NY State Senate Bill 2023-S9696

Current Bill Status - In Assembly 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
Jun 04, 2024	referred to children and families delivered to assembly passed senate ordered to third reading cal.1729 committee discharged and committed to rules
May 21, 2024	referred to children and families

Votes

- Jun 4, 2024 - Floor Vote
  S9696
  
  56
  
  Aye
  
  5
  
  Nay
  
  0
  
  Absent
  
  1
  
  Excused
  
  0
  
  Abstained
  - - Floor Vote: Jun 4, 2024
      
      aye (56)
      
      Addabbo Jr.
      
      Ashby
      
      Bailey
      
      Breslin
      
      Brisport
      
      Brouk
      
      Canzoneri-Fitzpatrick
      
      Chu
      
      Cleare
      
      Comrie
      
      Cooney
      
      Felder
      
      Fernandez
      
      Gallivan
      
      Gianaris
      
      Gonzalez
      
      Gounardes
      
      Harckham
      
      Helming
      
      Hinchey
      
      Hoylman-Sigal
      
      Jackson
      
      Kavanagh
      
      Krueger
      
      Lanza
      
      Liu
      
      Mannion
      
      Martinez
      
      Martins
      
      Mattera
      
      May
      
      Mayer
      
      Murray
      
      Myrie
      
      O'Mara
      
      Ortt
      
      Palumbo
      
      Parker
      
      Persaud
      
      Ramos
      
      Rivera
      
      Rolison
      
      Ryan
      
      Salazar
      
      Sanders Jr.
      
      Scarcella-Spanton
      
      Sepúlveda
      
      Serrano
      
      Skoufis
      
      Stavisky
      
      Stewart-Cousins
      
      Tedisco
      
      Thomas
      
      Webb
      
      Weber
      
      Weik
      
      nay (5)
      
      Borrello
      
      Griffo
      
      Oberacker
      
      Rhoads
      
      Stec
      
      excused (1)
      
      Walczyk
  Jun 4, 2024 - Rules Committee Vote
  S9696
  
  16
  
  Aye
  
  0
  
  Nay
  
  4
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Rules Committee Vote: Jun 4, 2024
      
      aye (16)
      
      Addabbo Jr.
      
      Bailey
      
      Breslin
      
      Comrie
      
      Fernandez
      
      Gallivan
      
      Gianaris
      
      Krueger
      
      Lanza
      
      Liu
      
      Mayer
      
      Ortt
      
      Parker
      
      Sepúlveda
      
      Stewart-Cousins
      
      Thomas
      
      aye wr (4)
      
      Griffo
      
      Helming
      
      O'Mara
      
      Stec

2023-S9696 (ACTIVE) - Details

Current Committee:: Assembly Children And Families
Law Section:: Family Court Act
Laws Affected:: Amd §§249, 262, 453, 522 & 524, Fam Ct Act

2023-S9696 (ACTIVE) - Summary

Relates to the right to counsel in certain family court proceedings regarding violations of orders of child support and to establish paternity or parentage in the family court.

2023-S9696 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S9696

SPONSOR: BRISPORT
 
TITLE OF BILL:

An act to amend the family court act, in relation to the right to coun-
sel in proceedings regarding violations of orders of child support and
to establish paternity or parentage in the family court

2.  
SOURCE OF BILL

This bill is being introduced at the request of the Judiciary, upon the
recommendation of the Chief Administrative Judge's Family Court Advisory
and Rules Committee.

3.  
PURPOSE OF BILL

This bill fills two long-standing gaps in the provision of legal repre-
sentation to parties in child support violation, paternity, and parent-
age proceedings.

4.

SUMMARY OF PROVISIONS

Section 1 of the bill amends Family Court Act § 249(a), set out first,
to provide a right to an appointed attorney for the child where a minor
is a party to a child support, paternity, or Uniform Interstate Family
Support Act proceeding.

Section 2 of this bill amends Family Court § 249(a), set out second, to
provide a right to an appointed attorney for the child where a minor is
a party to a child support, paternity, or Uniform Interstate Family
Support Act proceeding.

