Bill Text: NY A11038 | 2019-2020 | General Assembly | Introduced

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Bill Title: Eliminates the ability of a court to commit a respondent to jail as a penalty for violation of a support order.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2020-10-07 - referred to judiciary [A11038 Detail]

Download: New_York-2019-A11038-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          11038

                   IN ASSEMBLY

                                     October 7, 2020
                                       ___________

        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.