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A08159 Summary:

BILL NOA08159
 
SAME ASSAME AS S07681
 
SPONSORBraunstein
 
COSPNSR
 
MLTSPNSR
 
Amd §§111-a & 240, Dom Rel L; amd §130.92, Pen L; add Art 6 Part 6 §§681 & 682, Fam Ct Act
 
Provides a process for the termination of parental rights in cases of a child conceived through rape by clear and convincing evidence.
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A08159 Actions:

BILL NOA08159
 
10/18/2023referred to judiciary
01/03/2024referred to judiciary
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A08159 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A8159
 
SPONSOR: Braunstein
  TITLE OF BILL: An act to amend the penal law, the domestic relations law and the family court act, in relation to termination of parental rights in cases of a child conceived through rape   PURPOSE: To expand the protections afforded to women who conceive a child as a result of rape.   SUMMARY OF LEGISLATION: SECTION 1. SECTION 130.92 OF THE PENAL LAW IS AMENDED BY ADDING A NEW SUBDIVISION 4. THIS TERMINATES THE PARENTAL RIGHTS AND RESPONSIBILITIES OF A PARENT WHO IS "CONVICTED" OF THE CRIME OF RAPE IN THE FIRST, SECOND, OR THIRD DEGREE. THIS PROVISION MANDATES THAT THE COURT TERMINATE PARENTAL RIGHTS IF A CONVICTION OCCURS. SECTION 2. SUBDIVISION 1 OF SECTION 111-A OF THE DOMESTIC RELATIONS LAW, AS AMENDED BY CHAPTER 371 OF THE LAWS OF 2013, IS AMENDED. IF, AFTER A JUDICIAL HEARING, IT IS FOUND BY -CLEAR AND CONVINCING EVIDENCE," THAT A WOMAN HAS BEEN RAPED IN THE FIRST, SECOND OR THIRD DEGREE, AND A CHILD WAS CONCEIVED AS RESULT OF THAT RAPE, THE WOMAN DOES NOT HAVE TO NOTIFY HER ASSAILANT OF HER INTENTION TO GIVE THE CHILD UP FOR ADOPTION. SECTION 3. PARAGRAPH (B) OF SUBDIVISION 1-C OF SECTION 240 OF THE DOMES- TIC RELATIONS LAW, AS AMENDED BY CHAPTER 371 OF THE LAWS OF 2013, IS AMENDED. THIS INCLUDES THE PROVISION THAT THERE WILL BE A REBUTTABLE PRESUMPTION THAT IT IS NOT IN THE BEST INTERESTS OF THE CHILD WHETHER BORN IN OR OUT-OF-WEDLOCK TO BE PLACED IN THE CUSTODY OF OR TO VISIT-WITH THE PERSON WHO HAS BEEN CONVICTED OF RAPE WHICH RESULTED IN THE CONCEPTION OF THAT CHILD. SECTION 4. SUBDIVISION 5 OF SECTION 240 OF THE DOMESTIC RELATIONS LAW, AS ADDED BY SECTION 103 OF CHAPTER 398 OF THE LAWS OF 1997, IS RENUM- BERED SUBDIVISION 6 AND A NEW SUBDIVISION 7 IS ADDED. NO COURT SHALL AWARD CUSTODY OR VISITATION RIGHTS TO ANY PARENT WHO HAS BEEN CHARGED WITH VIOLATING SECTION 130.25 (RAPE IN THE THIRD DEGREE), 130.30 (RAPE IN THE SECOND DEGREE), OR 130.35 (RAPE IN THE FIRST DEGREE) OF THE PENAL LAW, UNTIL THE CONCLUSION OF ALL PROCEEDINGS ASSOCIATED WITH SUCH CHARG- ES. IN ADDITION, NEITHER CUSTODY NOR VISITATION SHALL BE AWARDED TO ANY PARENT WHO IS CONVICTED OF SUCH CHARGES. SECTION 5. ARTICLE 6 OF THE FAMILY COURT ACT IS AMENDED ADDING A NEW PART 6. THIS ESTABLISHES A HEARING PROCESS BY WHICH A VICTIM CAN PROVE BY "CLEAR AND CONVINCING EVIDENCE" THAT THE RESPONDENT COMMITTED THE CRIME OF RAPE IN THE FIRST, SECOND, OR THIRD DEGREE AND A CHILD WAS CONCEIVED AS A RESULT OF SUCH RAPE. AT THE CONCLUSION OF THE HEARING, THE COURT MAY TERMINATE ALL OF THE PARENTAL RIGHTS AND RESPONSIBILITIES OF THE RESPONDENT IF IT IS FOUND THAT HE INDEED COMMITTED RAPE AND THE CHILD WAS CONCEIVED AS A RESULT OF SUCH RAPE.   