Bill S7579-2011

Relates to the authority of support magistrates in family court to adjudicate child support license suspension proceedings

Relates to the authority of support magistrates in family court to adjudicate child support license suspension proceedings.

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  • Jun 21, 2012: SUBSTITUTED BY A10345
  • Jun 21, 2012: ORDERED TO THIRD READING CAL.1486
  • Jun 5, 2012: REFERRED TO RULES

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BILL NUMBER:S7579

TITLE OF BILL: An act to amend the family court act, in relation to the authority of support magistrates in family court to adjudicate child support license suspension proceedings

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.

Current law provides that a child support obligor, who owes more than four months of arrears on child support payments, may have his or her driver's license suspended administratively. The support obligor may request a fair hearing on the suspension and, if unsuccessful, may then challenge the outcome of the fair hearing in Family Court. However, the Family Court challenge must be heard by a Family Court judge, not the Support Magistrate who issued the child support order being violated and who is likely most familiar with the case and circumstances of the parties. This restriction upon the Support Magistrate's authority fragments the proceedings and impedes timely and effective resolution of the driver's license suspension issue, as well as enforcement of the child support obligation.

This measure would end this unnecessary restriction upon the authority of the Support Magistrates in Family Court. According to data furnished by the Office of Court Administration, the number of cases affected are relatively small. Of the total number of supplemental petitions filed in child support cases statewide in calendar year 2010 (175,259 cases), .05% (85 cases) involved an objection to a license suspension. Yet for these cases, the courts would be able to resolve the matters more expeditiously, litigant appearances in court would be reduced and work hours by court personnel would be lowered.

Under this measure, Support Magistrates would be authorized to resolve challenges to administrative suspensions of driver's licenses after the support obligors have exhausted administrative remedies through the support agency's fair hearing process. Under section 111-b(12) of the Social Services Law, the Support Collection Unit (SCU) of a local Department of Social Services (or, in New York City, the Human Resources Administration) is required to notify an allegedly delinquent child support obligor of its intent to notify the Department of Motor Vehicles to suspend the obligor's driver's license, after which the obligor may obtain an administrative fair hearing. Section 454(5) of the Family Court Act requires any challenge by a support obligor to the fair hearing be referred to a Family Court judge, thus preventing the proceeding from being heard by the same jurist who issued the underlying child support order. However, there is no substantive reason why this narrow aspect of child support

litigation should not be determined by support Magistrates who already determine virtually every other aspect of child support litigation, with the exception of incarceration, and who are well-versed in the highly specialized, often arcane paternity and support areas of law. The of the Support Magistrate would be subject to the objection process contained in Article four of the Family Court Act.

Significantly, this measure is in keeping with the present enhanced role of Family Court Support Magistrates reflecting increasing recognition of their importance. Support Magistrates are vital to the State's efforts to adjudicate and enforce child support obligations in conformity with Title IV-D of the Federal Social Security Act, which provides funding for 2/3 of New York's child support program. According to the New York State Office of Temporary and Disability Assistance, total child support collections comprise well over one billion dollars annually.(1) The original Family Court Act, enacted in 1962, did not contain any provision for paternity or child support cases to be heard by any official other than a Family Court judge. The Act was amended in 1977 to create the position of Hearing Examiner and to authorize Hearing Examiners only to hear and report on child support cases. In 1985, the Act again was amended to grant Hearing Examiners the authority to hear and determine child support cases, but it did not permit them to decide cases involving contested paternity. When the Act was amended in 2003 and 2004, the title of Hearing Examiner was changed to Support Magistrate and subject matter jurisdiction was extended to contested paternity cases. However, the driver's license suspension provisions remained unchanged. This measure would complete the evolution of the Support Magistrate's authority in recognition of their essential role and substantial expertise in the adjudication and enforcement of child support obligations for the benefit of children in New York State.

This measure would have no fiscal impact upon the State. It would take effect on the ninetieth day after it shall have become a law.

LEGISLATIVE HISTORY: None. New proposal.

FOOTNOTES:

(1) The NYS OTDA Annual Report for 2008, the most recent report available, indicated that $1.7 billion had been collected in New York State in 2008, reflecting a steady increase from 2003, when collections totalled $1.3 billion.


