- Consolidated Laws - Family Court
PART 5
COMPLIANCE WITH ORDERS
Section 451. Continuing jurisdiction.
453. Petition; violation of court order.
454. Powers of the court on violation of a support order.
455. Commitment.
456. Probation.
457. Order of sequestration on failure to obey support order.
458-a. Enforcement of arrears; Suspension of driving privileges.
458-b. Child support proceedings and enforcement of arrears;
suspension of state professional, occupational and
business licenses.
458-c. Child support proceedings and enforcement of arrears;
suspension of recreational licenses.
459. Additional arrears.
460. Entry and docketing of a money judgment.
S 451. Continuing jurisdiction. 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 application 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 in one
lump sum or periodic sums, as the court directs, taking into account any
amount of support which has been paid. 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.
S 453. Petition; violation of court order. Proceedings under this part
shall be originated by the filing of a petition containing an allegation
that the respondent has failed to obey a lawful order of this court.
(a) Persons who may originate proceedings. The original petitioner,
the support collection unit, or any person to whom the order is payable
expressly or who may originate proceedings under section four hundred
twenty-two of this article may originate a proceeding under this part.
(b) Issuance of summons. Upon the filing of a petition under this
part, the court may cause a copy of the petition and a summons to be
issued, requiring the respondent to show cause why he should not be
dealt with in accordance with section four hundred fifty-four of this
part. The summons shall include on its face, printed or typewritten in a
size equal to at least eight point bold type, a notice, warning the
respondent that a failure to appear in court may result in immediate
arrest, and that, after an appearance in court, a finding that the
respondent willfully failed to obey the order may result in commitment
to jail for a term not to exceed six months, for contempt of court. The
notice shall also advise the respondent of the right to counsel, and the
right to assigned counsel, if indigent.
(c) Service of summons. Upon the issuance of a summons, the provisions
of section four hundred twenty-seven of this article shall apply, except
that no order of commitment may be entered upon the default in
appearance by the respondent if service has been made by mail alone
notwithstanding proof of actual notice of the commencement of the
proceeding.
(d) Issuance of warrant. The court may issue a warrant, directing that
the respondent be arrested and brought before the court, pursuant to
section four hundred twenty-eight of this article.
S 454. Powers of the court on violation of a support order. 1. If a
respondent is brought before the court for failure to obey any lawful
order of support and if, after hearing, the court is satisfied by
competent proof that the respondent has failed to obey any such order,
the court may use any or all of the powers conferred upon it by this
part. The court has the power to use any or all enforcement powers in
every proceeding brought for violation of a court order under this part
regardless of the relief requested in the petition.
2. Upon a finding that a respondent has failed to comply with any
lawful order of support:
(a) the court shall enter a money judgment under section four hundred
sixty of this article; and
(b) the court may make an income deduction order for support
enforcement under section fifty-two hundred forty-two of the civil
practice law and rules;
(c) the court may require the respondent to post an undertaking under
section four hundred seventy-one of this article;
(d) the court may make an order of sequestration under section four
hundred fifty-seven of this article.
(e) the court may suspend the respondent`s driving privileges pursuant
to section four hundred fifty-eight-a of this article.
(f) the court may suspend the respondent`s state professional or
business license pursuant to section four hundred fifty-eight-b of this
article;
(g) the court may suspend the recreational license or licenses of the
respondent pursuant to section four hundred fifty-eight-c of this
article.
(h) the court may require the respondent, if the persons for whom the
respondent has failed to pay support are applicants for or recipients of
public assistance, to participate in work activities as defined in title
nine-B of article five of the social services law. Those respondents
ordered to participate in work activities need not be applicants for or
recipients of public assistance.
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
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
criminal procedure law.
4. The court shall not deny any request for relief pursuant to this
section unless the facts and circumstances constituting the reasons for
its determination are set forth in a written memorandum of decision.
* 5. The court may review a support collection unit`s denial of a
challenge 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 department of social services intends to
notify the department of motor vehicles that the support obligor`s
driving 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.
* NB Repealed June 30, 2003
S 455. Commitment. 1. The court may at any time suspend an order of
commitment upon such reasonable conditions, if any, as the court deems
appropriate to carry out the purposes of this article without placing
the respondent on probation or may place him on probation under such
conditions as the court may determine and in accordance with the
provisions of the criminal procedure law. For good cause shown, the
court may at any time revoke the suspension of the order of commitment.
