A01421 Summary:

BILL NOA01421
 
SAME ASSAME AS UNI. S01473
 
SPONSORRobinson (MS)
 
COSPNSRTitus, Mayersohn, McEneny, Towns
 
MLTSPNSR
 
Add Art 5-B SS79 - 79-e, amd S240, Dom Rel L
 
Creates the parent-mediation program for child custody disputes; requires parents, who were in a dispute over the custody of their child or children, to participate in a court sponsored mediation program; provides that the mediator would be responsible for submitting the results of the process to the court, which in turn would enter an appropriate custody and support order.
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A01421 Actions:

BILL NOA01421
 
01/07/2011referred to judiciary
01/04/2012referred to judiciary
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A01421 Floor Votes:

There are no votes for this bill in this legislative session.
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A01421 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
            S. 1473                                                  A. 1421
 
                               2011-2012 Regular Sessions
 
                SENATE - ASSEMBLY
 
                                     January 7, 2011
                                       ___________
 
        IN SENATE -- Introduced by Sen. PERKINS -- read twice and ordered print-
          ed,  and when printed to be committed to the Committee on Children and
          Families
 
        IN ASSEMBLY -- Introduced by M. of A. ROBINSON, TITUS, MAYERSOHN, McENE-
          NY, TOWNS -- read once and referred to the Committee on Judiciary
 

        AN ACT to amend the domestic relations law, in relation  to  the  estab-
          lishment  and  use  of  a  parent-mediation  program for child custody
          disputes
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section 1. The domestic relations law is amended by adding a new arti-
     2  cle 5-B to read as follows:
     3                                  ARTICLE 5-B
     4             PARENT-MEDIATION PROGRAM FOR CHILD CUSTODY DISPUTES
     5  Section 79. Purpose.
     6          79-a. Definitions.
     7          79-b. Responsibility for mediation services.
     8          79-c. Mediation process.
     9          79-d. Training,  continuing  education,  and experience require-
    10                  ments for mediators and mediation supervisors.

    11          79-e. Ethics.
    12    § 79. Purpose. The purpose of this article is to provide  a  mediation
    13  program to parents who are in dispute over the custody of their child or
    14  children.
    15    § 79-a. Definitions. As used in this article:
    16    1.  "Court"  shall mean any court of this state authorized to enter an
    17  order of custody and/or support pursuant to paragraph (a) of subdivision
    18  one of section two hundred forty of this chapter.
    19    2. "Mediator" shall have the same meaning as given in subdivision  two
    20  of section eight hundred forty-nine-a of the judiciary law.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

                                                                   LBD00229-01-1

        S. 1473                             2                            A. 1421
 
     1    3.  "Mediation  supervisor"  shall  mean a mediator who has been given
     2  direct supervision over one or more other mediators.
     3    § 79-b. Responsibility for mediation services. 1. Any court with coun-
     4  ty-wide jurisdiction shall ensure that:
     5    (a)  Mediators  are  impartial, competent, and uphold the standards of
     6  practice pursuant to this article.
     7    (b) Mediation services and case management procedures implement  state
     8  law  and  allow  sufficient  time  for  parties  to receive orientation,
     9  participate fully in mediation, and develop  a  comprehensive  parenting

    10  plan without unduly compromising each party's right to due process and a
    11  timely resolution of the issues.
    12    (c) Mediation services demonstrate accountability by:
    13    (i)  providing  for  acceptance  of and response to complaints about a
    14  mediator's performance;
    15    (ii) participating in statewide data collection efforts; and
    16    (iii) disclosing the use of interns to provide mediation services.
    17    (d) The mediation program uses a detailed intake process that  screens
    18  for  and informs the mediator about any restraining orders or safety-re-
    19  lated issues affecting any party or child named in  the  proceedings  to
    20  allow  compliance  with  relevant  law  or  court rules before mediation
    21  begins.

