New York State Law
Family Court Law
Consolidated Laws of NY's FCA code
Part 5 - Article 4 - Family Court
COMPLIANCE WITH ORDERS
| Section | Description |
|---|---|
| 451 | Continuing jurisdiction. |
| 453 | Petition; violation of court order. |
| 454 | Powers of the court on violation of a support order. |
| 455 | Commitment. |
| 456 | Probation. |
| 457 | Order of sequestration on failure to obey support order. |
| 458-A | Enforcement of arrears; Suspension of driving privileges. |
| 458-B | Child support proceedings and enforcement of arrears; suspension of state professional, occupational and business licenses. |
| 458-C | Child support proceedings and enforcement of arrears; suspension of recreational licenses. |
| 459 | Additional arrears. |
| 460 | Entry and docketing of a money judgment. |
S 451. Continuing jurisdiction. 1. Except as provided in article five-B of this act, the court has continuing jurisdiction over any support proceeding brought under this article until its judgment is completely satisfied and may modify, set aside or vacate any order issued in the course of the proceeding, provided, however, that the modification, set aside or vacatur shall not reduce or annul child support arrears accrued prior to the making of an application pursuant to this section. The court shall not reduce or annul any other arrears unless the defaulting party shows good cause for failure to make application for relief from the judgment or order directing payment prior to the accrual of the arrears, in which case the facts and circumstances constituting such good cause shall be set forth in a written memorandum of decision. A modification may increase support payments nunc pro tunc as of the date of the initial application for support based on newly discovered evidence. Any retroactive amount of support due shall be paid and be enforceable as provided in section four hundred forty of this article. Upon an application to set aside or vacate an order of support, no hearing shall be required unless such application shall be supported by affidavit and other evidentiary material sufficient to establish a prima facie case for the relief requested. 2. A proceeding to modify an order of support shall be commenced by the filing of a petition which shall allege facts sufficient to meet one or more of the grounds enumerated in subdivision three of this section. 3. (a) The court may modify an order of child support, including an order incorporating without merging an agreement or stipulation of the parties, upon a showing of a substantial change in circumstances. Incarceration shall not be a bar to finding a substantial change in circumstances provided such incarceration is not the result of non-payment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment. (b) In addition, unless the parties have specifically opted out of the following provisions in a validly executed agreement or stipulation entered into between the parties, the court may modify an order of child support where: (i) three years have passed since the order was entered, last modified or adjusted; or (ii) 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. A reduction in income shall not be considered as a ground for modification unless it was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability, and experience. S 453. Petition; violation of court order. Proceedings under this part shall be originated by the filing of a petition containing an allegation that the respondent has failed to obey a lawful order of this court. (a) Persons who may originate and prosecute proceedings. The original petitioner, the support collection unit 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, or any person to whom the order is payable expressly or who may originate proceedings under section four hundred twenty-two of this article may originate and prosecute a proceeding under this part. (b) Issuance of summons. Upon the filing of a petition under this part, the court may cause a copy of the petition and a summons to be issued, requiring the respondent to show cause why he should not be dealt with in accordance with section four hundred fifty-four of this part. The summons shall include on its face, printed or typewritten in a size equal to at least eight point bold type, a notice, warning the respondent that a failure to appear in court may result in immediate arrest, and that, after an appearance in court, a finding that the respondent willfully failed to obey the order may result in commitment to jail for a term not to exceed six months, for contempt of court. The notice shall also advise the respondent of the right to counsel, and the right to assigned counsel, if indigent. (c) Service of summons. Upon the issuance of a summons, the provisions of section four hundred twenty-seven of this article shall apply, except that no order of commitment may be entered upon the default in appearance by the respondent if service has been made by mail alone notwithstanding proof of actual notice of the commencement of the proceeding. (d) Issuance of warrant. The court may issue a warrant, directing that the respondent be arrested and brought before the court, pursuant to section four hundred twenty-eight of this article. S 454. Powers of the court on violation of a support order. 1. If a respondent is brought before the court for failure to obey any lawful order of support and if, after hearing, the court is satisfied by competent proof that the respondent has failed to obey any such order, the court may use any or all of the powers conferred upon it by this part. The court has the power to use any or all enforcement powers in every proceeding brought for violation of a court order under this part regardless of the relief requested in the petition. 