2. Except as provided in article five-B of this act, any respondent
against whom an order of commitment has been issued, if financially
unable to comply with any lawful order issued under this article, upon
such notice to such parties as the court may direct, may make
application to the court for an order relieving him or her of payments
directed in such order and the commitment order. The court, upon the
hearing on such application, if satisfied by competent proof that the
respondent is financially unable to comply with such order may, upon a
showing of good cause until further order of the court, modify such
order and relieve the respondent from the commitment order. No such
modification shall reduce or annul unpaid sums or installments accrued
prior to the making of such application unless the defaulting party
shows good cause for failure to make application for relief from the
order directing payment prior to the accrual of such arrears. Such
modification may increase the amount to be paid pursuant to a lawful
order issued under this article nunc pro tunc based on newly discovered
evidence.
3. Whenever, upon application to the court by an interested party, it
appears to the satisfaction of the court that any person, who has been
relieved totally or partially from making any payment pursuant to the
provisions of this section, is no longer financially unable to comply
with the order to make such payment, then the court may, upon a showing
of good cause modify or revoke its order relieving such person totally
or partially from making such payment.
4. Notwithstanding any inconsistent provision of this article, the
provision of any order issued under this article requiring the payment
of money by one spouse for the support of the other shall be suspended
and inoperative so far as punishment for contempt is concerned during
the period in which the defaulting spouse is imprisoned pursuant to any
order adjudging him or her in contempt for failure to comply with any
provision in such order.
5. Any respondent may assert his or her financial inability to comply
with the directions contained in an order issued under this article or
an order or judgment entered in a matrimonial action or in an action for
the enforcement in this state of a judgment in a matrimonial action
rendered in another state, as a defense in a proceeding instituted
against him or her under subdivision one of section four hundred
fifty-four of this article or under the judiciary law to punish him or
her for failure to comply with such directions. If the court, upon the
hearing of such contempt proceeding, is satisfied by competent proof
that the respondent is financially unable to comply with such order or
judgment, it may, in its discretion, until further order of the court,
make an order modifying such order or judgment and denying the
application to punish the respondent for contempt; provided, however,
that if an order or judgement for child support issued by another state
is before the court solely for enforcement, the court may only modify
the order in accordance with article five-B of this act. No such
modification shall reduce or annul arrears accrued prior to the making
of such application for modification unless the defaulting party shows
good cause for failure to make application for relief from the order or
judgment directing such payment prior to the accrual of such arrears.
Such modification may increase such support nunc pro tunc as of the date
of the application based on newly discovered evidence. Any retroactive
amount of support due shall be paid in one sum or periodic sums, as the
court shall direct, taking into account any amount of temporary support
which has been paid.
S 456. Probation. (a) No person may be placed on probation under this
article unless the court makes an order to that effect, either at the
time of the making of an order of support or under section four hundred
fifty-four. The period of probation may continue so long as an order of
support, order of protection or order of visitation applies to such
person.
(b) The court may at any time, where circumstances warrant it, revoke
an order of probation. Upon such revocation, the probationer shall be
brought to court, which may, without further hearing, make any order
that might have been made at the time the order of probation was made.
S 457. Order of sequestration on failure to obey support order. If an
order of support is made under this article and the respondent has
failed to obey it and either leaves or threatens to leave the state, the
court on application may issue an order of sequestration of his property
within the state, providing that such property may be taken, sequestered
and applied in like manner as is provided in section four hundred
twenty-nine.
S 458-a. Enforcement of arrears; Suspension of driving privileges.
(a) If the respondent has accumulated support arrears equivalent to or
greater than the amount of support due pursuant to court order for a
period of four months, the court may order the department of motor
vehicles to suspend the respondent`s driving privileges, and if such
order issues, the respondent may apply to the department of motor
vehicles for a restricted use license pursuant to section five hundred
thirty of the vehicle and traffic law. The court may at any time upon
payment of arrears or partial payment of arrears by the respondent order
the department of motor vehicles to terminate the suspension of
respondent`s driving privileges. For purposes of determining whether a
support obligor has accumulated support arrears equivalent to or greater
than the amount of support due for a period of four months, the amount
of any retroactive support, other than periodic payments of retroactive
support which are past due, shall not be included in the calculation of
support arrears pursuant to this section.
(b) If the respondent, after receiving appropriate notice, fails to
comply with a summons, subpoena or warrant relating to a paternity or
child support proceeding, the court may order the department of motor
vehicles to suspend the respondent`s driving privileges. The court may
subsequently order the department of motor vehicles to terminate the
suspension of the respondent`s driving privileges; however, the court
shall order the termination of such suspension when the court is
satisfied that the respondent has fully complied with the requirements
of all summonses, subpoenas and warrants relating to a paternity or
child support proceeding. Nothing in this subdivision shall authorize
the court to terminate the respondent`s suspension of driving privileges
except as provided in this subdivision.
