A03181 Summary:

BILL NOA03181
 
SAME ASNo same as
 
SPONSORBenjamin (MS)
 
COSPNSRFinch, Galef, McDonough, Kolb, Scozzafava, Alessi, Boyle
 
MLTSPNSRBurling, Calhoun, Englebright, Fitzpatrick, Gianaris, Koon, Magee, McEneny, Ortiz, Perry, Quinn, Reilly, Thiele, Towns, 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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A03181 Actions:

BILL NOA03181
 
01/23/2009referred to judiciary
01/06/2010referred to judiciary
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A03181 Floor Votes:

There are no votes for this bill in this legislative session.
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A03181 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          3181
 
                               2009-2010 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 23, 2009
                                       ___________
 
        Introduced  by M. of A. BENJAMIN, FINCH, GALEF, McDONOUGH, KOLB, SCOZZA-
          FAVA, ALESSI, BOYLE  --  Multi-Sponsored  by  --  M.  of  A.  BURLING,
          CALHOUN,  ENGLEBRIGHT,  FITZPATRICK,  GIANARIS,  KOON, MAGEE, McENENY,
          ORTIZ, PERRY, QUINN, REILLY, THIELE, TOWNS,  TOWNSEND,  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

    21  absence of an allegation that such shared parenting would be detrimental
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05762-01-9

        A. 3181                             2
 
     1  to  such  child, for such time, under such regulations and restrictions,
     2  and with such provisions and directions, as the case  may  require,  and
     3  may  at  any  time thereafter vacate or modify such order. [In all cases
     4  there  shall  be  no  prima  facie  right to the custody of the child in
     5  either parent, but the] The burden of proof that such  shared  parenting

     6  would  be  detrimental to such child shall be upon the parent requesting
     7  sole custody. The court shall determine solely  what  is  for  the  best
     8  interest  of  the  child,  and  what will best promote [its] the child's
     9  welfare and happiness, and make award accordingly.
    10    § 3. Paragraph (a) of subdivision 1 of section  240  of  the  domestic
    11  relations law, as amended by chapter 538 of the laws of 2008, is amended
    12  to read as follows:
    13    (a) (i) In any action or proceeding brought (1) to annul a marriage or
    14  to  declare  the nullity of a void marriage, or (2) for a separation, or
    15  (3) for a divorce, or (4) to obtain, by a writ of habeas  corpus  or  by
    16  petition  and order to show cause, the custody of or right to visitation
    17  with any child of a marriage, the court shall  require  verification  of

    18  the  status  of  any  child of the marriage with respect to such child's
    19  custody and support, including any prior orders, and shall enter  orders
    20  for custody and support as, in the court's discretion, justice requires,
    21  having  regard  to  the  circumstances of the case and of the respective
    22  parties and to the best interests  of  the  child  and  subject  to  the
    23  provisions  of  subdivision one-c of this section. Where either party to
    24  an action concerning custody of or a right to visitation  with  a  child
    25  alleges  in  a  sworn petition or complaint or sworn answer, cross-peti-
    26  tion, counterclaim or other sworn responsive  pleading  that  the  other
    27  party has committed an act of domestic violence against the party making
    28  the  allegation or a family or household member of either party, as such
    29  family or household member is defined in article  eight  of  the  family

    30  court  act,  and  such  allegations are proven by a preponderance of the
    31  evidence, the court must consider the effect of such  domestic  violence
    32  upon the best interests of the child, together with such other facts and
    33  circumstances as the court deems relevant in making a direction pursuant
    34  to  this  section.  If a parent makes a good faith allegation based on a
    35  reasonable belief supported by facts that the child  is  the  victim  of
    36  child  abuse, child neglect, or the effects of domestic violence, and if
    37  that parent acts lawfully and in good faith in response to that  reason-
    38  able  belief  to protect the child or seek treatment for the child, then
    39  that parent shall not be deprived of custody, visitation or contact with
    40  the child, or restricted in custody, visitation or contact, based solely
    41  on that belief or the reasonable actions taken based on that belief.  If

    42  an  allegation that a child is abused is supported by a preponderance of
    43  the evidence, then the court shall consider such evidence  of  abuse  in
    44  determining  the  visitation arrangement that is in the best interest of
    45  the child, and the court shall not place a child in  the  custody  of  a
    46  parent  who  presents a substantial risk of harm to that child. An order
    47  directing the payment of child support shall contain the social security
    48  numbers of the named parties. [In all cases  there  shall  be  no  prima
    49  facie right to the custody of the child in either parent.  Such]
    50    (ii)  Custody  shall  be awarded in the following order of preference,
    51  according to the best interests of the child:
    52    (1) To both parents jointly pursuant to section two hundred forty-d of

