NY State Senate Bill 2011-S4281

Senate Bill S4281

2011-2012 Legislative Session

Establishes the presumption in matrimonial proceedings of awarding shared parenting of minor children

download bill text pdf

Archive: Last Bill Status - In Senate Committee Children And Families Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 04, 2012	referred to children and families
Mar 28, 2011	referred to children and families

2011-S4281 (ACTIVE) - Details

Current Committee:: Senate Children And Families
Law Section:: Domestic Relations Law
Laws Affected:: Amd §§70 & 240, add §240-d, Dom Rel L
Versions Introduced in Other Legislative Sessions:: 2009-2010: S6968
2013-2014: S949
2015-2016: S2375
2017-2018: S2267
2019-2020: S4260
2021-2022: S4667
2023-2024: S5282

2011-S4281 (ACTIVE) - Summary

Establishes the presumption in matrimonial proceedings for awarding shared parenting of minor children in the absence of an allegation that shared parenting would be detrimental to the best interests of the child; establishes an order of preference in awarding custody; defines shared parenting and parenting plan.

2011-S4281 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S4281

TITLE OF BILL:
An act
to amend the domestic relations law, in relation to establishing a
presumption of shared parenting of minor children in matrimonial
proceedings

PURPOSE:
To create a statutory presumption of joint custody for all minor
children whose parents are no longer married, so that both parents
can continue to share in the responsibilities and duties of the
children's upbringing.

SUMMARY OF PROVISIONS:
Section 1 of the bill sets forth the legislative intent for creating a
presumption of joint custody in proceedings where the custody of
minor children is at issue. It further states that continuing contact
with both parents through shared parenting is in the best interests
of minor children.

Section 2 of the bill amends §70(a) of the Domestic Relations Law to
require the court to award custody to both parents in the absence of
allegations that shared parenting would be detrimental to the child.
The burden of proof that shared parenting would be detrimental is
placed upon the parent requesting sole custody.

Section 3 of the bill amends §240(1)(a) of the Domestic Relations Law
to establish an order of preference for the awarding of custody of
minor children in the case of divorce. The first preference is for
joint custody to be awarded by the court. If the court opts not to
award joint custody it must state its reasons for denial. The order
of joint custody may be amended by the court if it is shown that it
would be in the best interests of the child. The second preference
would be to either parent based on the court's determination of the
best interests of the child. The third preference would be to the
person with whom the child has been living in a wholesome and stable
environment. The final preference would be to another person the
court deems suitable.

Section 4 of the bill adds a new §240-d to the Domestic Relations Law
to create a definition of shared parenting. Under this definition
both parents would remain legally responsible and in control of their
children so that both parents share in the care and upbringing of
their children. It also sets forth the requirements of a "parenting
plan."

Section 5 of the bill is the effective date.

EXISTING LAW:
Currently, there is no preference for shared parenting in New York.
The court may award joint custody, but in practice this is not the
case.

JUSTIFICATION:


Regardless of whether parents are married, each should be assumed to
have equally important responsibilities in child rearing. Current
psychological studies, including state sponsored projects spanning 38
states, reveal convergent findings that children of all ages have
better adjustment after divorce when they have full parenting
participation from both parents. Custody decisions that exclude or
narrowly limit the participation of either parent tend, ultimately,
to have negative impact on children.

According to reports by the National Institute of Mental Health,
custody arrangements which effectively remove one parent from a
child's life interferes with the child's normal development. Although
nothing in current law prohibits a court of competent jurisdiction
from awarding shared parenting of a child to both parents, it is
rarely done by the courts, or only in instances where it is requested
by both parents.

A shared parenting arrangement would allow the child to enjoy
continued contact with both parents and the extended family on each
side. Presumptive shared parenting protects and shifts the litigation
burden away from the cooperative parent, and fosters a context for
mediation to the child's advantage. Because presumptive shared
parenting reduces litigation and re-litigation, it will also reduce
the stress inherent in the divorce process. To the extent that policy
is driven by conflict reduction, shared parenting is the obvious
starting point. Joint physical custody also satisfies the top
positive predictor of child support compliance, which is involvement
in parenting. Most importantly, it recognizes that children are not
property or bargaining chips. It reassures the child that both
parents are equal. As this law would assure that neither parent is
demoted in the children's eyes, it affirms to the children what they
need to feel, that both parents are equal.

LEGISLATIVE HISTORY:
2010: S.6968 - Referred to Children and Families.

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
First of November next succeeding the date on which it shall have
become a law.

2011-S4281 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4281

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             March 28, 2011
                               ___________

Introduced  by  Sen. JOHNSON -- 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  ASSEM-
BLY, 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 responsi-
bilities 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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07261-01-1

S. 4281                             2

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 amended by chapter 476 of the laws of 2009, 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 and state on the record how  such  findings,  facts  and
circumstances  factored  into  the  direction.  If a parent makes a good
faith allegation based on a reasonable belief supported  by  facts  that
the child is the victim of child abuse, child neglect, or the effects of
domestic violence, and if that parent acts lawfully and in good faith in
response  to  that reasonable belief to protect the child or seek treat-
ment for the child, then that parent shall not be deprived  of  custody,
visitation  or contact with the child, or restricted in custody, visita-
tion or contact, based solely on that belief or the  reasonable  actions
taken  based  on that belief. If an allegation that a child is abused is
supported by a preponderance of  the  evidence,  then  the  court  shall
consider  such  evidence of abuse in determining the visitation arrange-
ment that is in the best interest of the child, and the court shall  not
place a child in the custody of a parent who presents a substantial risk
of  harm  to that child, and shall state on the record how such findings
were factored into the determination. 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 custo-
dy of the child in either parent.  Such] (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

S. 4281                             3

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

S. 4281                             4

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 public assistance and care 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 availability 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  understands  that  an  income  deduction  order may be issued
pursuant to subdivision (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. Every 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 that may be
extended or obtained to cover the child,  such  parent  is  required  to
exercise  the  option  of additional coverage in favor of such child and
execute and deliver to such person  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-

S. 4281                             5

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 of November next succeed-
ing the date on which it shall have become a  law  and  shall  apply  to
actions and proceedings commenced on and after such date.

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