New York State Law

Family Court Law

Consolidated Laws of NY's FCA code

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Part 4 - Article 4 - Family Court

ORDERS

Section Description
440 Order of support.
441 Order dismissing petition.
442 Order of support by a spouse.
443 Order of support by parent.
445 Order of support by relative; duration.
446 Order of protection.
446-A Firearms; surrender and license suspension, revocation and ineligibility.
447 Order of visitation.
448 Enforcement by income deduction.
449 Effective date of order of support.
  S 440. Order of support. 1.  (a)  Any support order made by the court
  in any proceeding under the provisions of article five-B  of  this  act,
  pursuant to a reference from the supreme court under section two hundred
  fifty-one  of  the  domestic  relations  law  or under the provisions of
  article four, five or five-A of this act (i) shall direct that  payments
  of  child  support  or  combined  child and spousal support collected on
  behalf of persons in receipt of services pursuant to section one hundred
  eleven-g of the social services law, or on behalf of persons in  receipt
  of  public  assistance be made to the support collection unit designated
  by the appropriate social services district,  which  shall  receive  and
  disburse   funds  so  paid;  or  (ii)  shall  be  enforced  pursuant  to
  subdivision (c) of section five thousand two hundred  forty-two  of  the
  civil  practice  law and rules at the same time that the court issues an
  order of support; and (iii) shall in either case, except as provided for
  herein, be effective as of the earlier of the date of the filing of  the
  petition therefor, or, if the children for whom support is sought are in
  receipt  of  public assistance, the date for which their eligibility for
  public assistance was effective.  Any retroactive amount of support  due
  shall  be  support arrears/past due support and shall be paid in one sum
  or periodic sums, as the court directs,  and  any  amount  of  temporary
  support  which has been paid to be taken into account in calculating any
  amount of such retroactive support due.  In addition,  such  retroactive
  child  support  shall  be  enforceable  in  any  manner  provided by law
  including, but not limited to,  an  execution  for  support  enforcement
  pursuant  to  subdivision  (b) of section fifty-two hundred forty-one of
  the civil practice law and rules.  When a child receiving support  is  a
  public  assistance  recipient, or the order of support is being enforced
  or is to be enforced pursuant to section one  hundred  eleven-g  of  the
  social services law, the court shall establish the amount of retroactive
  child  support and notify the parties that such amount shall be enforced
  by the support collection unit pursuant  to  an  execution  for  support
  enforcement  as  provided  for  in  subdivision (b) of section fifty-two
  hundred forty-one of the civil  practice  law  and  rules,  or  in  such
  periodic  payments  as  would have been authorized had such an execution
  been issued.  In such case, the court shall not direct the  schedule  of
  repayment  of  retroactive  support.   Where such direction is for child
  support and paternity has been established by a voluntary acknowledgment
  of paternity as defined in section forty-one  hundred  thirty-five-b  of
  the  public  health  law, the court shall inquire of the parties whether
  the acknowledgment has been duly filed, and unless satisfied that it has
  been so filed shall  require  the  clerk  of  the  court  to  file  such
  acknowledgment with the appropriate registrar within five business days.
  The  court shall not direct that support payments be made to the support
  collection unit unless the child, who is the subject of the order, is in
  receipt of public assistance  or  child  support  services  pursuant  to
  section one hundred eleven-g of the social services law.  Any such order
  shall  be enforceable pursuant to section fifty-two hundred forty-one or
  fifty-two hundred forty-two of the civil practice law and rules,  or  in
  any  other  manner  provided by law.  Such orders or judgments for child
  support and maintenance shall also be enforceable  pursuant  to  article
  fifty-two of the civil practice law and rules upon a debtor's default as
  such  term  is  defined in paragraph seven of subdivision (a) of section
  fifty-two hundred forty-one of the civil practice law and  rules.    The
  establishment   of   a  default  shall  be  subject  to  the  procedures
  established for the determination  of  a  mistake  of  fact  for  income
  executions  pursuant  to  subdivision  (e)  of section fifty-two hundred
  forty-one of the civil practice law  and  rules.  For  the  purposes  of
  enforcement  of  child  support  orders  or  combined  spousal and child
  support orders pursuant to section five thousand two  hundred  forty-one
  of  the  civil  practice  law  and rules, a "default" shall be deemed to
