child pursuant

to section three hundred eighty-four-b of the social services law, an

application to execute a judicial surrender of rights to the child

pursuant to subdivision three of section three hundred eighty-three-c of

the social services law, or an application for approval of an

extra-judicial surrender pursuant to subdivision four of section three

hundred eighty-three-c of the social services law, provided that such

acknowledgement has not been vacated;

(iv) Of any person who filed an unrevoked notice of intent to claim

parentage of the child pursuant to section three hundred seventy-two-c

of the social services law prior to the filing of a petition to

terminate parental rights to the child pursuant to section three hundred

eighty-four-b of the social services law, an application to execute a

judicial surrender of rights to the child pursuant to subdivision three

of section three hundred eighty-three-c of the social services law, or

an application for approval of an extra-judicial surrender pursuant to

subdivision four of section three hundred eighty-three-c of the social

services law;

(f) In any other adoption proceeding:

(i) Of the father, whether adult or infant, of a child born

out-of-wedlock and placed with the adoptive parents more than six months

after birth, but only if such father shall have maintained substantial

and continuous or repeated contact with the child as manifested by: (A)

the payment by the father toward the support of the child of a fair and

reasonable sum, according to the father's means, and either (B) the

father's visiting the child at least monthly when physically and

financially able to do so and not prevented from doing so by the person

or authorized agency having lawful custody of the child, or (C) the

father's regular communication with the child or with the person or

agency having the care or custody of the child, when physically and

financially unable to visit the child or prevented from doing so by the

person or authorized agency having lawful custody of the child. The

subjective intent of the father, whether expressed or otherwise,

unsupported by evidence of acts specified in this paragraph manifesting

such intent, shall not preclude a determination that the father failed

to maintain substantial and continuous or repeated contact with the

child. In making such a determination, the court shall not require a

showing of diligent efforts by any person or agency to encourage the

father to perform the acts specified in this paragraph. A father,

whether adult or infant, of a child born out-of-wedlock, who openly

lived with the child for a period of six months within the one year

period immediately preceding the placement of the child for adoption and

who during such period openly held himself out to be the father of such

child shall be deemed to have maintained substantial and continuous

contact with the child for the purpose of this subdivision;

(ii) Of the father, whether adult or infant, of a child born

out-of-wedlock who is under the age of six months at the time he is

placed for adoption, but only if: (A) such father openly lived with the

child or the child's mother for a continuous period of six months

immediately preceding the placement of the child for adoption; and (B)

such father openly held himself out to be the father of such child

during such period; and (C) such father paid a fair and reasonable sum,

in accordance with his means, for the medical, hospital and nursing

expenses incurred in connection with the mother's pregnancy or with the

birth of the child.

2. The consent shall not be required of a parent or of any other

person having custody of the child:

(a) who evinces an intent to forego his or her parental or custodial

rights and obligations as manifested by his or her failure for a period

of six months to visit the child and communicate with the child or

person having legal custody of the child, although able to do so; or

(b) who has surrendered the child to an authorized agency under the

provisions of section three hundred eighty-three-c or three hundred

eighty-four of the social services law; or

(c) for whose child a guardian has been appointed under the provisions

of section three hundred eighty-four-b of the social services law; or

(d) who, by reason of mental illness or intellectual disability, as

defined in subdivision six of section three hundred eighty-four-b of the

social services law, is presently and for the foreseeable future unable

to provide proper care for the child. The determination as to whether a

parent is mentally ill or intellectually disabled shall be made in

accordance with the criteria and procedures set forth in subdivision six

of section three hundred eighty-four-b of the social services law; or

(e) who has executed an instrument, which shall be irrevocable,

denying the paternity of the child, such instrument having been executed

after conception and acknowledged or proved in the manner required to

permit the recording of a deed.

3. (a) Notice of the proposed adoption shall be given to a person

whose consent to adoption is required pursuant to subdivision one and

who has not already provided such consent.

(b) Notice and an opportunity to be heard upon the proposed adoption

may be afforded to a parent whose consent to adoption may not be

required pursuant to subdivision two, if the judge or surrogate so

orders.

(c) Notice under this subdivision shall be given in such manner as the

judge or surrogate may direct.

(d) Notwithstanding any other provision of law, neither the notice of

a proposed adoption nor any process in such proceeding shall be required

to contain the name of the person or persons seeking to adopt the child.

4. Where the adoptive child is over the age of eighteen years the

consents specified in paragraphs (b), (c) and (d) of subdivision one of

this section shall not be required, and the judge or surrogate in his

discretion may direct that the consent specified in paragraph (f) of

subdivision one of this section shall not be required if in his opinion

the best interests of the adoptive child will be promoted by the

adoption and such consent cannot for any reason be obtained.

5. An adoptive child who has once been lawfully adopted may be

readopted directly from such child's adoptive parents in the same manner

as from its birth parents. In such case the consent of such birth

parents shall not be required but the judge or surrogate in his

discretion may require that notice be given to the birth parents in such

manner as he may prescribe.

6. For the purposes of paragraph (a) of subdivision two:

(a) In the absence of evidence to the contrary, the ability to visit

and communicate with a child or person having custody of the child shall

be presumed.

(b) Evidence of insubstantial or infrequent visits or communication by

the parent or other person having custody of the child shall not, of

itself, be sufficient as a matter of law to preclude a finding that the

consent of such parent or person to the child's adoption shall not be

required.

(c) The subjective intent of the parent or other person having custody

of the child, whether expressed or otherwise, unsupported by evidence of

acts specified in paragraph (a) of subdivision two manifesting such

intent, shall not preclude a determination that the consent of such

parent or other person to the child's adoption shall not be required.

(d) Payment by a parent toward the support of the child of a fair and

reasonable sum, according to the parent's means, shall be deemed a

substantial communication by such parent with the child or person having

legal custody of the child.

Notice in certain proceedings to fathers of children born

out-of-wedlock. 1. Notwithstanding any inconsistent provisions of this

or any other law, and in addition to the notice requirements of any law

pertaining to persons other than those specified in subdivision two of

this section, notice as provided herein shall be given to the persons

specified in subdivision two of this section of any adoption proceeding

initiated pursuant to this article or of any proceeding initiated

pursuant to section one hundred fifteen-b of this article relating to

the revocation of an adoption consent, when such proceeding involves a

child born out-of-wedlock provided, however, that such notice shall not

be required to be given: (a) in the case of the adoption of a child

transferred to the custody and guardianship of an authorized agency,

foster parent, or relative pursuant to section three hundred

eighty-four-b of the social services law or a child transferred to the

custody and guardianship of an authorized agency pursuant to section

three hundred eighty-three-c of the social services law; or (b) to any

person who has previously received notice of any proceeding pursuant to

section one hundred fifteen-b of this article. In addition to such other

requirements as may be applicable to the petition in any proceeding in

which notice must be given pursuant to this section, the petition shall

set forth the names and last known addresses of all persons required to

be given notice of the proceeding, pursuant to this section, and there

shall be shown by the petition or by affidavit or other proof

satisfactory to the court that there are no persons other than those set

forth in the petition who are entitled to notice. For the purpose of

determining persons entitled to notice of adoption proceedings initiated

pursuant to this article, persons specified in subdivision two of this

section shall not include any 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 the

child who is the subject of the proceeding was conceived as a result:

(A) rape in first or second degree; (B) course of sexual conduct against

a child in the first degree; (C) predatory sexual assault; or (D)

predatory sexual assault against a child.

2. Persons entitled to notice, pursuant to subdivision one of this

section, shall include:

(a) any person adjudicated by a court in this state to be the father

of the child;

(b) any person adjudicated by a court of another state or territory of

the United States to be the father of the child, when a certified copy

of the court order has been filed with the putative father registry,

pursuant to section three hundred seventy-two-c of the social services

law;

(c) any person who has timely filed an unrevoked notice of intent to

claim paternity of the child, pursuant to section three hundred

seventy-two-c of the social services law;

(d) any person who is recorded on the child's birth certificate as the

child's father;

(e) any person who is openly living with the child and the child's

mother at the time the proceeding is initiated and who is holding

himself out to be the child's father;

(f) any person who has been identified as the child's father by the

mother in written, sworn statement;

(g) any person who was married to the child's mother within six months

subsequent to the birth of the child and prior to the execution of a

surrender instrument or the initiation of a proceeding pursuant to

section three hundred eighty-four-b of the social services law; and

(h) any person who has filed with the putative father registry an

instrument acknowledging paternity of the child, pursuant to section

4-1.2 of the estates, powers and trusts law.

3. The provisions of this section shall not apply to persons entitled

to notice pursuant to section one hundred eleven.

The sole purpose of notice under this section shall be to enable the

person served pursuant to subdivision two to present evidence to the

court relevant to the best interests of the child.

4. Notice under this section shall be given at least twenty days prior

to the proceeding by delivery of a copy of the petition and notice to

the person. Upon a showing to the court, by affidavit or otherwise, on

or before the date of the proceeding or within such further time as the

court may allow, that personal service cannot be effected at the

person's last known address with reasonable effort, notice may be given,

without prior court order therefor, at least twenty days prior to the

proceeding by registered or certified mail directed to the person's last

known address or, where the person has filed a notice of intent to claim

paternity pursuant to section three hundred seventy-two-c of the social

services law, to the address last entered therein. Notice by publication

shall not be required to be given to a person entitled to notice

pursuant to the provisions of this section.

5. A person may waive his right to notice under this section by

written instrument subscribed by him and acknowledged or proved in the

manner required for the execution of a surrender instrument pursuant to

section three hundred eighty-four of the social services law.

6. The notice given to persons pursuant to this section shall inform

them of the time, date, place and purpose of the proceeding and shall

also apprise such persons that their failure to appear shall constitute

a denial of their interest in the child which denial may result, without

further notice, in the adoption or other disposition of the custody of

the child.

7. No order of adoption and no order of the court pursuant to section

one hundred fifteen-b shall be vacated, annulled or reversed upon the

application of any person who was properly served with notice in

accordance with this section but failed to appear, or who waived notice

pursuant to subdivision five. Nor shall any order of adoption be

vacated, annulled or reversed upon the application of any person who was

properly served with notice in accordance with this section in any

previous proceeding pursuant to section one hundred fifteen-b in which

the court determined that the best interests of the child would be

served by adoption of the child by the adoptive parents.

Determination of issue of paternity by surrogate;

limitations. 1. In the course of an adoption proceeding conducted

pursuant to this article the surrogate shall have jurisdiction to

determine any issue of paternity arising in the course of the same

proceeding and to make findings and issue an order thereon.

2. Such determination shall be made substantially in accordance with

the relevant and otherwise consistent provisions of the family court act

except that the surrogate shall have no power to grant any relief

relating to support of the child as an incident thereto.

3. A judge of the family court shall continue to exercise all of the

powers relating to adoption and declaration of paternity conferred upon

the family court by law.

Adoption order from foreign country or foreign jurisdiction.

1. A final judgment of adoption granted by a judicial, administrative or

executive body of a jurisdiction or country other than the United States

shall have the same force and effect in this state as that given to a

judgment of adoption entered by a court of competent jurisdiction of New

York state, without additional proceedings or documentation provided:

(a) either adopting parent is a resident of this state; and

(b) the validity of the foreign adoption has been verified by the

granting of an IR-3, IH-3, or a successor immigrant visa, for the child

by the United States Citizenship and Immigration Services.

2. Notwithstanding any other provision of law or rule or regulation to

the contrary, an adoptive parent referred to in subdivision one of this

section shall not be required to petition a court in this state for

adoption of the child provided the conditions of paragraphs (a) and (b)

of subdivision one of this section are met. The foreign adoption shall

be considered "final" under the laws of New York state upon the

satisfaction of paragraphs (a) and (b) of subdivision one of this

section.

3. Either adoptive parent or a guardian or a guardian ad litem may

register the order in this state with the judge or surrogate of the

county in which the adoptive parent or parents reside. A petition for

registration of a foreign adoption order may be combined with a petition

for a name change. If the court finds that the foreign adoption order

meets the requirements of subdivision one of this section, the court

shall issue a finding as to aspects of the foreign adoption, to wit, the

names of the adoptive parents, the name or names and reported birth date

of the adoptive child, the country of the adoptive child's birth, the

country and the date of the foreign adoption, the state residency of the

adoptive parent or parents and adoptive child, and a finding as to the

date and issuance of an IR-3, IH-3, or a successor immigrant visa; and,

the court shall issue an order of adoption to the party who has

petitioned for such an order.

4. The judge or surrogate is hereby directed to expedite the issuance

of an order of adoption pursuant to the provisions of subdivision three

of this section in order to ensure minimal expense of time and money to

the petitioning parties in attaining such order of adoption.

Consideration of blindness during adoption proceedings. 1.

The court may not deny or decide a petition for adoption solely on the

basis that the petitioner is blind. The blindness of the petitioner

shall be considered relevant only to the extent that the court finds,

based on evidence in the record, that the blindness affects the best

interests of the child whose adoption is the subject of the petition.

2. As used in this section, "blind" or "blindness" means:

a. vision that is 20/200 or less in the best corrected eye; or

b. vision that subtends an angle of not greater than twenty degrees in

the best corrected eye.

General provisions relating to adoption from authorized

agencies. In an adoption from an authorized agency the following

requirements shall be observed:

1. The adoptive parents or parent and the adoptive child must appear

for examination before a judge or surrogate of the county specified in

section one hundred thirteen of this title. The judge or surrogate,

however, may in his discretion dispense with the personal appearance of

the adoptive child or of an adoptive parent who is on active duty in the

armed forces of the United States.

2. The adoptive parents or parent and the adoptive child if over

eighteen years of age must present to such judge or surrogate (a) a

petition stating the names and place of residence of the petitioners;

whether they are of full age; whether they are married or unmarried and,

if married, whether they are living together as husband and wife; the

first name, date and place of birth of the adoptive child as nearly as

the same can be ascertained; a statement on information and belief that

there will be annexed to the petition a schedule verified by a duly

constituted official of the authorized agency as required by this

section; the religious faith of the petitioners; the religious faith of

the adoptive child and his or her parents as nearly as the same can be

ascertained; the manner in which the adoptive parents obtained the

adoptive child; whether the child was placed or brought into the state

of New York from out of state for the purpose of adoption, whether the

placement was subject to the provisions of section three hundred

seventy-four-a of the social services law and if the placement was

subject to the provisions of such section, whether the provisions of

such section were complied with; the period of time during which the

adoptive child has resided with the adoptive parents; the occupation and

approximate income of the petitioners, including support and

maintenance, if any, to be received on behalf of the adoptive child from

a commissioner of social services, pursuant to the social services law,

and the new name, if any, by which the adoptive child is to be known;

whether the adoptive parent or parents has or have knowledge that an

adoptive parent is the subject of an indicated report, as such terms are

defined in section four hundred twelve of the social services law, filed

with the statewide central register of child abuse and maltreatment

pursuant to title six of article six of the social services law, or has

been the subject of or the respondent in a child protective proceeding

commenced under article ten of the family court act, which proceeding

resulted in an order finding that the child is an abused or neglected

child; that no previous application has been made to any court or judge

for the relief sought or if so made, the disposition of it and a

statement as to whether the adoptive child had been previously adopted,

all of which statements shall be taken prima facie as true; (b) an

agreement on the part of the adoptive parents or parent to adopt and

treat the adoptive child as their or his or her own lawful child; (c)

the consents required by section one hundred eleven of this article.

2-a. In the petition provided for in subdivision two of this section,

the adoptive parents or parent and the adoptive child if over eighteen

years of age shall present to the judge or surrogate as nearly as can be

ascertained the heritage of the parents, which shall include

nationality, ethnic background and race; education, which shall be the

number of years of school completed by the parents at the time of the

birth of the adoptive child; general physical appearance of the parents

at the time of the birth of the adoptive child, which shall include

height, weight, color of hair, eyes, skin; occupation of the parents at

the time of the birth of the adoptive child; health and medical history

of the parents at the time of the birth of the adoptive child, including

all available information setting forth conditions or diseases believed

to be hereditary, any drugs or medication taken during the pregnancy by

the child's mother; and any other information which may be a factor

influencing the child's present or future health, talents, hobbies and

special interests of parents. The petition shall also include the names

and current addresses of the biological parents, if known.

3. The authorized agency must present to such judge or surrogate a

schedule to be annexed to the petition which shall be verified by a duly

constituted official of the authorized agency having custody of the

adoptive child or actually placing the child for adoption and shall

contain (1) the full name of the child, (2) the manner in which the

authorized agency obtained custody of the adoptive child, (3) the facts,

if any, which render unnecessary the consent of either or both of the

parents of the adoptive child, (4) a statement whether either parent had

ever requested the agency to return the child to the parent, within

thirty days of the execution and delivery of an instrument of surrender

to an authorized agency and, if so, all facts relating thereto. If a

request for return of the child to a parent be made after the

presentation to the court of the petition and schedule, the authorized

agency shall promptly report to the court in writing the facts relating

thereto and (5) all available information comprising the child's medical

history. If the child was placed into the state of New York for the

purpose of adoption and such placement was subject to the provisions of

section three hundred seventy-four-a of the social services law, the

authorized agency shall attach to the petition a copy of the document,

signed by New York's administrator of the interstate compact for the

placement of children or his designee, which informs the agency or

person who placed the child into the state that such placement complied

with the provisions of the compact.

4. None of the papers in the proceeding shall state the surname of the

child in the title and no petition, agreement, consent, affidavit, nor

any other document which is required to be signed by the adoptive

parents shall contain the surname of the adoptive child.

5. The petition must be verified, the agreement and consents executed

and acknowledged and the proof given by the respective persons before

such judge or surrogate; but where the verification, agreement or

necessary consent is duly acknowledged or proved and certified in form

sufficient to entitle a conveyance to be recorded in this state, (except

that when executed and acknowledged within the state of New York, no

certificate of the county clerk shall be required), such judge or

surrogate may grant the order of adoption without the personal

appearance of such persons or parties or any of them for good cause

shown, which reason shall be recited in the order of adoption.

6. Where the adoptive child is less than eighteen years of age, no

order of adoption shall be made until such child has resided with the

adoptive parents for at least three months unless the judge or surrogate

in his discretion shall dispense with such period of residence and shall

recite in the order the reason for such action. When the adoptive

parents are the foster parents in whose home the adoptive child has been

placed out or boarded out for a period in excess of three months, such

period shall be deemed to constitute the required period of residence.

7. Before making an order of adoption the judge or surrogate shall

inquire of the department of social services and the department shall

inform the court whether an adoptive parent is the subject of an

indicated report, as such terms are defined in section four hundred

twelve of the social services law, filed with the statewide central

register of child abuse and maltreatment pursuant to title six of

article six of the social services law and shall cause to be made an

investigation by a disinterested person or by an authorized agency

specifically designated by the judge or surrogate to examine into the

allegations set forth in the petition and to ascertain such other facts

relating to the adoptive child and adoptive parents as will give such

judge or surrogate adequate basis for determining the propriety of

approving the adoption. A written report of such investigation shall be

submitted before the order of adoption is made. As used in this

subdivision, "disinterested person" includes the probation service of

the family court. Such an inquiry shall not be required if the findings

of such an inquiry made within the past twelve months is available to

the judge or surrogate.

7-a. Any order subject to the provisions of this section shall include

an adoption information registry birth parent registration consent form,

stating whether or not such biological parent or parents whose consent

is subject to the provisions of this section, consents to the receipt of

identifying information by the child to be adopted upon registration

with the adoption information registry established by section forty-one

hundred thirty-eight-c of the public health law and upon the adoptee

reaching the age of eighteen. If such consent is made, it shall be

revocable by either of the biological parents at any time. The

revocation of the consent by one of the parents shall revoke the consent

of both parents. The failure of a biological parent to complete the

consent form shall have no effect on the finality of the consent to

adoption. A copy of the form required by this subdivision, shall be

forwarded to the state adoption information registry for inclusion in

the records maintained by such registry. Any fees authorized to be

charged by the state adoption registry for filing documentation with

such registry shall be waived for the form required by this subdivision.

8. Rules of court shall permit the filing of a petition for adoption

of a child whose custody and guardianship has not yet been committed to

an authorized agency where a proceeding to terminate parental rights is

pending. Such adoption petition shall be filed in the court where the

termination of parental rights proceeding is pending. The clerk of such

court shall accept the adoption petition for filing and processing and

shall request such inquiries of the department of social services as are

required by subdivision seven of this section, provided, however, that

the petition, supporting documents and the fact of their filing shall

not be provided to the judge before whom the petition for termination of

parental rights is pending until such time as fact-finding is concluded

under such petition.

Expedited calendaring of adoption proceedings. 1. The

adoption proceeding shall be deemed filed upon receipt by the clerk of

the court of all the documents required in subdivisions two, two-a,

three, five and seven of section one hundred twelve of this title, and

by rules of the court, together with an affidavit of readiness from the

petitioner's attorney. The affidavit of readiness shall attest that the

petitioner has prepared a petition for the adoption of the child and has

collected documentation as required by such rules and subdivisions two,

two-a, three and five of section one hundred twelve of this title.

2. Upon the filing of the documents required by subdivision one of

this section, the court, pursuant to rules promulgated by the chief

administrator of the court, shall schedule the proceeding for a review,

to take place within time frames established by such rules, to determine

if there is adequate basis for approving the adoption.

