senate Bill S7535

Relates to applications to modify orders of child support in the family court

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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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actions

  • 15 / May / 2014
    • REFERRED TO JUDICIARY
  • 11 / Jun / 2014
    • COMMITTEE DISCHARGED AND COMMITTED TO RULES
  • 11 / Jun / 2014
    • ORDERED TO THIRD READING CAL.1355
  • 12 / Jun / 2014
    • SUBSTITUTED BY A9464

Summary

Relates to applications to modify orders of child support in the family court.

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Bill Details

See Assembly Version of this Bill:
A9464
Versions:
S7535
Legislative Cycle:
2013-2014
Law Section:
Family Court Act
Laws Affected:
Amd ยง451, Fam Ct Act

Sponsor Memo

BILL NUMBER:S7535

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.

Legislative History:

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.

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

                                  7535

                            I N  S E N A T E

                              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  the

 EXPLANATION--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.

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