2. Upon a finding that a respondent has failed to comply with any lawful order of support: (a) the court shall enter a money judgment under section four hundred sixty of this article; and (b) the court may make an income deduction order for support enforcement under section fifty-two hundred forty-two of the civil practice law and rules; (c) the court may require the respondent to post an undertaking under section four hundred seventy-one of this article; (d) the court may make an order of sequestration under section four hundred fifty-seven of this article. (e) the court may suspend the respondent's driving privileges pursuant to section four hundred fifty-eight-a of this article. (f) the court may suspend the respondent's state professional or business license pursuant to section four hundred fifty-eight-b of this article; (g) the court may suspend the recreational license or licenses of the respondent pursuant to section four hundred fifty-eight-c of this article. (h) the court may require the respondent, if the persons for whom the respondent has failed to pay support are applicants for or recipients of public assistance, to participate in work activities as defined in title nine-B of article five of the social services law. Those respondents ordered to participate in work activities need not be applicants for or recipients of public assistance. (i) except as otherwise provided in paragraph (h) of this subdivision, the court may require the respondent to participate in job training, employment counseling or other programs designed to lead to employment if authorized pursuant to section four hundred thirty-seven-a of this article provided such programs are available. 3. Upon a finding by the court that a respondent has willfully failed to obey any lawful order of support, the court shall order respondent to pay counsel fees to the attorney representing petitioner pursuant to section four hundred thirty-eight of this act and may in addition to or in lieu of any or all of the powers conferred in subdivision two of this section or any other section of law: (a) commit the respondent to jail for a term not to exceed six months. For purposes of this subdivision, failure to pay support, as ordered, shall constitute prima facie evidence of a willful violation. Such commitment may be served upon certain specified days or parts of days as the court may direct, and the court may, at any time within the term of such sentence, revoke such suspension and commit the respondent for the remainder of the original sentence, or suspend the remainder of such sentence. Such commitment does not prevent the court from subsequently committing the respondent for failure thereafter to comply with any such order; or (b) require the respondent to participate in a rehabilitative program if the court determines that such participation would assist the respondent in complying with such order of support and access to such a program is available. Such rehabilitative programs shall include, but not be limited to, work preparation and skill programs, non-residential alcohol and substance abuse programs and educational programs; or (c) place the respondent on probation under such conditions as the court may determine and in accordance with the provisions of the criminal procedure law. 4. The court shall not deny any request for relief pursuant to this section unless the facts and circumstances constituting the reasons for its determination are set forth in a written memorandum of decision. * 5. The court may review a support collection unit's denial of a challenge made by a support obligor pursuant to paragraph (d) of subdivision twelve of section one hundred eleven-b of the social services law if objections thereto are filed by a support obligor who has received notice that the office of temporary and disability assistance intends to notify the department of motor vehicles that the support obligor's driving privileges are to be suspended. Specific written objections to a support collection unit's denial may be filed by the support obligor within thirty-five days of the mailing of the notice of the support collection unit's denial. A support obligor who files such objections shall serve a copy of the objections upon the support collection unit, which shall have ten days from such service to file a written rebuttal to such objections and a copy of the record upon which the support collection unit's denial was made, including all documentation submitted by the support obligor. Proof of service shall be filed with the court at the time of filing of objections and any rebuttal. The court's review shall be based upon the record and submissions of the support obligor and the support collection unit upon which the support collection unit's denial was made. Within forty-five days after the rebuttal, if any, is filed, the court shall (i) deny the objections and remand to the support collection unit or (ii) affirm the objections if the court finds the determination of the support collection unit is based upon a clearly erroneous determination of fact or error of law, whereupon the court shall direct the support collection unit not to notify the department of motor vehicles to suspend the support obligor's driving privileges. Provisions set forth herein relating to procedures for appeal to the family court by individuals subject to suspension of driving privileges for failure to pay child support shall apply solely to such cases and not affect or modify any other procedure for review or appeal of administrative enforcement of child support requirements. * NB Repealed August 31, 2017 S 455. Commitment. 1. The court may at any time suspend an order of commitment upon such reasonable conditions, if any, as the court deems appropriate to carry out the purposes of this article without placing the respondent on probation or may place him on probation under such conditions as the court may determine and in accordance with the provisions of the criminal procedure law. For good cause shown, the court may at any time revoke the suspension of the order of commitment. 