    22    (e) Whenever possible, mediation is available from bilingual mediators
    23  or other interpreter services.
    24    (f) Mediation services protect party confidentiality in:
    25    (i) storage and disposal of records and any personal information accu-
    26  mulated during the mediation process;
    27    (ii) interagency coordination or cooperation  regarding  a  particular
    28  family or case; and
    29    (iii) management of child abuse reports and related documents.
    30    2. Each mediator shall:
    31    (a)  Maintain  an  overriding  concern  to  integrate the child's best
    32  interests within the family context.
    33    (b) Inform the parties and any counsel for a minor child if the media-
    34  tor will make a recommendation  to  the  court  that  the  court  should

    35  appoint  an  attorney  to  represent the minor child. The mediator shall
    36  inform the court of the reasons why it would be in the best interests of
    37  the child to have an attorney appointed.
    38    (c) Use reasonable efforts and consider safety issues to:
    39    (i) facilitate the family's transition and reduce acrimony by  helping
    40  the  parties  improve  their  communication skills, focus on the child's
    41  needs and areas of  stability,  identify  the  family's  strengths,  and
    42  locate counseling or other services;
    43    (ii)  develop  a comprehensive parenting agreement that addresses each
    44  child's current and future developmental needs; and
    45    (iii) control the  potential  power  imbalances  between  the  parties
    46  during mediation.

    47    §  79-c.  Mediation process. 1. All parent-mediation program processes
    48  shall be conducted in accordance with state law and shall include:
    49    (a) Review of the intake form and court file, if available, before the
    50  start of mediation.
    51    (b) Oral and written orientation or parent education that  facilitates
    52  the parties' informed and self-determined decision-making about:
    53    (i)  the types of disputed issues generally discussed in mediation and
    54  the range of possible outcomes from the mediation process;
    55    (ii) the  mediation  process,  including:  the  mediator's  role;  the
    56  circumstances  that may lead the mediator to make a particular recommen-

        S. 1473                             3                            A. 1421
 

     1  dation to the court; limitations on the confidentiality of the  process;
     2  and access to information communicated by the parties or included in the
     3  mediation file;
     4    (iii)  how to make best use of information drawn from current research
     5  and  professional  experience  to  facilitate  the  mediation   process,
     6  parties' communication, and co-parenting relationship; and
     7    (iv)  how  to  address  each  child's current and future developmental
     8  needs.
     9    (c) Interview with children at the mediator's discretion. The mediator
    10  may interview the child alone or together with other interested parties,
    11  including stepparents, siblings, new or stepsiblings,  or  other  family

    12  members  significant to the child. If interviewing a child, the mediator
    13  shall:
    14    (i) inform the child in an age-appropriate manner  of  the  mediator's
    15  obligation  to  disclose suspected child abuse and neglect and the local
    16  policies concerning disclosure of the child's statements to the court.
    17    (ii) with  parental  consent,  coordinate  interview  and  information
    18  exchange  among  agency or private professionals to reduce the number of
    19  interviews a child might experience.
    20    (d) Assistance to the parties, without  undue  influence  or  personal
    21  bias,  in  developing a parenting plan that protects the health, safety,
    22  welfare, and the best interests of the  child  and  that  optimizes  the

    23  child's  relationship  with  each  party  by  including, as appropriate,
    24  provisions for supervised visitation in high-risk cases; designation for
    25  legal and physical custody; a description of each party's  authority  to
    26  make  decisions  that  affect  the child; language that minimizes legal,
    27  mental health, or other jargon; and a detailed schedule of  the  time  a
    28  child  is  to  spend with each party, including vacations, holidays, and
    29  special occasions, and times when the child's contact with a  party  may
    30  be interrupted.
    31    (e) Extension of time to allow the parties to gather additional infor-
    32  mation  if  the  mediator determines that such information will help the
    33  discussion proceed in a fair and orderly manner or facilitate an  agree-