JUSTIFICATION: New York State, under certain circumstances, gives a rapist who fathered a child the legal right to custody and/or visitation. It is impossible to imagine the anguish a victim endures when she is forced to not only interact with the assailant, but actually share parental responsibil- ities. Sadly, New York is one of a limited number of states where the rapist has this right. In March of 2010, Shauna Prewitt, a rape survivor and law student at Georgetown Law School, published a scholarly article • examining the legal protections afforded women. who become mothers as a result of rape. The article exposed a legal system that permitted the rapist custody and visitation rights regarding the child born as a result of rape. Currently, a total of 33 states have enacted statutes that either termi- nate parental rights or eliminate the requirement that the father be notified of.an adoption proceeding when a child has been conceived as a result of rape. This measure uses the concept of "clear and convincing evidence" as the standard for terminating a rapist's custody claims. Unfortunately, fewer than 5ks of rape cases are ever brought to trial and even when they are, many defendants are allowed to plead guilty to a lesser offense. Therefore, this legislation looks to establish a hearing process that makes "clear and convincing evidence" sufficient grouhds for the denial of parental or custodial rights. This legislation would also protect women who choose to put a child conceived through rape up for adoption. Current New York State Law requires that unless there is a conviction of rape in the first degree, a woman must notify the father (rapist) of the decision to put the child for adoption. This legislation expands the conviction to include rape in the second and third degree and adds "clear and convincing evidence" at a hearing to the statute. Accordingly, this proposed legislation seeks to protect victims of rape and begin their journey toward recovery should they choose to put the child up for adoption without fearing retaliation from the perpetrator. If someone is convicted of rape, they should have no contact with the child. There have been cases where courts have determined that terminat- ing parental rights is not in the best interest of the child because the rapist has established a relationship with the child as a result of the lengthy interval between arrest and conviction. To allow a rapist to establish a parental presence in the life of a child is unacceptable and can be traumatic to-both the mother and child. Perpetrators can also use the interim between arrest and conviction to intimidate the mother into dropping the charges, often using the custody of the child as leverage. Therefore, this legislation proposes that no custody or visitation rights be granted to anyone charged with rape until the conclusion of the proceedings. Establishing a process by which a woman can petition the court to conduct a hearing protects the woman from a long, drawn out legal proceeding. This hearing process also protects the accused by setting "clear and convincing evidence" as the standard for denying parental rights and leaving the decision to the discretion of the court. Lastly, in 1982, the Supreme Court established, in Santosky v Kramer (455 U.S. 745) that "clear and convincing evidence" does not impede due process in restricting or terminating parental rights.   LEGISLATIVE HISTORY: 2015-2016: A.6997-A/S.3215-A - Referred to Judiciary. 2017-2018: A.4372/S.3515 - Referred to Judiciary. 2019-2020: A.534/S.2948 - Referred to Judiciary. 2021-2022: A.539/S.7648 - Referred to Codes   FISCAL IMPLICATIONS: None to the State.   EFFECTIVE DATE: This act shall take effect immediately.
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A08159 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          8159
 
                               2023-2024 Regular Sessions
 
                   IN ASSEMBLY
 
                                    October 18, 2023
                                       ___________
 
        Introduced  by  M.  of  A.  BRAUNSTEIN  -- read once and referred to the
          Committee on Judiciary
 
