Senate Bill S3734

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  3734

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            February 13, 2013
                               ___________

Introduced  by  Sen.  LANZA  -- read twice and ordered printed, and when
  printed to be committed to the Committee on Judiciary

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 compliance

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03806-01-3

              

S. 3734                             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 THE

S. 3734                             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  A

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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 TO

S. 3734                             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.