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A00330 Summary:

COSPNSRGalef, McEneny, Ignizio, Casale, O'Mara, Aubertine, Finch, Hooker, Quinn, Ortiz, Mayersohn, Schroeder
MLTSPNSRAlessi, 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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A00330 Text:

                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
          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.

        S. 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 cases
     5  there shall be no prima facie right to  the  custody  of  the  child  in
     6  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 cases
    37  there shall be no prima facie right to  the  custody  of  the  child  in
    38  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 shall

        S. 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  for

        S. 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.
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