Relates to eliminating the ability of a court to commit a respondent to jail or place a respondent on probation as a penalty for violation of a support order.
STATE OF NEW YORK
________________________________________________________________________
457
2023-2024 Regular Sessions
IN ASSEMBLY
January 9, 2023
___________
Introduced by M. of A. EPSTEIN, SEAWRIGHT, GONZALEZ-ROJAS, SIMON -- read
once and referred to the Committee on Judiciary
AN ACT to amend the family court act, in relation to eliminating the
ability of a court to commit a respondent to jail or place a respond-
ent on probation as a penalty for violation of a support order; and to
repeal certain provisions of such law relating thereto
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 3 of section 454 of the family court act, as
2 amended by chapter 892 of the laws of 1986, paragraph (b) as added and
3 paragraph (c) as relettered by chapter 699 of the laws of 1996, is
4 amended to read as follows:
5 3. Upon a finding by the court that a respondent has willfully failed
6 to obey any lawful order of support, the court shall order respondent to
7 pay counsel fees to the attorney representing petitioner pursuant to
8 section four hundred thirty-eight of this act and may in addition to or
9 in lieu of any or all of the powers conferred in subdivision two of this
10 section or any other section of law[:
11 (a) commit the respondent to jail for a term not to exceed six months.
12 For purposes of this subdivision, failure to pay support, as ordered,
13 shall constitute prima facie evidence of a willful violation. Such
14 commitment may be served upon certain specified days or parts of days as
15 the court may direct, and the court may, at any time within the term of
16 such sentence, revoke such suspension and commit the respondent for the
17 remainder of the original sentence, or suspend the remainder of such
18 sentence. Such commitment does not prevent the court from subsequently
19 committing the respondent for failure thereafter to comply with any such
20 order; or
21 (b)] , require the respondent to participate in a rehabilitative
22 program if the court determines that such participation would assist the
23 respondent in complying with such order of support and access to such a
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00006-01-3
A. 457 2
1 program is available. Such rehabilitative programs shall include, but
2 not be limited to, work preparation and skill programs, non-residential
3 alcohol and substance abuse programs and educational programs[; or
4 (c) place the respondent on probation under such conditions as the
5 court may determine and in accordance with the provisions of the crimi-
6 nal procedure law].
7 § 2. Sections 455 and 456 of the family court act are REPEALED.
8 § 3. Subdivision (a) of section 439 of the family court act, as
9 amended by section 21 of part L of chapter 56 of the laws of 2020, is
10 amended to read as follows:
11 (a) The chief administrator of the courts shall provide, in accordance
12 with subdivision (f) of this section, for the appointment of a suffi-
13 cient number of support magistrates to hear and determine support
14 proceedings. Except as hereinafter provided, support magistrates shall
15 be empowered to hear, determine and grant any relief within the powers
16 of the court in any proceeding under this article, articles five,
17 five-A, five-B and five-C and sections two hundred thirty-four and two
18 hundred thirty-five of this act, and objections raised pursuant to
19 section five thousand two hundred forty-one of the civil practice law
20 and rules. Support magistrates shall not be empowered to hear, determine
21 and grant any relief with respect to [issues specified in section four
22 hundred fifty-five of this article,] issues of contested parentage
23 involving claims of equitable estoppel, custody, visitation including
24 visitation as a defense, determinations of parentage made pursuant to
25 section 581-407 of this act, and orders of protection or exclusive
26 possession of the home, which shall be referred to a judge as provided
27 in subdivision (b) or (c) of this section. Where an order of filiation
28 is issued by a judge in a paternity proceeding and child support is in
29 issue, the judge, or support magistrate upon referral from the judge,
30 shall be authorized to immediately make a temporary or final order of
31 support, as applicable. A support magistrate shall have the authority to
32 hear and decide motions and issue summonses and subpoenas to produce
33 persons pursuant to section one hundred fifty-three of this act, hear
34 and decide proceedings and issue any order authorized by subdivision (g)
35 of section five thousand two hundred forty-one of the civil practice law
36 and rules, issue subpoenas to produce prisoners pursuant to section two
37 thousand three hundred two of the civil practice law and rules and make
38 a determination that any person before the support magistrate is in
39 violation of an order of the court as authorized by section one hundred
40 fifty-six of this act subject to confirmation by a judge of the court
41 who shall impose any punishment for such violation as provided by law.
