|
Without
line numbers, as requested
New
York
State Bill S02818
S
T A T E
O F N E W Y
O R K
2818
2001-2002
Regular Sessions
I N
S E N A T
E
February
21,
2001
Introduced
by Sens. JOHNSON,
SPANO, TRUNZO -- 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, 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 ASSEMBLY, DO ENACT AS FOLLOWS:
Section
1.
Legislative
findings. The legislature hereby finds and
declares
that
it is the
public policy of the state to assure minor chil-
dren
have
frequent and
continuing contact with both parents after the
parents
have
separated
or dissolved their marriage, and that it is in
the
public
interest to
encourage parents to share the rights and respon-
sibilities
of
child-rearing
in order to effectuate this policy. At the
outset
and
thereafter,
in any proceeding where there is at issue the
custody
of a
minor child,
the court may, during the pendency of the
proceeding
or
at any
time thereafter, make such order for the custody of
minor
children as may
seem necessary or proper. The provisions of this
act
establish
a presumption,
affecting the burden of proof, that shared
parenting
is
in the best
interests of minor children.
S
2.
Subdivision (a) of
section 70 of the domestic relations law, as
amended
by
chapter 457
of the laws of 1988, is amended to read as
follows:
(a)
Where
a minor child
is residing within this state, either parent
may
apply to
the supreme
court for a writ of habeas corpus to have such
minor
child
brought before
such court; and on the return thereof, the
court,
on due
consideration,
{may} SHALL award the natural guardianship,
charge
and
custody of
such child to {either parent} BOTH PARENTS, IN THE
ABSENCE
OF AN
ALLEGATION
THAT SUCH SHARED PARENTING WOULD BE DETRIMENTAL
TO
SUCH
CHILD, for such
time, under such regulations and restrictions,
and
with such
provisions
and directions, as the case may require, and
may
at any
time thereafter
vacate or modify such order. {In all cases
there
shall
be no prima
facie right to the custody of the child in
either
parent, but the}
THE BURDEN OF PROOF THAT SUCH SHARED PARENTING
WOULD
BE
DETRIMENTAL
TO SUCH CHILD SHALL BE UPON THE PARENT REQUESTING
SOLE
CUSTODY.
THE court
shall determine solely what is for the best
interest
of
the child,
and what will best promote {its} THE CHILD`S
welfare
and
happiness,
and make award accordingly.
S
3.
Paragraph (a) of
subdivision 1 of section 240 of the domestic
relations
law, as separately
amended by chapters 150 and 214 of the laws
of
1998, is
amended to
read as follows:
(a)
(I) In
any action
or proceeding brought (1) to annul a marriage or
to
declare
the nullity
of a void marriage, or (2) for a separation, or
(3)
for a
divorce, or
(4) to obtain, by a writ of habeas corpus or by
petition
and
order to
show cause, the custody of or right to visitation
with
any
child of a marriage,
the court shall require verification of
the
status of
any child
of the marriage with respect to such child`s
custody
and
support,
including any prior orders, and shall enter orders
for
custody
and support
as, in the court`s discretion, justice requires,
having
regard
to the
circumstances of the case and of the respective
parties
and
to the best
interests of the child and subject to the
provisions
of
subdivision
one-c of this section. Where either party to
an
action
concerning
custody of or a right to visitation with a child
alleges
in a
sworn petition
or complaint or sworn answer, cross-peti-
tion,
counterclaim or
other sworn responsive pleading that the other
party
has
committed an
act of domestic violence against the party making
the
allegation or a family
or household member of either party, as such
family
or
household member
is defined in article eight of the family
court
act,
and such allegations
are proven by a preponderance of the
evidence,
the
court must
consider the effect of such domestic violence
upon
the best
interests
of the child, together with such other facts and
circumstances
as the
court deems relevant in making a direction pursuant
to
this
section. An order
directing the payment of child support shall
contain
the
social security
numbers of the named parties. {In all cases
there
shall
be no prima
facie right to the custody of the child in
either
parent. Such direction}
(II)
CUSTODY SHALL BE
AWARDED IN THE FOLLOWING ORDER OF PREFERENCE,
ACCORDING
TO
THE BEST
INTERESTS OF THE CHILD:
(1) TO
BOTH PARENTS JOINTLY
PURSUANT TO SECTION TWO HUNDRED FORTY-D OF
THIS
ARTICLE.
