S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    457
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              January 9, 2023
                                ___________
 
 Introduced by M. of A. EPSTEIN, SEAWRIGHT, GONZALEZ-ROJAS, SIMON -- read
   once and referred to the Committee on Judiciary
 
 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.
                                                            LBD00006-01-3
              

 A. 457                              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,
 A. 457                              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.