What's happening
This bill establishes a legal presumption in favor of shared parenting and joint custody of minor children in New York matrimonial and family court proceedings, unless proven detrimental to the child.
Why it matters
Shifts the default standard in custody cases to shared parenting, placing the burden on the parent seeking sole custody to prove it would be detrimental to the child. This change could significantly alter litigation dynamics, making it harder for one parent to secure sole custody without clear evidence of harm.
Requires parents to submit detailed “parenting plans” when shared custody is considered. These plans must address weekly schedules, holidays, decision-making responsibilities, dispute resolution, and more—encouraging comprehensive, proactive co-parenting arrangements and potentially reducing future conflicts.
Mandates courts to explicitly justify decisions against shared parenting. If a judge rules against shared custody, they must state specific reasons, increasing transparency and possibly leading to fewer arbitrary or biased decisions.
Explicitly prohibits gender-based preferences in custody decisions and guarantees both parents access to important child records. This aims to further equalize parental rights and ensure continued involvement of both parents in the child’s life, regardless of custodial status.
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Who cares
Headline styles
Require Shared Child Custody
Plain English, a few words. Used as the page title.
Sponsors
3 Co-sponsors
History
- Referred to children and families
- Referred to children and families
Full text
7 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
2577
2017-2018 Regular Sessions
IN SENATE
January 13, 2017
Introduced by Sen. HELMING -- 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 Assembly, 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 children 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 responsibilities 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.
§ 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.
LBD04768-01-7
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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.
§ 3. Paragraph (a) of subdivision 1 of section 240 of the domestic relations law, as amended by chapter 567 of the laws of 2015, 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-petition, 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 treatment for the child, then that parent shall not be deprived of custody, visitation or contact with the child, or restricted in custody, visitation 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 arrangement 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. Where a proceeding filed pursuant to article ten or ten-A of the family court act is pending at the same time as a proceeding brought in the supreme court involving the custody of, or right to visitation with, any child of a marriage, the court presiding over the proceeding under article ten or ten-A of the family court act may jointly hear the dispositional hearing on the petition under article ten or the permanency hearing under article ten-A of the family court act and, upon referral from the supreme court, the hearing to resolve the matter of custody or visitation in the proceeding pending in the supreme court; provided however, the court must determine custody or visitation in accordance with the terms of this section.
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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 custody of the child in either parent. Such direction]
(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 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, pursuant to local rules of the court, consult with the conciliation service for the purpose of assisting the parties to formulate a plan for implementation 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 interests 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
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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 property of [either or] both parents. The court shall make its award for child support pursuant to subdivision one-b of this section. Such direction 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 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 eightyfour-a of the social services law and other applicable provisions of law against any person having care and custody, or temporary care and custody, of the child. Notwithstanding any other provision of law, any written application or motion to the court for the establishment, modification 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
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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.
§ 4. The domestic relations law is amended by adding a new section 240-d to read as follows:
Reflowed for reading: line numbers and page breaks removed. Cite the official text.
Sponsor's memo
Title of bill
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
Purpose
To create a statutory presumption of joint custody for all minor children whose parents are no longer together, 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.
Read the full memo (1,012 words)
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.
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