- Consolidated Laws - Family Court
PART 4
ORDERS
Section 440. Order of support.
441. Order dismissing petition.
442. Order of support by a spouse.
443. Order of support by parent.
445. Order of support by relative; duration.
446. Order of protection.
447. Order of visitation.
448. Enforcement by income deduction.
449. Effective date of order of support.
S 440. Order of support. 1. (a) Any support order made by the court
in any proceeding under the provisions of article five-B of this act,
pursuant to a reference from the supreme court under section two hundred
fifty-one of the domestic relations law or under the provisions of
article four, five or five-A of this act (i) shall direct that payments
of child support or combined child and spousal support collected on
behalf of persons in receipt of services pursuant to section one hundred
eleven-g of the social services law, or on behalf of persons in receipt
of public assistance be made to the support collection unit designated
by the appropriate social services district, which shall receive and
disburse funds so paid; or (ii) shall be enforced pursuant to
subdivision (c) of section five thousand two hundred forty-two of the
civil practice law and rules at the same time that the court issues an
order of support; and (iii) shall in either case, except as provided for
herein, be effective as of the earlier of the date of the filing of the
petition therefor, or, if the children for whom support is sought are in
receipt of public assistance, the date for which their eligibility for
public assistance was effective. Any retroactive amount of support due
shall be support arrears/past due support and shall be paid in one sum
or periodic sums, as the court directs, and any amount of temporary
support which has been paid to be taken into account in calculating any
amount of such retroactive support due. In addition, such retroactive
child support shall be enforceable in any manner provided by law
including, but not limited to, an execution for support enforcement
pursuant to subdivision (b) of section fifty-two hundred forty-one of
the civil practice law and rules. When a child receiving support is a
public assistance recipient, or the order of support is being enforced
or is to be enforced pursuant to section one hundred eleven-g of the
social services law, the court shall establish the amount of retroactive
child support and notify the parties that such amount shall be enforced
by the support collection unit pursuant to an execution for support
enforcement as provided for in subdivision (b) of section fifty-two
hundred forty-one of the civil practice law and rules, or in such
periodic payments as would have been authorized had such an execution
been issued. In such case, the court shall not direct the schedule of
repayment of retroactive support. Where such direction is for child
support and paternity has been established by a voluntary acknowledgment
of paternity as defined in section forty-one hundred thirty-five-b of
the public health law, the court shall inquire of the parties whether
the acknowledgment has been duly filed, and unless satisfied that it has
been so filed shall require the clerk of the court to file such
acknowledgment with the appropriate registrar within five business days.
The court shall not direct that support payments be made to the support
collection unit unless the child, who is the subject of the order, is in
receipt of public assistance or child support services pursuant to
section one hundred eleven-g of the social services law. Any such order
shall be enforceable pursuant to section fifty-two hundred forty-one or
fifty-two hundred forty-two of the civil practice law and rules, or in
any other manner provided by law. Such orders or judgments for child
support and maintenance shall also be enforceable pursuant to article
fifty-two of the civil practice law and rules upon a debtor`s default as
such term is defined in paragraph seven of subdivision (a) of section
fifty-two hundred forty-one of the civil practice law and rules. The
establishment of a default shall be subject to the procedures
established for the determination of a mistake of fact for income
executions pursuant to subdivision (e) of section fifty-two hundred
forty-one of the civil practice law and rules. For the purposes of
enforcement of child support orders or combined spousal and child
support orders pursuant to section five thousand two hundred forty-one
of the civil practice law and rules, a "default" shall be deemed to
include amounts arising from retroactive support. Where permitted under
federal law and where the record of the proceedings contains such
information, such order shall include on its face the social security
number and the name and address of the employer, if any, of the person
chargeable with support provided, however, that failure to comply with
this requirement shall not invalidate such order.
