STATE OF NEW YORK
________________________________________________________________________
5316
2013-2014 Regular Sessions
IN SENATE
May 16, 2013
___________
Introduced by Sen. NOZZOLIO -- 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.
LBD01645-01-3
S. 5316 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 476 of the laws of 2009, 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. An order directing the payment of
47 child support shall contain the social security numbers of the named
48 parties. [In all cases there shall be no prima facie right to the custo-
49 dy of the child in either parent. Such direction]
50 (ii) Custody shall be awarded in the following order of preference,
51 according to the best interests of the child:
52 (1) To both parents jointly pursuant to section two hundred forty-d of
53 this article. In such cases the court must require the parents to submit
54 a parenting plan as defined in subdivision two of section two hundred
55 forty-d of this article for implementation of the custody order or the
56 parents acting individually or in concert may submit a custody implemen-
S. 5316 3
1 tation plan to the court prior to issuance of a custody decree. There
2 shall be a presumption, affecting the burden of proof, that shared
3 parenting is in the best interests of a minor child unless the parents
4 have agreed to an award of custody to one parent or so agree in open
5 court at a hearing for the purpose of determining custody of a minor
6 child of the marriage or the court finds that shared parenting would be
7 detrimental to a particular child of a specific marriage. For the
8 purpose of assisting the court in making a determination whether an
9 award of shared parenting is appropriate, the court may direct that an
10 investigation be conducted. If the court declines to enter an order
11 awarding shared parenting pursuant to this paragraph, the court shall
12 state in its decision the reasons for denial of an award of shared
13 parenting. In jurisdictions having a private or publicly-supported
14 conciliation service, the court or the parties may, at any time, pursu-
15 ant to local rules of the 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 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 (2) 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 (3) 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 (4) To any other person or persons deemed by the court to be suitable
40 and able to provide a nurturing and stable environment.
41 Before the court makes any order awarding custody to a person or
42 persons other than a parent without the consent of the parents, it shall
43 make a finding that an award of custody to a parent would be detrimental
44 to the child and the award to a non-parent is required to serve the best
45 interests of the child. Allegations that parental custody would be
46 detrimental to the child, other than a statement of that ultimate fact,
47 shall not appear in the pleadings. The court may, in its discretion,
48 exclude the public from the hearing on this issue. The court shall state
49 in writing the reason for its decision and why the award made was found
50 to be in the best interests of the child. Any direction made pursuant to
51 this subdivision shall make provision for child support out of the prop-
52 erty of [either or] both parents. The court shall make its award for
53 child support pursuant to subdivision one-b of this section. Such direc-
54 tion may provide for reasonable visitation rights to the maternal and/or
55 paternal grandparents of any child of the parties. Such direction as it
56 applies to rights of visitation with a child remanded or placed in the
S. 5316 4
1 care of a person, official, agency or institution pursuant to article
2 ten of the family court act, or pursuant to an instrument approved under
3 section three hundred fifty-eight-a of the social services law, shall be
4 enforceable pursuant to part eight of article ten of the family court
5 act and sections three hundred fifty-eight-a and three hundred eighty-
6 four-a of the social services law and other applicable provisions of law
7 against any person having care and custody, or temporary care and custo-
8 dy, of the child. Notwithstanding any other provision of law, any writ-
9 ten application or motion to the court for the establishment, modifica-
10 tion or enforcement of a child support obligation for persons not in
11 receipt of public assistance and care must contain either a request for
12 child support enforcement services which would authorize the collection
13 of the support obligation by the immediate issuance of an income
14 execution for support enforcement as provided for by this chapter,
15 completed in the manner specified in section one hundred eleven-g of the
16 social services law; or a statement that the applicant has applied for
17 or is in receipt of such services; or a statement that the applicant
18 knows of the availability of such services, has declined them at this
19 time and where support enforcement services pursuant to section one
20 hundred eleven-g of the social services law have been declined that the
21 applicant understands that an income deduction order may be issued
22 pursuant to subdivision (c) of section fifty-two hundred forty-two of
23 the civil practice law and rules without other child support enforcement
24 services and that payment of an administrative fee may be required. The
25 court shall provide a copy of any such request for child support
26 enforcement services to the support collection unit of the appropriate
27 social services district any time it directs payments to be made to such
28 support collection unit. Additionally, the copy of any such request
29 shall be accompanied by the name, address and social security number of
30 the parties; the date and place of the parties' marriage; the name and
31 date of birth of the child or children; and the name and address of the
32 employers and income payors of the party from whom child support is
33 sought or from the party ordered to pay child support to the other
34 party. Such direction may require the payment of a sum or sums of money
35 either directly to the custodial parent or to third persons for goods or
36 services furnished for such child, or for both payments to the custodial
37 parent and to such third persons; provided, however, that unless the
38 party seeking or receiving child support has applied for or is receiving
39 such services, the court shall not direct such payments to be made to
40 the support collection unit, as established in section one hundred
41 eleven-h of the social services law. Every order directing the payment
42 of support shall require that if either parent currently, or at any time
43 in the future, has health insurance benefits available that may be
44 extended or obtained to cover the child, such parent is required to
45 exercise the option of additional coverage in favor of such child and
46 execute and deliver to such person any forms, notices, documents or
47 instruments necessary to assure timely payment of any health insurance
48 claims for such child.