    53  this article.   In such cases the court  must  require  the  parents  to
    54  submit  a  parenting  plan  as defined in subdivision two of section two
    55  hundred forty-d of this article for implementation of the custody  order
    56  or  the  parents  acting individually or in concert may submit a custody

        A. 3181                             3
 
     1  implementation plan to the court prior to issuance of a custody  decree.
     2  There shall be a presumption, affecting the burden of proof, that shared
     3  parenting  is  in the best interests of a minor child unless the parents
     4  have  agreed  to  an  award of custody to one parent or so agree in open
     5  court at a hearing for the purpose of determining  custody  of  a  minor

     6  child  of the marriage or the court finds that shared parenting would be
     7  detrimental to a particular  child  of  a  specific  marriage.  For  the
     8  purpose  of  assisting  the  court  in making a determination whether an
     9  award of shared parenting is appropriate, the court may direct  that  an
    10  investigation  be  conducted.  If  the  court declines to enter an order
    11  awarding shared parenting pursuant to this paragraph,  the  court  shall
    12  state  in  its  decision  the  reasons  for denial of an award of shared
    13  parenting. In  jurisdictions  having  a  private  or  publicly-supported
    14  conciliation  service, the court or the parties may, at any time, pursu-
    15  ant to local rules of court, consult with the conciliation  service  for

    16  the purpose of assisting the parties to formulate a plan for implementa-
    17  tion of the custody order or to resolve any controversy which has arisen
    18  in  the  implementation  of  a  plan  for  custody. Any order for shared
    19  parenting may be modified or terminated upon the petition of one or both
    20  parents or on the court's own motion if it is shown that the best inter-
    21  ests of the child require modification  or  termination  of  the  shared
    22  parenting  order.    Any  order  for  the  custody of a minor child of a
    23  marriage entered by a court in this state or in any other state, subject
    24  to jurisdictional requirements, may be modified at any time to an  order
    25  of shared parenting in accordance with the provisions of this section.

    26    (2) To either parent, in which case, the court, in making an order for
    27  custody  to  either  parent  shall  consider, among other factors, which
    28  parent is more likely to  allow  the  child  or  children  frequent  and
    29  continuing  contact with the noncustodial parent, and shall not prefer a
    30  parent as custodian because of that parent's gender. The burden of proof
    31  that shared parenting would not be in the child's best interest shall be
    32  upon the parent  requesting  sole  custody.  Notwithstanding  any  other
    33  provision  of  law,  access  to  records and information pertaining to a
    34  minor child, including but not limited to  medical,  dental  and  school
    35  records,  shall  not be denied to a parent because the parent is not the
    36  child's custodial parent.

    37    (3) If to neither parent, to the person or persons in whose  home  the
    38  child has been living in a nurturing and stable environment.
    39    (4)  To any other person or persons deemed by the court to be suitable
    40  and able to provide a nurturing and stable environment.
    41    Before the court makes any order  awarding  custody  to  a  person  or
    42  persons other than a parent without the consent of the parents, it shall
    43  make a finding that an award of custody to a parent would be detrimental
    44  to the child and the award to a non-parent is required to serve the best
    45  interests  of  the  child.  Allegations  that  parental custody would be
    46  detrimental to the child, other than a statement of that ultimate  fact,

    47  shall  not  appear  in  the pleadings. The court may, in its discretion,
    48  exclude the public from the hearing on this issue. The court shall state
    49  in writing the reason for its decision and why the award made was  found
    50  to be in the best interests of the child. Any direction made pursuant to
    51  this subdivision shall make provision for child support out of the prop-
    52  erty  of  [either  or]  both parents. The court shall make its award for
    53  child support pursuant to subdivision one-b of this section. Such direc-
    54  tion may provide for reasonable visitation rights to the maternal and/or
    55  paternal grandparents of any child of the parties. Such direction as  it
    56  applies  to  rights of visitation with a child remanded or placed in the

        A. 3181                             4
 

     1  care of a person, official, agency or institution  pursuant  to  article
     2  ten of the family court act, or pursuant to an instrument approved under
     3  section three hundred fifty-eight-a of the social services law, shall be
     4  enforceable  pursuant  to  part eight of article ten of the family court
     5  act and sections three hundred fifty-eight-a and three  hundred  eighty-
     6  four-a of the social services law and other applicable provisions of law
     7  against any person having care and custody, or temporary care and custo-
     8  dy,  of the child. Notwithstanding any other provision of law, any writ-
     9  ten application or motion to the court for the establishment,  modifica-
    10  tion  or  enforcement  of  a child support obligation for persons not in
    11  receipt of public assistance and care must contain either a request  for
    12  child  support enforcement services which would authorize the collection

