Bill Text: NY S00659 | 2009-2010 | General Assembly | Introduced
Bill Title: Enacts the child custody reform act to provide uniform statewide standards for the litigation and mediation of child custody disputes; provides for an initial planning conference between the judge and all parties to attempt a settlement; provides for mediation unless the court finds mediation is inappropriate; requires the chief administrator of the courts to establish plans for the conduct of administration of the mediation and preparation of evaluation reports.
Spectrum: Partisan Bill (Republican 4-0)
Status: (Introduced - Dead) 2010-01-20 - COMMITTEE DISCHARGED AND COMMITTED TO CHILDREN AND FAMILIES [S00659 Detail]
Download: New_York-2009-S00659-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
659
2009-2010 Regular Sessions
I N S E N A T E
January 12, 2009
___________
Introduced by Sens. LARKIN, LEIBELL, LITTLE, MAZIARZ -- read twice and
ordered printed, and when printed to be committed to the Committee on
Social Services, Children and Families
AN ACT to amend the domestic relations law, in relation to the child
custody and support decision-making process
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Short title. This act shall be known and may be cited as
2 the "child custody reform act".
3 S 2. Declaration of purposes. The legislature hereby finds and
4 declares that it is in the best interests of a child whose parents are
5 in dispute over his or her custody that:
6 Parents resolve their dispute as expeditiously as possible in a child-
7 centered manner;
8 Parents be encouraged to recognize the continuing interest that each
9 has in the welfare of their child and resolve any differences they may
10 have concerning custody, parenting and child support obligations prior
11 to engaging in the adversarial process;
12 Courts undertake an active role in promoting parental settlements in
13 custody, parenting and child support disputes, and in educating parents
14 about the needs of their child resulting from divorce or separation;
15 The child centered mediation process, in suitable cases, is an appro-
16 priate way to help parents resolve child custody, parenting and child
17 support disputes;
18 Mediation of custody, parenting and child support disputes should be
19 conducted in collaboration with the courts, in a safe environment, by
20 well-trained, experienced mediators during which the parents attempt to
21 plan cooperatively for the welfare of their child; and
22 Uniform statewide standards for mediation should be formulated in
23 order to ensure the safety, quality and usefulness of the mediation
24 process to the court as well as to the parents, and to assure compliance
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05314-01-9
S. 659 2
1 with the due process rights of those involved in custody, parenting and
2 child support disputes.
3 S 3. The domestic relations law is amended by adding a new section 242
4 to read as follows:
