New York S 2916: Establishes a presumption of shared parenting of minor children in matrimonial and family court proceedings

Bill Text

STATE OF NEW YORK
________________________________________________________________________
2916
2019-2020 Regular Sessions
IN SENATE
January 30, 2019
___________
Introduced by Sens. HELMING, BOYLE, ORTT -- 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 Assem-
bly, do enact as follows:
1 Section 1. Legislative findings. The legislature hereby finds and
2 declares that it is the public policy of the state to assure minor chil-
3 dren have frequent and continuing contact with both parents after the
4 parents have separated or dissolved their marriage and that it is in the
5 public interest to encourage parents to share the rights and responsi-
6 bilities of child-rearing in order to effectuate this policy. At the
7 outset and thereafter, in any proceeding where there is at issue the
8 custody of a minor child, the court may, during the pendency of the
9 proceeding or at any time thereafter, make such order for the custody of
10 minor children as may seem necessary or proper. The provisions of this
11 act establish a presumption, affecting the burden of proof, that shared
12 parenting is in the best interests of minor children.
13 § 2. Subdivision (a) of section 70 of the domestic relations law, as
14 amended by chapter 457 of the laws of 1988, is amended to read as
15 follows:
16 (a) Where a minor child is residing within this state, either parent
17 may apply to the supreme court for a writ of habeas corpus to have such
18 minor child brought before such court; and on the return thereof, the
19 court, on due consideration, [ ] award the natural guardianship,may shall
20 charge and custody of such child to [ ] either parent both parents, in the
21 absence of an allegation that such shared parenting would be detrimental
22 for such time, under such regulations and restrictions,to such child,
23 and with such provisions and directions, as the case may require, and
EXPLANATION--Matter in (underscored) is new; matter in bracketsitalics
[ ] is old law to be omitted.
LBD04911-01-9

S. 2916 2
1 may at any time thereafter vacate or modify such order. [In all cases
2 there shall be no prima facie right to the custody of the child in
3 ] either parent, but the The burden of proof that such shared parenting
4 would be detrimental to such child shall be upon the parent requesting
5 court shall determine solely what is for the bestsole custody. The
6 interest of the child, and what will best promote [ ] its the child's
7 welfare and happiness, and make award accordingly.
8 § 3. Paragraph (a) of subdivision 1 of section 240 of the domestic
9 relations law, as amended by chapter 567 of the laws of 2015, is amended
10 to read as follows:
11 (a) In any action or proceeding brought (1) to annul a marriage or(i)
12 to declare the nullity of a void marriage, or (2) for a separation, or
13 (3) for a divorce, or (4) to obtain, by a writ of habeas corpus or by
14 petition and order to show cause, the custody of or right to visitation
15 with any child of a marriage, the court shall require verification of
16 the status of any child of the marriage with respect to such child's
17 custody and support, including any prior orders, and shall enter orders
18 for custody and support as, in the court's discretion, justice requires,
19 having regard to the circumstances of the case and of the respective
20 parties and to the best interests of the child and subject to the
21 provisions of subdivision one-c of this section. Where either party to
22 an action concerning custody of or a right to visitation with a child
23 alleges in a sworn petition or complaint or sworn answer, cross-peti-
24 tion, counterclaim or other sworn responsive pleading that the other
25 party has committed an act of domestic violence against the party making
26 the allegation or a family or household member of either party, as such
27 family or household member is defined in article eight of the family
28 court act, and such allegations are proven by a preponderance of the
29 evidence, the court must consider the effect of such domestic violence
30 upon the best interests of the child, together with such other facts and
31 circumstances as the court deems relevant in making a direction pursuant
32 to this section and state on the record how such findings, facts and
33 circumstances factored into the direction. If a parent makes a good
34 faith allegation based on a reasonable belief supported by facts that
35 the child is the victim of child abuse, child neglect, or the effects of
36 domestic violence, and if that parent acts lawfully and in good faith in
37 response to that reasonable belief to protect the child or seek treat-
38 ment for the child, then th