A06670 Summary:

BILL NO    A06670A

SAME AS    No same as

SPONSOR    Kolb

COSPNSR    Crouch, Finch

MLTSPNSR

Rpld S240 sub 1-b   (e) & (f), amd Dom Rel L, generally; amd SS358-a, 384-a,
384-b, 398, 398-d, 111-h & 111-b, Soc Serv L; amd Fam Ct Act, generally

Makes numerous modifications to provisions of various laws relating to child
custody matters; provides for shared parenting custody; for parenting time
rather than visitation; mediation and counseling in matrimonial actions
involving children; sanctions for interference with parenting time; raises the
PINS age to 18 for males and females alike; provides for equality in the burden
of child support between parents; bases child support on net income exclusive
of income and FICA taxes; provides that child support ceases at age 18;
requires contract support collection agents to be audited; opens family court
to the general public; deals with DNA evidence when question of paternity;
increases parental access to information.

A06670 Actions:

BILL NO    A06670A

03/18/2005 referred to judiciary
04/28/2005 amend and recommit to judiciary
04/28/2005 print number 6670a

A06670 Votes:

A06670 Memo:

 BILL NUMBER:  A6670A

 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; to amend the domestic relations
law, the social services law and the family court act, in relation to
changing the denotation of visitation to parenting time; to amend the
domestic relations law, in relation to matrimonial actions involving
custody of children; the obligations of child support; and to amend
the social services law, in relation to audits of support collection
fiscal agents; to amend the family court act, in relation to opening
all family court proceedings to the public; to amend the family court
act, in relation to the review of evidence; to amend the family court
act, in relation to DNA evidence when question of paternity; to amend
the domestic relations law, in relation to parental access to
information; to amend the family court act and the social services
law, in relation to the payment of child support; and to repeal
paragraphs (e) and (f) of subdivision 1-b of section 240 of the
domestic relations law relating to child support

 PURPOSE OR GENERAL IDEA OF BILL :

Establishes the "Family Court Reform Act of 2005." Makes numerous
modifications to provisions of various laws relating to child custody
matters.

 SUMMARY OF SPECIFIC PROVISIONS :

* Legislative Findings and Intent: The Legislature hereby finds that,
in cases of child custody, the Court`s paramount concern is always the
best interest of the child. Shared parenting, where both parents share
as equally as possible in the legal responsibility, living experience,
and physical care of the child, has been found to be in child`s best
interest in certain circumstances. Where the relationship between the
parent(s) and child(ren) is free from domestic violence, abuse,
neglect and other harmful circumstances, shared parenting is
beneficial to both parent(s) and child(ren). This legislation seeks to
encourage Courts and interested parties to work towards the goal of
shared parenting whenever practical and when in the best interest of
the child.

* Eliminates "visitation" for non-prime custodial parent and
substitutes "parenting time" in all relevant portions of the law.

* Upon the initial appearance in Court in an action for divorce,
nullity or separate maintenance where custody, visitation or support
of a minor child is at issue, and where both parties agree to shared
parenting, the Court shall appoint an independent evaluator with
expertise in the field, including but not limited to, child
psychology, domestic violence counseling, etc., to investigate the
family dynamic and interview the parents, children and other
interested parties, including but not limited to, family members,
friends and co-workers.

* The independent evaluator`s goal is to determine whether shared
parenting is in the best interest of the child and to ensure that
domestic violence and/or any other type of abuse, reported or
unreported by the victim or by an appropriate federal, state or
municipal agency, is not present in the household setting.

* The Court shall determine each parties` ability to pay the cost
related to the evaluation. Any cost above and beyond the parents`
ability to pay shall be incurred by the county.

* The Court shall utilize the independent evaluator`s analysis and
report, along with other supporting documents provided by the parties,
to determine the best interest of the child and to award custody based
on that determination.

* If the Court provides an award of shared parenting, the Court shall
require the parties to attend mediation and family counseling for the
purposes of creating a parenting plan. The Court has final approval
over such plan and may modify, suspend or nullify the plan at its
discretion.  The Court shall review the parenting plan in one year to
determine if such plan is being followed and if such plan continues to
be in the best interest of the child. The Court shall retain the power
to modify, suspend or nullify the plan based on its findings at this
time.

* If either parent has an order of protection against the other parent
barring contact between the parent and/or child, shared parenting
shall not be a custodial option. If either parent has been convicted
of abuse, including but not limited to, domestic violence and sexual
abuse against either the other parent and/or the child, shared
parenting shall not be a custodial option.

* If either parent accuses the other parent of domestic violence,
sexual abuse, etc., against him/herself, and/or the child, the Court
shall suspend its determination as to whether or not shared parenting
is in the best interest of the child, until the accusation has been
investigated and a determination has been made by law enforcement or
appropriate federal, state or municipal agencies. If such agencies
determine that the abuse occurred, shared parenting shall not be a
custodial option. If such agency finds that abuse was not present, the
Court shall resume its determination as to whether or not shared
parenting is in the best interest of the child. Should such
allegations be proven false and the court determines upon motion by
the accused party that such allegations were made maliciously and in
bad faith, the court shall have the power to sanction the accusing
party.

* If the parties are seeking a custody arrangement other than shared
parenting or where one parent objects to an award of shared parenting,
the Court must determine what custody arrangement is in the best
interest of the child. If one party is seeking shared parenting and
the other party is seeking sole custody, both parties shall bear the
burden of proof that their requested arrangement is in the best
interest of the child through the introduction of testimony and
supporting documents, etc. to the Court.