5 S 242. SPECIAL PROVISIONS FOR RESOLUTION OF CHILD CUSTODY, PARENTING
6 AND CHILD SUPPORT DISPUTES. (A) DEFINITIONS. AS USED IN THIS SECTION,
7 UNLESS THE CONTEXT OTHERWISE REQUIRES:
8 (1) "CHILD" MEANS A PERSON UNDER EIGHTEEN YEARS OF AGE, OR FOR THE
9 PURPOSES OF SUPPORT UNDER TWENTY-ONE YEARS OF AGE, WHO IS LEGALLY
10 SUBJECT TO PARENTAL, GUARDIANSHIP OR SIMILAR CONTROL. "CHILD" INCLUDES
11 CHILDREN IF MORE THAN ONE CHILD IS THE SUBJECT OF A CUSTODY, PARENTING
12 OR CHILD SUPPORT DISPUTE.
13 (2) "PARENT" MEANS THE BIOLOGICAL OR ADOPTIVE PARENT, OR OTHER LEGAL
14 CUSTODIAN OR GUARDIAN.
15 (3) "CUSTODY" MEANS THE RIGHT AND THE RESPONSIBILITY OF A PARENT TO
16 MAKE DECISIONS ABOUT THE HEALTH, WELFARE AND PHYSICAL CARE OF A CHILD,
17 AND TO PARTICIPATE IN THE MAKING AND IMPLEMENTATION OF A PARENTING PLAN.
18 (4) "PHYSICAL CUSTODY" MEANS THE PARENT WITH WHOM THE CHILD SHALL
19 PRIMARILY RESIDE; PROVIDED HOWEVER, THAT IT SHALL ALSO REFER TO AN
20 ARRANGEMENT WHEREBY THE CHILD SHALL RESIDE WITH EACH PARENT ON A
21 SHARED-TIME BASIS.
22 (5) "CHILD SUPPORT" OR "SUPPORT" MEANS THE RESPECTIVE SUPPORT OBLI-
23 GATIONS OF THE PARENTS UNDER THE CHILD SUPPORT STANDARDS ACT.
24 (6) "PARENTING PLAN" MEANS A PLAN, DEVELOPED BY BOTH PARENTS, WHICH
25 PROVIDES FOR THE HEALTH, WELFARE AND BEST INTERESTS OF THE CHILD, AND
26 WHICH INCLUDES DESIGNATIONS OF CUSTODY AND PHYSICAL CUSTODY, AND, AS
27 NEEDED, THE AMOUNT OF TIME EACH PARENT WOULD SPEND WITH THE CHILD,
28 INCLUDING VACATIONS, HOLIDAYS AND SPECIAL OCCASIONS, A DESCRIPTION OF
29 EACH PARENT'S AUTHORITY TO MAKE DECISIONS THAT AFFECT THE CHILD, AND A
30 DESCRIPTION OF EACH PARENT'S CHILD SUPPORT OBLIGATION.
31 (7) "COURT" MEANS ANY TRIAL COURT, INCLUDING BOTH A SUPREME COURT AND
32 A FAMILY COURT OF THIS STATE, IN WHICH A CUSTODY OR PARENTING DISPUTE
33 MAY BE HEARD.
34 (8) "MEDIATION" MEANS A CONFIDENTIAL, INFORMAL PROCEDURE IN WHICH A
35 NEUTRAL THIRD PERSON HELPS PARENTS TO COMMUNICATE AND MAKE DECISIONS
36 WITH EACH OTHER REGARDING THE BEST INTERESTS AND SUPPORT OF THEIR CHILD,
37 AND TO FORMULATE A PARENTING PLAN.
38 (9) "MEDIATION PROVIDER" MEANS AN INDIVIDUAL OR ORGANIZATION THAT HAS
39 BEEN CERTIFIED TO PROVIDE MEDIATION SERVICES UNDER GUIDELINES ESTAB-
40 LISHED BY THE CHIEF ADMINISTRATOR OF THE COURTS, IN CONSULTATION WITH
41 MEMBERS OF THE STATEWIDE ADVISORY COUNCIL, PURSUANT TO PARAGRAPHS TWO
42 AND THREE OF SUBDIVISION (D) OF THIS SECTION.
43 (10) "UNSUITABLE" MEANS DISPUTES WHERE DOMESTIC VIOLENCE, ABUSE,
44 SEVERE POWER IMBALANCES OR OTHER FACTORS IN THE PARTICIPANTS' RELATION-
45 SHIP RENDER THE MEDIATION PROCESS INAPPROPRIATE, AS DETERMINED BY THE
46 METHODS FOR IDENTIFICATION AND SCREENING TO BE IMPLEMENTED BY THE CHIEF
47 ADMINISTRATOR OF THE COURTS, IN CONSULTATION WITH MEMBERS OF THE STATE-