2. Except as provided in article five-B of this act, any respondent against whom an order of commitment has been issued, if financially unable to comply with any lawful order issued under this article, upon such notice to such parties as the court may direct, may make application to the court for an order relieving him or her of payments directed in such order and the commitment order. The court, upon the hearing on such application, if satisfied by competent proof that the respondent is financially unable to comply with such order may, upon a showing of good cause until further order of the court, modify such order and relieve the respondent from the commitment order. No such modification shall reduce or annul unpaid sums or installments accrued prior to the making of such application unless the defaulting party shows good cause for failure to make application for relief from the order directing payment prior to the accrual of such arrears. Such modification may increase the amount to be paid pursuant to a lawful order issued under this article nunc pro tunc based on newly discovered evidence. 3. Whenever, upon application to the court by an interested party, it appears to the satisfaction of the court that any person, who has been relieved totally or partially from making any payment pursuant to the provisions of this section, is no longer financially unable to comply with the order to make such payment, then the court may, upon a showing of good cause modify or revoke its order relieving such person totally or partially from making such payment. 4. Notwithstanding any inconsistent provision of this article, the provision of any order issued under this article requiring the payment of money by one spouse for the support of the other shall be suspended and inoperative so far as punishment for contempt is concerned during the period in which the defaulting spouse is imprisoned pursuant to any order adjudging him or her in contempt for failure to comply with any provision in such order. 5. Any respondent may assert his or her financial inability to comply with the directions contained in an order issued under this article or an order or judgment entered in a matrimonial action or in an action for the enforcement in this state of a judgment in a matrimonial action rendered in another state, as a defense in a proceeding instituted against him or her under subdivision one of section four hundred fifty-four of this article or under the judiciary law to punish him or her for failure to comply with such directions. If the court, upon the hearing of such contempt proceeding, is satisfied by competent proof that the respondent is financially unable to comply with such order or judgment, it may, in its discretion, until further order of the court, make an order modifying such order or judgment and denying the application to punish the respondent for contempt; provided, however, that if an order or judgement for child support issued by another state is before the court solely for enforcement, the court may only modify the order in accordance with article five-B of this act. No such modification shall reduce or annul arrears accrued prior to the making of such application for modification unless the defaulting party shows good cause for failure to make application for relief from the order or judgment directing such payment prior to the accrual of such arrears. Such modification may increase such support nunc pro tunc as of the date of the application based on newly discovered evidence. Any retroactive amount of support due shall be paid in one sum or periodic sums, as the court shall direct, taking into account any amount of temporary support which has been paid. S 456. Probation. (a) No person may be placed on probation under this article unless the court makes an order to that effect, either at the time of the making of an order of support or under section four hundred fifty-four. The period of probation may continue so long as an order of support, order of protection or order of visitation applies to such person. (b) The court may at any time, where circumstances warrant it, revoke an order of probation. Upon such revocation, the probationer shall be brought to court, which may, without further hearing, make any order that might have been made at the time the order of probation was made. S 457. Order of sequestration on failure to obey support order. If an order of support is made under this article and the respondent has failed to obey it and either leaves or threatens to leave the state, the court on application may issue an order of sequestration of his property within the state, providing that such property may be taken, sequestered and applied in like manner as is provided in section four hundred twenty-nine. S 458-A. Enforcement of arrears; Suspension of driving privileges. (a) If the respondent has accumulated support arrears equivalent to or greater than the amount of support due pursuant to court order for a period of four months, the court may order the department of motor vehicles to suspend the respondent's driving privileges, and if such order issues, the respondent may apply to the department of motor vehicles for a restricted use license pursuant to section five hundred thirty of the vehicle and traffic law. The court may at any time upon payment of arrears or partial payment of arrears by the respondent order the department of motor vehicles to terminate the suspension of respondent's driving privileges. For purposes of determining whether a support obligor has accumulated support arrears equivalent to or greater than the amount of support due for a period of four months, the amount of any retroactive support, other than periodic payments of retroactive support which are past due, shall not be included in the calculation of support arrears pursuant to this section. (b) If the respondent, after receiving appropriate notice, fails to comply with a summons, subpoena or warrant relating to a paternity or child support proceeding, the court may order the department of motor vehicles to suspend the respondent's driving privileges. The court may subsequently order the department of motor vehicles to terminate the suspension of the respondent's driving privileges; however, the court shall order the termination of such suspension when the court is