    13  of the support  obligation  by  the  immediate  issuance  of  an  income
    14  execution  for  support  enforcement  as  provided  for by this chapter,
    15  completed in the manner specified in section one hundred eleven-g of the
    16  social services law; or a statement that the applicant has  applied  for
    17  or  is  in  receipt  of such services; or a statement that the applicant
    18  knows of the availability of such services, has declined  them  at  this
    19  time  and  where  support  enforcement  services pursuant to section one
    20  hundred eleven-g of the social services law have been declined that  the
    21  applicant  understands  that  an  income  deduction  order may be issued
    22  pursuant to subdivision (c) of section fifty-two  hundred  forty-two  of
    23  the civil practice law and rules without other child support enforcement
    24  services  and that payment of an administrative fee may be required. The

    25  court shall provide a  copy  of  any  such  request  for  child  support
    26  enforcement  services  to the support collection unit of the appropriate
    27  social services district any time it directs payments to be made to such
    28  support collection unit. Additionally, the  copy  of  any  such  request
    29  shall  be accompanied by the name, address and social security number of
    30  the parties; the date and place of the parties' marriage; the  name  and
    31  date  of birth of the child or children; and the name and address of the
    32  employers and income payors of the party  from  whom  child  support  is
    33  sought  or  from  the  party  ordered  to pay child support to the other
    34  party. Such direction may require the payment of a sum or sums of  money
    35  either directly to the custodial parent or to third persons for goods or
    36  services furnished for such child, or for both payments to the custodial

    37  parent  and  to  such  third persons; provided, however, that unless the
    38  party seeking or receiving child support has applied for or is receiving
    39  such services, the court shall not direct such payments to  be  made  to
    40  the  support  collection  unit,  as  established  in section one hundred
    41  eleven-h of the social services law. Every order directing  the  payment
    42  of support shall require that if either parent currently, or at any time
    43  in  the  future,  has  health  insurance  benefits available that may be
    44  extended or obtained to cover the child,  such  parent  is  required  to
    45  exercise  the  option  of additional coverage in favor of such child and
    46  execute and deliver to such person  any  forms,  notices,  documents  or
    47  instruments  necessary  to assure timely payment of any health insurance
    48  claims for such child.

    49    § 4. The domestic relations law is amended by  adding  a  new  section
    50  240-d to read as follows:
    51    §  240-d.  Custody of children. 1.  Where the court considers awarding
    52  shared parenting pursuant to the provisions of paragraph (a) of subdivi-
    53  sion one of section two hundred forty of this article,  "shared  parent-
    54  ing",  shall mean an order awarding custody of the child to both parties
    55  so that both parties share equally the legal responsibility and  control
    56  of  such child and share equally the living experience in time and phys-

        A. 3181                             5
 
     1  ical care to assure frequent and continuing contact with  both  parties,
     2  as the court deems to be in the best interests of the child, taking into

     3  consideration  the  location  and circumstances of each party.  The term
     4  "shared  parenting",  shall  be  considered interchangeable with "nearly
     5  equal shared parenting". An award of joint physical  and  legal  custody
     6  obligates  the  parties  to  exchange information concerning the health,
     7  education and welfare of the minor child, and unless  allocated,  appor-
     8  tioned  or decreed, the parents or parties shall confer with one another
     9  in the exercise of decision-making rights, responsibilities and authori-
    10  ty.
    11    2. For the purposes of this article a "parenting plan", required to be
    12  submitted to the court pursuant to clause one of  subparagraph  (ii)  of
    13  paragraph  (a)  of  subdivision one of section two hundred forty of this

    14  article, shall include but not be limited to:
    15    (a) the legal responsibilities of each parent;
    16    (b) a weekly parenting schedule;
    17    (c) a holiday and vacation parenting schedule;
    18    (d) a schedule for special occasions, including birthdays;
    19    (e) a description of any  specific  decision  making  areas  for  each
    20  parent  provided,  however,  that  both parents shall confer and jointly
    21  determine major issues affecting the  welfare  of  the  child  including
    22  health, education, discipline and religion;
    23    (f)  if applicable, the need for any and all of the parties to partic-
    24  ipate in counseling;
    25    (g) any restrictions on either parent when in physical control of  the
    26  child or children; and

    27    (h) provisions for mediation of disputes.
    28    3. One parent may be designated as a public welfare recipient in situ-
    29  ations where public welfare aid is deemed necessary and appropriate.  In
    30  making  an  order of shared parenting, the court shall specify the right
    31  of each parent to the physical control of the child in sufficient detail
    32  to enable a parent deprived of that control to enforce the  court  order
    33  and  to  enable law enforcement authorities to implement laws for relief
    34  of parental kidnapping and custodial interference.
    35    § 5. This act shall take effect on the first of November next succeed-
    36  ing the date on which it shall have become a  law  and  shall  apply  to
    37  actions and proceedings commenced on and after such date.
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