(a) If such basis is found, the appearance of the adoptive parents and

child before the court for approval of the adoption shall be calendared

pursuant to such rules.

(b) If, upon the court's review, the court finds that there is not an

adequate basis for approval of the adoption, the court shall direct such

further hearings, submissions or appearances as may be required, and the

proceedings shall be adjourned as required for such purposes.

3. The chief administrator of the court shall establish by rule time

frames for the calendaring and disposition of adoption proceedings and

shall report by the thirty-first day of December of each year to the

governor and the temporary president of the senate, speaker of the

assembly, and chairpersons of the judiciary and children and families

committees on the implementation of such rules and their impact upon

adoptions from authorized agencies.

Post-adoption contact agreements; judicial approval;

enforcement. 1. Nothing in this section shall be construed to prohibit

the parties to a proceeding under this chapter from entering into an

agreement regarding communication with or contact between an adoptive

child, adoptive parent or parents and a birth parent or parents and/or

the adoptive child's biological siblings or half-siblings.

2. Agreements regarding communication or contact between an adoptive

child, adoptive parent or parents, and a birth parent or parents and/or

biological siblings or half-siblings of an adoptive child shall not be

legally enforceable unless the terms of the agreement are incorporated

into a written court order entered in accordance with the provisions of

this section. The court shall not incorporate an agreement regarding

communication or contact into an order unless the terms and conditions

of the agreement have been set forth in writing and consented to in

writing by the parties to the agreement, including the attorney

representing the adoptive child. The court shall not enter a proposed

order unless the court that approved the surrender of the child

determined and stated in its order that the communication with or

contact between the adoptive child, the prospective adoptive parent or

parents and a birth parent or parents and/or biological siblings or

half-siblings, as agreed upon and as set forth in the agreement, would

be in the adoptive child's best interests. Notwithstanding any other

provision of law, a copy of the order entered pursuant to this section

incorporating the post-adoption contact agreement shall be given to all

parties who have agreed to the terms and conditions of such order.

3. Failure to comply with the terms and conditions of an approved

order regarding communication or contact that has been entered by the

court pursuant to this section shall not be grounds for setting aside an

adoption decree or revocation of written consent to an adoption after

that consent has been approved by the court as provided in this section.

4. An order incorporating an agreement regarding communication or

contact entered under this section may be enforced by any party to the

agreement or the attorney for the child by filing a petition in the

family court in the county where the adoption was approved. Such

petition shall have annexed to it a copy of the order approving the

agreement regarding communication or contact. The court shall not

enforce an order under this section unless it finds that the enforcement

is in the child's best interests.

5. If a birth parent has surrendered a child to an authorized agency

pursuant to the provisions of section three hundred eighty-three-c or

section three hundred eighty-four of the social services law, and if the

court before whom the surrender instrument was presented for approval

approved an agreement providing for communication or contact pursuant to

paragraph (a) of subdivision two of section three hundred eighty-

three-c or paragraph (a) of subdivision two of section three hundred

eighty-four of the social services law, a copy of the surrender

instrument and of the approved agreement shall be annexed to the

petition of adoption. The court shall issue an order incorporating the

terms and conditions of the approved agreement into the order of

adoption. Notwithstanding any other provision of law, a copy of any

order entered pursuant to this subdivision shall be given to the parties

who approved such agreement.

6. If a surrender instrument executed by a birth parent pursuant to

section three hundred eighty-three-c or three hundred eighty-four of the

social services law contains terms and conditions that provide for

communication with or contact between a child and a birth parent or

parents, such terms and conditions shall not be legally enforceable

after any adoption approved by a court pursuant to this article unless

the court has entered an order pursuant to this section incorporating

those terms and conditions into a court ordered adoption agreement.

Special provisions relating to adoption from authorized

agencies. 1. An authorized agency may consent to the adoption of a

minor whose custody and guardianship has been transferred to such

agency. An authorized agency may also consent to the adoption of a minor

whose care and custody has been transferred to such agency pursuant to

section one thousand fifty-five of the family court act or section three

hundred eighty-four-a of the social services law, where such child's

parents are both deceased, or where one parent is deceased and the other

parent is not a person entitled to notice pursuant to sections one

hundred eleven and one hundred eleven-a of this chapter.

2. In accordance with subparagraph three of paragraph (g) of

subdivision six of section three hundred ninety-eight of the social

services law, an authorized agency may submit a written request to a

social services district with a population of more than two million for

approval to consent to the adoption of a child whose custody and

guardianship, or of a child where such child's parents are both

deceased, or where one parent is deceased and the other parent is not

entitled to notice pursuant to sections one hundred eleven and one

hundred eleven-a of this chapter, and whose care and custody, has been

transferred to a social services official and who has been placed by the

social services official with the authorized agency. If the request is

not disapproved by the social services district within sixty days after

its submission, it shall be deemed approved, and the authorized agency

may give all necessary consent to the adoption of the child. Nothing

herein shall result in the transfer of care and custody or custody and

guardianship of the child from the social services official to the

authorized agency.

3. (a) The agreement of adoption shall be executed by such authorized

agency.

(b)(i) If the adoption petition is filed pursuant to subdivision eight

of section one hundred twelve of this article or subdivision ten of

section three hundred eighty-three-c or subdivision eleven of section

three hundred eighty-four-b of the social services law, the petition

shall be filed in the county where the termination of parental rights

proceeding or judicial surrender proceeding, as applicable, is pending

and shall be assigned, wherever practicable, to the same judge.

(ii) In any other agency adoption proceeding, the petition shall be

filed in the same court and, wherever practicable, shall be assigned to

the same judge of the county in which parental rights had been

terminated, a judicial surrender had been approved or the most recent

proceeding under article ten or ten-A of the family court act or section

three hundred fifty-eight-a of the social services law had been heard,

whichever occurred last, or in the county where the adoptive parents

reside or, if such adoptive parents do not reside in this state, in the

county where such authorized agency has its principal office. The

following procedures shall be applicable in cases where the child is

under the jurisdiction of a family court, but where the adoption

petition has been filed in a court other than the court that presided

over the termination of parental rights, surrender or most recent

proceeding under article ten or ten-A of the family court act or section

three hundred fifty-eight-a of the social services law, whichever

occurred last:

(A) Before hearing such an adoption proceeding, the court in which the

adoption petition was filed shall ascertain whether the child is under

the jurisdiction of a family court as a result of a placement under

article ten or ten-A of the family court act or section three hundred

fifty-eight-a of the social services law, a surrender under section

three hundred eighty-three-c or three hundred eighty-four of the social

services law or an order committing guardianship and custody under

article six of the family court act or section three hundred

eighty-four-b of the social services law, and, if so, which court

exercised jurisdiction over the most recent permanency or other

proceeding involving the child.

(B) If the court determines that the child is under the jurisdiction

of a different family court, the court in which the adoption petition

was filed shall stay its proceeding for not more than thirty days and

shall communicate with the family court judge who exercised jurisdiction

over the most recent permanency or other proceeding involving the child.

The communication shall be recorded or summarized on the record by the

court in which the adoption petition was filed. Both courts shall notify

the parties and the attorney for the child, if any, in their respective

proceedings and shall give them an opportunity to present facts and

legal argument or to participate in the communication prior to the

issuance of a decision on jurisdiction.

(C) The family court judge who exercised jurisdiction over the most

recent permanency or other proceeding involving the child shall

determine whether he or she should assume or decline jurisdiction over

the adoption proceeding. In making its determination, the family court

judge shall consider, among other factors: the relative familiarity of

each court with the facts and circumstances regarding permanency

planning for, and the needs and best interests of, the child; the

ability of the attorney for the child to continue such representation in

the adoption proceeding, if appropriate; the convenience of each court

to the residence of the prospective adoptive parent or parents; and the

relative ability of each court to hear and determine the adoption

petition expeditiously. The court in which the adoption petition was

filed shall issue an order incorporating this determination of

jurisdiction within thirty days of the filing of the adoption petition.

(D) If the family court that exercised jurisdiction over the most

recent permanency or other proceeding determines that it should exercise

jurisdiction over the adoption petition, the order of the court in which

the adoption petition was filed shall direct the transfer of the

proceeding forthwith but in no event more than thirty-five days after

the filing of the petition. The petition shall be assigned, wherever

practicable, to the family court judge who heard the most recent

permanency or other proceeding involving the child.

(E) If the family court that exercised jurisdiction over the

permanency or other proceeding involving the child declines to exercise

jurisdiction over the adoption petition, the court in which the adoption

petition was filed shall issue an order incorporating that determination

and shall proceed forthwith.

(iii) Neither such authorized agency nor any officer or agent thereof

need appear before the judge or surrogate. The judge or surrogate in his

or her discretion may accept the report of an authorized agency verified

by one of its officers or agents as the report of investigation

hereinbefore required. In making orders of adoption the judge or

surrogate when practicable must give custody only to persons of the same

religious faith as that of the adoptive child in accordance with article

six of the social services law.

Effect of death of potential adoptive parent. Notwithstanding

any other provision of law to the contrary, when a petition for adoption

by two persons has been duly filed, and one of the petitioners dies

before the adoption is complete, it shall be treated as a change of

circumstance. This change may be reviewed to assure that the adoption is

in the best interest of the child. The death of one of the adoptive

parents shall not, by itself, invalidate a certification nor shall the

death of one of the adoptive parents cause a new petition for adoption

to be filed. The deceased adoptive parent shall be considered one of the

legal parents, unless the surviving adoptive parent requests otherwise.

Order of adoption. 1. If satisfied that the best interests of

the adoptive child will be promoted thereby, the judge or surrogate

shall make an order approving the adoption and directing that the

adoptive child shall thenceforth be regarded and treated in all respects

as the child of the adoptive parents or parent. In determining whether

the best interests of the adoptive child will be promoted by the

adoption, the judge or surrogate shall give due consideration to any

assurance by a local commissioner of social services that he or she will

provide necessary support and maintenance for the adoptive child

pursuant to the social services law. Such order shall contain the full

name, date and place of birth and reference to the schedule annexed to

the petition containing the medical history of the child in the body

thereof and shall direct that the child's medical history, heritage of

the birth parents, which shall include nationality, ethnic background

and race; education, which shall be the number of years of school

completed by the birth parents at the time of the birth and also at the

time of surrender of the adoptive child; general physical appearance of

the birth parents at the time of the birth and also at the time of

surrender of the adoptive child, which shall include height, weight,

color of hair, eyes, skin; occupation of the birth parents at the time

of the birth and also at the time of surrender of the adoptive child;

health and medical history of the birth parents at the time of the birth

and also at the time of surrender of the adoptive child, including all

available information setting forth conditions or diseases believed to

be hereditary, any drugs or medication taken during the pregnancy by the

child's mother; and any other information which may be a factor

influencing the child's present or future health, including the talents,

hobbies and special interests of the birth parents as contained in the

petition, be furnished to the adoptive parents, the commissioner and the

appropriate local registrar of vital statistics. If the judge or

surrogate is also satisfied that there is no reasonable objection to the

change of name proposed, the order shall direct that the name of the

adoptive child be changed to the name stated in the agreement of

adoption and that henceforth he or she shall be known by that name. All

such orders made by a family court judge of Westchester county since

September first, nineteen hundred sixty-two, and on file in the office

of the county clerk of such county shall be transferred to the clerk of

the family court of such county. Such order and all the papers in the

proceeding shall be filed in the office of the court granting the

adoption and the order shall be entered in books which shall be kept

under seal and which shall be indexed by the name of the adoptive

parents and by the full original name of the child. Such order,

including orders heretofore entered, shall be subject to inspection and

examination only as hereinafter provided. Notwithstanding the fact that

adoption records shall be sealed and secret, they may be microfilmed and

processed pursuant to an order of the court, provided that such order

provides that the confidentiality of such records be maintained. If the

confidentiality is violated, the person or company violating it can be

found guilty of contempt of court. The fact that the adoptive child was

born out of wedlock shall in no case appear in such order. The written

report of the investigation together with all other papers pertaining to

the adoption shall be kept by the judge or surrogate as a permanent

record of his or her court and such papers must be sealed by him or her

and withheld from inspection. No certified copy of the order of adoption

shall issue unless authorized by court order, except that certified

copies may issue to the agency or agencies in the proceeding prior to

the sealing of the papers. Before the record is sealed, such order may

be granted upon written ex parte application on good cause shown and

upon such conditions as the court may impose. After the record is

sealed, such order may be granted only upon notice as hereinafter

provided for disclosure or access and inspection of records. The clerk

upon request of a person or agency entitled thereto shall issue

certificates of adoption which shall contain only the new name of the

child and the date and place of birth of the child, the name of the

adoptive parents and the date when and court where the adoption was

granted, which certificate as to the facts recited therein shall have

the same force and effect as a certified copy of an order of adoption.

For the purposes of this subdivision, the term "commissioner" shall mean

the state commissioner of health and, with respect to an adoptive child

born in the city of New York, the commissioner of health and mental

hygiene of the city of New York.

2. No person, including the attorney for the adoptive parents shall

disclose the surname of the child directly or indirectly to the adoptive

parents except upon order of the court. No person shall be allowed

access to such sealed records and order and any index thereof except

upon an order of a judge or surrogate of the court in which the order

was made or of a justice of the supreme court. No order for disclosure

or access and inspection shall be granted except on good cause shown and

on due notice to the adoptive parents and to such additional persons as

the court may direct. Nothing contained herein shall be deemed to

require the state commissioner of health or his designee to secure a

court order authorizing disclosure of information contained in adoption

or birth records requested pursuant to the authority of section

forty-one hundred thirty-eight-c or section forty-one hundred

thirty-eight-d of the public health law; upon the receipt of such

request for information, the court shall transmit the information

authorized to be released thereunder to the state commissioner of health

or his designee.

3. In like manner as a court of general jurisdiction exercises such

powers, a judge or surrogate of a court in which the order of adoption

was made may open, vacate or set aside such order of adoption for fraud,

newly discovered evidence or other sufficient cause.

4. Good cause for disclosure or access to and inspection of sealed

adoption records and orders and any index thereof, hereinafter the

"adoption records", under this section may be established on medical

grounds as provided herein. Certification from a physician licensed to

practice medicine in the state of New York that relief under this

subdivision is required to address a serious physical or mental illness

shall be prima facie evidence of good cause. Such certification shall

indentify the information required to address such illness. Except where

there is an immediate medical need for the information sought, in which

case the court may grant access to the adoption records directly to the

petitioner, the court hearing petition under the subdivision shall

appoint a guardian ad litem or other disinterested person, who shall

have access to the adoption records for the purpose of obtaining the

medical information sought from those records or, where the records are

insufficient for such purpose, through contacting the biological

parents. The guardian or other disinterested person shall offer a

biological parent the option of disclosing the medical information

sought by the petitioner pursuant to this subdivision, as well as the

option of granting consent to examine the parent's medical records. If

the guardian or other disinterested person appointed does not obtain the

medical information sought by the petitioner, such guardian or

disinterested person shall make a report of his or her efforts to obtain

such information to the court. Where further efforts to obtain such

information are appropriate, the court may in its discretion authorize

direct disclosure or access to and inspection of the adoption records by

the petitioner.

General provisions relating to private-placement adoptions. 1.

(a) Except as otherwise provided in this title, private-placement

adoptions shall be effected in the same manner as provided in sections

one hundred twelve and one hundred fourteen of title two of this

article.

(b) A person or persons seeking to commence a private-placement

adoption shall, prior to the submission of a petition for such adoption

and prior to any transfer of physical custody of an adoptive child, be

certified as a qualified adoptive parent or parents by a court of

competent jurisdiction pursuant to section one hundred fifteen-d of this

title. The provisions of such section may be waived upon the court's

own motion or upon the application of any party for good cause shown.

(c) A non-resident person or persons seeking to commence a

private-placement adoption of a child present within the state at the

time of placement shall, prior to any transfer of physical custody of an

adoptive child, make application for certification as a qualified

adoptive parent or parents by a court of competent jurisdiction pursuant

to section one hundred fifteen-d of this title. Upon application of such

person or persons, the court of the county to which the certification

petition is properly filed may take or retain jurisdiction of the

adoption proceeding. The provisions of this paragraph may be waived upon

the court's own motion or upon the application of any party for good

cause shown.

2. The proceeding shall be instituted in the county where the adoptive

parents reside or, if such adoptive parents do not reside in this state,

in the county where the adoptive child resides.

3. The adoptive parents or parent, the adoptive child and all persons

whose consent is required by section one hundred eleven of this article

must appear for examination before the judge or surrogate of the court

where the adoption proceedings are instituted. The judge or surrogate

may dispense with the personal appearance of the adoptive child or of an

adoptive parent who is on active duty in the armed forces of the United

States.

4. The agreement of adoption shall be executed by the adoptive parents

or parent.

5. Where the petition alleges that either or both of the birth parents

of the child have been deprived of civil rights or are mentally ill or

developmentally disabled, proof shall be submitted that such disability

exists at the time of the proposed adoption.

6. The adoptive parent or parents shall also present in an affidavit a

description of any change of circumstances since their certification as

a qualified adoptive parent or parents, pursuant to section one hundred

fifteen-d of this title, which may be relevant and material to such

certification.

7. Where the adoptive child is to be adopted upon the consent of some

person other than his father or mother, there shall also be presented

the affidavit of such person showing how he or she obtained lawful

custody of the child.

8. The adoptive parent or parents shall also present an affidavit

describing all fees, compensation and other remunerations paid by such

parent or parents on account of or incidental to the birth or care of

the adoptive child, the pregnancy or care of the adoptive child's mother

or the placement or adoption of the child and on account of or

incidental to assistance in arrangements for such placement or adoption.

The attorney representing the adoptive parents shall also present an

affidavit describing all fees, compensation and other remuneration

received by him on account of or incidental to the placement or adoption

of the child or assistance in arrangements for such placement or

adoption.

9. The petition must be verified, the agreement and consents executed

and acknowledged, the proof given and the affidavit sworn to by the

respective persons before such judge or surrogate; but where the

verification, agreement or consent of an adoptive parent, birth parent

or person whose consent is necessary to the adoption is duly

acknowledged or proved and certified in form sufficient to entitle a

conveyance to be recorded in this state, (except that when executed and

acknowledged within the state of New York, no certificate of the county

clerk shall be required), such judge or surrogate may grant the order of

adoption without the personal appearance of such adoptive parent, birth

parent or person. The judge or surrogate may, in his discretion,

dispense with the requirement that the adoptive child appear for

examination or join in the petition, where otherwise required. In any

adoption proceeding where the judge or surrogate shall dispense with the

personal appearance of such adoptive parent, birth parent, person whose

consent is necessary to the adoption, or adoptive child, the reason

therefor must be for good cause shown, and shall be recited in the order

of adoption.

10. In all cases where the consents of the persons mentioned in

subdivision two, three and four of section one hundred eleven of this

article are not required or where the adoptive child is an adult notice

of such application shall be served upon such persons as the judge or

surrogate may direct.

11. The provisions of title two prohibiting the surname of the child

from appearing in the papers, prohibiting disclosure of the surname of

the child to the adoptive parents, and requiring a separate application

for issuance of a certified copy of an order of adoption prior to the

sealing of the papers, requiring the filing of a verified schedule,

shall not apply to private-placement adoptions; provided, however, that

the facts required to be stated in the verified schedule in an agency

adoption shall be set forth in the petition.

12. (a) If the child who is being adopted was placed or brought into

New York for the purpose of adoption from a state which is a party to

the interstate compact on the placement of children and the provisions

of the compact applied to such placements, the petition must contain a

statement that the provisions of section three hundred seventy-four-a of

the social services law were complied with and where applicable, that

the provisions of section three hundred eighty-two of such law were also

complied with.

(b) If the child who is being adopted was placed or brought into New

York for the purpose of adoption from a state which is not a party to

the interstate compact on the placement of children, the petition, where

applicable, must contain a statement that the provisions of section

three hundred eighty-two of the social services law were complied with.

13. If the placement of a child into the state of New York is subject

to the provisions of sections three hundred seventy-four-a and/or three

hundred eighty-two of the social services law, there shall be attached

to the petition a copy of the document signed by New York's

administrator of the interstate compact on the placement of children or

his designee which informs the agency or person who placed the child

into the state that such placement complied with the provisions of the

compact and/or a copy of the license which is issued pursuant to the

provisions of section three hundred eighty-two of the social services

law to the person, institution, corporation or agency which placed or

brought the child into this state.

Special provisions relating to children to be brought into

the state for private-placement adoption. 1. In the case of a child

whose admission to the United States as an eligible orphan with

non-quota immigrant status pursuant to the federal immigration and

nationality act is sought for the purpose of adoption in the state of

New York, the following pre-adoption requirements shall be observed: (a)

The adoptive parents or parent must present to a judge or surrogate

having jurisdiction of adoption proceedings, in the county of residence

of such adoptive parents or parent, a verified written application

containing the information set forth in subdivision two of this section,

in such form as the judge or surrogate may prescribe for an order of

pre-adoption investigation, to determine whether the adoption may be in

the best interests of the child.

(b) The adoptive parents or parent must appear for examination before

the judge or surrogate of the court where the pre-adoption proceedings

are instituted.

