|SAME AS||SAME AS UNI. S00291|
|COSPNSR||Galef, McEneny, Ignizio, Casale, O'Mara, Aubertine, Finch, Hooker, Quinn, Ortiz, Mayersohn, Schroeder|
|MLTSPNSR||Alessi, Benjamin, Boyland, Boyle, Burling, Calhoun, Canestrari, Crouch, Destito, Diaz R, Fitzpatrick, Hooper, Kolb, Koon, Lopez, Magee, McDonald, McDonough, Miller, Mosiello, Oaks, Peoples, Perry, Pretlow, Reilich, Reilly, Sweeney, Tonko, Townsend|
|Amd SS70 & 240, add S240-d, Dom Rel L|
|Establishes the presumption in matrimonial proceedings for awarding shared parenting of minor children in the absence of an allegation that shared parenting would be detrimental to the best interests of the child; establishes an order of preference in awarding custody; defines shared parenting and parenting plan.|
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STATE OF NEW YORK ________________________________________________________________________ S. 291 A. 330 2005-2006 Regular Sessions SENATE - ASSEMBLY January 12, 2005 ___________ IN SENATE -- Introduced by Sens. JOHNSON, MEIER, TRUNZO -- read twice and ordered printed, and when printed to be committed to the Committee on Children and Families IN ASSEMBLY -- Introduced by M. of A. WEISENBERG -- read once and referred to the Committee on Judiciary AN ACT to amend the domestic relations law, in relation to establishing a presumption of shared parenting of minor children in matrimonial proceedings The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Legislative findings. The legislature hereby finds and 2 declares that it is the public policy of the state to assure minor chil- 3 dren have frequent and continuing contact with both parents after the 4 parents have separated or dissolved their marriage and that it is in the 5 public interest to encourage parents to share the rights and responsi- 6 bilities of child-rearing in order to effectuate this policy. At the 7 outset and thereafter, in any proceeding where there is at issue the 8 custody of a minor child, the court may, during the pendency of the 9 proceeding or at any time thereafter, make such order for the custody of 10 minor children as may seem necessary or proper. The provisions of this 11 act establish a presumption, affecting the burden of proof, that shared 12 parenting is in the best interests of minor children. 13 § 2. Subdivision (a) of section 70 of the domestic relations law, as 14 amended by chapter 457 of the laws of 1988, is amended to read as 15 follows: 16 (a) Where a minor child is residing within this state, either parent 17 may apply to the supreme court for a writ of habeas corpus to have such 18 minor child brought before such court; and on the return thereof, the 19 court, on due consideration, [ may] shall award the natural guardianship, 20 charge and custody of such child to [ either parent] both parents, in the EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD01428-01-5S. 291 2 A. 330 1 absence of an allegation that such shared parenting would be detrimental 2 to such child, for such time, under such regulations and restrictions, 3 and with such provisions and directions, as the case may require, and 4 may at any time thereafter vacate or modify such order. [ In all cases5 there shall be no prima facie right to the custody of the child in6 either parent, but the] The burden of proof that such shared parenting 7 would be detrimental to such child shall be upon the parent requesting 8 sole custody. The court shall determine solely what is for the best 9 interest of the child, and what will best promote [ its] the child's 10 welfare and happiness, and make award accordingly. 11 § 3. Paragraph (a) of subdivision 1 of section 240 of the domestic 12 relations law, as amended by chapter 624 of the laws of 2002, is amended 13 to read as follows: 14 (a) (i) In any action or proceeding brought (1) to annul a marriage or 15 to declare the nullity of a void marriage, or (2) for a separation, or 16 (3) for a divorce, or (4) to obtain, by a writ of habeas corpus or by 17 petition and order to show cause, the custody of or right to visitation 18 with any child of a marriage, the court shall require verification of 19 the status of any child of the marriage with respect to such child's 20 custody and support, including any prior orders, and shall enter orders 21 for custody and support as, in the court's discretion, justice requires, 22 having regard to the circumstances of the case and of the respective 23 parties and to the best interests of the child and subject to the 24 provisions of subdivision one-c of this section. Where either party to 25 an action concerning custody of or a right to visitation with a child 26 alleges in a sworn petition or complaint or sworn answer, cross-peti- 27 tion, counterclaim or other sworn responsive pleading that the other 28 party has committed an act of domestic violence against the party making 29 the allegation or a family or household member of either party, as such 30 family or household member is defined in article eight of the family 31 court act, and such allegations are proven by a preponderance of the 32 evidence, the court must consider the effect of such domestic violence 33 upon the best interests of the child, together with such other facts and 34 circumstances as the court deems relevant in making a direction pursuant 35 to this section. An order directing the payment of child support shall 36 contain the social security numbers of the named parties. [ In all cases37 there shall be no prima facie right to the custody of the child in38 either parent. Such direction] 39 (ii) Custody shall be awarded in the following order of preference, 40 according to the best interests of the child: 41 (1) To both parents jointly pursuant to section two hundred forty-d of 42 this article. In such cases the court must require the parents to 43 submit a parenting plan as defined in subdivision two of section two 44 hundred forty-d of this article for implementation of the custody order 45 or the parents acting individually or in concert may submit a custody 46 implementation plan to the court prior to issuance of a custody decree. 