(c) The provisions of subdivision (a) of this section shall not apply
to:
(i) respondents who are receiving public assistance or supplemental
security income; or
(ii) respondents whose income as defined by subparagraph five of
paragraph (b) of subdivision one of section four hundred thirteen of
this act falls below the self-support reserve as defined by subparagraph
six of paragraph (b) of subdivision one of section four hundred thirteen
of this act; or
(iii) respondents whose income as defined by subparagraph five of
paragraph (b) of subdivision one of section four hundred thirteen of
this act remaining after the payment of the current support obligation
would fall below the self-support reserve as defined by subparagraph six
of paragraph (b) of subdivision one of section four hundred thirteen of
this act.
(d) The court`s discretionary decision not to suspend driving
privileges shall not have any res judicata effect or preclude any other
agency with statutory authority to direct the department of motor
vehicles to suspend driving privileges.
S 458-b. Child support proceedings and enforcement of arrears;
suspension of state professional, occupational and business licenses.
(a) If the respondent has accumulated support arrears equivalent to or
greater than the amount of support due pursuant to court order for a
period of four months and the court has determined that the respondent
is licensed, permitted or registered by or with a board, department,
authority or office of this state to conduct a trade, business,
profession or occupation, the court may order such board, department,
authority or office to commence proceedings as required by law regarding
the suspension of such license, permit, registration or authority to
practice and to inform the court of the actions it has taken pursuant to
such proceedings. For purposes of determining whether a respondent has
accumulated support arrears equivalent to or greater than the amount of
support due for a period of four months, the amount of any retroactive
support, other than periodic payments of retroactive support which are
past due, shall not be included in the calculation of support arrears
pursuant to this section.
(b) If the respondent after receiving appropriate notice, fails to
comply with a summons, subpoena or warrant relating to a paternity or
child support proceeding, and the court has determined that the
respondent is licensed, permitted or registered by or with a board,
department, authority or office of this state or one of its political
subdivisions or instrumentalities to conduct a trade, business,
profession or occupation, the court may order such board, department,
authority or office to commence proceedings as required by law regarding
the suspension of such license, permit, registration or authority to
practice and to inform the court of the actions it has taken pursuant to
such proceeding. The court may subsequently order such board,
department, authority or office to terminate the suspension of the
respondent`s license, permit, registration or authority to practice;
however, the court shall order the termination of such suspension when
the court is satisfied that the respondent has fully complied with the
requirements of all summonses, subpoenas and warrants relating to a
paternity or child support proceeding.
(c) If the court determines that the suspension of the license, permit
or registration of the respondent would create an extreme hardship to
either the licensee, permittee or registrant or to persons whom he or
she serves, the court may, in lieu of suspension, suspend the order
described in subdivision (a) of this section to the licensing entity for
a period not to exceed one year. If on or before the expiration of this
period the court has not received competent proof presented at hearing
that the respondent is in full compliance with his or her support
obligation and has fully complied with all summons, subpoenas and
warrants relating to a paternity or child support proceeding, the court
shall cause the suspension of the order to be removed and shall further
cause such order to be served upon the licensing entity.
(d) The provisions of subdivision (a) of this section shall not apply
to:
(i) respondents who are receiving public assistance or supplemental
security income; or
(ii) respondents whose income as defined by subparagraph five of
paragraph (b) of subdivision one of section four hundred thirteen of
this act falls below the self-support reserve as defined by subparagraph
six of paragraph (b) of subdivision one of section four hundred thirteen
of this act; or
(iii) respondents whose income as defined by subparagraph five of
paragraph (b) of subdivision one of section four hundred thirteen of
this act remaining after the payment of the current support obligation
would fall below the self-support reserve as defined by subparagraph six
of paragraph (b) of subdivision one of section four hundred thirteen of
this act.
(e) The court shall inform the respondent that competent proof for
purposes of proving payment to a licensing entity shall be a certified
check, notice issued by the court, or notice from a support collection
unit where the order is for payment to the support collection unit.