(b) (1) When the court issues an order of child support or combined
child and spousal support on behalf of persons in receipt of public
assistance or in receipt of services pursuant to section one hundred
eleven-g of the social services law, the support collection unit shall
issue an income execution immediately for child support or combined
spousal and child support, and shall issue an execution for medical
support enforcement in accordance with the provisions of the order of
support unless: (i) the court finds and sets forth in writing the
reasons that there is good cause not to require immediate income
withholding; or (ii) when the child is not in receipt of public
assistance, a written agreement providing for an alternative arrangement
has been reached between the parties. Such written agreement may include
an oral stipulation made on the record resulting in a written order. For
purposes of this paragraph, good cause shall mean substantial harm to
the debtor. The absence of an arrearage or the mere issuance of an
income execution shall not constitute good cause. When an immediate
income execution or an execution for medical support enforcement is
issued by the support collection unit, such execution shall be issued
pursuant to section five thousand two hundred forty-one of the civil
practice law and rules, except that the provisions thereof relating to
mistake of fact, default and any other provisions which are not relevant
to the issuance of an execution pursuant to this paragraph shall not
apply; provided, however, that if the support collection unit makes an
error in the issuance of an execution pursuant to this paragraph, and
such error is to the detriment of the debtor, the support collection
unit shall have thirty days after notification by the debtor to correct
the error. Where permitted under federal law and where the record of the
proceedings contains such information, such order shall include on its
face the social security number and the name and address of the
employer, if any, of the person chargeable with support; provided,
however, that failure to comply with this requirement shall not
invalidate such order. When the court determines that there is good
cause not to immediately issue an income execution or when the parties
agree to an alternative arrangement as provided in this paragraph, the
court shall provide expressly in the order of support that the support
collection unit shall not issue an immediate income execution.
Notwithstanding any such order, the support collection unit shall issue
an income execution for support enforcement when the debtor defaults on
the support obligation, as defined in section five thousand two hundred
forty-one of the civil practice law and rules. When an income execution
for support enforcement is issued pursuant to this paragraph, such
income execution shall supersede any income deduction order previously
issued for enforcement of the same support order pursuant to subdivision
(c) of section five thousand two hundred forty-two of the civil practice
law and rules, whereupon such income deduction order shall cease to have
further effect.
(2) When the court issues an order of child support or combined child
and spousal support on behalf of persons other than those in receipt of
public assistance or in receipt of services pursuant to section one
hundred eleven-g of the social services law, the court shall issue an
income deduction order pursuant to subdivision (c) of section five
thousand two hundred forty-two of the civil practice law and rules at
the same time at which it issues the order of support. The court shall
enter the income deduction order unless the court finds and sets forth
in writing: (i) the reasons that there is good cause not to require
immediate income withholding; or (ii) that an agreement providing for an
alternative arrangement has been reached between the parties. Such
agreement may include a written agreement or an oral stipulation, made
on the record, that results in a written order. For purposes of this
paragraph, good cause shall mean substantial harm to the debtor. The
absence of an arrearage or the mere issuance of an income deduction
order shall not constitute good cause. Where permitted under federal law
and where the record of the proceedings contains such information, the
order shall include on its face the social security number and the name
and address of the employer, if any, of the person chargeable with
support; provided, however, that failure to comply with this requirement
shall not invalidate the order. When the court determines that there is
good cause not to immediately issue an income deduction order or when
the parties agree to an alternative arrangement as provided in this
paragraph, the court shall not issue an income deduction order. In
addition, the court shall make provisions for health insurance benefits
in accordance with the requirements of section four hundred sixteen of
this article.
(c) Any order of support issued on behalf of a child in receipt of
family assistance or child support enforcement services pursuant to
section one hundred eleven-g of the social services law shall be subject
to review and adjustment by the support collection unit pursuant to
section one hundred eleven-n of the social services law, section two
hundred forty-c of the domestic relations law and section four hundred
thirteen-a of this article. Such review and adjustment shall be in
addition to any other activities undertaken by the support collection
unit relating to the establishment, modification, and enforcement of
support orders payable to such unit.
2. The court shall require any person chargeable with support under
the provisions of article five-B of this act or under any support order
made pursuant to a reference from the supreme court under section two
hundred fifty-one of the domestic relations law or in any proceeding
under the provisions of article four, five or five-A of this act to
provide his or her social security number, the name and address of his
or her employer and to report any changes of employer or change in
employment status affecting compensation received, including rate of
compensation or loss of employment, to the support collection unit
designated by the appropriate social services district and to keep such
support collection unit advised of his or her current employer and
current employment status; provided, however, that a social security
number may be required only where permitted under federal law.