48 WIDE ADVISORY COUNCIL, PURSUANT TO PARAGRAPHS TWO AND THREE OF SUBDIVI-
49 SION (D) OF THIS SECTION.
50 (11) "SUITABLE" MEANS DISPUTES WHICH ARE APPROPRIATE FOR MEDIATION, AS
51 DETERMINED BY THE METHODS FOR IDENTIFICATION AND SCREENING TO BE IMPLE-
52 MENTED BY THE CHIEF ADMINISTRATOR OF THE COURTS, IN CONSULTATION WITH
53 MEMBERS OF THE STATEWIDE ADVISORY COUNCIL, PURSUANT TO PARAGRAPHS TWO
54 AND THREE OF SUBDIVISION (D) OF THIS SECTION.
55 (12) "MEDIATION INFORMATION SESSION" MEANS AN INITIAL SESSION WITH THE
56 PARTIES TO THE DISPUTE AND THE MEDIATION PROVIDER, DURING WHICH THE
S. 659 3
1 MEDIATION PROVIDER SCREENS FOR UNSUITABILITY FACTORS, EXPLAINS THE
2 PURPOSE OF THE MEDIATION PROCESS AND ITS VOLUNTARY NATURE, DESCRIBES
3 MEDIATION PROTOCOLS, AND BEGINS, IN SUITABLE DISPUTES, TO IDENTIFY AREAS
4 OF DISPUTE.
5 (B) PRETRIAL PROCEDURE, JUDICIAL MANAGEMENT AND DETERMINATION IN
6 CUSTODY, PARENTING AND SUPPORT DISPUTES. (1) A CUSTODY, PARENTING OR
7 SUPPORT DISPUTE SHALL, INSOFAR AS IS PRACTICABLE, BE ASSIGNED TO A
8 SINGLE JUDGE OF THE COURT WHERE THE DISPUTE IS PENDING. THE JUDGE
9 ASSIGNED TO THE DISPUTE SHALL OVERSEE ALL PROCEEDINGS IN THE DISPUTE,
10 SEEKING TO PROMOTE SETTLEMENT BETWEEN THE PARTIES, WHERE SETTLEMENT CAN
11 BE SAFELY PROMOTED, INCLUDING A REASONABLY EXPEDITIOUS DETERMINATION OF
12 CUSTODY, SUPPORT AND PARENTAL AGREEMENT ON A PARENTING PLAN.
13 (2) DURING THE INITIAL APPEARANCE OF THE PARTIES AND AT SUCH SUBSE-
14 QUENT TIMES AS DEEMED APPROPRIATE, THE JUDGE TO WHOM THE CUSTODY,
15 PARENTING OR SUPPORT DISPUTE IS ASSIGNED SHALL CONDUCT A CONFERENCE WITH
16 THE PARTIES TO THE DISPUTE, AND THEIR ATTORNEYS, IF ANY, FOR THE
17 PURPOSES OF ASCERTAINING WHETHER OR NOT THE CUSTODY, PARENTING OR
18 SUPPORT DISPUTE IS SUITABLE FOR MEDIATION. THE COURT SHALL NOTIFY THE
19 PARTIES TO THE DISPUTE OR THEIR ATTORNEYS, IF ANY, AND SUCH OTHER
20 PERSONS AS THE COURT DEEMS NECESSARY OF THE TIME AND PLACE OF SUCH
21 CONFERENCE.
22 (3) IF, AFTER CONFERENCING WITH THE PARTIES, THE COURT DETERMINES THAT
23 THE DISPUTE IS SUITABLE FOR MEDIATION, THE COURT SHALL, PRIOR TO HOLDING
24 A HEARING OR TRIAL TO ADJUDICATE THE DISPUTE, REFER THE DISPUTE TO A
25 MEDIATION INFORMATION SESSION.
26 (4) THE COURT MAY CONDUCT THE CONFERENCE REFERRED TO IN PARAGRAPH TWO
27 OF THIS SUBDIVISION PRIOR TO DETERMINING ANY OR ALL OTHER ISSUES THAT
28 MAY BE INVOLVED IN A MATRIMONIAL OR OTHER ACTION OR PROCEEDING BETWEEN
29 THE PARTIES TO THE CUSTODY DISPUTE, IF THE BEST INTERESTS OF THE CHILD
30 WILL BE SERVED BY SEPARATING THE ISSUES.
31 (5) THE PARTIES WHO HAVE BEEN REFERRED TO MEDIATION SHALL BE REQUIRED
32 TO ATTEND A MEDIATION INFORMATION SESSION, BUT MAY THEREAFTER DECLINE
33 MEDIATION SERVICES. IF THEY SO DECLINE OR THE MEDIATOR DETERMINES
34 DURING THE MEDIATION INFORMATION SESSION THAT THE DISPUTE IS NOT SUIT-