49 § 4. The domestic relations law is amended by adding a new section
50 240-d to read as follows:
51 § 240-d. Custody of children. 1. Where the court considers awarding
52 shared parenting pursuant to the provisions of paragraph (a) of subdivi-
53 sion one of section two hundred forty of this article, "shared parent-
54 ing", shall mean an order awarding custody of the child to both parties
55 so that both parties share equally the legal responsibility and control
56 of such child and share equally the living experience in time and phys-
S. 5316 5
1 ical care to assure frequent and continuing contact with both parties,
2 as the court deems to be in the best interests of the child, taking into
3 consideration the location and circumstances of each party. The term
4 "shared parenting" shall be considered interchangeable with "nearly
5 equal shared parenting". An award of joint physical and legal custody
6 obligates the parties to exchange information concerning the health,
7 education and welfare of the minor child, and unless allocated, appor-
8 tioned or decreed, the parents or parties shall confer with one another
9 in the exercise of decision-making rights, responsibilities and authori-
10 ty.
11 2. For the purposes of this article a "parenting plan", required to be
12 submitted to the court pursuant to clause one of subparagraph (ii) of
13 paragraph (a) of subdivision one of section two hundred forty of this
14 article, shall include but not be limited to:
15 (a) the legal responsibilities of each parent;
16 (b) a weekly parenting schedule;
17 (c) a holiday and vacation parenting schedule;
18 (d) a schedule for special occasions, including birthdays;
19 (e) a description of any specific decision making areas for each
20 parent provided, however, that both parents shall confer and jointly
21 determine major issues affecting the welfare of the child including
22 health, education, discipline and religion;
23 (f) if applicable, the need for any and all of the parties to partic-
24 ipate in counseling;
25 (g) any restrictions on either parent when in physical control of the
26 child or children; and
27 (h) provisions for mediation of disputes.
28 3. One parent may be designated as a public welfare recipient in situ-
29 ations where public welfare aid is deemed necessary and appropriate. In
30 making an order of shared parenting, the court shall specify the right
31 of each parent to the physical control of the child in sufficient detail
32 to enable a parent deprived of that control to enforce the court order
33 and to enable law enforcement authorities to implement laws for relief
34 of parental kidnapping and custodial interference.
35 § 5. The family court act is amended by adding a new section 654 to
36 read as follows:
37 § 654. Order of preference of custody awards. Custody shall be awarded
38 in the following order of preference, according to the best interests of
39 the child:
40 (a) To both parents jointly. In such cases the court must require the
41 parents to submit a parenting plan as defined in subdivision (b) of
42 section six hundred fifty-four-a of this part for implementation of the
43 custody order or the parents acting individually or in concert may
44 submit a custody implementation plan to the court prior to issuance of a
45 custody decree. There shall be a presumption, affecting the burden of
46 proof, that shared parenting is in the best interests of a minor child
47 unless the parents have agreed to an award of custody to one parent or
48 so agree in open court at a hearing for the purpose of determining
49 custody of a minor child of the marriage or the court finds that shared
50 parenting would be detrimental to a particular child of a specific
51 marriage. For the purpose of assisting the court in making a determi-
52 nation whether an award of shared parenting is appropriate, the court
53 may direct that an investigation be conducted. If the court declines to
54 enter an order awarding shared parenting pursuant to this subdivision,
55 the court shall state in its decision the reasons for denial of an award
56 of shared parenting. In jurisdictions having a private or publicly-sup-
S. 5316 6
1 ported conciliation service, the court or the parties may, at any time,
2 pursuant to local rules of court, consult with the conciliation service
3 for the purpose of assisting the parties to formulate a plan for imple-
4 mentation of the custody order or to resolve any controversy which has
5 arisen in the implementation of a plan for custody. Any order for shared
6 parenting may be modified or terminated upon the petition of one or both
7 parents or on the court's own motion if it is shown that the best inter-
8 ests of the child require the modification or termination of the shared
9 parenting order. Any order for the custody of a minor child of a
10 marriage entered by a court in this state or in any other state, subject
11 to jurisdictional requirements, may be modified at any time to an order
12 of shared parenting in accordance with the provisions of this section.
