Enacts the child custody reform act to provide uniform statewide standards for the litigation and mediation of child custody disputes; provides for an initial planning conference between the judge and all parties to attempt a settlement; provides for mediation unless the court finds mediation is inappropriate; requires the chief administrator of the courts to establish plans for the conduct of administration of the mediation and preparation of evaluation reports.
TITLE OF BILL: An act to amend the domestic relations law, in relation to the child custody and support decision-making process
PURPOSE: This bill adds a new Domestic Relations Law section 242 to creates a uniform state-wide child custody dispute resolution system. This bill will help to encourage the settlement of custody and parenting disputes expeditiously, voluntarily, and without adversarial (and costly) litigation. It will also foster involvement of parents who are in the process of separating, divorcing or who have been divorced or separated, are in parenting arrangements and provide for such child's financial support.
SUMMARY OF PROVISIONS: The Child Custody Reform Act creates a unified procedure for custody and parenting disputes in the Supreme and Family Courts. Under this bill, the same judge will hear all aspects of custody and parenting disputes and will conduct a planning conference no later than the initial court appearance or hearing date, whichever is earlier. If the parties cannot agree on custody or a parenting plan, the judge will refer the dispute to mediation, unless the judge determines that mediation is inappropriate. This amended bill has instituted safe-guards to ensure that both parties to the mediation process have parity in negotiating position so that domestic violence and abusive habits will not enter into the mediation process. The bill further defines the types of issues that are not appropriate for mediation.
Sections 1 and 2: Enacts Child Custody Reform Act and provides for Legislative Intent.
Section 3: Adds Domestic Relations Law section 242. This section includes a:
- Definitions section.
- Pre-trial procedures
- Judicial management procedures
- Determination in custody, parenting and support disputes.
This amended bill is much more concise that the initial bill. In addition, it reflects public comments that safeguards needed to be instituted in the bill so that mediation only occurs between parties that are not in an abusive relationship and that there is parity in the negotiating power of each party so that the mediation process and results will be fair and equitable. Also, the mediation services will be provided based on a scheduled fee chart to minimize the fiscal impact on the Court system. Also, the amended bill simplifies the appointment of members to the advisory committee. Such committee is
to be appointed by the Chief Administrator to the Office of Court Administration.
EXISTING LAW: The dispute resolution system is, currently being used in various judicial districts on a pilot project basis.
JUSTIFICATION: Children suffer significant emotional, financial and educational harm when thrown into a crisis due t.o parental separation or divorce. This pain can be minimized, in certain circumstances, if both parents remain involved in establishing post. separation or divorce parenting plans that t.he parents craft themselves. Mediation facilitates the development of such plans. Adversarial litigation about children tends to further alienate parents and children from each other, is more expensive, and does not encourage parental cooperation.
This bill establishes a uniform procedural system for resolving custody and parenting disputes in an amicable manner. Currently, a number of New York Courts are incorporating mediation into their court resolution procedures. This can be an effective way to reduce crowded court calendars and make courts more attentive to individual needs. This bill would provide a statewide uniform process to facilitate the use of mediation services. It does not change the substantive rules under which courts allocate custody if the parents can not settle the disputes themselves.
FISCAL IMPLICATIONS: Undetermined.
EFFECTIVE DATE: Immediately, with provisions.