3. The amount of support determined in accordance with the statewide
child support standards, as set forth in section four hundred thirteen
of this act, shall constitute prima facie evidence of the ability of any
person chargeable with support in accordance with the provisions of
article three-A of the domestic relations law or under any support order
made pursuant to a reference from the supreme court under section two
hundred fifty-one of the domestic relations law or in any proceeding
under the provisions of article four, five or five-A of this chapter to
support or contribute such amount towards the support of his or her
children.
4. Any support order made by the court in any proceeding under the
provisions of article five-B of this act, pursuant to a reference from
the supreme court under section two hundred fifty-one of the domestic
relations law or under the provisions of article four, five or five-A of
this act shall include, on its face, a notice printed or typewritten in
a size equal to at least eight point bold type informing the respondent
that a willful failure to obey the order may, after court hearing,
result in commitment to jail for a term not to exceed six months for
contempt of court.
5. The court shall direct that a copy of any child support or combined
child and spousal support order issued by the court on or after the
first day of October, nineteen hundred ninety-eight, in any proceeding
pursuant to a reference from the supreme court under section two hundred
fifty-one of the domestic relations law or under the provisions of
article four, five, five-A or five-B of this act be provided promptly to
the state case registry established pursuant to subdivision four-a of
section one hundred eleven-b of the social services law.
6. Any order of support made by the court shall provide for health
insurance benefits pursuant to section four hundred sixteen of this
article.
S 441. Order dismissing petition. If the allegations of a petition
under this article are not established by competent proof, the court
shall dismiss the petition. If a neglect petition was filed in the
support proceeding, the court retains jurisdiction over the neglect
petition whether or not it dismisses the support petition.
S 442. Order of support by a spouse. If the court finds after a
hearing that a husband or wife is chargeable under section four hundred
twelve with the support of his or her spouse and is possessed of
sufficient means or able to earn such means, the court shall make an
order requiring the husband or wife to pay weekly or at other fixed
periods a fair and reasonable sum for or towards the support of the
other spouse. The court shall require the spouse chargeable with
support to make his or her residence known at all times should he or she
move from the address last known to the court by reporting such change
to the support collection unit designated by the appropriate social
services district. Failure to report such change shall subject him or
her to the provisions of section four hundred fifty-four of this act.
S 443. Order of support by parent. If the court finds after a hearing
that a parent is chargeable under section four hundred thirteen of this
act with the support of his or her child and is possessed of sufficient
means or able to earn such means, the court shall make an order
requiring the parent to pay weekly or at other fixed periods a fair and
reasonable sum for or towards the support of such child. Where permitted
under federal law and where the record of the proceedings contains such
information, the court shall also require the social security number of
such parent to be affixed to such order; provided, however, that no such
order shall be invalid because of the omission of such number. Where the
record of the proceedings contains such information, such order shall
also include on its face the name and address of the employer, if any,
of the person chargeable with support provided, however, that failure to
comply with this requirement shall not invalidate such order. Where the
order of child support or combined child and spouse support is made on
behalf of persons in receipt of public assistance or in receipt of
services pursuant to section one hundred eleven-g of the social services
law, the court shall require each party to provide, and update upon any
change, the following information to the court by reporting such change
to the support collection unit designated by the appropriate social
services district: social security number, residential and mailing
addresses, telephone number, driver`s license number; and name, address
and telephone number of the parties` employers. Due process
requirements for notice and service of process for subsequent hearings
are met, with respect to such party, upon sending written notice by
first class mail to the most recent residential address on record with
the support collection unit; or by sending by first class mail written
notice to the most recent employer address on record with the support
collection unit, if a true copy thereof also is sent by first class mail
to the most recent residential address on record with the support
collection unit. Any such order issued on or after the first day of
October, nineteen hundred ninety-nine shall also include, where
available, the social security number of each child on whose behalf
support has been ordered. Failure to report such changes shall subject
the parent to the provisions of section four hundred fifty-four of this
act.
S 445. Order of support by relative; duration. (a) If the court finds
after a hearing that a relative, including a step-parent, should be held
responsible under section four hundred fifteen for support, the court in
its discretion may make an order requiring such person to contribute a
fair and reasonable sum for the support of such person.
(b) For good cause shown, the court may at any time terminate or
modify an order made under this section.
S 446. Order of protection. The court may make an order of protection
in assistance or as a condition of any other order made under this part.