42 [A determination by a support magistrate that a person is in willful
43 violation of an order under subdivision three of section four hundred
44 fifty-four of this article and that recommends commitment shall be tran-
45 smitted to the parties, accompanied by findings of fact, but the deter-
46 mination shall have no force and effect until confirmed by a judge of
47 the court.]
48 § 4. Subdivision (a) of section 439 of the family court act, as
49 amended by section 2 of chapter 468 of the laws of 2012, is amended to
50 read as follows:
51 (a) The chief administrator of the courts shall provide, in accordance
52 with subdivision (f) of this section, for the appointment of a suffi-
53 cient number of support magistrates to hear and determine support
54 proceedings. Except as hereinafter provided, support magistrates shall
55 be empowered to hear, determine and grant any relief within the powers
56 of the court in any proceeding under this article, articles five,
A. 457 3
1 five-A, and five-B and sections two hundred thirty-four and two hundred
2 thirty-five of this act, and objections raised pursuant to section five
3 thousand two hundred forty-one of the civil practice law and rules.
4 Support magistrates shall not be empowered to hear, determine and grant
5 any relief with respect to [issues specified in section four hundred
6 fifty-five of this article,] issues of contested paternity involving
7 claims of equitable estoppel, custody, visitation including visitation
8 as a defense, and orders of protection or exclusive possession of the
9 home, which shall be referred to a judge as provided in subdivision (b)
10 or (c) of this section. Where an order of filiation is issued by a judge
11 in a paternity proceeding and child support is in issue, the judge, or
12 support magistrate upon referral from the judge, shall be authorized to
13 immediately make a temporary or final order of support, as applicable. A
14 support magistrate shall have the authority to hear and decide motions
15 and issue summonses and subpoenas to produce persons pursuant to section
16 one hundred fifty-three of this act, hear and decide proceedings and
17 issue any order authorized by subdivision (g) of section five thousand
18 two hundred forty-one of the civil practice law and rules, issue subpoe-
19 nas to produce prisoners pursuant to section two thousand three hundred
20 two of the civil practice law and rules and make a determination that
21 any person before the support magistrate is in violation of an order of
22 the court as authorized by section one hundred fifty-six of this act
23 subject to confirmation by a judge of the court who shall impose any
24 punishment for such violation as provided by law. [A determination by a
25 support magistrate that a person is in willful violation of an order
26 under subdivision three of section four hundred fifty-four of this arti-
27 cle and that recommends commitment shall be transmitted to the parties,
28 accompanied by findings of fact, but the determination shall have no
29 force and effect until confirmed by a judge of the court.]
30 § 5. Subdivision (c) of section 439 of the family court act, as
31 amended by chapter 576 of the laws of 2005, is amended to read as
32 follows:
33 (c) The support magistrate, in any proceeding in which [issues speci-
34 fied in section four hundred fifty-five of this act, or] issues of
35 custody, visitation, including visitation as a defense, orders of
36 protection or exclusive possession of the home are present or in which
37 paternity is contested on the grounds of equitable estoppel, shall make
38 a temporary order of support and refer the proceeding to a judge. Upon
39 determination of such issue by a judge, the judge may make a final
40 determination of the issue of support, or immediately refer the proceed-
41 ing to a support magistrate for further proceedings regarding child
42 support or other matters within the authority of the support magistrate.
43 § 6. This act shall take effect on the thirtieth day after it shall
44 have become a law, provided that the amendments to subdivision (a) of
45 section 439 of the family court act made by section three of this act
46 shall be subject to the expiration and reversion of such subdivision
47 pursuant to subdivision 19 of section 246 of chapter 81 of the laws of
48 1995 as amended, when upon such date the provisions of section four of
49 this act shall take effect.
