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New York Family Court - Part 3 - § 651 Jurisdiction Over Habeas Corpus Proceedings and Petitions for Custody and Visitation of Minors

Legal Research Home > New York Laws > New York Family Court (FCT) > New York Family Court - Part 3 - § 651 Jurisdiction Over Habeas Corpus Proceedings and Petitions for Custody and Visitation of Minors

 
    §  651.  Jurisdiction over habeas corpus proceedings and petitions for
  custody and visitation of minors. (a) When  referred  from  the  supreme
  court  or  county  court  to  the  family  court,  the  family court has
  jurisdiction to determine, in accordance with subdivision one of section
  two hundred forty of the domestic relations law and with the same powers
  possessed by the supreme court in addition to  its  own  powers,  habeas
  corpus proceedings and proceedings brought by petition and order to show
  cause, for the determination of the custody or visitation of minors.
    (b)  When  initiated  in  the  family  court,  the  family  court  has
  jurisdiction to determine, in accordance with subdivision one of section
  two hundred forty of the domestic relations law and with the same powers
  possessed by the supreme court in addition to  its  own  powers,  habeas
  corpus proceedings and proceedings brought by petition and order to show
  cause,  for  the  determination  of the custody or visitation of minors,
  including applications by a grandparent or grandparents  for  visitation
  or  custody  rights pursuant to section seventy-two or two hundred forty
  of the domestic relations law.
    (c) When initiated in the family court pursuant to  a  petition  under
  part  eight  of  article  ten  of  this  act  or  section  three hundred
  fifty-eight-a  of  the  social  services  law,  the  family  court   has
  jurisdiction  to  enforce  or  modify orders or judgments of the supreme
  court  relating  to  the  visitation   of   minors   in   foster   care,
  notwithstanding  any  limitation contained in subdivision (b) of section
  four hundred sixty-seven of this act.
    (d) With respect to applications by a grandparent or grandparents  for
  visitation  or  custody  rights, made pursuant to section seventy-two or
  two hundred forty of the domestic relations law, with a  child  remanded
  or  placed  in  the  care  of  a person, official, agency or institution
  pursuant to the provisions of article ten of this act, the applicant, in
  such manner as the court shall prescribe, shall  serve  a  copy  of  the
  application upon the social services official having care and custody of
  such  child,  and  the  child's  attorney,  who  shall  be  afforded  an
  opportunity to be heard thereon.
    (e)  1.  Permanent  and  initial  temporary  orders  of   custody   or
  visitation.  Prior to the issuance of any permanent or initial temporary
  order  of custody or visitation, the court shall conduct a review of the
  decisions and reports listed in paragraph three of this subdivision.
    2. Successive temporary orders of custody or visitation. Prior to  the
  issuance of any successive temporary order of custody or visitation, the
  court  shall  conduct  a  review  of the decisions and reports listed in
  paragraph three of this subdivision,  unless  such  a  review  has  been
  conducted within ninety days prior to the issuance of such order.
    3.  Decisions and reports for review. The court shall conduct a review
  of the following:
    (i) related decisions  in  court  proceedings  initiated  pursuant  to
  article ten of this act, and all warrants issued under this act; and
    (ii)  reports  of  the  statewide  computerized  registry of orders of
  protection established and maintained pursuant to  section  two  hundred
  twenty-one-a  of  the  executive  law,  and  reports of the sex offender
  registry established and maintained  pursuant  to  section  one  hundred
  sixty-eight-b of the correction law.
    4.  Notifying  counsel  and  issuing  orders.  Upon  consideration  of
  decisions pursuant to article ten of this act, and registry reports  and
  notifying  counsel  involved  in  the  proceeding,  or in the event of a
  self-represented party, notifying such party  of  the  results  thereof,
  including any court appointed attorney for children, the court may issue
  a   temporary,  successive  temporary  or  final  order  of  custody  or
  visitation.

