STATE OF NEW YORK
________________________________________________________________________
2577
2017-2018 Regular Sessions
IN SENATE
January 13, 2017
___________
Introduced by Sen. HELMING -- read twice and ordered printed, and when
printed to be committed to the Committee on Children and Families
AN ACT to amend the domestic relations law and the family court act, in
relation to establishing a presumption of shared parenting of minor
children in matrimonial and family court 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
22 to such child, for such time, under such regulations and restrictions,
23 and with such provisions and directions, as the case may require, and
24 may at any time thereafter vacate or modify such order. [In all cases
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD04768-01-7
S. 2577 2
1 there shall be no prima facie right to the custody of the child in
2 either parent, but the] The burden of proof that such shared parenting
3 would be detrimental to such child shall be upon the parent requesting
4 sole custody. The court shall determine solely what is for the best
5 interest of the child, and what will best promote [its] the child's
6 welfare and happiness, and make award accordingly.
7 § 3. Paragraph (a) of subdivision 1 of section 240 of the domestic
8 relations law, as amended by chapter 567 of the laws of 2015, is amended
9 to read as follows:
10 (a) (i) In any action or proceeding brought (1) to annul a marriage or
11 to declare the nullity of a void marriage, or (2) for a separation, or
12 (3) for a divorce, or (4) to obtain, by a writ of habeas corpus or by
13 petition and order to show cause, the custody of or right to visitation
14 with any child of a marriage, the court shall require verification of
15 the status of any child of the marriage with respect to such child's
16 custody and support, including any prior orders, and shall enter orders
17 for custody and support as, in the court's discretion, justice requires,
18 having regard to the circumstances of the case and of the respective
19 parties and to the best interests of the child and subject to the
20 provisions of subdivision one-c of this section. Where either party to
21 an action concerning custody of or a right to visitation with a child
22 alleges in a sworn petition or complaint or sworn answer, cross-peti-
23 tion, counterclaim or other sworn responsive pleading that the other
24 party has committed an act of domestic violence against the party making
25 the allegation or a family or household member of either party, as such
26 family or household member is defined in article eight of the family
27 court act, and such allegations are proven by a preponderance of the
28 evidence, the court must consider the effect of such domestic violence
29 upon the best interests of the child, together with such other facts and
30 circumstances as the court deems relevant in making a direction pursuant
31 to this section and state on the record how such findings, facts and
32 circumstances factored into the direction. If a parent makes a good
33 faith allegation based on a reasonable belief supported by facts that
34 the child is the victim of child abuse, child neglect, or the effects of
35 domestic violence, and if that parent acts lawfully and in good faith in
36 response to that reasonable belief to protect the child or seek treat-
37 ment for the child, then that parent shall not be deprived of custody,
38 visitation or contact with the child, or restricted in custody, visita-
39 tion or contact, based solely on that belief or the reasonable actions
40 taken based on that belief. If an allegation that a child is abused is
41 supported by a preponderance of the evidence, then the court shall
42 consider such evidence of abuse in determining the visitation arrange-
43 ment that is in the best interest of the child, and the court shall not
44 place a child in the custody of a parent who presents a substantial risk
45 of harm to that child, and shall state on the record how such findings
46 were factored into the determination. Where a proceeding filed pursuant
47 to article ten or ten-A of the family court act is pending at the same
48 time as a proceeding brought in the supreme court involving the custody
49 of, or right to visitation with, any child of a marriage, the court
50 presiding over the proceeding under article ten or ten-A of the family
51 court act may jointly hear the dispositional hearing on the petition
52 under article ten or the permanency hearing under article ten-A of the
53 family court act and, upon referral from the supreme court, the hearing
54 to resolve the matter of custody or visitation in the proceeding pending
55 in the supreme court; provided however, the court must determine custody
56 or visitation in accordance with the terms of this section.
S. 2577 3
1 An order directing the payment of child support shall contain the
2 social security numbers of the named parties. [In all cases there shall
3 be no prima facie right to the custody of the child in either parent.
