senate Bill S7579

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

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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  • 05 / Jun / 2012
    • REFERRED TO RULES
  • 21 / Jun / 2012
    • ORDERED TO THIRD READING CAL.1486
  • 21 / Jun / 2012
    • SUBSTITUTED BY A10345

Summary

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

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Bill Details

See Assembly Version of this Bill:
A10345
Versions:
S7579
Legislative Cycle:
2011-2012
Law Section:
Family Court Act
Laws Affected:
Amd ยงยง439 & 454, Fam Ct Act

Sponsor Memo

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.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  7579

                            I N  S E N A T E

                              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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD14891-02-2

S. 7579                             2

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

S. 7579                             3

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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