    34  ment.
    35    (f)  Suspension or discontinuance of mediation if allegations of child
    36  abuse or neglect are made until a designated agency performs an investi-
    37  gation and reports a case determination to the mediator.
    38    (g) Termination of mediation if the mediator believes that he  or  she
    39  is unable to achieve a balanced discussion between the parties.
    40    (h) Conclusion of mediation with:
    41    (i) a written parenting plan that summarizes the parties' agreement or
    42  mediator's recommendation that is given to counsel or the parties before
    43  the recommendation is presented to the court.
    44    (ii)  a  written or oral description of any subsequent case management
    45  or court procedures for resolving one or  more  outstanding  custody  or

    46  visitation   issues,  including  instructions  for  obtaining  temporary
    47  orders.
    48    (i) Return to  mediation  to  resolve  future  custody  or  visitation
    49  disputes.
    50    2.  Upon  the  completion of the mediation process, the mediator shall
    51  submit a written copy of the mediation  agreement  to  the  court.  Such
    52  agreement  shall  be  signed by both parents, indicating their assent to
    53  the terms of the agreement.
    54    § 79-d. Training, continuing education,  and  experience  requirements
    55  for  mediators and mediation supervisors. 1. All mediators and mediation
    56  supervisors must:

        S. 1473                             4                            A. 1421
 

     1    (a) Complete a minimum of forty hours of custody and visitation  medi-
     2  ation  training  within  the first six months of initial employment as a
     3  parent-mediation program mediator.
     4    (b)  Attend  related  continuing  education programs, conferences, and
     5  workshops.
     6    (c) Participate in performance supervision and peer review.
     7    2. Each mediation supervisor shall attend at least thirty-two hours of
     8  additional training each calendar year.
     9    § 79-e. Ethics. Mediation shall be conducted  in  an  atmosphere  that
    10  encourages  trust  in  the process and a perception of fairness. To that
    11  end, mediators shall:
    12    1. Meet the practice and ethical standards adopted by the  legislature

    13  and those standards adopted by the courts.
    14    2.  Maintain  objectivity, provide and gather balanced information for
    15  both parties, and control bias.
    16    3. Protect the confidentiality of the parties and the child in  making
    17  any  collateral  contacts  and not release information about the case to
    18  any individual except as authorized by the court or statute.
    19    4. Not offer any recommendations about a party unless that  party  has
    20  been  evaluated  directly  or  in  consultation  with  another qualified
    21  neutral professional.
    22    5. Consider the health, safety, welfare, and  best  interests  of  the
    23  child  in  all phases of the process, including interviews with parents,

    24  extended family members, counsel for the  child,  and  other  interested
    25  parties or collateral contacts.
    26    6.  Strive to maintain the confidential relationship between the child
    27  who is the subject of an evaluation and his or her treating psychothera-
    28  pist.
    29    7. Operate within the limits of his or her training and experience and
    30  disclose any limitations or bias that would affect his or her ability to
    31  conduct the mediation.
    32    8. Not require children to state a custodial preference.
    33    9. Not disclose any recommendations to the parties,  their  attorneys,
    34  or  the  attorneys  for the child before having gathered the information
    35  necessary to support the conclusion.

    36    10. Disclose to the courts, parties, attorneys for  the  parties,  and
    37  attorneys  for the child conflicts of interest or dual relationships and
    38  not accept any appointment except by court order or the parties'  stipu-
    39  lation.
    40    11. Be sensitive to the parties' socioeconomic, gender, race, ethnici-
    41  ty,  cultural  values,  religious,  family  structure, and developmental
    42  characteristics.
    43    12. Disclose any actual or potential conflicts  of  interest.  In  the
    44  event  of  a  conflict of interest, the mediator shall suspend mediation
    45  and meet and confer in an effort to resolve the conflict of interest  to
    46  the  satisfaction  of all parties or according to local court rules. The

