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Recent Legislation and Court Rules
November 24, 2021 Laws of 2021, Ch 509, §1 amended Domestic Relations Law §236 (B)(5)(d), effective October 25, 2021 Laws of 2021, Ch 509, §1 amended Domestic Relations Law §236 (B)(5)(d), effective October 25, 2021 to renumber subparagraph 14 as subparagraph 15, and add a new subparagraph 14 is added to require that courts consider the best interest of companion animals when awarding possession of the animal during divorce or separation proceedings. This provision applies where it is determined that the companion animal is marital property. The rationale for the amendment appears in the sponsors memorandum in support of the legislation. It states that custody decisions involving pets in divorce proceedings are not uncommon. Courts typically deal with pets in divorce proceedings as they do with personal property such as cars and furniture. For many families, pets are the equivalent of children and must be granted more consideration by courts to ensure that they will be properly cared for after a divorce. It observed that in "2017, Alaska became the first state in the country to require courts to consider the welfare of household pets when determining custody of such pets in divorce proceedings. It is now time for New York to pass similar legislation." It appears that the sponsors believed that if it is good for Alaska, it is good for New York. While companion animals have come to be considered “a special category of property “and the Appellate Division has pointed out in dicta that “the courts have recognized the “cherished status” accorded to pets in our society” under New York law dogs and cats are still considered personal property. Dogs and cats are chattels. as are other animals. That is why Courts “deal with pets in divorce proceedings as they do with personal property.” The effect of Domestic Relations Law §236 (B)(5)(d) (14) is to require the courts to take into consideration the best interests of personal property when awarding its possession to either spouse. That appears to be a task that courts are not equipped to handle. Following Domestic Relations Law §236 (B)(5)(d) (14) to its logical or illogical conclusion, it appears that the parties to a matrimonial action involving a companion animal may be required to provide pre-trial disclosure under CPLR 3101(d)(i) of the identity of pet experts and the subject matter on which each expert is expected to testify and permit the parties to call experts at trial to testify as to the best interests of their dog or cat. Domestic Relations Law §236 (B)(5)(d) (14) requires courts to consider the “best interest of companion animals” when awarding possession of the animal during divorce or separation proceedings. The best interest analysis in dog custody case has been rejected for good reasons by some lower courts. The Supreme Court in New York county has said that “…the wholesale application of the practices and principles associated with child custody cases to dog custody cases is unworkable and unwarranted. …[I]t is impossible to truly determine what is in a dog's best interests. …, Too, there is no proven or practical means of gauging a dog's happiness or its feelings about a person or a place other than, perhaps, resorting to the entirely unscientific method of watching its tail wag. The subjective factors that are key to a best interests analysis in child custody…are, for the most part, unascertainable when the subject is an animal rather than a human…[I]t is highly questionable whether significant resources should be expended and substantial time spent on such endeavors. It is no secret that our courts are overwhelmed with child custody cases, cases in which the happiness and welfare of our most precious commodity, children, are at stake. To allow full-blown dog custody cases, complete with canine forensics and attorneys representing not only the parties but the dog itself, would further burden the courts to the detriment of children. Such a drain of judicial resources is unthinkable. Domestic Relations Law §236 (B)(5)(d)(14) and (15), effective October 25, 2021 read as follows: (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. Laws of 2021, Ch 437, §1 amended the Domestic Relations Law to add Domestic Relations Law § 240-d. Laws of 2021, Ch 437, §1 amended the Domestic Relations Law to add Domestic Relations Law § 240-d. Support orders for certain adult dependents, effective October 8, 2021 to provide that 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 court that the person is developmentally disabled as defined under subdivision twenty-two of section 1.03 of the mental hygiene law, resides with the person seeking such support, and is principally dependent on such person for maintenance. A finding of a developmental disability shall be supported by a diagnosis and accompanying report of a physician, licensed psychologist, registered professional nurse and certain other professionals. The purpose of this legislation is to aid families and dependent adults who have surpassed the age of majority for child support, but have developmental disabilities that necessitate a living allowance. This award amount would be at the discretion of the Court, where the individual has a diagnosis of a developmental disability, as defined in the Mental Hygiene Law, resides with the person seeking the support, and is principally dependent on the person for maintenance. (See 2021 NY Legis Memo 437) Domestic Relations Law § 240-d provides: 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 court that the person is developmentally disabled as defined in subdivision twenty-two of section 1.03 of the mental hygiene law, resides with the person seeking such support, and is principally dependent on such person for maintenance. A finding of a developmental disability shall be supported by a diagnosis and accompanying report of a physician, licensed psychologist, registered professional nurse, licensed clinical social worker or a licensed master social worker under the supervision of a physician, psychologist or licensed clinical social worker authorized to practice under title eight of the education law, and acting within their lawful scope of practice. 2. Upon petition brought by such person, the court shall make its award for support for such individual with a developmental disability in accordance with the provisions of subdivision one-b of section two hundred forty of this article. In addition to the provisions of subdivision one-b of section two hundred forty of this article, the court may consider whether the financial responsibility of caring for the individual has been unreasonably placed on one parent when determining the support obligation. The duration of time the court may use when considering this factor shall be limited to the time period from when the child turned twenty-one until the individual turns twenty-six. If a child support order ended at the age of eighteen then such time period shall be from when the child turned eighteen until the individual turns twenty-six. 3. The court has jurisdiction to determine proceedings brought by petition and order to show cause, for the determination of support of such adult dependents, as well as to enforce or modify orders or judgments. 4. The court shall have discretion to order the payor party to make support payments either to the petitioner or to the trustee of an “exception trust” as defined in 42 U.S.C. 1396p(d)(4)(A) and (C), clause (iii) of subparagraph two of paragraph (b) of subdivision two of section three hundred sixty-six of the social services law, and section 7-1.12 of the estates, powers and trusts law if such direction would assist in maximizing assistance to the child. 5. Except where inconsistent with this section, all provisions of this article relating to orders of child support shall apply to all orders of support for adults with developmental disabilities. (Added L.2021, c. 437, § 1, eff. Oct. 8, 2021.) Laws of 2021, Ch 437 amended the Family Court Act, to add Family Court Act § 413-b effective October 8, 2021 Laws of 2021, Ch 437 amended the Family Court Act, to add Family Court Act § 413-b effective October 8, 2021 to provide that 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 court that the person is developmentally disabled as defined under subdivision twenty-two of section 1.03 of the mental hygiene law, resides with the person seeking such support, and is principally dependent on such person for maintenance. A finding of a developmental disability shall be supported by a diagnosis and accompanying report of a physician, licensed psychologist, registered professional nurse and certain other professionals Family Court Act § 413-b provides: § 413-b. 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 court that the person is developmentally disabled as defined under subdivision twenty-two of section 1.03 of the mental hygiene law, resides with the person seeking such support, and is principally dependent on such person for maintenance. A finding of a developmental disability shall be supported by a diagnosis and accompanying report of a physician, licensed psychologist, registered professional nurse, licensed clinical social worker or a licensed master social worker under the supervision of a physician, psychologist or licensed clinical social worker authorized to practice under title eight of the education law, and acting within their lawful scope of practice. 2. Upon petition brought by the parent or kinship caregiver of an adult child with a disability, the court shall make its award for support for such individual with a developmental disability in accordance with the provisions of subdivision one of section four hundred thirteen of this part. In addition to the provisions of subdivision one of section four hundred thirteen of this part, the court may consider whether the financial responsibility of caring for the individual has been unreasonably placed on one parent when determining the child support obligation. The duration of time the court may use when considering this factor shall be limited to the time period from when the child turned twenty-one until the individual turns twenty-six. If a child support order ended at the age of eighteen then such time period shall be from when the child turned eighteen until the individual turns twenty-six. 3. The court has jurisdiction to determine proceedings brought by petition and order to show cause, for the determination of support of such dependents, as well as to enforce or modify orders or judgments. 4. The court shall have discretion to order the payor party to make support payments either to the petitioner or to the trustee of an “exception trust” as defined in 42 U.S.C. 1396p(d)(4)(A) and (C), clause (iii) of subparagraph two of paragraph (b) of subdivision two of section three hundred sixty-six of the social services law, and section 7-1.12 of the estates, powers and trusts law if such direction would assist in maximizing assistance to the child. 5. Except where inconsistent with this section, all provisions of this article relating to orders of child support shall apply to all orders of support for adults with developmental disabilities. (Added L.2021, c. 437, § 2, eff. Oct. 8, 2021.) Laws of 2021, Ch 442 enacted the "Blind persons right to parent act" which amended the Domestic Relations Law and Family Court Act Laws of 2021, Ch 442 enacted the "Blind persons right to parent act" which amended the Domestic Relations Law and Family Court Act to prohibit the making of decisions concerning guardianship, custody or visitation or adoption petitions solely on the basis of a parent's, guardian's or custodian's blindness; prohibit the department of social services from denying, deciding or opposing a petition or request for guardianship, custody or visitation solely because the petitioner is blind and prohibit the department of social services from taking actions solely because a parent, custodian or guardian is blind. Became a law October 8, 2021. Effective 90 days after it became a law. Laws of 2021, Ch 442, § 3 amended the domestic relations law by adding a new section. Domestic Relations Law § 75-m to read as follows: § 75-m. Consideration of blindness during guardianship, custody or visitation proceedings. 1. The court may not deny or decide a petition for guardianship, custody or visitation 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 guardianship, custody or visitation is the subject of the peti- tion. 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. Laws of 2021, Ch 442, § 4 amended the domestic relations law by adding a new section. Domestic Relations Law § 111-d to read as follows: § 111-d. 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. Laws of 2021, Ch 442, § 5 amended the family court act by adding a new section, Family Court Act §643 to read as follows: § 643. 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. Laws of 2021, Ch 442, § 6 amended the family court act by adding a new section, Family Court Act § 658 to read as follows: § 658. Consideration of blindness during guardianship, custody or visitation proceedings. 1. The court may not deny or decide a petition for custody or visitation under this part or guardianship under part four of this article 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 guardianship, custody or visitation 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. Laws of 2021, Ch 442, § 7 amended the social services law by adding a new section, social services law §393 to read as follows: § 393. Consideration of blindness during guardianship, custody or adoption proceedings. 1. The department may not deny, decide or oppose a petition or request for guardianship, custody or visitation under this article solely on the basis that the petitioner, parent, guardian or custodian is blind. The blindness of the petitioner, parent, guardian or custodian shall be considered relevant only to the extent that the blindness affects the best interests of the child whose guardianship, custody or visitation is the subject of the petition. 2. The department shall not seek custody or guardianship of a child solely because the child's parent, guardian or custodian is blind. The blindness of the parent, guardian or custodian shall be considered rele- vant only to the extent that the blindness affects the best interests of the child whose guardianship, custody or visitation is the subject of the petition. 3. 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. Laws of 2021, Ch 456, amended Family Court Act§ 312.2 on October 8, 2021, effective 60 days after that date, to add subdivision (3) Laws of 2021, Ch 456, amended Family Court Act§ 312.2 on October 8, 2021, effective 60 days after that date, to added subdivision (3), in relation to execution of warrants in juvenile delinquency cases when family courts are closed. The "raise the age" legislation enacted in 2017 requires accused juvenile delinquents to be brought before available accessible magistrates, designated by each Appellate Division, for pre-petition hearings during evening, weekend and holiday hours when Family Courts are not in session. See Family Court Act §§ 305.2(4), 307.3(4) L. 2017, c. 59, part www, §§ 63, 65. This legislation amends Family Court Act § 312.2 to include similar provisions for juvenile delinquents returned on warrants when Family Courts are not in session. The legislation requires juveniles in such cases to be brought before "the most accessible magistrate, if any, designated by the appellate division." The magistrates would determine whether the juveniles would be released or detained and would then set a date for the juvenile to appear in Family Court, i.e., no later than the next day the Family Court is in session if the juvenile is detained and within ten court days if the juvenile is released. In determining whether the juvenile should be released, with or without conditions, or detained, the magistrate must apply the criteria in and issue the findings required by section 320.5 of the Family Court Act. In order that Family Court would be alerted to expect the case, the order of the magistrate must be immediately transmitted to it. (See 2021 NY Legis Memo 456) Family Court Act §312.2 subdivision 3 reads as follows: 3. A juvenile who is arrested pursuant to a warrant issued under this section must forthwith and with all reasonable speed be taken directly to the family court located in the county in which the warrant had been issued, or, when the family court is not in session, to the most acces- sible magistrate, if any, designated by the appellate division of the supreme court in the applicable department. If a juvenile is brought before an accessible magistrate, the magistrate shall set a date for the juvenile to appear in the family court in the county in which the warrant had been issued, which shall be no later than the next day the court is in session if the magistrate orders the juvenile to be detained and within ten court days if the magistrate orders the juvenile to be released. In determining whether the juvenile should be released, with or without conditions, or detained, the magistrate shall apply the criterion and issue the findings required by section 320.5 of this arti- cle. The magistrate shall transmit its order to the family court forth- with. Laws of 2021, Ch. 474, § 1, added amended the Family Court Act to add Family Court Act § 162-a, effective October 8, 2021 Laws of 2021, Ch. 474, § 1, added amended the Family Court Act to add Family Court Act § 162-a, effective October 8, 2021 to provide that except as otherwise provided in Family Court Act § 162-a, restraints on children under the age of twenty-one, including, but not limited to, handcuffs, chains, shackles, irons or straitjackets, are prohibited in the courtroom. The legislation provides that restraints are prohibited and must presumptively be removed upon entry of a juvenile into the courtroom) unless Family Court determines and explains on the record why restraints are "necessary to prevent: (1) physical injury by the child to himself or herself or another person; (2) physically disruptive courtroom behavior, as evidenced by a recent history of behavior that presented a substantial risk of physical harm to the child or another person where the behavior indicates a substantial likelihood of current physically disruptive courtroom behavior by the child; or (3) the child's flight from the courtroom, as evidenced by a recent history of absconding from the Court." Particular restraints permitted must be the "least restrictive alternative" and, in order to ensure due process, the child must be given an opportunity to he heard regarding a request to impose restraints. The legislation further provides that, in cases where the exception is invoked, only handcuffs or footcuffs may be used and hand- cuffs may not be joined to footcuffs. (See 2021 NY Legis Memo 474) Restrictions upon use of mechanical restraints on adult offenders in criminal trials has long been recognized as necessary to a fair trial. The US Supreme Court, in Deck v. Missouri, in rejecting routine shackling as a violation of due process, noted its origins in common law: Blackstone's 1769 Commentaries on the Laws of England noted that "it is laid down in our ancient books" that a defendant "must be brought to the bar without irons, or in any manner of shackled or bonds, unless there be evident dangers of an escape." 544 U.S. 622, 626 (2005). Following Deck, the New York Court of Appeals, in People v. Best, 39 N.Y.3d 739 (2012), criticized a defendant's shackling in a bench trial in the absence of a showing of necessity on the record, noting that "judges are human, and the sight of a defendant in restraints may unconsciously influence even a judicial factfinder," in addition to harming the defendant and the public's perception of both the defendant "and of criminal proceedings generally." Chief Judge Lippman, dissenting from the majority's conclusion that use of restraints constituted harmless error, observed that "(t)he unwarranted shackling of defendants strikes at the very heart of the right to be presumed innocent. Visible shackles give the impression to any trier of fact that a person is violent, a miscreant, and cannot be trusted." More recently, in United States v. Haynes, 729 F.3d 178, 188 (2nd Cir., 2013), the US Court of Appeals, Second Circuit, held that: It is beyond dispute that a defendant may not be tried in shackles unless the trial judge finds on the record that it is necessary to use such a restraint as a last resort to satisfy a compelling interest such as preserving the safety of persons in the courtroom. Arguments for restricting use of restraints upon adult offenders are even more compelling with respect to children. Not only is use of shackles an infringement upon the presumption of innocence at the fact-finding (trial) stage, it also impedes the ability and willingness of youth to participate in court proceedings, including dispositional and permanency hearings, and to engage in planning for their futures. Juveniles are critical participants in such hearings. See Family Court Act §§ 341.2(1), 355.5(8), 756-a(d-1). (See 2021 NY Legis Memo 474) The Legislation solely addresses courtroom appearances. A similar presumption currently applies to use of restraints during transportation of juveniles from New York State Office of Children and Family Services facilities pursuant to an injunction issued in the class action case of Matter of John F. v. Carrion, -Misc.3d-, N.Y.L.J., Jan. 27, 2010 (S.Ct., N.Y.Co., 2010). (See 2021 NY Legis Memo 474) Family Court Act § 162-a provides: (a) Use of restraints. Except as otherwise provided in subdivision (b) of this section, restraints on children under the age of twenty-one, including, but not limited to, handcuffs, chains, shackles, irons or straitjackets, are prohibited in the courtroom. (b) Exception. Permissible physical restraint consisting of handcuffs or footcuffs that shall not be joined to each other may be used in the courtroom during a proceeding before the court only if the court determines on the record, after providing the child with an opportunity to be heard, why such restraint is the least restrictive alternative necessary to prevent: (1) physical injury to the child or another person by the child; (2) physically disruptive courtroom behavior by the child, as evidenced by a recent history of behavior that presented a substantial risk of physical harm to the child or another person, where such behavior indicates a substantial likelihood of current physically disruptive courtroom behavior by the child; or (3) flight from the courtroom by the child, as evidenced by a recent history of absconding from the court. (Added L.2021, c. 474, § 1, effective Oct. 8, 2021.) September 16, 2021 New section 205.18 of the Uniform Rules for the Family Court, effective September 29, 2021: Section 205.18. Hearings and Submission of Reports and Assessments on the Placement of a Child in a Qualified Residential Treatment Program (1) The Commissioner of the local social services district or other agency requesting placement (hereafter “Commissioner”) shall file a petition or a motion requesting a court hearing on the placement of a child in a “Qualified residential treatment program” prior to or no later than five days after entry of the child into the placement. The Commissioner shall serve, send or securely transmit notice to all counsel, the parties, the attorney for the child and, if the child is ten years of age or older, the child, of the date, time and court part in which the case will be heard. At that appearance, the court shall either make a determination as to the appropriateness of and need for the placement or schedule a hearing for such determination. The determination shall be made no later than 60 days of the placement of the child in the “qualified residential treatment program.” (2) The Commissioner shall arrange for the completion of an assessment and report by a “qualified individual” no later than 30 days after the date of the child's placement in the “qualified residential treatment program” and shall submit it to the court and serve. send or securely transmit it to counsel, the parties and the attorney no later than five days after completion of the report by the “qualified individual” but in no event less than ten days prior to the first scheduled hearing at which a determination will be made. (3) The report and assessment shall include: (a) The qualifications and training of the “qualified individual” preparing the report and assessment, including information as to affiliations, if any, with any state, local or authorized agency in the State of New York that provides placement services for children; (b) The names of all caseworkers, mental health professionals and family members who contributed to the report and assessment as members of the team;, including any members suggested by the child if the child is fourteen years of age or older; (c) An evaluation of the strengths and needs of the child and the need for the child's placement in the designated qualified residential treatment facility (hereinafter “facility”); (d) The reasons why the needs of the child cannot be appropriately and effectively met in a kinship or non-kinship foster home placement; (e) The specific facility and the level of care in which the child is or will be placed; (f) A description of the designated facility and the specific treatment services offered to the child at that facility; (g) The short term and long-term goals of the child's placement and how the placement at the designated facility meets those goals; (h) How the placement in the specific facility and level of care is the most effective and appropriate placement in the least restrictive environment for the child; (i) Documentation of the time frame and plan for the child's discharge from the qualified residential treatment facility; and (j) Any mental health diagnosis and the basis for that diagnosis, as well as a summary of any diagnostic and treatment records, regarding the child within the past three years: provided that the diagnosis and treatment records shall be provided upon the request of counsel for a party, the attorney for the child or the court. (4) If the court denies the Commissioner's application for the child to be placed in the specific “qualified residential treatment program” and/or level of care recommended by the Commissioner, the Commissioner shall submit a new report and assessment within ten days of the court's denial. The new report and assessment shall include a short term and long-term plan for the child including an alternative placement and/or return to parent/guardian. If the alternative placement is a qualified residential treatment program. a new assessment by a “qualified individual” must contain the information required by subdivision three of this section and must be provided to the court and all parties, including the attorney for the child, no later than five days after completion of the report by the “qualified individual” but in no event less than ten days prior to the adjourned date. In such a case, the court shall make a determination of approval or disapproval of the placement in the “qualified residential treatment program.” not later than 60 days after the placement of the child in such program. (5) A court review as to whether the child's placement in the “qualified residential treatment program” remains necessary shall be scheduled by the court no later than the next permanency or extension of placement hearing. The Commissioner shall serve, send or securely transmit notice to the parties, counsel and attorney for the child and shall submit a new report and assessment within five days of its completion but not less than ten days prior to the scheduled hearing. At each permanency or extension of placement hearing following the approval of the placement in the “qualified residential treatment program.” the commissioner of the local social services district shall provide a new report and assessment including the information required by subdivision three of this section. The new report and assessment submitted for each such hearing shall include the information required by subdivision three of this section. August 16, 2021 Laws of 2021, Ch 306 amended CPLR 4510 effective July 23, 2021 to establish a privilege for domestic violence advocates CPLR § 4510. Rape crisis counselor or domestic violence advocate (a) Definitions. When used in this section, the following terms shall have the following meanings: 1. “Rape crisis program” means any office, institution or center which has been approved pursuant to subdivision fifteen of section two hundred six of the public health law, as added by chapter 432 of the laws of 1993, offering counseling and assistance to clients concerning sexual offenses, sexual abuses or incest. 2. “Rape crisis counselor” means any person who has been certified by an approved rape crisis program as having satisfied the training standards specified in subdivision fifteen of section two hundred six of the public health law, as added by chapter 432 of the laws of 1993, and who, regardless of compensation, is acting under the direction and supervision of an approved rape crisis program. 