  include amounts arising from retroactive support.  Where permitted under
  federal  law  and  where  the  record  of  the proceedings contains such
  information, such order shall include on its face  the  social  security
  number  and  the name and address of the employer, if any, of the person
  chargeable with support provided, however, that failure to  comply  with
  this requirement shall not invalidate such order.
    (b)  (1)  When  the court issues an order of child support or combined
  child and spousal support on behalf of  persons  in  receipt  of  public
  assistance  or  in  receipt  of services pursuant to section one hundred
  eleven-g of the social services law, the support collection  unit  shall
  issue  an  income  execution  immediately  for child support or combined
  spousal and child support, and shall  issue  an  execution  for  medical
  support  enforcement  in  accordance with the provisions of the order of
  support unless: (i) the court  finds  and  sets  forth  in  writing  the
  reasons  that  there  is  good  cause  not  to  require immediate income
  withholding; or (ii)  when  the  child  is  not  in  receipt  of  public
  assistance, a written agreement providing for an alternative arrangement
  has been reached between the parties. Such written agreement may include
  an oral stipulation made on the record resulting in a written order. For
  purposes  of  this  paragraph, good cause shall mean substantial harm to
  the debtor. The absence of an arrearage  or  the  mere  issuance  of  an
  income  execution  shall  not  constitute  good cause. When an immediate
  income execution or an execution  for  medical  support  enforcement  is
  issued  by  the  support collection unit, such execution shall be issued
  pursuant to section five thousand two hundred  forty-one  of  the  civil
  practice  law  and rules, except that the provisions thereof relating to
  mistake of fact, default and any other provisions which are not relevant
  to the issuance of an execution pursuant to  this  paragraph  shall  not
  apply;  provided,  however, that if the support collection unit makes an
  error in the issuance of an execution pursuant to  this  paragraph,  and
  such  error  is  to  the detriment of the debtor, the support collection
  unit shall have thirty days after notification by the debtor to  correct
  the error. Where permitted under federal law and where the record of the
  proceedings  contains  such information, such order shall include on its
  face the social  security  number  and  the  name  and  address  of  the
  employer,  if  any,  of  the  person  chargeable with support; provided,
  however,  that  failure  to  comply  with  this  requirement  shall  not
  invalidate  such  order.  When  the  court determines that there is good
  cause not to immediately issue an income execution or when  the  parties
  agree  to  an alternative arrangement as provided in this paragraph, the
  court shall provide expressly in the order of support that  the  support
  collection   unit   shall  not  issue  an  immediate  income  execution.
  Notwithstanding any such order, the support collection unit shall  issue
  an  income execution for support enforcement when the debtor defaults on
  the support obligation, as defined in section five thousand two  hundred
  forty-one  of the civil practice law and rules. When an income execution
  for support enforcement is  issued  pursuant  to  this  paragraph,  such
  income  execution  shall supersede any income deduction order previously
  issued for enforcement of the same support order pursuant to subdivision
  (c) of section five thousand two hundred forty-two of the civil practice
  law and rules, whereupon such income deduction order shall cease to have
  further effect.
    (2) When the court issues an order of child support or combined  child
  and  spousal support on behalf of persons other than those in receipt of
  public assistance or in receipt of  services  pursuant  to  section  one
  hundred  eleven-g  of  the social services law, the court shall issue an
  income deduction order pursuant  to  subdivision  (c)  of  section  five
  thousand  two  hundred  forty-two of the civil practice law and rules at
  the same time at which it issues the order of support. The  court  shall
  enter  the  income deduction order unless the court finds and sets forth
  in writing: (i) the reasons that there is  good  cause  not  to  require
  immediate income withholding; or (ii) that an agreement providing for an
  alternative  arrangement  has  been  reached  between  the parties. Such
  agreement may include a written agreement or an oral  stipulation,  made
  on  the  record,  that  results in a written order. For purposes of this
  paragraph, good cause shall mean substantial harm  to  the  debtor.  The
  absence  of  an  arrearage  or  the mere issuance of an income deduction
  order shall not constitute good cause. Where permitted under federal law
  and where the record of the proceedings contains such  information,  the