4 Such direction]
5 (ii) Custody shall be awarded in the following order of preference,
6 according to the best interests of the child:
7 (1) To both parents jointly pursuant to section two hundred forty-d of
8 this article. In such cases the court must require the parents to submit
9 a parenting plan as defined in subdivision two of section two hundred
10 forty-d of this article for implementation of the custody order or the
11 parents acting individually or in concert may submit a custody implemen-
12 tation plan to the court prior to issuance of a custody decree. There
13 shall be a presumption, affecting the burden of proof, that shared
14 parenting is in the best interests of a minor child unless the parents
15 have agreed to an award of custody to one parent or so agree in open
16 court at a hearing for the purpose of determining custody of a minor
17 child of the marriage or the court finds that shared parenting would be
18 detrimental to a particular child of a specific marriage. For the
19 purpose of assisting the court in making a determination whether an
20 award of shared parenting is appropriate, the court may direct that an
21 investigation be conducted. If the court declines to enter an order
22 awarding shared parenting pursuant to this paragraph, the court shall
23 state in its decision the reasons for denial of an award of shared
24 parenting. In jurisdictions having a private or publicly-supported
25 conciliation service, the court or the parties may, at any time, pursu-
26 ant to local rules of the court, consult with the conciliation service
27 for the purpose of assisting the parties to formulate a plan for imple-
28 mentation of the custody order or to resolve any controversy which has
29 arisen in the implementation of a plan for custody. Any order for shared
30 parenting may be modified or terminated upon the petition of one or both
31 parents or on the court's own motion if it is shown that the best inter-
32 ests of the child require modification or termination of the shared
33 parenting order. Any order for the custody of a minor child of a
34 marriage entered by a court in this state or in any other state, subject
35 to jurisdictional requirements, may be modified at any time to an order
36 of shared parenting in accordance with the provisions of this section.
37 (2) To either parent, in which case, the court, in making an order for
38 custody to either parent shall consider, among other factors, which
39 parent is more likely to allow the child or children frequent and
40 continuing contact with the noncustodial parent, and shall not prefer a
41 parent as custodian because of that parent's gender. The burden of proof
42 that shared parenting would not be in the child's best interest shall be
43 upon the parent requesting sole custody. Notwithstanding any other
44 provision of law, access to records and information pertaining to a
45 minor child, including but not limited to medical, dental and school
46 records, shall not be denied to a parent because the parent is not the
47 child's custodial parent.
48 (3) If to neither parent, to the person or persons in whose home the
49 child has been living in a nurturing and stable environment.
50 (4) To any other person or persons deemed by the court to be suitable
51 and able to provide a nurturing and stable environment.
52 Before the court makes any order awarding custody to a person or
53 persons other than a parent without the consent of the parents, it shall
54 make a finding that an award of custody to a parent would be detrimental
55 to the child and the award to a non-parent is required to serve the best
56 interests of the child. Allegations that parental custody would be
S. 2577 4
1 detrimental to the child, other than a statement of that ultimate fact,
2 shall not appear in the pleadings. The court may, in its discretion,
3 exclude the public from the hearing on this issue. The court shall state
4 in writing the reason for its decision and why the award made was found
5 to be in the best interests of the child. Any direction made pursuant to
6 this subdivision shall make provision for child support out of the prop-
7 erty of [either or] both parents. The court shall make its award for
8 child support pursuant to subdivision one-b of this section. Such direc-
9 tion may provide for reasonable visitation rights to the maternal and/or
10 paternal grandparents of any child of the parties. Such direction as it
11 applies to rights of visitation with a child remanded or placed in the
12 care of a person, official, agency or institution pursuant to article
13 ten of the family court act, or pursuant to an instrument approved under
14 section three hundred fifty-eight-a of the social services law, shall be
15 enforceable pursuant to part eight of article ten of the family court
16 act and sections three hundred fifty-eight-a and three hundred eighty-
17 four-a of the social services law and other applicable provisions of law
18 against any person having care and custody, or temporary care and custo-
19 dy, of the child. Notwithstanding any other provision of law, any writ-
20 ten application or motion to the court for the establishment, modifica-
21 tion or enforcement of a child support obligation for persons not in
22 receipt of public assistance and care must contain either a request for
23 child support enforcement services which would authorize the collection
24 of the support obligation by the immediate issuance of an income
25 execution for support enforcement as provided for by this chapter,
26 completed in the manner specified in section one hundred eleven-g of the
27 social services law; or a statement that the applicant has applied for
28 or is in receipt of such services; or a statement that the applicant
29 knows of the availability of such services, has declined them at this
30 time and where support enforcement services pursuant to section one
31 hundred eleven-g of the social services law have been declined that the
32 applicant understands that an income deduction order may be issued
33 pursuant to subdivision (c) of section fifty-two hundred forty-two of
34 the civil practice law and rules without other child support enforcement
35 services and that payment of an administrative fee may be required. The
36 court shall provide a copy of any such request for child support
37 enforcement services to the support collection unit of the appropriate
38 social services district any time it directs payments to be made to such
39 support collection unit. Additionally, the copy of any such request
40 shall be accompanied by the name, address and social security number of
41 the parties; the date and place of the parties' marriage; the name and
42 date of birth of the child or children; and the name and address of the
43 employers and income payors of the party from whom child support is
44 sought or from the party ordered to pay child support to the other
45 party. Such direction may require the payment of a sum or sums of money
46 either directly to the custodial parent or to third persons for goods or
47 services furnished for such child, or for both payments to the custodial
48 parent and to such third persons; provided, however, that unless the
49 party seeking or receiving child support has applied for or is receiving
50 such services, the court shall not direct such payments to be made to
51 the support collection unit, as established in section one hundred
52 eleven-h of the social services law. Every order directing the payment
53 of support shall require that if either parent currently, or at any time
54 in the future, has health insurance benefits available that may be
55 extended or obtained to cover the child, such parent is required to
56 exercise the option of additional coverage in favor of such child and
S. 2577 5
1 execute and deliver to such person any forms, notices, documents or
2 instruments necessary to assure timely payment of any health insurance
3 claims for such child.