47 There shall be a presumption, affecting the burden of proof, that shared 48 parenting is in the best interests of a minor child unless the parents 49 have agreed to an award of custody to one parent or so agree in open 50 court at a hearing for the purpose of determining custody of a minor 51 child of the marriage or the court finds that shared parenting would be 52 detrimental to a particular child of a specific marriage. For the 53 purpose of assisting the court in making a determination whether an 54 award of shared parenting is appropriate, the court may direct that an 55 investigation be conducted. If the court declines to enter an order 56 awarding shared parenting pursuant to this paragraph, the court shallS. 291 3 A. 330 1 state in its decision the reasons for denial of an award of shared 2 parenting. In jurisdictions having a private or publicly-supported 3 conciliation service, the court or the parties may, at any time, pursu- 4 ant to local rules of court, consult with the conciliation service for 5 the purpose of assisting the parties to formulate a plan for implementa- 6 tion of the custody order or to resolve any controversy which has arisen 7 in the implementation of a plan for custody. Any order for shared 8 parenting may be modified or terminated upon the petition of one or both 9 parents or on the court's own motion if it is shown that the best inter- 10 ests of the child require modification or termination of the shared 11 parenting order. Any order for the custody of a minor child of a 12 marriage entered by a court in this state or in any other state, subject 13 to jurisdictional requirements, may be modified at any time to an order 14 of shared parenting in accordance with the provisions of this section. 15 (2) To either parent, in which case, the court, in making an order for 16 custody to either parent shall consider, among other factors, which 17 parent is more likely to allow the child or children frequent and 18 continuing contact with the noncustodial parent, and shall not prefer a 19 parent as custodian because of that parent's gender. The burden of proof 20 that shared parenting would not be in the child's best interest shall be 21 upon the parent requesting sole custody. Notwithstanding any other 22 provision of law, access to records and information pertaining to a 23 minor child, including but not limited to medical, dental and school 24 records, shall not be denied to a parent because the parent is not the 25 child's custodial parent. 26 (3) If to neither parent, to the person or persons in whose home the 27 child has been living in a nurturing and stable environment. 28 (4) To any other person or persons deemed by the court to be suitable 29 and able to provide a nurturing and stable environment. 30 Before the court makes any order awarding custody to a person or 31 persons other than a parent without the consent of the parents, it shall 32 make a finding that an award of custody to a parent would be detrimental 33 to the child and the award to a non-parent is required to serve the best 34 interests of the child. Allegations that parental custody would be 35 detrimental to the child, other than a statement of that ultimate fact, 36 shall not appear in the pleadings. The court may, in its discretion, 37 exclude the public from the hearing on this issue. The court shall state 38 in writing the reason for its decision and why the award made was found 39 to be in the best interests of the child. Any direction made pursuant to 40 this subdivision shall make provision for child support out of the prop- 41 erty of [ either or] both parents. The court shall make its award for 42 child support pursuant to subdivision one-b of this section. Such direc- 43 tion may provide for reasonable visitation rights to the maternal and/or 44 paternal grandparents of any child of the parties. Such direction as it 45 applies to rights of visitation with a child remanded or placed in the 46 care of a person, official, agency or institution pursuant to article 47 ten of the family court act, or pursuant to an instrument approved under 48 section three hundred fifty-eight-a of the social services law, shall be 49 enforceable pursuant to part eight of article ten of the family court 50 act and sections three hundred fifty-eight-a and three hundred eighty- 51 four-a of the social services law and other applicable provisions of law 52 against any person having care and custody, or temporary care and custo- 53 dy, of the child. Notwithstanding any other provision of law, any writ- 54 ten application or motion to the court for the establishment, modifica- 55 tion or enforcement of a child support obligation for persons not in 56 receipt of public assistance and care must contain either a request forS. 291 4 A. 330 1 child support enforcement services which