  order  shall include on its face the social security number and the name
  and address of the employer, if  any,  of  the  person  chargeable  with
  support; provided, however, that failure to comply with this requirement
  shall  not invalidate the order. When the court determines that there is
  good cause not to immediately issue an income deduction  order  or  when
  the  parties  agree  to  an  alternative arrangement as provided in this
  paragraph, the court shall not  issue  an  income  deduction  order.  In
  addition,  the court shall make provisions for health insurance benefits
  in accordance with the requirements of section four hundred  sixteen  of
  this article.
    (c)    Any  order of support issued on behalf of a child in receipt of
  family assistance or child  support  enforcement  services  pursuant  to
  section one hundred eleven-g of the social services law shall be subject
  to  review  and  adjustment  by  the support collection unit pursuant to
  section one hundred eleven-n of the social  services  law,  section  two
  hundred  forty-c  of the domestic relations law and section four hundred
  thirteen-a of this article. Such  review  and  adjustment  shall  be  in
  addition  to  any  other activities undertaken by the support collection
  unit relating to the establishment,  modification,  and  enforcement  of
  support orders payable to such unit.
    2.  The  court  shall require any person chargeable with support under
  the provisions of article five-B of this act or under any support  order
  made  pursuant  to  a reference from the supreme court under section two
  hundred fifty-one of the domestic relations law  or  in  any  proceeding
  under  the  provisions  of  article  four, five or five-A of this act to
  provide his or her social security number, the name and address  of  his
  or  her  employer  and  to  report  any changes of employer or change in
  employment status affecting compensation  received,  including  rate  of
  compensation  or  loss  of  employment,  to  the support collection unit
  designated by the appropriate social services district and to keep  such
  support  collection  unit  advised  of  his  or her current employer and
  current employment status; provided, however,  that  a  social  security
  number may be required only where permitted under federal law.
    3.  The  amount of support determined in accordance with the statewide
  child support standards, as set forth in section four  hundred  thirteen
  of this act, shall constitute prima facie evidence of the ability of any
  person  chargeable  with  support  in  accordance with the provisions of
  article three-A of the domestic relations law or under any support order
  made pursuant to a reference from the supreme court  under  section  two
  hundred  fifty-one  of  the  domestic relations law or in any proceeding
  under the provisions of article four, five or five-A of this chapter  to
  support  or  contribute  such  amount  towards the support of his or her
  children.
    4. Any support order made by the court in  any  proceeding  under  the
  provisions  of  article five-B of this act, pursuant to a reference from
  the supreme court under section two hundred fifty-one  of  the  domestic
  relations law or under the provisions of this article or article five or
  five-A  of  this  act  shall  include,  on its face, a notice printed or
  typewritten in a size equal to at least eight point bold type:
    (a)  informing the respondent that a willful failure to obey the order
  may, after court hearing, result in commitment to jail for a term not to
  exceed six months for contempt of court, and
    (b) informing the parties of their right to seek a modification of the
  child support order upon a showing of:
    (i) a substantial change in circumstances; or
    (ii) that three years have passed since the order  was  entered,  last
  modified or adjusted; or
    (iii)  there  has  been  a  change  in  either party's gross income by
  fifteen percent or more since the order was entered, last  modified,  or
  adjusted;
  however, if the parties have specifically opted out of subparagraph (ii)
  or   (iii)  of  this  paragraph  in  a  validly  executed  agreement  or
  stipulation, then that basis to seek modification does not apply.
    5. The court shall direct that a copy of any child support or combined
  child and spousal support order issued by the  court  on  or  after  the
  first  day  of October, nineteen hundred ninety-eight, in any proceeding
  pursuant to a reference from the supreme court under section two hundred
  fifty-one of the domestic relations  law  or  under  the  provisions  of
  article four, five, five-A or five-B of this act be provided promptly to
  the  state  case  registry established pursuant to subdivision four-a of
  section one hundred eleven-b of the social services law.
    6. Any order of support made by the court  shall  provide  for  health
  insurance  benefits  pursuant  to  section  four hundred sixteen of this
  article.