4 § 4. The domestic relations law is amended by adding a new section
5 240-d to read as follows:
6 § 240-d. Custody of children. 1. Where the court considers awarding
7 shared parenting pursuant to the provisions of paragraph (a) of subdivi-
8 sion one of section two hundred forty of this article, "shared parent-
9 ing", shall mean an order awarding custody of the child to both parties
10 so that both parties share equally the legal responsibility and control
11 of such child and share equally the living experience in time and phys-
12 ical care to assure frequent and continuing contact with both parties,
13 as the court deems to be in the best interests of the child, taking into
14 consideration the location and circumstances of each party. The term
15 "shared parenting" shall be considered interchangeable with "nearly
16 equal shared parenting". An award of joint physical and legal custody
17 obligates the parties to exchange information concerning the health,
18 education and welfare of the minor child, and unless allocated, appor-
19 tioned or decreed, the parents or parties shall confer with one another
20 in the exercise of decision-making rights, responsibilities and authori-
21 ty.
22 2. For the purposes of this article a "parenting plan", required to be
23 submitted to the court pursuant to clause one of subparagraph (ii) of
24 paragraph (a) of subdivision one of section two hundred forty of this
25 article, shall include but not be limited to:
26 (a) the legal responsibilities of each parent;
27 (b) a weekly parenting schedule;
28 (c) a holiday and vacation parenting schedule;
29 (d) a schedule for special occasions, including birthdays;
30 (e) a description of any specific decision making areas for each
31 parent provided, however, that both parents shall confer and jointly
32 determine major issues affecting the welfare of the child including
33 health, education, discipline and religion;
34 (f) if applicable, the need for any and all of the parties to partic-
35 ipate in counseling;
36 (g) any restrictions on either parent when in physical control of the
37 child or children; and
38 (h) provisions for mediation of disputes.
39 3. One parent may be designated as a public welfare recipient in situ-
40 ations where public welfare aid is deemed necessary and appropriate. In
41 making an order of shared parenting, the court shall specify the right
42 of each parent to the physical control of the child in sufficient detail
43 to enable a parent deprived of that control to enforce the court order
44 and to enable law enforcement authorities to implement laws for relief
45 of parental kidnapping and custodial interference.
46 § 5. The family court act is amended by adding a new section 654 to
47 read as follows:
48 § 654. Order of preference of custody awards. Custody shall be awarded
49 in the following order of preference, according to the best interests of
50 the child:
51 (a) To both parents jointly. In such cases the court must require the
52 parents to submit a parenting plan as defined in subdivision (b) of
53 section six hundred fifty-four-a of this part for implementation of the
54 custody order or the parents acting individually or in concert may
55 submit a custody implementation plan to the court prior to issuance of a
56 custody decree. There shall be a presumption, affecting the burden of
S. 2577 6
1 proof, that shared parenting is in the best interests of a minor child
2 unless the parents have agreed to an award of custody to one parent or
3 so agree in open court at a hearing for the purpose of determining
4 custody of a minor child of the marriage or the court finds that shared
5 parenting would be detrimental to a particular child of a specific
6 marriage. For the purpose of assisting the court in making a determi-
7 nation whether an award of shared parenting is appropriate, the court
8 may direct that an investigation be conducted. If the court declines to
9 enter an order awarding shared parenting pursuant to this subdivision,
10 the court shall state in its decision the reasons for denial of an award
11 of shared parenting. In jurisdictions having a private or publicly-sup-
12 ported conciliation service, the court or the parties may, at any time,
13 pursuant to local rules of court, consult with the conciliation service
14 for the purpose of assisting the parties to formulate a plan for imple-
15 mentation of the custody order or to resolve any controversy which has
16 arisen in the implementation of a plan for custody. Any order for shared
17 parenting may be modified or terminated upon the petition of one or both
18 parents or on the court's own motion if it is shown that the best inter-
19 ests of the child require the modification or termination of the shared
20 parenting order. Any order for the custody of a minor child of a
21 marriage entered by a court in this state or in any other state, subject
22 to jurisdictional requirements, may be modified at any time to an order
23 of shared parenting in accordance with the provisions of this section.