(c) The application must be accompanied by duly authenticated

documentary evidence: (1) that the child is a noncitizen under the age

of sixteen and (2) that he or she is an orphan because of the death or

disappearance of both parents, or because of abandonment, or desertion

by, or separation or loss from, both parents, or who has only one parent

due to the death or disappearance of, abandonment, or desertion by, or

separation or loss from the other parent, and the remaining parent is

incapable of providing care for such orphan and has in writing

irrevocably released him or her for emigration and adoption, and has

consented to the proposed adoption. In all cases where the orphan has no

remaining parent under the circumstances set forth above, documentary

evidence must be presented that the person, public authority or duly

constituted agency having lawful custody of the orphan at the time of

the making of the application, hereunder, has in writing irrevocably

released him or her for immigration and adoption and has consented to

the proposed adoption and (3) that the adoptive parents agree to adopt

and treat the adoptive child as their or his or her own lawful child.

(d) In addition thereto such additional releases and consents as the

court may in its sound discretion require.

2. The verified written application shall contain the following

information: the names and place of residence of the adoptive parent or

parents; whether they are of full age; whether they are married or

unmarried and, if married, whether they are living together as husband

and wife; the name, date and place of birth of the adoptive child as

nearly as the same can be ascertained; the religious faith of the

adoptive parent or parents; the religious faith of the adoptive child

and his parents as nearly as the same can be ascertained; the medical

history of the adoptive child as nearly as the same can be ascertained;

the occupation and approximate income of the adoptive parent or parents,

and the name by which the adoptive child is to be known; that no

previous application has been made to any court or judge for the relief

sought or if so made, the disposition of it and a statement as to

whether the adoptive child has been previously adopted, if such fact is

known to the adoptive parent or parents; the facts which establish that

the child is an eligible orphan who would be entitled to enter the

United States with non-quota immigrant status for the purpose of

adoption in New York state, pursuant to the provisions in the federal

immigration and nationality act, in such case made; the circumstances

whereby, and names and addresses of the intermediaries, if any, through

whom the adoptive parent or parents learned of the existence and

eligibility of the child and the names and addresses of the person or

persons, public authority or duly constituted agency in the land of the

child's residence executing the written release of the child for

emigration and adoption, and the consent to such adoption, the

circumstances under which the release and consent were obtained, insofar

as they are known to the adoptive parent or parents.

2-a. The verified written application shall contain the following

information: the heritage of the parents as nearly as the same can be

ascertained, which shall include nationality, ethnic background and

race; education, which shall be the number of years of school completed

by the parents at the time of the birth of the adoptive child; general

physical appearance of the parents at the time of the birth of the

adoptive child, which shall include height, weight, color of hair, eyes,

skin; occupation of the parents at the time of the birth of the adoptive

child; health and medical history of the parents at the time of the

birth of the adoptive child, including all available information setting

forth conditions or diseases believed to be hereditary, any drugs or

medication taken during the pregnancy by the child's mother; and any

other information which may be a factor influencing the child's present

or future health, talents, hobbies and special interests of parents.

3. Upon receiving the verified written application, required

documentary evidence, agreement and consents, the judge or surrogate,

upon finding that the applicable provisions of section one hundred

fifteen-a have been complied with and that it appears that the proposed

adoption may be in the best interests of the child, shall issue an order

of pre-adoption investigation hereunder. The order of pre-adoption

investigation shall require that the report of such investigation be

made by a disinterested person who in the opinion of the judge or

surrogate is qualified by training and experience, or by an authorized

agency specifically designated by him to examine into the statements set

forth in the application. The investigator shall make a written report

of his investigation into the truth and accuracy of the statements in

the application and where applicable, into the validity of the

documentary evidence, submitted with the application, and he shall

ascertain as fully as possible, and incorporate in his report the

various factors which may bear upon the determination of the application

for adoption including, but not limited to, the following information:

(a) the marital and family status, and history, of adoptive parents;

(b) the physical and mental health of the adoptive parents;

(c) the property owned by and the income of the adoptive parents;

(d) the compensation paid or agreed upon with respect to the placement

of the child for adoption;

(e) whether either adoptive parent has ever been respondent in any

proceeding concerning allegedly neglected, abandoned or delinquent

children;

(f) the desirability of bringing the child into New York state for

private-placement adoption;

(g) any other facts relating the familial, social, religious,

emotional and financial circumstances of the adoptive parents which may

be relevant to a determination of suitability of the adoption.

The written report of pre-adoption investigation shall be submitted to

the judge or surrogate within thirty days after the same is directed to

be made, unless for good cause shown the judge or surrogate shall grant

a reasonable extension of such period. The report shall be filed with

the judge or surrogate, in any event, before the court shall issue its

pre-adoption certificate that it appears that the adoption is in the

best interests of the child.

4. On the return of the pre-adoption investigation order the judge or

surrogate shall examine the written report of the pre-adoption

investigation, and shall determine upon the basis of such written report

and such further proof, if any, as he may deem necessary, whether to

issue a pre-adoption certificate as provided for in this subdivision.

If the court is satisfied that the adoption may be in the best

interests of the child, and that there has been compliance with all

requirements hereof and is satisfied that the moral and temporal

interests of the child will be promoted by the adoption, the judge or

surrogate shall issue an original certificate under seal of the court

and two certified copies thereof, setting forth the fact that a

pre-adoption investigation has been conducted, and reciting the

documents and papers submitted therewith and stating that in the opinion

of the court there is compliance with all applicable laws and that it

appears from such investigation that the moral and temporal interests of

the child will be promoted by the proposed adoption. The original

certificate shall be filed with the clerk of the court, one certified

copy with the state commissioner of social services, and the adoptive

parents shall receive the second certified copy. The fact that the

adoptive child was born out of wedlock shall in no case appear in such

certificate. The written report of pre-adoption investigation together

with all other papers pertaining to the pre-adoption investigation and

the original certificate shall be kept by the court as a permanent

record and such papers must be sealed by the judge and withheld from

inspection. No person shall be allowed access to such sealed records and

original certificate and any index thereof except upon an order of the

court in which the pre-adoption certificate was made or an order of a

justice of the supreme court. No order for access and inspection shall

be granted except on due notice to the adoptive parents and on good

cause shown. In like manner as a court of general jurisdiction exercises

such powers, the court in which the pre-adoption certificate was made

may open, vacate or set aside such certificate for fraud, newly

discovered evidence or other sufficient cause.

5. The private-placement adoption of children who have been brought

into the United States and the state for such purpose and placed with

the adoptive parent or parents, shall be effected after issuance of the

pre-adoption certificate, in the manner provided by this title,

excepting that (a) the petition shall also recite the pre-adoption

proceedings, and (b) the court may in its discretion for good cause

shown, waive a subsequent investigation. In such case the order of

adoption shall recite the reason for such action.

6. In any case where there has been a failure to comply with the

requirements of this section, if applicable, no order of adoption shall

be made until one year after the court shall have received the petition

to adopt. The court may shorten such waiting period for good cause

shown, and, in such case the order of adoption shall recite the reason

for such action.

7. The provisions of this section, shall not be applicable to the

adoption of children placed out or to be placed out for adoption by an

authorized agency as defined in section three hundred seventy-one of the

social services law.

8. Notwithstanding any provision of law to the contrary, where a child

is placed with a couple or individual in New York state for the purpose

of adoption, and where said adoption has theretofore been finalized in

the country of birth, outside the United States, the couple or person

may petition the court in their county of residence in New York state,

for the readoption of said child in accordance with the provisions of

this chapter, providing for adoptions originally commenced in this

state. In any proceeding for readoption, proof of finalization of an

adoption outside the United States shall be prima facie evidence of the

consent of those parties required to give consent to an adoption

pursuant to section one hundred eleven of this article.

Special provisions relating to consents in private-placement

adoptions. 1. A duly executed and acknowledged consent to a

private-placement adoption shall state that no action or proceeding may

be maintained by the consenting parent for the custody of the child to

be adopted except as provided in this section. Notwithstanding any other

section of law, a consent to adoption executed by a person who is in

foster care shall only be executed before a judge of the family court.

2. Judicial consents. (a) A consent to a private placement adoption

may be executed or acknowledged before any judge or surrogate in this

state having jurisdiction over adoption proceedings. Such consent shall

state that it is irrevocable upon such execution or acknowledgment. A

consent executed or acknowledged before a court in another state shall

satisfy the requirements of this section if it is executed by a resident

of the other state before a court of record which has jurisdiction over

adoption proceedings in that state, and a certified copy of the

transcript of that proceeding, showing compliance with paragraph (b) of

this subdivision, is filed as part of the adoption proceeding in this

state.

(b) At the time that a parent appears before a judge or surrogate to

execute or acknowledge a consent to adoption, the judge or surrogate

shall inform such parent of the consequences of such act pursuant to the

provisions of this section, including informing such parent of the right

to be represented by legal counsel of the parent's own choosing; of the

right to obtain supportive counseling and of any rights the parent may

have pursuant to section two hundred sixty-two of the family court act,

section four hundred seven of the surrogate's court procedure act, or

section thirty-five of the judiciary law. The judge or surrogate shall

give such parent a copy of such consent upon the execution thereof.

3. Extrajudicial consents. (a) Whenever a consent is not executed or

acknowledged before a judge or surrogate pursuant to subdivision two of

this section such consent shall become irrevocable forty-five days after

the execution of the consent unless written notice of revocation thereof

is received by the court in which the adoption proceeding is to be

commenced within said forty-five days.

(b) Notwithstanding that such written notice is received within said

forty-five days, the notice of revocation shall be given effect only if

the adoptive parents fail to oppose such revocation, as provided in

subdivision six of this section, or, if they oppose such revocation and

the court as provided in subdivision six of this section has determined

that the best interests of the child will be served by giving force and

effect to such revocation.

4. (a) In any case where a consent is not executed or acknowledged

before a judge or surrogate pursuant to subdivision two of this section,

the consent shall state, in conspicuous print of at least eighteen point

type:

(i) the name and address of the court in which the adoption proceeding

has been or is to be commenced; and

(ii) that the consent may be revoked within forty-five days of the

execution of the document and where the consent is not revoked within

said forty-five days no proceeding may be maintained by the parent for

the return of the custody of the child; and

(iii) that such revocation must be in writing and received by the

court where the adoption proceeding is to be commenced within forty-five

days of the execution of said consent; and

(iv) that, if the adoptive parents contest the revocation, timely

notice of the revocation will not necessarily result in the return of

the child to the parent's custody, and that the rights of the parent to

custody of the child shall not be superior to those of the adoptive

parents but that a hearing will be required before a judge pursuant to

the provisions of this section to determine: (1) whether the notice of

revocation was timely and properly given; and if necessary, (2) whether

the best interests of the child will be served by: (A) returning custody

of the child to the parent; or (B) by continuing the adoption proceeding

commenced by the adoptive parents; or (C) by disposition other than

adoption by the adoptive parents; or (D) by placement of the child with

an authorized agency, and if any such determination is made, the court

shall make such disposition of the custody of the child as will best

serve the interests of the child; and

(v) that the parent has the right to legal representation of the

parent's own choosing; the right to obtain supportive counseling and may

have the right to have the court appoint an attorney pursuant to section

two hundred sixty-two of the family court act, section four hundred

seven of the surrogate's court procedure act, or section thirty-five of

the judiciary law.

(b) Such consent shall be executed or acknowledged before a notary

public or other officer authorized to take proof of deeds.

(c) A copy of such consent shall be given to such parent upon the

execution thereof. The consent shall include the following statement:

"I, (name of consenting parent), this ____ day of __________, _____,

have received a copy of this consent. (Signature of consenting parent)".

Such consenting parent shall so acknowledge the delivery and the date of

the delivery in writing on the consent.

(d) The adoptive parent may commence the adoption proceeding in a

court of competent jurisdiction other than the court named in the

consent provided that such commencement is initiated more than

forty-five days after the consent is executed. Such commencement shall

not revive, extend or toll the period for revocation of a consent

pursuant to this section.

5. For the purposes of commencing an adoption proceeding, the clerk of

a court of competent jurisdiction shall accept an adoption petition for

filing which is complete on its face and shall not require any

supplementary documentation as a condition of filing. Nothing in this

section shall compel a court to hear an adoption petition until all

documents necessary to the adoption proceeding have been filed to the

satisfaction of the court.

6. (a) A parent may revoke his consent to adoption only by giving

notice, in writing, of such revocation, no later than forty-five days

after the execution of the consent, or twenty days after the receipt of

a notice of denial, withdrawal or removal pursuant to paragraph (a) of

subdivision four of section seventeen hundred twenty-five of the

surrogate's court procedure act, whichever is later, to the court in

which the adoption proceeding has been or is to be commenced. Such

notice shall set forth the name and address of the court in which the

adoption proceeding is to be commenced, the address of the parent and

may, in addition, set forth the name and address of the attorney for the

parent.

(b) If, within forty-five days of the execution of the consent, the

court has received such notice of revocation, the court shall promptly

notify the adoptive parents and their attorney, by certified mail, of

the receipt by the court of such notice of revocation.

(i) Such notice to the adoptive parents shall set forth that if within

fifteen days from the date of such notice the court has not received

from the adoptive parents or their attorneys notice, in writing, of

their intention to oppose such revocation by the parents, the adoption

proceeding will be dismissed and that, in case of such dismissal, the

court will send to the parents, the adoptive parents and their

respective attorneys the notice of dismissal, as provided in paragraph

(c) of this subdivision.

(ii) Such notice to the adoptive parents shall further set forth that

if, within fifteen days from the date of such notice, the court shall

receive from the adoptive parents notice, in writing, of their intention

to oppose such revocation by the parents, the court will, upon notice to

the parents, the adoptive parents and their respective attorneys,

proceed, as provided in paragraph (d) of this subdivision, to a

determination of whether such notice of revocation by the parents shall

be given force and effect and to a determination of what disposition

shall be made of the custody of the child.

(c) If the adoption proceeding is dismissed pursuant to the provisions

of paragraph (b) of this subdivision,

(i) Written notice of such dismissal shall forthwith be sent to the

parent, the adoptive parents and their respective attorneys.

(ii) Such notice of dismissal shall set forth the name and address of

the parent, the name and address of the attorney for the parent, if any,

the name and address of the attorney for the adoptive parents.

(iii) Such notice of dismissal shall further set forth that if the

child is not returned to the custody of the parent within ten days from

the date of such notice of dismissal, the court will forthwith upon

request, in writing, by the parent or by the attorney for the parent,

furnish to said parent or attorney so requesting, the names and address

of the adoptive parents.

(iv) Such notice of dismissal shall further state that, in the event

the custody of the child is not returned to the parent by the adoptive

parents upon request therefor, a proceeding to obtain custody may be

instituted by the parent in the Supreme Court or the Family Court.

(d) If, pursuant to the provisions of paragraph (b) of this

subdivision, the adoptive parents give timely and proper notice of their

intention to oppose the revocation of the parent's consent:

(i) The court shall promptly notify, in writing, the parent, the

adoptive parents, their respective attorneys, and the attorney for the

child appointed pursuant to section two hundred forty-nine of the family

court act or a guardian ad litem appointed pursuant to section four

hundred three-a of the surrogate's court procedure act, that the court

will, upon the date specified in such notice by the court, or as soon

thereafter as the parties may be heard pursuant to this paragraph, hear

and determine whether revocation of the consent of the parent was timely

and properly given and whether the adoptive parent's notice of intent to

oppose such revocation was timely and properly given and if necessary,

hear and determine what disposition should be made with respect to the

custody of the child.

(ii) The court shall, upon the date specified, take proof as to

whether the best interests of the child will be served by returning

custody of the child to the parents, or by the adoption of the child by

the adoptive parents, or by placement of the child with an authorized

agency for foster care with or without authority to consent to the

adoption of the child, or by other disposition of the custody of the

child.

(iii) If the court determines that the best interests of the child

will be served by returning custody of the child to the parent or by

placement of the child with an authorized agency or by disposition other

than adoption by the adoptive parents, the revocation of consent shall

be given force and effect and the court shall make such disposition of

the custody of the child as will best serve the interests of the child.

(iv) If the court determines that the best interests of the child will

be served by adoption of the child by the adoptive parents, the court

shall enter an order denying any force or effect to the notice of

revocation of consent and shall dispose of the custody of the child as

if no such notice of revocation had been given by the parent.

(v) In such proceeding the parent or parents who consented to such

adoption shall have no right to the custody of the child superior to

that of the adoptive parents, notwithstanding that the parent or parents

who consented to the adoption are fit, competent and able to duly

maintain, support and educate the child. The custody of such child shall

be awarded solely on the basis of the best interests of the child, and

there shall be no presumption that such interests will be promoted by

any particular custodial disposition.

7. Nothing contained in this section shall limit or affect the power

and authority of the court in an adoption proceeding, pursuant to the

provisions of section one hundred sixteen of this title, to remove the

child from the home of the adoptive parents, upon the ground that the

welfare of the child requires such action, and thereupon to return the

child to a birth parent or place the child with an authorized agency,

or, in the case of a surrogate, transfer the child to the family court;

nor shall this section bar actions or proceedings brought on the ground

of fraud, duress or coercion in the execution or inducement of an

adoption consent.

8. Notwithstanding any other provision of this section, a parent

having custody of a child whose adoption is sought by his or her spouse

need only consent that his or her child be adopted by a named stepfather

or stepmother.

9. Any consent to adoption subject to the provisions of this section

shall include an adoption information registry birth parent registration

consent form, stating whether or not such biological parent or parents

whose consent is subject to the provisions of this section, consents to

the receipt of identifying information by the child to be adopted upon

registration with the adoption information registry established by

section forty-one hundred thirty-eight-c of the public health law and

upon the adoptee reaching the age of eighteen. If such consent is made,

it shall be revocable by either of the biological parents at any time.

The revocation of the consent by one of the parents shall revoke the

consent of both parents. The failure of a biological parent to complete

the consent form shall have no effect on the finality of the consent to

adoption. A copy of the form required by this subdivision, shall be

forwarded to the state adoption information registry for inclusion in

the records maintained by such registry. Any fees authorized to be

charged by the state adoption registry for filing documentation with

such registry shall be waived for the form required by this subdivision.

Temporary guardianship by adoptive parent. In any case where

physical custody of a child is transferred from the child's parent or

guardian to another person or persons for the purposes of adoption and a

consent to the adoption of such child has been executed pursuant to

section one hundred fifteen-b of this title, the adoptive parent or

parents shall, within ten court days of taking physical custody, either

file a petition for adoption with a court of competent jurisdiction or

file an application for temporary guardianship of the person of the

child pursuant to this section with the court in which the adoption will

be filed, pursuant to section seventeen hundred twenty-five of the

surrogate's court procedure act or section six hundred sixty-one of the

family court act except as otherwise provided herein. Such application

shall include an affidavit by the adoptive parent or parents describing

any change of circumstances since their certification as a qualified

adoptive parent or parents, pursuant to section one hundred fifteen-d of

this title, which may be material to such certification. Such a

petition for adoption shall also be deemed an application for temporary

guardianship, where no prior application for an order for temporary

guardianship has been filed.

In any case where the adoptive parent or parents take physical custody

of an adoptive child and requirements for certification as a qualified

adoptive parent or parents have been waived, pursuant to section one

hundred fifteen-d of this title, an application for temporary

guardianship or petition for adoption for such child shall be filed with

the court not later than five court days from obtaining physical custody

of such child. Such time period may be extended upon motion of any

person or upon the court's own motion for good cause shown.

Petition for certification. 1. Except as provided for in

subdivision eight of this section, a person or persons petitioning for

certification as a qualified adoptive parent or parents shall upon a

form, promulgated by the chief administrator of the courts, provide to

the court:

(a) the applicant's name or applicants' names, residential address and

telephone number;

(b) a statement by the applicant or applicants that they are seeking

certification by the court as a person or persons qualified to take

physical custody of an infant prior to or contemporaneous with the

filing of a private-placement adoption petition;

(c) a statement by the applicant or applicants as to whether such

applicant or applicants have been the subject of an indicated report of

child abuse or maltreatment, pursuant to title six of article six of the

social services law; and

(d) a statement that a pre-placement investigation will be undertaken

by a disinterested person, as such term is defined in subdivision four

of this section, and that a written report of such investigation will be

furnished directly to the court by such disinterested person with a copy

of such report to be delivered simultaneously to the applicant or

applicants. Such disinterested person shall certify to the court that he

or she is a disinterested person and has no interest in the outcome of

the party's or parties' application. Such disinterested person shall

further disclose to the court any fee paid or to be paid to such person

for services rendered in connection with the pre-placement

investigation.

Such petition shall also require information regarding:

(i) the marital and family status and history of the adoptive parent

or parents;

(ii) the physical and mental health of the adoptive parent or parents;

(iii) the property owned by and the income of adoptive parent or

parents;

(iv) whether the adoptive parent or either of the adoptive parents has

ever been a respondent in any proceeding concerning allegedly abused,

neglected, abandoned or delinquent children; and

(v) whether the applicant or applicants have made any prior

application for certification as a qualified adoptive parent or parents

and, if so, the disposition of such application for certification.