satisfied that the respondent has fully complied with the requirements of all summonses, subpoenas and warrants relating to a paternity or child support proceeding. Nothing in this subdivision shall authorize the court to terminate the respondent's suspension of driving privileges except as provided in this subdivision. (c) The provisions of subdivision (a) of this section shall not apply to: (i) respondents who are receiving public assistance or supplemental security income; or (ii) respondents whose income as defined by subparagraph five of paragraph (b) of subdivision one of section four hundred thirteen of this act falls below the self-support reserve as defined by subparagraph six of paragraph (b) of subdivision one of section four hundred thirteen of this act; or (iii) respondents whose income as defined by subparagraph five of paragraph (b) of subdivision one of section four hundred thirteen of this act remaining after the payment of the current support obligation would fall below the self-support reserve as defined by subparagraph six of paragraph (b) of subdivision one of section four hundred thirteen of this act. (d) The court's discretionary decision not to suspend driving privileges shall not have any res judicata effect or preclude any other agency with statutory authority to direct the department of motor vehicles to suspend driving privileges. S 458-B. Child support proceedings and enforcement of arrears; suspension of state professional, occupational and business licenses. (a) If the respondent has accumulated support arrears equivalent to or greater than the amount of support due pursuant to court order for a period of four months and the court has determined that the respondent is licensed, permitted or registered by or with a board, department, authority or office of this state to conduct a trade, business, profession or occupation, the court may order such board, department, authority or office to commence proceedings as required by law regarding the suspension of such license, permit, registration or authority to practice and to inform the court of the actions it has taken pursuant to such proceedings. For purposes of determining whether a respondent has accumulated support arrears equivalent to or greater than the amount of support due for a period of four months, the amount of any retroactive support, other than periodic payments of retroactive support which are past due, shall not be included in the calculation of support arrears pursuant to this section. (b) If the respondent after receiving appropriate notice, fails to comply with a summons, subpoena or warrant relating to a paternity or child support proceeding, and the court has determined that the respondent is licensed, permitted or registered by or with a board, department, authority or office of this state or one of its political subdivisions or instrumentalities to conduct a trade, business, profession or occupation, the court may order such board, department, authority or office to commence proceedings as required by law regarding the suspension of such license, permit, registration or authority to practice and to inform the court of the actions it has taken pursuant to such proceeding. The court may subsequently order such board, department, authority or office to terminate the suspension of the respondent's license, permit, registration or authority to practice; however, the court shall order the termination of such suspension when the court is satisfied that the respondent has fully complied with the requirements of all summonses, subpoenas and warrants relating to a paternity or child support proceeding. (c) If the court determines that the suspension of the license, permit or registration of the respondent would create an extreme hardship to either the licensee, permittee or registrant or to persons whom he or she serves, the court may, in lieu of suspension, suspend the order described in subdivision (a) of this section to the licensing entity for a period not to exceed one year. If on or before the expiration of this period the court has not received competent proof presented at hearing that the respondent is in full compliance with his or her support obligation and has fully complied with all summons, subpoenas and warrants relating to a paternity or child support proceeding, the court shall cause the suspension of the order to be removed and shall further cause such order to be served upon the licensing entity. (d) The provisions of subdivision (a) of this section shall not apply to: (i) respondents who are receiving public assistance or supplemental security income; or (ii) respondents whose income as defined by subparagraph five of paragraph (b) of subdivision one of section four hundred thirteen of this act falls below the self-support reserve as defined by subparagraph six of paragraph (b) of subdivision one of section four hundred thirteen of this act; or (iii) respondents whose income as defined by subparagraph five of paragraph (b) of subdivision one of section four hundred thirteen of this act remaining after the payment of the current support obligation would fall below the self-support reserve as defined by subparagraph six of paragraph (b) of subdivision one of section four hundred thirteen of this act. (e) The court shall inform the respondent that competent proof for purposes of proving payment to a licensing entity shall be a certified check, notice issued by the court, or notice from a support collection unit where the order is for payment to the support collection unit. S 458-C. Child support proceedings and enforcement of arrears; suspension of recreational licenses. (a) If the respondent has accumulated support arrears equivalent to or greater than the amount of support due pursuant to court order for a period of four months, the court may order any agency responsible for the issuance of a recreational license to suspend or refuse to reissue a license to the respondent, or deny application for such license by the respondent. For purposes of determining whether a respondent