  S 441. Order  dismissing  petition. If the allegations of a petition
  under this article are not established by  competent  proof,  the  court
  shall  dismiss  the  petition.  If  a  neglect petition was filed in the
  support proceeding, the court  retains  jurisdiction  over  the  neglect
  petition whether or not it dismisses the support petition.

  S 442. Order  of  support  by  a  spouse. If the court finds after a
  hearing that a husband or wife is chargeable under section four  hundred
  twelve  with  the  support  of  his  or  her  spouse and is possessed of
  sufficient means or able to earn such means, the  court  shall  make  an
  order  requiring  the  husband  or  wife to pay weekly or at other fixed
  periods a fair and reasonable sum for or  towards  the  support  of  the
  other  spouse.    The  court  shall  require  the spouse chargeable with
  support to make his or her residence known at all times should he or she
  move from the address last known to the court by reporting  such  change
  to  the  support  collection  unit  designated by the appropriate social
  services district.  Failure to report such change shall subject  him  or
  her to the provisions of section four hundred fifty-four of this act.

  S 443. Order of support by parent. If the court finds after a hearing
  that a parent is chargeable under section four hundred thirteen of  this
  act  with the support of his or her child and is possessed of sufficient
  means or able to  earn  such  means,  the  court  shall  make  an  order
  requiring  the parent to pay weekly or at other fixed periods a fair and
  reasonable sum for or towards the support of such child. Where permitted
  under federal law and where the record of the proceedings contains  such
  information,  the court shall also require the social security number of
  such parent to be affixed to such order; provided, however, that no such
  order shall be invalid because of the omission of such number. Where the
  record of the proceedings contains such information,  such  order  shall
  also  include  on its face the name and address of the employer, if any,
  of the person chargeable with support provided, however, that failure to
  comply with this requirement shall not invalidate such order. Where  the
  order  of  child support or combined child and spouse support is made on
  behalf of persons in receipt of  public  assistance  or  in  receipt  of
  services pursuant to section one hundred eleven-g of the social services
  law,  the court shall require each party to provide, and update upon any
  change, the following information to the court by reporting such  change
  to  the  support  collection  unit  designated by the appropriate social
  services district:  social  security  number,  residential  and  mailing
  addresses,  telephone number, driver's license number; and name, address
  and  telephone  number  of  the  parties'  employers.      Due   process
  requirements  for  notice and service of process for subsequent hearings
  are met, with respect to such party,  upon  sending  written  notice  by
  first  class  mail to the most recent residential address on record with
  the support collection unit; or by sending by first class  mail  written
  notice  to  the  most recent employer address on record with the support
  collection unit, if a true copy thereof also is sent by first class mail
  to the most recent  residential  address  on  record  with  the  support
  collection  unit.    Any  such order issued on or after the first day of
  October,  nineteen  hundred  ninety-nine  shall  also   include,   where
  available,  the  social  security  number  of each child on whose behalf
  support has been ordered.  Failure to report such changes shall  subject
  the  parent to the provisions of section four hundred fifty-four of this
  act.

  S 445. Order of support by relative; duration. (a) If the court finds
  after a hearing that a relative, including a step-parent, should be held
  responsible under section four hundred fifteen for support, the court in
  its discretion may make an order requiring such person to  contribute  a
  fair and reasonable sum for the support of such person.
    (b)  For  good  cause  shown,  the  court may at any time terminate or
  modify an order made under this section.