3. “Client” means (i) any person who is seeking or receiving the services of a rape crisis counselor for the purpose of securing counseling or assistance concerning any sexual offenses, sexual abuse, incest or attempts to commit sexual offenses, sexual abuse, or incest, as defined in the penal law; or (ii) any victim of domestic violence as defined in section four hundred fifty-nine-a of the social services law. 4. “Domestic violence program” means a residential program for victims of domestic violence or a non-residential program for victims of domestic violence as defined in section four hundred fifty-nine-a of the social services law or any similar program operated by an Indian tribe, as defined by section two of the Indian law. 5. “Domestic violence advocate” means any person who is acting under the direction and supervision of a licensed and approved domestic violence program and has satisfied the training standards required by the office of children and family services. (b) Confidential information privileged. A rape crisis counselor or domestic violence advocate shall not be required to disclose a communication made by his or her client to him or her, or advice given thereon, in the course of his or her services nor shall any clerk, stenographer or other person working for the same program as the rape crisis counselor or domestic violence advocate or for the rape crisis counselor or domestic violence advocate be allowed to disclose any such communication or advice given thereon nor shall any records made in the course of the services given to the client or recording of any communications made by or to a client be required to be disclosed, nor shall the client be compelled to disclose such communication or records, except: 1. that a rape crisis counselor or domestic violence advocate may disclose such otherwise confidential communication to the extent authorized by the client; 2. that a rape crisis counselor or domestic violence advocate shall not be required to treat as confidential a communication by a client which reveals the intent to commit a crime or harmful act; 3. that a domestic violence advocate shall not be required to treat as confidential a communication by a client which reveals a case of suspected child abuse or maltreatment pursuant to title six of article six of the social services law; 4. in a case in which the client waives the privilege by instituting charges against the rape crisis counselor or domestic violence advocate or the rape crisis program or domestic violence program and such action or proceeding involves confidential communications between the client and the rape crisis counselor or domestic violence advocate. (c) Who may waive the privilege. The privilege may only be waived if the client, the personal representative of a deceased client, or, in the case of a client who has been adjudicated incompetent or for whom a conservator has been appointed, the committee or conservator provides the rape crisis counselor or domestic violence advocate with informed, written and reasonably time-limited consent. (d) Limitation on waiver. A client who, for the purposes of obtaining compensation under article twenty-two of the executive law or insurance benefits, authorizes the disclosure of any privileged communication to an employee of the office of victim services or an insurance representative shall not be deemed to have waived the privilege created by this section. (Added L.1993, c. 432, § 1. Amended L.2010, c. 56, pt. A-1, § 49, eff. June 22, 2010; L.2021, c. 309, § 1, eff. July 23, 2021.) Laws of 2021, Ch 352, §6 amended CPLR 4519 effective August 2, 2021 replacing "mentally ill" and adding "with a mental illness." CPLR 4519 was amended to read as follows: § 4519. Personal transaction or communication between witness and decedent or person with a mental illness. Upon the trial of an action or the hearing upon the merits of a special proceeding, a party or a person interested in the event, or a person from, through or under whom such a party or interested person derives his interest or title by assignment or otherwise, shall not be examined as a witness in his own behalf or interest, or in behalf of the party succeeding to his title or interest against the executor, administrator or survivor of a deceased person or the committee of a person with a mental illness, or a person deriving his title or interest from, through or under a deceased person or person with a mental illness, by assignment or otherwise, concerning a personal transaction or communication between the witness and the deceased person or person with a mental illness, except where the executor, admin- istrator, survivor, committee or person so deriving title or interest is examined in his own behalf, or the testimony of the person with a mental illness or deceased person is given in evidence, concerning the same transaction or communication. A person shall not be deemed interested for the purposes of this section by reason of being a stockholder or officer of any banking corporation which is a party to the action or proceeding, or interested in the event thereof. No party or person interested in the event, who is otherwise competent to testi- fy, shall be disqualified from testifying by the possible imposition of costs against him or the award of costs to him. A party or person inter- ested in the event or a person from, through or under whom such a party or interested person derives his interest or title by assignment or otherwise, shall not be qualified for the purposes of this section, to testify in his own behalf or interest, or in behalf of the party succeeding to his title or interest, to personal transactions or commu- nications with the donee of a power of appointment in an action or proceeding for the probate of a will, which exercises or attempts to exercise a power of appointment granted by the will of a donor of such power, or in an action or proceeding involving the construction of the will of the donee after its admission to probate. Nothing contained in this section, however, shall render a person incompetent to testify as to the facts of an accident or the results therefrom where the proceeding, hearing, defense or cause of action involves a claim of negligence or contributory negligence in an action wherein one or more parties is the representative of a deceased or incompetent person based upon, or by reason of, the operation or owner- ship of a motor vehicle being operated upon the highways of the state, or the operation or ownership of aircraft being operated in the air space over the state, or the operation or ownership of a vessel on any of the lakes, rivers, streams, canals or other waters of this state, but this provision shall not be construed as permitting testimony as to conversations with the deceased. Laws of 2021, Ch 352 amended domestic relations law 140, 141 and 142 effective August 2, 2021 replacing mentally ill to with a developmental illness and replacing mentally retarded with a developmental disability. Domestic Relations Law §140, subdivision (c) was amended to read as follows: (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. Laws of 2021, Ch 352, § 9 amended Domestic Relations Law §141 effective August 2, 2021 replacing "mentally ill" with with a mental illness and relacing is incurably mentally ill to have an incurable mental Illness. " Domestic Relations Law §141 was amended to read as follows: § 141. 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 thereaft- er otherwise directed by the court. Any security exacted for the suit- able 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 examina- tion 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 depart- ment 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 physi- cians so appointed shall be a member of the resident medical staff of such hospital designated by the director thereof. If the alleged incur- ably [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 compara- ble 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 coun- try 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 train- ing 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 pros- ecute 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 plain- tiff. 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. Laws of 2021, Ch 352, § 10 amended domestic relations law § 142 effective August 2, 2021, replacing "mentally ill" with with a developmental disability or person with a mental illness and adding "with a mental illness." Domestic Relations Law § 142 was amended to read as follows: § 142. 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. Recent Court Rules Amendments The Uniform Civil Rules for the Supreme Court and the County Court were amended effective February 1, 2021. (See AO/270/2020). The Amendments and additions to the Uniform Rules which are applicable in matrimonial actions are below. 22 NYCRR 202-a - Motions 22 NYCRR 202.8 (a)) provides that counsel “should” use tabs on hard or working copies when submitting papers containing exhibits. Copies must be legible. If a document to be annexed to an affidavit or affirmation is voluminous and only discrete portions are relevant to the motion, counsel must attach excerpts and submit the full exhibit separately. 22 NYCRR 202.8-a provides: Motion in General (a) Form of Motion Papers. The movant shall specify in the notice of motion, order to show cause, and in a concluding section of a memorandum of law, the exact relief sought. Regardless of whether the papers are filed electronically or in hard copy or as working copies, counsel must submit as part of the motion papers copies of all pleadings and other documents as required by the CPLR and as necessary for an informed decision on the motion (especially on motions pursuant to CPLR 3211 and 3212). Counsel should use tabs on hard or working copies when submitting papers containing exhibits. Copies must be legible. If a document to be annexed to an affidavit or affirmation is voluminous and only discrete portions are relevant to the motion, counsel shall attach excerpts and submit the full exhibit separately. Documents in a foreign language shall be translated as required by CPLR 2101(b). Whenever reliance is placed upon a decision or other authority not readily available to the court, a copy of the case or of pertinent portions of the authority shall be submitted with the motion papers. (b) Proposed orders. When appropriate, proposed orders should be submitted with motions, e.g., motions to be relieved, pro hac vice admissions, open commissions, etc. No proposed order should be submitted with motion papers on a dispositive motion. (c) Adjournment of Motions. Unless the court orders otherwise, no motion may be adjourned on consent more than three times or for a cumulative total of more than 60 days.(Added on Dec. 29. 2020, effective February 1, 2021) 22 NYCRR 202.8-b - Word Count limits and Certification. 22 NYCRR 202.8-b (a) limits the number of words in documents submitted to the court on motions. It provides that unless otherwise permitted by the court, affidavits, affirmations, briefs and memoranda of law in chief are limited to 7,000 words each. Reply affidavits, affirmations, and memoranda must be no more than 4,200 words. The word count does not include the caption, table of contents, table of authorities, and signature block. (See 22 NYCRR 202.8-b (b)). The Uniform rules provide that reply affidavits, affirmations, and memoranda may not contain any arguments that do not respond or relate to those made in the memoranda in chief. (See 22 NYCRR 202.8-b (a)). 22 NYCRR 202.8-b (d) provides that the court may, upon oral or letter application on notice to all parties permit the submission of affidavits, affirmations, briefs or memoranda which exceed the limitations set forth in 22 NYCRR 202.8-b (a). Every brief, memorandum, affirmation, and affidavit must include a certification at the end of the document by the counsel who has filed the document setting forth the number of words in the document and certifying that the document complies with the word count limit. The counsel certifying compliance may rely on the word count of the word-processing system used to prepare the document. (See 22 NYCRR 202.8-b (c)) 22 NYCRR 202.8-b provides: Length of Papers (a) Unless otherwise permitted by the court: (i) affidavits, affirmations, briefs and memoranda of law in chief shall be limited to 7,000 words each; (ii) reply affidavits, affirmations, and memoranda shall be no more than 4,200 words and shall not contain any arguments that do not respond or relate to those made in the memoranda in chief. (b) For purposes of paragraph (a) above, the word count shall exclude the caption, table of contents, table of authorities, and signature block. (c) Every brief, memorandum, affirmation, and affidavit shall include on a page attached to the end of the applicable document, a certification by the counsel who has filed the document setting forth the number of words in the document and certifying that the document complies with the word count limit. The counsel certifying compliance may rely on the word count of the word-processing system used to prepare the document. (d) The court may, upon oral or letter application on notice to all parties permit the submission of affidavits, affirmations, briefs or memoranda which exceed the limitations set forth in paragraph (a) above. In the event that the court grants permission for an oversize submission, the certification required by paragraph (b) above shall set forth the number of words in the document and certify compliance with the limit, if any set forth by the court. (Added on Dec. 29. 2020, effective February 1, 2021) 22 NYCRR 202.8-c - Sur-reply papers, including correspondence, addressing the merits of a motion are not permitted. No response is necessary. 22 NYCRR 202.8-c provides: Sur-Reply and Post-Submission Papers Absent express permission in advance, sur-reply papers, including correspondence, addressing the merits of a motion are not permitted, except that counsel may inform the court by letter of the citation of any post-submission court decision that is relevant to the pending issues, but there shall be no additional argument. Materials submitted in violation hereof will not be read or considered. Opposing counsel who receives a copy of materials submitted in violation of this Rule shall not respond in kind. (Added on Dec. 29. 2020, effective February 1, 2021) 22 NYCRR 202.8-d - Motions shall be brought on by order to show cause only when there is genuine urgency. Reply papers not permitted absent advance permission 22 NYCRR 202.8-d provides: Orders to Show Cause Motions shall be brought on by order to show cause only when there is genuine urgency (e.g., applications for provisional relief), a stay is required or a statute mandates so proceeding. See Section 202.8-e. Absent advance permission of the court, reply papers shall not be submitted on orders to show cause. (Added on Dec. 29. 2020, effective February 1, 2021) 22 NYCRR 202.8-e - Absent a showing of significant prejudice temporary restraining order should not be issued ex parte. Unless excused by the court, applicant must give notice of the time, date and place that the application The current version of 22 NYCRR &s;§202.7, which has been in effect since 2007 provides that any application for temporary injunctive relief, including but not limited to a motion for a stay or a temporary restraining order, must contain, in addition to the other information required by the section, an affirmation demonstrating there will be significant prejudice to the party seeking the restraining order by giving of notice. In the absence of a showing of significant prejudice, the affirmation must demonstrate that a good faith effort has been made to notify the party against whom the temporary restraining order is sought of the time, date and place that the application will be made in a manner sufficient to permit the party an opportunity to appear in response to the application. (22 NYCRR &s;§202.7(f)). 22 NYCRR 202.8-e appears to duplicate 22 NYCRR 202.7 (f). It provides that unless the moving party can demonstrate significant prejudice because of giving notice, or that notice could not be given despite a good faith effort to provide notice, a temporary restraining order should not be issued ex parte. Unless excused by the court, the applicant must give notice of the time, date and place that the application will be made in a manner, and provide copies of all supporting papers, to the opposing parties sufficiently in advance to permit them an opportunity to appear and contest the application. Any application for temporary injunctive relief, including but not limited to a motion for a stay or a temporary restraining order, must contain, in addition to the other information required by 22 NYCRR 202.8-e, an affirmation demonstrating either that: (a) notice has been given; or (b) notice could not be given despite a good faith effort to provide it or (c) there will be significant prejudice to the party seeking the restraining order by giving of notice. (22 NYCRR 202.8-e). 22 NYCRR 202.8-e provides: Temporary restraining order should not be issued ex parte. Unless excused by the court, the applicant must give notice of the time, date and place that the application Unless the moving party can demonstrate significant prejudice by reason of giving notice, or that notice could not be given despite a good faith effort to provide notice, a temporary restraining order should not be issued ex parte. Unless excused by the court, the applicant must give notice of the time, date and place that the application will be made in a manner, and provide copies of all supporting papers, to the opposing parties sufficiently in advance to permit them an opportunity to appear and contest the application. Any application for temporary injunctive relief, including but not limited to a motion for a stay or a temporary restraining order, shall contain, in addition to the other information required by this section, an affirmation demonstrating either that: (a) notice has been given; or (b) notice could not be given despite a good faith effort to provide it or (c) there will be significant prejudice to the party seeking the restraining order by giving of notice. This subdivision shall not be applicable to orders to show cause or motions in special proceedings brought under Article 7 of the Real Property Actions and Proceedings Law, nor to orders to show cause or motions requesting an order of protection under section 240 of the Domestic Relations Law, unless otherwise ordered by the court. (Added on Dec. 29. 2020, effective February 1, 2021) 22 NYCRR 202.8-f - Oral Argument of Motions may be requested if not required by court. arguments may be conducted by the court by electronic means 22 NYCRR 202.8-f provides: Oral Argument (a) Each court or court part shall adopt a procedure governing request for oral argument of motions, provided that, in the absence of the adoption of such a procedure by a particular court or part, the provisions of paragraph (b) shall apply. The procedure to be adopted shall set forth whether oral argument is required on all motions or whether the court will determine, on a case-by-case basis, whether oral argument will be heard and how counsel shall request argument and, if oral argument is permitted, when counsel shall appear. (b) Any party may request oral argument of a motion by letter accompanying the motion papers. Notice of the date selected by the court shall be given, if practicable, at least 14 days before the scheduled oral argument. At that time, counsel shall be prepared to argue the motion, discuss resolution of the issue(s) presented and/or schedule a trial or hearing. (c) Oral arguments may be conducted by the court by electronic means. (Added on Dec. 29. 2020, effective February 1, 2021) 22 NYCRR 202.8-g. Motions for Summary Judgment must have annexed a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried. 22 NYCRR 202.8-g provides Motions for Summary Judgment; Statements of Material Facts (a) Upon any motion for summary judgment, other than a motion made pursuant to CPLR 3213, there shall be annexed to the notice of motion a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried. (b) In such a case, the papers opposing a motion for summary judgment shall include a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party and, if necessary, additional paragraphs containing a separate short and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried. (c) Each numbered paragraph in the statement of material facts required to be served by the moving party will be deemed to be admitted unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party. (d) Each statement of material fact by the movant or opponent pursuant to subdivision (a) or (b), including each statement controverting any statement of material fact, must be followed by citation to evidence submitted in support of or in opposition to the motion. (Added on Dec. 29. 2020, effective February 1, 2021) August 5, 2021 Laws of 2021, Ch 352, §6 amended CPLR 4519 effective August 2, 2021 replacing "mentally ill" and adding "with a mental illness." CPLR 4519 was amended to read as follows: § 4519. Personal transaction or communication between witness and decedent or person with a mental illness. Upon the trial of an action or the hearing upon the merits of a special proceeding, a party or a person interested in the event, or a person from, through or under whom such a party or interested person derives his interest or title by assignment or otherwise, shall not be examined as a witness in his own behalf or interest, or in behalf of the party succeeding to his title or interest against the executor, administrator or survivor of a deceased person or the committee of a person with a mental illness, or a person deriving his title or interest from, through or under a deceased person or person with a mental illness, by assignment or otherwise, concerning a personal transaction or communication between the witness and the deceased person or person with a mental illness, except where the executor, admin- istrator, survivor, committee or person so deriving title or interest is examined in his own behalf, or the testimony of the person with a mental illness or deceased person is given in evidence, concerning the same transaction or communication. A person shall not be deemed interested for the purposes of this section by reason of being a stockholder or officer of any banking corporation which is a party to the action or proceeding, or interested in the event thereof. No party or person interested in the event, who is otherwise competent to testi- fy, shall be disqualified from testifying by the possible imposition of costs against him or the award of costs to him. A party or person inter- ested in the event or a person from, through or under whom such a party or interested person derives his interest or title by assignment or otherwise, shall not be qualified for the purposes of this section, to testify in his own behalf or interest, or in behalf of the party succeeding to his title or interest, to personal transactions or commu- nications with the donee of a power of appointment in an action or proceeding for the probate of a will, which exercises or attempts to exercise a power of appointment granted by the will of a donor of such power, or in an action or proceeding involving the construction of the will of the donee after its admission to probate. Nothing contained in this section, however, shall render a person incompetent to testify as to the facts of an accident or the results therefrom where the proceeding, hearing, defense or cause of action involves a claim of negligence or contributory negligence in an action wherein one or more parties is the representative of a deceased or incompetent person based upon, or by reason of, the operation or owner- ship of a motor vehicle being operated upon the highways of the state, or the operation or ownership of aircraft being operated in the air space over the state, or the operation or ownership of a vessel on any of the lakes, rivers, streams, canals or other waters of this state, but this provision shall not be construed as permitting testimony as to conversations with the deceased. Laws of 2021, Ch 352 amended domestic relations law 140, 141 and 142 effective August 2, 2021 replacing mentally ill to with a developmental illness and replacing mentally retarded with a developmental disability. Domestic Relations Law §140, subdivision (c) was amended to read as follows: (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. Laws of 2021, Ch 352, § 9 amended Domestic Relations Law §141 effective August 2, 2021 replacing "mentally ill" with with a mental illness and relacing is incurably mentally ill to have an incurable mental Illness. " Domestic Relations Law §141 was amended to read as follows: § 141. 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 thereaft- er otherwise directed by the court. Any security exacted for the suit- able 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 examina- tion 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 depart- ment 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 physi- cians so appointed shall be a member of the resident medical staff of such hospital designated by the director thereof. If the alleged incur- ably [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 compara- ble 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 coun- try 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 train- ing 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 pros- ecute 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 plain- tiff. 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. Laws of 2021, Ch 352, § 10 amended domestic relations law § 142 effective August 2, 2021, replacing "mentally ill" with with a developmental disability or person with a mental illness and adding "with a mental illness." Domestic Relations Law § 142 was amended to read as follows: § 142. 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. August 1, 2021 Laws of 2021, Chapter 306, effective August 22, 2021, amended several provisions of the Domestic Relations Law to raise the age of consent for purposes of marriage to the age of eighteen. Domestic Relations Law §15-a was amended Laws of 2021, Chapter 306, Section 1, to prohibit any marriage in which either party is under the age of eighteen. The word “seventeen” was replaced with the word “eighteen.” It was amended to read as follows: § 15-a. 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. Domestic Relations Law §13-b was amended Laws of 2021, Chapter 306, Section 2, to conform it with raising the age of marriage to eighteen, by removing the prior provision stating that parties must be at least seventeen in order for clergyman or magistrate to solemnize such marriages without waiting specified periods of time. It was amended to read as follows: § 13-b. 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 three hundred fifty-four-d of the executive 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 or magistrate 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 or magistrate 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 or magistrate 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 or judge 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. Domestic Relations Law §25 was amended Laws of 2021, Chapter 306, Section 3, to conform it with raising the age of marriage to eighteen by removing a provision that referred to marriages between minors or with a minor. It was amended to read as follows: § 25. 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. Domestic Relations Law §7 was amended by Laws of 2021, Chapter 306, Section 4, removing text in order to make any marriage where either party is under the age of eighteen voidable. It was amended to read as follows: 1. Is under the age of legal consent, which is eighteen years; Domestic Relations Law §15 subdivision 3, which relates to criteria that must be met prior to a town or city clerk issued a marriage license to a couple when either party is less than eighteen years of age but at least seventeen was repealed by Laws of 2021, Chapter 306, Section 5. Domestic Relations Law §11-a, subdivision 1(c), which relates to the duty of a city clerk to solemnize the rites of matrimony between parties in which one or both individuals are under eighteen was repealed by Laws of 2021, Chapter 306, Section 6. Domestic Relations Law §84 relating to the impact on a guardianship of a marriage by a person prior to reaching the age of eighteen was repealed by Laws of 2021, Chapter 306, Section 7. Laws of 2021, Chapter 306, Section 8 states that this act will take effect, thirty days after it becomes law, it will apply to licenses issued after such date and to marriages that had not been solemnized prior to said date. Laws of 2021, Ch 306 became a law on July 22, 2021. New and Amended Local Rules of the Appellate Division, First Department Updated June 25, 2021 Hard Copy Filing - NEW Briefs, Records and Appendices. Commencing with appeals perfected for the September 2021 Term, in addition to electronic filing, the Court will require the original and one copy (for a total of two hard copies) of records, appendices and briefs in civil appeals only to be filed with the clerk. In all e-filed matters, the filing of such hard copies shall be delayed until receipt of email notification that the clerk has reviewed and approved the electronic version of the document. Once approved, the hard copies shall be filed within two business days of the notification (see Rule 1245.6[2]). Motions and Original Proceedings. Motions and applications, and original proceedings shall be filed in digital form only (via NYSCEF or Digital Submission Portal). No hard copy submission is required. Hyperlinks – NEW Commencing with all appeals perfected for the September 2021 Term, the Court will accept, on a voluntary basis, briefs with hyperlinks to cited primary authorities (constitutions, case law, statutes, rules and regulations) available on Westlaw, Lexis, or state or federal government websites. Citations to secondary and other sources should not be hyperlinked. All citations (with or without hyperlinks) shall appear in standard citation form. Electronic Filing Matters Subject to Mandatory E-filing All matters before the First Department, except original proceedings and attorney matters, are subject to mandatory e-filing via NYSCEF in accordance with the procedural and electronic filing rules of the Court. See https://nycourts.gov/courts/AD1/PDFs/AD1-2.0AugustUpdate2021.pdf (Last accessed July 12, 2021) Amended Local Rules of the Appellate Division, Third Department as of November 2, 2020 - 22 NYCRR 850.4 (a) Rule 1250.9 of the Practice Rules of the Appellate Division requires parties to submit a digital copy of all briefs, records and appendices, in addition to hard copies. As of November 2, 2020, Rule 850.4 (a) of the Rules of Practice of the Third Department requires digital copies of all papers related to motions and applications, in addition to hard copies. These Rules apply to all matters, regardless of whether the matter is subject to mandatory e-filing. 