would authorize the collection 2 of the support obligation by the immediate issuance of an income 3 execution for support enforcement as provided for by this chapter, 4 completed in the manner specified in section one hundred eleven-g of the 5 social services law; or a statement that the applicant has applied for 6 or is in receipt of such services; or a statement that the applicant 7 knows of the availability of such services, has declined them at this 8 time and where support enforcement services pursuant to section one 9 hundred eleven-g of the social services law have been declined that the 10 applicant understands that an income deduction order may be issued 11 pursuant to subdivision (c) of section fifty-two hundred forty-two of 12 the civil practice law and rules without other child support enforcement 13 services and that payment of an administrative fee may be required. The 14 court shall provide a copy of any such request for child support 15 enforcement services to the support collection unit of the appropriate 16 social services district any time it directs payments to be made to such 17 support collection unit. Additionally, the copy of any such request 18 shall be accompanied by the name, address and social security number of 19 the parties; the date and place of the parties' marriage; the name and 20 date of birth of the child or children; and the name and address of the 21 employers and income payors of the party from whom child support is 22 sought or from the party ordered to pay child support to the other 23 party. Such direction may require the payment of a sum or sums of money 24 either directly to the custodial parent or to third persons for goods or 25 services furnished for such child, or for both payments to the custodial 26 parent and to such third persons; provided, however, that unless the 27 party seeking or receiving child support has applied for or is receiving 28 such services, the court shall not direct such payments to be made to 29 the support collection unit, as established in section one hundred 30 eleven-h of the social services law. Every order directing the payment 31 of support shall require that if either parent currently, or at any time 32 in the future, has health insurance benefits available that may be 33 extended or obtained to cover the child, such parent is required to 34 exercise the option of additional coverage in favor of such child and 35 execute and deliver to such person any forms, notices, documents or 36 instruments necessary to assure timely payment of any health insurance 37 claims for such child. 38 § 4. The domestic relations law is amended by adding a new section 39 240-d to read as follows: 40 § 240-d. Custody of children. 1. Where the court considers awarding 41 shared parenting pursuant to the provisions of paragraph (a) of subdivi- 42 sion one of section two hundred forty of this article, "shared parent- 43 ing", shall mean an order awarding custody of the child to both parties 44 so that both parties share equally the legal responsibility and control 45 of such child and share equally the living experience in time and phys- 46 ical care to assure frequent and continuing contact with both parties, 47 as the court deems to be in the best interests of the child, taking into 48 consideration the location and circumstances of each party. The term 49 "shared parenting", shall be considered interchangeable with "nearly 50 equal shared parenting". An award of joint physical and legal custody 51 obligates the parties to exchange information concerning the health, 52 education and welfare of the minor child, and unless allocated, appor- 53 tioned or decreed, the parents or parties shall confer with one another 54 in the exercise of decision-making rights, responsibilities and authori- 55 ty.S. 291 5 A. 330 1 2. For the purposes of this article a "parenting plan", required to be 2 submitted to the court pursuant to clause one of subparagraph (ii) of 3 paragraph (a) of subdivision one of section two hundred forty of this 4 article, shall include but not be limited to: 5 (a) the legal responsibilities of each parent; 6 (b) a weekly parenting schedule; 7 (c) a holiday and vacation parenting schedule; 8 (d) a schedule for special occasions, including birthdays; 9 (e) a description of any specific decision making areas for each 10 parent provided, however, that both parents shall confer and jointly 11 determine major issues affecting the welfare of the child including 12 health, education, discipline and religion; 13 (f) if applicable, the need for any and all of the parties to partic- 14 ipate in counseling; 15 (g) any restrictions on either parent when in physical control of the 16 child or children; and 17 (h) provisions for mediation of disputes. 18 3. One parent may be designated as a public welfare recipient in situ- 19 ations where public welfare aid is deemed necessary and appropriate. In 20 making an order of shared parenting, the court shall specify the right 21 of each parent to the physical control of the child in sufficient detail 22 to enable a parent deprived of that control to enforce the court order 23 and to enable law enforcement authorities to implement laws for relief 24 of parental kidnapping and custodial interference. 25 § 5. This act shall take effect on the first of November next succeed- 26 ing the date on which it shall have become a law and shall apply to 27 actions and proceedings commenced on and after such date.