  S 446. Order of protection. The court may make an order of protection
  in assistance or as a condition of any other order made under this part.
  The order of protection may set forth reasonable conditions of  behavior
  to  be  observed for a specified time by the petitioner or respondent or
  both. No order of protection may direct any party to observe  conditions
  of  behavior  unless  the  party  requesting the order of protection has
  served and filed a petition or counter-claim in accordance with  section
  one  hundred  fifty-four-b  of  this  act. Such an order may require the
  petitioner or the respondent:
    (a) to  stay  away  from  the  home,  school,  business  or  place  of
  employment of any other party, the other spouse, the other parent or the
  child,  and  to stay away from any other specific location designated by
  the court;
    (b) to permit a parent, or a person entitled to visitation by a  court
  order or a separation agreement, to visit the child at stated periods;
    (c)  to  refrain  from  committing  a  family  offense,  as defined in
  subdivision one of section eight hundred twelve  of  this  act,  or  any
  criminal  offense  against  the  child  or  against  the other parent or
  against any person to whom custody of the  child  is  awarded,  or  from
  harassing, intimidating or threatening such persons;
    (d)  to  permit  a  designated  party  to enter the residence during a
  specified period of time in order to remove personal belongings  not  in
  issue in this proceeding or in any other proceeding or action under this
  act or the domestic relations law;
    (e)  to  refrain  from  acts  of commission or omission that create an
  unreasonable risk to the health, safety or welfare of a child;
    (f) to participate in an educational program  and  to  pay  the  costs
  thereof  if  the  person  has  the means to do so, provided however that
  nothing contained herein shall be deemed to require payment of the costs
  of any such program by the state or any political subdivision thereof;
    (g) to provide, either directly or by  means  of  medical  and  health
  insurance,  for expenses incurred for medical care and treatment arising
  from the incident or incidents forming the basis for the issuance of the
  order;
    (h) 1. to refrain from  intentionally  injuring  or  killing,  without
  justification,  any  companion  animal the respondent knows to be owned,
  possessed, leased, kept or held by the person protected by the order  or
  a minor child residing in such person's household.
    2.  "Companion  animal",  as used in this section, shall have the same
  meaning as in subdivision five of section three  hundred  fifty  of  the
  agriculture and markets law;
    (i)  1.  to  promptly return specified identification documents to the
  protected party, in whose favor the order  of  protection  or  temporary
  order  of  protection is issued; provided, however, that such order may:
  (A) include any appropriate provision designed to ensure that  any  such
  document  is  available  for  use  as  evidence  in this proceeding, and
  available if necessary for legitimate use by the party against whom such
  order is issued; and (B) specify the manner in which such  return  shall
  be accomplished.
    2.  For  purposes of this subdivision, "identification document" shall
  mean any of the following: (A) exclusively in the name of the  protected
  party:   birth  certificate,  passport,  social  security  card,  health
  insurance or other benefits card, a card  or  document  used  to  access
  bank,  credit  or  other financial accounts or records, tax returns, any
  driver's license, and immigration documents including but not limited to
  a United States permanent resident  card  and  employment  authorization
  document;  and (B) upon motion and after notice and an opportunity to be
  heard, any of the following, including those that may reflect joint  use
  or   ownership,   that  the  court  determines  are  necessary  and  are
  appropriately transferred to the protected party: any card  or  document
  used  to access bank, credit or other financial accounts or records, tax
  returns, and any other identifying cards and documents; and
    (j)  to  observe such other conditions as are necessary to further the
  purposes of protection.
  The court may also award custody of the child, during the  term  of  the
  order  of  protection  to  either  parent, or to an appropriate relative
  within the second degree. Nothing in this section gives the court  power
  to  place  or board out any child or to commit a child to an institution
  or agency. In making orders of protection, the court shall so act as  to
  insure  that in the care, protection, discipline and guardianship of the
  child his religious faith shall be preserved and protected.
    Notwithstanding the foregoing provisions, an order of  protection,  or
  temporary order of protection where applicable, may be entered against a
  former  spouse  and  persons  who  have a child in common, regardless of
  whether such persons have been married or have  lived  together  at  any
  time,  or against a member of the same family or household as defined in
  subdivision one of section eight hundred twelve of this act.
    In addition to the foregoing provisions, the court may issue an order,
  pursuant to section two hundred twenty-seven-c of the real property law,
  authorizing the party for whose benefit any order of protection has been
  issued to terminate a lease or rental agreement pursuant to section  two
  hundred twenty-seven-c of the real property law.
    In  any proceeding pursuant to this article, a court shall not deny an
  order of protection, or dismiss an application for such an order, solely
  on the basis  that  the  acts  or  events  alleged  are  not  relatively
  contemporaneous  with  the  date of the application or the conclusion of
  the action. The duration of any temporary order shall not by itself be a
  factor in determining the length or issuance of any final order.
    The protected  party  in  whose  favor  the  order  of  protection  or
  temporary  order  of  protection is issued may not be held to violate an
  order issued in his or  her  favor  nor  may  such  protected  party  be
  arrested for violating such order.

