Bill Text: NY S02916 | 2019-2020 | General Assembly | Introduced
Bill Title: Establishes a presumption of shared parenting of minor children in matrimonial and family court proceedings.
Spectrum: Partisan Bill (Republican 3-0)
Status: (Introduced - Dead) 2020-01-08 - REFERRED TO CHILDREN AND FAMILIES [S02916 Detail]
Download: New_York-2019-S02916-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 2916 2019-2020 Regular Sessions IN SENATE January 30, 2019 ___________ Introduced by Sens. HELMING, BOYLE, ORTT -- 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 EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD04911-01-9S. 2916 2 1 may at any time thereafter vacate or modify such order. [In all cases2there shall be no prima facie right to the custody of the child in3either parent, but the] The burden of proof that such shared parenting 4 would be detrimental to such child shall be upon the parent requesting 5 sole custody. The court shall determine solely what is for the best 6 interest of the child, and what will best promote [its] the child's 7 welfare and happiness, and make award accordingly. 8 § 3. Paragraph (a) of subdivision 1 of section 240 of the domestic 9 relations law, as amended by chapter 567 of the laws of 2015, is amended 10 to read as follows: 11 (a) (i) In any action or proceeding brought (1) to annul a marriage or 12 to declare the nullity of a void marriage, or (2) for a separation, or 13 (3) for a divorce, or (4) to obtain, by a writ of habeas corpus or by 14 petition and order to show cause, the custody of or right to visitation 15 with any child of a marriage, the court shall require verification of 16 the status of any child of the marriage with respect to such child's 17 custody and support, including any prior orders, and shall enter orders 18 for custody and support as, in the court's discretion, justice requires, 19 having regard to the circumstances of the case and of the respective 20 parties and to the best interests of the child and subject to the 21 provisions of subdivision one-c of this section. Where either party to 22 an action concerning custody of or a right to visitation with a child 23 alleges in a sworn petition or complaint or sworn answer, cross-peti- 24 tion, counterclaim or other sworn responsive pleading that the other 25 party has committed an act of domestic violence against the party making 26 the allegation or a family or household member of either party, as such 27 family or household member is defined in article eight of the family 28 court act, and such allegations are proven by a preponderance of the 29 evidence, the court must consider the effect of such domestic violence 30 upon the best interests of the child, together with such other facts and 31 circumstances as the court deems relevant in making a direction pursuant 32 to this section and state on the record how such findings, facts and 33 circumstances factored into the direction. If a parent makes a good 34 faith allegation based on a reasonable belief supported by facts that 35 the child is the victim of child abuse, child neglect, or the effects of 36 domestic violence, and if that parent acts lawfully and in good faith in 37 response to that reasonable belief to protect the child or seek treat- 38 ment for the child, then that parent shall not be deprived of custody, 39 visitation or contact with the child, or restricted in custody, visita- 40 tion or contact, based solely on that belief or the reasonable actions 41 taken based on that belief. If an allegation that a child is abused is 42 supported by a preponderance of the evidence, then the court shall 43 consider such evidence of abuse in determining the visitation arrange- 44 ment that is in the best interest of the child, and the court shall not 45 place a child in the custody of a parent who presents a substantial risk 46 of harm to that child, and shall state on the record how such findings 47 were factored into the determination. Where a proceeding filed pursuant 48 to article ten or ten-A of the family court act is pending at the same 49 time as a proceeding brought in the supreme court involving the custody 50 of, or right to visitation with, any child of a marriage, the court 51 presiding over the proceeding under article ten or ten-A of the family 52 court act may jointly hear the dispositional hearing on the petition 53 under article ten or the permanency hearing under article ten-A of the 54 family court act and, upon referral from the supreme court, the hearing 55 to resolve the matter of custody or visitation in the proceeding pendingS. 2916 3 1 in the supreme court; provided however, the court must determine custody 2 or visitation in accordance with the terms of this section. 