2. In any case where the applicant or applicants do not intend to

cause a pre-placement investigation to be undertaken pursuant to the

provisions of paragraph (d) of subdivision one of this section, such

applicant or applicants shall request the court to appoint a

disinterested person to conduct such pre-placement investigation. The

investigative written report shall be submitted to the judge or

surrogate within thirty days, unless for good cause shown the judge or

surrogate shall grant a reasonable extension of such period.

3. Such applicant or applicants shall be financially responsible for

the costs of any pre-placement investigation conducted pursuant to

subdivision one or two of this section.

3-a. (a) The court shall submit fingerprint cards and order a report

from the division of criminal justice services setting forth any

existing criminal history record of the applicant for certification as a

qualified adoptive parent.

(b) Notwithstanding any other provision of law to the contrary, a

petition for certification as a qualified adoptive parent shall be

denied where a criminal history record of the applicant reveals a

conviction for (i) a felony conviction at any time involving: (1) child

abuse or neglect; (2) spousal abuse; (3) a crime against a child,

including child pornography; or (4) a crime involving violence,

including rape, sexual assault, or homicide, other than a crime

involving physical assault or battery; or (ii) a felony conviction

within the past five years for physical assault, battery, or a

drug-related offense.

(c) For the purposes of this subdivision, "spousal abuse" is an

offense defined in section 120.05, 120.10, 121.12, or 121.13 of the

penal law where the victim of such offense was the defendant's spouse;

provided, however, spousal abuse shall not include a crime in which the

applicant was the defendant, and the court finds in accordance with this

subdivision that he or she was the victim of physical, sexual or

psychological abuse by the victim of such offense and such abuse was a

factor in causing the applicant to commit such offense.

4. A pre-placement investigation conducted pursuant to the provisions

of this section shall be made by a disinterested person who in the

opinion of the judge or surrogate is qualified by training and

experience to examine into the allegations set forth in the application

and any other factors which may be relevant to the suitability of the

applicant or applicants as a qualified adoptive parent or parents. For

the purposes of this section, a disinterested person shall also include

a licensed master social worker, licensed clinical social worker, the

probation service of the family court or an authorized agency

specifically designated by the court to conduct pre-placement

investigations.

5. Such disinterested person shall file with the court a written

report of his or her investigation into the truth and accuracy of the

allegations set forth in the application and his or her investigation of

the various factors which may be relevant to the suitability of the

applicant or applicants as qualified adoptive parents. Such

investigation shall include, but not be limited to, a personal interview

and visit at the applicant's or applicants' home and an investigation of

any other facts relating to the familial, social, religious, emotional

and financial circumstances of the adoptive parent or parents which may

be relevant to certification as a qualified adoptive parent or parents.

6. Certification and provisional certification. If after consideration

of the report submitted by the disinterested person, and all other

relevant and material factors, the court grants the application, the

applicant or applicants may accept physical custody of a child for the

purposes of adoption, either prior to or contemporaneous with the filing

of an adoption petition. The order granting the petition shall be valid

for a period not to exceed eighteen months and shall be accepted as

proof of certification by any court of competent jurisdiction within the

state. The court may in its discretion grant a conditional order of

certification upon satisfactory completion and submission of a petition

wherein the prospective adoptive parent or parents indicate no prior

criminal convictions or founded findings of child abuse or neglect, and

after completion of a disinterested person investigation provided for in

this section, pending completion of any further reports, investigations

or inquiries ordered by the court or required by any other statute or

court rule. A conditional order of certification shall be valid and

remain in force and effect until replaced by an order of certification

or by an order denying the petition, whichever shall first occur, but in

no event shall such provisional certification continue beyond one

hundred eighty days from the date of original issuance. If the court

denies the petition, the reasons for such denial shall be stated on the

record or in the order.

7. Nothing in this section shall be deemed to waive, limit or restrict

the provisions of any other law requiring any inquiry, disinterested

person investigation or court review of any persons seeking to adopt a

child under any provision of law.

8. The provisions of this section shall not apply to petitions brought

by a step-parent for the adoption of a step-child where the step-child

has resided with the birth parent and the step-parent for a continuous

period of at least one year.

9. Extension of certification. When a petition for adoption is filed

by a qualified parent or parents previously certified and the balance of

the time period remaining under such certification in accordance with

subdivision six of this section is less than one year, the court may on

its own motion or on the motion of the petitioners extend the time

period of the original certification to a date eighteen months from the

date of filing of the adoption petition. When a petition for adoption is

filed by a qualified parent or parents who have previously been

certified by an order which has expired within a year preceding the date

of the adoption petition, the court may extend the termination date of

the earlier certification until eighteen months from the filing of such

petition, provided the petitioner apply for such extension and set forth

any change of circumstances of the qualified parent or parents since

issuance and expiration of the last certification which may be relevant

and material to the extension of such certification and affix thereto

written verification of any such changed circumstance or lack thereof by

a disinterested person as defined in subdivision four of this section.

Except as is provided for by this subdivision, the court shall not

extend a previously expired order of certification. Any further

certification shall require the filing of a new petition for

certification in accordance with subdivision six of this section.

In any instance when the court determines whether to extend a

certification under this subdivision, the court, in its discretion, may

order each or any of (a) a report from the statewide central registry of

child abuse and maltreatment to determine whether the child or the

petitioner is or has been the subject of or another person named in an

indicated report, as such terms are defined in section four hundred

twelve of the social services law, filed with such register, (b) a

report from the division of criminal justice services setting forth any

criminal record of such petitioner or petitioners, and (c) an additional

pre-placement investigation to be undertaken by a disinterested person.

Nothing herein shall be deemed to require that the court enter such an

order.

Effect of death of potential adoptive parent. Notwithstanding

any other provision of law to the contrary, when a petition for adoption

by two persons has been duly filed, and one of the petitioners dies

before the adoption is complete, it shall be treated as a change of

circumstance. This change may be reviewed to assure that the adoption is

in the best interest of the child. The death of one of the adoptive

parents shall not, by itself, invalidate a certification nor shall the

death of one of the adoptive parents cause a new petition for adoption

to be filed. The deceased adoptive parent shall be considered one of the

legal parents, unless the surviving adoptive parent requests otherwise.

Orders of investigation and order of adoption. 1. When the

adoptive child is less than eighteen years of age, no order of adoption

shall be made until three months after the court shall have received the

petition to adopt, except where the spouse of the adoptive parent is the

birth parent of the child and the child has resided with the birth

parent and adoptive parent for more than three months, such waiting

period shall not be required. The judge or surrogate may shorten such

waiting period for good cause shown, and, in such case the order of

adoption shall recite the reason for such action. The three months

residence period specified in section one hundred twelve of title two of

this article and the three months waiting period provided in this

subdivision may run concurrently in whole or in part.

2. Stage one of private-placement adoption. At the time of receiving

the petition, agreement and consents, the judge or surrogate, upon

finding that the applicable provisions of this title have been complied

with and that it appears that the adoption may be in the best interests

of the child, shall issue an order of investigation hereunder. The order

of investigation shall require that the report of such investigation be

made in accordance with subdivision three of this section, and may

require or authorize further investigations from time to time until the

granting of the order of adoption. Such order shall direct that such

investigation shall not unnecessarily duplicate any previous

investigations which have been made of the petitioner or petitioners

pursuant to section one hundred fifteen-d of this title. Should such

investigation give apparent cause, the judge or surrogate shall require

the petitioner or petitioners to show cause why the child should not be

removed from the home, upon due notice to all persons whose consent is

required for the adoption, and in any case where the consent of the

birth mother would not otherwise be required, the judge or surrogate may

in his discretion require that she be given due notice. On the return

date the judge or surrogate shall take proof of the facts shown by any

such investigation. If the court is satisfied that the welfare of the

child requires that it be removed from the home, the judge or surrogate

shall by order remove the child from the home of the petitioner or

petitioners and return the child to a birth parent or place the child

with an appropriate authorized agency, or, in the case of a surrogate,

transfer the child to the family court. The judge or surrogate may also

require that notice be given to an appropriate authorized agency.

3. The judge or surrogate shall cause to be made an investigation by a

disinterested person who in the opinion of the judge or surrogate is

qualified by training and experience, or by an authorized agency

specifically designated by him to examine into the allegations set forth

in the petition. A post-placement investigation conducted pursuant to

the provisions of this section shall be made by a disinterested person

who in the opinion of the judge or surrogate is qualified by training

and experience to perform post-placement investigations. Such

disinterested person shall certify to the court that he or she is a

disinterested person and has no interest in the outcome of petitioner's

or petitioners' application. Such disinterested person shall further

disclose to the court any fee paid or to be paid to such person for

services rendered in connection with the post-placement investigation.

The investigator shall make a written report of his investigation into

the truth and accuracy of the allegations of the petition, and, where

applicable, into the statements contained in the affidavit required by

section one hundred fifteen of this title, and he shall ascertain as

fully as possible, and incorporate in his report the various factors

which may bear upon the determination of the application for adoption

including, but not limited to, the following information:

(a) the marital and family status, and history, of the adoptive

parents and adoptive child;

(b) the physical and mental health of the adoptive parents and

adoptive child;

(c) the property owned by and the income of the adoptive parents;

(d) the compensation paid or agreed upon with respect to the placement

of the child for adoption;

(e) whether either adoptive parent has ever been respondent in any

proceeding concerning allegedly abused, neglected, abandoned or

delinquent children;

(f) any other facts relating to the familial, social, religious,

emotional and financial circumstances of the adoptive parents which may

be relevant to a determination of adoption.

The written report of investigation shall be submitted to the judge or

surrogate within thirty days after the same is directed to be made,

unless for good cause shown the judge or surrogate shall grant a

reasonable extension of such period. The report shall be filed with the

judge or surrogate, in any event, before the final order of adoption is

granted.

4. Stage two of private-placement adoption. If the judge or surrogate

has found that there has been compliance with all the requirements

hereof and is satisfied that the best interests of the child will be

promoted by granting an order of adoption, the provisions of section one

hundred fourteen of title two of this article shall apply.

5. As used in this section, "disinterested person" includes the

probation service of the family court, a licensed master social worker,

licensed clinical social worker, or an authorized agency specifically

designated by the court to conduct pre-placement investigations.

Effect of adoption. 1. (a) After the making of an order of

adoption the birth parents of the adoptive child shall be relieved of

all parental duties toward and of all responsibilities for and shall

have no rights over such adoptive child or to his property by descent or

succession, except as hereinafter stated.

(b) The rights of an adoptive child to inheritance and succession from

and through his birth parents shall terminate upon the making of the

order of adoption except as hereinafter provided.

(c) The adoptive parents or parent and the adoptive child shall

sustain toward each other the legal relation of parent and child and

shall have all the rights and be subject to all the duties of that

relation including the rights of inheritance from and through each other

and the birth and adopted kindred of the adoptive parents or parent.

(d) When a birth or adoptive parent, having lawful custody of a child,

marries or remarries and consents that the stepparent may adopt such

child, such consent shall not relieve the parent so consenting of any

parental duty toward such child nor shall such consent or the order of

adoption affect the rights of such consenting spouse and such adoptive

child to inherit from and through each other and the birth and adopted

kindred of such consenting spouse.

(e) Notwithstanding the provisions of paragraphs (a), (b) and (d) of

this subdivision, as to estates of persons dying after the thirty-first

day of August, nineteen hundred eighty-seven, if:

(1) the decedent is the adoptive child's birth grandparent or is a

descendant of such grandparent, and

(2) an adoptive parent (i) is married to the child's birth parent,

(ii) is the child's birth grandparent, or (iii) is descended from such

grandparent,

the rights of an adoptive child to inheritance and succession from and

through either birth parent shall not terminate upon the making of the

order of adoption.

However, an adoptive child who is related to the decedent both by

birth relationship and by adoption shall be entitled to inherit only

under the birth relationship unless the decedent is also the adoptive

parent, in which case the adoptive child shall then be entitled to

inherit pursuant to the adoptive relationship only.

(f) The right of inheritance of an adoptive child extends to the

distributees of such child and such distributees shall be the same as if

he were the birth child of the adoptive parent.

(g) Adoptive children and birth children shall have all the rights of

fraternal relationship including the right of inheritance from each

other. Such right of inheritance extends to the distributees of such

adoptive children and birth children and such distributees shall be the

same as if each such child were the birth child of the adoptive parents.

(h) The consent of the parent of a child to the adoption of such child

by his or her spouse shall operate to vest in the adopting spouse only

the rights as distributee of a birth parent and shall leave otherwise

unaffected the rights as distributee of the consenting spouse.

(i) This subdivision shall apply only to the intestate descent and

distribution of real and personal property.

2. (a) Except as hereinafter stated, after the making of an order of

adoption, adopted children and their issue thereafter are strangers to

any birth relatives for the purpose of the interpretation or

construction of a disposition in any instrument, whether executed before

or after the order of adoption, which does not express a contrary

intention or does not expressly include the individual by name or by

some classification not based on a parent-child or family relationship.

(b) As to the wills of persons executed after the thirty-first day of

August, nineteen hundred eighty-six, or to lifetime instruments executed

after such date whether executed before or after the order of adoption,

a designation of a class of persons described in section 2-1.3 of the

estates, powers and trusts law shall, unless the will or instrument

expresses a contrary intention, be deemed to include an adoptive child

who was a member of such class in his or her birth relationship prior to

adoption, and the issue of such child, only if:

(1) an adoptive parent (i) is married to the child's birth parent,

(ii) is the child's birth grandparent, or (iii) is a descendant of such

grandparent, and

(2) the testator or creator is the child's birth grandparent or a

descendant of such grandparent.

(c) A person who, by reason of this subdivision, would be a member of

the designated class, or a member of two or more designated classes

pursuant to a single instrument, both by birth relationship and by

adoption shall be entitled to benefit only under the birth relationship,

unless the testator or creator is the adoptive parent, in which case the

person shall then be entitled to benefit only under the adoptive

relationship.

(d) The provisions of this subdivision shall not impair or defeat any

rights which have vested on or before the thirty-first day of August,

nineteen hundred eighty-six, or which have vested prior to the adoption

regardless of when the adoption occurred.

3. The provisions of law affected by the provisions of this section in

force prior to March first, nineteen hundred sixty-four shall apply to

the estates or wills of persons dying prior thereto and to lifetime

instruments theretofore executed which on said date were not subject to

grantor's power to revoke or amend.

Definitions. When used in this article, unless the context or

subject matter manifestly requires a different interpretation:

1. "Genetic surrogate" shall mean a person who gives birth to a child

who is the person's genetic child pursuant to a genetic surrogate

parenting agreement.

2. "Genetic surrogate parenting agreement" shall mean any agreement,

oral or written, in which:

(a) a genetic surrogate agrees either to be inseminated with the sperm

of a person who is not their spouse or to be impregnated with an embryo

that is the product of the genetic surrogate's ovum fertilized with the

sperm of a person who is not their spouse; and

(b) the genetic surrogate agrees to, or intends to, surrender or

consent to the adoption of the child born as a result of such

insemination or impregnation.

Public policy. Genetic surrogate parenting agreements are

hereby declared contrary to the public policy of this state, and are

void and unenforceable.

Prohibitions and penalties. 1. No person or other entity shall

knowingly request, accept, receive, pay or give any fee, compensation or

other remuneration, directly or indirectly, in connection with any

genetic surrogate parenting agreement, or induce, arrange or otherwise

assist in arranging a genetic surrogate parenting agreement for a fee,

compensation or other remuneration, except for:

(a) payments in connection with the adoption of a child permitted by

subdivision six of section three hundred seventy-four of the social

services law and disclosed pursuant to subdivision eight of section one

hundred fifteen of this chapter; or

(b) payments for reasonable and actual medical fees and hospital

expenses for artificial insemination or in vitro fertilization services

incurred by the genetic surrogate in connection with the birth of the

child.

2. (a) Any party to a genetic surrogate parenting agreement or the

spouse of any party to a genetic surrogate parenting agreement who

violates this section shall be subject to a civil penalty not to exceed

five hundred dollars.

(b) Any other person or entity who or which induces, arranges or

otherwise assists in the formation of a genetic surrogate parenting

contract for a fee, compensation or other remuneration or otherwise

violates this section shall be subject to a civil penalty not to exceed

ten thousand dollars and forfeiture to the state of any such fee,

compensation or remuneration in accordance with the provisions of

subdivision (a) of section seven thousand two hundred one of the civil

practice law and rules, for the first such offense. Any person or entity

who or which induces, arranges or otherwise assists in the formation of

a genetic surrogate parenting contract for a fee, compensation or other

remuneration or otherwise violates this section, after having been once

subject to a civil penalty for violating this section, shall be guilty

of a felony.

Proceedings regarding parental rights, status or obligations.

In any action or proceeding involving a purported genetic surrogacy

parenting agreement, the parentage of the child will be determined based

on the laws of New York state and:

1. the court shall not consider the genetic surrogate's participation

in a genetic surrogate parenting agreement as adverse to their parental

rights, status, or obligations; and

2. the court, having regard to the circumstances of the case and of

the respective parties including the parties' relative ability to pay

such fees and expenses, in its discretion and in the interests of

justice, may award to either party reasonable and actual counsel fees

and legal expenses incurred in connection with such action or

proceeding. Such award may be made in the order or judgment by which the

particular action or proceeding is finally determined, or by one or more

orders from time to time before the final order or judgment, or by both

such order or orders and the final order or judgment; provided, however,

that in any dispute involving a genetic surrogate who has executed a

valid surrender or consent to the adoption, nothing in this section

shall empower a court to make any award that it would not otherwise be

empowered to direct.

Action for judgment declaring nullity of void marriages or

annulling voidable marriage. (a) Former husband or wife living. An

action to declare the nullity of a void marriage upon the ground that

the former husband or wife of one of the parties was living, the former

marriage being in force, may be maintained by either of the parties

during the life-time of the other, or by the former husband or wife.

(b) Party under age of consent. An action to annul a marriage on the

ground that one or both of the parties had not attained the age of legal

consent may be maintained by the infant, or by either parent of the

infant, or by the guardian of the infant's person; or the court may

allow the action to be maintained by any person as the next friend of

the infant. But a marriage shall not be annulled under this subdivision

at the suit of a party who was of the age of legal consent when it was

contracted, or by a party who for any time after he or she attained that

age freely cohabited with the other party as husband or wife.

(c) Party a person with a developmental illness or person with a

mental illness. An action to annul a marriage on the ground that one of

the parties thereto was a person with a developmental disability may be

maintained at any time during the life-time of either party by any

relative of a person with a developmental disability, who has an

interest to avoid the marriage. An action to annul a marriage on the

ground that one of the parties thereto was a person with a mental

illness may be maintained at any time during the continuance of the

mental illness, or, after the death of the person with a mental illness

in that condition, and during the life of the other party to the

marriage, by any relative of the person with a mental illness who has an

interest to avoid the marriage. Such an action may also be maintained by

the person with a mental illness at any time after restoration to a

sound mind; but in that case, the marriage should not be annulled if it

appears that the parties freely cohabited as husband and wife after the

person with a mental illness was restored to a sound mind. Where one of

the parties to a marriage was a person with a mental illness at the time

of the marriage, an action may also be maintained by the other party at

any time during the continuance of the mental illness, provided the

plaintiff did not know of the mental illness at the time of the

marriage. Where no relative of the person with a developmental

disability or person with a mental illness brings an action to annul the

marriage and the person with a mental illness is not restored to sound

mind, the court may allow an action for that purpose to be maintained at

any time during the life-time of both the parties to the marriage, by

any person as the next friend of the person with a mental illness or

person with a developmental disability.

(d) Physical incapacity. An action to annul a marriage on the ground

that one of the parties was physically incapable of entering into the

marriage state may be maintained by the injured party against the party

whose incapacity is alleged; or such an action may be maintained by the

party who was incapable against the other party, provided the incapable

party was unaware of the incapacity at the time of marriage, or if aware

of such incapacity, did not know it was incurable. Such an action can be

maintained only where an incapacity continues and is incurable, and must

be commenced before five years have expired since the marriage.

(e) Consent by force, duress or fraud. An action to annul a marriage

on the ground that the consent of one of the parties thereto was

obtained by force or duress may be maintained at any time by the party

whose consent was so obtained. An action to annul a marriage on the

ground that the consent of one of the parties thereto was obtained by

fraud may be maintained by the party whose consent was so obtained

within the limitations of time for enforcing a civil remedy of the civil

practice law and rules. Any such action may also be maintained during

the life-time of the other party by the parent, or the guardian of the

person of the party whose consent was so obtained, or by any relative of

that party who has an interest to avoid the marriage, provided that in

an action to annul a marriage on the ground of fraud the limitation

prescribed in the civil practice law and rules has not run. But a

marriage shall not be annulled on the ground of force or duress if it

appears that, at any time before the commencement of the action, the

parties thereto voluntarily cohabited as husband and wife; or on the

ground of fraud, if it appears that, at any time before the commencement

thereof, the parties voluntarily cohabited as husband and wife, with a

full knowledge of the facts constituting the fraud.

(f) Incurable mental illness for five years. An action to annul a

marriage upon the ground that one of the parties has been incurably

mentally ill for a period of five years or more may be maintained by or

on behalf of either of the parties to such marriage.