  S 446-a. Firearms;  surrender and license suspension, revocation and
  ineligibility. Upon the issuance of an order of protection or  temporary
  order  of protection, or upon a violation of such order, the court shall
  make a determination  regarding  the  suspension  and  revocation  of  a
  license  to  carry, possess, repair or dispose of a firearm or firearms,
  ineligibility for such a  license  and  the  surrender  of  firearms  in
  accordance with section eight hundred forty-two-a of this act.

  S 447. Order of visitation. (a) In the absence of an order of custody
  or of visitation entered by the supreme court, the  court  may  make  an
  order of custody or of visitation, in accordance with subdivision one of
  section  two  hundred forty of the domestic relations law, requiring one
  parent to permit the other to  visit  the  children  at  stated  periods
  without  an order of protection, even where the parents are divorced and
  the support order is for a child only.
    (b) Any order of the family court under this section  shall  terminate
  when  the  supreme  court  makes  an  order  of custody or of visitation
  concerning the children, unless the supreme court continues the order of
  the family court.

  S 448. Enforcement  by  income deduction. Orders of support shall be
  enforceable pursuant to section fifty-two hundred forty-one or fifty-two
  hundred forty-two of the civil practice law and rules, or in  any  other
  manner  provided  by law. The family court is hereby authorized to enter
  an order with respect to an income deduction,  in  accordance  with  the
  provisions  of section fifty-two hundred forty-two of the civil practice
  law and rules, in any support proceeding under the provisions of article
  five-B of this act under any support order made pursuant to a  reference
  from  the  supreme  court  under  section  two  hundred fifty-one of the
  domestic relations law or in any support proceeding under the provisions
  of article four, five or five-A of this act.

  S 449. Effective  date  of order of support. 1. Any order of spousal
  support made under this article shall be effective as of the date of the
  filing of the petition therefor, and any retroactive amount  of  support
  due  shall  be  paid  in  one  sum  or periodic sums, as the court shall
  direct, to the petitioner, to the custodial parent or to third  persons.
  Any  amount of temporary support which has been paid shall be taken into
  account in calculating any amount of retroactive support due.
    2. Any order of  child  support  made  under  this  article  shall  be
  effective  as  of  the earlier of the date of the filing of the petition
  therefor, or, if the children for whom support is sought are in  receipt
  of  public  assistance,  the date for which their eligibility for public
  assistance was effective. Any retroactive amount of support due shall be
  support arrears/past-due support  and  shall  be  paid  in  one  sum  or
  periodic  sums,  as  the  court  shall direct, to the petitioner, to the
  custodial parent or to third persons. Any amount  of  temporary  support
  which  has  been  paid  shall  be  taken into account in calculating any
  amount of retroactive support due. In addition, such  retroactive  child
  support  shall  be  enforceable in any manner provided by law including,
  but not limited to, an execution for  support  enforcement  pursuant  to
  subdivision  (b)  of  section  fifty-two  hundred forty-one of the civil
  practice law and rules.

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