STATE OF NEW YORK ________________________________________________________________________ 4382 2011-2012 Regular Sessions IN SENATE April 1, 2011 ___________Introduced by Sens. LANZA, LARKIN -- 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, in relation to the child custody and support decision-making process THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Short title. This act shall be known and may be cited as the "child custody reform act". S 2. Declaration of purposes. The legislature hereby finds and declares that it is in the best interests of a child whose parents are in dispute over his or her custody that: Parents resolve their dispute as expeditiously as possible in a child- centered manner; Parents be encouraged to recognize the continuing interest that each has in the welfare of their child and resolve any differences they may have concerning custody, parenting and child support obligations prior to engaging in the adversarial process; Courts undertake an active role in promoting parental settlements in custody, parenting and child support disputes, and in educating parents about the needs of their child resulting from divorce or separation; The child centered mediation process, in suitable cases, is an appro- priate way to help parents resolve child custody, parenting and child support disputes; Mediation of custody, parenting and child support disputes should be conducted in collaboration with the courts, in a safe environment, by well-trained, experienced mediators during which the parents attempt to plan cooperatively for the welfare of their child; and Uniform statewide standards for mediation should be formulated in order to ensure the safety, quality and usefulness of the mediation process to the court as well as to the parents, and to assure complianceEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD05056-01-1 S. 4382 2
with the due process rights of those involved in custody, parenting and child support disputes. S 3. The domestic relations law is amended by adding a new section 242 to read as follows: S 242. SPECIAL PROVISIONS FOR RESOLUTION OF CHILD CUSTODY, PARENTING AND CHILD SUPPORT DISPUTES. (A) DEFINITIONS. AS USED IN THIS SECTION, UNLESS THE CONTEXT OTHERWISE REQUIRES: (1) "CHILD" MEANS A PERSON UNDER EIGHTEEN YEARS OF AGE, OR FOR THE PURPOSES OF SUPPORT UNDER TWENTY-ONE YEARS OF AGE, WHO IS LEGALLY SUBJECT TO PARENTAL, GUARDIANSHIP OR SIMILAR CONTROL. "CHILD" INCLUDES CHILDREN IF MORE THAN ONE CHILD IS THE SUBJECT OF A CUSTODY, PARENTING OR CHILD SUPPORT DISPUTE. (2) "PARENT" MEANS THE BIOLOGICAL OR ADOPTIVE PARENT, OR OTHER LEGAL CUSTODIAN OR GUARDIAN. (3) "CUSTODY" MEANS THE RIGHT AND THE RESPONSIBILITY OF A PARENT TO MAKE DECISIONS ABOUT THE HEALTH, WELFARE AND PHYSICAL CARE OF A CHILD, AND TO PARTICIPATE IN THE MAKING AND IMPLEMENTATION OF A PARENTING PLAN. (4) "PHYSICAL CUSTODY" MEANS THE PARENT WITH WHOM THE CHILD SHALL PRIMARILY RESIDE; PROVIDED HOWEVER, THAT IT SHALL ALSO REFER TO AN ARRANGEMENT WHEREBY THE CHILD SHALL RESIDE WITH EACH PARENT ON A SHARED-TIME BASIS. (5) "CHILD SUPPORT" OR "SUPPORT" MEANS THE RESPECTIVE SUPPORT OBLI- GATIONS OF THE PARENTS UNDER THE CHILD SUPPORT STANDARDS ACT. (6) "PARENTING