Makes numerous modifications to provisions of various laws relating to child custody matters; provides for shared parenting custody; provides for parenting time rather than visitation; provides for mediation and counseling in matrimonial actions involving children; establishes sanctions for interference with parenting time; provides for equality in the burden of child support between parents; bases child support on net income exclusive of income and FICA taxes; provides that child support ceases at age 18; requires contract support collection agents to be audited; deals with DNA evidence when question of paternity; increases parental access to information.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A6054
SPONSOR: Kolb (MS) TITLE OF BILL:
An act to amend the domestic relations law, in relation to establishing
a presumption of shared parenting of minor children in matrimonial
proceedings; to amend the domestic relations law, the social services
law and the family court act, in relation to changing the denotation of
visitation to parenting time; to amend the domestic relations law, in
relation to matrimonial actions involving custody of children; and in
relation to the obligations of child support; to amend the social
services law, in relation to audits of support collection fiscal agents;
to amend the family court act, in relation to opening all family court
proceedings to the public; to amend the family court act, in relation to
the review of evidence; to amend the family court act, in relation to
DNA evidence when question of paternity; to amend the domestic relations
law, in relation to parental access to information; and to amend the
family court act and the social services law, in relation to the payment
of child support
PURPOSE OR GENERAL IDEA OF BILL:
Establishes the "Family Court Reform Act of 2017." Makes numerous
modifications to provisions of various laws relating to child custody
matters.
SUMMARY OF SPECIFIC PROVISIONS:
Legislative Findings and intent: The Legislature hereby finds that, in
cases of child custody, the Court's paramount concern is always the best
interest of the child. Shared parenting, where both parents share as
equally as possible in the legal responsibility, living experience, and
physical care of the child; has been found to be in a child's best
interest in certain circumstances. Where the relationship between the
parent(s) and children is free from domestic violence, abuse, neglect
and other harmful circumstances, shared parenting is beneficial to both
parent(s) and children. This legislation seeks to encourage Courts and
interested parties to work toward the goal of shared parenting whenever
practical and when in the best interest of the child. Eliminates "visi-
tation" for non-prime custodial parent and substitutes "parenting time"
in all relevant portions of the law.
Upon the initial appearance in Court in an action for divorce, nullity,
or separate maintenance where custody, visitation or support of a minor
child is at issue, and where both parties agree to shared parenting, the
Court shall appoint an independent evaluator with expertise in the
field, including but not limited to, child psychology, domestic violence
counseling, etc., to investigate the family dynamic and interview the
parents, children and other interested parties, including but not limit-
ed to, family members, friends and co-workers.
The independent evaluator's goal is to determine whether shared parent-
ing is in the best interest of the child and to ensure that domestic
violence and/or any other type of abuse, reported or unreported by the
victim or by an appropriate federal, state or municipal agency, is not
present in the household setting.
The Court shall determine each party's ability to pay the cost related
to the evaluation. Any cost above and beyond the parents' ability to pay
shall be incurred by the county.
The Court shall utilize the independent evaluator's analysis and report,
along with other supporting documents provided by the parties, to deter-
mine the best interest of the child and to award custody based on that
determination.
If the Court provides an award of shared parenting, the Court shall
require the parties to attend mediation and family counseling for the
purposes of creating a parenting plan. The Court has final approval over
such plan and may modify, suspend or nullify the plan at its discretion.
The Court shall review the parenting plan in one year to determine if
such plan is being followed and if such plan continues to be in the best
interest of the child. The Court shall retain the power to modify,
suspend or nullify the plan based on its findings at this time.
If either parent accuses the other parent of domestic violence, sexual
abuse, etc., against him/herself, and/or the child, the Court shall
suspend its determination as to whether or not shared parenting is in
the best interest of the child, until the accusation has been investi-
gated and a determination has been made by law enforcement or appropri-
ate federal, state or municipal agencies. If such agencies determine
that the abuse occurred, shared parenting shall not be a custodial
option. If such agency finds that abuse was not present, the Court shall
resume its determination as to whether or not shared parenting is in the
best interest of the child. Should such allegations be proven false and
the court determines upon motion by the accused party that such allega-
tions were made maliciously and in bad faith, the court shall have the
power to sanction the accusing party.
If the parties are seeking a custody arrangement other than shared
parenting or where one parent objects to an award of shared parenting,
the Court must determine what custody arrangement is in the best inter-
est of the child. If one party is seeking shared parenting and the other
party is seeking sole custody, both parties shall bear the burden of
proof that their requested arrangement is in the best interest of the
child through the introduction of testimony and supporting documents,
etc. to the Court.