Action to annul marriage on ground of incurable mental illness

for five years; procedure; support. 1. If the marriage be annulled on

the ground of the mental illness of a spouse, the court may include in

the judgment an order providing for his or her suitable support, care

and maintenance during life from the property or income of the other

spouse. The court shall specify the amount of such support, care and

maintenance and, before rendering judgment, may exact security for such

support, care and maintenance during life and shall order the filing and

recording of the instrument creating such security in the office of the

clerk of the county in which the action is brought and the filing of two

certified copies thereof with the office of mental health at its Albany

office. The provisions of the judgment relating to support, care and

maintenance of the spouse with a mental illness during his or her life

and to security therefor may be modified or amended at any time by the

court upon due notice to the other party and other interested parties as

the court may direct and in proper case the value of the suitable

support, care and maintenance to such spouse during the balance of his

or her life based upon appropriate mortality tables may be adjudged and

determined by the court in which the estate of a deceased spouse is

being administered and the same may be recovered on behalf of the spouse

with a mental illness from the estate of the deceased spouse. If the

spouse with a mental illness is maintained in an institution or

otherwise under the jurisdiction of the office of mental health, the

suitable support, care and maintenance as required in the judgment,

unless otherwise directed by the court, shall be the charge established

by the commissioner of mental health and such charge may be recovered in

the manner provided by law. Such amount shall continue to be so required

for the support of the spouse with a mental illness in the event of his

or her removal from the custody of the office of mental health unless

thereafter otherwise directed by the court. Any security exacted for the

suitable support, care and maintenance during life of the spouse with a

mental illness shall be available to that spouse or any person on his or

her behalf or to any person or agency providing support, care and

maintenance for such spouse in the event that the required payments for

such support, care and maintenance have not been made and upon

application to the court the other spouse shall be ordered and directed

to provide additional or further security.

2. Judgment annulling a marriage on such ground shall not be rendered

until, in addition to any other proofs in the case, a thorough

examination of the alleged party with a mental illness shall have been

made by three physicians who are recognized authorities on mental

disease, to be appointed by the court, all of whom shall have agreed

that such party has an incurable mental illness and shall have so

reported to the court. In such action, the testimony of a physician

attached to a state hospital in the department of mental hygiene as to

information which he acquired in attending a patient in a professional

capacity at such hospital, shall be taken before a referee appointed by

a judge of the court in which such action is pending if the court in its

discretion shall determine that the distance such physician must travel

to attend the trial would be a great inconvenience to him or the

hospital, or that other sufficient reason exists for the appointment of

a referee for such purpose; provided, however, that any judge of such

court at any time in his discretion, notwithstanding such deposition,

may order that a subpoena issue for the attendance and examination of

such physician upon the trial of the action. In such case a copy of the

order shall be served together with the subpoena.

3. Except as provided in paragraph five of this section, when the

person alleged to have an incurable mental illness is confined in a

state hospital for persons with a mental illness of this state, one, and

one only, of the physicians so appointed shall be a member of the

resident medical staff of such hospital designated by the director

thereof. If the alleged incurably person with a mental illness is not

confined in a state hospital for persons with a mental illness of this

state, one of the examining physicians named in pursuance of this

section shall be the director of a state hospital for persons with a

mental illness if the alleged person with a mental illness is within

this state, or the superintendent or comparable officer of a state

hospital for persons with a mental illness of the state or country where

the alleged person with a mental illness is present if the alleged

person with a mental illness is outside of this state. The report of

such superintendent or comparable officer of a state hospital for

persons with a mental illness of such other state or country shall not

be received in evidence or considered by the court unless he shall be a

well educated physician with at least five years of training and

experience in the care and treatment of persons suffering from mental

disorders.

4. When the plaintiff has been permitted to bring such action or

prosecute the same as a poor person and the alleged incurably defendant

with a mental illness is present within this state, the court shall

appoint three physicians who are examining physicians, as defined by

section 1.05 of the mental hygiene law, in the employment of the

department of mental hygiene. If the alleged person with a mental

illness be outside of this state, the court may, upon proof thereof,

appoint three examining physicians who are qualified under the laws or

regulations of the foreign state or country where the alleged person

with a mental illness is present and who have qualifications comparable

to those specified in section 1.05 of the mental hygiene law of the

state, provided, however, that one of such examining physicians shall be

the superintendent or comparable officer of a state hospital for persons

with a mental illness of such foreign state or country with

qualifications as specified in paragraph four. Such examiners shall make

the examination of the alleged party with a mental illness present in

this state and file with the court a verified report of their findings

and conclusions without costs to such plaintiff when the plaintiff is a

poor person. Examination of an alleged party with a mental illness

present outside of this state shall be made at the expense of the

plaintiff. Such report shall be received in evidence upon the trial of

the action without the personal appearance or testimony of such

examiners. If the court shall deem it necessary that the testimony of

any such examiners be taken, the court may order the taking of such

testimony by deposition only. The examiners so appointed by the court

may be members of the resident medical staff of any state hospital,

whether or not the alleged person with a mental illness is being

confined there.

Dismissal of complaint in action by next friend to annul a

marriage. Where the next friend of an infant, person with a

developmental disability or person with a mental illness maintains an

action annulling a marriage, the court may dismiss the complaint if

justice so requires, although, in a like case, the party to the

marriage, if plaintiff, would be entitled to judgment.

Jury trial. In an action to annul a marriage, except where it

is founded upon an allegation of the physical incapacity of one of the

parties thereto, there is a right to trial by a jury of all the issues

of fact.

Proof required. 1. In an action to annul a marriage, a final

judgment annulling the marriage shall not be rendered by default for

want of an appearance or pleading, or by consent, or upon a trial of an

issue, without proof of the facts upon which the allegation of nullity

is founded. Plaintiff shall prove that there has been no such

cohabitation between the parties as would bar a judgment except that in

an action under subdivision (c) of section one hundred forty the

plaintiff may prove instead that the mental illness still continues.

2. In any action, whether or not contested, brought to annul a

marriage, the declaration or confession of either party to the marriage

is not alone sufficient as proof, but other satisfactory evidence of the

facts must be produced.

Judgment, how far conclusive. A final judgment, annulling a

marriage rendered during the lifetime of both the parties is conclusive

evidence of the invalidity of the marriage in every court of record or

not of record, in any action or special proceeding, civil or criminal.

Such a judgment rendered after the death of either party to the marriage

is conclusive only as against the parties to the action and those

claiming under them.

Action for divorce. An action for divorce may be maintained by

a husband or wife to procure a judgment divorcing the parties and

dissolving the marriage on any of the following grounds:

(1) The cruel and inhuman treatment of the plaintiff by the defendant

such that the conduct of the defendant so endangers the physical or

mental well being of the plaintiff as renders it unsafe or improper for

the plaintiff to cohabit with the defendant.

(2) The abandonment of the plaintiff by the defendant for a period of

one or more years.

(3) The confinement of the defendant in prison for a period of three

or more consecutive years after the marriage of plaintiff and defendant.

(4) The commission of an act of adultery, provided that adultery for

the purposes of articles ten, eleven, and eleven-A of this chapter, is

hereby defined as the commission of an act of vaginal sexual contact,

oral sexual contact or anal sexual contact, voluntarily performed by the

defendant, with a person other than the plaintiff after the marriage of

plaintiff and defendant. Oral sexual contact and anal sexual contact

include, but are not limited to, sexual conduct as defined in

subdivision two of section 130.00 and subdivision four of section 130.20

of the penal law.

(5) The spouses have lived apart pursuant to a decree or judgment of

separation for a period of six months or more after the granting of such

decree or judgment, and satisfactory proof has been submitted by the

plaintiff that such plaintiff has substantially performed all the terms

and conditions of such decree or judgment.

(6) The spouses have lived separate and apart pursuant to a written

agreement of separation, subscribed by the parties thereto and

acknowledged or proved in the form required to entitle a deed to be

recorded, for a period of six months or more after the execution of such

agreement and satisfactory proof has been submitted by the plaintiff

that such plaintiff has substantially performed all the terms and

conditions of such agreement. Such agreement shall be filed in the

office of the clerk of the county wherein either party resides. In lieu

of filing such agreement, either party to such agreement may file a

memorandum of such agreement, which memorandum shall be similarly

subscribed and acknowledged or proved as was the agreement of separation

and shall contain the following information: (a) the names and addresses

of each of the parties, (b) the date of marriage of the parties, (c) the

date of the agreement of separation and (d) the date of this

subscription and acknowledgment or proof of such agreement of

separation.

(7) The relationship between husband and wife has broken down

irretrievably for a period of at least six months, provided that one

party has so stated under oath. No judgment of divorce shall be granted

under this subdivision unless and until the economic issues of equitable

distribution of marital property, the payment or waiver of spousal

support, the payment of child support, the payment of counsel and

experts' fees and expenses as well as the custody and visitation with

the infant children of the marriage have been resolved by the parties,

or determined by the court and incorporated into the judgment of

divorce.

Special action. a. A spouse against whom a decree of divorce

has been obtained under the provisions of subdivision five or six of

section one hundred seventy of this chapter, where the decree, judgment

or agreement of separation was obtained or entered into prior to January

twenty-first, nineteen hundred seventy, may institute an action in which

there shall be recoverable, in addition to any rights under this or any

other provisions of law, an amount equivalent to the value of any

economic and property rights of which the spouse was deprived by virtue

of such decree, except where the grounds for the separation judgment

would have excluded recovery of economic and property rights.

b. In determining the value of the economic and property rights

described in subdivision a hereof, the plaintiff's interest shall be

calculated as though the defendant died intestate and as if the death of

the defendant had immediately antedated the divorce.

c. If the defendant shall establish that intervening circumstances

have rendered an award described in subdivision a hereof inequitable,

the court may award to the plaintiff such portion of such economic and

property rights as justice may require.

d. If the defendant shall establish that the plaintiff has expressly

or impliedly waived all or some portion of the aforesaid economic or

property rights, the court shall deny recovery of all such rights, or

deny recovery of the portion of such rights as justice may require.

e. Actions under this subdivision may be brought:

(i) Within two years of the enactment of this section, or

(ii) Within two years of the obtainment of the subject divorce,

whichever is later.

When divorce denied, although adultery proved. In either of the

following cases, the plaintiff is not entitled to a divorce, although

the adultery is established:

1. Where the offense was committed by the procurement or with the

connivance of the plaintiff.

2. Where the offense charged has been forgiven by the plaintiff. The

forgiveness may be proven, either affirmatively, or by the voluntary

cohabitation of the parties with the knowledge of the fact.

3. Where there has been no express forgiveness, and no voluntary

cohabitation of the parties, but the action was not commenced within

five years after the discovery by the plaintiff of the offense charged.

4. Where the plaintiff has also been guilty of adultery under such

circumstances that the defendant would have been entitled, if innocent,

to a divorce.

Co-respondent as party. 1. In an action brought to obtain a

divorce on the ground of adultery the plaintiff or defendant may serve a

copy of his pleading on a co-respondent named therein. At any time

within twenty days after such service, the co-respondent may appear to

defend such action so far as the issues affect him. If no such service

be made, then at any time before the entry of judgment a co-respondent

named in any of the pleadings may make a written demand on any party for

a copy of a summons and a pleading served by such party, which must be

served within ten days thereafter, and he may appear to defend such

action so far as the issues affect him.

2. In an action for divorce where a co-respondent has appeared and

defended, in case no one of the allegations of adultery controverted by

such co-respondent shall be proven, such co-respondent shall be entitled

to a bill of costs against the person naming him as such co-respondent,

which bill of costs shall consist only of the sum now allowed by law as

a trial fee, and disbursements.

Jury trial. In an action for divorce there is a right to trial

by jury of the issues of the grounds for granting the divorce.

Legitimacy of children. 1. Where the action for divorce is

brought by the wife, the legitimacy of any child of the parties, born or

begotten before the commencement of the action, is not affected by the

judgment dissolving the marriage.

2. Where the action for divorce is brought by the husband, the

legitimacy of a child born or begotten before the commission of the

offense charged is not affected by a judgment dissolving the marriage;

but the legitimacy of any other child of the wife may be determined as

one of the issues in the action. In the absence of proof to the

contrary, the legitimacy of all the children begotten before the

commencement of the action must be presumed.

Action for separation. An action may be maintained by a husband

or wife against the other party to the marriage to procure a judgment

separating the parties from bed and board, forever, or for a limited

time, for any of the following causes:

1. The cruel and inhuman treatment of the plaintiff by the defendant

such that the conduct of the defendant so endangers the physical or

mental well being of the plaintiff as renders it unsafe or improper for

the plaintiff to cohabit with the defendant.

2. The abandonment of the plaintiff by the defendant.

3. The neglect or refusal of the defendant-spouse to provide for the

support of the plaintiff-spouse where the defendant-spouse is chargeable

with such support under the provisions of section thirty-two of this

chapter or of section four hundred twelve of the family court act.

4. The commission of an act of adultery by the defendant; except where

such offense is committed by the procurement or with the connivance of

the plaintiff or where there is voluntary cohabitation of the parties

with the knowledge of the offense or where action was not commenced

within five years after the discovery by the plaintiff of the offense

charged or where the plaintiff has also been guilty of adultery under

such circumstances that the defendant would have been entitled, if

innocent, to a divorce, provided that adultery for the purposes of this

subdivision is hereby defined as the commission of an act of vaginal

sexual contact, oral sexual contact or anal sexual contact, voluntarily

performed by the defendant, with a person other than the plaintiff after

the marriage of plaintiff and defendant. Oral sexual contact and anal

sexual contact include, but are not limited to, sexual conduct as

defined in subdivision two of section 130.00 and subdivision four of

section 130.20 of the penal law.

5. The confinement of the defendant in prison for a period of three or

more consecutive years after the marriage of plaintiff and defendant.

6. The relationship between the spouses has broken down irretrievably

for a period of at least six months, provided that one party has so

stated under oath. No judgment for separation shall be granted under

this subdivision unless and until any applicable, timely and relevant

economic issues, which may include the payment or waiver of spousal

support, the payment of child support, the payment of counsel and

experts' fees and expenses as well as the custody and visitation with

the infant children of the marriage, have been resolved by the parties,

or determined by the court and incorporated into the action.

Defense of justification. The defendant in an action for

separation from bed and board may set up, in justification, the

misconduct of the plaintiff; and if that defense is established to the

satisfaction of the court, the defendant is entitled to judgment.

Judgment for separation revocable. Upon the joint application

of the parties, accompanied with satisfactory evidence of their

reconciliation, a judgment for a separation, forever, or for a limited

period, rendered as prescribed in this article, may be revoked at any

time by the court which rendered it, subject to such regulations and

restrictions as the court thinks fit to impose.

Limitations on actions for divorce and separation. No action

for divorce or separation may be maintained on a ground which arose more

than five years before the date of the commencement of that action for

divorce or separation except where:

(a) In an action for divorce, the grounds therefor are one of those

specified in subdivision (2), (4), (5) or (6) of section one hundred

seventy of this chapter, or

(b) In an action for separation, the grounds therefor are one of those

specified in subdivision 2 or 4 of section two hundred of this chapter.

Pleadings, proof and motions. A matrimonial action shall be

commenced by the filing of a summons with the notice designated in

section two hundred thirty-two of this chapter, or a summons and

verified complaint as provided in section three hundred four of the

civil practice law and rules. A final judgment shall be entered by

default for want of appearance or pleading, or by consent, only upon

competent oral proof or upon written proof that may be considered on a

motion for summary judgment. Where a complaint or counterclaim in an

action for divorce or separation charges adultery, the answer or reply

thereto may be made without verifying it, except that an answer

containing a counterclaim must be verified as to that counterclaim. All

other pleadings in a matrimonial action shall be verified.

Special proceeding to dissolve marriage on the ground of

absence. A special proceeding to dissolve a marriage on the ground of

absence may be maintained in either of the following cases:

1. Where the petitioner is a resident of this state and has been a

resident thereof for one year immediately preceding the commencement of

the special proceeding.

2. Where the matrimonial domicile at the time of the disappearance of

the absent spouse was within the state.

Procedure. The petition shall allege that the husband or wife

of such party has absented himself or herself for five successive years

then last past without being known to such party to be living during

that time; that such party believes such husband or wife to be dead; and

that a diligent search has been made to discover evidence showing that

such husband or wife is living, and no such evidence has been found. The

court shall thereupon by order require notice of the presentation and

object of such petition to be published in a newspaper in the English

language designated in the order as most likely to give notice to such

absent husband or wife once each week for three successive weeks; such

notice shall be directed to the husband or wife who has so absented

himself or herself and shall state the time and place of the hearing

upon such petition, which time shall be not less than forty days after

the completion of the publication of such notice; said notice must be

subscribed with the name of the petitioner and with the name of the

petitioner's attorney and with his office address, specifying a place

within the state where there is a post-office. If in a city, said notice

must also set forth the street and street number, if any, of such

attorney's office address or other suitable designation of the

particular locality in which said office address is located. In addition

to the foregoing requirements said notice must be in substantially the

following form, the blanks being properly filled: "Supreme court,

...........county. In the matter of the application of..........for

dissolution of his or her marriage with........ To................: Take

notice that a petition has been presented to this court

by..............., your husband or wife, for the dissolution of your

marriage on the ground that you have absented yourself for five

successive years last past without being known to him or her to be

living and that he or she believes you to be dead, and that pursuant to

an order of said court, entered the ......day of .........., 19....., a

hearing will be had upon said petition at the said supreme court,

............term part..........., in the ...............county court

house, in the.......... state of New York, on the................. day

of .............., 19...., at ........ o'clock in the ..........noon.

Dated............;" and if the court, after the filing of proof of the

proper publication of said notice and after a hearing and proof taken,

is satisfied of the truth of all the allegations contained in the

petition, it may make a final order dissolving such marriage.

Required residence of parties. An action to annul a marriage,

or to declare the nullity of a void marriage, or for divorce or

separation may be maintained only when:

1. The parties were married in the state and either party is a

resident thereof when the action is commenced and has been a resident

for a continuous period of one year immediately preceding, or

2. The parties have resided in this state as husband and wife and

either party is a resident thereof when the action is commenced and has

been a resident for a continuous period of one year immediately

preceding, or

3. The cause occurred in the state and either party has been a

resident thereof for a continuous period of at least one year

immediately preceding the commencement of the action, or

4. The cause occurred in the state and both parties are residents

thereof at the time of the commencement of the action, or

5. Either party has been a resident of the state for a continuous

period of at least two years immediately preceding the commencement of

the action.

Residence of married persons. If a married person dwells within

the state when he or she commences an action against his or her spouse

for divorce, annulment or separation, such person is deemed a resident

thereof, although his or her spouse resides elsewhere.

Notice of nature of matrimonial action; proof of service. a. In

an action to annul a marriage or for divorce or for separation, if the

complaint is not personally served with the summons, the summons shall

have legibly written or printed upon the face thereof: "Action to annul

a marriage", "Action to declare the nullity of a void marriage", "Action

for a divorce", or "Action for a separation", as the case may be, and

shall specify the nature of any ancillary relief demanded. A judgment

shall not be rendered in favor of the plaintiff upon the defendant's

default in appearing or pleading, unless either (1) the summons and a

copy of the complaint were personally delivered to the defendant; or (2)

the copy of the summons (a) personally delivered to the defendant, or

(b) served on the defendant pursuant to an order directing the method of

service of the summons in accordance with the provisions of section

three hundred eight or three hundred fifteen of the civil practice law

and rules, shall contain such notice.

b. An affidavit or certificate proving service shall state

affirmatively in the body thereof that the required notice was written

or printed on the face of the copy of the summons delivered to the

defendant and what knowledge the affiant or officer who executed the

certificate had that he was the defendant named and how he acquired such

knowledge. The court may require the affiant or officer who executed the

affidavit or certificate to appear in court and be examined in respect

thereto.

Sequestration of defendant's property in action for divorce,

separation or annulment where defendant cannot be personally served.

Where in an action for divorce, separation, annulment or declaration of

nullity of a void marriage it appears to the court that the defendant is

not within the state, or cannot be found therein, or is concealing

himself or herself therein, so that process cannot be personally served

upon the defendant, the court may at any time and from time to time make

any order or orders without notice directing the sequestration of his or

her property, both real and personal and whether tangible or intangible,

within the state, and may appoint a receiver thereof, or by injunction

or otherwise take the same into its possession and control. The property

thus sequestered and the income therefrom may be applied in whole or in

part and from time to time, under the direction of the court and as

justice may require, to the payment of such sum or sums as the court may

deem it proper to award, by order or judgment as the case may be, and

during the pendency of the action or at the termination thereof, for the

education or maintenance of any of the children of a marriage, or for

the support of a spouse, or for his or her expenses in bringing and

carrying on said action and the proceedings incidental thereto or

connected therewith; and if the rents and profits of the real estate,

together with the other property so sequestered, be insufficient to pay

the sums of money required, the court, upon such terms and conditions as

it may prescribe, may direct the mortgage or sale of sufficient of said

real estate to pay such sums. The court may appoint the plaintiff spouse

receiver or sequestrator in such cases. The court may authorize such

spouse to use and occupy, free of any liability for rent or use and

occupation or otherwise, any house or other suitable property of the

defendant spouse as a dwelling for himself or herself with or without

the children of the marriage, and may likewise turn over to the

plaintiff spouse for the use of such spouse with or without the children

of the marriage any chattel or chattels of the defendant spouse. The

relief herein provided for is in addition to any and every other remedy

to which a spouse may be entitled under the law.