13 (b) To either parent, in which case, the court, in making an order for
14 custody to either parent shall consider, among other factors, which
15 parent is more likely to allow the child or children frequent and
16 continuing contact with the noncustodial parent, and shall not prefer a
17 parent as custodian because of that parent's gender. The burden of proof
18 that shared parenting would not be in the child's best interest shall be
19 upon the parent requesting sole custody. Notwithstanding any other
20 provision of law, access to records and information pertaining to a
21 minor child, including but not limited to medical, dental and school
22 records, shall not be denied to a parent because the parent is not the
23 child's custodial parent.
24 (c) If to neither parent, to the person or persons in whose home the
25 child has been living in a nurturing and stable environment.
26 (d) To any other person or persons deemed by the court to be suitable
27 and able to provide a nurturing and stable environment. Before the court
28 makes any order awarding custody to a person or persons other than a
29 parent without the consent of the parents, it shall make a finding that
30 an award of custody to a parent would be detrimental to the child and
31 the award to a non-parent is required to serve the best interests of the
32 child. Allegations that parental custody would be detrimental to the
33 child, other than a statement of the ultimate fact, shall not appear in
34 the pleadings. The court may, in its discretion, exclude the public from
35 the hearing on this issue. The court shall state in writing the reason
36 for its decision and why the award made was found to be in the best
37 interests of the child.
38 § 6. The family court act is amended by adding a new section 654-a to
39 read as follows:
40 § 654-a. Custody of children. (a) Where the court considers awarding
41 shared parenting pursuant to the provisions of subdivision (a) of
42 section six hundred fifty-four of this part, "shared parenting", shall
43 mean an order awarding custody of the child to both parties so that both
44 parties share equally the legal responsibility and control of such child
45 and share equally the living experience in time and physical care to
46 assure frequent and continuing contact with both parties, as the court
47 deems to be in the best interests of the child, taking into consider-
48 ation the location and circumstances of each party. The term "shared
49 parenting", shall be considered interchangeable with "nearly equal
50 shared parenting". An award of joint physical and legal custody obli-
51 gates the parties to exchange information concerning the health, educa-
52 tion and welfare of the minor child, and unless allocated, apportioned
53 or decreed, the parents or parties shall confer with one another in the
54 exercise of decision-making rights, responsibilities and authority.
55 (b) For the purposes of this part a "parenting plan", required to be
56 submitted to the court, shall include but not be limited to:
S. 5316 7
1 1. the legal responsibilities of each parent;
2 2. a weekly parenting schedule;
3 3. a holiday and vacation parenting schedule;
4 4. a schedule for special occasions, including birthdays;
5 5. a description of any specific decision making areas for each parent
6 provided, however, that both parents shall confer and jointly determine
7 major issues affecting the welfare of the child including health, educa-
8 tion, discipline and religion;
9 6. if applicable, the need for any and all of the parties to partic-
10 ipate in counseling;
11 7. any restrictions on either parent when in physical control of the
12 child or children; and
13 8. provisions for mediation of disputes.
14 (c) One parent may be designated as a public welfare recipient in
15 situations where public welfare aid is deemed necessary and appropriate.
16 In making an order of shared parenting, the court shall specify the
17 right of each parent to the physical control of the child in sufficient
18 detail to enable a parent deprived of that control to enforce the court
19 order and to enable law enforcement authorities to implement laws for
20 relief of parental kidnapping and custodial interference.
21 § 7. This act shall take effect on the first of November next succeed-
22 ing the date on which it shall have become a law and shall apply to
23 actions and proceedings commenced on and after such date.