IN SUCH
CASES THE COURT MUST REQUIRE THE PARENTS TO
SUBMIT A
PARENTING PLAN
AS DEFINED IN SUBDIVISION TWO OF SECTION TWO
HUNDRED
FORTY-D OF THIS
ARTICLE FOR IMPLEMENTATION OF THE CUSTODY ORDER
OR THE
PARENTS ACTING
INDIVIDUALLY OR IN CONCERT MAY SUBMIT A CUSTODY
IMPLEMENTATION
PLAN TO
THE COURT PRIOR TO ISSUANCE OF A CUSTODY DECREE.
THERE
SHALL
BE A PRESUMPTION,
AFFECTING THE BURDEN OF PROOF, THAT SHARED
PARENTING
IS
IN THE BEST
INTERESTS OF A MINOR CHILD UNLESS THE PARENTS
HAVE
AGREED
TO AN AWARD
OF CUSTODY TO ONE PARENT OR SO AGREE IN OPEN
COURT AT
A
HEARING FOR
THE PURPOSE OF DETERMINING CUSTODY OF A MINOR
CHILD OF
THE
MARRIAGE
OR THE COURT FINDS THAT SHARED PARENTING WOULD BE
DETRIMENTAL
TO A PARTICULAR
CHILD OF A SPECIFIC MARRIAGE. FOR THE
PURPOSE
OF
ASSISTING
THE COURT IN MAKING A DETERMINATION WHETHER AN
AWARD OF
SHARED PARENTING
IS APPROPRIATE, THE COURT MAY DIRECT THAT AN
INVESTIGATION
BE CONDUCTED.
IF THE COURT DECLINES TO ENTER AN ORDER
AWARDING
SHARED PARENTING
PURSUANT TO THIS PARAGRAPH, THE COURT SHALL
STATE IN
ITS
DECISION
THE REASONS FOR DENIAL OF AN AWARD OF SHARED
PARENTING.
IN
JURISDICTIONS
HAVING A PRIVATE OR PUBLICLY-SUPPORTED
CONCILIATION
SERVICE,
THE COURT OR THE PARTIES MAY, AT ANY TIME, PURSU-
ANT TO
LOCAL
RULES OF
COURT, CONSULT WITH THE CONCILIATION SERVICE FOR
THE
PURPOSE
OF ASSISTING
THE PARTIES TO FORMULATE A PLAN FOR IMPLEMENTA-
TION OF
THE
CUSTODY ORDER
OR TO RESOLVE ANY CONTROVERSY WHICH HAS ARISEN
IN THE
IMPLEMENTATION
OF A PLAN FOR CUSTODY. ANY ORDER FOR SHARED
PARENTING
MAY
BE MODIFIED
OR TERMINATED UPON THE PETITION OF ONE OR BOTH
PARENTS
OR ON
THE COURT`S
OWN MOTION IF IT IS SHOWN THAT THE BEST INTER-
ESTS OF
THE
CHILD REQUIRE
MODIFICATION OR TERMINATION OF THE SHARED
PARENTING
ORDER. ANY
ORDER FOR THE CUSTODY OF A MINOR CHILD OF A
MARRIAGE
ENTERED BY A
COURT IN THIS STATE OR IN ANY OTHER STATE, SUBJECT
TO
JURISDICTIONAL REQUIREMENTS,
MAY BE MODIFIED AT ANY TIME TO AN ORDER
OF
SHARED
PARENTING IN
ACCORDANCE WITH THE PROVISIONS OF THIS SECTION.
(2)
TO
EITHER PARENT,
IN WHICH CASE, THE COURT, IN MAKING AN ORDER FOR
CUSTODY
TO
EITHER PARENT
SHALL CONSIDER, AMONG OTHER FACTORS, WHICH
PARENT
IS
MORE LIKELY
TO ALLOW THE CHILD OR CHILDREN FREQUENT AND
CONTINUING
CONTACT WITH
THE NONCUSTODIAL PARENT, AND SHALL NOT PREFER A
PARENT
AS
CUSTODIAN BECAUSE
OF THAT PARENT`S GENDER. THE BURDEN OF PROOF
THAT
SHARED
PARENTING
WOULD NOT BE IN THE CHILD`S BEST INTEREST SHALL BE
UPON THE
PARENT REQUESTING
SOLE CUSTODY. NOTWITHSTANDING ANY OTHER
PROVISION
OF
LAW, ACCESS
TO RECORDS AND INFORMATION PERTAINING TO A
MINOR
CHILD,
INCLUDING
BUT NOT LIMITED TO MEDICAL, DENTAL AND SCHOOL
RECORDS,
SHALL NOT BE
DENIED TO A PARENT BECAUSE THE PARENT IS NOT THE
CHILD`S
CUSTODIAL PARENT.
(3)
IF TO
NEITHER PARENT,
TO THE PERSON OR PERSONS IN WHOSE HOME THE
CHILD
HAS
BEEN LIVING
IN A NURTURING AND STABLE ENVIRONMENT.