35 ABLE FOR MEDIATION, THE CASE SHALL THEN BE CONFIDENTIALLY RETURNED TO
36 THE COURT FOR FURTHER PROCEEDINGS.
37 (C) MEDIATION OF CUSTODY, PARENTING AND SUPPORT DISPUTES. (1) SUBJECT
38 TO THE PROVISIONS OF PARAGRAPH TWO OF THIS SUBDIVISION, EACH JUDICIAL
39 DISTRICT SHALL PROVIDE, ON A PRIVATE-PAY FEE SCHEDULE BASIS TO BE IMPLE-
40 MENTED BY THE CHIEF ADMINISTRATOR OF THE COURTS, IN CONSULTATION WITH
41 MEMBERS OF THE STATEWIDE ADVISORY COUNCIL PURSUANT TO PARAGRAPHS TWO AND
42 THREE OF SUBDIVISION (D) OF THIS SECTION, MEDIATION SERVICES TO PARENTS
43 IN CUSTODY, PARENTING AND SUPPORT DISPUTES UNDER A SERVICE PLAN OR PLANS
44 ADHERING TO GUIDELINES SO ESTABLISHED BY THE CHIEF ADMINISTRATOR OF THE
45 COURTS.
46 (2) THE FEE SCHEDULE BASIS ESTABLISHED PURSUANT TO THIS SUBDIVISION
47 SHALL PROVIDE FOR FREE OR LOW-COST MEDIATION SERVICES, AS APPROPRIATE,
48 FOR PERSONS WHO ARE INDIGENT OR ARE OTHERWISE UNABLE TO AFFORD SUCH
49 SERVICES.
50 (3) MEDIATION PROCEEDINGS SHALL BE CONFIDENTIAL. ALL COMMUNICATIONS
51 BETWEEN A MEDIATOR AND THE PARTIES TO A DISPUTE, THE ATTORNEYS FOR THE
52 PARTIES TO THE DISPUTE, THE CHILD AND ANY COURT APPOINTED REPRESENTATIVE
53 OF THE CHILD SHALL BE PRIVILEGED AND INADMISSIBLE IN ANY JUDICIAL OR
54 ADMINISTRATIVE PROCEEDING. A MEDIATOR SHALL NOT BE CALLED AS A WITNESS.
55 ANY NOTES AND WORK PRODUCT OF THE MEDIATOR CONCERNING THE CUSTODY,
56 PARENTING OR SUPPORT DISPUTE SHALL NOT BE DISCOVERED OR SUBPOENAED BY A
S. 659 4
1 PARTY TO THE DISPUTE, THE ATTORNEYS FOR THE PARTIES TO THE DISPUTE OR
2 THE COURT APPOINTED REPRESENTATIVE OF THE CHILD, IF ANY. A MEDIATOR WHO
3 PROVIDES MEDIATION SERVICES IN A CUSTODY, PARENTING OR SUPPORT DISPUTE
4 SHALL NOT PROVIDE INFORMATION TO THE COURT OR TO ANY PARTY REGARDING THE
5 SUBSTANCE OF THE MEDIATION PROCEEDINGS; PROVIDED HOWEVER, THAT, IF AN
6 AGREEMENT IS REACHED DURING THE MEDIATION PROCEEDINGS, SUCH AGREEMENT
7 SHALL BE IN WRITING AND, WITH THE CONSENT OF THE PARTICIPANTS, BE
8 PROVIDED TO THE COURT.
9 (4) TERMINATION OF A MEDIATION IF UNSUITABLE. (A) IF, DURING A MEDI-
10 ATION SESSION, IT IS DETERMINED BY THE MEDIATOR THAT THE DISPUTE HAS
11 BECOME UNSUITABLE, THE MEDIATOR SHALL TERMINATE THE MEDIATION IN ACCORD-
12 ANCE WITH PROTOCOLS ESTABLISHED BY THE CHIEF ADMINISTRATOR OF THE
13 COURTS, IN CONSULTATION WITH MEMBERS OF THE STATEWIDE ADVISORY COUNCIL,
14 PURSUANT TO PARAGRAPHS TWO AND THREE OF SUBDIVISION (D) OF THIS SECTION.
15 (B) IF SUCH TERMINATION SHOULD OCCUR, THE MEDIATOR SHALL INFORM THE
16 COURT THAT THE MEDIATION WAS DISCONTINUED.
17 (D) DUTIES AND POWERS OF THE CHIEF ADMINISTRATOR OF THE COURTS. (1)
18 THE CHIEF ADMINISTRATOR OF THE COURTS SHALL BE RESPONSIBLE FOR:
19 (A) PROMULGATING STANDARDS AND ADMINISTRATIVE POLICIES TO ENSURE THAT
20 CUSTODY, PARENTING AND SUPPORT DISPUTES ARE HANDLED BY COURTS, AND
