STATE OF NEW YORK
________________________________________________________________________
11038
IN ASSEMBLY
October 7, 2020
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Introduced by COMMITTEE ON RULES -- (at request of M. of A. Epstein) --
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 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
12 months. For purposes of this subdivision, failure to pay support, as
13 ordered, shall constitute prima facie evidence of a willful violation.
14 Such commitment may be served upon certain specified days or parts of
15 days as the court may direct, and the court may, at any time within the
16 term of such sentence, revoke such suspension and commit the respondent
17 for the remainder of the original sentence, or suspend the remainder of
18 such sentence. Such commitment does not prevent the court from subse-
19 quently committing the respondent for failure thereafter to comply with
20 any such order; or
21 (b)] require the respondent to participate in a rehabilitative program
22 if the court determines that such participation would assist the
23 respondent in complying with such order of support and access to such a
24 program is available. Such rehabilitative programs shall include, but
25 not be limited to, work preparation and skill programs, non-residential
26 alcohol and substance abuse programs and educational programs; or
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD11825-01-9
A. 11038 2
1 [(c)] (b) place the respondent on probation under such conditions as
2 the court may determine and in accordance with the provisions of the
3 criminal procedure law.
4 § 2. Section 455 of the family court act is REPEALED.
5 § 3. Subdivision (a) of section 439 of the family court act, as
6 amended by section 1 of chapter 468 of the laws of 2012, is amended to
7 read as follows:
8 (a) The chief administrator of the courts shall provide, in accordance
9 with subdivision (f) of this section, for the appointment of a suffi-
10 cient number of support magistrates to hear and determine support
11 proceedings. Except as hereinafter provided, support magistrates shall
12 be empowered to hear, determine and grant any relief within the powers
13 of the court in any proceeding under this article, articles five,
14 five-A, and five-B and sections two hundred thirty-four and two hundred
15 thirty-five of this act, and objections raised pursuant to section five
16 thousand two hundred forty-one of the civil practice law and rules.
17 Support magistrates shall not be empowered to hear, determine and grant
18 any relief with respect to [issues specified in section four hundred
19 fifty-five of this article,] issues of contested paternity involving
20 claims of equitable estoppel, custody, visitation including visitation
21 as a defense, and orders of protection or exclusive possession of the
22 home, which shall be referred to a judge as provided in subdivision (b)
23 or (c) of this section. Where an order of filiation is issued by a judge
24 in a paternity proceeding and child support is in issue, the judge, or
25 support magistrate upon referral from the judge, shall be authorized to
26 immediately make a temporary or final order of support, as applicable. A
27 support magistrate shall have the authority to hear and decide motions
28 and issue summonses and subpoenas to produce persons pursuant to section
29 one hundred fifty-three of this act, hear and decide proceedings and
30 issue any order authorized by subdivision (g) of section five thousand
31 two hundred forty-one of the civil practice law and rules, issue subpoe-
32 nas to produce prisoners pursuant to section two thousand three hundred
33 two of the civil practice law and rules and make a determination that
34 any person before the support magistrate is in violation of an order of
35 the court as authorized by section one hundred fifty-six of this act
36 subject to confirmation by a judge of the court who shall impose any
37 punishment for such violation as provided by law. A determination by a
38 support magistrate that a person is in willful violation of an order
39 under subdivision three of section four hundred fifty-four of this arti-
40 cle and that recommends commitment shall be transmitted to the parties,
41 accompanied by findings of fact, but the determination shall have no
42 force and effect until confirmed by a judge of the court.
43 § 4. Subdivision (a) of section 439 of the family court act, as
44 amended by section 2 of chapter 468 of the laws of 2012, is amended to
45 read as follows:
46 (a) The chief administrator of the courts shall provide, in accordance
47 with subdivision (f) of this section, for the appointment of a suffi-
48 cient number of support magistrates to hear and determine support
49 proceedings. Except as hereinafter provided, support magistrates shall
50 be empowered to hear, determine and grant any relief within the powers
51 of the court in any proceeding under this article, articles five,
52 five-A, and five-B and sections two hundred thirty-four and two hundred
53 thirty-five of this act, and objections raised pursuant to section five
54 thousand two hundred forty-one of the civil practice law and rules.
55 Support magistrates shall not be empowered to hear, determine and grant
56 any relief with respect to [issues specified in section four hundred
A. 11038 3
1 fifty-five of this article,] issues of contested paternity involving
2 claims of equitable estoppel, custody, visitation including visitation
3 as a defense, and orders of protection or exclusive possession of the
4 home, which shall be referred to a judge as provided in subdivision (b)
5 or (c) of this section. Where an order of filiation is issued by a judge
6 in a paternity proceeding and child support is in issue, the judge, or
7 support magistrate upon referral from the judge, shall be authorized to
8 immediately make a temporary or final order of support, as applicable. A
9 support magistrate shall have the authority to hear and decide motions
10 and issue summonses and subpoenas to produce persons pursuant to section
11 one hundred fifty-three of this act, hear and decide proceedings and
12 issue any order authorized by subdivision (g) of section five thousand
13 two hundred forty-one of the civil practice law and rules, issue subpoe-
14 nas to produce prisoners pursuant to section two thousand three hundred
15 two of the civil practice law and rules and make a determination that
16 any person before the support magistrate is in violation of an order of
17 the court as authorized by section one hundred fifty-six of this act
18 subject to confirmation by a judge of the court who shall impose any
19 punishment for such violation as provided by law. A determination by a
20 support magistrate that a person is in willful violation of an order
21 under subdivision three of section four hundred fifty-four of this arti-
22 cle and that recommends commitment shall be transmitted to the parties,
23 accompanied by findings of fact, but the determination shall have no
24 force and effect until confirmed by a judge of the court.
25 § 5. Subdivision (c) of section 439 of the family court act, as
26 amended by chapter 576 of the laws of 2005, is amended to read as
27 follows:
28 (c) The support magistrate, in any proceeding in which [issues speci-
29 fied in section four hundred fifty-five of this act, or] issues of
30 custody, visitation, including visitation as a defense, orders of
31 protection or exclusive possession of the home are present or in which
32 paternity is contested on the grounds of equitable estoppel, shall make
33 a temporary order of support and refer the proceeding to a judge. Upon
34 determination of such issue by a judge, the judge may make a final
35 determination of the issue of support, or immediately refer the proceed-
36 ing to a support magistrate for further proceedings regarding child
37 support or other matters within the authority of the support magistrate.
38 § 6. This act shall take effect on the thirtieth day after it shall
39 have become a law, provided that the amendments to subdivision (a) of
40 section 439 of the family court act made by section three of this act
41 shall be subject to the expiration and reversion of such subdivision
42 pursuant to subdivision 19 of section 246 of chapter 81 of the laws of
43 1995 as amended, when upon such date the provisions of section four of
44 this act shall take effect.