    47  court may order mediation to continue with another mediator or offer the
    48  parties alternatives. The mediator cannot continue  unless  the  parties
    49  agree in writing to continue mediation despite the disclosed conflict of
    50  interest.
    51    §  2.  Paragraph  (a)  of subdivision 1 of section 240 of the domestic
    52  relations law, as amended by chapter 476 of the laws of 2009, is amended
    53  to read as follows:
    54    (a) In any action or proceeding brought (1) to annul a marriage or  to
    55  declare  the nullity of a void marriage, or (2) for a separation, or (3)
    56  for a divorce, or (4) to obtain, by a writ of habeas corpus or by  peti-

        S. 1473                             5                            A. 1421
 
     1  tion and order to show cause, the custody of or right to visitation with

     2  any  child  of  a  marriage, the court shall require verification of the
     3  status of any child of the marriage with respect to such child's custody
     4  and  support, including any prior orders, and may require the parents of
     5  such child to participate in a mediation process through the parent-med-
     6  iation program established by article five-B of this chapter. The  court
     7  shall  enter  orders  for custody and support [as] that conform with the
     8  terms and conditions of the mediation agreement if such mediation  proc-
     9  ess  is  utilized,  but  if  the court determines that the terms of such
    10  agreement are unfair or unjust or no such agreement exists then, in  the
    11  court's  discretion, as justice requires[, having regard to].  In reach-

    12  ing its decision the court shall consider the circumstances of the  case
    13  and  of  the respective parties and [to] the best interests of the child
    14  and shall be subject to the provisions  of  subdivision  one-c  of  this
    15  section.  Where  either  party  to  an action concerning custody of or a
    16  right to visitation  with  a  child  alleges  in  a  sworn  petition  or
    17  complaint  or  sworn answer, cross-petition, counterclaim or other sworn
    18  responsive pleading that the other party has committed an act of  domes-
    19  tic  violence  against  the  party  making the allegation or a family or
    20  household member of either party, as such family or household member  is
    21  defined  in  article eight of the family court act, and such allegations
    22  are proven by a preponderance of the evidence, the court  must  consider

    23  the  effect  of  such  domestic  violence upon the best interests of the
    24  child, together with such other facts and  circumstances  as  the  court
    25  deems  relevant in making a direction pursuant to this section and state
    26  on the record how such findings, facts and circumstances  factored  into
    27  the  direction.  If  a  parent  makes a good faith allegation based on a
    28  reasonable belief supported by facts that the child  is  the  victim  of
    29  child  abuse, child neglect, or the effects of domestic violence, and if
    30  that parent acts lawfully and in good faith in response to that  reason-
    31  able  belief  to protect the child or seek treatment for the child, then
    32  that parent shall not be deprived of custody, visitation or contact with
    33  the child, or restricted in custody, visitation or contact, based solely
    34  on that belief or the reasonable actions taken based on that belief.  If

    35  an  allegation that a child is abused is supported by a preponderance of
    36  the evidence, then the court shall consider such evidence  of  abuse  in
    37  determining  the  visitation arrangement that is in the best interest of
    38  the child, and the court shall not place a child in  the  custody  of  a
    39  parent  who presents a substantial risk of harm to that child, and shall
    40  state on the record how such findings were factored  into  the  determi-
    41  nation.  An  order  directing the payment of child support shall contain
    42  the social security numbers of the named parties.  In  all  cases  there
    43  shall  be  no  prima  facie  right to the custody of the child in either
    44  parent. Such direction shall make provision for child support out of the
    45  property of either or both parents. The court shall make its  award  for
    46  child support pursuant to subdivision one-b of this section. Such direc-