has accumulated support arrears equivalent to or greater than the amount of support due for a period of four months, the amount of any retroactive support, other than periodic payments of retroactive support which are past due, shall not be included in the calculation of support arrears pursuant to this section. (b) If the respondent, after receiving appropriate notice, fails to comply with a summons, subpoena, or warrant relating to a paternity or child support proceeding, the court may order any agency responsible for the issuance of a recreational license to suspend or to refuse to reissue a license to the respondent or to deny application for such license by the respondent. The court may subsequently order such agency to terminate the adverse action regarding the respondent's license; however, the court shall order the termination of such suspension or other adverse action when the court is satisfied that the respondent has fully complied with the requirements of all summons, subpoenas, and warrants relating to a paternity or child support proceeding. (c) The provisions of subdivision (a) of this section shall not apply to: (i) respondents who are receiving public assistance or supplemental security income; or (ii) respondents whose income as defined by subparagraph five of paragraph (b) of subdivision one of section four hundred thirteen of this act falls below the self-support reserve as defined by subparagraph six of paragraph (b) of subdivision one of section four hundred thirteen of this article; or (iii) respondents whose income as defined by subparagraph five of paragraph (b) of subdivision one of section four hundred thirteen of this article remaining after the payment of the current support obligation would fall below the self-support reserve as defined by subparagraph six of paragraph (b) of subdivision one of section four hundred thirteen of this article. S 459. Additional arrears. If a respondent has failed to obey a lawful order under this article the party seeking enforcement may amend the petition to include any additional arrears which have accrued from the commencement of such enforcement proceeding up to the date of the hearing, provided that written notice of the intention to so amend has been given eight days previously. S 460. Entry and docketing of a money judgment. 1. Where the family court enters an order: (a) requiring any party to provide for the support of another party, or child, or both; or (b) providing for the support or maintenance of a spouse or former spouse, or child, or both, on a referral from the supreme court in an action for divorce, separation, annulment or a proceeding for the determination of the custody of a minor by writ of habeas corpus or by petition and order to show cause; or (c) enforcing or modifying an order or decree of a court of competent jurisdiction not of the state of New York providing for the support of the petitioner and/or child support; or (d) awarding support under article five-B of this act; or (e) awarding counsel fees under this act; and the party defaults in paying any sum of money due as required by the order directing the payment thereof, the court, without regard to the amount due, shall make an order directing the entry of judgment for the amount of child support arrears, together with costs and disbursements. The court shall make an order directing the entry of judgment for the amount of arrears of any other payments so directed, together with costs and disbursements, unless the defaulting party shows good cause for failure to make application for relief from the judgment or order directing such payment prior to the accrual of such arrears. The court shall not make an order reducing or cancelling such arrears unless the facts and circumstances constituting good cause are set forth in a written memorandum of decision. The application for such order shall be made upon such notice to the party or other person as the court may direct. Such judgment shall provide for the payment of interest on the amount of any arrears if the default was willful, in that the defaulting party knowingly, consciously and voluntarily disregarded the obligation under a lawful court order. Such interest shall be computed from the date on which the payment was due, at the prevailing rate of interest on judgments as provided in the civil practice law and rules. 2. A certified copy of the order directing the entry of a money judgment shall be entered in the office of the clerk of the county in which the proceeding was commenced. Said clerk shall docket the same in the book kept by him for the docketing of judgments as if said order were a transcript of a judgment directed for the amount designated in the order. An order docketed under this subdivision shall have the same effect as a docketed judgment entered in the supreme court within the county where it is docketed and may be enforced by execution or in any other manner provided by law for the collection of a money judgment. 3. The relief provided for herein shall be in addition to any and every other remedy which may be provided under the law including, but not limited to, the remedies provided under the provisions of section four hundred fifty-four of this act and sections fifty-two hundred forty-one and fifty-two hundred forty-two of the civil practice law and rules; provided that when a judgment for such arrears has been entered pursuant to this section, such judgment shall not thereafter be subject to modification or be affected by the provisions of section four hundred sixty-two of this act. After the entry of any order hereunder, the judgment creditor shall not thereafter be entitled to collect, by any form of remedy, any greater portion of such arrears than that represented by the order so entered. Top of Page
Index | Article 1 |
Article 2 | Article 3 |
Article 4 | Article 5 |
Article 5A | Article 5B |
Article 6 | Article 7 |
Article 8 | Article 9 |
Article 10 | Article 10A |
Article 10B | Article 10C |
Article 11 | Article 12
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