22 NYCRR 1250.1 (a) (12) defines "digital copy" as "a document in text-searchable portable document format and otherwise compliant with the technical requirements established by the court." E-filed matters satisfy the "digital copy" requirement 22 NYCRR 1250.9. "Pro se or unrepresented parties shall be exempt from the requirements of filing a digital copy of any brief or other document" (22 NYCRR 1250.9 [e]), including motions and applications (see 22 NYCRR 850.4 [a]). For all non-E-filed matters, digital copies shall be submitted through the Court's Digital Submission Portal. The Third Department requires digital copies to comply with the technical requirements as set forth in Attachment A of the E-filing Rules of the Appellate Division. Use the links below to submit digital copies. Filers who are using the digital portal for the first time must request access to use the system. (See https://www.nycourts.gov/ad3/Clerk/Index.html ) Last accessed July 11, 2021) Amended Local Rules of the Appellate Division: Fourth Department - 22 NYCRR 1000.4 – July 1, 2020 Digital Submission of Motion Papers in Non efiled cases Effective July 1, 2020, the local rules of the Appellate Division, Fourth Department (22 NYCRR Part 1000) have been amended to provide for digital submission of motion papers. The amended motion rule, new Rule 1000.4 (a), requires the submission of digital motion papers in non-e-filed cases, with an exception for exempt attorneys and parties, and dispenses with the requirement that a hard copy of such motion papers be filed. (See 22 NYCRR Part 1000.4) 22 NYCRR 1000.4 (a). In matters not subject to electronic filing, except as otherwise provided, all motion and application papers shall be submitted in digital format through the Court’s digital copy portal, and shall be served on all parties electronically to the extent practicable in accordance with 22 NYCRR 1250.1 (c)(4). Digital copies of motions and applications shall comply with the technical specifications for electronically filed documents (Attachment A to 22 NYCRR Part 1245). Where such papers are submitted in digital format, no hard copy submission is required. Exempt attorneys and exempt litigants, as defined in 22 NYCRR 1245.4, are exempt from the digital filing requirement and must file original papers in hard copy in accordance with 22 NYCRR 1250.4 (a). Electronic filing (e-filing): Fourth Department New Rule 22 NYCRR 1000.17 - July 1, 2020 Mandatory e-filing in Family Court Effective July 1, 2020, the local rules of the Appellate Division, Fourth Department (22 NYCRR Part 1000) have been amended to provide for mandatory e-filing in Family Court and criminal matters, Rule 1000.17, addresses the application of the e-filing rules to assigned counsel, requires the e-filing of a specified appendix in both Family Court and criminal matters, and encourages e-filing of court transcripts where possible. The new rule also requires motions to be e-filed in Family Court and criminal matters, and dispenses with the requirement that a hard copy of such motions be filed. (See https://ad4.nycourts.gov/press/notices/5ef1db8ea5e5aa60dc973a3b (last accessed July 11, 2021) New and Amended Local Rules of the Appellate Division Fourth Department Effective April 1 2021[1] 1000.2 Designation of Case Types Subject to Electronic Filing Pursuant to 22 NYCRR 1245.2, to the extent not previously designated by the Court for mandatory electronic filing, all appeals filed with the Court in which a notice of appeal is filed on or after April 1, 2021, all matters transferred to the Court by order dated on or after April 1, 2021, and all special proceedings commenced in the Court on or after April 1, 2021 shall be designated for mandatory electronic filing and subject to 22 NYCRR Part 1245 and the Rules of Practice of this Court governing electronic filing. [2] 1000.4 Motions (a) Digital submissions required. In matters not subject to electronic filing, except as otherwise provided, all motion and application papers shall be submitted in digital format through the Court’s digital copy portal, and shall be served on all parties electronically to the extent practicable in accordance with 22 NYCRR 1250.1 (c) (4). Digital copies of motions and applications shall comply with the technical specifications for electronically filed documents (Attachment A to 22 NYCRR Part 1245). [3]Where such papers are submitted in digital format, no hard copy submission is required. Exempt attorneys and exempt litigants, as defined in 22 NYCRR 1245.4, are exempt from the digital filing requirement and must file original papers in hard copy in accordance with 22 NYCRR 1250.4 (a). (d) Family Court Act § 1114 and CPLR 5704 (a). Unless otherwise ordered by a Justice of this Court, an application for a stay pursuant to Family Court Act § 1114 or an application pursuant to CPLR 5704 (a) shall be made by order to show cause pursuant to 22 NYCRR 1250.4 (b). An application to extend a stay granted pursuant to Family Court Act § 1114 shall be made by motion on notice pursuant to 22 NYCRR 1250.4 (a). [4] 1000.7 Form and Content of Records and Appendices; Exhibits (b) Certification of record or appendix. An original record shall be certified either by: (1) a certificate of the appellant's attorney pursuant to CPLR 2105; (2) a certificate of the proper clerk; or (3) a stipulation in lieu of certification pursuant to CPLR 5532 or, if the parties are unable to stipulate, an order settling the record. [5] Any dispute over a certification of the record or appendix pursuant to 22 NYCRR 1250.7 (g) or this subdivision, [6] or the contents of a record or appendix so certified, shall be directed to the court from which the appeal is taken. (d) Appendices - criminal appeals. Pursuant to 22 NYCRR 1250.7 (d) (3), in a criminal matter, when permission to proceed as a poor person has been granted, the appendix to be filed and served by the appellant shall contain, in the following order: the description of the action required by CPLR 5531; a copy of the notice of appeal with proof of service and filing; a copy of the certificate of conviction and the judgment from which the appeal is taken; a copy of the indictment, superior court information or other accusatory instrument; all motion papers, affidavits and, to the extent practicable, written and photographic exhibits relevant and necessary to the determination of the appeal; a copy of any prior order entered by the trial court affecting the appeal, including but not limited to an order that grants a stay; and, pursuant to 22 NYCRR 1250.7 (g), the stipulation of the parties or their attorneys to the correctness of the record, the order settling the record, the certificate of the appellant's attorney pursuant to CPLR 2105, or the certificate of the proper clerk. [7] [8] (e) Demand for exhibits. Absent a stipulation of the parties pursuant to 22 NYCRR 1250.7 (c) or 1250.11 (c), all original exhibits shall be submitted to the Court. Upon perfecting an appeal, an appellant shall file the original exhibits or, when the exhibits are in the control of a respondent or a third party, a five-day written demand for the exhibits or a subpoena duces tecum for the exhibits issued in accordance with CPLR article 23, with proof of service thereof. The failure of a respondent to comply with a five-day demand may result in sanctions pursuant to 22 NYCRR 1250.1 (h). [9] 1000.9 Time, Number and Manner of Filing of Records, Appendices and Briefs (a) Extension of time to perfect. An extension of time to perfect an appeal may be obtained, pursuant to 22 NYCRR 1250.9 (b), by a letter application, stipulation or motion. A stipulation to extend the time to perfect an appeal pursuant to 22 NYCRR 1250.9 (b) shall be filed on or before the date by which the appeal is required to be perfected. [10] A motion for an extension of time to perfect an appeal pursuant to 22 NYCRR 1250.9 (b) shall be supported by an affidavit demonstrating with particularity a reasonable excuse for the delay and an intent to perfect the appeal within a reasonable time. (b) Extension of time to file brief. An extension of time to file and serve a responsive brief may be obtained, pursuant to 22 NYCRR 1250.9 (g), by a letter application, stipulation or motion. [11]A stipulation to extend the time to file and serve a responsive brief pursuant to 22 NYCRR 1250.9 (g) (1) shall be filed on or before the date by which the brief was originally required to be filed. In no case shall the parties stipulate to [12]an extension of time to file and serve a responsive brief that would permit the filing and service of the brief within 30 days of the date upon which the matter is scheduled to be heard. A motion for an extension of time to file and serve a responsive brief pursuant to 22 NYCRR 1250.9 (g) (2) shall be supported by an affidavit demonstrating with particularity a reasonable excuse for the delay and an intent to file and serve the brief within a reasonable time. (c) Hard copies of records and appendices (1) Hard copies of records and appendices in matters perfected upon the reproduced full record method or appendix method. Except where a party is exempt from filing a digital copy of a document pursuant to 22 NYCRR 1245.4 or 1250.9 (e), the hard copy filing requirement in 22 NYCRR 1245.6 (a) and 1250.9 (a) (1) and (a) (2) with respect to records and appendices in matters perfected using the reproduced full record method or appendix method shall be satisfied by the filing of an original and two hard copies of the record or appendix. Parties exempt from filing a digital copy of a document shall file the number of hard copies of records and appendices otherwise provided by the rules. (2) Hard copies of records and appendices in matters perfected upon the original record. The hard copy filing requirement in 22 NYCRR 1245.6 (a) with respect to records and appendices in matters perfected upon the original record shall be satisfied by the filing of a hard copy of the complete record, consistent with 22 NYCRR 1250.9 (a) (4) (ii). [13] (d)[14] Digital copies. In matters not subject to electronic filing, digital copies of the records, appendices and briefs filed pursuant to 22 NYCRR § 1250.9 (a), (c) and (d) shall comply with the technical specifications for electronically filed documents (Attachment A to 22 NYCRR Part 1245) and shall be filed and served as directed by the Clerk of the Court.[15] (e) Service of original record in matters not subject to e-filing. When perfecting on the original record pursuant to 22 NYCRR 1250.9 (a) (4), an appellant shall file a hard copy of the complete record, together with proof of service of one hard copy of the record upon each other party to the appeal. [16] 1000.11 Additional Rules Relating to Criminal Appeals (c) Pro se supplemental briefs where counsel does not seek to withdraw. When assigned counsel does not move to be relieved as counsel[17] , a defendant wishing to file a pro se supplemental brief pursuant to 22 NYCRR 1250.11 (g) (2)shall file an original and five copies of such brief, with proof of service of one copy on assigned counsel and one copy on the People. [18] The[19] People may file and serve an original and five hard copies and a digital copy of a responding brief, with proof of service of one copy on assigned counsel and one copy on the defendant [20]no later than 45 days after defendant has served the pro se supplemental brief. A request for an extension of time to file and serve a pro se supplemental brief or a responding brief shall be made by motion and supported by an affidavit demonstrating with particularity a reasonable excuse for the delay and an intent to file and serve the brief within a reasonable time. [21] 1000.12 Transferred Proceedings. (a) Original papers. A proceeding transferred to this Court pursuant to CPLR 7804 (g) shall be prosecuted upon the original papers, which shall include the notice of petition or order to show cause and petition, answer, any other transcript or document submitted to Supreme Court, the transcript of any proceedings at Supreme Court, the order of transfer and any other order of Supreme Court. When the proceeding has been transferred prior to the filing and service of an answer, a respondent shall file and serve an answer within 25 days of filing and service of the order of transfer. When a proceeding has been transferred to this Court pursuant to Executive Law § 298, the State Division of Human Rights shall file with the Clerk the record of the proceedings within 45 days of the date of entry of the order of transfer. Pursuant to Rule 1000.2, matters transferred to the Court by order dated on or after April 1, 2021 must be electronically filed pursuant to 22 NYCRR Part 1245. [22] 1000.15 Calendar Preference or Adjournment; Calendar Notice; Oral Argument; Post-Argument Submissions (b) Scheduling order. After an appeal is perfected or an original or transferred proceeding is filed or received, the Clerk shall, where appropriate, issue a scheduling order, which will specify the term of Court for which the matter has been scheduled and set a deadline for the service and filing of respondents’ briefs[23], if any. A party or a party’s attorney shall notify the Clerk in writing within 15 days of the date that the scheduling order was mailed of unavailability for oral argument on a specific date or on specific dates during the term. 1000.15 Calendar Preference or Adjournment; Calendar Notice; Oral Argument; Post-Argument Submissions (e) Post-argument submissions. Any request for leave to file a post-argument submission shall be [24]filed, with proof of service, [25] within five business days of oral argument, and shall be accompanied by an original, five hard copies, and a digital [26]copy of the proposed submission. 1000.17 Electronic Filing (a) Entry of initial information for electronic filing (1) Application for assigned counsel. When the appellant seeks the assignment of counsel to prosecute an appeal, the entry of initial information for electronic filing pursuant to 22 NYCRR 1245.3 (a) shall not be required until the Court[27] issues an order with respect to an application for the assignment of counsel. Where the Court[28] issues an order assigning counsel, the entry of initial information, to the extent not previously accomplished, shall be completed within 14 days of the date of the order. Where an application for the assignment of counsel is denied, the appellant shall be deemed exempt from e-filing and the matter shall be perfected in hard copy, unless the appellant chooses to voluntarily participate in e-filing pursuant to 22 NYCRR 1245.4 (d) or engages counsel to prosecute the appeal who is not an exempt attorney. (3) Effect of failure to enter[29] initial[30] information. Except as otherwise provided, no submission will be accepted in a case subject to mandatory e-filing prior to the entry of initial information and service of notification of the docket number pursuant to 22 NYCRR 1245.3. (b) Perfecting a criminal appeal. (4) Hard copy filing; transcripts. Hard copies of the appendix, appellant’s brief, and the transcripts upon which the appeal is based must be filed with the clerk within two business days of receipt by the appellant of email notification that the clerk has reviewed and approved the electronic filing required in subdivision (2) of this section. [31]The appellant shall submit one hard copy each of the appendix and transcripts, and an original and five hard copies of appellant’s brief. [32] A failure to file such additional hard copies of documents shall cause the filing to be deemed incomplete. (c) Perfecting a Family Court appeal. (1) Service of notice of appellate docket number. With respect to a Family Court appeal, service of notification of the appellate docket number, as required in 22 NYCRR 1245.3 (b), must be made upon both respondent's counsel and respondent individually. [33] (5) Hard copy filing; transcripts. Hard copies of the appendix, appellant’s brief, and the transcripts upon which the appeal is based must be filed with the clerk within two business days of receipt by the appellant of email notification that the clerk has reviewed and approved the electronic filing required in subdivision (3) of this section.[34] The appellant shall submit one hard copy each of the appendix and transcripts, and an original and five hard copies of appellant’s brief. [35] A failure to file such additional hard copies of documents shall cause the filing to be deemed incomplete. (6) Respondent on Appeal. (A) Respondent’s e-filing status. A respondent shall be deemed exempt from e-filing unless the Court[36] issues an order assigning counsel to represent the respondent on appeal, the respondent engages appellate counsel who is not an exempt attorney, or the respondent chooses to voluntarily participate in e-filing pursuant to 22 NYCRR 1245.4 (d). (B) Entry of information by respondent’s counsel. When the Court[37] issues an order assigning counsel to represent a respondent on appeal or a respondent engages counsel who is not an exempt attorney, counsel for the respondent must record that representation in accordance with 22 NYCRR 1245.3 (d) within 20 days of the date of the order of assignment or the date upon which appellate counsel was engaged, as appropriate; provided that, if the assignment or engagement of appellate counsel for a respondent occurs prior to the entry, by appellant’s counsel, of initial information for e-filing pursuant to 22 NYCRR 1245.3 (a), counsel for the respondent must record that representation within 20 days of service upon respondent’s counsel of notification of the appellate docket number as required in 22 NYCRR 1245.3 (b). [1] New matter underlined. Deleted matter in Footnotes. [2] New [3] New [4] New [5] New [6] New [7] New [8] Deleted: and the stipulation of the parties or their attorneys to the complete record, the order settling the record, or the certification of the record pursuant to 22 NYCRR 1250.7 (g). The appellant shall also file a copy of any prior order entered by this Court or the trial court affecting the appeal including, but not limited to, an order that: expedites the appeal; grants permission to proceed on appeal as a poor person or on less than the required number of records and briefs; assigns counsel; grants an extension of time to perfect the appeal; grants a stay or injunctive relief; grants relief from dismissal of the appeal; or grants permission to exceed page limitations. [9] New [10] New [11] New [12] Deleted: , or apply by letter for, [13] New [14] Deleted: (c) [15] Deleted: c [16] New [17] Deleted: and defendant has filed a pro se supplemental brief pursuant to 22 NYCRR 1250.11 (g) (2) [18] New [19] Deleted: t [20] Deleted: the defendant and assigned counsel, [21] New [22] New [23] Deleted: and reply briefs [24] Deleted: made in writing [25] New [26] New [27] Deleted: c; [28] Deleted: c [29] New [30] Deleted: I [31] Deleted: With respect to criminal appeals in which permission to proceed as a poor person has been granted, t [32] Deleted: The filing of hard copies shall otherwise be as set forth in 22 NYCRR 1245.6 (a). [33] Deleted: Where the Court has issued an order assigning counsel to prosecute an appeal, such that an appellate docket number has previously been received by counsel for the appellant, service of notification of the appellate docket number shall be made within seven days of the date upon which counsel completes the entry of initial information for electronic filing pursuant to 22 NYCRR 1245.3 (a). [34] Deleted: With respect to Family Court appeals in which permission to proceed as a poor person has been granted, t [35] Deleted: The filing of hard copies shall otherwise be as set forth in 22 NYCRR 1245.6 (a). [36] Deleted : c [37] Deleted: c The Child Support Standards Chart (PDF) was released on March 1, 2021. New Uniform Rules for Trial Courts adopted effective February 1, 2021. The Chief Administrative Judge enacted an order which amended the Uniform Rules for Trial Courts effective February 1, 2021. Click on the link to download a copy of the Special Edition of Bits and Bytes™ which contains all of the amended and new rules. 22 NYCRR 202.16 (k) and 202.16-b amended effective January 19, 2021 (AO/31/21)(Click on link to download a copy). Laws of 2021, Ch 56, Part L § 4 amended the Family Court Act, effective September 29, 2021 subject to certain conditions, by adding a new section 353.7 to read as follows: Placement in qualified residential treatment programs 1. The provisions of this section shall apply when a respondent is placed on or after September twenty-ninth, two thousand twenty-one and resides in a non-secure setting that is a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, and whose care and custody were transferred to a local social services district or the office of children and family services in accordance with this article. 2. (a) When a respondent is in the care and custody of a local social services district or the office of children and family services pursuant to this article, such social services district or office shall report any anticipated placement of the respondent into a qualified residential treatment program as defined in section four hundred nine-h of the social services law to the court and the attorneys for the parties, including the attorney for the respondent, forthwith, but not later than one business day following either the decision to place the respondent in the qualified residential treatment program or the actual date the placement change occurred, whichever is sooner. Such notice shall indicate the date that the initial placement or change in placement is anticipated to occur or the date the placement change occurred, as applicable. Provided, however, if such notice lists an anticipated date for the placement change, the local social services district or office shall subsequently notify the court and the attorneys for the parties, including the attorney for the respondent, of the date the placement change occurred, such notice shall occur no later than one business day following the placement change. (b) When a respondent whose legal custody was transferred to a local social services district or the office of children and family services in accordance with this article resides in a qualified residential treatment program as defined in section four hundred nine-h of the social services law, and where such respondent's initial placement or change in placement in such qualified residential treatment program commenced on or after September twenty-ninth, two thousand twenty-one, upon receipt of notice required pursuant to paragraph (a) of this subdivision and motion of the local social services district or the office of children and family services with legal custody of the respondent, the court shall schedule a court review to make an assessment and determination of such placement in accordance with subdivision three of this section. Notwithstanding any other provision of law to the contrary, such court review shall occur no later than sixty days from the date the placement of the respondent in the qualified residential treatment program commenced. 3. (a) Within sixty days of the start of a placement of a respondent referenced in subdivision one of this section in a qualified residential treatment program, the court shall: (i) Consider the assessment, determination, and documentation made by the qualified individual pursuant to section four hundred nine-h of the social services law; (ii) Determine whether the needs of the respondent can be met through placement in a foster family home and, if not, whether placement of the respondent in a qualified residential treatment program provides the most effective and appropriate level of care for the respondent in the least restrictive environment and whether that placement is consistent with the short-term and long-term goals for the respondent as specified in the respondent's permanency plan; and (iii) Approve or disapprove the placement of the respondent in a qualified residential treatment program. Provided that, where a qualified individual determines that the placement of the respondent in a qualified residential treatment program is not appropriate in accordance with the assessment required pursuant to section four hundred nine-h of the social services law, the court may only approve the placement of the respondent in the qualified residential treatment program if: (A) the court finds, and states in the written order that: (1) circumstances exist that necessitate the continued placement of the respondent in the qualified residential treatment program; (2) there is not an alternative setting available that can meet the respondent's needs in a less restrictive environment; and (3) that continued placement in the qualified residential treatment program serves the respondent's needs and best interests or the need for protection of the community; and (B) the court's written order states the specific reasons why the court has made the findings required pursuant to clause (A) of this subparagraph. (iv) Nothing herein shall prohibit the court from considering other relevant and necessary information to make a determination. (b) At the conclusion of the review, if the court disapproves placement of the respondent in a qualified residential treatment program the court shall, on its own motion, determine a schedule for the return of the respondent and direct the local social services district or office of children and family services, as applicable, to make such other arrangements for the respondent's care and welfare that is in the best interest of the respondent and in the most effective and least restrictive setting as the facts of the case may require. If a new placement order is necessary due to restrictions in the existing governing placement order, the court may issue a new order. 4. The court may, on its own motion, or the motion of any of the parties or the attorney for the respondent, proceed with the court review required pursuant to this section on the basis of the written records received and without a hearing. Provided however, the court may only proceed with the court review without a hearing pursuant to this subdivision upon the consent of all parties. Provided further, in the event that the court conducts the court review requirement pursuant to this section but does not conduct it in a hearing, the court shall issue a written order specifying any determinations made pursuant to clause (A) of subparagraph (iii) of paragraph (a) of subdivision three of this section and provide such written order to the parties and the attorney for the respondent expeditiously, but no later than five days. 5. Documentation of the court's determination pursuant to this section shall be recorded in the respondent's case record. 6. Nothing in this section shall prohibit the court's review of a placement in a qualified residential treatment program from occurring at the same time as another hearing scheduled for such respondent, including but not limited to the respondent's permanency hearing, provided such approval is completed within sixty days of the start of such placement. (Effective September 29, 2021 if certain conditions are met. See Laws of 2021, Ch 56, Part L, § 17 (a)) Laws of 2021, Ch 56, Part L § 5 amended Family Court Act §355.5, effective September 29, 2021 subject to certain conditions, by adding a new subdivision 10 to read as follows: 10. Where the respondent remains placed in a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, the commissioner of the local social services district or the office of children and family services with legal custody of the respondent shall submit evidence at the permanency hearing with respect to the respondent: (a) demonstrating that ongoing assessment of the strengths and needs of the respondent cannot be met through placement in a foster family home, that the placement in a qualified residential treatment program provides the most effective and appropriate level of care for the respondent in the least restrictive environment, and that the placement is consistent with the short-term and long-term goals for the respondent, as specified in the respondent's permanency plan; (b) documenting the specific treatment and service needs that will be met for the respondent in the placement and the length of time the respondent is expected to need the treatment or services; and (c) documenting the efforts made by the local social services district or the office of children and family services with legal custody of the respondent to prepare the respondent to return home, or to be placed with a fit and willing relative, legal guardian or adoptive parent, or in a foster family home. (Effective September 29, 2021 if certain conditions are met. See Laws of 2021, Ch 56, Part L, § 17 (a)) Laws of 2021, Ch 56, pt. L, § 6. amended Family Court Act §756-a, effective September 29, 2021 subject to certain conditions, by adding a new subdivision (h) to read as follows: h) Where the respondent remains placed in a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, the commissioner of the local social services district with legal custody of the respondent shall submit evidence at the permanency hearing with respect to the respondent: (i) demonstrating that ongoing assessment of the strengths and needs of the respondent continues to support the determination that the needs of the respondent cannot be met through placement in a foster family home, that the placement in a qualified residential treatment program provides the most effective and appropriate level of care for the respondent in the least restrictive environment, and that the placement is consistent with the short-term and long-term goals of the respondent, as specified in the respondent's permanency plan; (ii) documenting the specific treatment or service needs that will be met for the respondent in the placement and the length of time the respondent is expected to need the treatment or services; and (iii) documenting the efforts made by the local social services district with legal custody of the respondent to prepare the respondent to return home, or to be placed with a fit and willing relative, legal guardian or adoptive parent, or in a foster family home. (Effective September 29, 2021 if certain conditions are met. See Laws of 2021, Ch 56, Part L, § 17 (a)) Laws of 2021, Ch 56, Part L § 7 amended the Family Court Act, effective September 29, 2021 subject to certain conditions, by adding a new section 756-b to read as follows: Court review of placement in a qualified residential treatment program. 