In New York, child support can be enforced either by administrate action or by court action. These methods are not exclusive, and in fact, it is common for the local child support enforcement agency to seize income tax refunds, suspend driver’s licenses, and take other action even while a child support action is pending in court.
Administrative Enforcement Of Support Orders
A custodial parent who obtains a child support order has the right to have payments made through the Support Collection Unit. The Unit, which is part of the Office of Child Support Enforcement, will keep track of payments, and if the payor falls behind, the Unit can take various actions on its own to collect outstanding child support payments without going to court. These include:
- Adding up to 50% to the order if the payor has accumulated arrears .
- If the payor is in arrears in amount of $500 or more, the Unit can intercept his tax refund.
- If the payor owes arrears in amount of $600, the Unit can intercept lottery winnings
- If the payor owes at least $300 and the amount past due is two months child support or more, the Unit may seize monies in bank accounts, or other assets, however if the payor is having child support deducted from his check, he must have more than $3000 in the bank.
- If the payor owes at least $500, and the amount owed is at least 4 months of child support, the matter can be referred to the New York State Department of Taxation and Finance for identification and seizure of assets.
- If the payor owes at least $2500 , the State Department can deny him a new passport or having his current passport renewed.
- If the payor owes at least 4 months worth of child support, the Unit may deny the payor a business or professional license, the renewal of same, or can place limitations on the use of the license.
- The Unit can also garnish unemployment insurance benefits
Enforcement Of Child Support By The Court
The child’s parent or legal custodian can file a violation petition in Court. The great majority of violation cases are heard in the Family Court. In some situations the violation cases can be filed in the Supreme Court.
In general, most Supreme Court Judges are reluctant to order incarceration for child support violations, unless the payor (and the courts) have first exhausted all other possible remedies, including attachment of assets, such as cars, bank accounts, stock brokerage accounts, homes, and also attempted to get wage assignments if the payor has a job . The family court, on the other hand, is not shy about incarcerating parents who refuse to pay child support.
I had one case where the payor was faced with a large amount of unpaid child support, had lost his job, and the support magistrate who was presiding over the case in Family Court was very unsympathetic to him. He had his attorney file a downward modification case in Supreme Court and then made a successful motion in Supreme Court to have the violation case transferred to Supreme Court , to be heard by the same judge, who was much more sympathetic.
Violation petitions can also be filed by the Office of Child Support Enforcement, and, if the payor is on probation for failure to pay child support, by the Department of Probation.
How The Family Court Handles Enforcement Cases
A custodial parent or other person who has a child support order which is not being obeyed can file a violation petition in the Family Court. Child support violation cases are heard by support magistrates. At the first appearance the petitioner will be asked if he or she is seeking incarceration, and if the answer is in the affirmative, the payor or respondent, as he is referred to in family court, will be assigned a free attorney.
Violations can be filed when the respondent fails to pay court ordered payments for his share of child care expenses or court ordered payments of health insurance premiums or his share of unreimbursed health care expenses of the child or children.
Many violation cases are resolved by the respondent making a good faith lump sum payment against unpaid arrears, or back child support. Where the respondent has genuine difficulties finding a job, but he finds a job while the violation case is still in court, the petitioner may be satisfied once a wage garnishment order begins and payments are starting to come in.
Many cases have to be tried. Under the case of Powers v Powers, once the petitioner shows a failure to pay child support the burden of proof shifts to the respondent to prove to the court that he was unable to make payments, not that he was unwilling to make payments. In most cases, this is a difficult burden for the respondent to meet.
After a trial, the support magistrate is required to make written findings as to whether or not the failure to pay was willful, and if so, what remedies the magistrate recommends. Possible remedies include the following:
- The court can order a money judgment for the amount owed. Money judgements are good for 20 years and earn interest at 9% per annum.
- The court can place the respondent on probation.
- The court can order the respondent to join and cooperate with the STEP work program, a free program which assists people in finding jobs. However this may only be available to respondents who reside in New York state.
- The court can order incarceration of up to 6 months.
- The court can order incarceration on weekends only. In all cases where incarceration is ordered, the judge is required to set a “purge” amount, which means the respondent can bail himself out by making a lump sum payment in that amount.
- If the respondent’s failure to pay is due to chronic alcohol or drug abuse, the court can mandate a residential treatment program as an alternative to incarceration.
- The court can order a referral to the District Attorney or to the US Attorney’s office for criminal prosecution, as willful failure to pay child support is a federal crime. However these referrals are extremely rare.
Confirmation Hearings Before A Judge
If the magistrate finds willfulness, he is required to refer the case, along with his written findings and recommendation, if any, to a family court judge. Only a judge can order incarceration. Before the pandemic, this was typically done the same day, as there have been situation where the respondent disappears when he suspects jail is imminent. The Judge will usually confirm the findings of willfulness unless he is persuaded by arguments made to him.
In some situations, judges have been persuaded to conduct de novo hearings on the issue of willfulness. If the Judge orders incarceration, he is required to set a purge amount. The respondent may be allowed to call witness or submit evidence to convince the judge not to lock him up, or to convince the judge to set a low or reasonable purge amount. Sometimes, after confirming willfulness, the court will adjourn the case and give the respondent additional time to pay. In this situation the respondent is usually given a specific amount he is required to pay to avoid jail.