3 An order directing the payment of child support shall contain the 4 social security numbers of the named parties. [In all cases there shall5be no prima facie right to the custody of the child in either parent.6Such direction] 7 (ii) Custody shall be awarded in the following order of preference, 8 according to the best interests of the child: 9 (1) To both parents jointly pursuant to section two hundred forty-d of 10 this article. In such cases the court must require the parents to submit 11 a parenting plan as defined in subdivision two of section two hundred 12 forty-d of this article for implementation of the custody order or the 13 parents acting individually or in concert may submit a custody implemen- 14 tation plan to the court prior to issuance of a custody decree. There 15 shall be a presumption, affecting the burden of proof, that shared 16 parenting is in the best interests of a minor child unless the parents 17 have agreed to an award of custody to one parent or so agree in open 18 court at a hearing for the purpose of determining custody of a minor 19 child of the marriage or the court finds that shared parenting would be 20 detrimental to a particular child of a specific marriage. For the 21 purpose of assisting the court in making a determination whether an 22 award of shared parenting is appropriate, the court may direct that an 23 investigation be conducted. If the court declines to enter an order 24 awarding shared parenting pursuant to this paragraph, the court shall 25 state in its decision the reasons for denial of an award of shared 26 parenting. In jurisdictions having a private or publicly-supported 27 conciliation service, the court or the parties may, at any time, pursu- 28 ant to local rules of the court, consult with the conciliation service 29 for the purpose of assisting the parties to formulate a plan for imple- 30 mentation of the custody order or to resolve any controversy which has 31 arisen in the implementation of a plan for custody. Any order for shared 32 parenting may be modified or terminated upon the petition of one or both 33 parents or on the court's own motion if it is shown that the best inter- 34 ests of the child require modification or termination of the shared 35 parenting order. Any order for the custody of a minor child of a 36 marriage entered by a court in this state or in any other state, subject 37 to jurisdictional requirements, may be modified at any time to an order 38 of shared parenting in accordance with the provisions of this section. 39 (2) To either parent, in which case, the court, in making an order for 40 custody to either parent shall consider, among other factors, which 41 parent is more likely to allow the child or children frequent and 42 continuing contact with the noncustodial parent, and shall not prefer a 43 parent as custodian because of that parent's gender. The burden of proof 44 that shared parenting would not be in the child's best interest shall be 45 upon the parent requesting sole custody. Notwithstanding any other 46 provision of law, access to records and information pertaining to a 47 minor child, including but not limited to medical, dental and school 48 records, shall not be denied to a parent because the parent is not the 49 child's custodial parent. 50 (3) If to neither parent, to the person or persons in whose home the 51 child has been living in a nurturing and stable environment. 52 (4) To any other person or persons deemed by the court to be suitable 53 and able to provide a nurturing and stable environment. 54 Before the court makes any order awarding custody to a person or 55 persons other than a parent without the consent of the parents, it shall 56 make a finding that an award of custody to a parent would be detrimentalS. 2916 4 1 to the child and the award to a non-parent is required to serve the best 2 interests of the child. Allegations that parental custody would be 3 detrimental to the child, other than a statement of that ultimate fact, 4 shall not appear in the pleadings. The court may, in its discretion, 5 exclude the public from the hearing on this issue. The court shall state 6 in writing the reason for its decision and why the award made was found 7 to be in the best interests of the child. Any direction made pursuant to 8 this subdivision shall make provision for child support out of the prop- 9 erty of [either or] both parents. The court shall make its award for 10 child support pursuant to subdivision one-b of this section. Such direc- 11 tion may provide for reasonable visitation rights to the maternal and/or 12 paternal grandparents of any child of the parties. Such direction as it 13 applies to rights of visitation with a child remanded or placed in the 14 care of a person, official, agency or institution pursuant to article 15 ten of the family court act, or pursuant to an instrument approved under 16 section three hundred fifty-eight-a of the social services law, shall be 17 enforceable pursuant to part eight of article ten of the family court 18 act and sections three hundred fifty-eight-a and three hundred eighty- 19 four-a of the social services law and other applicable provisions of law 20 against any person having care and custody, or temporary care and custo- 21 dy, of the child. Notwithstanding any other provision of law, any writ- 22 ten application or motion to the court for the establishment, modifica- 23 tion or enforcement of a child support obligation for persons not in 24 receipt of public assistance and care must contain either a request for 25 child support enforcement services which would authorize the collection 26 of the support obligation by the immediate issuance of an income 27 execution for support enforcement as provided for by this chapter, 28 completed in the manner specified in section one hundred eleven-g of the 29 social