1. The provisions of this section shall apply when a respondent is placed on or after September twenty-ninth, two thousand twenty-one and resides in a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, and whose care and custody were transferred to a local social services district in accordance with this part. 2. (a) When a respondent is in the care and custody of a local social services district pursuant to this part, such social services district shall report any anticipated placement of the respondent into a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, to the court and the attorneys for the parties, including the attorney for the respondent, forthwith, but not later than one business day following either the decision to place the respondent in the qualified residential treatment program or the actual date the placement change occurred, whichever is sooner. Such notice shall indicate the date that the initial placement or change in placement is anticipated to occur or the date the placement change occurred, as applicable. Provided, however, if such notice lists an anticipated date for the placement change, the local social services district shall subsequently notify the court and the attorneys for the parties, including the attorney for the respondent, of the date the placement change occurred; such notice shall occur no later than one business day following the placement change. (b) When a respondent whose legal custody was transferred to a local social services district in accordance with this part resides in a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, and where such respondent's initial placement or change in placement in such qualified residential treatment program commenced on or after September twenty-ninth, two thousand twenty-one, upon receipt of notice required pursuant to paragraph (a) of this subdivision and motion of the local social services district, the court shall schedule a court review to make an assessment and determination of such placement in accordance with subdivision three of this section. Notwithstanding any other provision of law to the contrary, such court review shall occur no later than sixty days from the date the placement of the respondent in the qualified residential treatment program commenced. 3. (a) Within sixty days of the start of a placement of a respondent referenced in subdivision one of this section in a qualified residential treatment program, the court shall: (i) Consider the assessment, determination and documentation made by the qualified individual pursuant to section four hundred nine-h of the social services law; (ii) Determine whether the needs of the respondent can be met through placement in a foster family home and, if not, whether placement of the respondent in a qualified residential treatment program provides the most effective and appropriate level of care for the respondent in the least restrictive environment and whether that placement is consistent with the short-term and long-term goals for the respondent as specified in the respondent's permanency plan; and (iii) Approve or disapprove the placement of the respondent in a qualified residential treatment program. Provided that, where the qualified individual determines that the placement of the respondent in a qualified residential treatment program is not appropriate in accordance with the assessment required pursuant to section four hundred nine-h of the social services law, the court may only approve the placement of the respondent in the qualified residential treatment program if: (A) the court finds, and states in the written order that: (1) circumstances exist that necessitate the continued placement of the respondent in the qualified residential treatment program; (2) there is not an alternative setting available that can meet the respondent's needs in a less restrictive environment; and (3) that it would be contrary to the welfare of the respondent to be placed in a less restrictive setting and that continued placement in the qualified residential treatment program is in the respondent's best interest; and (B) the court's written order states the specific reasons why the court has made the findings required pursuant to clause (A) of this subparagraph. (iv) Nothing herein shall prohibit the court from considering other relevant and necessary information to make a determination. (b) At the conclusion of the review, if the court disapproves placement of the respondent in a qualified residential treatment program the court shall, on its own motion, determine a schedule for the return of the respondent and direct the local social services district to make such other arrangements for the respondent's care and welfare that is in the best interest of the respondent and in the most effective and least restrictive setting as the facts of the case may require. If a new placement order is necessary due to restrictions in the existing governing placement order, the court may issue a new order. 4. The court may, on its own motion, or the motion of any of the parties or the attorney for the respondent, proceed with the court review required pursuant to this section on the basis of the written records received and without a hearing. Provided however, the court may only proceed with the court review without a hearing pursuant to this subdivision upon the consent of all parties. Provided further, in the event that the court conducts the court review requirement pursuant to this section but does not conduct it in a hearing, the court shall issue a written order specifying any determinations made pursuant to clause (A) of subparagraph (iii) of paragraph (a) of subdivision three of this section and provide such written order to the parties and the attorney for the respondent expeditiously, but no later than five days. 5. Documentation of the court's determination pursuant to this section shall be recorded in the respondent's case record. 6. Nothing in this section shall prohibit the court's review of a placement in a qualified residential treatment program from occurring at the same time as another hearing scheduled for such respondent, including but not limited to the respondent's permanency hearing, provided such approval is completed within sixty days of the start of such placement. (Effective September 29, 2021 if certain conditions are met. See Laws of 2021, Ch 56, Part L, § 17 (a)) Laws of 2021, Ch 56, Part L § 8 amended the opening paragraph of Family Court Act §1017(5), effective September 29, 2021 subject to certain conditions, by designating it paragraph (a) and adding new paragraph (b) to read as follows: (b) When a child whose legal custody was transferred to the commissioner of a local social services district in accordance with this section resides in a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, and whereby such child's initial placement or change in placement in such program commenced on or after September twenty-ninth, two thousand twenty-one, upon receipt of notice required pursuant to paragraph (a) of this subdivision and motion of the local social services district, the court shall schedule a court review to make an assessment and determination of such placement in accordance with section one thousand fifty-five-c of this article. Notwithstanding any other provision of law to the contrary, such court review shall occur no later than sixty days from the date the placement of the child in the qualified residential treatment program commenced. (Effective September 29, 2021 if certain conditions are met. See Laws of 2021, Ch 56, Part L, § 17 (a)) Laws of 2021, Ch 56, Part L § 9 amended the opening paragraph of Family Court Act §1055(j), effective September 29, 2021 subject to certain conditions, by designating it paragraph (i) and adding new paragraph (ii) to read as follows: (ii) When a child whose legal custody was transferred to the commissioner of a local social services district in accordance with this section resides in a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, and where such child's initial placement or change in placement in such program commenced on or after September twenty-ninth, two thousand twenty-one, upon receipt of notice required pursuant to paragraph (i) of this subdivision and motion of the local social services district, the court shall schedule a court review to make an assessment and determination of such placement in accordance with section one thousand fifty-five-c of this part. Notwithstanding any other provision of law to the contrary, such court review shall occur no later than sixty days from the date the placement of the child in the qualified residential treatment program commenced. (Effective September 29, 2021 if certain conditions are met. See Laws of 2021, Ch 56, Part L, § 17 (a)) Laws of 2021, Ch 56, Part L § 10 amended the family court act, effective September 29, 2021 subject to certain conditions, by adding a new section 1055-c to read as follows: Court review of placement in a qualified residential treatment program. 1. The provisions of this section shall apply when a child is placed on or after September twenty-ninth, two thousand twenty-one and resides in a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, and whose care and custody were transferred to the commissioner of a local social services district in accordance with this article. 2. Within sixty days of the start of a placement of a child referenced in subdivision one of this section in a qualified residential treatment program, the court shall: (a) Consider the assessment, determination, and documentation made by the qualified individual pursuant to section four hundred nine-h of the social services law; (b) Determine whether the needs of the child can be met through placement in a foster family home and, if not, whether placement of the child in a qualified residential treatment program provides the most effective and appropriate level of care for the child in the least restrictive environment and whether that placement is consistent with the short-term and long-term goals for the child, as specified in the child's permanency plan; and (c) Approve or disapprove the placement of the child in a qualified residential treatment program. Provided that, where the qualified individual determines that the placement of the child in a qualified residential treatment program is not appropriate in accordance with the assessment required pursuant to section four hundred nine-h of the social services law, the court may only approve the placement of the child in the qualified residential treatment program if: (i) the court finds, and states in the written order that: (A) circumstances exist that necessitate the continued placement of the child in the qualified residential treatment program; (B) there is not an alternative setting available that can meet the child's needs in a less restrictive environment; and (C) that continued placement in the qualified residential treatment program is in the child's best interest; and (ii) the court's written order states the specific reasons why the court has made the findings required pursuant to subparagraph (i) of this paragraph. (d) Nothing herein shall prohibit the court from considering other relevant and necessary information to make a determination. 3. At the conclusion of the review, if the court disapproves placement of the child in a qualified residential treatment program the court shall, on its own motion, determine a schedule for the return of the child and direct the local social services district to make such other arrangements for the child's care and welfare that is in the best interest of the child and in the most effective and least restrictive setting as the facts of the case may require. If a new placement order is necessary due to restrictions in the existing governing placement order, the court may issue a new order. 4. The court may, on its own motion, or the motion of any of the parties or the attorney for the child, proceed with the court review required pursuant to this section on the basis of the written records received and without a hearing. Provided however, the court may only proceed with the court review without a hearing pursuant to this subdivision upon the consent of all parties. Provided further, in the event that the court conducts the court review requirement pursuant to this section but does not conduct it in a hearing, the court shall issue a written order specifying any determinations made pursuant to subparagraph (i) of paragraph (c) of subdivision two of this section and provide such written order to the parties and the attorney for the child expeditiously, but no later than five days. 5. Documentation of the court's determination pursuant to this section shall be recorded in the child's case record. 6. Nothing in this section shall prohibit the court's review of a placement in a qualified residential treatment program from occurring at the same time as another hearing scheduled for such child, including but not limited to the child's permanency hearing, provided such approval is completed within sixty days of the start of such placement. (Effective September 29, 2021 if certain conditions are met. See Laws of 2021, Ch 56, Part L, § 17 (a)) Laws of 2021, Ch 56, Part L § 11 amended Family Court Act §1089, (c)(5)(ix)(C), effective September 29, 2021 subject to certain conditions, by adding a new paragraph 6 to read as follows: (C) if the child is over age fourteen and has voluntarily withheld his or her consent to an adoption, the facts and circumstances regarding the child’s decision to withhold consent and the reasons therefor; and (6) Where the child remains placed in a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, the commissioner of the social services district with legal custody of the child shall submit evidence at the permanency hearing with respect to the child: (i) demonstrating that ongoing assessment of the strengths and needs of the child continues to support the determination that the needs of the child cannot be met through placement in a foster family home, that the placement in a qualified residential treatment program provides the most effective and appropriate level of care for the child in the least restrictive environment, and that the placement is consistent with the short-term and long-term goals for the child, as specified in the child's permanency plan; (ii) documenting the specific treatment or service needs that will be met for the child in the placement and the length of time the child is expected to need the treatment or services; and (iii) documenting the efforts made by the local social services district to prepare the child to return home, or to be placed with a fit and willing relative, legal guardian or adoptive parent, or in a foster family home. (Effective September 29, 2021 if certain conditions are met. See Laws of 2021, Ch 56, Part L, § 17 (a)) Laws of 2021, Ch 56, Part L § 12 amended Family Court Act §1089, effective September 29, 2021 subject to certain conditions, by designating the opening paragraph of subdivision (d), 2 (vii)(H) item (I) and a new item (II) was added to read as follows: (II) When a child whose legal custody was transferred to the commissioner of a local social services district in accordance with this section resides in a qualified residential treatment program as defined in section four hundred nine-h of the social services law and where such child's initial placement or change in placement in such program commenced on or after September twenty-ninth, two thousand twenty-one, upon receipt of notice required pursuant to item (I) of this clause and motion of the local social services district, the court shall schedule a court review to make an assessment and determination of such placement in accordance with section three hundred ninety-three of the social services law or section one thousand fifty-five-c, one thousand ninety-one-a or one thousand ninety-seven of this chapter. Notwithstanding any other provision of law to the contrary, such court review shall occur no later than sixty days from the date the placement of the child in the qualified residential treatment program commenced. (Effective September 29, 2021 if certain conditions are met. See Laws of 2021, Ch 56, Part L, § 17 (a)) Laws of 2021, Ch 56, Part L § 13. amended the Family Court Act, effective September 29, 2021 subject to certain conditions, by adding a new section 1091-a to read as follows: Court review of placement in a qualified residential treatment program. 1. The provisions of this section shall apply when a former foster care youth is placed on or after September twenty-ninth, two thousand twenty-one, and resides in a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, and whose care and custody were transferred to a local social services district or the office of children and family services in accordance with this article. 2. (a) When a former foster care youth is in the care and custody of a local social services district or the office of children and family services pursuant to this article, such social services district or office shall report any anticipated placement of the former foster care youth into a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, to the court and the attorneys for the parties, including the attorney for the former foster care youth, forthwith, but not later than one business day following either the decision to place the former foster care youth in the qualified residential treatment program or the actual date the placement change occurred, whichever is sooner. Such notice shall indicate the date that the initial placement or change in placement is anticipated to occur or the date the placement change occurred, as applicable. Provided, however, if such notice lists an anticipated date for the placement change, the local social services district or office shall subsequently notify the court and attorneys for the parties, including the attorney for the former foster care youth, of the date the placement change occurred; such notice shall occur no later than one business day following the placement change. (b) When a former foster care youth whose legal custody was transferred to a local social services district or the office of children and family services in accordance with this article resides in a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, and where such former foster care youth's initial placement or change in placement in such qualified residential treatment program commenced on or after September twenty-ninth, two thousand twenty-one, upon receipt of notice required pursuant to paragraph (a) of this subdivision and motion of the local social services district, the court shall schedule a court review to make an assessment and determination of such placement in accordance with subdivision three of this section. Notwithstanding any other provision of law to the contrary, such court review shall occur no later than sixty days from the date the placement of the former foster care youth in the qualified residential treatment program commenced. 3. Within sixty days of the start of a placement of a former foster care youth referenced in subdivision one of this section in a qualified residential treatment program, the court shall: (a) Consider the assessment, determination, and documentation made by the qualified individual pursuant to section four hundred nine-h of the social services law; (b) Determine whether the needs of the former foster care youth can be met through placement in a foster family home and, if not, whether placement of the former foster care youth in a qualified residential treatment program provides the most effective and appropriate level of care for the former foster care youth in the least restrictive environment and whether that placement is consistent with the short-term and long-term goals for the former foster care youth, as specified in the former foster care youth's permanency plan; and (c) Approve or disapprove the placement of the former foster care youth in a qualified residential treatment program. Provided that, where the qualified individual determines that the placement of the former foster care youth in a qualified residential treatment program is not appropriate in accordance with the assessment required pursuant to section four hundred nine-h of the social services law, the court may only approve the placement of the former foster care youth in the qualified residential treatment program if: (i) the court finds, and states in the written order that: (A) circumstances exist that necessitate the continued placement of the former foster care youth in the qualified residential treatment program; (B) there is not an alternative setting available that can meet the former foster care youth's needs in a less restrictive environment; and (C) that continued placement in the qualified residential treatment program is in the former foster care youth's best interest; and (ii) the court's written order states the specific reasons why the court has made the findings required pursuant to subparagraph (i) of this paragraph. (d) Nothing herein shall prohibit the court from considering other relevant and necessary information to make a determination. 4. At the conclusion of the review, if the court disapproves placement of the former foster care youth in a qualified residential treatment program the court shall, on its own motion, determine a schedule for the return of the former foster care youth and direct the local social services district or office of children and family services, as applicable, to make such other arrangements for the former foster care youth's care and welfare that is in the best interest of the former foster care youth and in the most effective and least restrictive setting as the facts of the case may require. If a new placement order is necessary due to restrictions in the existing governing placement order, the court may issue a new order. 5. The court may, on its own motion, or the motion of any of the parties or the attorney for the former foster care youth, proceed with the court review required pursuant to this section on the basis of the written records received and without a hearing. Provided however, the court may only proceed with the court review without a hearing pursuant to this subdivision upon the consent of all parties. Provided further, in the event that the court conducts the court review requirement pursuant to this section but does not conduct it in a hearing, the court shall issue a written order specifying any determinations made pursuant to subparagraph (i) of paragraph (c) of subdivision three of this section and provide such written order to the parties and the attorney for the former foster care youth expeditiously, but no later than five days. 6. Documentation of the court's determination pursuant to this section shall be recorded in the former foster care youth's case record. 7. Nothing in this section shall prohibit the court's review of a placement in a qualified residential treatment program from occurring at the same time as another hearing scheduled for such former foster care youth, including but not limited to the former foster care youth's permanency hearing, provided such approval is completed within sixty days of the start of such placement. (Effective September 29, 2021 if certain conditions are met. See Laws of 2021, Ch 56, Part L, § 17 (a)) Laws of 2021, Ch 56, Part L § 14 amended the family court act, effective September 29, 2021 subject to certain conditions, by adding a new section 1097 to read as follows: Court review of placement in a qualified residential treatment program. 1. The provisions of this section shall apply when a child is placed on or after September twenty-ninth, two thousand twenty-one, and resides in a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, and whose care and custody were transferred to a local social services district in accordance with this article. 2. (a) When a child is in the care and custody of a local social services district pursuant to this article, such social services district shall report any anticipated placement of the child into a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, to the court and the attorneys for the parties, including the attorney for the child, forthwith, but not later than one business day following either the decision to place the child in the qualified residential treatment program or the actual date the placement change occurred, whichever is sooner. Such notice shall indicate the date that the initial placement or change in placement is anticipated to occur or the date the placement change occurred, as applicable. Provided, however, if such notice lists an anticipated date for the placement change, the local social services district shall subsequently notify the court and attorneys for the parties, including the attorney for the child, of the date the placement change occurred, such notice shall occur no later than one business day following the placement change. (b) When a child whose legal custody was transferred to a local social services district in accordance with this article resides in a qualified residential treatment program, as defined in section four hundred nine-h of the social services law, and where such child's initial placement or change in placement in such qualified residential treatment program commenced on or after September twenty-ninth, two thousand twenty-one, upon receipt of notice required pursuant to paragraph (a) of this subdivision and motion of the local social services district, the court shall schedule a court review to make an assessment and determination of such placement in accordance with subdivision three of this section. Notwithstanding any other provision of law to the contrary, such court review shall occur no later than sixty days from the date the placement of the child in the qualified residential treatment program commenced. 3. Within sixty days of the start of a placement of a child referenced in subdivision one of this section in a qualified residential treatment program, the court shall: (a) Consider the assessment, determination, and documentation made by the qualified individual pursuant to section four hundred nine-h of the social services law; (b) Determine whether the needs of the child can be met through placement in a foster family home and, if not, whether placement of the child in a qualified residential treatment program provides the most effective and appropriate level of care for the child in the least restrictive environment and whether that placement is consistent with the short-term and long-term goals for the child, as specified in the child's permanency plan; and (c) Approve or disapprove the placement of the child in the qualified residential treatment program. Provided that, where the qualified individual determines that the placement of the child in a qualified residential treatment program is not appropriate in accordance with the assessment required pursuant to section four hundred nine-h of the social services law, the court may only approve the placement of the child in the qualified residential treatment program if: (i) the court finds, and states in the written order that: (A) circumstances exist that necessitate the continued placement of the child in the qualified residential treatment program; (B) there is not an alternative setting available that can meet the child's needs in a less restrictive environment; and (C) that continued placement in the qualified residential treatment program is in the child's best interest; and (ii) the court's written order states the specific reasons why the court has made the findings required pursuant to subparagraph (i) of this paragraph. (d) Nothing herein shall prohibit the court from considering other relevant and necessary information to make a determination. 