Establishes procedures for temporary custody orders that include a fifty-fifty rebuttable presumption that the parents shall have temporary joint legal and shared physical custody and shall share equal parenting time.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A4977
SPONSOR: Tague TITLE OF BILL:
An act to amend the domestic relations law, in relation to procedures
for certain temporary custody orders
PURPOSE OR GENERAL IDEA OF BILL:
This bill would provide for temporary custody orders permitting joint
custody with equal parenting time when families separate.
SUMMARY OF SPECIFIC PROVISIONS:
Section one of this bill amends subdivision 1 of section 240 of the
domestic relations law by adding a new paragraph to establish temporary
custody orders during family separation proceedings. It provides that in
the making of an order for temporary custody, there shall be a presump-
tion, rebuttable by clear and convincing evidence, that the parents or a
person acting as a parent, shall have temporary joint legal and shared
physical custody and shall share equal parenting time. This section
offers additional explanations necessary for the implementation of this
act.
Section two provides the effective date.
JUSTIFICATION:
There are few things more traumatic to a child than the separation of
their parents, no matter how amicable the event might be. It is at this
time that everyone involved should do all they can to keep that child's
life as intact as possible and not relegate one parent to the role of a
visitor. If the parents can no longer live together, the next best thing
is for the child to have equal time with each parent. This bill sets a
standard of equal time with each parent during this crucial moment, when
a child needs all the love, reassurance and stability possible.
As it stands now, custody/visitation cases can be continued for weeks or
even months and the child, under current custom, is oftentimes denied
the best of both parents while a judgement is determined. By setting a
rebuttable presumption of 50/50 shared parenting for temporary orders
(with room for an exception if one parent is demonstrably unfit), it
shifts the starting point of any discussions to the child's best inter-
est and frees up a judges' time to review and consider more challenging
matters.
Barring exceptional circumstances, a child's right to both parents
should not be allowed to be used as leverage as they work out their
personal differences. Additionally, the child's love and need for both
parents was not diminished when the two adults decided to separate.
PRIOR LEGISLATIVE HISTORY:
2022: A.6085 (similar) referred to Judiciary
2021: A.6085 (similar) referred to Judiciary
2020: A.9819 referred to Judiciary
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None to the State.
EFFECTIVE DATE:
This act would take effect on the ninetieth day after it becomes law.
STATE OF NEW YORK
________________________________________________________________________
4977
2023-2024 Regular Sessions
IN ASSEMBLY
February 27, 2023
___________
Introduced by M. of A. TAGUE -- read once and referred to the Committee
on Judiciary
AN ACT to amend the domestic relations law, in relation to procedures
for certain temporary custody orders
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 1 of section 240 of the domestic relations law
2 is amended by adding a new paragraph (a-4) to read as follows:
3 (a-4) Parenting time; presumptions and procedures for temporary custo-
4 dy orders. (1) A party to a custody proceeding may move for a temporary
5 custody order. The motion must be supported by a petition. The court may
6 award temporary custody pursuant to the provisions of this paragraph
7 after a hearing, or, if there is no objection, solely on the basis of
8 the petitions. If the parents or a person acting as a parent, as defined
9 in section seventy-five-a of this chapter, present a temporary custody
10 agreement and mutually agreed plan for parenting time, and the court
11 confirms that the agreement adequately provides for the welfare of the
12 child, such agreement shall become the temporary custody order of the
13 court.
14 (2) In making an order for temporary custody, there shall be a
15 presumption, rebuttable by clear and convincing evidence, that the
16 parents or a person acting as a parent shall have temporary joint legal
17 and shared physical custody and shall share equal parenting time. As
18 used in this paragraph, the term "parenting time" shall mean the period
19 of time that a parent may spend with his or her child pursuant to a
20 court order under this chapter, the family court act or an order
21 enforced under article five-A of this chapter.
22 (3) If a deviation from equal parenting time is warranted, the parents
23 or person acting as a parent, through mutual and agreed upon consider-
24 ations or mediation, shall construct a parenting time schedule which
25 maximizes the time each parent or person acting as a parent has with the
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD03618-02-3
A. 4977 2
1 child and is consistent with ensuring the child's welfare. In the event
2 that the parents or person acting as a parent cannot agree on a parent-
3 ing schedule deviating from equal parenting time, the court shall
4 construct a parenting time schedule which maximizes the time each parent
5 or person acting as a parent has with the child and is consistent with
6 ensuring such child's welfare.
7 (4) Each temporary custody order shall include specific findings of
8 fact and conclusions of law, except when the court confirms the agree-
9 ment of the parties.
10 (5) Any temporary custody order shall address the circumstance in
11 which the child will transfer from one parent or person acting as a
12 parent to the other.
13 (6) Modification of a temporary custody order may be sought when there
14 is a material and substantial change in the circumstance of the parents,
15 person acting as a parent, or child.
16 (7) If a proceeding to annul a marriage, to declare the nullity of a
17 void marriage, for a separation or for a divorce is dismissed, any
18 temporary custody order shall be vacated unless a parent or person
19 acting as a parent moves that the proceeding continue as a custody
20 proceeding and the court finds, after a hearing, that the circumstances
21 of the parents or person acting as a parent and the best interests of
22 the child require that a custody decree be issued.
23 (8) If a custody proceeding commenced in the absence of a proceeding
24 to annul a marriage, to declare the nullity of a void marriage, for a
25 separation or for a divorce is dismissed, any temporary custody order
26 shall be vacated.
27 (9) If a court determines by clear and convincing evidence that a
28 person is a person who is acting as a parent, the court shall join such
29 person in any action pursuant to the provisions of this paragraph as a
30 party needed for just adjudication.
31 § 2. This act shall take effect on the ninetieth day after it shall
32 have become a law.