Title to or occupancy and possession of property. In any action

for divorce, for a separation, for an annulment or to declare the

nullity of a void marriage, the court may (1) determine any question as

to the title to property arising between the parties, and (2) make such

direction, between the parties, concerning the possession of property,

as in the court's discretion justice requires having regard to the

circumstances of the case and of the respective parties. Such direction

may be made in the final judgment, or by one or more orders from time to

time before or subsequent to final judgment, or by both such order or

orders and final judgment. Where the title to real property is affected,

a copy of such judgment, order or decree, duly certified by the clerk of

the court wherein said judgement was rendered, shall be recorded in the

office of the recording officer of the county in which such property is

situated, as provided by section two hundred ninety-seven-b of the real

property law.

Information as to details of matrimonial actions or

proceedings. 1. An officer of the court with whom the proceedings in a

matrimonial action or a written agreement of separation or an action or

proceeding for custody, visitation or maintenance of a child are filed,

or before whom the testimony is taken, or his clerk, either before or

after the termination of the suit, shall not permit a copy of any of the

pleadings, affidavits, findings of fact, conclusions of law, judgment of

dissolution, written agreement of separation or memorandum thereof, or

testimony, or any examination or perusal thereof, to be taken by any

other person than a party, or the attorney or counsel of a party, except

by order of the court.

2. If the evidence on the trial of such an action or proceeding be

such that public interest requires that the examination of the witnesses

should not be public, the court or referee may exclude all persons from

the room except the parties to the action and their counsel, and in such

case may order the evidence, when filed with the clerk, sealed up, to be

exhibited only to the parties to the action or proceeding or someone

interested, on order of the court.

3. Upon the application of any person to the county clerk or other

officer in charge of public records within a county for evidence of the

disposition, judgment or order with respect to a matrimonial action, the

clerk or other such officer shall issue a "certificate of disposition",

duly certifying the nature and effect of such disposition, judgment or

order and shall in no manner evidence the subject matter of the

pleadings, testimony, findings of fact, conclusions of law or judgment

of dissolution derived in any such action.

4. Any county, city, town or village clerk or other municipal official

issuing marriage licenses shall be required to accept, as evidence of

dissolution of marriage, such "certificate of disposition" in lieu of a

complete copy of the findings of fact, conclusions of law and judgment

of dissolution.

5. The limitations of subdivisions one, two and three of this section

in relation to confidentiality shall cease to apply one hundred years

after date of filing, and such records shall thereupon be public records

available to public inspection.

Special controlling provisions; prior actions or proceedings;

new actions or proceedings. Except as otherwise expressly provided in

this section, the provisions of part A shall be controlling with respect

to any action or proceeding commenced prior to the date on which the

provisions of this section as amended become effective and the

provisions of part B shall be controlling with respect to any action or

proceeding commenced on or after such effective date. Any reference to

this section or the provisions hereof in any action, proceeding,

judgment, order, rule or agreement shall be deemed and construed to

refer to either the provisions of part A or part B respectively and

exclusively, determined as provided in this paragraph any inconsistent

provision of law notwithstanding.

PART A

PRIOR ACTIONS OR PROCEEDINGS

Alimony, temporary and permanent. 1. Alimony. In any action or

proceeding brought (1) during the lifetime of both parties to the

marriage to annul a marriage or declare the nullity of a void marriage,

or (2) for a separation, or (3) for a divorce, the court may direct

either spouse to provide suitably for the support of the other as, in

the court's discretion, justice requires, having regard to the length of

time of the marriage, the ability of each spouse to be self supporting,

the circumstances of the case and of the respective parties. Such

direction may require the payment of a sum or sums of money either

directly to either spouse or to third persons for real and personal

property and services furnished to either spouse, or for the rental of

or mortgage amortization or interest payments, insurance, taxes, repairs

or other carrying charges on premises occupied by either spouse, or for

both payments to either spouse and to such third persons. Such direction

shall be effective as of the date of the application therefor, and any

retroactive amount of alimony due shall be paid in one sum or periodic

sums, as the court shall direct, taking into account any amount of

temporary alimony which has been paid. 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 parties continue to reside in the same abode

and notwithstanding that the court refuses to grant the relief requested

by either spouse (1) by reason of a finding by the court that a divorce,

annulment or judgment declaring the marriage a nullity had previously

been granted to either spouse in an action in which jurisdiction over

the person of the other spouse was not obtained, or (2) by reason of the

misconduct of the other spouse, unless such misconduct would itself

constitute grounds for separation or divorce, or (3) by reason of a

failure of proof of the grounds of either spouse's action or

counterclaim. Any order or judgment made as in this section provided may

combine in one lump sum any amount payable to either spouse under this

section with any amount payable to either spouse under section two

hundred forty of this chapter. Upon the application of either spouse,

upon such notice to the other party and given in such manner as the

court shall direct, the court may annul or modify any such direction,

whether made by order or by 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 chapter, 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 support nunc pro tunc based on newly discovered evidence.

2. Compulsory financial disclosure. In all matrimonial actions and

proceedings commenced on or after September first, nineteen hundred

seventy-five in supreme court in which alimony, maintenance or support

is in issue and all support proceedings in family court, there shall be

compulsory disclosure by both parties of their respective financial

states. No showing of special circumstances shall be required before

such disclosure is ordered. A sworn statement of net worth shall be

provided upon receipt of a notice in writing demanding the same, within

twenty days after the receipt thereof. In the event said statement is

not demanded, it shall be filed by each party, within ten days after

joinder of issue, in the court in which the procedure is pending. As

used in this section, the term net worth shall mean the amount by which

total assets including income exceed total liabilities including fixed

financial obligations. It shall include all income and assets of

whatsoever kind and nature and wherever situated and shall include a

list of all assets transferred in any manner during the preceding three

years, or the length of the marriage, whichever is shorter; provided,

however that transfers in the routine course of business which resulted

in an exchange of assets of substantially equivalent value need not be

specifically disclosed where such assets are otherwise identified in the

statement of net worth. Noncompliance shall be punishable by any or all

of the penalties prescribed in section thirty-one hundred twenty-six of

the civil practice law and rules, in examination before or during trial.

PART B

NEW ACTIONS OR PROCEEDINGS

Maintenance and distributive award. 1. Definitions. Whenever used in

this part, the following terms shall have the respective meanings

hereinafter set forth or indicated:

a. The term "maintenance" shall mean payments provided for in a valid

agreement between the parties or awarded by the court in accordance with

the provisions of subdivisions five-a and six of this part, to be paid

at fixed intervals for a definite or indefinite period of time, but an

award of maintenance shall terminate upon the death of either party or

upon the payee's valid or invalid marriage, or upon modification

pursuant to paragraph b of subdivision nine of this part or section two

hundred forty-eight of this chapter.

b. The term "distributive award" shall mean payments provided for in a

valid agreement between the parties or awarded by the court, in lieu of

or to supplement, facilitate or effectuate the division or distribution

of property where authorized in a matrimonial action, and payable either

in a lump sum or over a period of time in fixed amounts. Distributive

awards shall not include payments which are treated as ordinary income

to the recipient under the provisions of the United States Internal

Revenue Code.

c. The term "marital property" shall mean all property acquired by

either or both spouses during the marriage and before the execution of a

separation agreement or the commencement of a matrimonial action,

regardless of the form in which title is held, except as otherwise

provided in agreement pursuant to subdivision three of this part.

Marital property shall not include separate property as hereinafter

defined.

d. The term separate property shall mean:

(1) property acquired before marriage or property acquired by bequest,

devise, or descent, or gift from a party other than the spouse;

(2) compensation for personal injuries;

(3) property acquired in exchange for or the increase in value of

separate property, except to the extent that such appreciation is due in

part to the contributions or efforts of the other spouse;

(4) property described as separate property by written agreement of

the parties pursuant to subdivision three of this part.

e. The term "custodial parent" shall mean a parent to whom custody of

a child or children is granted by a valid agreement between the parties

or by an order or decree of a court.

f. The term "child support" shall mean a sum 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.

2. Matrimonial actions. a. Except as provided in subdivision five of

this part, the provisions of this part shall be applicable to actions

for an annulment or dissolution of a marriage, for a divorce, for a

separation, for a declaration of the nullity of a void marriage, for a

declaration of the validity or nullity of a foreign judgment of divorce,

for a declaration of the validity or nullity of a marriage, and to

proceedings to obtain maintenance or a distribution of marital property

following a foreign judgment of divorce, commenced on and after the

effective date of this part. Any application which seeks a modification

of a judgment, order or decree made in an action commenced prior to the

effective date of this part shall be heard and determined in accordance

with the provisions of part A of this section.

b. With respect to matrimonial actions which commence on or after the

effective date of this paragraph, the plaintiff shall cause to be served

upon the defendant, simultaneous with the service of the summons, a copy

of the automatic orders set forth in this paragraph. The automatic

orders shall take effect and be binding upon the plaintiff in a

matrimonial action immediately upon the filing of the summons, or

summons and complaint, and shall be binding upon the defendant

immediately upon the service of the automatic orders with the summons.

Each automatic order shall remain in full force and effect until the

judgment of divorce is entered or the action is dismissed, discontinued

or stayed, whichever shall occur first, unless the order is terminated,

modified or amended by further order of the court upon motion of either

of the parties or upon written agreement between the parties duly

executed and acknowledged. The automatic orders are as follows:

(1) Neither party shall sell, transfer, encumber, conceal, assign,

remove or in any way dispose of, without the consent of the other party

in writing, or by order of the court, any property (including, but not

limited to, real estate, personal property, cash accounts, stocks,

mutual funds, bank accounts, cars and boats) individually or jointly

held by the parties, except in the usual course of business, for

customary and usual household expenses or for reasonable attorney's fees

in connection with this action.

(2) Neither party shall transfer, encumber, assign, remove, withdraw

or in any way dispose of any tax deferred funds, stocks or other assets

held in any individual retirement accounts, 401K accounts, profit

sharing plans, Keogh accounts, or any other pension or retirement

account, and the parties shall further refrain from applying for or

requesting the payment of retirement benefits or annuity payments of any

kind, without the consent of the other party in writing, or upon further

order of the court; except that any party who is already in pay status

may continue to receive such payments thereunder.

(3) Neither party shall incur unreasonable debts hereafter, including,

but not limited to further borrowing against any credit line secured by

the family residence, further encumbrancing any assets, or unreasonably

using credit cards or cash advances against credit cards, except in the

usual course of business or for customary or usual household expenses,

or for reasonable attorney's fees in connection with this action.

(4) Neither party shall cause the other party or the children of the

marriage to be removed from any existing medical, hospital and dental

insurance coverage, and each party shall maintain the existing medical,

hospital and dental insurance coverage in full force and effect.

(5) Neither party shall change the beneficiaries of any existing life

insurance policies, and each party shall maintain the existing life

insurance, automobile insurance, homeowners and renters insurance

policies in full force and effect.

(6) If either party receives notice of a tax lien, foreclosure,

bankruptcy, or litigation, or the filing of same, or of the lifting of a

stay in bankruptcy, that could adversely affect the marital estate, that

party shall, within ten days after receiving such notice, send written

notice of such event to the other party.

3. Agreement of the parties. An agreement by the parties, made before

or during the marriage, shall be valid and enforceable in a matrimonial

action if such agreement is in writing, subscribed by the parties, and

acknowledged or proven in the manner required to entitle a deed to be

recorded. Notwithstanding any other provision of law, an acknowledgment

of an agreement made before marriage may be executed before any person

authorized to solemnize a marriage pursuant to subdivisions one, two and

three of section eleven of this chapter. Such an agreement may include

(1) a contract to make a testamentary provision of any kind, or a waiver

of any right to elect against the provisions of a will; (2) provision

for the ownership, division or distribution of separate and marital

property; (3) provision for the amount and duration of maintenance or

other terms and conditions of the marriage relationship, subject to the

provisions of section 5-311 of the general obligations law, and provided

that such terms were fair and reasonable at the time of the making of

the agreement and are not unconscionable at the time of entry of final

judgment; and (4) provision for the custody, care, education and

maintenance of any child of the parties, subject to the provisions of

section two hundred forty of this article. Nothing in this subdivision

shall be deemed to affect the validity of any agreement made prior to

the effective date of this subdivision.

4. Compulsory financial disclosure. a. In all matrimonial actions and

proceedings in which alimony, maintenance or support is in issue, there

shall be compulsory disclosure by both parties of their respective

financial states. No showing of special circumstances shall be required

before such disclosure is ordered. A sworn statement of net worth shall

be provided upon receipt of a notice in writing demanding the same,

within twenty days after the receipt thereof. In the event said

statement is not demanded, it shall be filed with the clerk of the court

by each party, within ten days after joinder of issue, in the court in

which the proceeding is pending. As used in this part, the term "net

worth" shall mean the amount by which total assets including income

exceed total liabilities including fixed financial obligations. It shall

include all income and assets of whatsoever kind and nature and wherever

situated and shall include a list of all assets transferred in any

manner during the preceding three years, or the length of the marriage,

whichever is shorter; provided, however that transfers in the routine

course of business which resulted in an exchange of assets of

substantially equivalent value need not be specifically disclosed where

such assets are otherwise identified in the statement of net worth. All

such sworn statements of net worth shall be accompanied by a current and

representative paycheck stub and the most recently filed state and

federal income tax returns including a copy of the W-2(s) wage and tax

statement(s) submitted with the returns. In addition, both parties shall

provide information relating to any and all group health plans available

to them for the provision of care or other medical benefits by insurance

or otherwise for the benefit of the child or children for whom support

is sought, including all such information as may be required to be

included in a qualified medical child support order as defined in

section six hundred nine of the employee retirement income security act

of 1974 (29 USC 1169) including, but not limited to: (i) the name and

last known mailing address of each party and of each dependent to be

covered by the order; (ii) the identification and a description of each

group health plan available for the benefit or coverage of the

disclosing party and the child or children for whom support is sought;

(iii) a detailed description of the type of coverage available from each

group health plan for the potential benefit of each such dependent; (iv)

the identification of the plan administrator for each such group health

plan and the address of such administrator; (v) the identification

numbers for each such group health plan; and (vi) such other information

as may be required by the court. Noncompliance shall be punishable by

any or all of the penalties prescribed in section thirty-one hundred

twenty-six of the civil practice law and rules, in examination before or

during trial.

b. As soon as practicable after a matrimonial action has been

commenced, the court shall set the date or dates the parties shall use

for the valuation of each asset. The valuation date or dates may be

anytime from the date of commencement of the action to the date of

trial.

5. Disposition of property in certain matrimonial actions. a. Except

where the parties have provided in an agreement for the disposition of

their property pursuant to subdivision three of this part, the court, in

an action wherein all or part of the relief granted is divorce, or the

dissolution, annulment or declaration of the nullity of a marriage, and

in proceedings to obtain a distribution of marital property following a

foreign judgment of divorce, shall determine the respective rights of

the parties in their separate or marital property, and shall provide for

the disposition thereof in the final judgment.

b. Separate property shall remain such.

c. Marital property shall be distributed equitably between the

parties, considering the circumstances of the case and of the respective

parties.

d. In determining an equitable disposition of property under paragraph

c, the court shall consider:

(1) the income and property of each party at the time of marriage, and

at the time of the commencement of the action;

(2) the duration of the marriage and the age and health of both

parties;

(3) the need of a custodial parent to occupy or own the marital

residence and to use or own its household effects;

(4) the loss of inheritance and pension rights upon dissolution of the

marriage as of the date of dissolution;

(5) the loss of health insurance benefits upon dissolution of the

marriage;

(6) any award of maintenance under subdivision six of this part;

(7) any equitable claim to, interest in, or direct or indirect

contribution made to the acquisition of such marital property by the

party not having title, including joint efforts or expenditures and

contributions and services as a spouse, parent, wage earner and

homemaker, and to the career or career potential of the other party. The

court shall not consider as marital property subject to distribution the

value of a spouse's enhanced earning capacity arising from a license,

degree, celebrity goodwill, or career enhancement. However, in arriving

at an equitable division of marital property, the court shall consider

the direct or indirect contributions to the development during the

marriage of the enhanced earning capacity of the other spouse;

(8) the liquid or non-liquid character of all marital property;

(9) the probable future financial circumstances of each party;

(10) the impossibility or difficulty of evaluating any component asset

or any interest in a business, corporation or profession, and the

economic desirability of retaining such asset or interest intact and

free from any claim or interference by the other party;

(11) the tax consequences to each party;

(12) the wasteful dissipation of assets by either spouse;

(13) any transfer or encumbrance made in contemplation of a

matrimonial action without fair consideration;

(14) whether either party has committed an act or acts of domestic

violence, as described in subdivision one of section four hundred

fifty-nine-a of the social services law, against the other party and the

nature, extent, duration and impact of such act or acts;

(15) in awarding the possession of a companion animal, the court shall

consider the best interest of such animal. "Companion animal", as used

in this subparagraph, shall have the same meaning as in subdivision five

of section three hundred fifty of the agriculture and markets law; and

(16) any other factor which the court shall expressly find to be just

and proper.

e. In any action in which the court shall determine that an equitable

distribution is appropriate but would be impractical or burdensome or

where the distribution of an interest in a business, corporation or

profession would be contrary to law, the court in lieu of such equitable

distribution shall make a distributive award in order to achieve equity

between the parties. The court in its discretion, also may make a

distributive award to supplement, facilitate or effectuate a

distribution of marital property.

f. In addition to the disposition of property as set forth above, the

court may make such order regarding the use and occupancy of the marital

home and its household effects as provided in section two hundred

thirty-four of this chapter, without regard to the form of ownership of

such property.

g. In any decision made pursuant to this subdivision, the court shall

set forth the factors it considered and the reasons for its decision and

such may not be waived by either party or counsel.

h. In any decision made pursuant to this subdivision the court shall,

where appropriate, consider the effect of a barrier to remarriage, as

defined in subdivision six of section two hundred fifty-three of this

article, on the factors enumerated in paragraph d of this subdivision.

5-a. Temporary maintenance awards. a. Except where the parties have

entered into an agreement providing for maintenance pursuant to

subdivision three of this part, in any matrimonial action the court,

upon application by a party, shall make its award for temporary

maintenance pursuant to the provisions of this subdivision.

b. For purposes of this subdivision, the following definitions shall

be used:

(1) "Payor" shall mean the spouse with the higher income.

(2) "Payee" shall mean the spouse with the lower income.

(3) "Length of marriage" shall mean the period from the date of

marriage until the date of commencement of action.

(4) "Income" shall mean income as defined in the child support

standards act and codified in section two hundred forty of this article

and section four hundred thirteen of the family court act without

subtracting alimony or maintenance actually paid or to be paid to a

spouse that is a party to the instant action pursuant to subclause (C)

of clause (vii) of subparagraph five of paragraph (b) of subdivision

one-b of section two hundred forty of this article and subclause (C) of

clause (vii) of subparagraph five of paragraph (b) of subdivision one of

section four hundred thirteen of the family court act and without

subtracting spousal support paid pursuant to section four hundred twelve

of such act.

(5) "Income cap" shall mean up to and including one hundred

eighty-four thousand dollars of the payor's annual income; provided,

however, beginning March first, two thousand twenty and every two years

thereafter, the income cap amount shall increase by the sum of the

average annual percentage changes in the consumer price index for all

urban consumers (CPI-U) as published by the United States department of

labor bureau of labor statistics for the prior two years multiplied by

the then income cap and then rounded to the nearest one thousand

dollars. The office of court administration shall determine and publish

the income cap.

(6) "Guideline amount of temporary maintenance" shall mean the dollar

amount derived by the application of paragraph c or d of this

subdivision.

(7) "Self-support reserve" shall mean the self-support reserve as

defined in the child support standards act and codified in section two

hundred forty of this article and section four hundred thirteen of the

family court act.

(8) "Agreement" shall have the same meaning as provided in subdivision

three of this part.

c. Where the payor's income is lower than or equal to the income cap,

the court shall determine the guideline amount of temporary maintenance

as follows:

(1) Where child support will be paid for children of the marriage and

where the payor as defined in this subdivision is also the non-custodial

parent pursuant to the child support standards act:

(a) the court shall subtract twenty-five percent of the payee's income

from twenty percent of the payor's income.

(b) the court shall then multiply the sum of the payor's income and

the payee's income by forty percent.

(c) the court shall subtract the payee's income from the amount

derived from clause (b) of this subparagraph.

(d) the court shall determine the lower of the two amounts derived by

clauses (a) and (c) of this subparagraph.

(e) the guideline amount of temporary maintenance shall be the amount

determined by clause (d) of this subparagraph except that, if the amount

determined by clause (d) of this subparagraph is less than or equal to

zero, the guideline amount of temporary maintenance shall be zero

dollars.

(f) temporary maintenance shall be calculated prior to child support

because the amount of temporary maintenance shall be subtracted from the

payor's income and added to the payee's income as part of the

calculation of the child support obligation.

(2) Where child support will not be paid for children of the marriage,

or where child support will be paid for children of the marriage but the

payor as defined in this subdivision is the custodial parent pursuant to

the child support standards act:

(a) the court shall subtract twenty percent of the payee's income from

thirty percent of the payor's income.