4. At the conclusion of the review, if the court disapproves placement of the child in a qualified residential treatment program the court shall, on its own motion, determine a schedule for the return of the child and direct the local social services district to make such other arrangements for the child's care and welfare that is in the best interest of the child and in the most effective and least restrictive setting as the facts of the case may require. If a new placement order is necessary due to restrictions in the existing governing placement order, the court may issue a new order. 5. The court may, on its own motion, or the motion of any of the parties or the attorney for the child, proceed with the court review required pursuant to this section on the basis of the written records received and without a hearing. Provided however, the court may only proceed with the court review without a hearing pursuant to this subdivision upon the consent of all parties. Provided further, in the event that the court conducts the court review requirement pursuant to this section but does not conduct it in a hearing, the court shall issue a written order specifying any determinations made pursuant to subparagraph (i) of paragraph (c) of subdivision three of this section and provide such written order to the parties and the attorney for the child expeditiously, but no later than five days. 6. Documentation of the court's determination pursuant to this section shall be recorded in the child's case record. 7. Nothing in this section shall prohibit the court's review of a placement in a qualified residential treatment program from occurring at the same time as another hearing scheduled for such child, including but not limited to the child's permanency hearing, provided such approval is completed within sixty days of the start of such placement. (Effective September 29, 2021 if certain conditions are met. See Laws of 2021, Ch 56, Part L, § 17 (a)) Laws of 2021, Ch 56, pt. L, § 17 “§ 17. This act shall take effect September 29, 2021; provided, however, that the provisions of section fifteen of this act shall expire and be deemed repealed December 31, 2026; and provided, further, that: (a)(i) notwithstanding any other provision of law, provisions in this act shall not take effect unless and until the state title IV-E agency submits to the United States Department of Health and Human Services, Administration for Children, Youth and Families, an amendment to the title IV-E state plan and the United States Department of Health and Human Services, Administration for Children, Youth and Families approves said title IV-E state plan amendment regarding when a child is placed in a qualified residential treatment program in relation to the following components: (1) the qualified individual and the establishment of the assessment by the qualified individual to be completed prior to or within 30-days of the child's placement as established by section three of this act; (2) the 60 day court reviews, including the ability to conduct at the same time as another hearing scheduled for the child, as established by sections one, two, four, seven, eight, nine, ten, twelve, thirteen and fourteen of this act; and (3) permanency hearing requirements as established by sections five, six and eleven of this act; (ii) provided however, that if the United States Department of Health and Human Services, Administration for Children, Youth and Families fails to approve or disapproves any of the components listed in paragraph (i) of this subdivision, such action shall not impact the effective date for the remaining components listed therein; (b) the office of children and family services shall inform the legislative bill drafting commission upon the occurrence of the submission set forth in subdivision (a) of this section and any approval related thereto in order that the commission may maintain an effective and timely database of the official texts of the state of laws of New York in furtherance of effectuating the provisions of section 44 of the legislative law and section 70-b of the public officers law; (c) for the purposes of this act, the term “placement” shall refer only to placements made on or after the effective date of the Title IV-E state plan to establish the 30-day assessment, 60-day court review and permanency hearing requirements set forth in this act that occur on or after its effective date; and (d) the office of children and family services and the office of court administration are hereby authorized to promulgate such rules and regulations on an emergency basis as may be necessary to implement the provisions of this act on or before such effective date. Laws of 2021, Ch 97 amended Family Court Act §§ 712, 732, 773 and 1012, effective April 8, 2021 by deleting the word "incorrigible". The Legislative Memorandum in support of the legislation states that the use of the word "incorrigible" in the context of family or children's courts dates back to the first juvenile court in Chicago in the late 1800s. It was adopted in New York when the first children's courts were established in the early 20th century and has carried over in each iteration of our juvenile or family court system since that time. Primarily applied to girls, and disproportionately to girls of color, this term - in practice - tends to single out girls of color for behaviors that do not match stereotypical feminine behavior. "Incorrigible" is defined as a person who is "incapable of being corrected, not reformable" (Merriam-Webster) and, thus this term is completely out of line with the current understanding of the goals of our Family Court system. The use of "incorrigibility" as a basis for Family Court intervention disparately impacts and harms girls and young women of color. Eliminating this term from the Family Court Act is intended to send a positive message and assist in the efforts to achieve full equality and empowerment for girls, young women, and people of color. Laws of 2020, Ch 376 effective December 23, 2020 amended the Judiciary Law to require reason for recusal Laws of 2020, Ch 376 effective December 23, 2020 amended the Judiciary Law to add a new section 9. It provides that any judge who recuses himself or herself from sitting in or taking any part in the decision of an action, claim, matter, motion or proceeding must state the reason for the recusal in writing or on the record. However, a judge is not required to provide a reason for recusal when the reason may result in embarrassment, or is of a personal nature, affecting the judge or a person related to the judge within the sixth degree by consanguinity or affinity. Laws of 2020, Ch 346 amended Family Court Act §1055 (e) and Family Court Act §1091 Under existing law, young adults can return to foster care when they have no alternative and agree to participate in a vocational or educational program, upon the approval of the Family Court. Family Court Act §1055 (e) was amended by Laws of 2020, Ch 346, effective December 15, 2020 to add a subdivision (ii) to allow a former foster care youth to re-enter the foster care system without having to file a motion with the family court during the state of emergency declared pursuant to executive order 202 of 2020 in response to the novel coronavirus (COVID-19) pandemic. The commissioner of the local social services department is required to consider the same factors that the court is required to consider when determining the appropriateness of the former foster care youth reentering the foster care system. Any requirement to enroll in vocational or education program when a former foster care youth reenters the system is waived during the time of the state of emergency. This section clarifies that to the extent a former foster care youth is denied the request to return to the custody of the local commissioner of social services, or other board or department authorized to receive children as public charges, that the youth would still have the opportunity to file a motion as authorized pursuant to family court act 1092. (See 2020 NY Legis Memo 346) Laws of 2020, Ch 376 effective December 23, 2020 amended the Judiciary Law to require reason for recusal Laws of 2020, Ch 376 effective December 23, 2020 amended the Judiciary Law to add a new section 9. It provides that any judge who recuses himself or herself from sitting in or taking any part in the decision of an action, claim, matter, motion or proceeding must state the reason for the recusal in writing or on the record. However, a judge is not required to provide a reason for recusal when the reason may result in embarrassment, or is of a personal nature, affecting the judge or a person related to the judge within the sixth degree by consanguinity or affinity. Laws of 2020, Ch 346 amended Family Court Act §1055 (e) and Family Court Act §1091 Under existing law, young adults can return to foster care when they have no alternative and agree to participate in a vocational or educational program, upon the approval of the Family Court. Family Court Act §1055 (e) was amended by Laws of 2020, Ch 346, effective December 15, 2020 to add a subdivision (ii) to allow a former foster care youth to re-enter the foster care system without having to file a motion with the family court during the state of emergency declared pursuant to executive order 202 of 2020 in response to the novel coronavirus (COVID-19) pandemic. The commissioner of the local social services department is required to consider the same factors that the court is required to consider when determining the appropriateness of the former foster care youth reentering the foster care system. Any requirement to enroll in vocational or education program when a former foster care youth reenters the system is waived during the time of the state of emergency. This section clarifies that to the extent a former foster care youth is denied the request to return to the custody of the local commissioner of social services, or other board or department authorized to receive children as public charges, that the youth would still have the opportunity to file a motion as authorized pursuant to family court act 1092. (See 2020 NY Legis Memo 346) Laws of 2020, Ch 346, amended Family Court Act §1091 The opening paragraph of Family Court Act §1091 was amended by Laws of 2020, Ch 346, effective December 15, 2020 to add a provision which requires that during the state of emergency declared pursuant to executive order 202 of 2020 in response to the novel coronavirus (COVID-19) pandemic that former foster care youth can re-enter the foster care system without making a motion to the court, and that any requirement to enroll and attend an educational or vocational program will be waived for the dura- tion of the state of emergency. This section also clarifies, subsequent to former foster youth's return to placement without making a motion, as authorized under this section during the COVID-19 state of emergency, that nothing in this section would prohibit a local social service district from filing a motion for requisite findings needed to claim reimbursement under Title IV-E of the Federal Social Security Act to support the youth's care, and the family court shall hear and determine such motions. (See 2020 NY Legis Memo 346) Laws of 2020, Chapter 299 amended Family Court Act §§ 305.2 and 344.2 Laws of 2020, Chapter 299 amended Family Court Act §§ 305.2 and 344.2 effective November 1, 2021, to require video recording of the entirety of interrogations in all juvenile cases, including the provision of Miranda warnings and the waiver, if any, of rights by the juveniles. It requires that recording procedures be consistent with regulations to be promulgated by the Division of Criminal Justice Services. It applies to interrogations that take place in law enforcement facilities, which, pursuant to Family Court Act § 305.2(4) and section 205.20 of the Uniform Rules of the Family Court, must be in rooms that have been inspected and approved by the Chief Administrator of the Courts for the questioning of youth. All persons in the recording must be identifiable and the speech must be intelligible. As is applicable to other statements by juveniles, the recording would be subject to discovery pursuant to Family Court Act § 331.2. Further, like other factors in juvenile delinquency Huntley hearings, including the presence or absence of parents, location of questioning and the validity of any waiver of rights, the fact and quality of the recording would be among factors comprising the totality of circumstances affecting admissibility of accused juveniles' statements. Failure to record would not, by itself, be a ground for granting a suppression motion. (See NY Legis Memo 299) Laws of 2020, Ch 261 amended the domestic relations law and family court act Laws of 2020, Ch 261, effective November 11, 2020 amended domestic relations law § 240 (3)(a)(8) and (9), domestic relations law § 252 (1) (h) and (i), family court act § 352.3 (1), family court act § 446 (i) and (j), family court act § 551 (j) and (k), family court act § 656 (j) and (k), family court act § 759 (g), (h) and (i); family court act § 842 (j) and (k). family court act § 1056 (1) (h) and (i), criminal procedure law § 530.12 (1)(a) (7), criminal procedure law § 530.12, (5) (c) and (e), and a new paragraph (f) was added, criminal procedure law § 530.13 (1)(c) and criminal procedure law § 530.13 (4)(c) and a new paragraph (d) was added, to provide that an order of protection can be issued that requires that the respondent refrain from controlling any connected devices affecting the home, vehicle or property of the person protected by the order. "Connected device", means 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. Laws of 2020, Chapters 55 and 56 (Budget Bills) added Article 5 -c to the Family Court Act, Judgments of Parentage of Children Conceived Through Assisted Reproduction Or Pursuant To Surrogacy Agreements (effective February 15, 2121), and made numerous amendments to the Domestic Relations Law, Family Court Act and other Family Related Laws Laws of 2020, Ch 55, §1, enacted April 3, 2020 added an additional factor to the property distribution factors in Domestic Relations Law §236 [B]5] [d]. Factor 14 “any other factor which the court shall expressly find to be just and proper” was renumbered factor 15, and a new “domestic violence” factor 14 was added: (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. The amendment takes effect on May 3, 2020 and applies to matrimonial actions commenced on or after the effective date. See our Recent Legislation page. Laws Amended by Laws of 2020 Chapters 55 and 56 (Budget Bills) SUBPART K (Effective November 1, 2020) § 9. Paragraphs (a) and (b) of subdivision 2 of section 842-a of the family court act, was amended and a new paragraph (c) was added. § 10. Paragraphs (a) and (b) of subdivision 3 of section 842-a of the family court act was amended and a new paragraph (c) was added. § 11. Subdivisions 6 and 7 of section 842-a of the family court act were amended. § 12. This act shall take effect on the first of November next succeeding the date on which it shall have become a law. SUBPART L Section 1. Subdivision 5 of section 1017 of the family court act, was amended. § 2. Subdivision (j) of section 1055 of the family court act was amended. § 3. Clause (H) of subparagraph (vii) of paragraph 2 of subdivision (d) of section 1089 of the family court act, was amended. § 4. Paragraph (g) of subdivision 3 of section 358-a of the social services law was amended. § 5. This act shall take effect on the same date and in the same manner as a chapter of the laws of 2019 amending the family court act and the social services law relating to notice of indicated reports of child maltreatment and changes of placement in child protective and voluntary foster care placement and review proceedings, as proposed in legislative bills numbers S. 6215 and A. 7974, takes effect. Laws of 2020, Chapter 56 PART L (Effective) February 15, 2021 Section 1. The family court act was amended by adding a new article 5-C: JUDGMENTS OF PARENTAGE OF CHILDREN CONCEIVED THROUGH ASSISTED REPRODUCTION OR PURSUANT TO SURROGACY AGREEMENTS § 2. Section 73 of the domestic relations law was REPEALED. § 3. Section 121 of the domestic relations law was amended. § 4. Section 122 of the domestic relations law was amended. § 5. Section 123 of the domestic relations law was amended. § 6. Section 124 of the domestic relations law was amended. § 7. Section 4135 of the public health law, subdivision 1, subdivision 2 and subdivision 3 were amended. § 8. Section 4135-b of the public health law, subdivisions 1 and 2 and subdivision 3 were amended. § 9. Paragraph (e) of subdivision 1 of section 4138 of the public health law, was amended. § 10. The article heading of article 8 of the domestic relations law, was amended to read as follows: GENETIC SURROGATE PARENTING CONTRACTS § 11. The general business law was amended by adding a new article 44 § 12. The public health law was amended by adding a new article 25-B. § 13. Subdivisions 4, 5, 6, 7 and 8 of section 4365 of the public health law were renumbered subdivisions 5, 6, 7, 8 and 9 and a new subdivision 4 was added. § 14. Paragraph (a) of subdivision 1 of section 440 of the family court act, was amended. § 15. Section 516-a of the family court act, subdivisions (b) and (c) and subdivision (d) were amended. § 16. Paragraph (b) of subdivision 1 of section 1017 of the family court act was amended. § 17. Section 4-1.2 of the estates, powers and trusts law, the section heading, the opening paragraph of subparagraph 1 of paragraph (a), the opening paragraph of subparagraph 2 of paragraph (a) and the opening paragraph of subparagraph 3 of paragraph (a), subparagraph 2 of paragraph (a), clause (A) of subparagraph 2 of paragraph (a, and clause (C) of subparagraph 2 of paragraph (a) and paragraph (b) were amended. § 18. Subdivision 1, paragraph g of subdivision 2, subdivision 3, and subdivision 4 of section 111-c of the social services law, subdivision 1, paragraph g of subdivision 2, subdivision 3, and subdivision 4 were amended. § 19. Section 111-k of the social services law, paragraphs (a) and (b) of subdivision 1 was amended. § 20. Subdivisions 1 and 2 of section 372-c of the social services Law were amended. § 21. Subdivision (a) of section 439 of the family court act, was amended. § 22. Subparagraph (D) of paragraph 17 of subsection (a) of section 1113 of the insurance law was amended. § 23. Paragraph 32 of subsection (a) of section 1113 of the insurance law, was renumbered paragraph 33 and a new paragraph 32 was added. § 24. Subsection (a) of section 2105 of the insurance law, was amended. § 25. Subsection (b) of section 4101 of the insurance law, was amended. § 26. Group A of table one as contained in paragraph 1 of subsection (a) of section 4103 of the insurance law, was amended. § 27. Group C of table three as contained in subsection (b) of section 4107 of the insurance law, was amended. § 28. Section 4-1.3 of the estates, powers and trust law was amended. § 29. This act shall take effect February 15, 2021, provided, however, that the amendments to subdivision (a) of section 439 of the family court act made by section twenty-one of this act shall not affect the expiration of such subdivision and shall be deemed to expire therewith. Effective immediately, the addition, amendment and/or repeal of any rule or regulation necessary for the implementation of this act on its effect- tive date are authorized to be made and completed on or before such effective date. Part R (Effective January 1, 2022) § 10. Section 651-a of the family court act, as amended by chapter 12 of the laws of 1996, was amended. § 11. This act shall take effect immediately; provided, however that sections one, three, four, five, six, seven, eight, nine and ten of this act shall take effect January 1, 2022. Effective immediately, the addition, amendment and/or repeal of any rule or regulation necessary for the implementation of this act on its effective date are authorized to be made and completed by the office of children and family services on or before such effective date. Laws of 2020, Ch 55, §1, enacted April 3, 2020 added an additional factor to the property distribution factors in Domestic Relations Law §236 [B]5] [d]. Factor 14 “any other factor which the court shall expressly find to be just and proper” was renumbered factor 15, and a new “domestic violence” factor 14 was added: (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. The amendment takes effect on May 3, 2020 and applies to matrimonial actions commenced on or after the effective date. Recent Legislation and Court Rules On March 1, 2020 the combined income cap under the Child Support Standards Act increased from $148,000 to $154,000, and of the income cap of the maintenance payor under the Maintenance Guidelines Act increased from $184,000 to $192,000. In addition, as of March 1, 2020 the Self Support Reserve increased from $16,861.50, to $17,226 and the federal Poverty Level Income for a single person increased from $12,490 to $12,760. For Chart & Forms seehttps://www.childsupport.ny.gov/dcse/pdfs/CSSA.pdf) and http://ww2.nycourts.gov/divorce/legislationandcourtrules.shtml Recent Legislation and Court Rules Laws of 2019, Ch 732 amended Family Court Act §§1055 and 1089 as well as of the Social Services Law section 358-a Laws of 2019, Ch 732[1] amended Family Court Act §§1055 and 1089 as well as of the Social Services Law section 358-a, to require an agency with which a child has been placed, either voluntarily or as a result of an abuse or neglect finding, or to whom guardianship and custody has been transferred as a result of the child being freed for adoption, to report to the attorney for the child not later than ten days in advance of any change in the child's placement status and not later than the next business day in any case in which an emergency placement change has been made. According to the memorandum in support of the legislation, first, it requires a report within five days of the date that any report of abuse or maltreatment is found to be indicated. Indicated reports include those naming the child and, where the subjects of the reports involve the person or persons caring for the child, reports naming other children in the home. It contains an important proviso that such reports notify the recipients that the information shall be kept confidential, shall be used only in connection with the child protective, foster care or related proceedings under the Family Court Act and may not be re-disclosed except as necessary for suchproceeding or proceedings and as authorized by law. Second, recognizing that fairness also dictates that such notifications be made to the attorneys for all parties, not simply the attorneys for the children, the measure requires that, except in cases involving children freed for adoption, both notices of changes in placement and indicated child maltreatment reports be conveyed to attorneys for the birth parents. Family Court Act §1017 was amended by adding a new subdivision 5 to read as follows: 5. In any case in which an order has been issued pursuant to this article remanding or placing a child in the custody of the local social services district, the social services official or authorized agency charged with custody or care of the child shall report any anticipated change in placement to the attorneys for the parties and the attorney for the child not later than ten days prior to such change in any case in which the child is moved from the foster home or program into which he or she has been placed or in which the foster parents move out of state with the child; provided, however, that where an immediate change of placement on an emergency basis is required, the report shall be transmitted no later than the next business day after such change in placement has been made. The social services official or authorized agency shall also submit a report to the attorneys for the parties and the attorney for the child or include in the placement change report any indicated report of child abuse or maltreatment concerning the child or (if a person or persons caring for the child is or are the subject of the report) another child in the same home within five days of the indi- cation of the report. The official or agency may protect the confiden- tiality of identifying or address information regarding the foster or prospective adoptive parents. Reports regarding indicated reports of child abuse or maltreatment provided pursuant to this subdivision shall include a statement advising recipients that the information in such report of child abuse or maltreatment shall be kept confidential, shall be used only in connection with a proceeding under this article or related proceedings under this act and may not be redisclosed except as necessary for such proceeding or proceedings and as authorized by law. Reports under this paragraph may be transmitted by any appropriate means, including, but not limited to, by electronic means or placement on the record during proceedings in family court.[2] Family Court Act, §1055 (b)(E) was repealed. [3] Family Court Act § 1055 was amended by adding a new subdivision (j) to read as follows: (j) In any case in which an order has been issued pursuant to this section placing a child in the custody or care of the commissioner of social services, the social services official or authorized agency charged with custody of the child shall report any anticipated change in placement to the attorneys for the parties and the attorney for the child not later than ten days prior to such change in any case in which the child is moved from the foster home or program into which he or she has been placed or in which the foster parents move out of state with the child; provided, however, that where an immediate change of place- ment on an emergency basis is required, the report shall be transmitted no later than the next business day after such change in placement has been made. The social services official or authorized agency shall also submit a report to the attorneys for the parties and the attorney for the child or include in the placement change report any indicated report of child abuse or maltreatment concerning the child or (if a person or persons caring for the child is or are the subject of the report) anoth- er child in the same home within five days of the indication of the report. The official or agency may protect the confidentiality of iden- tifying or address information regarding the foster or prospective adop- tive parents. Reports regarding indicated reports of child abuse or maltreatment provided pursuant to this subdivision shall include a statement advising recipients that the information in such report of child abuse or maltreatment shall be kept confidential, shall be used only in connection with a proceeding under this article or related proceedings under this act and may not be redisclosed except as neces- sary for such proceeding or proceedings and as authorized by law. Reports under this paragraph may be transmitted by any appropriate means, including, but not limited to, by electronic means or placement on the record during proceedings in family court. [4] Family Court Act 1089 (d) 2 (vii) was amended by adding a new clause (H) to read as follows: (H) a direction that the social services official or authorized agency charged with care and custody or guardianship and custody of the child, as applicable, report any anticipated change in placement to the attor- neys for the parties and the attorney for the child not later than ten days prior to such change in any case in which the child is moved from the foster home or program into which he or she has been placed or in which the foster parents move out of state with the child; provided, however, that where an immediate change of placement on an emergency basis is required, the report shall be transmitted no later than the next business day after such change in placement has been made. The social services official or authorized agency shall also submit a report to the attorneys for the parties and the attorney for the child or include in the placement change report any indicated report of child abuse or maltreatment concerning the child or (if a person or persons caring for the child is or are the subject of the report) another child in the same home within five days of the indication of the report. The official or agency may protect the confidentiality of identifying or address information regarding the foster or prospective adoptive parents. Reports under this paragraph shall not be sent to attorneys for birth parents whose parental rights have been terminated or who have surrendered their child or children. Reports regarding indicated reports of child abuse or maltreatment provided pursuant to this subdivision shall include a statement advising recipients that the information in such report of child abuse or maltreatment shall be kept confidential, shall be used only in connection with a proceeding under this article or related proceedings under this act and may not be redisclosed except as necessary for such proceeding or proceedings and as authorized by law. Reports under this paragraph may be transmitted by any appropriate means including, but not limited to, by electronic means or placement on the record during proceedings in family court; and [5] Social Services Law §358-a, subd. 3 was amended by adding a new paragraph (g) to read as follows: (g) In any case in which an order has been issued pursuant to this section approving a foster care placement instrument, the social services official or authorized agency charged with custody or care of the child shall report any anticipated change in placement to the attor- neys for the parties and the attorney for the child not later than ten days prior to such change in any case in which the child is moved from the