21 AFFILIATED PERSONNEL, ATTORNEYS, MEDIATORS AND PARTIES TO A DISPUTE IN A
22 MANNER CONSISTENT WITH THE PURPOSES OF THIS SECTION;
23 (B) PROMULGATING STANDARDS AND POLICIES TO ENSURE THAT THE SERVICES
24 NECESSARY TO CONDUCT MEDIATION ARE OF HIGH AND REASONABLY UNIFORM QUALI-
25 TY IN ALL COURTS HEARING CUSTODY, PARENTING AND SUPPORT DISPUTES;
26 (C) CREATING PLANS FOR DELIVERY OF MEDIATION SERVICES TO COURTS IN
27 JUDICIAL DISTRICTS PURSUANT TO SUBDIVISION (C) OF THIS SECTION;
28 (D) MONITORING THE IMPLEMENTATION OF THIS SECTION AND SERVICE PLANS IN
29 JUDICIAL DISTRICTS; AND
30 (E) ORGANIZING AND SUPERVISING TRAINING PROGRAMS FOR PERSONNEL WHO
31 CONDUCT MEDIATION AUTHORIZED BY THIS SECTION.
32 (2) THE CHIEF ADMINISTRATOR OF THE COURTS SHALL ESTABLISH A STATEWIDE
33 ADVISORY COMMITTEE TO RENDER ADVICE ON THE DEVELOPMENT OF STANDARDS AND
34 ADMINISTRATIVE PRACTICES REQUIRED UNDER THIS SECTION AND ON HOW THE
35 COURTS CAN BETTER PROVIDE SERVICES TO FAMILIES AND CHILDREN INVOLVED IN
36 CUSTODY, PARENTING AND SUPPORT DISPUTES. THIS ADVISORY COMMITTEE SHALL
37 BE CONSTITUTED IN SUCH MANNER AS DEEMED ADVISABLE BY THE CHIEF ADMINIS-
38 TRATOR OF THE COURTS, EXCEPT THAT IT SHALL INCLUDE AT LEAST TWO MEMBERS
39 OF AN ORGANIZATION THE PURPOSE OF WHICH IS TO MONITOR AND MAKE RECOMMEN-
40 DATIONS RELATIVE TO THE ISSUE OF DOMESTIC VIOLENCE, AND AT LEAST TWO
41 MEMBERS OF A PRIVATE OR GOVERNMENTAL ORGANIZATION WHICH IS DEDICATED TO
42 THE ADVANCEMENT OF ALTERNATIVE DISPUTE RESOLUTION. SELECTION OF THE
43 MEMBERS OF THE ADVISORY COMMITTEE SHALL BE COMPLETED WITHIN THREE MONTHS
44 OF THE EFFECTIVE DATE OF THIS SECTION.
45 (3) SPECIAL DUTIES OF THE STATEWIDE ADVISORY COMMITTEE. THE STATEWIDE
46 ADVISORY COMMITTEE SHALL DEVELOP RECOMMENDATIONS FOR DETERMINING TRAIN-
47 ING REQUIREMENTS AND SUCH OTHER REQUIREMENTS AS THE CHIEF ADMINISTRATOR
48 OF THE COURTS SHALL REQUIRE FOR MEDIATORS WHO PROVIDE FAMILY ISSUE MEDI-
49 ATIONS. SUCH REQUIREMENTS SHALL INCLUDE PROTOCOLS FOR THE CONDUCT OF A
50 MEDIATION SESSION AND PROTOCOLS FOR RECOGNIZING THE EXISTENCE OF ISSUES
51 WHICH ARE UNSUITABLE FOR MEDIATION. THE RECOMMENDATIONS OF THE STATE-
52 WIDE ADVISORY COMMITTEE SHALL BE INCLUDED IN A WRITTEN REPORT SUBMITTED
53 TO THE CHIEF ADMINISTRATOR WITHIN NINE MONTHS AFTER THE COMMITTEE
54 MEMBERS SHALL HAVE BEEN APPOINTED. THE MEMBERS OF THE STATEWIDE ADVI-
55 SORY COMMITTEE SHALL SERVE WITHOUT COMPENSATION BUT SHALL BE ENTITLED TO
S. 659 5
1 REIMBURSEMENT FOR NECESSARY AND REASONABLE EXPENSES INCURRED IN THE
2 COURSE OF THEIR DUTIES.
3 S 4. This act shall take effect immediately. Provided, that the addi-
4 tion, amendment and/or repeal of any rule or regulation necessary for
5 the implementation of this act are immediately authorized and directed
6 to be made and completed on an emergency basis.