services law; or a statement that the applicant has applied for 30 or is in receipt of such services; or a statement that the applicant 31 knows of the availability of such services, has declined them at this 32 time and where support enforcement services pursuant to section one 33 hundred eleven-g of the social services law have been declined that the 34 applicant understands that an income deduction order may be issued 35 pursuant to subdivision (c) of section fifty-two hundred forty-two of 36 the civil practice law and rules without other child support enforcement 37 services and that payment of an administrative fee may be required. The 38 court shall provide a copy of any such request for child support 39 enforcement services to the support collection unit of the appropriate 40 social services district any time it directs payments to be made to such 41 support collection unit. Additionally, the copy of any such request 42 shall be accompanied by the name, address and social security number of 43 the parties; the date and place of the parties' marriage; the name and 44 date of birth of the child or children; and the name and address of the 45 employers and income payors of the party from whom child support is 46 sought or from the party ordered to pay child support to the other 47 party. Such direction may require the payment of a sum or sums of money 48 either directly to the custodial parent or to third persons for goods or 49 services furnished for such child, or for both payments to the custodial 50 parent and to such third persons; provided, however, that unless the 51 party seeking or receiving child support has applied for or is receiving 52 such services, the court shall not direct such payments to be made to 53 the support collection unit, as established in section one hundred 54 eleven-h of the social services law. Every order directing the payment 55 of support shall require that if either parent currently, or at any time 56 in the future, has health insurance benefits available that may beS. 2916 5 1 extended or obtained to cover the child, such parent is required to 2 exercise the option of additional coverage in favor of such child and 3 execute and deliver to such person any forms, notices, documents or 4 instruments necessary to assure timely payment of any health insurance 5 claims for such child. 6 § 4. The domestic relations law is amended by adding a new section 7 240-d to read as follows: 8 § 240-d. Custody of children. 1. Where the court considers awarding 9 shared parenting pursuant to the provisions of paragraph (a) of subdivi- 10 sion one of section two hundred forty of this article, "shared parent- 11 ing", shall mean an order awarding custody of the child to both parties 12 so that both parties share equally the legal responsibility and control 13 of such child and share equally the living experience in time and phys- 14 ical care to assure frequent and continuing contact with both parties, 15 as the court deems to be in the best interests of the child, taking into 16 consideration the location and circumstances of each party. The term 17 "shared parenting" shall be considered interchangeable with "nearly 18 equal shared parenting". An award of joint physical and legal custody 19 obligates the parties to exchange information concerning the health, 20 education and welfare of the minor child, and unless allocated, appor- 21 tioned or decreed, the parents or parties shall confer with one another 22 in the exercise of decision-making rights, responsibilities and authori- 23 ty. 24 2. For the purposes of this article a "parenting plan", required to be 25 submitted to the court pursuant to clause one of subparagraph (ii) of 26 paragraph (a) of subdivision one of section two hundred forty of this 27 article, shall include but not be limited to: 28 (a) the legal responsibilities of each parent; 29 (b) a weekly parenting schedule; 30 (c) a holiday and vacation parenting schedule; 31 (d) a schedule for special occasions, including birthdays; 32 (e) a description of any specific decision making areas for each 33 parent provided, however, that both parents shall confer and jointly 34 determine major issues affecting the welfare of the child including 35 health, education, discipline and religion; 36 (f) if applicable, the need for any and all of the parties to partic- 37 ipate in counseling; 38 (g) any restrictions on either parent when in physical control of the 39 child or children; and 40 (h) provisions for mediation of disputes. 41 3. One parent may be designated as a public welfare recipient in situ- 42 ations where public welfare aid is deemed necessary and appropriate. In 43 making an order of shared parenting, the court shall specify the right 44 of each parent to the physical control of the child in sufficient detail 45 to enable a parent deprived of that control to enforce the court order 46 and to enable law enforcement authorities to implement laws for relief 47 of parental kidnapping and custodial interference. 