24 (b) To either parent, in which case, the court, in making an order for
25 custody to either parent shall consider, among other factors, which
26 parent is more likely to allow the child or children frequent and
27 continuing contact with the noncustodial parent, and shall not prefer a
28 parent as custodian because of that parent's gender. The burden of proof
29 that shared parenting would not be in the child's best interest shall be
30 upon the parent requesting sole custody. Notwithstanding any other
31 provision of law, access to records and information pertaining to a
32 minor child, including but not limited to medical, dental and school
33 records, shall not be denied to a parent because the parent is not the
34 child's custodial parent.
35 (c) If to neither parent, to the person or persons in whose home the
36 child has been living in a nurturing and stable environment.
37 (d) To any other person or persons deemed by the court to be suitable
38 and able to provide a nurturing and stable environment. Before the court
39 makes any order awarding custody to a person or persons other than a
40 parent without the consent of the parents, it shall make a finding that
41 an award of custody to a parent would be detrimental to the child and
42 the award to a non-parent is required to serve the best interests of the
43 child. Allegations that parental custody would be detrimental to the
44 child, other than a statement of the ultimate fact, shall not appear in
45 the pleadings. The court may, in its discretion, exclude the public from
46 the hearing on this issue. The court shall state in writing the reason
47 for its decision and why the award made was found to be in the best
48 interests of the child.
49 § 6. The family court act is amended by adding a new section 654-a to
50 read as follows:
51 § 654-a. Custody of children. (a) Where the court considers awarding
52 shared parenting pursuant to the provisions of subdivision (a) of
53 section six hundred fifty-four of this part, "shared parenting", shall
54 mean an order awarding custody of the child to both parties so that both
55 parties share equally the legal responsibility and control of such child
56 and share equally the living experience in time and physical care to
S. 2577 7
1 assure frequent and continuing contact with both parties, as the court
2 deems to be in the best interests of the child, taking into consider-
3 ation the location and circumstances of each party. The term "shared
4 parenting", shall be considered interchangeable with "nearly equal
5 shared parenting". An award of joint physical and legal custody obli-
6 gates the parties to exchange information concerning the health, educa-
7 tion and welfare of the minor child, and unless allocated, apportioned
8 or decreed, the parents or parties shall confer with one another in the
9 exercise of decision-making rights, responsibilities and authority.
10 (b) For the purposes of this part a "parenting plan", required to be
11 submitted to the court, shall include but not be limited to:
12 1. the legal responsibilities of each parent;
13 2. a weekly parenting schedule;
14 3. a holiday and vacation parenting schedule;
15 4. a schedule for special occasions, including birthdays;
16 5. a description of any specific decision making areas for each parent
17 provided, however, that both parents shall confer and jointly determine
18 major issues affecting the welfare of the child including health, educa-
19 tion, discipline and religion;
20 6. if applicable, the need for any and all of the parties to partic-
21 ipate in counseling;
22 7. any restrictions on either parent when in physical control of the
23 child or children; and
24 8. provisions for mediation of disputes.
25 (c) One parent may be designated as a public welfare recipient in
26 situations where public welfare aid is deemed necessary and appropriate.
27 In making an order of shared parenting, the court shall specify the
28 right of each parent to the physical control of the child in sufficient
29 detail to enable a parent deprived of that control to enforce the court
30 order and to enable law enforcement authorities to implement laws for
31 relief of parental kidnapping and custodial interference.
32 § 7. This act shall take effect on the first of November next succeed-
33 ing the date on which it shall have become a law and shall apply to
34 actions and proceedings commenced on and after such date.
