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.
STATE OF NEW YORK
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S. 244 A. 331
2009-2010 Regular Sessions
SENATE - ASSEMBLY(Prefiled)
January 7, 2009
___________
IN SENATE -- Introduced by Sen. PERKINS -- read twice and ordered print-
ed, and when printed to be committed to the Committee on Judiciary
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.
LBD01861-02-9
S. 244 2 A. 331
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. 244 3 A. 331
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. 244 4 A. 331
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 538 of the laws of 2008, 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. 244 5 A. 331
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 reaching
12 its decision the court shall consider the circumstances of the case and
13 of the respective parties and [to] the best interests of the child and
14 shall be subject to the provisions of subdivision one-c of this section.
15 Where either party to an action concerning custody of or a right to
16 visitation with a child alleges in a sworn petition or complaint or
17 sworn answer, cross-petition, counterclaim or other sworn responsive
18 pleading that the other party has committed an act of domestic violence
19 against the party making the allegation or a family or household member
20 of either party, as such family or household member is defined in arti-
21 cle eight of the family court act, and such allegations are proven by a
22 preponderance of the evidence, the court must consider the effect of
23 such domestic violence upon the best interests of the child, together
24 with such other facts and circumstances as the court deems relevant in
25 making a direction pursuant to this section. If a parent makes a good
26 faith allegation based on a reasonable belief supported by facts that
27 the child is the victim of child abuse, child neglect, or the effects of
28 domestic violence, and if that parent acts lawfully and in good faith in
29 response to that reasonable belief to protect the child or seek treat-
30 ment for the child, then that parent shall not be deprived of custody,
31 visitation or contact with the child, or restricted in custody, visita-
32 tion or contact, based solely on that belief or the reasonable actions
33 taken based on that belief. If an allegation that a child is abused is
34 supported by a preponderance of the evidence, then the court shall
35 consider such evidence of abuse in determining the visitation arrange-
36 ment that is in the best interest of the child, and the court shall not
37 place a child in the custody of a parent who presents a substantial risk
38 of harm to that child. An order directing the payment of child support
39 shall contain the social security numbers of the named parties. In all
40 cases there shall be no prima facie right to the custody of the child in
41 either parent. Such direction shall make provision for child support
42 out of the property of either or both parents. The court shall make its
43 award for child support pursuant to subdivision one-b of this section.
44 Such direction may provide for reasonable visitation rights to the
45 maternal and/or paternal grandparents of any child of the parties. Such
46 direction as it applies to rights of visitation with a child remanded or
47 placed in the care of a person, official, agency or institution pursuant
48 to article ten of the family court act, or pursuant to an instrument
49 approved under section three hundred fifty-eight-a of the social
50 services law, shall be enforceable pursuant to part eight of article ten
51 of the family court act and sections three hundred fifty-eight-a and
52 three hundred eighty-four-a of the social services law and other appli-
53 cable provisions of law against any person having care and custody, or
54 temporary care and custody, of the child. Notwithstanding any other
55 provision of law, any written application or motion to the court for the
56 establishment, modification or enforcement of a child support obligation
S. 244 6 A. 331
1 for persons not in receipt of public assistance and care must contain
2 either a request for child support enforcement services which would
3 authorize the collection of the support obligation by the immediate
4 issuance of an income execution for support enforcement as provided for
5 by this chapter, completed in the manner specified in section one
6 hundred eleven-g of the social services law; or a statement that the
7 applicant has applied for or is in receipt of such services; or a state-
8 ment that the applicant knows of the availability of such services, has
9 declined them at this time and where support enforcement services pursu-
10 ant to section one hundred eleven-g of the social services law have been
11 declined that the applicant understands that an income deduction order
12 may be issued pursuant to subdivision (c) of section fifty-two hundred
13 forty-two of the civil practice law and rules without other child
14 support enforcement services and that payment of an administrative fee
15 may be required. The court shall provide a copy of any such request for
16 child support enforcement services to the support collection unit of the
17 appropriate social services district any time it directs payments to be
18 made to such support collection unit. Additionally, the copy of any such
19 request shall be accompanied by the name, address and social security
20 number of the parties; the date and place of the parties' marriage; the
21 name and date of birth of the child or children; and the name and
22 address of the employers and income payors of the party from whom child
23 support is sought or from the party ordered to pay child support to the
24 other party. Such direction may require the payment of a sum or sums of
25 money either directly to the custodial parent or to third persons for
26 goods or services furnished for such child, or for both payments to the
27 custodial parent and to such third persons; provided, however, that
28 unless the party seeking or receiving child support has applied for or
29 is receiving such services, the court shall not direct such payments to
30 be made to the support collection unit, as established in section one
31 hundred eleven-h of the social services law. Every order directing the
32 payment of support shall require that if either parent currently, or at
33 any time in the future, has health insurance benefits available that may
34 be extended or obtained to cover the child, such parent is required to
35 exercise the option of additional coverage in favor of such child and
36 execute and deliver to such person any forms, notices, documents or
37 instruments necessary to assure timely payment of any health insurance
38 claims for such child.
39 § 3. Paragraph (a) of subdivision 1-b of section 240 of the domestic
40 relations law, as added by chapter 567 of the laws of 1989, is amended
41 to read as follows:
42 (a) The court shall make its award for child support pursuant to the
43 terms and conditions of a mediation agreement reached in accordance with
44 the provisions of article five-B of this chapter, if such process is
45 utilized. But if the court should determine that such terms and condi-
46 tions are not fair and just, or if the mediation process is not
47 utilized, then the court shall make its award for child support pursuant
48 to the provisions of this subdivision. The court may vary from the
49 amount of the basic child support obligation determined pursuant to
50 paragraph (c) of this subdivision only in accordance with paragraph (f)
51 of this subdivision.
52 § 4. This act shall take effect immediately.