48 § 5. The family court act is amended by adding a new section 654 to 49 read as follows: 50 § 654. Order of preference of custody awards. Custody shall be awarded 51 in the following order of preference, according to the best interests of 52 the child: 53 (a) To both parents jointly. In such cases the court must require the 54 parents to submit a parenting plan as defined in subdivision (b) of 55 section six hundred fifty-four-a of this part for implementation of the 56 custody order or the parents acting individually or in concert mayS. 2916 6 1 submit a custody implementation plan to the court prior to issuance of a 2 custody decree. There shall be a presumption, affecting the burden of 3 proof, that shared parenting is in the best interests of a minor child 4 unless the parents have agreed to an award of custody to one parent or 5 so agree in open court at a hearing for the purpose of determining 6 custody of a minor child of the marriage or the court finds that shared 7 parenting would be detrimental to a particular child of a specific 8 marriage. For the purpose of assisting the court in making a determi- 9 nation whether an award of shared parenting is appropriate, the court 10 may direct that an investigation be conducted. If the court declines to 11 enter an order awarding shared parenting pursuant to this subdivision, 12 the court shall state in its decision the reasons for denial of an award 13 of shared parenting. In jurisdictions having a private or publicly-sup- 14 ported conciliation service, the court or the parties may, at any time, 15 pursuant to local rules of court, consult with the conciliation service 16 for the purpose of assisting the parties to formulate a plan for imple- 17 mentation of the custody order or to resolve any controversy which has 18 arisen 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 the 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 (b) 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 (c) 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 (d) To any other person or persons deemed by the court to be suitable 40 and able to provide a nurturing and stable environment. Before the court 41 makes any order awarding custody to a person or persons other than a 42 parent without the consent of the parents, it shall make a finding that 43 an award of custody to a parent would be detrimental to the child and 44 the award to a non-parent is required to serve the best interests of the 45 child. Allegations that parental custody would be detrimental to the 46 child, other than a statement of the ultimate fact, shall not appear in 47 the pleadings. The court may, in its discretion, exclude the public from 48 the hearing on this issue. The court shall state in writing the reason 49 for its decision and why the award made was found to be in the best 50 interests of the child. 51 § 6. The family court act is amended by adding a new section 654-a to 52 read as follows: 53 § 654-a. Custody of children. (a) Where the court considers awarding 54 shared parenting pursuant to the provisions of subdivision (a) of 55 section six hundred fifty-four of this part, "shared parenting", shall 56 mean an order awarding custody of the child to both parties so that bothS. 2916 7 1 parties share equally the legal responsibility and control of such child 2 and share equally the living experience in time and physical care to 3 assure frequent and continuing contact with both parties, as the court 4 deems to be in the best interests of the child, taking into consider- 5 ation the location and circumstances of each party. The term "shared 6 parenting", shall be considered interchangeable with "nearly equal 7 shared parenting". An award of joint physical and legal custody obli- 8 gates the parties to exchange information concerning the health, educa- 9 tion and welfare of the minor child, and unless allocated, apportioned 10 or decreed, the parents or parties shall confer with one another in the 11 exercise of decision-making rights, responsibilities and authority. 12 (b) For the purposes of this part a "parenting plan", required to be 13 submitted to the court, shall include but not be limited to: 14 1. the legal responsibilities of each parent; 15 2. a weekly parenting schedule; 16 3. a holiday and vacation parenting schedule; 17 4. a schedule for special occasions, including birthdays; 18 5. a description of any specific decision making areas for each parent 19 provided, however, that both parents shall confer and jointly determine 20 major issues affecting the welfare of the child including health, educa- 21 tion, discipline and religion; 22 6. if applicable, the need for any and all of the parties to partic- 23 ipate in counseling; 24 7. any restrictions on either parent when in physical control of the 25 child or children; and 26 8. provisions for mediation of disputes. 27 (c) One parent may be designated as a public welfare recipient in 28 situations where public welfare aid is deemed necessary and appropriate. 29 In making an order of shared parenting, the court shall specify the 30 right of each parent to the physical control of the child in sufficient 31 detail to enable a parent deprived of that control to enforce the court 32 order and to enable law enforcement authorities to implement laws for 33 relief of parental kidnapping and custodial interference. 34 § 7. This act shall take effect on the first of November next succeed- 35 ing the date on which it shall have become a law and shall apply to 36 actions and proceedings commenced on and after such date.