FCA § 1085

Visitation and custody rights unenforceable; murder of parent, custodian, guardian, or child

§ 1085. Visitation and custody rights unenforceable; murder of parent, custodian, guardian, or child. 1. No visitation or custody order shall be enforceable under this part by a person who has been convicted of murder in the first or second degree in this state, or convicted of an offense in another jurisdiction which, if committed in this state, would constitute either murder in the first or second degree, of a parent, legal custodian, legal guardian, sibling, half-sibling or step-sibling of the child unless:

(i) (A) such child is of suitable age to signify assent and such child assents to such visitation or custody; or

(B) if such child is not of suitable age to signify assent the child's custodian or legal guardian assents to such order; or

(C) the person who has been convicted of murder in the first or second degree, or an offense in another jurisdiction which if committed in this state, would constitute either murder in the first or second degree, can prove by a preponderance of the evidence that:

(1) he or she, or a family or household member of either party, was a victim of domestic violence by the victim of such murder; and

(2) the domestic violence was causally related to the commission of such murder; and

(ii) the court finds that such visitation or custody is in the best interest of the child.

2. Pending determination of a petition for visitation or custody such child shall not visit and no person shall visit, with such child present, such person, legal guardian or legal custodian who has been convicted of murder in the first or second degree in this state, or an offense in another jurisdiction which, if committed in this state, would constitute either murder in the first or second degree, of the other parent, legal guardian, legal custodian, sibling, half-sibling or step-sibling of such child, without the consent of such child's custodian or legal guardian.

3. Nothing contained in this section shall be construed to require a court, without petition from any of the interested parties, to review a previously issued order of visitation or custody or denial of such petition.

4. For the purposes of making a determination pursuant to subparagraph (C) of paragraph (i) of subdivision one of this section, the court shall not be bound by the findings of fact, conclusions of law or ultimate conclusion as determined by the proceedings leading to the conviction of murder in the first or second degree in this state or of an offense in another jurisdiction which, if committed in this state, would constitute murder in either the first or second degree, of a parent, legal guardian, legal custodian, sibling, half-sibling or step-sibling of a child who is the subject of the proceeding. In all proceedings under this section, an attorney shall be appointed for the child.

Official sourcehttps://www.nysenate.gov/legislation/laws/FCT/1085

In plain English

No visitation/custody order is enforceable by a person convicted of first- or second-degree murder of the child's parent, custodian, guardian, or sibling — unless the child (or the child's custodian) assents, OR the convicted person proves by a preponderance they were a domestic-violence victim of the murder victim and the DV was causally related — and the court finds visitation/custody in the child's best interests. ★ Pending that determination, no visits. An attorney shall be appointed for the child in all § 1085 proceedings.

★ Exam hits:

Child = under 18. Standard of proof at fact-finding = PREPONDERANCE of the evidence; severe/repeated abuse = clear and convincing (§ 1046). Family Court has exclusive original jurisdiction (§ 1013).
The removal clocks: consent removal (§ 1021) and emergency removal w/o order (§§ 1024/1026) → petition by the next court day (§ 1026 allows a good-cause extension up to 3 court days); § 1022 court-ordered pre-petition removal → petition within 3 court days; § 1027 hearing = next court day after filing; § 1024 affidavit of service = within 24 hours (but not filing it ≠ return the child).
§ 1028 "return my child" hearing: within 3 court days, no adjournment; granted unless imminent risk to life/health.
§ 1029 TOP: vacated if no petition within 10 days. A TOP is not a finding of wrongdoing.
Summons appearance: removed child = 3 court days, not removed = 7 court days (§ 1035); abuse-case service within 2 court days (§ 1036); serve at least 24 hours before appearance.
Foster care 15 of the most recent 22 months → possible TPR petition (repeated warning). Indicated SCR report stays until 10 years after the youngest child's 18th birthday (§ 1051).
Duration caps: suspended judgment 1 yr (+1 exceptional) (§ 1053); release to non-respondent 1 yr (+1) (§ 1054); placement permanency date certain ≤ 8 months from removal; never past 21 (§ 1055); ACD ≤ 1 yr, restore → fact-finding within 60 days (§ 1039); QRTP review within 60 days (§§ 1017/1055-c).
Violations: willful supervision violation → jail up to 6 months (§ 1072). Terminate-placement motion needs a 30-day-no-return showing; answer in 5 days; can't renew for 90 days (§§ 1062–1066).
Only a child protective agency or a person on the court's direction may originate a case (§ 1032). Hearings are closed to the public (§ 1043). Sibling 10+ must be served on placement/contact motions (§§ 1027-a, 1081).

Verbatim statute: FCA - Article 10

Marked in the text: penalties, time limits, sums of money. Editorial emphasis added by this edition; it does not appear in the statute as enacted.

In print

This provision appears in Volume 5 — The JG-22 Family Court Act and in Volume 1 — The JG-22 in Plain English.