* Court shall appoint an independent evaluator with expertise in the
fields of, including but not limited to, child psychology, domestic
violence counseling, etc., to investigate the family dynamic and
interview the parents, children and other interested parties,
including but not limited to, family members, friends and co-workers.

* The independent evaluator`s goal is to determine what custody
arrangement is in the best interest of the child and to ensure that
domestic violence and/or any other type of abuse, reported or
unreported by the victim or by an appropriate federal, state or
municipal agency, is not present in the household setting.

* The Court shall determine each parties` ability to pay the cost
related to the evaluation. Any cost above and beyond the parents`
ability to pay shall be incurred by the county.

* The Court shall utilize the independent evaluator`s analysis and
report, along with other supporting documents provided by the parties,
to determine the best interest of the child and to award custody based
on that determination. If one party sought shared parenting, and the
Court found that such an award would not be in the best interest of
the child, the Court must state its reasoning behind such
determination in the order setting out the custody award. The Court,
in its discretion, may require the parent who was not awarded shared
parenting to fulfill certain conditions, including but not limited to,
parenting classes, general counseling, anger management classes, and
substance abuse counseling, and shall list such conditions on the
custody order. Upon the non-custodial parent`s motion, the court
shall, one year following the initial award of custody, revisit its
findings and make a subsequent determination whether or not shared
parenting is in the best interest of the child. Such review is
contingent on the noncustodial parent`s completion of the conditions
set forth in the custody order and the requirement that such parent
remain current in their support obligations.

*Provides that interference with or withholding of parenting time
without cause results in immediate sanctions.

*Establishes that both parents have equal duty to support their
children and that child support is for care and maintenance of
children. Proposes that both household incomes be considered when
assigning support amount.  Provides that child support should be based
on net-income not gross income; that is minus FICA, Federal and State
tax liability. The court is not required to order support for any
minor child who has become self-supporting, emancipated or married.

*When the Court awards shared parenting the percentage used to
determine the child support order for the non-custodial parent will
vary from what is currently the standard in law for three children or
fewer. In shared parenting cases the following will apply: for one
child it will be 10 percent the combined parental income; for two
children 16 percent the combined income; and for three children 26
percent the combined parental income. However, the Court may require
up to an additional seven percent if there is a demonstrated need,
based upon receipts for clothing, care, medical attention, educational
expenses, or other related expenses, and the Court deems it necessary.
For all other custody arrangements, the current child support standard
will apply.

* Directs local Child Support Units to keep accurate records and issue
quarterly statements to those who pay support. Once a year, a motion
can be filled by the non-custodial parent to require an accounting by
the custodial parent for all funds expended upon the child or
children. The Court shall use this accounting to determine whether or
not the funds are being misused or are not fulfilling the needs of the
child or children. Establishes an arbitrator through the local child
support collection to arbitrate disputes when there are accusations of
child arrearage in order to avert a court appearance.

* Every parent, except as prohibited by federal and state law, shall
have access to records and information pertaining to the health,
education and welfare of the child, whether or not the child resides
with the parent, unless that access is found by the court to be not in
the best interests of the child.

* Allows the introduction of DNA testing results in questions of
paternity, however the bill makes exemptions for cases where a sperm
donor was used and if the putative father was aware and consented to
such use. If paternity is negative, the court is mandated to order
immediate cessation of all child support regardless of the length of
time that has been paid.

 JUSTIFICATION :

Family Court is an adversarial forum where one side defaults the
other, allowing a "winner" and a "loser" to be declared. However, any
child will tell you that he/she is not looking for either parent to be
evaluated as a winner or loser. Children do not want to lose a parent.
They want to be able to love each parent fully, be taken care of in
the accustomed manner, and benefit from the qualities that both
parents have to offer.

When one parent is assigned to sole custody or joint legal custody
with primary residence, the other parent is reduced to a peripheral
"visitor" status and "granted" four days a month as the "standard"
visitation. In effect not only do parents get divorced, but children
get divorced from one of their parents.

This bill attempts to mitigate the adversarial nature of Family Court
by mandating mediation after the initial appearance in Family Court in
a divorce involving children. Moreover the bill establishes that in
certain circumstances, "shared parenting" is in the best interests of
the child. Furthermore, the legislation seeks to ensure that the child
support goes to the child`s needs without being financially
destructive to the support paying parent.

This bill also holds Family Court judges, Hearing Examiners, and Law
Guardians more accountable for their decisions as well as empowering
them to order immediate cessation of child support when paternity is
proved negative as well as to establish policies to guarantee
equitable arrangements for parenting time for nonlocal households.

 PRIOR LEGISLATIVE HISTORY :

2004: A6296, Held in Judiciary.
2003: A6296, Referred to Judiciary.
2002: A2767-A, Held in Judiciary.
2001: A.2767, Referred to Judiciary.
2000-1999: A10340, Referred to Judiciary.

 FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS :

Yet to be determined.

 EFFECTIVE DATE :
This act shall take effect on the first of January next succeeding the
date on which it shall have become law; provided that the amendments
to subdivision (a) of section 439 of the family court act, made by
section twenty-three of this act, shall not affect the expiration of
the amendments made by such a subdivision by chapter 81 of the laws of
1995, as amended, and shall expire therewith, at which time section
twenty-four of this act shall take effect and provided further that
any and all rules and regulations and any other measures necessary to
implement this act on its effective date may be promulgated or taken
on or before such date.