        AN ACT to amend the penal law, the domestic relations law and the family
          court act, in relation to termination of parental rights in cases of a
          child conceived through rape

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1. Section 130.92 of the penal law is amended by adding a new
     2  subdivision 4 to read as follows:
     3    4. The parental rights and responsibilities with respect to a child of
     4  a parent convicted of the crime of rape in the first degree  as  defined
     5  in  section 130.35 of this article, rape in the second degree as defined
     6  in section 130.30 of this article,  or  rape  in  the  third  degree  as
     7  defined  in  section  130.25  of  this  article,  that  resulted  in the
     8  conception of such child shall be terminated in accordance with  article
     9  six of the family court act.
    10    §  2. Subdivision 1 of section 111-a of the domestic relations law, as
    11  amended by chapter 828 of the laws  of  2022,  is  amended  to  read  as
    12  follows:
    13    1.  Notwithstanding  any  inconsistent provisions of this or any other
    14  law, and in addition to the notice requirements of any law pertaining to
    15  persons other than those specified in subdivision two of  this  section,
    16  notice  as  provided  herein  shall be given to the persons specified in
    17  subdivision two of this section of  any  adoption  proceeding  initiated
    18  pursuant  to  this  article  or  of any proceeding initiated pursuant to
    19  section one hundred fifteen-b of this article relating to the revocation
    20  of an adoption consent, when such proceeding involves a child born  out-
    21  of-wedlock  provided, however, that such notice shall not be required to
    22  be given: (a) in the case of the adoption of a child transferred to  the
    23  custody  and  guardianship  of  an  authorized agency, foster parent, or
    24  relative pursuant to section three hundred eighty-four-b of  the  social
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD13354-01-3

        A. 8159                             2
 
     1  services  law  or a child transferred to the custody and guardianship of
     2  an authorized agency pursuant to section three hundred eighty-three-c of
     3  the social services law;  or  (b)  to  any  person  who  has  previously
     4  received  notice  of  any  proceeding  pursuant  to  section one hundred
     5  fifteen-b of this article. In addition to such other requirements as may
     6  be applicable to the petition in any proceeding in which notice must  be
     7  given  pursuant  to this section, the petition shall set forth the names
     8  and last known addresses of all persons required to be given  notice  of
     9  the  proceeding,  pursuant  to this section, and there shall be shown by
    10  the petition or by affidavit or other proof satisfactory  to  the  court
    11  that there are no persons other than those set forth in the petition who
    12  are  entitled to notice. For the purpose of determining persons entitled
    13  to notice of adoption proceedings initiated pursuant  to  this  article,
    14  persons  specified  in subdivision two of this section shall not include
    15  any person who has been convicted of one or more of the following sexual
    16  offenses in this state or convicted of one or more offenses  in  another
    17  jurisdiction  which, if committed in this state, would constitute one or
    18  more of the following offenses, where it is established after a hearing,
    19  by clear and convincing evidence, that such person  committed  any  such
    20  offense  or  when  the  child  who  is the subject of the proceeding was
    21  conceived as a result:   (A) rape in the first  [or],  second  or  third
    22  degree;  (B)  course  of  sexual  conduct  against  a child in the first
    23  degree; (C) predatory sexual assault; or (D)  predatory  sexual  assault
    24  against a child.
    25    §  3.  Paragraph (b) of subdivision 1-c of section 240 of the domestic
    26  relations law, as amended by chapter 182 of the laws of 2019, is amended
    27  to read as follows:
    28    (b) Notwithstanding any other provision of this chapter to the contra-
    29  ry, there shall be a rebuttable presumption that it is not in  the  best
    30  interests of the child, whether born in or out-of-wedlock, to:
    31    (A) be placed in the custody of or to visit with a person who has been
    32  convicted  of one or more of the following sexual offenses in this state
    33  or convicted of one or more offenses in another jurisdiction  which,  if
    34  committed  in  this state, would constitute one or more of the following
    35  offenses, when a  child  who  is  the  subject  of  the  proceeding  was
    36  conceived as a result:
    37    (1) rape in the first or second degree;
    38    (2) course of sexual conduct against a child in the first degree;
    39    (3) predatory sexual assault; or
    40    (4) predatory sexual assault against a child; or
    41    (B)  be  placed  in  the custody of or have unsupervised visits with a
    42  person who has been convicted of a felony sex  offense,  as  defined  in
    43  section  70.80  of  the penal law, or convicted of an offense in another
    44  jurisdiction which, if committed in this state, would constitute such  a
    45  felony  sex  offense, where the victim of such offense was the child who
    46  is the subject of the proceeding.
    47    § 4. Subdivision 5 of section 240 of the domestic  relations  law,  as
    48  added  by  section 103 of chapter 398 of the laws of 1997, is renumbered
    49  subdivision 6 and a new subdivision 7 is added to read as follows:
    50    7. Notwithstanding any other provision of any law to the contrary,  no
    51  court  shall award custody to a parent who has been charged with violat-
    52  ing section 130.25 (rape in the  third  degree),  130.30  (rape  in  the
    53  second  degree),  or 130.35 (rape in the first degree) of the penal law,
    54  where the child that such parent seeks  custody  or  visitation  of  was
    55  conceived  as  a  result  of  such  rape,  until  the  conclusion of all
    56  proceedings associated with such charges. Neither custody nor visitation