PLAN" MEANS A PLAN, DEVELOPED BY BOTH PARENTS, WHICH PROVIDES FOR THE HEALTH, WELFARE AND BEST INTERESTS OF THE CHILD, AND WHICH INCLUDES DESIGNATIONS OF CUSTODY AND PHYSICAL CUSTODY, AND, AS NEEDED, THE AMOUNT OF TIME EACH PARENT WOULD SPEND WITH THE CHILD, INCLUDING VACATIONS, HOLIDAYS AND SPECIAL OCCASIONS, A DESCRIPTION OF EACH PARENT'S AUTHORITY TO MAKE DECISIONS THAT AFFECT THE CHILD, AND A DESCRIPTION OF EACH PARENT'S CHILD SUPPORT OBLIGATION. (7) "COURT" MEANS ANY TRIAL COURT, INCLUDING BOTH A SUPREME COURT AND A FAMILY COURT OF THIS STATE, IN WHICH A CUSTODY OR PARENTING DISPUTE MAY BE HEARD. (8) "MEDIATION" MEANS A CONFIDENTIAL, INFORMAL PROCEDURE IN WHICH A NEUTRAL THIRD PERSON HELPS PARENTS TO COMMUNICATE AND MAKE DECISIONS WITH EACH OTHER REGARDING THE BEST INTERESTS AND SUPPORT OF THEIR CHILD, AND TO FORMULATE A PARENTING PLAN. (9) "MEDIATION PROVIDER" MEANS AN INDIVIDUAL OR ORGANIZATION THAT HAS BEEN CERTIFIED TO PROVIDE MEDIATION SERVICES UNDER GUIDELINES ESTAB- LISHED BY THE CHIEF ADMINISTRATOR OF THE COURTS, IN CONSULTATION WITH MEMBERS OF THE STATEWIDE ADVISORY COUNCIL, PURSUANT TO PARAGRAPHS TWO AND THREE OF SUBDIVISION (D) OF THIS SECTION. (10) "UNSUITABLE" MEANS DISPUTES WHERE DOMESTIC VIOLENCE, ABUSE, SEVERE POWER IMBALANCES OR OTHER FACTORS IN THE PARTICIPANTS' RELATION- SHIP RENDER THE MEDIATION PROCESS INAPPROPRIATE, AS DETERMINED BY THE METHODS FOR IDENTIFICATION AND SCREENING TO BE IMPLEMENTED BY THE CHIEF ADMINISTRATOR OF THE COURTS, IN CONSULTATION WITH MEMBERS OF THE STATE- WIDE ADVISORY COUNCIL, PURSUANT TO PARAGRAPHS TWO AND THREE OF SUBDIVI- SION (D) OF THIS SECTION. (11) "SUITABLE" MEANS DISPUTES WHICH ARE APPROPRIATE FOR MEDIATION, AS DETERMINED BY THE METHODS FOR IDENTIFICATION AND SCREENING TO BE IMPLE- MENTED BY THE CHIEF ADMINISTRATOR OF THE COURTS, IN CONSULTATION WITH MEMBERS OF THE STATEWIDE ADVISORY COUNCIL, PURSUANT TO PARAGRAPHS TWO AND THREE OF SUBDIVISION (D) OF THIS SECTION. (12) "MEDIATION INFORMATION SESSION" MEANS AN INITIAL SESSION WITH THE PARTIES TO THE DISPUTE AND THE MEDIATION PROVIDER, DURING WHICH THES. 4382 3
MEDIATION PROVIDER SCREENS FOR UNSUITABILITY FACTORS, EXPLAINS THE PURPOSE OF THE MEDIATION PROCESS AND ITS VOLUNTARY NATURE, DESCRIBES MEDIATION PROTOCOLS, AND BEGINS, IN SUITABLE DISPUTES, TO IDENTIFY AREAS OF DISPUTE. (B) PRETRIAL PROCEDURE, JUDICIAL MANAGEMENT AND DETERMINATION IN CUSTODY, PARENTING AND SUPPORT DISPUTES. (1) A CUSTODY, PARENTING OR SUPPORT DISPUTE SHALL, INSOFAR AS IS PRACTICABLE, BE ASSIGNED TO A SINGLE JUDGE OF THE COURT WHERE THE DISPUTE IS PENDING. THE JUDGE ASSIGNED TO THE DISPUTE SHALL OVERSEE ALL PROCEEDINGS IN THE DISPUTE, SEEKING TO PROMOTE SETTLEMENT BETWEEN THE PARTIES, WHERE SETTLEMENT CAN BE SAFELY PROMOTED, INCLUDING A REASONABLY EXPEDITIOUS DETERMINATION OF CUSTODY, SUPPORT AND PARENTAL AGREEMENT ON A PARENTING PLAN. (2) DURING THE INITIAL APPEARANCE OF THE PARTIES AND AT SUCH SUBSE- QUENT TIMES AS DEEMED APPROPRIATE, THE JUDGE TO WHOM THE CUSTODY, PARENTING OR SUPPORT DISPUTE IS ASSIGNED SHALL CONDUCT A CONFERENCE WITH THE PARTIES TO THE DISPUTE, AND THEIR ATTORNEYS, IF ANY, FOR THE PURPOSES OF ASCERTAINING WHETHER OR NOT THE CUSTODY, PARENTING OR SUPPORT DISPUTE IS SUITABLE