Section 3 of the bill amends Family Court Act §§ 262(a)(vi) and (viii)
to provide a right to appointed counsel for parties who cannot afford to
obtain counsel in proceedings regarding contempt, willful violation of a
court order, paternity and parentage, including noticed parties who
intervene in parentage proceedings.

Section 4 of the bill amends Family Court Act § 453 to provide a right
to counsel (or, if the party is a minor, an attorney for the child) in
proceedings regarding willful child support violations.

Section 5 of the bill amends Family Court Act § 522 to provide a right
to counsel for petitioners (or, if a petitioner is a minor, an attorney
for the child) in paternity proceedings.

Section 6 of the bill amends Family Court Act § 524 to provide a right
to counsel for respondents (or, if the respondent is a minor, an attor-
ney for the child) in paternity proceedings.

Section 7 of the bill provides that, if enacted, the bill shall take
effect 90 days after it becomes a law.

5. Justification

Establishment of a right to counsel under Family Court Act § 262 in 1975
for adults in Family Court, including the right to appointed counsel for

those who cannot afford an attorney, was accompanied by legislative
findings underscoring the importance of this fundamental right:

Persons involved in certain family court proceedings may face the
infringements of fundamental interests and rights, including the loss of
a child's society and the possibility of criminal charges, and therefore
have a constitutional right to counsel in such proceedings.  Counsel is
often indispensable to a practical realization of due process of law and
may be helpful to the court in making reasoned determinations of fact
and proper orders of disposition. The purpose of this part is to provide
a means for implementing the right to assigned counsel for indigent
persons in proceedings under this act.

Family Court Act § 261.

Through a patchwork of enhancements since 1975, Family Court Act § 262
has been amended to delineate numerous categories of litigants whose
rights are so important that the Legislature has determined they are
entitled to have counsel assigned at public expense if they cannot
afford attorneys. Several of these categories encompass all parties to
the litigation, including, among others, all parties to family offense
proceedings under Article 8 of the Family Court Act, a parent seeking
child custody or contesting "substantial infringement" of custodial
rights, and, in destitute minor cases under Article 10-C of the Family
Court Act, any parents, caretakers, and "interested adults."

However, Article 5 of the Family Court Act is an outlier in requiring
only that counsel be appointed for the respondent in a paternity
proceeding, regardless of whether the respondent is an alleged father or
a birth parent defending an affirmative action by an alleged father.
Likewise, a right to counsel is provided only for respondents in
contempt and willful violation proceedings, although petitioners in such
cases may have significant perspectives to convey to the court. It is
anomalous not to provide a right to counsel for both parties in this
type of litigation, as both parties have fundamental interests and
rights regarding determinations of child support.  paternity, and
parentage with respect to children. Finally, although teenagers have
often been parties in these proceedings, both as petitioners and
respondents, the current statutes do not clarify the applicability of
the attorney for the child statutes to them.

The rights that are being protected in a proceeding under Article 5 -
either establishing or defending against the establishment of paternity
(and increasingly, maternity) - are fundamentally the same.  There is no
reason to provide counsel to a respondent in a paternity case, who may
be an alleged father or a birth parent, but deny counsel to the same
person when he or she is a petitioner. In addition, many paternity and
parentage proceedings involve third persons such as spouses of birth
parents and earlier signatories of acknowledgments of parentage, whose
status as parents are at risk in these proceedings and who are equally
in need of counsel. Similarly, in Uniform Interstate Child Support Act
cases under Article 5-B of the Family Court Act, there are no procedural
differences in parentage determinations that would justify the denial of
counsel to litigants, especially in light of the extra challenges often
posed by litigation involving parties in different jurisdictions.