(4) TO ANY
OTHER PERSON
OR PERSONS DEEMED BY THE COURT TO BE SUITABLE
AND ABLE
TO
PROVIDE A
NURTURING AND STABLE ENVIRONMENT.
BEFORE
THE
COURT MAKES
ANY ORDER AWARDING CUSTODY TO A PERSON OR
PERSONS
OTHER
THAN A
PARENT WITHOUT THE CONSENT OF THE PARENTS, IT SHALL
MAKE A
FINDING THAT AN
AWARD OF CUSTODY TO A PARENT WOULD BE DETRIMENTAL
TO THE
CHILD
AND THE
AWARD TO A NON-PARENT IS REQUIRED TO SERVE THE BEST
INTERESTS
OF
THE CHILD.
ALLEGATIONS THAT PARENTAL CUSTODY WOULD BE
DETRIMENTAL
TO THE CHILD,
OTHER THAN A STATEMENT OF THAT ULTIMATE FACT,
SHALL
NOT
APPEAR IN THE
PLEADINGS. THE COURT MAY, IN ITS DISCRETION,
EXCLUDE
THE
PUBLIC FROM
THE HEARING ON THIS ISSUE. THE COURT SHALL STATE
IN
WRITING
THE REASON
FOR ITS DECISION AND WHY THE AWARD MADE WAS FOUND
TO BE IN
THE
BEST INTERESTS
OF THE CHILD. ANY DIRECTION MADE PURSUANT TO
THIS
SUBDIVISION shall
make provision for child support out of the prop-
erty
of
{either or} both
parents. The court shall make its award for
child
support
pursuant
to subdivision one-b of this section. Such direc-
tion
may
provide for
reasonable visitation rights to the maternal and/or
paternal
grandparents
of any child of the parties. Such direction as it
applies
to
rights of
visitation with a child remanded or placed in the
care
of a
person, official,
agency or institution pursuant to article
ten
of the
family court
act, or pursuant to an instrument approved under
section
three
hundred
fifty-eight-a of the social services law, shall be
enforceable
pursuant
to part eight of article ten of the family court
act
and
sections three
hundred fifty-eight-a and three hundred eighty-
four-a
of the
social
services law and other applicable provisions of law
against
any
person having
care and custody, or temporary care and custo-
dy,
of the
child. Notwithstanding
any other provision of law, any writ-
ten
application or motion
to the court for the establishment, modifica-
tion
or
enforcement of
a child support obligation for persons not in
receipt
of
family assistance
must contain either a request for child
support
enforcement services
which would authorize the collection of the
support
obligation by
the immediate issuance of an income execution for
support
enforcement as
provided for by this chapter, completed in the
manner
specified in section
one hundred eleven-g of the social services
law;
or a
statement that
the applicant has applied for or is in receipt
of
such
services; or
a statement that the applicant knows of the avail-
ability
of
such services,
has declined them at this time and where
support
enforcement services
pursuant to section one hundred eleven-g of
the
social
services law
have been declined that the applicant under-
stands
that
an income
deduction order may be issued pursuant to subdivi-
sion
(c) of
section fifty-two
hundred forty-two of the civil practice
law
and rules
without
other child support enforcement services and that
payment
of an
administrative
fee may be required. The court shall
provide
a
copy of any
such request for child support enforcement
services
to
the support
collection unit of the appropriate social
services
district any
time it directs payments to be made to such
support
collection unit.
Additionally, the copy of any such request
shall
be
accompanied
by the name, address and social security number of
the
parties;
the date
and place of the parties` marriage; the name and
date
of birth
of the
child or children; and the name and address of the
employers
and
income
payors of the party from whom child support is
sought
or
from the party
ordered to pay child support to the other
party.
Such
direction
may require the payment of a sum or sums of money
either
directly to the
custodial parent or to third persons for goods or
services
furnished for
such child, or for both payments to the custodial
parent
and to
such third
persons; provided, however, that unless the
party
seeking
or receiving
child support has applied for or is receiving
such
services, the court
shall not direct such payments to be made to
the
support
collection
unit, as established in section one hundred
eleven-h
of
the social
services law. In addition, the order directing
the
payment
of support
shall require that if either parent currently, or
at
any time
in the future,
has health insurance benefits available
through
an
employer or
organization that may be extended to cover the
child,
such
parent is
required to exercise the option of additional
coverage
in
favor of
such child and execute and deliver any forms,
notices,
documents or
instruments necessary to assure timely payment of
any
health
insurance
claims for such child.
S
4. The
domestic relations
law is amended by adding a new section
240-d
to read
as follows:
S
240-D.