        A. 8159                             3
 
     1  shall be awarded to a parent who has been convicted of violating section
     2  130.25 (rape in the third degree), 130.30 (rape in the  second  degree),
     3  or 130.35 (rape in the first degree) of the penal law.
     4    § 5. Article 6 of the family court act is amended by adding a new part
     5  6 to read as follows:
 
     6                                   PART 6
     7       TERMINATION OF PARENTAL RIGHTS UPON A FINDING OF CONCEPTION BY
     8                                    RAPE
     9  Section 681. Termination of parental rights upon a finding of conception
    10                 by rape.
    11          682. Hearing.
    12    §  681. Termination of parental rights upon a finding of conception by
    13  rape. 1. A proceeding for termination of parental rights on the  grounds
    14  of  a finding of conception by rape is originated by a petition alleging
    15  that the respondent committed the crime of rape in the first  degree  as
    16  defined  in  section  130.35,  rape  in  the second degree as defined in
    17  section 130.30, or rape in the third degree as defined in section 130.25
    18  of the penal law, and that the child was conceived as a result  of  such
    19  rape.  Except as otherwise provided in this part, the provisions of part
    20  one of this article shall apply to all proceedings.
    21    2. At the conclusion of the hearing under section six hundred  eighty-
    22  two  of this part the court may terminate all of the parental rights and
    23  responsibilities of the respondent if the respondent is found  by  clear
    24  and  convincing  evidence  to have committed rape in the first degree as
    25  defined in section 130.35, rape in  the  second  degree  as  defined  in
    26  section  130.30 or rape in the third degree as defined in section 130.25
    27  of the penal law, and the child was conceived as a result of  such  act.
    28  An  order of disposition shall be made, pursuant to this section, solely
    29  on the basis of the best interests of the child, and there shall  be  no
    30  presumption  that  such  interests  will  be  promoted by any particular
    31  disposition.
    32    § 682. Hearing. The court shall hold a  hearing  under  this  part  to
    33  determine  whether  the  allegations in the petition that the respondent
    34  committed rape in the first degree as defined in section 130.35, rape in
    35  the second degree as defined in section 130.30  or  rape  in  the  third
    36  degree as defined in section 130.25 of the penal law, and that the child
    37  was  conceived  as  a  result  of  such  act  are supported by clear and
    38  convincing proof. Only competent, material and relevant evidence may  be
    39  admitted  in  a  hearing  pursuant  to this section. A conviction of the
    40  respondent on the charges alleged shall not be required  for  a  finding
    41  under this section.
    42    § 6. This act shall take effect immediately.
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