FOR MEDIATION. THE COURT SHALL NOTIFY THE PARTIES TO THE DISPUTE OR THEIR ATTORNEYS, IF ANY, AND SUCH OTHER PERSONS AS THE COURT DEEMS NECESSARY OF THE TIME AND PLACE OF SUCH CONFERENCE. (3) IF, AFTER CONFERENCING WITH THE PARTIES, THE COURT DETERMINES THAT THE DISPUTE IS SUITABLE FOR MEDIATION, THE COURT SHALL, PRIOR TO HOLDING A HEARING OR TRIAL TO ADJUDICATE THE DISPUTE, REFER THE DISPUTE TO A MEDIATION INFORMATION SESSION. (4) THE COURT MAY CONDUCT THE CONFERENCE REFERRED TO IN PARAGRAPH TWO OF THIS SUBDIVISION PRIOR TO DETERMINING ANY OR ALL OTHER ISSUES THAT MAY BE INVOLVED IN A MATRIMONIAL OR OTHER ACTION OR PROCEEDING BETWEEN THE PARTIES TO THE CUSTODY DISPUTE, IF THE BEST INTERESTS OF THE CHILD WILL BE SERVED BY SEPARATING THE ISSUES. (5) THE PARTIES WHO HAVE BEEN REFERRED TO MEDIATION SHALL BE REQUIRED TO ATTEND A MEDIATION INFORMATION SESSION, BUT MAY THEREAFTER DECLINE MEDIATION SERVICES. IF THEY SO DECLINE OR THE MEDIATOR DETERMINES DURING THE MEDIATION INFORMATION SESSION THAT THE DISPUTE IS NOT SUIT- ABLE FOR MEDIATION, THE CASE SHALL THEN BE CONFIDENTIALLY RETURNED TO THE COURT FOR FURTHER PROCEEDINGS. (C) MEDIATION OF CUSTODY, PARENTING AND SUPPORT DISPUTES. (1) SUBJECT TO THE PROVISIONS OF PARAGRAPH TWO OF THIS SUBDIVISION, EACH JUDICIAL DISTRICT SHALL PROVIDE, ON A PRIVATE-PAY FEE SCHEDULE BASIS TO BE IMPLE- MENTED BY THE CHIEF ADMINISTRATOR OF THE COURTS, IN CONSULTATION WITH MEMBERS OF THE STATEWIDE ADVISORY COUNCIL PURSUANT TO PARAGRAPHS TWO AND THREE OF SUBDIVISION (D) OF THIS SECTION, MEDIATION SERVICES TO PARENTS IN CUSTODY, PARENTING AND SUPPORT DISPUTES UNDER A SERVICE PLAN OR PLANS ADHERING TO GUIDELINES SO ESTABLISHED BY THE CHIEF ADMINISTRATOR OF THE COURTS. (2) THE FEE SCHEDULE BASIS ESTABLISHED PURSUANT TO THIS SUBDIVISION SHALL PROVIDE FOR FREE OR LOW-COST MEDIATION SERVICES, AS APPROPRIATE, FOR PERSONS WHO ARE INDIGENT OR ARE OTHERWISE UNABLE TO AFFORD SUCH SERVICES. (3) MEDIATION PROCEEDINGS SHALL BE CONFIDENTIAL. ALL COMMUNICATIONS BETWEEN A MEDIATOR AND THE PARTIES TO A DISPUTE, THE ATTORNEYS FOR THE PARTIES TO THE DISPUTE, THE CHILD AND ANY COURT APPOINTED REPRESENTATIVE OF THE CHILD SHALL BE PRIVILEGED AND INADMISSIBLE IN ANY JUDICIAL OR ADMINISTRATIVE PROCEEDING. A MEDIATOR SHALL NOT BE CALLED AS A WITNESS. ANY NOTES AND WORK PRODUCT OF THE MEDIATOR CONCERNING THE CUSTODY, PARENTING OR SUPPORT DISPUTE SHALL NOT BE DISCOVERED OR SUBPOENAED BY AS. 4382 4
PARTY TO THE DISPUTE, THE ATTORNEYS FOR THE PARTIES TO THE DISPUTE OR THE COURT APPOINTED REPRESENTATIVE OF THE CHILD, IF ANY. A MEDIATOR WHO PROVIDES MEDIATION SERVICES IN A CUSTODY, PARENTING OR SUPPORT DISPUTE SHALL NOT PROVIDE INFORMATION TO THE COURT OR TO ANY PARTY REGARDING THE SUBSTANCE OF THE MEDIATION PROCEEDINGS; PROVIDED HOWEVER, THAT, IF AN AGREEMENT IS REACHED DURING THE MEDIATION PROCEEDINGS, SUCH AGREEMENT SHALL BE IN WRITING AND, WITH THE CONSENT OF THE PARTICIPANTS, BE PROVIDED TO THE COURT. (4) TERMINATION OF A MEDIATION IF UNSUITABLE. (A) IF, DURING A MEDI- ATION SESSION, IT IS DETERMINED BY THE MEDIATOR THAT THE DISPUTE HAS BECOME UNSUITABLE, THE MEDIATOR SHALL TERMINATE THE MEDIATION IN ACCORD- ANCE WITH PROTOCOLS ESTABLISHED BY THE CHIEF ADMINISTRATOR OF THE