    5. Temporary emergency order. Notwithstanding any other  provision  of
  the  law, upon emergency situations, including computer malfunctions, to
  serve the best interest of the child, the court may  issue  a  temporary
  emergency  order  for  custody or visitation in the event that it is not
  possible  to  timely  review  decisions  and  reports  on  registries as
  required pursuant to paragraph three of this subdivision.
    6.  After  issuing  a  temporary  emergency  order.  After  issuing  a
  temporary  emergency  order  of  custody  or visitation, the court shall
  conduct reviews of the decisions and reports on registries  as  required
  pursuant to paragraph three of this subdivision within twenty-four hours
  of   the  issuance  of  such  temporary  emergency  order.  Should  such
  twenty-four hour period fall on a day when court is not in session, then
  the required reviews shall take place the  next  day  the  court  is  in
  session.  Upon  reviewing  decisions  and reports the court shall notify
  associated counsel, self-represented parties and attorneys for  children
  pursuant  to  paragraph four of this subdivision and may issue temporary
  or permanent custody or visitation orders.
    7. Feasibility study. The commissioner of the office of  children  and
  family services, in conjunction with the office of court administration,
  is  hereby  authorized and directed to examine, study, evaluate and make
  recommendations  concerning  the  feasibility  of  the  utilization   of
  computers  in family courts which are connected to the statewide central
  register of child abuse  and  maltreatment  established  and  maintained
  pursuant  to section four hundred twenty-two of the social services law,
  as a means of providing family courts with information regarding parties
  requesting orders of custody or visitation. Such commissioner shall make
  a preliminary report to the governor and the  legislature  of  findings,
  conclusions and recommendations not later than January thirty-first, two
  thousand   nine,  and  a  final  report  of  findings,  conclusions  and
  recommendations not later than June first, two thousand nine, and  shall
  submit  with  the  reports  such  legislative  proposals  as  are deemed
  necessary to implement the commissioner's recommendations.
    (f) Military service by parent; effect on  child  custody  orders.  1.
  During  the  period  of  time  that  a  parent is activated, deployed or
  temporarily assigned to military service, such that the parent's ability
  to continue as a joint caretaker or the primary  caretaker  of  a  minor
  child is materially affected by such military service, any orders issued
  pursuant  to  this  section,  based  on  the  fact  that  the  parent is
  activated, deployed or temporarily assigned to military  service,  which
  would materially affect or change a previous judgment or order regarding
  custody  of  that  parent's  child or children as such judgment or order
  existed on the date the parent was activated, deployed,  or  temporarily
  assigned  to  military  service,  shall be subject to review pursuant to
  paragraph three of this subdivision.  Any  relevant  provisions  of  the
  Service  Member's  Civil  Relief  Act  shall  apply  to  all proceedings
  governed by this section.
    2. During such period, the court may enter an order to modify  custody
  if  there  is  clear and convincing evidence that the modification is in
  the best interests of the child. An attorney  for  the  child  shall  be
  appointed  in  all  cases  where  a  modification  is sought during such
  military service. Such order shall be  subject  to  review  pursuant  to
  paragraph  three of this subdivision. When entering an order pursuant to
  this section, the court shall consider and provide for, if feasible  and
  if  in  the  best  interests  of the child, contact between the military
  service member and his or her  child  including,  but  not  limited  to,
  electronic   communication   by  e-mail,  webcam,  telephone,  or  other
  available means. During the period of the parent's leave  from  military
  service,  the  court shall consider the best interests of the child when

  establishing a parenting schedule, including visiting and other contact.
  For such purpose, a "leave from military service" shall be a  period  of
  not more than three months.
    3. Unless the parties have otherwise stipulated or agreed, if an order
  is  issued  pursuant  to this subdivision, the return of the parent from
  active military service, deployment or  temporary  assignment  shall  be
  considered  a  substantial  change in circumstances. Upon the request of
  either parent, the court shall determine on the  basis  of  the  child's
  best  interests  whether  the  custody  judgment  or order previously in
  effect should be modified.
    4. This subdivision shall not apply to assignments to  permanent  duty
  stations or permanent changes of station.

Last modified: February 18, 2012