Bill Text: NY A00457 | 2023-2024 | General Assembly | Introduced

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Bill Title: 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.

Spectrum: Partisan Bill (Democrat 4-0)

Status: (Introduced - Dead) 2024-01-03 - referred to judiciary [A00457 Detail]

Download: New_York-2023-A00457-Introduced.html

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                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.