Text

STATE OF NEW YORK ________________________________________________________________________ 7579 IN SENATE June 5, 2012 ___________
Introduced by Sen. GALLIVAN -- (at request of the Office of Court Admin- istration) -- read twice and ordered printed, and when printed to be committed to the Committee on Rules AN ACT to amend the family court act, in relation to the authority of support magistrates in family court to adjudicate child support license suspension proceedings THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision (a) of section 439 of the family court act, as amended by section 1 of chapter 576 of the laws of 2005, is amended to read as follows: (a) The chief administrator of the courts shall provide, in accordance with subdivision (f) of this section, for the appointment of a suffi- cient number of support magistrates to hear and determine support proceedings. Except as hereinafter provided, support magistrates shall be empowered to hear, determine and grant any relief within the powers of the court in any proceeding under this article, articles five, five-A, and five-B and sections two hundred thirty-four and two hundred thirty-five of this act, and objections raised pursuant to section five thousand two hundred forty-one of the civil practice law and rules. Support magistrates shall not be empowered to hear, determine and grant any relief with respect to issues specified in [subdivision five of section four hundred fifty-four or] section four hundred fifty-five of this [act] ARTICLE, issues of contested paternity involving claims of equitable estoppel, custody, visitation including visitation as a defense, and orders of protection or exclusive possession of the home, which shall be referred to a judge as provided in subdivision (b) or (c) of this section. Where an order of filiation is issued by a judge in a paternity proceeding and child support is in issue, the judge, or support magistrate upon referral from the judge, shall be authorized to immediately make a temporary or final order of support, as applicable. A support magistrate shall have the authority to hear and decide motions and issue summonses and subpoenas to produce persons pursuant to section one hundred fifty-three of this act, hear and decide proceedings and
issue any order authorized by subdivision (g) of section five thousand two hundred forty-one of the civil practice law and rules, issue subpoe- nas to produce prisoners pursuant to section two thousand three hundred two of the civil practice law and rules and make a determination that any person before the support magistrate is in violation of an order of the court as authorized by section one hundred fifty-six of this act subject to confirmation by a judge of the court who shall impose any punishment for such violation as provided by law. A determination by a support magistrate that a person is in willful violation of an order under subdivision three of section four hundred fifty-four of this arti- cle and that recommends commitment shall be transmitted to the parties, accompanied by findings of fact, but the determination shall have no force and effect until confirmed by a judge of the court. S 2. Subdivision (a) of section 439 of the family court act, as amended by section 2 of chapter 576 of the laws of 2005, is amended to read as follows: (a) The chief administrator of the courts shall provide, in accordance with subdivision (f) of this section, for the appointment of a suffi- cient number of support magistrates to hear and determine support proceedings. Except as hereinafter provided, support magistrates shall be empowered to hear, determine and grant any relief within the powers of the court in any proceeding under this article, articles five, five-A, and five-B and sections two hundred thirty-four and two hundred thirty-five of this act, and objections raised pursuant to section five thousand two hundred forty-one of the civil practice law and rules. Support magistrates shall not be empowered to hear, determine and grant any relief with respect to issues specified in section four hundred fifty-five of this [act] ARTICLE, issues of contested paternity involv- ing claims of equitable estoppel, custody, visitation including visita- tion as a defense, and orders of protection or exclusive possession of the home, which shall be referred to a judge as provided in subdivision (b) or (c) of this section. Where an order of filiation is issued by a judge in a paternity proceeding and child support is in issue, the judge, or support magistrate upon referral from the judge, shall be authorized to immediately make a temporary or final order of support, as applicable. A support magistrate shall have the authority to hear and decide motions and issue summonses and subpoenas to produce persons pursuant to section one hundred fifty-three of this act, hear and decide proceedings and issue any order authorized by subdivision (g) of section five thousand two hundred forty-one of the civil practice law and rules, issue subpoenas to produce prisoners pursuant to section two thousand three hundred two of the civil practice law and rules and make a deter- mination that any person before the support magistrate is in violation of an order of the court as authorized by section one hundred fifty-six of this act subject to confirmation by a judge of the court who shall impose any punishment for such violation as provided by law. A determi- nation by a support magistrate that a person is in willful violation of an order under subdivision three of section four hundred fifty-four of this article and that recommends commitment shall be transmitted to the parties, accompanied by findings of fact, but the determination shall have no force and effect until confirmed by a judge of the court. S 3. Subdivision 5 of section 454 of the family court act, as amended by chapter 601 of the laws of 2007, is amended to read as follows: 5. The court may review a support collection unit's denial of a chal- lenge 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 driv- ing 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 [family] court [judge] 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. S 4. This act shall take effect on the ninetieth day after it shall have become a law; provided, however, that: (a) the amendments to subdivision (a) of section 439 of the family court act made by section one of this act shall be subject to the expi- ration and reversion of such subdivision pursuant to subdivision 19 of section 246 of chapter 81 of the laws of 1995, as amended, when upon such date the provisions of section two of this act shall take effect; and (b) the amendments to subdivision 5 of section 454 of the family court act made by section three of this act shall be subject to the repeal of such subdivision pursuant to subdivision 19 of section 246 of chapter 81 of the laws of 1995, as amended.

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