NY State Senate Bill 2021-S7387

Senate Bill S7387

2021-2022 Legislative Session

Relates to eliminating the ability of a court to commit a respondent to jail or place a respondent on probation as a penalty for violation of a support order; repealer

download bill text pdf

Archive: Last Bill Status - In Senate Committee Judiciary Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 05, 2022	referred to judiciary
Sep 20, 2021	referred to rules

2021-S7387 (ACTIVE) - Details

See Assembly Version of this Bill:: A3063
Current Committee:: Senate Judiciary
Law Section:: Family Court Act
Laws Affected:: Amd §§454 & 439, rpld §§455 & 456, Fam Ct Act
Versions Introduced in Other Legislative Sessions:: 2019-2020: A11038
2023-2024: S317, A457

2021-S7387 (ACTIVE) - Summary

Relates to eliminating the ability of a court to commit a respondent to jail or place a respondent on probation as a penalty for violation of a support order.

2021-S7387 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S7387

SPONSOR: SALAZAR
 
TITLE OF BILL:

An act to amend the family court act, in relation to eliminating the
ability of a court to commit a respondent to jail or place a respondent
on probation as a penalty for violation of a support order; and to
repeal certain provisions of such law relating thereto

 
SUMMARY OF PROVISIONS:

Section 1 amends subdivision 3 of section 454 of the family court act to
remove the court's ability to commit a respondent to jail or place the
respondent on probation for willful failure to obey any lawful order of
support

Section 2 repeals sections 455 and 456 of the family court act

Sections 3, 4 and 5 amend respectively subdivisions a and c of section
439 of the family court act to make conforming changes

Section 6 provides the effective date

 
JUSTIFICATION:

The practice of sentencing non-custodial parents to jail and/or
probation for nonpayment of support harms families by preventing the
incarcerated parent from earning an income and complying with a support
order. Probation is also an irrational punishment for nonpayment, as
probation violations can result in incarceration and can otherwise
constrain a parent's ability to earn an income. Beyond the financial
costs borne by the custodial parent and child, and to the public for
incarcerating the non-custodial parent, there are potential emotional
costs for the child as well as for the friends and family of the non-
custodial parent.

The family court act provides for many methods aside from incarceration
and probation for a court to secure compliance with a support order.
This legislation would assure the court is using its many alternatives
to incarceration and probation in order to obtain child support for
families.

 
PRIOR LEGISLATIVE HISTORY:

2020: A11038/No same as - referred to judiciary

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

Potential savings on the cost of incarceration.

 
EFFECTIVE DATE:
90 days after becoming law.

2021-S7387 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7387
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                            September 20, 2021
                                ___________
 
 Introduced  by  Sen. SALAZAR -- 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  eliminating  the
   ability  of a court to commit a respondent to jail or place a respond-
   ent on probation as a penalty for violation of a support order; and to
   repeal certain provisions of such law relating thereto
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Subdivision  3 of section 454 of the family court act, as
 amended by chapter 892 of the laws of 1986, paragraph (b) as  added  and
 paragraph  (c)  as  relettered  by  chapter  699 of the laws of 1996, is
 amended to read as follows:
   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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD03156-04-1

 S. 7387                             2
 
 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  crimi-
 nal procedure law].
   § 2. Sections 455 and 456 of the family court act are REPEALED.
   §  3.  Subdivision  (a)  of  section  439  of the family court act, as
 amended by section 21 of part L of chapter 56 of the laws  of  2020,  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, five-B and five-C 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  article,]  issues  of  contested  parentage
 involving  claims  of  equitable estoppel, custody, visitation including
 visitation as a defense, determinations of parentage  made  pursuant  to
 section  581-407  of  this  act,  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  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 article and that recommends commitment shall be tran-
 smitted  to the parties, accompanied by findings of fact, but the deter-
 mination shall have no force and effect until confirmed by  a  judge  of
 the court.]
   §  4.  Subdivision  (a)  of  section  439  of the family court act, as
 amended by section 2 of chapter 468 of the laws of 2012, 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,

 S. 7387                             3
 
 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  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.]
   §  5.  Subdivision  (c)  of  section  439  of the family court act, as
 amended by chapter 576 of the laws  of  2005,  is  amended  to  read  as
 follows:
   (c)  The support magistrate, in any proceeding in which [issues speci-
 fied in section four hundred fifty-five  of  this  act,  or]  issues  of
 custody,  visitation,  including  visitation  as  a  defense,  orders of
 protection or exclusive possession of the home are present or  in  which
 paternity  is contested on the grounds of equitable estoppel, shall make
 a temporary order of support and refer the proceeding to a  judge.  Upon
 determination  of  such  issue  by  a  judge, the judge may make a final
 determination of the issue of support, or immediately refer the proceed-
 ing to a support magistrate  for  further  proceedings  regarding  child
 support or other matters within the authority of the support magistrate.
   §  6.  This  act shall take effect on the thirtieth day after it shall
 have become a law, provided that the amendments to  subdivision  (a)  of
 section  439  of  the family court act made by section three of this act
 shall be subject to the expiration 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  four  of
 this act shall take effect.

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