S 458-c. Child support proceedings and enforcement of arrears;
suspension of recreational licenses. (a) If the respondent has
accumulated support arrears equivalent to or greater than the amount of
support due pursuant to court order for a period of four months, the
court may order any agency responsible for the issuance of a
recreational license to suspend or refuse to reissue a license to the
respondent, or deny application for such license by the respondent. For
purposes of determining whether a respondent has accumulated support
arrears equivalent to or greater than the amount of support due for a
period of four months, the amount of any retroactive support, other than
periodic payments of retroactive support which are past due, shall not
be included in the calculation of support arrears pursuant to this
section.
(b) If the respondent, after receiving appropriate notice, fails to
comply with a summons, subpoena, or warrant relating to a paternity or
child support proceeding, the court may order any agency responsible for
the issuance of a recreational license to suspend or to refuse to
reissue a license to the respondent or to deny application for such
license by the respondent. The court may subsequently order such agency
to terminate the adverse action regarding the respondent`s license;
however, the court shall order the termination of such suspension or
other adverse action when the court is satisfied that the respondent has
fully complied with the requirements of all summons, subpoenas, and
warrants relating to a paternity or child support proceeding.
(c) The provisions of subdivision (a) of this section shall not apply
to:
(i) respondents who are receiving public assistance or supplemental
security income; or
(ii) respondents whose income as defined by subparagraph five of
paragraph (b) of subdivision one of section four hundred thirteen of
this act falls below the self-support reserve as defined by subparagraph
six of paragraph (b) of subdivision one of section four hundred thirteen
of this article; or
(iii) respondents whose income as defined by subparagraph five of
paragraph (b) of subdivision one of section four hundred thirteen of
this article remaining after the payment of the current support
obligation would fall below the self-support reserve as defined by
subparagraph six of paragraph (b) of subdivision one of section four
hundred thirteen of this article.
S 459. Additional arrears. If a respondent has failed to obey a lawful
order under this article the party seeking enforcement may amend the
petition to include any additional arrears which have accrued from the
commencement of such enforcement proceeding up to the date of the
hearing, provided that written notice of the intention to so amend has
been given eight days previously.
S 460. Entry and docketing of a money judgment. 1. Where the family
court enters an order:
(a) requiring any party to provide for the support of another party,
or child, or both; or
(b) providing for the support or maintenance of a spouse or former
spouse, or child, or both, on a referral from the supreme court in an
action for divorce, separation, annulment or a proceeding for the
determination of the custody of a minor by writ of habeas corpus or by
petition and order to show cause; or
(c) enforcing or modifying an order or decree of a court of competent
jurisdiction not of the state of New York providing for the support of
the petitioner and/or child support; or
(d) awarding support under article five-B of this act; or
(e) awarding counsel fees under this act;
and the party defaults in paying any sum of money due as required by the
order directing the payment thereof, the court, without regard to the
amount due, shall make an order directing the entry of judgment for the
amount of child support arrears, together with costs and disbursements.
The court shall make an order directing the entry of judgment for the
amount of arrears of any other payments so directed, together with costs
and disbursements, unless the defaulting party shows good cause for
failure to make application for relief from the judgment or order
directing such payment prior to the accrual of such arrears. The court
shall not make an order reducing or cancelling such arrears unless the
facts and circumstances constituting good cause are set forth in a
written memorandum of decision. The application for such order shall be
made upon such notice to the party or other person as the court may
direct. Such judgment shall provide for the payment of interest on the
amount of any arrears if the default was willful, in that the defaulting
party knowingly, consciously and voluntarily disregarded the obligation
under a lawful court order. Such interest shall be computed from the
date on which the payment was due, at the prevailing rate of interest on
judgments as provided in the civil practice law and rules.
2. A certified copy of the order directing the entry of a money
judgment shall be entered in the office of the clerk of the county in
which the proceeding was commenced. Said clerk shall docket the same in
the book kept by him for the docketing of judgments as if said order
were a transcript of a judgment directed for the amount designated in
the order. An order docketed under this subdivision shall have the same
effect as a docketed judgment entered in the supreme court within the
county where it is docketed and may be enforced by execution or in any
other manner provided by law for the collection of a money judgment.
3. The relief provided for herein shall be in addition to any and
every other remedy which may be provided under the law including, but
not limited to, the remedies provided under the provisions of section
four hundred fifty-four of this act and sections fifty-two hundred
forty-one and fifty-two hundred forty-two of the civil practice law and
rules; provided that when a judgment for such arrears has been entered
pursuant to this section, such judgment shall not thereafter be subject
to modification or be affected by the provisions of section four hundred
sixty-two of this act. After the entry of any order hereunder, the
judgment creditor shall not thereafter be entitled to collect, by any
form of remedy, any greater portion of such arrears than that
represented by the order so entered.