The order of protection may set forth reasonable conditions of behavior
to be observed for a specified time by the petitioner or respondent or
both. No order of protection may direct any party to observe conditions
of behavior unless the party requesting the order of protection has
served and filed a petition or counter-claim in accordance with section
one hundred fifty-four-b of this act. Such an order may require the
petitioner or the respondent:
(a) to stay away from the home, school, business or place of
employment of any other party, the other spouse, the other parent or the
child, and to stay away from any other specific location designated by
the court;
(b) to permit a parent, or a person entitled to visitation by a court
order or a separation agreement, to visit the child at stated periods;
(c) to refrain from committing a family offense, as defined in
subdivision one of section eight hundred twelve of this act, or any
criminal offense against the child or against the other parent or
against any person to whom custody of the child is awarded, or from
harassing, intimidating or threatening such persons;
(d) to permit a designated party to enter the residence during a
specified period of time in order to remove personal belongings not in
issue in this proceeding or in any other proceeding or action under this
act or the domestic relations law;
(e) to refrain from acts of commission or omission that create an
unreasonable risk to the health, safety or welfare of a child;
(f) to participate in an educational program and to pay the costs
thereof if the person has the means to do so, provided however that
nothing contained herein shall be deemed to require payment of the costs
of any such program by the state or any political subdivision thereof;
(g) to provide, either directly or by means of medical and health
insurance, for expenses incurred for medical care and treatment arising
from the incident or incidents forming the basis for the issuance of the
order.
(h) to observe such other conditions as are necessary to further the
purposes of protection.
The court may also award custody of the child, during the term of the
order of protection to either parent, or to an appropriate relative
within the second degree. Nothing in this section gives the court power
to place or board out any child or to commit a child to an institution
or agency. In making orders of protection, the court shall so act as to
insure that in the care, protection, discipline and guardianship of the
child his religious faith shall be preserved and protected.
Notwithstanding the foregoing provisions, an order of protection, or
temporary order of protection where applicable, may be entered against a
former spouse and persons who have a child in common, regardless whether
such persons have been married or have lived together at any time.
S 447. Order of visitation. (a) In the absence of an order of custody
or of visitation entered by the supreme court, the court may make an
order of custody or of visitation, in accordance with subdivision one of
section two hundred forty of the domestic relations law, requiring one
parent to permit the other to visit the children at stated periods
without an order of protection, even where the parents are divorced and
the support order is for a child only.
(b) Any order of the family court under this section shall terminate
when the supreme court makes an order of custody or of visitation
concerning the children, unless the supreme court continues the order of
the family court.
S 448. Enforcement by income deduction. Orders of support shall be
enforceable pursuant to section fifty-two hundred forty-one or fifty-two
hundred forty-two of the civil practice law and rules, or in any other
manner provided by law. The family court is hereby authorized to enter
an order with respect to an income deduction, in accordance with the
provisions of section fifty-two hundred forty-two of the civil practice
law and rules, in any support proceeding under the provisions of article
five-B of this act under any support order made pursuant to a reference
from the supreme court under section two hundred fifty-one of the
domestic relations law or in any support proceeding under the provisions
of article four, five or five-A of this act.
S 449. Effective date of order of support. 1. Any order of spousal
support made under this article shall be effective as of the date of the
filing of the petition therefor, and any retroactive amount of support
due shall be paid in one sum or periodic sums, as the court shall
direct, to the petitioner, to the custodial parent or to third persons.
Any amount of temporary support which has been paid shall be taken into
account in calculating any amount of retroactive support due.
2. Any order of child support made under this article shall be
effective as of the earlier of the date of the filing of the petition
therefor, or, if the children for whom support is sought are in receipt
of public assistance, the date for which their eligibility for public
assistance was effective. Any retroactive amount of support due shall be
support arrears/past-due support and shall be paid in one sum or
periodic sums, as the court shall direct, to the petitioner, to the
custodial parent or to third persons. Any amount of temporary support
which has been paid shall be taken into account in calculating any
amount of retroactive support due. In addition, such retroactive child
support shall be enforceable in any manner provided by law including,
but not limited to, an execution for support enforcement pursuant to
subdivision (b) of section fifty-two hundred forty-one of the civil
practice law and rules.
