"Changing the Direction of our Divorce Culture"

Families In Transition Mediation Services
'Mediate Don't Litigate'

Families In Transition works to actively support legislative change in family law. The bill below is an example of what we support. This bill is up for a vote in 2007.

Hi-lites of the bill we support in the NYS Assembly in Albany on Mediation:

FIT Mediation is in the forefront of reform issues surrounding Divorce. We support NYS Assemblyman's Domestic Relations law bill currently moved to the next legislative session in later 2006. Site founder, Chris Di Maggio, is currently preparing a draft for a mediation bill which makes mediation first, mandatory in this state. His draft is to be posted later this year as well.

BILL NUMBER: A5133

SPONSOR: Weprin

TITLE OF BILL: An act to amend the domestic relations law, in relation to the child custody decision-making process

PURPOSE: This bill adds a new section 242 to the domestic relations law to create a uniform statewide child custody dispute resolution system. This bill will help to encourage the settlement of custody and parenting disputes expeditiously, voluntarily, and without adversarial litigation. It will also foster the involvement of parents who are in the process of separating, divorcing, or who have been divorced or separated, in the parenting arrangements and such children'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 or parenting disputes between parents and will conduct a planning conference with the parents and their attorneys no latter than the initial court appearance or hearing date, which ever is earlier. If the parties cannot agree on a custody or parenting plan, the judge will refer the dispute to mediation unless the judge determines that mediation is inappropriate. The bill defines the kinds of issues that are not appropriate for mediation.

Each judicial district shall provide to the parties involved in  custody or parenting disputes confidential mediation services conducted by mediators who meet qualifications promulgated by the Chief Administrator of the Courts. An Advisory Committee will be established to assist the Chief Administrator in promulgating rules regarding the use of mediation.

Section 1: Enacts the "Child Custody Reform Act"

Section 2: Legislative Purposes.

Section 3: A new section 242 is added to the domestic relations law.

Section 242(a) is the definitions section of the bill. The bill defines the components of an overall parenting plan, including physical custody, the amount of time each parent would spend with a child, a description of each parent's authority to make decisions regarding the child, and the respective child support obligations of each parent. It defines the term "mediation" and "mediation services". Further, it establishes the conditions under which mediation would not be appropriate, such as when there is a past history of domestic violence or there is a risk of future domestic violence or child abuse.

Section 242(b) outlines the pretrial procedures and the judicial management of the mediation process. It provides that during the initial appearance of parties to a custody or parenting dispute, the judge to who the dispute had been referred would conduct a conference to deter- mine if mediation would be appropriate. It requires parties who have been referred to mediation to attend a mediation intake session. Parties who attend the intake session may thereafter decline mediation and the case would then return to the regular court docket. This provision is reflective of the voluntary nature of the mediation process.

Section 242(c) provides that each judicial district shall provide, either without cost or on a sliding scale fee basis, mediation services to parties in custody and parenting disputes. It provides that qualifications for mediators are to be developed by the Chief Administrator for the Courts, in consultation with the Advisory Committee. Individuals who wish to conduct court connected family issue mediations must submit their credentials to the Chief Administrative Judge of each respective judicial district to facilitate the development of a panel of qualified mediators within a judicial district. The mediation process shall remain confidential and inadmissible in any judicial or administrative proceeding.

Section 242(d) outlines the service plan alternatives and requirements for judicial districts for the provision of mediation services. The Administrative Judge of each judicial district shall be responsible for implementing and supervising the operation of a plan for the provision of mediation services established by the Chief Administrator of the courts. The Chief Administrator may choose from alternative plans for the delivery of services. Such alternative plans shall ensure that mediations are conducted by individuals who meet the qualifications set forth by the Chief Administrator.

Section 242(e) establishes the duties and powers of the Chief Administrator. It provides that the Chief Administrator shall promulgate standards to assure that custody and parenting disputes are handled by the courts in a manner that is consistent with this act and that services are provided in a reasonably uniform manner. The Chief Administrator shall develop the qualification requirements and training programs for judges assigned to custody disputes.

An Advisory Committee shall be created to assist the Chief Administrator in formulating procedures and rules that facilitate the effective implementation of this act. The members shall include representatives of the judiciary, legal community, the legislature, organizations that foster utilization of the alternative dispute resolution process, and individuals who are familiar with issues relating to domestic violence and other areas recognized as being not appropriate for mediation. The Advisory Committee shall submit its report to the Chief Administrator.

EXISTING LAW: This 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 crisis due to parental separation or divorce. Their pain can be alleviated to some extent, and in certain circumstances, if both parents remain involved in establishing post separation or divorce parenting plans that the parents crafted by them- selves. Mediation facilitates the development of such plans. Adversarial litigation about children tends to further alienate parents and children from each other, rather than encourage parental cooperation.

This bill establishes a uniform procedural system for resolving custody and parenting disputes and encourages parents to settle their differences as expeditiously as possible so that the family can move beyond the crisis of divorce or separation. Currently, a number of New York courts are incorporating mediation into their court resolution procedures. This can be an effective mechanism to reduce crowded court calendars and make the courts more attentive to individual needs. This bill would provide a statewide uniformity on how the mediation process would be utilized. It does not change the substantive rules under which courts allocate custody if the parents cannot settle the disputes themselves.

LEGISLATIVE HISTORY: A7095/S1969A of 2004, A.1913/S.6494 of 2002: A.3492 of 1999: A.750 of 1997

FISCAL IMPLICATIONS: To be determined.

EFFECTIVE DATE: This act shall take effect immediately, provided that any rule change needed to implement this act may be made on an emergency on or after such effective date.