(b) the court shall then multiply the sum of the payor's income and

the payee's income by forty percent.

(c) the court shall subtract the payee's income from the amount

derived from clause (b) of this subparagraph.

(d) the court shall determine the lower of the two amounts derived by

clauses (a) and (c) of this subparagraph.

(e) the guideline amount of temporary maintenance shall be the amount

determined by clause (d) of this subparagraph except that, if the amount

determined by clause (d) of this subparagraph is less than or equal to

zero, the guideline amount of temporary maintenance shall be zero

dollars.

(f) if child support will be paid for children of the marriage but the

payor as defined in this subdivision is the custodial parent pursuant to

the child support standards act, temporary maintenance shall be

calculated prior to child support because the amount of temporary

maintenance shall be subtracted from the payor's income pursuant to this

subdivision and added to the payee's income pursuant to this subdivision

as part of the calculation of the child support obligation.

d. Where the payor's income exceeds the income cap, the court shall

determine the guideline amount of temporary maintenance as follows:

(1) the court shall perform the calculations set forth in paragraph c

of this subdivision for the income of the payor up to and including the

income cap; and

(2) for income exceeding the cap, the amount of additional maintenance

awarded, if any, shall be within the discretion of the court which shall

take into consideration any one or more of the factors set forth in

subparagraph one of paragraph h of this subdivision; and

(3) the court shall set forth the factors it considered and the

reasons for its decision in writing or on the record. Such decision,

whether in writing or on the record, may not be waived by either party

or counsel.

e. Notwithstanding the provisions of this subdivision, where the

guideline amount of temporary maintenance would reduce the payor's

income below the self-support reserve for a single person, the guideline

amount of temporary maintenance shall be the difference between the

payor's income and the self-support reserve. If the payor's income is

below the self-support reserve, there shall be a rebuttable presumption

that no temporary maintenance is awarded.

f. The court shall determine the duration of temporary maintenance by

considering the length of the marriage.

g. Temporary maintenance shall terminate no later than the issuance of

the judgment of divorce or the death of either party, whichever occurs

first.

h. (1) The court shall order the guideline amount of temporary

maintenance up to the income cap in accordance with paragraph c of this

subdivision, unless the court finds that the guideline amount of

temporary maintenance is unjust or inappropriate, which finding shall be

based upon consideration of any one or more of the following factors,

and adjusts the guideline amount of temporary maintenance accordingly

based upon such consideration:

(a) the age and health of the parties;

(b) the present or future earning capacity of the parties, including a

history of limited participation in the workforce;

(c) the need of one party to incur education or training expenses;

(d) the termination of a child support award during the pendency of

the temporary maintenance award when the calculation of temporary

maintenance was based upon child support being awarded and which

resulted in a maintenance award lower than it would have been had child

support not been awarded;

(e) the wasteful dissipation of marital property, including transfers

or encumbrances made in contemplation of a matrimonial action without

fair consideration;

(f) the existence and duration of a pre-marital joint household or a

pre-divorce separate household;

(g) acts by one party against another that have inhibited or continue

to inhibit a party's earning capacity or ability to obtain meaningful

employment. Such acts include but are not limited to acts of domestic

violence as provided in section four hundred fifty-nine-a of the social

services law;

(h) the availability and cost of medical insurance for the parties;

(i) the care of children or stepchildren, disabled adult children or

stepchildren, elderly parents or in-laws provided during the marriage

that inhibits a party's earning capacity;

(j) the tax consequences to each party;

(k) the standard of living of the parties established during the

marriage;

(l) the reduced or lost earning capacity of the payee as a result of

having forgone or delayed education, training, employment or career

opportunities during the marriage; and

(m) any other factor which the court shall expressly find to be just

and proper.

(2) Where the court finds that the guideline amount of temporary

maintenance is unjust or inappropriate and the court adjusts the

guideline amount of temporary maintenance pursuant to this paragraph,

the court shall set forth, in a written decision or on the record, the

guideline amount of temporary maintenance, the factors it considered,

and the reasons that the court adjusted the guideline amount of

temporary maintenance. Such decision, whether in writing or on the

record, shall not be waived by either party or counsel.

(3) Where either or both parties are unrepresented, the court shall

not enter a temporary maintenance order unless the court informs the

unrepresented party or parties of the guideline amount of temporary

maintenance.

i. Nothing contained in this subdivision shall be construed to alter

the rights of the parties to voluntarily enter into agreements or

stipulations as defined in subdivision three of this part which deviate

from the presumptive award of temporary maintenance.

j. When a payor has defaulted and/or the court is otherwise presented

with insufficient evidence to determine income, the court shall order

the temporary maintenance award based upon the needs of the payee or the

standard of living of the parties prior to commencement of the divorce

action, whichever is greater. Such order may be retroactively modified

upward without a showing of change in circumstances upon a showing of

newly discovered evidence.

k. In any action or proceeding for modification of an order of

maintenance or alimony existing prior to the effective date of this

subdivision, brought pursuant to this article, the temporary maintenance

guidelines set forth in this subdivision shall not constitute a change

of circumstances warranting modification of such support order.

l. In any action or proceeding for modification where the parties have

entered into an agreement providing for maintenance pursuant to

subdivision three of this part entered into prior to the effective date

of this subdivision, brought pursuant to this article, the temporary

maintenance guidelines set forth in this subdivision shall not

constitute a change of circumstances warranting modification of such

support order.

m. In determining temporary maintenance, the court shall consider and

allocate, where appropriate, the responsibilities of the respective

spouses for the family's expenses during the pendency of the proceeding.

n. The temporary maintenance order shall not prejudice the rights of

either party regarding a post-divorce maintenance award.

6. Post-divorce maintenance awards. a. Except where the parties have

entered into an agreement pursuant to subdivision three of this part

providing for maintenance, in any matrimonial action, the court, upon

application by a party, shall make its award for post-divorce

maintenance pursuant to the provisions of this subdivision.

b. For purposes of this subdivision, the following definitions shall

be used:

(1) "Payor" shall mean the spouse with the higher income.

(2) "Payee" shall mean the spouse with the lower income.

(3) "Income" shall mean:

(a) income as defined in the child support standards act and codified

in section two hundred forty of this article and section four hundred

thirteen of the family court act, without subtracting alimony or

maintenance actually paid or to be paid to a spouse that is a party to

the instant action pursuant to subclause (C) of clause (vii) of

subparagraph five of paragraph (b) of subdivision one-b of section two

hundred forty of this article and subclause (C) of clause (vii) of

subparagraph five of paragraph (b) of subdivision one of section four

hundred thirteen of the family court act and without subtracting spousal

support paid pursuant to section four hundred twelve of such act; and

(b) income from income-producing property distributed or to be

distributed pursuant to subdivision five of this part.

(4) "Income cap" shall mean up to and including one hundred

eighty-four thousand dollars of the payor's annual income; provided,

however, beginning March first, two thousand twenty and every two years

thereafter, the income cap amount shall increase by the sum of the

average annual percentage changes in the consumer price index for all

urban consumers (CPI-U) as published by the United States department of

labor bureau of labor statistics for the prior two years multiplied by

the then income cap and then rounded to the nearest one thousand

dollars. The office of court administration shall determine and publish

the income cap.

(5) "Guideline amount of post-divorce maintenance" shall mean the

dollar amount derived by the application of paragraph c or d of this

subdivision.

(6) "Guideline duration of post-divorce maintenance" shall mean the

durational period determined by the application of paragraph f of this

subdivision.

(7) "Post-divorce maintenance guideline obligation" shall mean the

guideline amount of post-divorce maintenance and the guideline duration

of post-divorce maintenance.

(8) "Length of marriage" shall mean the period from the date of

marriage until the date of commencement of the action.

(9) "Self-support reserve" shall mean the self-support reserve as

defined in the child support standards act and codified in section two

hundred forty of this article and section four hundred thirteen of the

family court act.

(10) "Agreement" shall have the same meaning as provided in

subdivision three of this part.

c. Where the payor's income is lower than or equal to the income cap,

the court shall determine the guideline amount of post-divorce

maintenance as follows:

(1) Where child support will be paid for children of the marriage and

where the payor as defined in this subdivision is also the non-custodial

parent pursuant to the child support standards act:

(a) the court shall subtract twenty-five percent of the payee's income

from twenty percent of the payor's income.

(b) the court shall then multiply the sum of the payor's income and

the payee's income by forty percent.

(c) the court shall subtract the payee's income from the amount

derived from clause (b) of this subparagraph.

(d) the court shall determine the lower of the two amounts derived by

clauses (a) and (c) of this subparagraph.

(e) the guideline amount of post-divorce maintenance shall be the

amount determined by clause (d) of this subparagraph except that, if the

amount determined by clause (d) of this subparagraph is less than or

equal to zero, the guideline amount of post-divorce maintenance shall be

zero dollars.

(f) notwithstanding the provisions of this subdivision, where the

guideline amount of post-divorce maintenance would reduce the payor's

income below the self-support reserve for a single person, the guideline

amount of post-divorce maintenance shall be the difference between the

payor's income and the self-support reserve. If the payor's income is

below the self-support reserve, there shall be a rebuttable presumption

that no post-divorce maintenance is awarded.

(g) maintenance shall be calculated prior to child support because the

amount of maintenance shall be subtracted from the payor's income and

added to the payee's income as part of the calculation of the child

support obligation.

(2) Where child support will not be paid for children of the marriage,

or where child support will be paid for children of the marriage but the

payor as defined in this subdivision is the custodial parent pursuant to

the child support standards act:

(a) the court shall subtract twenty percent of the payee's income from

thirty percent of the payor's income.

(b) the court shall then multiply the sum of the payor's income and

the payee's income by forty percent.

(c) the court shall subtract the payee's income from the amount

derived from clause (b) of this subparagraph.

(d) the court shall determine the lower of the two amounts derived by

clauses (a) and (c) of this subparagraph.

(e) the guideline amount of post-divorce maintenance shall be the

amount determined by clause (d) of this subparagraph except that, if the

amount determined by clause (d) of this subparagraph is less than or

equal to zero, the guideline amount of post-divorce maintenance shall be

zero dollars.

(f) if child support will be paid for children of the marriage but the

payor as defined in this subdivision is the custodial parent pursuant to

the child support standards act, post-divorce maintenance shall be

calculated prior to child support because the amount of post-divorce

maintenance shall be subtracted from the payor's income pursuant to this

subdivision and added to the payee's income pursuant to this subdivision

as part of the calculation of the child support obligation.

(g) notwithstanding the provisions of this subdivision, where the

guideline amount of post-divorce maintenance would reduce the payor's

income below the self-support reserve for a single person, the guideline

amount of post-divorce maintenance shall be the difference between the

payor's income and the self-support reserve. If the payor's income is

below the self-support reserve, there shall be a rebuttable presumption

that no post-divorce maintenance is awarded.

d. Where the payor's income exceeds the income cap, the court shall

determine the guideline amount of post-divorce maintenance as follows:

(1) the court shall perform the calculations set forth in paragraph c

of this subdivision for the income of payor up to and including the

income cap; and

(2) for income exceeding the cap, the amount of additional maintenance

awarded, if any, shall be within the discretion of the court which shall

take into consideration any one or more of the factors set forth in

subparagraph one of paragraph e of this subdivision; and

(3) the court shall set forth the factors it considered and the

reasons for its decision in writing or on the record. Such decision,

whether in writing or on the record, may not be waived by either party

or counsel.

e. (1) The court shall order the post-divorce maintenance guideline

obligation up to the income cap in accordance with paragraph c of this

subdivision, unless the court finds that the post-divorce maintenance

guideline obligation is unjust or inappropriate, which finding shall be

based upon consideration of any one or more of the following factors,

and adjusts the post-divorce maintenance guideline obligation

accordingly based upon such consideration:

(a) the age and health of the parties;

(b) the present or future earning capacity of the parties, including a

history of limited participation in the workforce;

(c) the need of one party to incur education or training expenses;

(d) the termination of a child support award before the termination of

the maintenance award when the calculation of maintenance was based upon

child support being awarded which resulted in a maintenance award lower

than it would have been had child support not been awarded;

(e) the wasteful dissipation of marital property, including transfers

or encumbrances made in contemplation of a matrimonial action without

fair consideration;

(f) the existence and duration of a pre-marital joint household or a

pre-divorce separate household;

(g) acts by one party against another that have inhibited or continue

to inhibit a party's earning capacity or ability to obtain meaningful

employment. Such acts include but are not limited to acts of domestic

violence as provided in section four hundred fifty-nine-a of the social

services law;

(h) the availability and cost of medical insurance for the parties;

(i) the care of children or stepchildren, disabled adult children or

stepchildren, elderly parents or in-laws provided during the marriage

that inhibits a party's earning capacity;

(j) the tax consequences to each party;

(k) the standard of living of the parties established during the

marriage;

(l) the reduced or lost earning capacity of the payee as a result of

having forgone or delayed education, training, employment or career

opportunities during the marriage;

(m) the equitable distribution of marital property and the income or

imputed income on the assets so distributed;

(n) the contributions and services of the payee as a spouse, parent,

wage earner and homemaker and to the career or career potential of the

other party; and

(o) any other factor which the court shall expressly find to be just

and proper.

(2) Where the court finds that the post-divorce maintenance guideline

obligation is unjust or inappropriate and the court adjusts the

post-divorce maintenance guideline obligation pursuant to this

paragraph, the court shall set forth, in a written decision or on the

record, the unadjusted post-divorce maintenance guideline obligation,

the factors it considered, and the reasons that the court adjusted the

post-divorce maintenance obligation. Such decision shall not be waived

by either party or counsel.

f. The duration of post-divorce maintenance may be determined as

follows:

(1) The court may determine the duration of post-divorce maintenance

in accordance with the following advisory schedule:

Length of the marriage Percent of the length of the

marriage for which

maintenance will be payable

0 up to and including 15 years 15% - 30%

More than 15 up to and including 30% - 40%

20 years

More than 20 years 35% - 50%

(2) In determining the duration of post-divorce maintenance, whether

or not the court utilizes the advisory schedule, it shall consider the

factors listed in subparagraph one of paragraph e of this subdivision

and shall set forth, in a written decision or on the record, the factors

it considered. Such decision shall not be waived by either party or

counsel. Nothing herein shall prevent the court from awarding

non-durational maintenance in an appropriate case.

(3) Notwithstanding the provisions of subparagraph one of this

paragraph, post-divorce maintenance shall terminate upon the death of

either party or upon the payee's valid or invalid marriage, or upon

modification pursuant to paragraph b of subdivision nine of this part or

section two hundred forty-eight of this article.

(4) Notwithstanding the provisions of subparagraph one of this

paragraph, when determining duration of post-divorce maintenance, the

court shall take into consideration anticipated retirement assets,

benefits, and retirement eligibility age of both parties if

ascertainable at the time of decision. If not ascertainable at the time

of decision, the actual full or partial retirement of the payor with

substantial diminution of income shall be a basis for a modification of

the award.

g. Where either or both parties are unrepresented, the court shall not

enter a maintenance order or judgment unless the court informs the

unrepresented party or parties of the post-divorce maintenance guideline

obligation.

h. 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 post-divorce

maintenance guideline obligation.

i. When a payor has defaulted and/or the court makes a finding at the

time of trial that it was presented with insufficient evidence to

determine income, the court shall order the post-divorce maintenance

based upon the needs of the payee or the standard of living of the

parties prior to commencement of the divorce action, whichever is

greater. Such order may be retroactively modified upward without a

showing of change in circumstances upon a showing of substantial newly

discovered evidence.

j. Post-divorce maintenance may be modified pursuant to paragraph b of

subdivision nine of this part.

k. In any action or proceeding for modification of an order of

maintenance or alimony existing prior to the effective date of the

chapter of the laws of two thousand fifteen which amended this

subdivision, brought pursuant to this article, the guidelines for

post-divorce maintenance set forth in this subdivision shall not

constitute a change of circumstances warranting modification of such

support order.

l. In any action or proceeding for modification where the parties have

entered into an agreement providing for maintenance pursuant to

subdivision three of this part entered into prior to the effective date

of the chapter of the laws of two thousand fifteen which amended this

subdivision, brought pursuant to this article, the guidelines for

post-divorce maintenance set forth in this subdivision shall not

constitute a change of circumstances warranting modification of such

agreement.

m. In any action or proceeding for modification of an order of

maintenance or alimony existing prior to the effective date of the

chapter of the laws of two thousand fifteen which amended this

subdivision, brought pursuant to this article, the guidelines for

post-divorce maintenance set forth in paragraphs c, d and e of this

subdivision shall not apply.

n. In any action or proceeding for modification where the parties have

entered into an agreement providing for maintenance pursuant to

subdivision three of this part entered into prior to the effective date

of the chapter of the laws of two thousand fifteen which amended this

subdivision, brought pursuant to this article, the guidelines for

post-divorce maintenance set forth in paragraphs c, d and e of this

subdivision shall not apply.

o. In any decision made pursuant to this subdivision the court shall,

where appropriate, consider the effect of a barrier to remarriage, as

defined in subdivision six of section two hundred fifty-three of this

article, on the factors enumerated in paragraph e of this subdivision.

6-a. Law revision commission study. a. The legislature hereby finds

and declares it to be the policy of the state that it is necessary to

achieve equitable outcomes when families divorce and it is important to

ensure that the economic consequences of a divorce are fairly shared by

divorcing couples. Serious concerns have been raised that the

implementation of New York state's maintenance laws have not resulted in

equitable results. Maintenance is often not granted and where it is

granted, the results are inconsistent and unpredictable. This raises

serious concerns about the ability of our current maintenance laws to

achieve equitable and fair outcomes.

The legislature further finds a comprehensive review of the provisions

of our state's maintenance laws should be undertaken. It has been thirty

years since the legislature significantly reformed our state's divorce

laws by enacting equitable distribution of marital property and

introduced the concept of maintenance to replace alimony. Concerns that

the implementation of our maintenance laws have not resulted in

equitable results compel the need for a review of these laws.

b. The law revision commission is hereby directed to:

(1) review and assess the economic consequences of divorce on the

parties;

(2) review the maintenance laws of the state, including the way in

which they are administered to determine the impact of these laws on

post marital economic disparities, and the effectiveness of such laws

and their administration in achieving the state's policy goals and

objectives of ensuring that the economic consequences of a divorce are

fairly and equitably shared by the divorcing couple; and

(3) make recommendations to the legislature, including such proposed

revisions of such laws as it determines necessary to achieve these goals

and objectives.

c. The law revision commission shall make a preliminary report to the

legislature and the governor of its findings, conclusions, and any

recommendations not later than nine months from the effective date of

this subdivision, and a final report of its findings, conclusions and

recommendations not later than December thirty-first, two thousand

eleven.

7. Child support. a. In any matrimonial action, or in an independent

action for child support, the court as provided in section two hundred

forty of this chapter shall order either or both parents to pay

temporary child support or child support without requiring a showing of

immediate or emergency need. The court shall make an order for temporary

child support notwithstanding that information with respect to income

and assets of either or both parents may be unavailable. Where such

information is available, the court may make an order for temporary

child support pursuant to section two hundred forty of this article.

Such order shall, except as provided for herein, 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 be paid

in one 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. 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 court shall not direct the

schedule of repayment of retroactive support. The court shall not

consider the misconduct of either party but shall make its award for

child support pursuant to section two hundred forty of this article.

b. Notwithstanding any other provision of law, any written application

or motion to the court for the establishment of a child support

obligation for persons not in receipt of family assistance 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 five thousand

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. Unless the party 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.

c. 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.

d. Any child support order made by the court in any proceeding under

the provisions of this section shall include, on its face, a notice

printed or typewritten in a size equal to at least eight point bold type

informing the parties of their right to seek a modification of the child

support order upon a showing of:

(i) a substantial change in circumstances; or

(ii) that three years have passed since the order was entered, last

modified or adjusted; or

(iii) there has been a change in either party's gross income by

fifteen percent or more since the order was entered, last modified, or

adjusted;

however, if the parties have specifically opted out of subparagraph (ii)

or (iii) of this paragraph in a validly executed agreement or

stipulation, then that basis to seek modification does not apply.

8. Special relief in matrimonial actions. a. In any matrimonial

action the court may order a party to purchase, maintain or assign a

policy of insurance providing benefits for health and hospital care and

related services for either spouse or children of the marriage not to

exceed such period of time as such party shall be obligated to provide

maintenance, child support or make payments of a distributive award. The

court may also order a party to purchase, maintain or assign a policy of

accident insurance or insurance on the life of either spouse, and to

designate in the case of life insurance, either spouse or children of

the marriage, or in the case of accident insurance, the insured spouse

as irrevocable beneficiaries during a period of time fixed by the court.

The obligation to provide such insurance shall cease upon the

termination of the spouse's duty to provide maintenance, child support

or a distributive award. A copy of such order shall be served, by

registered mail, on the home office of the insurer specifying the name

and mailing address of the spouse or children, provided that failure to

so serve the insurer shall not affect the validity of the order.

b. In any action where the court has ordered temporary maintenance,

maintenance, distributive award or child support, the court may direct

that a payment be made directly to the other spouse or a third person

for real and personal property and services furnished to the other

spouse, or for the rental or mortgage amortization or interest payments,

insurances, taxes, repairs or other carrying charges on premises

occupied by the other spouse, or for both payments to the other spouse

and to such third persons. Such direction may be made notwithstanding

that the parties continue to reside in the same abode and

notwithstanding that the court refuses to grant the relief requested by

the other spouse.

c. Any order or judgment made as in this section provided may combine

any amount payable to either spouse under this section with any amount

payable to such spouse as child support or under section two hundred

forty of this chapter.