foster home or program into which he or she has been placed or in which the foster parents move out of state with the child; provided, however, that where an immediate change of placement on an emergency basis is required, the report shall be transmitted no later than the next business day after such change in placement has been made. The social services official or authorized agency shall also submit a report to the attorneys for the parties and the attorney for the child or include in the placement change report any indicated report of child abuse or maltreatment concerning the child or (if a person or persons caring for the child is or are the subject of the report) another child in the same home within five days of the indication of the report. The official or agency may protect the confidentiality of identifying or address information regarding the foster or prospective adoptive parents. Reports regarding indicated reports of child abuse or maltreatment provided pursuant to this subdivision shall include a statement advising recipients that the information in such report of child abuse or maltreatment shall be kept confidential, shall be used only in connection with a proceeding under this section or related proceedings under the family court act and may not be redisclosed except as necessary for such proceeding or proceedings and as authorized by law. Reports under this paragraph may be transmitted by any appropriate means including, but not limited to, by electronic means or placement on the record during proceedings in family court. [6] Laws of 2019, Ch 716, enacted and effective December 20, 2019, amended Domestic Relations Law and the Civil Rights Law. Domestic Relations Law section 15 was amended to amend the 'Notice to Applicant', which appears on every application for a marriage license, to include language that informs those seeking a license that either or both spouses may elect to change their middle name to his or her current last name, any former last name he or she has had, or the last name of the other spouse. Domestic Relations Law section 14-a was amended to include the option of changing a middle name on the marriage license. Civil Rights Law section 65 was amended to provide that any person may elect to resume the use of a former middle name upon divorce or annulment, and that the state shall not impose a fee to change the middle name on a state identifying document due to a change in marital status. The purpose of the amendments is to allow one or both parties to a marriage to elect to change their middle name on their marriage license. According to the memorandum in support of the legislation, many women and men are opting to change their last name upon marriage but want to keep their former last name in some capacity. One popular way to accomplish this is to keep the former last name as a new or second middle name. Many states allow for such a change to occur with ease on the marriage license, but New York did not. Domestic Relations Law § 15, subdiv.1 (b) was amended to read as follows: (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, 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)[7] Laws of 2019, Ch 712 enacted and effective on December 20, 2019, amended Domestic Relations Law §11-a, subd. 1 a to allow the New York City clerk to designate additional staff members as he or she deems necessary to officiate marriages. Domestic Relations Law §11-a, subd. 1 a was amended to read as follows: 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. Laws of 2019, Ch 663, enacted on December 12, 2019, effective 90 days after it becomes a law, amended Family Court Act § 812, subd. 5, and Criminal Procedure Law § 530.11. Family Court Act § 812 and Criminal Procedure Law § 530.11, include protections for alleged victims of domestic violence. The statutes placed responsibility upon law enforcement, prosecutors and the courts to ensure by written notice that victims are made aware of their rights, of the expectations they may have to obtain assistance from both the civil and criminal justice systems and of the remedies and resources available to them. The notice must be in writing in both English and Spanish and must recite the statutory language verbatim. The required language in the notice was overly complex. Family Court Act § 812 and Criminal Procedure Law § 530.11 were amended substantially simplify the language contained in the notice while, at the same time, expanding the breadth of information it provides. The measure also provides that the notice be made available, at minimum, in plain English, Spanish, Russian and Chinese. Family Court Act 812, subd. 5 provides: 5. Notice. Every police officer, peace officer or district attorney investigating a family offense under this article shall advise the victim of the availability of a shelter or other services in the commu- nity, and shall immediately give the victim written notice of the legal rights and remedies available to a victim of a family offense under the relevant provisions of this act and the criminal procedure law. Such notice shall be available, at minimum, in plain English, Spanish, Chinese and Russian and, if necessary, shall be delivered orally and shall include but not be limited to the information contained in the following state- ment: "Are you the victim of domestic violence? If you need help now, you can call 911 for the police to come to you. You can also call a domestic violence hotline. You can have a confidential talk with an advocate at the hotline about help you can get in your community including: where you can get treat- ment for injuries, where you can get shelter, where you can get support, and what you can do to be safe. The New York State 24-hour Domestic & Sexual Violence Hotline number is (insert the statewide multilingual 800 number). They can give you information in many languages. If you are deaf or hard of hearing, call 711. This is what the police can do: They can help you and your children find a safe place such as a family or friend's house or a shelter in your community. You can ask the officer to take you or help you and your children get to a safe place in your community. They can help connect you to a local domestic violence program. They can help you get to a hospital or clinic for medical care. They can help you get your personal belongings. They must complete a report discussing the incident. They will give you a copy of this police report before they leave the scene. It is free. They may, and sometimes must, arrest the person who harmed you if you are the victim of a crime. The person arrested could be released at any time, so it is important to plan for your safety. If you have been abused or threatened, this is what you can ask the police or district attorney to do: File a criminal complaint against the person who harmed you. Ask the criminal court to issue an order of protection for you and your child if the district attorney files a criminal case with the court. Give you information about filing a family offense petition in your local family court. You also have the right to ask the family court for an order of protection for you and your children. This is what you can ask the family court to do: To have your family offense petition filed the same day you go to court. To have your request heard in court the same day you file or the next day court is open. Only a judge can issue an order of protection. The judge does that as part of a criminal or family court case against the person who harmed you. An order of protection in family court or in criminal court can say: That the other person have no contact or communication with you by mail, phone, computer or through other people. That the other person stay away from you and your children, your home, job or school. That the other person not assault, harass, threaten, strangle, or commit another family offense against you or your children. That the other person turn in their firearms and firearms licenses, and not get any more firearms. That you have temporary custody of your children. That the other person pay temporary child support. That the other person not harm your pets or service animals. If the family court is closed because it is night, a weekend, or a holiday, you can go to a criminal court to ask for an order of protection. If you do not speak English or cannot speak it well, you can ask the police, the district attorney, or the criminal or family court to get you an interpreter who speaks your language. The interpreter can help you explain what happened. You can get the forms you need to ask for an order of protection at your local family court (insert addresses and contact information for courts). You can also get them online: www.NYCourts.gov/forms. You do not need a lawyer to ask for an order of protection. You have a right to get a lawyer in the family court. If the family court finds that you cannot afford to pay for a lawyer, it must get you one for free. If you file a complaint or family court petition, you will be asked to swear to its truthfulness because it is a crime to file a legal document that you know is false." The division of criminal justice services in consultation with the state office for the prevention of domestic violence shall prepare the form of such written notice consistent with the provisions of this section and distribute copies thereof to the appropriate law enforcement officials pursuant to subdivision nine of section eight hundred forty- one of the executive law. Additionally, copies of such notice shall be provided to the chief administrator of the courts to be distributed to victims of family offenses through the family court at such time as such persons first come before the court and to the state department of health for distribution to all hospitals defined under article twenty- eight of the public health law. No cause of action for damages shall arise in favor of any person by reason of any failure to comply with the provisions of this subdivision except upon a showing of gross negligence or willful misconduct. [8] Laws of 2019, Ch 627, enacted December 12, 2019 and effective immediately amended CPLR 3215 (b) to outline the procedure for an inquest on a default judgment. A defendant who defaults in appearing concedes only liability. Therefore, the defaulting defendant may still contest damages at an inquest. In Rokina Opt. Co. v Camera King, , 63 N.Y.2d 728, 730 supra, the Court of Appeals held that "judgment against a defaulting party may be entered only upon application to the court along with notice to the defaulting party and 'a full opportunity to cross-examine witnesses, give testimony and offer proof in mitigation of damages'." As amended, CPLR 3215 (b) provides that a party entitled to judgment may be permitted to submit, in addition to the proof required by CPLR 3215 (f), properly executed affidavits or affirmations as proof of damages. However, if the defaulting party gives reasonable notice that it will appear at the inquest, the party seeking damages may submit any proof required by CPLR 3215 (f), by oral testimony of the witnesses in open court or, after giving reasonable notice that it will do so, by written sworn statements of the witnesses. If the party seeking judgment gives such notice and submits proof by written sworn statements, he or she must make all of those witnesses available for cross-examination. CRPL 3215(b) was amended to read as follows: (b) Procedure before court. The court, with or without a jury, may make an assessment or take an account or proof, or may direct a refer- ence. The party entitled to judgment may be permitted to submit, in addition to the proof required by subdivision (f) of this section, prop- erly executed affidavits or affirmations as proof of damages, provided that if the defaulting party gives reasonable notice that it will appear at the inquest, the party seeking damages may submit any such proof by oral testimony of the witnesses in open court or, after giving reason- able notice that it will do so, by written sworn statements of the witnesses, but shall make all such witnesses available for cross-exami- nation. When a reference is directed, the court may direct that the report be returned to it for further action or, except where otherwise prescribed by law, that judgment be entered by the clerk in accordance with the report without any further application. Except in a matrimonial action, no finding of fact in writing shall be necessary to the entry of a judgment on default. The judgment shall not exceed in amount or differ in type from that demanded in the complaint or stated in the notice served pursuant to subdivision (b) of rule 305 of this chapter. Laws of 2019, Ch 623, enacted December 12, 2019 amended the Family Court Act § 657(c) to include non-parents with lawful orders of custody as persons who may make medical decisions for minors in their care. Laws of 2019, Ch 623, amended the Family Court Act § 657(c) to add persons possessing a lawful order of custody as persons who have the right and responsibility, alongside the current provision of those possessing a lawful order of guardianship, to make medical decisions and necessary consents regarding the child in their care. It also amended Public Health Law Section 2504(4) to include non-parents with lawful orders of custody along with parents and guardians as persons whose consent is not needed for the provision of medical, dental, health and hospital services when in the Family Court Act § 657 (c) provides: (c) Notwithstanding any other provision of law to the contrary, persons possessing a lawful order of guardianship or custody of a child shall have the right and responsibility to make decisions, including issuing any necessary consents, regarding the child's protection, educa- tion, care and control, health and medical needs, and the physical custody of the person of the child. Provided, however, that nothing in this subdivision shall be construed to limit the ability of a child to consent to his or her own medical care as may be otherwise provided by law. Laws of 2019, Ch 602, enacted December 6, 2019 amended Family Court Act § 322.4. Family Court Act section 322.2(4) was amended to provide that dismissal of a petition upon issuance of an order of commitment "constitutes a bar to further prosecution of the charge or charges contained in the petition." Family Court Act section 322.2(4), paragraphs (a), (c) and (d) of subdivision 5 and subdivision 6 were amended to read as follows: 4. If the court finds that there is probable cause to believe that the respondent committed a misdemeanor, the respondent shall be committed to the custody of the appropriate commissioner for a reasonable period not to exceed ninety days. Unless the court specifies that such commitment shall be in a residential facility, such commissioner having custody may arrange for treatment in an appropriate facility or program, including an outpatient program, in accordance with subdivision (e) of section 7.09 or subdivision (c-1) of section 13.09 respectively, of the mental hygiene law. The court shall dismiss the petition on the issuance of the order of commitment and such dismissal shall constitute a bar to further prosecution of the charge or charges contained in the petition. (a) If the court finds that there is probable cause to believe that the respondent committed a felony, it shall order the respondent commit- ted to the custody of the commissioner of mental health or the commis- sioner of the office for people with developmental disabilities for an initial period not to exceed one year from the date of such order. Unless the court specifies that such commitment shall be in a residen- tial facility, such commissioner having custody may arrange for treat- ment in an appropriate facility or program, including an outpatient program, in accordance with subdivision (e) of section 7.09 or subdivi- sion (c-1) of section 13.09 respectively, of the mental hygiene law. Such period may be extended annually upon further application to the court by the commissioner having custody or his or her designee. Such application must be made not more than sixty days prior to the expira- tion of such period on forms that have been prescribed by the chief administrator of the courts. At that time, the commissioner must give written notice of the application to the respondent, the counsel repres- enting the respondent and the mental hygiene legal service if the respondent is at a residential facility. Upon receipt of such applica- tion, the court must conduct a hearing to determine the issue of capaci- ty. If, at the conclusion of a hearing conducted pursuant to this subdi- vision, the court finds that the respondent is no longer incapacitated, he or she shall be returned to the family court for further proceedings pursuant to this article. If the court is satisfied that the respondent continues to be incapacitated, the court shall authorize continued custody of the respondent by the commissioner in a facility or program for a period not to exceed one year. Such extensions shall not continue beyond a reasonable period of time necessary to determine whether the respondent will attain the capacity to proceed to a fact finding hearing in the foreseeable future but in no event shall continue beyond the respondent's eighteenth birthday or, if the respondent was at least sixteen years of age when the act was committed, beyond the respondent's twenty-first birthday. (c) If the court finds that there is probable cause to believe that the respondent has committed a designated felony act, the court shall require that treatment be provided in a residential facility within the appropriate office of the department of mental hygiene or in an outpa- tient facility if the commissioner having custody of the child petitions the court pursuant to subdivision seven of this section and such court approves. (d) The commissioner shall review the condition of the respondent within forty-five days after the respondent is committed to the custody of the commissioner. He or she shall make a second review within ninety days after the respondent is committed to his or her custody. Thereaft- er, he or she shall review the condition of the respondent every ninety days. The respondent and the counsel for the respondent, shall be noti- fied of any such review and afforded an opportunity to be heard. The commissioner having custody shall apply to the court for an order dismissing the petition whenever he or she determines that there is a substantial probability that the respondent will continue to be incapac- itated for the foreseeable future. At the time of such application the commissioner must give written notice of the application to the respond- ent, the presentment agency and the mental hygiene legal service if the respondent is at a residential facility. Upon receipt of such applica- tion, the court may on its own motion conduct a hearing to determine whether there is substantial probability that the respondent will continue to be incapacitated for the foreseeable future, and it must conduct such hearing if a demand therefor is made by the respondent or the mental hygiene legal service within ten days from the date that notice of the application was given to them. The respondent may apply to the court for an order of dismissal on the same ground. 6. Any order pursuant to this section dismissing a petition shall not preclude an application for voluntary or involuntary care and treatment in a facility or program of the appropriate office of the department of mental hygiene pursuant to the provisions of the mental hygiene law. Unless the respondent is admitted pursuant to such an application he or she shall be released.[9] Family Court Act § 322.2, subd. 7 was amended to to permit treatment services to be provided on an outpatient basis for youth deemed by the Family Court to lack capacity upon application by the Commissioner of Mental Health or of People With Developmental Disabilities and with approval of the Court. Family Court Act section 322.2, subdivision 7 was amended to read as follows 7. If the commissioner having custody of a child committed to a resi- dential facility pursuant to subdivision four or paragraph (a) of subdi- vision five of this section determines at any time that such child may be more appropriately treated in a non-residential facility or on an outpatient basis, he or she may arrange for such treatment. If the commissioner having custody of a child committed to a residential facil- ity pursuant to paragraph (c) of subdivision five of this section deter- mines at any time that such child may be more appropriately treated in a non-residential facility or on an outpatient basis, he or she may peti- tion the family court for a hearing. If the court finds after a hearing that treatment in a non-residential facility or on an outpatient basis would be more appropriate for such child, the court shall modify its order of commitment to direct the commissioner to transfer the child to a non-residential facility or arrange outpatient treatment. Application for a hearing to determine whether any child committed to a residential facility under subdivisions four or five of this section may be more appropriately treated in a non-residen- tial facility or on an outpatient basis may be made by the respondent. [10] Laws of 2019, Ch 602, enacted December 6, 2019 amended Family Court Act § 322.1 Family Court Act § 322.1 was amended to remove the requirement that examinations be conducted in a hospital setting in order to provide that, where a juvenile respondent is in custody, the examination may be conducted where the juvenile is in custody 'so long as no reasonable outpatient setting is available." This is consistent with the decision of the Family Court in Matter of Justin L., 56 Misc.3d 1167 (Fam. CL, Kings Co., 2017), in which the court's Mental Health Service Clinic was ordered to send evaluators to the juvenile detention center since Bellevue Hospital maintained that its clinicians were not trained to perform capacity examinations for juveniles. Family Court Act § 322.1, subd.1 was amended to read as follows: 1. At any proceeding under this article, the court must issue an order that the respondent be examined as provided herein when it is of the opinion that the respondent may be an incapacitated person. Notwith- standing the provisions of this or any other law, the court may direct that the examination be conducted on an outpatient basis. If the respondent is in custody at the time the court issues an order of examination, the examination may be conducted at the place where the respondent is being held in custody so long as no reasonable alternative outpatient setting is available. The court shall order that two quali- fied psychiatric examiners as defined in subdivision seven of section 730.10 of the criminal procedure law examine the respondent to determine if he or she may be diagnosed as a person with mental illness or an intellectual or developmental disability.[11] Laws of 2019, Ch 529 amended CPLR 4503 (a) (2) (A), approved and effective November 20, 2019 to add clause (iii) and to add lifetime trustee to (a)(2)(B). CPLR § 4503 provides as follows: § 4503. Attorney (a) 1. Confidential communication privileged. Unless the client waives the privilege, an attorney or his or her employee, or any person who obtains without the knowledge of the client evidence of a confidential communication made between the attorney or his or her employee and the client in the course of professional employment, shall not disclose, or be allowed to disclose such communication, nor shall the client be compelled to disclose such communication, in any action, disciplinary trial or hearing, or administrative action, proceeding or hearing conducted by or on behalf of any state, municipal or local governmental agency or by the legislature or any committee or body thereof. Evidence of any such communication obtained by any such person, and evidence resulting therefrom, shall not be disclosed by any state, municipal or local governmental agency or by the legislature or any committee or body thereof. The relationship of an attorney and client shall exist between a professional service corporation organized under article fifteen of the business corporation law to practice as an attorney and counselor-at-law and the clients to whom it renders legal services. 2. Personal representatives. (A) For purposes of the attorney-client privilege, if the client is a personal representative and the attorney represents the personal representative in that capacity, in the absence of an agreement between the attorney and the personal representative to the contrary: (i) No beneficiary of the estate is, or shall be treated as, the client of the attorney solely by reason of his or her status as beneficiary; (ii) The existence of a fiduciary relationship between the personal representative and a beneficiary of the estate does not by itself constitute or give rise to any waiver of the privilege for confidential communications made in the course of professional employment between the attorney or his or her employee and the personal representative who is the client; and (iii) The fiduciary's testimony that he or she has relied on the attorney's advice shall not by itself constitute such a waiver. (B) For purposes of this paragraph, “personal representative” shall mean (i) the administrator, administrator c.t.a., ancillary administrator, executor, preliminary executor, temporary administrator, lifetime trustee or trustee to whom letters have been issued within the meaning of subdivision thirty-four of section one hundred three of the surrogate's court procedure act, and (ii) the guardian of an incapacitated communicant if and to the extent that the order appointing such guardian under subdivision (c) of section 81.16 of the mental hygiene law or any subsequent order of any court expressly provides that the guardian is to be the personal representative of the incapacitated communicant for purposes of this section; “beneficiary” shall have the meaning set forth in subdivision eight of section one hundred three of the surrogate's court procedure act and “estate” shall have the meaning set forth in subdivision nineteen of section one hundred three of the surrogate's court procedure act. (b) Wills and revocable trusts. In any action involving the probate, validity or construction of a will or, after the grantor's death, a revocable trust, an attorney or his employee shall be required to disclose information as to the preparation, execution or revocation of any will, revocable trust, or other relevant instrument, but he shall not be allowed to disclose any communication privileged under subdivision (a) which would tend to disgrace the memory of the decedent. [1] § 6. This act shall take effect immediately, provided that sections one, three, four and five of this act shall take effect on the one hundred twentieth day after it shall have become a law; provided, howev- er, that section two of this act shall be deemed to have taken effect on the same date as section 1 of chapter 342 of the laws of 2010, took effect. Effective immediately, the addition, amendment and/or repeal of any rule or regulation necessary for the implementation of this act on its effective date are authorized to be made and completed on or before such effective date. [2] Laws of 2019, Ch 732, § 1. [3] Laws of 2019, Ch 732, § 2. [4] Laws of 2019, Ch 732, § 3. [5] Laws of 2019, Ch 732, § 4. [6] Laws of 2019, Ch 732, § 5. [7] Laws of 2019, Ch 716, §2 [8] There was an identical amendment to Criminal Procedure Law § 530.11. [9] Laws of 2019, Ch 602, § 2. [10] Laws of 2019, Ch 602, § 2. [11] Laws of 2019, Ch 602, § 1. Laws of 2019, Ch 523, enacted and effective November 20, 2019, amended Family Court Act § 412(2)(d), Domestic Relations Law § 236[B](5-a) (b)(5) and Domestic Relations Law § 236[B](6)(b)(4) Laws of 2019, Ch 523, enacted and effective November 20, 2019, amended the Family Court Act and the Domestic Relations Law to change the biennial date of adjustment of the "income cap" under the maintenance guidelines law to coincide with the biennial adjustment date of the "income cap" under the Child Support Standards Act. Family Court Act § 412(2)(d), Domestic Relations Law § 236B(5-a)(b)(5) and § 236B(6)(b)(4) were amended to fix the date of the biennial adjustment of the temporary, post-divorce and spousal maintenance "income caps" at March 1" rather than January 31', as currently provided. By making the date March 1st rather than January 31st, the adjustment of the maintenance income cap would coincide with the date of adjustment of the child support combined parental income cap, as well as the date of adjustment of the federal poverty income level and self-support reserve. The maintenance guidelines law which was enacted in 2015 provided that the maintenance income cap would be set initially at $175,000 and would increase pursuant to an adjustment formula keyed to increases in the CPI on January 31, 2016 and every two years thereafter. January 31' was the date set for adjustment of the temporary maintenance income cap under the temporary maintenance law, enacted in 2010, in effect prior to enactment of the maintenance guidelines law. It also was the date that the child support combined income cap pursuant to the Child Support Standards Act would have been adjusted. However, effective January 31, 2016, the date of adjustment of the Child Support Combined Income Cap was changed to March 1" rather than January 31' to conform with the date of adjustment of the self-support reserve pursuant to Social Services Law § 111-I (2)(b). The adjustment date of the maintenance income cap was changed so that the adjustments in the maintenance and child support income caps all occur at