BILL NO A00330
SAME AS Same as Uni. S 291
COSPNSR Galef, McEneny, Ignizio, Casale, O`Mara, Wirth, Seddio, Aubertine
MLTSPNSR Benjamin, Burling, Canestrari, Crouch, Destito, Diaz R, Lupardo,
Magee, Mayersohn, McDonald, McDonough, Miller, Schroeder, Tonko,
Amd SS70 & 240, add S240-d, Dom Rel L
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
BILL NO A00330
01/12/2005 referred to judiciary
02/11/2005 reference changed to children and families
TITLE OF BILL: An act to amend the domestic relations law, in relation
to establishing a presumption of shared parenting of minor children in
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 chil-
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 S 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 S 240(1) 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 S 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 chil-
dren so that both parents share in the care and upbringing of their
children. It also sets forth requirements of a "parenting plan."
Section 5 of the bill establishes 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 rarely
JUSTIFICATION: Whether the parents are married or not, each should be
assumed to have equally important responsibilities in child rearing. In
families of divorce, as in households where the parents live together,
the social attitude concerning the alleged primacy of maternal influence
in the lives of children is an unbalanced perspective and is potentially
damaging to children. 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 ulti-
mately 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.
Statistics have shown that in more than 95% of divorce or separation
cases, the mother was awarded sole custody of the child, with the father
limited to rights of visitation.
A shared parenting arrangement would allow the child to enjoy continued
contact with both parents and the extended family on each side. Presump-
tive 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 liti-
gation 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 phys-
ical 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 reas-
sures 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.
FISCAL IMPLICATIONS: None
LOCAL FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: This act shall take effect November first 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.