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A06054 Summary:

BILL NOA06054
 
SAME ASNo Same As
 
SPONSORKolb
 
COSPNSRCrouch, Finch, Montesano, Lalor, Oaks
 
MLTSPNSRGiglio, Hawley
 
Amd Dom Rel L, generally; amd 358-a, 384-a, 384-b, 398, 398-d, 111-h & 111-b, Soc Serv L; amd Fam Ct Act, generally
 
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.
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A06054 Memo:

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.
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