the same time. Family Court Act § 412(2)(d) was amended to read as follows: (d) "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. (Laws of 2019, Ch 523, § 1, effective November 20, 2019) Domestic Relations Law § 236[B](5-a) (b)(5) was amended to read as follows: (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. (Laws of 2019, Ch 523, § 2, effective November 20, 2019) Domestic Relations Law § 236[B](6)(b)(4) was amended to read as follows: (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. (Laws of 2019, Ch 523, § 3, effective November 20, 2019) Laws of 2019, Ch 434 enacted October 29, 2019, amended Family Court Act § 1028-a (i), effective October 29, 2019. Family Court Act § 1028-a(a)(i) defines who may apply to become a foster parent under the circumstances described in that section. Applicants had been limited to relatives who were related within the third degree of consanguinity to either parent. This class of applicants excluded non-blood relatives, such as step-grandparents and "fictive" kin, who are included in the class of kinship foster parents who may exit foster care and become kinship guardianship with subsidies pursuant to social services law section 458-a thru 458-f. Family Court Act § 1028-a was amended to include to include, as eligible to apply to become foster parents, all persons who are related to children as described in social services law §458-a (3) (a), (b), or (c) who meet Family Court Act § 1028-a requirements. Family Court Act § 1028-a provides: § 1028-a. Application of a relative to become a foster parent (a) Upon the application of a relative to become a foster parent of a child in foster care, the court shall, subject to the provisions of this subdivision, hold a hearing to determine whether the child should be placed with a relative in foster care. Such hearing shall only be held if: (i) the person is related to the child as described under paragraph (a), (b), or (c) of subdivision three of section four hundred fifty-eight-a of the social services law; (ii) the child has been temporarily removed under this part, or placed pursuant to section one thousand fifty-five of this article, and placed in non-relative foster care; (iii) the relative indicates a willingness to become the foster parent for such child and has not refused previously to be considered as a foster parent or custodian of the child, provided, however, that an inability to provide immediate care for the child due to a lack of resources or inadequate housing, educational or other arrangements necessary to care appropriately for the child shall not constitute a previous refusal; (iv) the local social services district has refused to place the child with the relative for reasons other than the relative's failure to qualify as a foster parent pursuant to the regulations of the office of children and family services; and (v) the application is brought within six months from the date the relative received notice that the child was being removed or had been removed from his or her home and no later than twelve months from the date that the child was removed. (b) The court shall give due consideration to such application and shall make the determination as to whether the child should be placed in foster care with the relative based on the best interests of the child. (c) After such hearing, if the court determines that placement in foster care with the relative is in the best interests of the child, the court shall direct the local commissioner of social services, pursuant to regulations of the office of children and family services, to commence an investigation of the home of the relative within twenty-four hours and thereafter expedite approval or certification of such relative, if qualified, as a foster parent. No child, however, shall be placed with a relative prior to final approval or certification of such relative as a foster parent. (Added L.2005, c. 671, § 3, eff. March 15, 2006. Amended L.2006, c. 12, § 2, eff. March 15, 2006; L.2019, c. 434, § 1, eff. Oct. 29, 2019.) Laws of 2019, Ch 491, effective January 15, 2020, amended Domestic Relations Law §112 and Public Health Law The public health law was amended by adding a new section, § 4138-e. According to the Assembly Memorandum in support of the legislation the amendment is intended to restore adult adoptees' right to access information that non-adopted persons, including those who "age-out" of foster care, have a legal right to obtain. In New York, an adopted person cannot access his or her original birth certificate unless the adopted person goes through a judicial proceeding and, even then, the outcome does not guarantee that access will be granted. This amendment will allow adult adoptees, or if the adopted person is deceased, the adopted person's direct line descendants, or the lawful representatives of such adopted person (living) or lawful representatives of such deceased adopted person's direct line descendants, to obtain a certified copy of the adopted person's original long form birth certificate. Adoptees will continue, under existing law, to be able to secure "non-identifying" information which may include, but not be limited to, their religious and ethnic heritage and medical history information that may be necessary for preventive health care and the treatment of illnesses linked to family history and genetics. To whatever extent "non-identifying" information may be unavailable, the restoration of the civil right to one's own original birth certificate will restore equal opportunity for seeking such information. Public Health Law § 4138-e provides that an adopted person eighteen years of age, or if the adopted person is deceased, the adopted person's direct line descendants, or the lawful representatives of such adopted person, or lawful representatives of such deceased adopted person's direct line descendants can obtain a certified copy of the adopted person's original long form birth certificate, from the commissioner or a local registrar, in the same manner as such certificates are available to persons born in the state of New York who were not adopted. It also requires the commissioner to provide the adopted person or other authorized person with the background information about the adopted child and the adopted child's birth parents sent to the commissioner pursuant to subdivision 1 of § 114 of the domestic relations law. In addition, in the event that the commissioner does not have the original birth certificate of an adopted person, it requires courts and other agencies that have records containing the information that would have appeared on the adopted person's original long form birth certificate to provide such information, including all identifying information about the adopted person's birth parents, to the adult adopted person or other authorized person upon a simple written request therefor that includes proof of identity. (Section 1) Public Health Law § 4138, subd 4 was amended to authorize the commissioner to make microfilm or other suitable copies of an original certificate of birth in accordance with section 4138-e and to authorize the commissioner to provide a certified copy of the original long form certificate of birth to an adult adopted person in accordance with § 4138-e of the public health law. (Section 2) Public health law § 4138 subd. 5 was amended to state that a certified copy of the original long form certificate of birth of such a person shall be issued to an adult adopted person in accordance with § 4138-e of the public health law. (Section 3) Public Health Law § 4138 subd. 3 (a) was amended to authorize a local registrar to provide a certified copy of the original long form certificate of birth to an adult adopted person in accordance with § 4138-e of the public health law. (Section 4) Public Health Law § 4138 subd. 3 (b) was amended to authorize a local registrar to provide a certified copy of the original long form certificate of birth to an adult adopted person in accordance with § 4138-e of the public health law. (Section 5) Public Health Law § 4138 subd. 8 was added of the public health law to authorize adopted persons eighteen years of age or older, or the birth parent (s), to submit a change of name and/or address to be attached to the original birth certificate of the adopted person. (Section 6) Public Health Law § 4138-d was amended to remove the provision that allows an adoption agency to restrict access to non-identifying information that is not in the best interest of the adoptee, the biological sibling or the birth parent(s). (Section 7) Public Health Law § 4104 was amended to include additional provisions under vital statistics that would be applicable to the city of New York. (Section 8) Domestic Relations Law § 114, subd. 1 was amended to require that any order of adoption direct that the information to be provided to the adoptive parents about the child and the child's birth parents shall include the child's and birthparents' information at the time of surrender and, in addition, that the information provided to the adoptive parents also be provided to the commissioner of health. (Section 9) The effective date of the amendments is January 15, 2020. (Section 10) Laws of 2019, Ch 258, effective September 16, 2019 Laws of 2019, Ch 258, enacted September 16, 2019 amended Domestic Relations Law §110 by adding a new closing paragraph which provides: A petition to adopt, 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. According to the Assembly Memorandum in support of the Legislation, under existing New York law, judges already have the ability to grant an adoption of a child by a petitioner whose parentage is already legally-recognized. These adoptions are routinely granted and can be very important for many same-sex couples and their children. While the spouse of a woman who gives birth to a child is presumed to be the child's parent, same-sex couples find themselves in a legally precarious position when traveling in places that do not fully respect the rights of non-biological parents even when they are married. A New York adoption would be honored in another jurisdiction, and afforded full faith and credit. This gives children the security that both their parents will be legally recognized wherever family members may be. Laws of 2019, Ch 313 effective September 13, 2019 Laws of 2019, Ch 313 enacted September 13, 2019 amended the Domestic Relations Law (DRL) and the Family Court Act (FCA) to specify that the incarceration of the child support obligor is not to be treated as voluntary unemployment in either the establishment or modification of a support order unless such incarceration is the result of non-payment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment. The amendments provide that incarceration shall not be a bar to establish a substantial change in circumstances, barring these exceptions. (amendments are underlined below) Domestic Relations Law § 240 (1-b) (b) (5) (v) was amended to provide that incarceration shall not be considered voluntary unemployment in establishing child support obligations, except in certain situations. The amendment reads as follows: (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, unless such incarceration is the result of non- payment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment; Domestic Relations Law § 236 [B] (9) (b) (2) (i) was amended to provide that incarceration shall not be considered voluntary unemployment in modifying child support obligations and shall not be a bar to establish a substantial change in circumstances, except in certain situations. Domestic Relations Law § 236 [B] (9) (b) (2) (i) was amended to read as follows: (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 provided such incarceration is not the result of non-payment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment. Family Court Act § 413 subd. 1 (b) (5) (v) was amended to provide that incarceration shall not be considered voluntary unemployment in establishing child support obligations, except in certain situations. Family Court Act § 413 subd. 1 (b) (5) (v) was amended to read as follows: (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, unless such incarceration is the result of non- payment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment; Family Court Act § 451 subd. 3 (a) was amended to provide that incarceration shall not be considered voluntary unemployment in modifying child support obligations and shall not be a bar to establish a substantial change in circumstances, except in certain situations. Family Court Act § 451 subd. 3 (a) was amended to read as follows: (a) 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 provided such incarceration is not the result of non-payment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment. Social Services Law § 111-g, subd. 3 (a) was amended to comply with the mandatory provision of the federal Bipartisan Budget Act of 2018 to increase from $25 to $35 the annual service fee for providing child support services in the case of an individual who has never received Title IV-A assistance. In addition, the Social Services Law was amended to comply with the federal requirement to increase from $500 to $550 the amount of support that the State must collect and disburse to the family prior to imposing the fee for each federal fiscal year. Social Services Law § 111-g, subd. 3 (a) was amended to read as follows: (a) A person who is receiving child support services pursuant to this section who has never received assistance pursuant to title IV-A of the federal social security act shall be subject to an annual service fee of thirty-five dollars for each child support case if at least five hundred fifty dollars of support has been collected in the federal fiscal year. Where a custodial parent has children with different noncustodial parents, the order payable by each noncustodial parent shall be a separate child support case for the purpose of imposing an annual service fee. The fee shall be deducted from child support payments received on behalf of the individual receiving services. According to the Assembly Memorandum in support of the Legislation, the bill implements federal requirements and provides that incarceration shall not be a bar to establish a substantial change in circumstance, unless such incarceration is the result of non-payment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment. Because incarceration cannot be treated as voluntary unemployment (except in the enumerated circumstances), support awards for incarcerated individuals will not be imputed from pre-incarceration earnings. Instead, modification would be based on the incarcerated individual's current financial circumstances. If there is a basis for a modification, the child support guidelines would be applied to the incarcerated individual's current income and assets to determine his or her new support obligation. While incarceration itself would not be grounds for a modification, any significant reduction in the noncustodial parent's ability to pay support could be the basis of a downward modification (except in the enumerated circumstances). Domestic Relations Law §240 (1-c) (b) was amended by Laws of 2019, Ch 182 to add to subdivision (B) which provides that There is a rebuttable presumption that it is not in the best interests of the child to 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. ►Laws of 2019, Ch 182, §1, effective September 22, 2019. Family Court Act §651 (a) was amended by Laws of 2019, Ch 182, read as follows: When referred from the supreme court or county court to the family court, the family court has jurisdiction to determine, in accordance with subdivisions one and one-c of section two hundred forty of the domestic relations law and with the same powers possessed by the supreme court in addition to its own powers, habeas corpus proceedings and proceedings brought by petition and order to show cause, for the determination of the custody or visitation of minors. Laws of 2019, Ch 182, §2, effective September 22, 2019. Unlawful dissemination or publication of an intimate image added to Family Court Act §812 Laws of 2019, Ch 109 added the crime of unlawful dissemination or publication of an intimate image to the Penal Law as § 245.15 effective September 21, 2019. It amended Family Court Act 812 to include it in the list of crimes that constitute a family offense and added it to Criminal Procedure Law 530. 11 The Civil Rights Law was amended to add new cause of action, in Civil Rights Law § 52–b titled Private right of action for unlawful dissemination or publication of an intimate image. It provides, among other things, that any person depicted in a still or video image, regardless of whether or not the original still or video image was consensually obtained, shall have a cause of action against an individual who, for the purpose of harassing, annoying or alarming such person, disseminated or published, or threatened to disseminate or publish, such still or video image, where such image: was taken when such person had a reasonable expectation that the image would remain private; and depicts (i) an unclothed or exposed intimate part of such person; or (ii) such person engaging in sexual conduct, as defined in subdivision ten of section 130.00 of the penal law, with another person; and was disseminated or published, or threatened to be disseminated or published, without the consent of such person. Appellate Division Revises Statement of Client Rights A Joint Order of the Departments of the New York State Supreme Court, Appellate Division adopted a Revised Form of Statement of Client’s Rights and Responsibilities pursuant to 22 NYCRR 1400.2, effective February 15, 2019. Laws of 2018, Ch 516 - CPLR 4511(c) - Judicial notice of Google Maps. Laws of 2018, Ch 516 amended CPLR 4511, effective December 28, 2018, to insert subdivision (c) which provides for a rebuttable presumption of judicial notice of web mapping or global imaging websites such as Google Maps. Every court must take judicial notice of an image, map, location, distance, calculation, or other information taken from a web mapping service, a global satellite imaging site, or an internet mapping tool, when requested by a party to the action, subject to a rebuttable presumption that such image, map, location, distance, calculation, or other information fairly and accurately depicts the evidence presented. The presumption may be rebutted by credible and reliable evidence that the image, map, location, distance, calculation, or other information taken from a web mapping service, a global satellite imaging site, or an internet mapping tool does not fairly and accurately portray that which it is being offered to prove. A party intending to offer the image or information at a trial or hearing must, at least 30 days before the trial or hearing, give notice of such intent, providing a copy or specifying the internet address at which the image or information may be inspected. No later than 10 days before the trial or hearing, a party upon whom the notice is served may object to the request for judicial notice of such image or information, stating the grounds for the objection. Unless objection is made pursuant to this provision, or is made at trial based upon evidence which could not have been discovered by the exercise of due diligence prior to the time for objection otherwise required by this provision, the court must take judicial notice of the image or information. Former subdivisions (c) and (d) were renumbered as (d) and (e). Laws of 2018, Ch 415 - Domestic Relations Law §11. Domestic Relations Law §11 was amended effective December 21, 2018, by adding a new subdivision 2-a which adds to the list of those persons who may solemnize a marriage, a member of the New York state legislature, provided that he or she does not charge or receive a fee. Laws of 2018, Chapter 362 Laws of 2018, Ch 362 amended amend Articles seven and ten of the Family Court Act with regard to PINS and child protective proceedings involving truancy allegations. The Chapter: Amended Family Court Act § 735 to require designated lead PINS diversion agencies to review and document efforts by school districts to resolve truancy or school misbehavior in all PINS proceedings containing such allegations regardless of the potential petitioner Amended Family Court Act § 736 to require that the school district or local educational agency be notified of the court proceeding and be allowed to participate and provide assistance where the court determines that such participation and /or assistance would aid in the resolution of the petition. Amended Family Court Act § 742 of the Family Court Act to permit the court to refer PINS proceedings to diversion agencies at any stage in the proceeding. To minimize the unnecessary filing of educational neglect petitions against parents, the amendment adds provisions that, in effect, establish a rebuttable presumption in favor of diversion. Amended the definition of educational neglect in Family Court Act § 1012(f) to require proof of parental failure to provide educational services to a child "notwithstanding the efforts of the school district or local educational agency and child protective agency to ameliorate such alleged failure prior to the filing of the petition," thus making failure to resolve educational problems through diversion a prerequisite to filing. Amended Family Court Act § 1031 to require that these efforts be recited in the petition, along with "the grounds for concluding that the education-related allegations could not be resolved absent the filing of a petition." Amended Family Court Act § 1035 to authorize Family Court to notify the school district or local educational agency and to allow their participation where the court determines that such participation and /or assistance would aid in the resolution of the petition. (See 2018 NY Legis Memo 362) Laws of 2018, Ch 60 - Family Court Act 842-a Laws of 2018, Ch 60, § 5, amended Section 842–a of the family court act to add rifles and shotguns to the list of weapons whose licenses may be suspended or revoked upon the issuance of a temporary order of protection or order of protection and to provide that upon the termination of any suspension order issued pursuant to this section, any court of record exercising criminal jurisdiction may order the return of a firearm, rifle or shotgun pursuant to paragraph b of subdivision five of section 530.14 of the criminal procedure law. Laws of 2018, Ch 55 - Family Court Act §821(1)(a) Family Court Act §821 (1)(a) was amended to add coercion in the third degree to the list of crimes that constitute a family offense. Laws of 2018, Chapter 218, Amended CPLR 2305 Chapter 218 amended CPLR 2305, effective August 24, 2018 to add a new subdivision (d) which gives counsel the option of having trial material delivered to the attorney or self-represented party at the return address set forth in the subpoena, rather than to the clerk of the court. Existing subdivision 2 provides: “Any person may comply with a subpoena duces tecum for a trial, hearing or examination by having the requisite books, documents or things produced by a person able to identify them and testify respecting their origin, purpose and custody.” CPLR 2305(d) provides as follows: (d) Subpoena duces tecum for a trial; service of subpoena and delivery for records. Where a trial subpoena directs service of the subpoenaed documents to the attorney or self-represented party at the return address set forth in the subpoena, a copy of the subpoena shall be served upon all parties simultaneously and the party receiving such subpoenaed records, in any format, shall deliver a complete copy of such records in the same format to all opposing counsel and self-represented parties where applicable, forthwith. The amendment was effective immediately and applies to all actions pending on or after such effective date. Laws of 2018, Chapter 217 added CPLR 4540-a Chapter 217 added CPLR 4540-a effective January 1, 2019 to eliminate the authentication burden often encountered by litigants who seek to introduce into evidence documents or other items authored or otherwise created by an adverse party who produced those materials in the course of pretrial disclosure. According to the Legislative memorandum in support of the legislation the genuineness of a document or other physical object must be established as a prerequisite to its admissibility when the relevance of the item depends upon its source or origin. But evidence of such authenticity should not be required if the party who purportedly authored or otherwise created the documents at issue has already admitted their authenticity. And if a party has responded to a pretrial litigation demand for its documents by producing those documents, the party has implicitly acknowledged their authenticity. Thus, in such cases, the presentation of evidence of authenticity is a waste of the court's time and an unnecessary burden on the proponent of the evidence. New CPLR 4540-a creates a rebuttable presumption that material produced by a party in response to a demand pursuant to article thirty- one of this chapter for material authored or otherwise created by such party shall be presumed authentic when offered into evidence by an adverse party. The presumption recognized by the statute applies only to the issue of authenticity or genuineness of the item. A party is free to assert any and all other objections that might be pertinent in the case, such as lack of relevance or violation of the best evidence rule. The Legislative memorandum noted that the adoption of the proposed new CPLR 4540-a would not preclude establishing authenticity by any other statutory or common law means. See CPLR 4543 ("Nothing in this article prevents the proof of a fact or a writing by any method authorized by any applicable statute or by the rules of evidence at common law."). CPLR 4540-a, effective January 1, 2019 reads as follows: Rule 4540-a. Presumption of authenticity based on a party's production of material authored or otherwise created by the party. Material produced by a party in response to a demand pursuant to article thirty-one of this chapter for material authored or otherwise created by such party shall be presumed authentic when offered into evidence by an adverse party. Such presumption may be rebutted by a preponderance of evidence proving such material is not authentic, and shall not preclude any other objection to admissibility. Laws of 2018, Chapter 235 adds new privileged communications Chapter 235 amended judiciary law section 498, effective August 24, 2018 by renumbering subdivision 2 as subdivision 3 and adding a new subdivision 2 that deems communications between a consumer of legal services and a legal or lawyer referral service to be privileged, similar to the attorney-client privilege. Judiciary Law §498, new subdivision 2 reads as follows: 2. The communications between a member or authorized agent of an association or society of attorneys or counselors at law and any person, persons or entity communicating with such member or authorized agent for the purpose of seeking or obtaining a professional referral shall be deemed to be privileged on the same basis as the privilege provided by law for communications between attorney and client. Such privilege may be waived only by the person, persons or entity who has furnished information to the association or society, its members or authorized agents. Recent Legislation Family Court Act §812 (1) amended The opening paragraph of Family Court Act §812 (1) has been amended to add coercion in the third degree as one of the crimes that constitutes a family offense. In now reads as follows: The family court and the criminal courts shall have concurrent jurisdiction over any proceeding concerning acts which would constitute disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, sexual misconduct, forcible touching, sexual abuse in the third degree, sexual abuse in the second degree as set forth in subdivision one of section 130.60 of the penal law, stalking in the first degree, stalking in the second degree, stalking in the third degree, stalking in the fourth degree, criminal mischief, menacing in the second degree, menacing in the third degree, reckless endangerment, criminal obstruction of breathing or blood circulation, strangulation in the second degree, strangulation in the first degree, assault in the second degree, assault in the third degree, an attempted assault, identity theft in the first degree, identity theft in the second degree, identity theft in the third degree, grand larceny in the fourth degree, grand larceny in the third degree, coercion in the second degree or coercion in the third degree as set forth in subdivisions one, two and three of section 135.60 of the penal law between spouses or former spouses, or between parent and child or between members of the same family or household except that if the respondent would not be criminally responsible by reason of age pursuant to section 30.00 of the penal law, then the family court shall have exclusive jurisdiction over such proceeding. Notwithstanding a complainant's election to proceed in family court, the criminal court shall not be divested of jurisdiction to hear a family offense proceeding pursuant to this section. In any proceeding pursuant to this article, a court shall not deny an order of protection, or dismiss a petition, solely on the basis that the acts or events alleged are not relatively contemporaneous with the date of the petition, the conclusion of the fact-finding or the conclusion of the dispositional hearing. For purposes of this article, “disorderly conduct” includes disorderly conduct not in a public place. For purposes of this article, "members of the same family or