9. Enforcement and modification of orders and judgments in matrimonial

actions. a. All orders or judgments entered in matrimonial actions 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. Orders or judgments for child support,

alimony 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. The court may, and if

a party shall fail or refuse to pay maintenance, distributive award or

child support the court shall, upon notice and an opportunity to the

defaulting party to be heard, require the party to furnish a surety, or

the sequestering and sale of assets for the purpose of enforcing any

award for maintenance, distributive award or child support and for the

payment of reasonable and necessary attorney's fees and disbursements.

b. (1) Upon application by either party, the court may annul or modify

any prior order or judgment made after trial as to maintenance, upon a

showing of the payee's inability to be self-supporting or upon a showing

of a substantial change in circumstance, including financial hardship or

upon actual full or partial retirement of the payor if the retirement

results in a substantial change in financial circumstances. Where, after

the effective date of this part, an agreement remains in force, no

modification of an order or judgment incorporating the terms of said

agreement shall be made as to maintenance without a showing of extreme

hardship on either party, in which event the judgment or order as

modified shall supersede the terms of the prior agreement and judgment

for such period of time and under such circumstances as the court

determines. The court shall not reduce or annul any arrears of

maintenance which have been reduced to final judgment pursuant to

section two hundred forty-four of this article. No other arrears of

maintenance which have accrued prior to the making of such application

shall be subject to modification or annulment 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 and the facts and circumstances constituting good cause are

set forth in a written memorandum of decision. Such modification may

increase maintenance nunc pro tunc as of the date of application based

on newly discovered evidence. Any retroactive amount of maintenance due

shall, except as provided for herein, be paid in one sum or periodic

sums, as the court directs, taking into account any temporary or partial

payments which have been made. The provisions of this subdivision shall

not apply to a separation agreement made prior to the effective date of

this part.

(2) (i) The court may modify an order of child support, including an

order incorporating without merging an agreement or stipulation of the

parties, upon a showing of a substantial change in circumstances.

Incarceration shall not be considered voluntary unemployment and shall

not be a bar to finding a substantial change in circumstances.

(ii) In addition, unless the parties have specifically opted out of

the following provisions in a validly executed agreement or stipulation

entered into between the parties, the court may modify an order of child

support where:

(A) three years have passed since the order was entered, last modified

or adjusted; or

(B) there has been a change in either party's gross income by fifteen

percent or more since the order was entered, last modified, or adjusted.

A reduction in income shall not be considered as a ground for

modification unless it was involuntary and the party has made diligent

attempts to secure employment commensurate with his or her education,

ability, and experience.

(iii) No modification or annulment shall reduce or annul any arrears

of child support which have accrued prior to the date of application to

annul or modify any prior order or judgment as to child support. Such

modification may increase child support nunc pro tunc as of the date of

application based on newly discovered evidence. Any retroactive amount

of child support due shall, except as provided for in this subparagraph,

be paid in one sum or periodic sums, as the court directs, taking into

account any temporary or partial payments which have been made. Any

retroactive amount of child support due shall be support arrears/past

due support. 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 immediate execution for support enforcement as provided

for by this chapter, or in such periodic payments as would have been

authorized had such an execution been issued. In such case, the court

shall not direct the schedule of repayment of retroactive support.

c. Notwithstanding any other provision of law, any written application

or motion to the court for the modification or enforcement of a child

support or combined maintenance and child support order for persons not

in receipt of family assistance 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 five thousand 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 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 ordered to pay child support to

the other party. Unless the party receiving child support or combined

maintenance and 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.

d. 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.

Counsel fees and expenses. (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

declare the validity or nullity of a judgment of divorce rendered

against a spouse who was the defendant in any action outside the State

of New York and did not appear therein where such spouse asserts the

nullity of such foreign judgment, (5) to obtain maintenance or

distribution of property following a foreign judgment of divorce, or (6)

to enjoin the prosecution in any other jurisdiction of an action for a

divorce, the court may direct either spouse or, where an action for

annulment is maintained after the death of a spouse, may direct the

person or persons maintaining the action, to pay counsel fees and fees

and expenses of experts directly to the attorney of the other spouse to

enable the other party to carry on or defend the action or proceeding

as, in the court's discretion, justice requires, having regard to the

circumstances of the case and of the respective parties. There shall be

a rebuttable presumption that counsel fees shall be awarded to the less

monied spouse. In exercising the court's discretion, the court shall

seek to assure that each party shall be adequately represented and that

where fees and expenses are to be awarded, they shall be awarded on a

timely basis, pendente lite, so as to enable adequate representation

from the commencement of the proceeding. Applications for the award of

fees and expenses may be made at any time or times prior to final

judgment. Both parties to the action or proceeding and their respective

attorneys, shall file an affidavit with the court detailing the

financial agreement between the party and the attorney. Such affidavit

shall include the amount of any retainer, the amounts paid and still

owing thereunder, the hourly amount charged by the attorney, the amounts

paid, or to be paid, any experts, and any additional costs,

disbursements or expenses. An unrepresented litigant shall not be

required to file such an affidavit detailing fee arrangements when

making an application for an award of counsel fees and expenses;

provided he or she has submitted an affidavit that he or she is unable

to afford counsel with supporting proof, including a statement of net

worth, and, if available, W-2 statements and income tax returns for

himself or herself. Any applications for fees and expenses may be

maintained by the attorney for either spouse in his or her own name in

the same proceeding. Payment of any retainer fees to the attorney for

the petitioning party shall not preclude any awards of fees and expenses

to an applicant which would otherwise be allowed under this section.

(b) Upon any application to enforce, annul or modify an order or

judgment for alimony, maintenance, distributive award, distribution of

marital property or for custody, visitation, or maintenance of a child,

made as in section two hundred thirty-six or section two hundred forty

of this article provided, or upon any application by writ of habeas

corpus or by petition and order to show cause concerning custody,

visitation or maintenance of a child, the court may direct a spouse or

parent to pay counsel fees and fees and expenses of experts directly to

the attorney of the other spouse or parent to enable the other party to

carry on or defend the application or proceeding by the other spouse or

parent as, in the court's discretion, justice requires, having regard to

the circumstances of the case and of the respective parties. There shall

be a rebuttable presumption that counsel fees shall be awarded to the

less monied spouse. In exercising the court's discretion, the court

shall seek to assure that each party shall be adequately represented and

that where fees and expenses are to be awarded, they shall be awarded on

a timely basis, pendente lite, so as to enable adequate representation

from the commencement of the proceeding. Applications for the award of

fees and expenses may be made at any time or times prior to final

judgment. Both parties to the action or proceeding and their respective

attorneys, shall file an affidavit with the court detailing the

financial agreement, between the party and the attorney. Such affidavit

shall include the amount of any retainer, the amounts paid and still

owing thereunder, the hourly amount charged by the attorney, the amounts

paid, or to be paid, any experts, and any additional costs,

disbursements or expenses. Any applications for fees and expenses may be

maintained by the attorney for either spouse in counsel's own name in

the same proceeding. Payment of any retainer fees to the attorney for

the petitioning party shall not preclude any awards of fees and expenses

to an applicant which would otherwise be allowed under this section.

(c) In any action or proceeding for failure to obey any lawful order

compelling payment of support or maintenance, or distributive award the

court shall, upon a finding that such failure was willful, order

respondent to pay counsel fees to the attorney representing the

petitioner.

(d) The term "expenses" as used in subdivisions (a) and (b) of this

section shall include, but shall not be limited to, accountant fees,

appraisal fees, actuarial fees, investigative fees and other fees and

expenses that the court may determine to be necessary to enable a spouse

to carry on or defend an action or proceeding under this section. In

determining the appropriateness and necessity of fees, the court shall

consider:

1. The nature of the marital property involved;

2. The difficulties involved, if any, in identifying and evaluating

the marital property;

3. The services rendered and an estimate of the time involved; and

4. The applicant's financial status.

Expenses in enforcement and modification proceedings. In any

action or proceeding to enforce or modify any provision of a judgment or

order entered in an action for divorce, separation, annulment,

declaration of nullity of a void marriage, declaration of validity or

nullity of a judgement of divorce rendered against a spouse who was the

defendant in any action outside the state of New York and did not appear

therein where such spouse asserts the nullity of such foreign judgment,

or an injunction restraining the prosecution in any other jurisdiction

of an action for a divorce, or in any proceeding pursuant to section two

hundred forty-three, two hundred forty-four, two hundred forty-five, or

two hundred forty-six of this article, the court may in its discretion

require either party to pay counsel fees and fees and expenses of

experts directly to the attorney of the other party to enable the other

party to carry on or defend the action or proceeding as, in the court's

discretion, justice requires having regard to the circumstances of the

case and of the respective parties. There shall be a rebuttable

presumption that counsel fees shall be awarded to the less monied

spouse. In any such action or proceeding, applications for fees and

expenses may be maintained by the attorney for the respective parties in

counsel's own name and in counsel's own behalf. In exercising the

court's discretion, the court shall seek to assure that each party shall

be adequately represented and that where fees and expenses are to be

awarded, they shall be awarded on a timely basis, pendente lite, so as

to enable adequate representation from the commencement of the

proceeding. Applications for the award of fees and expenses may be made

at any time or times prior to final judgment. Both parties to the action

or proceeding and their representative attorneys, shall file an

affidavit with the court detailing the financial agreement between the

party and the attorney. Such affidavit shall include the amount of any

retainer, the amounts paid and still owing thereunder, the hourly amount

charged by the attorney, the amounts paid, or to be paid, any experts,

and any additional costs, disbursements or expenses. Payment of any

retainer fees to the attorney for the petitioning party shall not

preclude any awards of fees and expenses to an applicant which would

otherwise be allowed under this section.

Stay in divorce or separation action on default of payment. In

an action for divorce or separation the court or the judge thereof may

refuse to grant an order to stay proceedings, where the only default is

the failure of a spouse to pay alimony, maintenance or counsel fees due

to his or her inability to make such payments. In no event shall a

spouse who has been imprisoned for contempt of court for failure to pay

alimony, maintenance or counsel fees or by virtue of an order of arrest

as a provisional remedy under the civil practice law and rules be stayed

from proceeding with the prosecution or defense of an action where the

only default is the failure of such spouse to pay alimony, maintenance

or counsel fees.

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

Judgment or decree; additional provision. In any action or

proceeding brought under the provisions of this chapter wherein all or

part of the relief granted is divorce or annulment of a marriage any

interlocutory or final judgment or decree shall contain, as a part

thereof, the social security numbers of the named parties in the action

or proceeding, as well as a provision that each party may resume the use

of his or her premarriage surname or any other former surname.

Order of support by parent. When the court makes an order of

support pursuant to section two hundred forty of this article, and where

permitted under federal law and where the record of the proceedings

contains such information, the court shall require the social security

number of such parent to be affixed to such order; provided, however,

that no such order shall be invalid because of the omission of such

number. Where the record of the proceedings contains such information,

such order shall also include on its face 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. Where the order of child support or combined

child and spouse support is made on behalf of persons 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 require

each party to provide, and update upon any change, the following

information to the court by reporting such change to the support

collection unit designated by the appropriate social services district:

social security number, residential and mailing addresses, telephone

number, driver's license number; and name, address and telephone number

of the parties' employers. Due process requirements for notice and

service of process for subsequent hearings are met, with respect to such

party, upon sending written notice by first class mail to the most

recent residential address on record with the support collection unit;

or by sending by first class mail written notice to the most recent

employer address on record with the support collection unit, if a true

copy thereof also is sent by first class mail to the most recent

residential address on record with the support collection unit. Any such

order issued on or after the first day of October, nineteen hundred

ninety-nine shall also include, where available, the social security

number of each child on whose behalf support has been ordered.

Review and cost of living adjustment of child support orders.

1. Request. Any party to a child support order issued on behalf of a

child in receipt of public assistance, or child support enforcement

services pursuant to section one hundred eleven-g of the social services

law may request that the support collection unit review the order for

cost of living adjustment purposes pursuant to section one hundred

eleven-n of the social services law.

2. Adjustment process. (a) A cost of living adjustment shall be made

by the support collection unit with respect to an order of support under

review if the sum of the annual average changes of the consumer price

index for all urban consumers (CPI-U), as published annually by the

United States department of labor bureau of labor statistics, is ten

percent or greater.

(b) The cost of living adjustment and adjusted child support

obligation amount as calculated by the review shall be reflected on the

adjusted order issued by the support collection unit and mailed to the

parties by first class mail. The child support obligation amount

contained in the adjusted order shall be due and owing on the date the

first payment is due under the terms of the order of support which was

reviewed and adjusted occurring on or after the effective date of the

adjusted order.

(c) The support collection unit shall provide a copy of the adjusted

order to the court which issued the most recent order of support, which

shall append it to the order.

3. Objection process. (a) An objection to a cost of living adjustment,

as reflected in an adjusted order issued by a support collection unit,

may be made to the court by either party to the order, or by the support

collection unit, and shall be submitted to the court in writing within

thirty-five days from the date of mailing of the adjusted order. A copy

of the written objection shall be provided by the objecting party to the

other party and to the support collection unit.

(b) Where such objections are timely filed, the cost of living

adjustment shall not take effect, and a hearing on the adjustment of

such order shall be granted pursuant to the provisions of this section,

which shall result in either:

(1) the issuance by the court of a new order of support in accordance

with the child support standards as set forth in section two hundred

forty of this article; or

(2) where application of the child support standards as set forth in

section two hundred forty of this article results in a determination

that no adjustment is appropriate, an order of no adjustment.

(c) Any order of support made by the court under this section shall

occur without the requirement for proof or showing of a change in

circumstances.

(d) The court shall conduct the hearing and make its determination no

later than forty-five days from the date it receives an objection. If

the order under review does not provide for health insurance benefits

for the child, the court shall make a determination regarding such

benefits pursuant to section two hundred forty of this article. The

clerk of the court shall immediately transmit copies of the order of

support or order of no adjustment issued by the court pursuant to this

subdivision to the parties and the support collection unit. Where a

hearing results in the issuance of a new order of support, the effective

date of the court order shall be the earlier of the date of the court

determination or the date the cost of living adjustment would have been

effective had it not been challenged.

(e) Where no objection has been timely raised to a cost of living

adjustment as reflected in an adjusted order, such adjustment shall

become final without further review by the court or any judge or support

magistrate thereof.

4. Modification of orders. 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.

5. Notice. Parties eligible for adjustment of child support orders

shall receive notice of the right to review such orders as follows:

(a) All applications or motions by the support collection unit or by

persons seeking support enforcement services through the support

collection unit for the establishment, modification, enforcement,

violation or adjustment of child support orders shall on their face in

conspicuous type state:

NOTE: (1) A COURT ORDER OF SUPPORT RESULTING FROM A PROCEEDING

COMMENCED BY THIS APPLICATION (MOTION) SHALL BE ADJUSTED BY THE

APPLICATION OF A COST OF LIVING ADJUSTMENT AT THE DIRECTION OF THE

SUPPORT COLLECTION UNIT NO EARLIER THAN TWENTY-FOUR MONTHS AFTER SUCH

ORDER IS ISSUED, LAST MODIFIED OR LAST ADJUSTED, UPON THE REQUEST OF ANY

PARTY TO THE ORDER OR PURSUANT TO PARAGRAPH (2) BELOW. SUCH COST OF

LIVING ADJUSTMENT SHALL BE ON NOTICE TO BOTH PARTIES WHO, IF THEY OBJECT

TO THE COST OF LIVING ADJUSTMENT, SHALL HAVE THE RIGHT TO BE HEARD BY

THE COURT AND TO PRESENT EVIDENCE WHICH THE COURT WILL CONSIDER IN

ADJUSTING THE CHILD SUPPORT ORDER IN ACCORDANCE WITH SUBDIVISION 1-B OF

SECTION TWO HUNDRED FORTY OF THE DOMESTIC RELATIONS LAW, KNOWN AS THE

CHILD SUPPORT STANDARDS ACT.

(2) A PARTY SEEKING SUPPORT FOR ANY CHILD(REN) RECEIVING FAMILY

ASSISTANCE SHALL HAVE A CHILD SUPPORT ORDER REVIEWED AND ADJUSTED AT THE

DIRECTION OF THE SUPPORT COLLECTION UNIT NO EARLIER THAN TWENTY-FOUR

MONTHS AFTER SUCH ORDER IS ISSUED, LAST MODIFIED OR LAST ADJUSTED BY THE

SUPPORT COLLECTION UNIT, WITHOUT FURTHER APPLICATION BY ANY PARTY. ALL

PARTIES WILL RECEIVE A COPY OF THE ADJUSTED ORDER.

(3) WHERE ANY PARTY FAILS TO PROVIDE, AND UPDATE UPON ANY CHANGE, THE

SUPPORT COLLECTION UNIT WITH A CURRENT ADDRESS, AS REQUIRED BY SECTION

TWO HUNDRED FORTY-B OF THE DOMESTIC RELATIONS LAW, TO WHICH AN ADJUSTED

ORDER CAN BE SENT, THE SUPPORT OBLIGATION AMOUNT CONTAINED THEREIN SHALL

BECOME DUE AND OWING ON THE DATE THE FIRST PAYMENT IS DUE UNDER THE

TERMS OF THE ORDER OF SUPPORT WHICH WAS REVIEWED AND ADJUSTED OCCURRING

ON OR AFTER THE EFFECTIVE DATE OF THE ADJUSTED ORDER, REGARDLESS OF

WHETHER OR NOT THE PARTY HAS RECEIVED A COPY OF THE ADJUSTED ORDER.

(b) All court orders of support payable through a support collection

unit shall on their face in conspicuous type state:

NOTE: (1) THIS ORDER OF CHILD SUPPORT SHALL BE ADJUSTED BY THE

APPLICATION OF A COST OF LIVING ADJUSTMENT AT THE DIRECTION OF THE

SUPPORT COLLECTION UNIT NO EARLIER THAN TWENTY-FOUR MONTHS AFTER THIS

ORDER IS ISSUED, LAST MODIFIED OR LAST ADJUSTED, UPON THE REQUEST OF ANY

PARTY TO THE ORDER OR PURSUANT TO PARAGRAPH (2) BELOW. UPON APPLICATION

OF A COST OF LIVING ADJUSTMENT AT THE DIRECTION OF THE SUPPORT

COLLECTION UNIT, AN ADJUSTED ORDER SHALL BE SENT TO THE PARTIES WHO, IF

THEY OBJECT TO THE COST OF LIVING ADJUSTMENT, SHALL HAVE THIRTY-FIVE

(35) DAYS FROM THE DATE OF MAILING TO SUBMIT A WRITTEN OBJECTION TO THE

COURT INDICATED ON SUCH ADJUSTED ORDER. UPON RECEIPT OF SUCH WRITTEN

OBJECTION, THE COURT SHALL SCHEDULE A HEARING AT WHICH THE PARTIES MAY

BE PRESENT TO OFFER EVIDENCE WHICH THE COURT WILL CONSIDER IN ADJUSTING

THE CHILD SUPPORT ORDER IN ACCORDANCE WITH THE CHILD SUPPORT STANDARDS

ACT.

(2) A RECIPIENT OF FAMILY ASSISTANCE SHALL HAVE THE CHILD SUPPORT

ORDER REVIEWED AND ADJUSTED AT THE DIRECTION OF THE SUPPORT COLLECTION

UNIT NO EARLIER THAN TWENTY-FOUR MONTHS AFTER SUCH ORDER IS ISSUED, LAST

MODIFIED OR LAST ADJUSTED WITHOUT FURTHER APPLICATION BY ANY PARTY. ALL

PARTIES WILL RECEIVE A COPY OF THE ADJUSTED ORDER.

(3) WHERE ANY PARTY FAILS TO PROVIDE, AND UPDATE UPON ANY CHANGE, THE

SUPPORT COLLECTION UNIT WITH A CURRENT ADDRESS, AS REQUIRED BY SECTION

TWO HUNDRED FORTY-B OF THE DOMESTIC RELATIONS LAW, TO WHICH AN ADJUSTED

ORDER CAN BE SENT, THE SUPPORT OBLIGATION AMOUNT CONTAINED THEREIN SHALL

BECOME DUE AND OWING ON THE DATE THE FIRST PAYMENT IS DUE UNDER THE

TERMS OF THE ORDER OF SUPPORT WHICH WAS REVIEWED AND ADJUSTED OCCURRING

ON OR AFTER THE EFFECTIVE DATE OF THE ADJUSTED ORDER, REGARDLESS OF

WHETHER OR NOT THE PARTY HAS RECEIVED A COPY OF THE ADJUSTED ORDER.

Support orders for certain adult dependents. 1.

Notwithstanding any other law, a person who would otherwise be

chargeable under law with support of a minor child is also chargeable

with the support of any such individual until such individual reaches

the age of twenty-six, when it shall appear to the satisfaction of the