If one party sought shared parenting, and the Court found that such an
award would not be in the best interest of the child, the Court must
state its reasoning behind such determination in the order setting out
the custody award. The Court, in its discretion, may require the parent
who was not awarded shared parenting to fulfill certain conditions,
including but not limited to, parenting classes, general counseling,
anger management classes, and substance abuse counseling, and shall list
such conditions on the custody order. Upon the non-custodial parent's
motion, the court shall, one year following the initial award of custo-
dy, revisit its findings and make a subsequent determination whether or
not shared parenting is in the best interest of the child. Such review
is contingent on the non-custodial parent's completion of the conditions
set forth in the custody order.
Provides that interference with or withholding of parenting time without
cause results in immediate sanctions.
Proposes that both household incomes be considered when assigning
support amount. Provides that child support should be based on net
income not gross income; that is minus FICA, Federal and State tax
liability. The court is not required to order support for any minor
child who has become self-supporting, emancipated or married. When the
Court awards shared parenting the percentage used to determine the child
support order for the non-custodial parent will vary from what is
currently the standard in law for three children or fewer. In shared
parenting cases the following will apply: for one child it will be 10
percent the combined parental income; for two children 16 percent the
combined income; and for three children 26 percent the combined parental
income. However, the Court may require up to an additional seven percent
if there is a demonstrated need, based upon receipts for clothing, care,
medical attention, educational expenses, or other related expenses, and
the Court deems it necessary. For all other custody arrangements, the
current child support standard will apply. Directs local Child Support
Units to keep accurate records and issue quarterly statements to those
who pay support. Once a year, a motion can be filed by the non-custodial
parent to require an accounting by the custodial parent for all funds
expended upon the child or children, The Court shall use this accounting
to determine whether or not the funds are being misused or are not
fulfilling the needs of the child or children. Establishes an arbitrator
through the local child support collection to arbitrate disputes when
there are accusations of child arrearage in order to avert a court
appearance.
Every parent, except as prohibited by federal and state law, shall have
access to records and information pertaining to the health, education
and welfare of the child, whether or not the child resides with the
parent, unless that access is found by the court to be not in the best
interests of the child.
Allows the introduction of DNA testing results in questions of paterni-
ty, however the bill makes exemptions for cases where a sperm donor was
used and if the putative father was aware and consented to such use. If
paternity is negative, the court is mandated to order immediate cessa-
tion of all child support regardless of the length of time that has been
paid.
JUSTIFICATION:
Family Court is an adversarial forum where one side denounces the other,
allowing a "winner" and a "loser" to be declared. However, any child
will tell you that he/she is not looking for either parent to be evalu-
ated as a winner or loser. Children do not want to lose a parent. They
want to be able to love each parent fully, be taken care of in the
accustomed manner, and benefit from the qualities that both parents have
to offer.
When one parent is awarded sole custody or joint legal custody with
primary residence, the other parent is reduced to a peripheral "visitor"
status arid "granted" four days a month as the "standard" visitation. In
effect not only do parents get divorced, but children get divorced from
one of their parents.
This bill attempts to mitigate the adversarial nature of Family Court by
mandating mediation after the initial appearance in Family Court in a
divorce involving children. Moreover the bill establishes that in
certain circumstances, "shared parenting" is in the best interests of
the child. Furthermore, the legislation seeks to ensure that the child
support goes to the child's needs without being financially destructive
to the support-paying parent.
This bill also holds Family Court judges, Hearing Examiners, and attor-
neys for the child more accountable for their decisions as well as
empowering them to order immediate cessation of child support when
paternity is proved negative, as well as establishing policies to guar-
antee equitable arrangements for parenting time for nonlocal households.
PRIOR LEGISLATIVE HISTORY:
A.5676 (2015-16), Held in Judiciary;
A.6457 (2013-14), Held in Judiciary;
A.6690-A (2011-12), Held in Judiciary;
A.4559 (2009-10), Held in Judiciary;
A.2724 (2007-08), Held in Judiciary;
A.6670-A (2005-06), Held in Judiciary;
A.6269 (2003-04), Held in Judiciary;
A.2767-A (2001-02), Held in Judiciary;
A.10340 (2000), Referred to Judiciary.
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
To be determined.
EFFECTIVE DATE:
This act shall take effect on the first of January next succeeding the
date on which it shall have become law; provided that the amendments to
subdivision (a) of section 439 of the family court act, made by section
twenty-one of this act, shall be subject to the expiration and reversion
of such subdivision pursuant to subdivision 19 of section 246 of Chapter
81 of the Laws of 1995, as amended, when upon such date the provision of
section twenty-four of this act shall take effect and provided further
that any and all rules and regulations and any other measures necessary
to implement this act on its effective date may be promulgated or taken
on or before such date.