CUSTODY OF CHILDREN.
1. WHERE THE COURT CONSIDERS AWARDING
SHARED
PARENTING PURSUANT
TO THE PROVISIONS OF PARAGRAPH (A) OF SUBDIVI-
SION ONE
OF
SECTION TWO
HUNDRED FORTY OF THIS ARTICLE, "SHARED PARENT-
ING"
SHALL
MEAN AN ORDER
AWARDING CUSTODY OF THE CHILD TO BOTH PARTIES
SO THAT
BOTH
PARTIES
SHARE EQUALLY THE LEGAL RESPONSIBILITY AND CONTROL
OF SUCH
CHILD
AND SHARE
EQUALLY THE LIVING EXPERIENCE IN TIME AND PHYS-
ICAL
CARE TO
ASSURE FREQUENT
AND CONTINUING CONTACT WITH BOTH PARTIES,
AS THE
COURT
DEEMS TO
BE IN THE BEST INTERESTS OF THE CHILD, TAKING INTO
CONSIDERATION
THE LOCATION
AND CIRCUMSTANCES OF EACH PARTY. THE TERM
"SHARED
PARENTING" SHALL
BE CONSIDERED INTERCHANGEABLE WITH "NEARLY
EQUAL
SHARED
PARENTING".
AN AWARD OF JOINT PHYSICAL AND LEGAL CUSTODY
OBLIGATES
THE
PARTIES
TO EXCHANGE INFORMATION CONCERNING THE HEALTH,
EDUCATION
AND
WELFARE
OF THE MINOR CHILD, AND UNLESS ALLOCATED, APPOR-
TIONED
OR
DECREED, THE
PARENTS OR PARTIES SHALL CONFER WITH ONE ANOTHER
IN THE
EXERCISE OF DECISION-MAKING
RIGHTS, RESPONSIBILITIES AND AUTHORI-
TY.
2. FOR THE
PURPOSES OF
THIS ARTICLE A "PARENTING PLAN", REQUIRED TO BE
SUBMITTED
TO
THE COURT
PURSUANT TO CLAUSE ONE OF SUBPARAGRAPH (II) OF
PARAGRAPH
(A)
OF SUBDIVISION
ONE OF SECTION TWO HUNDRED FORTY OF THIS
ARTICLE,
SHALL INCLUDE
BUT NOT BE LIMITED TO:
(A)
THE
LEGAL RESPONSIBILITIES
OF EACH PARENT;
(B)
A
WEEKLY PARENTING
SCHEDULE;
(C)
A
HOLIDAY AND VACATION
PARENTING SCHEDULE;
(D)
A
SCHEDULE FOR SPECIAL
OCCASIONS, INCLUDING BIRTHDAYS;
(E)
A
DESCRIPTION OF ANY
SPECIFIC DECISION MAKING AREAS FOR EACH
PARENT;
PROVIDED, HOWEVER,
THAT BOTH PARENTS SHALL CONFER AND JOINTLY
DETERMINE
MAJOR ISSUES
AFFECTING THE WELFARE OF THE CHILD INCLUDING
HEALTH,
EDUCATION, DISCIPLINE
AND RELIGION;
(F)
IF
APPLICABLE, THE
NEED FOR ANY AND ALL OF THE PARTIES TO PARTIC-
IPATE IN
COUNSELING;
(G)
ANY
RESTRICTIONS ON
EITHER PARENT WHEN IN PHYSICAL CONTROL OF THE
CHILD OR
CHILDREN; AND
(H)
PROVISIONS FOR MEDIATION
OF DISPUTES.
3.
ONE
PARENT MAY BE DESIGNATED
AS A PUBLIC WELFARE RECIPIENT IN SITU-
ATIONS
WHERE
PUBLIC WELFARE
AID IS DEEMED NECESSARY AND APPROPRIATE. IN
MAKING
AN
ORDER OF SHARED
PARENTING, THE COURT SHALL SPECIFY THE RIGHT
OF EACH
PARENT TO THE
PHYSICAL CONTROL OF THE CHILD IN SUFFICIENT DETAIL
TO
ENABLE A
PARENT DEPRIVED
OF THAT CONTROL TO ENFORCE THE COURT ORDER
AND TO
ENABLE
LAW ENFORCEMENT
AUTHORITIES TO IMPLEMENT LAWS FOR RELIEF
OF
PARENTAL
KIDNAPPING
AND CUSTODIAL INTERFERENCE.
S
5. This
act shall take
effect on the first day of November next
succeeding
the date on
which it shall have become a law and shall apply
to
actions
and proceedings
commenced on or after such date.
|