household" shall mean the following: Laws of 2018, Ch 55, Part NN, §5, Effective as provided in § 10 on November 1, 2018. Laws of 2017, Ch 35 amended the Domestic Relations Law to prohibit marriage of minors under seventeen years of age and amended the process to obtain court approval for marriage of persons at least seventeen years of age but under eighteen years of age. Domestic Relations Law § 15-a was amended to increase the age of minors who are prohibited from marrying to under seventeen years of age. Previously minors under fourteen years of age were prohibited from marrying. Domestic Relations Law § 13-b was amended to allow the solemnization of marriage of a party to be married to who is at least seventeen years upon the Court making written affirmative findings required under Domestic Relations Law § 15, subdivision 3. Formerly, the court could allow the solemnization of marriage by minor under sixteen years of age but over fourteen years of age. Domestic Relations Law §15, subdivisions 1(a), 2 and 3 were amended to require the town or city clerk to require each applicant for a marriage license to present documentary proof of age. In cases where it appears that either party is at least seventeen years of age but under eighteen years of age the process by which the written approval of a justice of the supreme court or a judge of the family court was obtained was amended to provide for, among other things: (i) the appointment of an attorney for the child for each minor party which attorney must have received training in domestic violence including a component on forced marriage; and (ii) prior to the justice of the supreme court or the judge of the family court issuing approval, the justice or judge must (1) provide notification to each minor party of his or her rights, including but not limited to, in relation to termination of the marriage, child and spousal support, domestic violence services and access to public benefits and other services (2) conduct, with respect to each party, including a minor party, a review of related decisions in court proceedings initiated pursuant to article ten of the family court act, and all warrants issued under the family court act, reports of the statewide computerized registry of orders of protection under section two hundred twenty-one-a of the executive law, and reports of the sex offender registry under section one hundred sixty-eight-b of the correction law, and (3) hold an in camera interview, separately with each minor party, and make written affirmative findings specified in subdivision 3, taking into consideration, among other relevant factors, the factors set forth in subdivision 3. The wishes of the parents or legal guardians of the minor intending to be married shall not be the sole basis for consent or approval under this subdivision. According to the Sponsor’s memorandum in support of this legislation parents force their children into marriages, citing reasons such as protecting "family honor," controlling the child's behavior and/or sexuality, and enhancing the family's status. Such reasons are reminiscent of the reasons for allowing girls age fourteen and over but under age sixteen to marry with court approval in 1929. The occurrence of child marriage is not limited to a particular culture or religion, but is widespread in the United States. Child marriage or forced marriage, or both, occur in families across faiths, including Muslim, Christian, Hindu, Buddhist, Sikh, Orthodox Jew, Mormon and Unification Church. Tactics such as threats of ostracism, beatings or death are used to force children to marry against their will. Under the Penal Law, a child under 17 does not have the capacity to consent to sex. It is statutory rape for an adult to have sex with a 16-year old but if he is married to her he can force her to have non-consensual sex as often as he likes. Marriage at any age before 18, undermines girls' health, education and economic opportunities, and increases their likelihood of experiencing violence. As a matter of public policy, no parent or court should be permitted to bind a child under the age of seventeen to a contract where the child lacks the capacity as well as the opportunity to consent. This legislation is intended to strengthen the process as applied to marriage of persons at least seventeen but under eighteen years of age. See 2017 NY Legis Memo 35. Chief Administrative Judge Adopts New Rules for Matrimonial Actions By Administrative Order A/O/100/17, 22 NYCRR §202.50 (b) was amended to add a new section 202.50 (b)(3). The new section requires that every Uncontested and Contested Judgment of Divorce contain certain decretal paragraphs, including one concerning the venue where post judgment applications for modification or enforcement in Supreme Court should be brought. 22 NYCRR §202.50 (b)(3), which is effective August 1, 2017, provides as follows: 202.50. Proposed Judgments in Matrimonial Actions; Forms * * * (b) Approved Forms. * * * (3) Additional Requirement with Respect to Uncontested and Contested Judgments of Divorce. In addition to satisfying the requirements of paragraphs (1) and (2) of this subdivision, every judgment of divorce, whether uncontested or contested, shall include language substantially in accordance with the following decretal paragraphs which shall supersede any inconsistent decretal paragraphs currently required for such forms: ORDERED AND ADJUDGED that the Settlement Agreement entered into between the parties on the ___ day of ____, [ ] an original OR [ ] a transcript of which is on file with this Court and incorporated herein by reference, shall survive and shall not be merged into this judgment, * and the parties are hereby directed to comply with all legally enforceable terms and conditions of said agreement as if such terms and conditions were set forth in their entirety herein; and it is further * In contested actions, this paragraph may read either [shall survive and shall not be merged into this judgment] or [shall not survive and shall be merged into this judgment]. ORDERED AND ADJUDGED, that the Supreme Court shall retain jurisdiction to hear any applications to enforce the provisions of said Settlement Agreement or to enforce or modify the provisions of this judgment, provided the court retains jurisdiction of the matter concurrently with the Family Court for the purpose of specifically enforcing, such of the provisions of that (separation agreement) (stipulation agreement) as are capable of specific enforcement, to the extent permitted by law, and of modifying such judgment with respect to maintenance, support, custody or visitation to the extent permitted by law, or both; and it is further ORDERED AND ADJUDGED, that any applications brought in Supreme Court to enforce the provisions of said Settlement Agreement or to enforce or modify the provisions of this judgment shall be brought in a County wherein one of the parties resides; provided that if there are minor children of the marriage, such applications shall be brought in a county wherein one of the parties or the child or children reside, except. in the discretion of the judge, for good cause. Good cause applications shall be made by motion or order to show cause. Where the address of either party and any child or children is unknown and not a matter of public record, or is subject to an existing confidentiality order pursuant to DRL § 254 or FCA § 154-b, such applications may be brought in the county where the judgment was entered; and it is further By Administrative Order A/O/99/17, 22 NYCRR §202 was amended to add a new section 202.16-b.The new section addresses the submission of written applications in contested matrimonial actions. The new rules contain limitations which are applicable to to the submission of papers on pendente lite applications for alimony, maintenance, counsel fees, child support, exclusive occupancy, custody and visitation unless the requirements are waived by the judge for good cause shown. Among other things, all orders to show cause and motions must be in Times New Roman, font 12 and double spaced. The supporting affidavit or affidavit in opposition or attorney affirmation in support or opposition or memorandum of law may not exceed twenty (20) pages. Any expert affidavit may not exceed eight (8) additional pages. Reply affidavits or affirmations may not exceed ten (10) pages. Surreply affidavits can only be submitted with prior court permission. 22 NYCRR 202.16 - b, which is effective July 1, 2017, provides as follows: §202.16-b Submission of Written Applications in Contested Matrimonial Actions. (1) Applicability. This section shall be applicable to all contested matrimonial actions and proceedings in Supreme Court authorized by subdivision (2) of Part B of section 236 of the Domestic Relations Law. (2) Unless otherwise expressly provided by any provision of the CPLR or other statute, and in addition to the requirements of 22 NYCRR §202.16 (k) where applicable, the following rules and limitations are required for the submission of papers on pendente lite applications for alimony, maintenance, counsel fees, child support, exclusive occupancy, custody and visitation unless said requirements are waived by the judge for good cause shown: (i) Applications that are deemed an emergency must comply with 22 NYCRR §202.7 and provide for notice, where applicable, in accordance with same. These emergency applications shall receive a preference by the clerk for processing and the court for signature. Designating an application as an emergency without good cause may be punishable by the issuance of sanctions pursuant to Part 130 of the Rules of the Chief Administrative Judge. Any application designated as an emergency without good cause shall be processed and considered in the ordinary course of local court procedures. (ii) Where practicable. all orders to show cause, motions or cross motions for relief should be made in one order to show cause or motion or cross-motion. (iii) All orders to show cause and motions or cross motions shall be submitted on one-sided copy except as otherwise provided in 22 NYCRR §202.5(at or electronically where authorized, with one-inch margins on eight and one half by eleven (8.5 x 11) inch paper with all additional exhibits tabbed. They shall be in Times New Roman font 12 and double spaced. They must be of sufficient quality ink to allow for the reading and proper scanning of the documents. Self-represented litigants may submit handwritten applications provided that the handwriting is legible and otherwise in conformity with these rules. (iv) The supporting affidavit or affidavit in opposition or attorney affirmation in support or opposition or memorandum of law shall not exceed twenty (20) pages. Any expert affidavit required shall not exceed eight (8) additional pages. Any attorney affirmation in support or opposition or memorandum of law shall contain only discussion and argument on issues of law except for facts known only to the attorney. Any reply affidavits or affirmations to the extent permitted shall not exceed ten (10) pages. Surreply affidavits can only be submitted with prior court permission. (v) Except for affidavits of net worth (pursuant to 22 NYCRR §202.16 (b)), retainer agreements (pursuant to Rule 1400.3 of the Joint Rules of the Appellate Division). maintenance guidelines worksheets and/or child support worksheets, or counsel fee billing statements or affirmations or affidavits related to counsel fees (pursuant to Domestic Relations Law §237 and 22 NYCRR §202.16(k))' all of which may include attachments thereto,all exhibits annexed to any motion, cross motion, order to show cause, opposition or reply may not be greater than three (3) inches thick without prior permission of the court. All exhibits must contain exhibit tabs. (vi) If the application or responsive papers exceed the page or size limitation provided in this section, counsel or the self-represented litigant must certify in good faith the need to exceed such limitation, and the court may reject or require revision of the application if the court deems the reasons insufficient. (3) Nothing contained herein shall prevent a judge or justice of the court or of a judicial district within which the court sits from establishing local part rules to the contrary or in addition to these rules. By Administrative Order A/O 102/17, the Uncontested Divorce Packet Forms were modified to reflect the increases as of March 1, 2017 in the Self Support Reserve to $16,281 and in the Poverty Level Income for a single person to $12,060. (see https://childsupport.ny.gov/dcse/child_support_standards.html). Domestic Relations Law § 245 amended effective September 29, 2016 Domestic Relations Law § 245, which authorizes the remedy of contempt, pursuant to Judiciary Law §756 et.seq., to enforce a judgment or order for the payment of a sum of money awarded in a matrimonial action, was amended to allow an application for contempt to be made without any prior application for enforcement by any other means. The amendment eliminates the requirement of demonstrating presumptively, to the satisfaction of the court, in the order to show cause bringing on the application, that payment cannot be enforced pursuant to DRL§ 243, DRL§ 244, CPLR 5241 or CPLR 5242. Domestic Relations Law § 245, as amended, provides: § 245. Enforcement by contempt proceedings of judgment or order in action for divorce, separation or annulment. Where a spouse, in an action for divorce, separation, annulment or declaration of nullity of a void marriage, or for the enforcement in this state of a judgment for divorce, separation, annulment or declaration of nullity of a void marriage rendered in another state, makes default in paying any sum of money as required by the judgment or order directing the payment thereof, the aggrieved spouse may make application pursuant to the provisions of section seven hundred fifty-six of the judiciary law to punish the defaulting spouse for contempt, and where the judgment or order directs the payment to be made in installments, or at stated intervals, failure to make such single payment or installment may be punished as therein provided, and such punishment, either by fine or commitment, shall not be a bar to a subsequent proceeding to punish the defaulting spouse as for a contempt for failure to pay subsequent installments, but for such purpose such spouse may be proceeded against under the said order in the same manner and with the same effect as though such installment payment was directed to be paid by a separate and distinct order, and the provisions of the civil rights law are hereby superseded so far as they are in conflict therewith. Such application may also be made without any previous sequestration or direction to give security or any application for enforcement by any other means. No demand of any kind upon the defaulting spouse shall be necessary in order that he or she be proceeded against and punished for failure to make any such payment or to pay any such installment; personal service upon the defaulting spouse of an uncertified copy of the judgment or order under which the default has occurred shall be sufficient. (Laws of 2016, Ch 345, § 1, enacted September 29, 2016, and effective immediately as provided in §2.) Prior to the amendment the applicant had to establish presumptively in the affidavit in support of the application that payment could not be enforced pursuant to DRL§ 243, DRL§ 244, CPLR 5241 or CPLR 5242. or that these remedies would be ineffectual. Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (Hague Child Support Convention) Ratified. On August 30, 2016 President Obama signed the Instrument of Ratification for the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (Hague Child Support Convention). This is the first global child support treaty ratified by the United States. See http://www.acf.hhs.gov/css/resource/us-ratification-of-hague-child-support-convention Laws of 2015, Chapter 572 amended CPLR 2103 effective January 1, 2016. CPLR 2103(b)(2) was amended to provide that where a period of time prescribed by law is measured from the service of a paper and service is made by mail outside of the state of New York, but within the geographic boundries of the United States, six days shall be added to the prescribed period. The definition of mailing in CPLR 2103(f)(1) was amended to authorize mailing in the United States, rather than the state of New York. The purpose of the amendment was so that the rule for mailing service would correspond with that for overnight delivery service in CPLR 2103(b)(6). The Sponsors memorandum in support of the legislation also noted a decision by the Appellate Division, First Department, holding the service by mail made outside the State was insufficient (M. Entertainment, Inc. v. Leydier, 62 A.D.3d 627 (reversed on other grounds, 13 N.Y.3d 827). The amendment authorizes service by mail outside the state, but within the geographical boundries of the United States. Laws of 2015, Chapter 567 (effective June 18, 2016) Domestic Relations Law§ 240, subdivision 1 (a) was amended and subdivision (c-1) was added to Family Court Act § 651 (c-1). The purpose of the legislation was to underscore that custody standards apply in cases where custody and visitation petitions brought under these sections are heard jointly with child protective dispositional or permanency hearings in Family Court under Article 10 or 10-A of the Family Court Act. The following provision was inserted into Domestic Relations Law§ 240 subdivision 1 (a): 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. The following provision was added to Family Court Act §651: (c–1) Where a proceeding filed pursuant to article ten or ten-A of this act is pending at the same time as a proceeding brought in the family court pursuant to this article, the court presiding over the proceeding under article ten or ten-A of this act may jointly hear the hearing on the custody and visitation petition under this article and the dispositional hearing on the petition under article ten or the permanency hearing under article ten-A of this act; provided, however, the court must determine the custody and visitation petition in accordance with the terms of this article. Laws of 2015, Ch 447 Laws of 2015, Ch 447 amended Domestic Relations Law §237 (a) effective November 20, 2015, and applicable to all actions whenever commenced, to provide that an unrepresented litigant shall not be required to file an affidavit detailing fee arrangements when making an application for an award of counsel fees and expenses. However, as a condition precedent to not being required to file such affidavit the unrepresented litigant must have 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. According to the New York Assembly Memorandum in Support of the Legislation the purpose of the amendment was “to make clear that indigent pro se litigants may make an application for an award of fees necessary to obtain counsel without the formal requirement of an affidavit detailing fee arrangements with counsel, provided proof has been submitted of an inability to afford counsel.” New Temporary Maintenance Guidelines Apply Only to Actions Commenced on or after October 25, 2015 The new temporary maintenance guidelines apply in matrimonial actions commencement on or after October 25, 2015. Click on the following links to go to the New temporary maintenance calculator worksheet and calculator which appear on the New York Court System website. See Laws of 2015, Ch 269, which provides that section three of the act, which amended Domestic Relations Law 235[B][5-a] dealing with Temporary Maintenance Awards, “ shall take effect on the thirtieth day after it shall have become a law and shall apply to matrimonial actions commenced on or after such effective date.” The other sections of the Act are effective January 23, 2016. Click on this link for the Temporary Maintenance Calculator Worksheet for Use in Actions Commenced before October 25, 2015 Laws of 2015, Ch 387, approved October 26, 2015, effective January 24, 2016. The statutory provisions for child support have been amended to reflect the fact that spousal maintenance is money no longer available as income to the payor, but constitutes income to the payee, so long as the order or agreement for such maintenance lasts. Domestic Relations Law § 240(1-b)(5)(iii) and Family Court Act § 413(1)(b)(5)(iii) were amended to add a new subclause (I) to each that requires that alimony or spousal maintenance actually paid to a spouse who is a party to the action must be added to the recipient spouse's income, provided that the order contains an automatic adjustment to take effect upon the termination of the maintenance award. According to the New York Assembly Memorandum in Support of Legislation this addition would be based upon an amount already paid, e.g., an amount reported on the recipient spouse's last income tax return, and would not simply be an estimate of future payments. Domestic Relations Law § 240(1-b)(5)(vii)(C) and Family Court Act § 413(1)(b)(5)(vii)(C) were amended to clarify that, where spousal maintenance payments are deducted from the payor's income, the order must contain a specific provision adjusting the child support amount automatically upon the termination of the spousal maintenance award. According to the New York Assembly Memorandum in Support of Legislation this relieves the custodial parent of the burden of moving for a modification of the child support order upon the termination of maintenance but leaves open the possibility for either or both parties to seek a modification of the automatic adjustment if, at the point where maintenance terminates, the income of either of the parties has changed in an amount that would qualify for modification under Family Court Act § 451(3)(b)(ii) or Domestic Relations Law § 236B(9)(b)(2)(ii), e.g., in excess of 15% or a lapse of three years or more. The specific adjustment in the amount of child support is without prejudice to either party's right to seek a modification in accordance with Family Court Act § 451(3) or Domestic Relations Law § 236B(9)(b)(2) with the proviso that in a subsequent action for modification, the inclusion of the specific adjustment shall not by itself constitute a "substantial change of circumstances." Laws of 2015, Ch 347, § 1 amended Social Services Law § 111-i to align the timing of the adjustment of the Combined Parental Income Adjustment with the adjustment of the poverty income guidelines amount for a single person and the self-support reserve. Laws of 2015, Ch 369 Laws of 2015, Ch 369, § 2 repealed Article 5-B of the Family Court Act and enacted the 2008 version of the Uniform Interstate Family Support Act (UIFSA) as a new Article 5-B of the Family Court Act. Chapter 369 was signed into law on September 25, 2015. Section 1 is effective on December 24, 2015. New Article 5-B to the Family Court Act applies to any action or proceeding filed or order issued on or before the effective date of new Article 5-B, consistent with new section 580-903 of the Family Court Act which shall be effective on January 1, 2016. Laws of 2015, Ch 269 Laws of 2015, Ch 269 amended Domestic Relations Law §236 [B][1][a], Domestic Relations Law §236 [B][5][d][7], Domestic Relations Law §236 [B][6], Domestic Relations Law § 248, Domestic Relations Law §236 [B][9][1], Family Court Act § 412, effective January 23, 2016, and amended Domestic Relations Law § 236 [B][5-a], effective October 25, 2015. [Click for a Commentary on the Amendments] Summary of the Amendments The amendments eliminated “enhanced earning capacity as a marital asset” for purposes of equitable distribution (Domestic Relations Law §236 [B] [5] [d] [7]) but did not eliminate as a factor the direct or indirect contributions to the development during the marriage of the enhanced earning capacity of the other spouse. They adopted mandatory guidelines with formulas for the calculation of maintenance and spousal support awards, (Domestic Relations Law §236 [B] [6] and Family Court Act § 412), added actual or partial retirement as a ground for modification of post-divorce maintenance where it results in a substantial diminution of income. (Domestic Relations Law §236 [B] [9] [1]) and made Domestic Relations Law § 248 gender neutral. Income Cap Lowered The amendments lowered the income cap for the formula portion of temporary maintenance awards, (Domestic Relations Law § 236 [B] [5-a]) from the current $543,000 to $175,000 of the payor's income. An income cap of $175,000 cap applies to post-divorce maintenance awards and spousal support awards. Temporary Maintenance There is a new formula for determining temporary maintenance. In determining temporary maintenance, the court can allocate the responsibility for payment of specific family expenses between the parties. The temporary maintenance award must terminate no later than the issuance of a judgment of divorce or the death of either party. This amendment is intended to clarify that the Supreme Court has the power to limit the duration of temporary maintenance. New Formulas for Calculating Temporary Maintenance, Post-Divorce Maintenance and Spousal Support There are now mandatory formulas for the calculation of maintenance and spousal support awards. There are two formulas to be used in calculating maintenance and spousal support: one where child support will be paid and where the temporary maintenance payor, post-divorce maintenance payor or spousal support payor is also the non-custodial parent for child support purposes; and one where child support will not be paid, or where it will be paid but the temporary maintenance payor, post-divorce maintenance payor or spousal support payor is the custodial parent for child support purposes. Those formulas are as follows: a. With child support where the temporary maintenance payor, post-divorce maintenance payor or spousal support payor is also the non-custodial parent for child support purposes: (i) subtract 25% of the maintenance payee's income from 20% of the maintenance payor's income; (ii) multiply the sum of the maintenance payor's income and the maintenance payee's income by 40% and subtract the maintenance payee's income from the result; (iii) the lower of the two amounts will be the guideline amount of maintenance; b. Without child support, or with child support but where the temporary maintenance payor, post-divorce maintenance payor or spousal support payor is the custodial parent for child support purposes: (i) subtract 20% of the maintenance payee's income from 30% of the maintenance payor's income; (ii) multiply the sum of the maintenance payor's income and the maintenance payee's income by 40% and subtract the maintenance payee's income from the result; (iii) the lower of the two amounts will be the guideline amount of maintenance. Post-Divorce Maintenance Guidelines The definition of income for post-divorce maintenance includes income from income-producing property that is being equitably distributed. Factors the court may consider in post-divorce maintenance now include termination of child support, and income or imputed income on assets being equitably distributed. There is an “advisory” durational formula for determining the duration of post-divorce maintenance awards. However, nothing prevents the court from awarding non-durational, post-divorce maintenance in an appropriate case. In determining the duration of maintenance, the court is required to consider anticipated retirement assets, benefits and retirement eligibility age. Modification of Post-Divorce Maintenance Actual or partial retirement is a ground for modification of post-divorce maintenance assuming it results in a substantial diminution of income. Spousal Support Guidelines for Family Court Spousal support guidelines are established for Family Court using the same two formulas set forth for maintenance guidelines, as follows: one where child support will be paid and where the spousal support payor is also the non-custodial parent for child support purposes; and one where child support will not be paid, or where child support will be paid but the spousal support payor is the custodial parent for child support purposes. The $175,000 income cap applies. The court may adjust the guideline amount of spousal support up to the income cap where it finds that the guideline amount of spousal support is unjust or inappropriate after consideration of one or more factors, which shall be set forth in the court's written or on the record decision. Where there is income over the cap, additional spousal support may be awarded after consideration of one or more factors, which shall be set forth in the court's written or on the record decision. A new factor for the court to consider in spousal support awards as well as maintenance awards is termination of a child support award. The Family Court may modify an order of spousal support upon a showing of a substantial change in circumstances. Unless so modified, spousal support orders set pursuant to the guidelines shall continue until the earliest to occur of a written or oral stipulation/agreement on the record, issuance of a judgment of divorce or other order in a matrimonial proceeding, or the death of either party. This is not intended to change current law with respect to Family Court's ability to terminate spousal support. (See NY Legis. Memo 237 (2015)). Effective Date The amendments become effective January 25, 2015 and apply to all matrimonial and Family Court actions for spousal support commenced on or after such effective date, including the provisions regarding post-divorce maintenance and spousal support awards. However, the provisions regarding temporary maintenance take effect October 25, 2015. |
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