Relates to applications to modify orders of child support in the family court.
TITLE OF BILL: An act to amend the family court act, in relation to applications to modify orders of child support in the family court
This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of her Family Court Advisory and Rules Committee.
An application to modify an order of child support pursuant to section 451 of the Family Court Act must be accompanied by "an affidavit and other evidentiary material sufficient to establish a prima facie case for the relief requested" in order to entitle the petitioner to a hearing on any material issues of fact. No hearing is required if an affidavit has not been submitted even if material issues are present in the case. In order to preserve the possibility of a hearing, this requirement has been applied literally by many Family Courts statewide in all cases, thus preventing child support modification petitions from being filed in the absence of an affidavit.
This requirement has proven to be both unnecessary and unduly restrictive. It is unnecessary because it is duplicative. The uniform "Affidavit in Support of Modification of Support" (Family Court Form 4-11b) contains virtually the same information as the support modification petition (Family Court Form 4-11).* And, most important, it is unduly restrictive as an impediment to effective access to the Family Court by unwary litigants, most of whom are unrepresented.**
The Chief Judge's Task Force to Expand Access to Civil Legal Services in its Report to the Chief Judge of the State of New York in November, 2011, at p. 31, recommended, inter alia, that Family Court child support forms be simplified. This effort is now ongoing through the forms simplification initiative described in the 2012 report of the New York State Courts Access to Justice Program.*** The public "New York CourtHelp" web-site of the Unified Court System includes an on-line "Do It Yourself' (DIY) program in English and Spanish for litigants to utilize to prepare child support modification petitions, a "Lawhelp Interactive" program operated by ProBono.Net.**** The DIY process in unnecessarily encumbered by the requirement that litigants prepare an affidavit in addition to the petition.
This measure would further the goal of forms simplification. It would amend section 451 of the Family Court Act. Instead, the petition itself would need to "allege facts sufficient to meet one or more of the grounds" for modification set forth in the statute. In eliminating the need for litigants to file an extra document, the measure would ease the DIY process, a meaningful step in the Court System's ongoing effort to increase the ease with which litigants can obtain needed relief in the Family Court.
This measure, which would have no fiscal impact upon the State, would take effect immediately.
None. New proposal.
*The forms are available at htto://www.nvcourts.gov/forms/familvcourt/childsunport.shtml.
** The Chief Judge's Task Force to Expand Access to Civil Legal Services in its Report to the Chief Judge of the State of New York in November, 2010, estimated that: "In 611,768 Family Court matters in which assigned counsel is not provided, approximately 74 percent of the litigants are unrepresented. In child support matters in the Family Court in New York City, 93 percent of the parties are completely unrepresented and another 4 to 5 percent had counsel for only part of the case. Effectively, 97 to 98 percent of New Yorkers dealing with child support issues in New York City do so without full benefit of counsel. In child support matters in Family Court outside of New York City, 86 percent of the parties are unrepresented, and another 9 to 11 percent have counsel for only part of the case." (Footnotes omitted)." Id. At p.17.
*** New York State Courts Access to Justice Program, 2012 Report, p. 18 fhttp://www.nvcourts.gov/ip/nya2j/pdfs/NYA2J 20 12report.pdfl
**** See www.nycourts.Rovicourthelp/DIY/supportmodification.html.
STATE OF NEW YORK ________________________________________________________________________ 7535 IN SENATE May 15, 2014 ___________Introduced by Sen. BONACIC -- (at request of the Office of Court Admin- istration) -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary AN ACT to amend the family court act, in relation to applications to modify orders of child support in the family court THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 451 of the family court act, as amended by chapter 182 of the laws of 2010, is amended to read as follows: 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 appli- cation 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
[modify,]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 theEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD13719-02-4 S. 7535 2
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-pay- ment 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 modifica- tion unless it was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability, and experience. S 2. This act shall take effect on the ninetieth day after it shall have become a law.