COURTS, IN CONSULTATION WITH MEMBERS OF THE STATEWIDE ADVISORY COUNCIL, PURSUANT TO PARAGRAPHS TWO AND THREE OF SUBDIVISION (D) OF THIS SECTION. (B) IF SUCH TERMINATION SHOULD OCCUR, THE MEDIATOR SHALL INFORM THE COURT THAT THE MEDIATION WAS DISCONTINUED. (D) DUTIES AND POWERS OF THE CHIEF ADMINISTRATOR OF THE COURTS. (1) THE CHIEF ADMINISTRATOR OF THE COURTS SHALL BE RESPONSIBLE FOR: (A) PROMULGATING STANDARDS AND ADMINISTRATIVE POLICIES TO ENSURE THAT CUSTODY, PARENTING AND SUPPORT DISPUTES ARE HANDLED BY COURTS, AND AFFILIATED PERSONNEL, ATTORNEYS, MEDIATORS AND PARTIES TO A DISPUTE IN A MANNER CONSISTENT WITH THE PURPOSES OF THIS SECTION; (B) PROMULGATING STANDARDS AND POLICIES TO ENSURE THAT THE SERVICES NECESSARY TO CONDUCT MEDIATION ARE OF HIGH AND REASONABLY UNIFORM QUALI- TY IN ALL COURTS HEARING CUSTODY, PARENTING AND SUPPORT DISPUTES; (C) CREATING PLANS FOR DELIVERY OF MEDIATION SERVICES TO COURTS IN JUDICIAL DISTRICTS PURSUANT TO SUBDIVISION (C) OF THIS SECTION; (D) MONITORING THE IMPLEMENTATION OF THIS SECTION AND SERVICE PLANS IN JUDICIAL DISTRICTS; AND (E) ORGANIZING AND SUPERVISING TRAINING PROGRAMS FOR PERSONNEL WHO CONDUCT MEDIATION AUTHORIZED BY THIS SECTION. (2) THE CHIEF ADMINISTRATOR OF THE COURTS SHALL ESTABLISH A STATEWIDE ADVISORY COMMITTEE TO RENDER ADVICE ON THE DEVELOPMENT OF STANDARDS AND ADMINISTRATIVE PRACTICES REQUIRED UNDER THIS SECTION AND ON HOW THE COURTS CAN BETTER PROVIDE SERVICES TO FAMILIES AND CHILDREN INVOLVED IN CUSTODY, PARENTING AND SUPPORT DISPUTES. THIS ADVISORY COMMITTEE SHALL BE CONSTITUTED IN SUCH MANNER AS DEEMED ADVISABLE BY THE CHIEF ADMINIS- TRATOR OF THE COURTS, EXCEPT THAT IT SHALL INCLUDE AT LEAST TWO MEMBERS OF AN ORGANIZATION THE PURPOSE OF WHICH IS TO MONITOR AND MAKE RECOMMEN- DATIONS RELATIVE TO THE ISSUE OF DOMESTIC VIOLENCE, AND AT LEAST TWO MEMBERS OF A PRIVATE OR GOVERNMENTAL ORGANIZATION WHICH IS DEDICATED TO THE ADVANCEMENT OF ALTERNATIVE DISPUTE RESOLUTION. SELECTION OF THE MEMBERS OF THE ADVISORY COMMITTEE SHALL BE COMPLETED WITHIN THREE MONTHS OF THE EFFECTIVE DATE OF THIS SECTION. (3) SPECIAL DUTIES OF THE STATEWIDE ADVISORY COMMITTEE. THE STATEWIDE ADVISORY COMMITTEE SHALL DEVELOP RECOMMENDATIONS FOR DETERMINING TRAIN- ING REQUIREMENTS AND SUCH OTHER REQUIREMENTS AS THE CHIEF ADMINISTRATOR OF THE COURTS SHALL REQUIRE FOR MEDIATORS WHO PROVIDE FAMILY ISSUE MEDI- ATIONS. SUCH REQUIREMENTS SHALL INCLUDE PROTOCOLS FOR THE CONDUCT OF A MEDIATION SESSION AND PROTOCOLS FOR RECOGNIZING THE EXISTENCE OF ISSUES WHICH ARE UNSUITABLE FOR MEDIATION. THE RECOMMENDATIONS OF THE STATE- WIDE ADVISORY COMMITTEE SHALL BE INCLUDED IN A WRITTEN REPORT SUBMITTED TO THE CHIEF ADMINISTRATOR WITHIN NINE MONTHS AFTER THE COMMITTEE MEMBERS SHALL HAVE BEEN APPOINTED. THE MEMBERS OF THE STATEWIDE ADVI- SORY COMMITTEE SHALL SERVE WITHOUT COMPENSATION BUT SHALL BE ENTITLED TOS. 4382 5
REIMBURSEMENT FOR NECESSARY AND REASONABLE EXPENSES INCURRED IN THE COURSE OF THEIR DUTIES. S 4. This act shall take effect immediately. Provided, that the addi- tion, amendment and/or repeal of any rule or regulation necessary for the implementation of this act are immediately authorized and directed to be made and completed on an emergency basis.