    47  tion may provide for reasonable visitation rights to the maternal and/or
    48  paternal  grandparents of any child of the parties. Such direction as it
    49  applies to rights of visitation with a child remanded or placed  in  the
    50  care  of  a  person, official, agency or institution pursuant to article
    51  ten of the family court act, or pursuant to an instrument approved under
    52  section three hundred fifty-eight-a of the social services law, shall be
    53  enforceable pursuant to part eight of article ten of  the  family  court
    54  act  and  sections three hundred fifty-eight-a and three hundred eighty-
    55  four-a of the social services law and other applicable provisions of law
    56  against any person having care and custody, or temporary care and custo-

        S. 1473                             6                            A. 1421
 

     1  dy, of the child. Notwithstanding any other provision of law, any  writ-
     2  ten  application or motion to the court for the establishment, modifica-
     3  tion or enforcement of a child support obligation  for  persons  not  in
     4  receipt  of public assistance and care must contain either a request for
     5  child support enforcement services which would authorize the  collection
     6  of  the  support  obligation  by  the  immediate  issuance  of an income
     7  execution for support enforcement  as  provided  for  by  this  chapter,
     8  completed in the manner specified in section one hundred eleven-g of the
     9  social  services  law; or a statement that the applicant has applied for
    10  or is in receipt of such services; or a  statement  that  the  applicant
    11  knows  of  the  availability of such services, has declined them at this
    12  time and where support enforcement  services  pursuant  to  section  one

    13  hundred  eleven-g of the social services law have been declined that the
    14  applicant understands that an  income  deduction  order  may  be  issued
    15  pursuant  to  subdivision  (c) of section fifty-two hundred forty-two of
    16  the civil practice law and rules without other child support enforcement
    17  services and that payment of an administrative fee may be required.  The
    18  court  shall  provide  a  copy  of  any  such  request for child support
    19  enforcement services to the support collection unit of  the  appropriate
    20  social services district any time it directs payments to be made to such
    21  support  collection  unit.  Additionally,  the  copy of any such request
    22  shall be accompanied by the name, address and social security number  of
    23  the  parties;  the date and place of the parties' marriage; the name and
    24  date of birth of the child or children; and the name and address of  the

    25  employers  and  income  payors  of  the party from whom child support is
    26  sought or from the party ordered to  pay  child  support  to  the  other
    27  party.  Such direction may require the payment of a sum or sums of money
    28  either directly to the custodial parent or to third persons for goods or
    29  services furnished for such child, or for both payments to the custodial
    30  parent and to such third persons; provided,  however,  that  unless  the
    31  party seeking or receiving child support has applied for or is receiving
    32  such  services,  the  court shall not direct such payments to be made to
    33  the support collection unit,  as  established  in  section  one  hundred
    34  eleven-h  of  the social services law. Every order directing the payment
    35  of support shall require that if either parent currently, or at any time
    36  in the future, has health  insurance  benefits  available  that  may  be

    37  extended  or  obtained  to  cover  the child, such parent is required to
    38  exercise the option of additional coverage in favor of  such  child  and
    39  execute  and  deliver  to  such  person any forms, notices, documents or
    40  instruments necessary to assure timely payment of any  health  insurance
    41  claims for such child.
    42    §  3.  Paragraph (a) of subdivision 1-b of section 240 of the domestic
    43  relations law, as added by chapter 567 of the laws of 1989,  is  amended
    44  to read as follows:
    45    (a)  The  court shall make its award for child support pursuant to the
    46  terms and conditions of a mediation agreement reached in accordance with
    47  the provisions of article five-B of this chapter,  if  such  process  is
    48  utilized.   But if the court should determine that such terms and condi-

    49  tions are not fair  and  just,  or  if  the  mediation  process  is  not
    50  utilized, then the court shall make its award for child support pursuant
    51  to  the  provisions  of  this  subdivision.  The court may vary from the
    52  amount of the basic child  support  obligation  determined  pursuant  to
    53  paragraph  (c) of this subdivision only in accordance with paragraph (f)
    54  of this subdivision.
    55    § 4. This act shall take effect immediately.
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