Establishes a presumption of shared parenting of minor children in matrimonial and family court proceedings

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) 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 requirements of a "parenting plan."

Section 5 of the bill adds a new § 654 to the Family Court Act to establish an order of preference for awarding custody of a minor. 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 6 of the bill adds a new § 654(a) to the Family Court Act 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 requirements of a "parenting plan."

Section 7 of the bill makes these changes effective immediately upon enactment.

Existing law

Currently, there is no preference for shared parenting in New York. The court may award joint custody, but in practice rarely does so.

Justification

Whether the parents are married or not, each should be assumed to have equally important responsibilities in child rearing. In families where parents are no longer together, 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 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. 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. 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 child custody 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.

Fiscal implications

None.

Effective date

This act shall take effect November first next succeeding the date on which it shall have become a law and shall apply to actions and proceedings commenced on and after such date.