Finally, Article 5-C parentage proceedings present special challenges to
litigants. While persons acting as surrogates have a right to have coun-
sel paid for by intended parents (see Family Court Act § 581-603), this
is not the case for the other individuals who are provided notice
regarding the often-complex Child-Parent Security Act cases, including
spouses of birth parents, earlier signatories of acknowledgments of
parentage, and alleged non-anonymous donors.  Instead of the relative
certainty of DNA testing that guides determinations in Article 5
proceedings, for example, litigants in cases involving surrogacy agree-
ments or assisted reproduction under Article 5-C must marshal evidence,
inter alias, regarding whether the parties agreed to parentage at the
time of conception and whether the person who provided genetic material
intended to be a donor, rather than a parent. All are potentially in
need of experienced counsel to protect their rights and interests.

6. Prior legislative history

None. This is a new proposal.

7. Fiscal implications

This bill would have no meaningful State fiscal impact.

8. Effective date

This bill would take effect on the 90th day after enactment.

2023-S9696 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9696
 
                             I N  S E N A T E
 
                               May 21, 2024
                                ___________
 
 Introduced by Sen. BRISPORT -- (at request of the Office of Court Admin-
   istration)  --  read twice and ordered printed, and when printed to be
   committed to the Committee on Children and Families
 
 AN ACT to amend the family court act, in relation to the right to  coun-
   sel in proceedings regarding violations of orders of child support and
   to establish paternity or parentage in the family court

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1.  Subdivision (a) of section 249 of the family court act, as
 amended by chapter 3 of the laws of 2012, is amended to read as follows:
   (a) In a proceeding under article three, seven, ten, ten-A or ten-C of
 this act or where a MINOR IS A PARTY IN A PROCEEDING IN ACCORDANCE  WITH
 ARTICLES  FOUR,  FIVE  OR FIVE-B OF THIS ACT OR WHERE A revocation of an
 adoption consent is opposed under section one hundred fifteen-b  of  the
 domestic  relations law or in any proceeding under section three hundred
 fifty-eight-a, three hundred eighty-three-c, three  hundred  eighty-four
 or  three  hundred  eighty-four-b  of  the social services law or when a
 minor is sought to be placed in protective  custody  under  section  one
 hundred  fifty-eight  of  this act or in any proceeding where a minor is
 detained under or governed  by  the  interstate  compact  for  juveniles
 established pursuant to section five hundred one-e of the executive law,
 the  family  court shall appoint an attorney to represent a minor who is
 the subject of the proceeding or who is sought to be placed  in  protec-
 tive  custody,  if  independent legal representation is not available to
 such minor. In any proceeding to extend or continue the placement  of  a
 juvenile delinquent or person in need of supervision pursuant to section
 seven hundred fifty-six or 353.3 of this act or any proceeding to extend
 or  continue  a  commitment to the custody of the commissioner of mental
 health or the commissioner of  people  with  developmental  disabilities
 pursuant  to  section  322.2 of this act, the court shall not permit the
 respondent to waive the right to be represented by counsel chosen by the
 respondent, respondent's parent, or other person legally responsible for
 the respondent's care, or by assigned counsel. In any  proceeding  under
 article ten-B of this act, the family court shall appoint an attorney to
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD14560-01-4
 S. 9696                             2
 
 represent  a  youth,  under the age of twenty-one, who is the subject of
 the proceeding, if independent legal representation is not available  to
 such youth. In any other proceeding in which the court has jurisdiction,
 the  court  may appoint an attorney to represent the child, when, in the
 opinion of the family court judge, such representation  will  serve  the
 purposes  of  this act, if independent legal counsel is not available to
 the child. The family court on its own motion may make such appointment.
   § 2. Subdivision (a) of section  249  of  the  family  court  act,  as
 amended  by  chapter  672  of  the  laws  of 2019, is amended to read as
 follows:
   (a) In a proceeding under article three, seven, ten, ten-A or ten-C of
 this act or where a MINOR IS A PARTY IN A PROCEEDING IN ACCORDANCE  WITH
 ARTICLES  FOUR,  FIVE  OR FIVE-B OF THIS ACT OR WHERE A revocation of an
 adoption consent is opposed under section one hundred fifteen-b  of  the
 domestic  relations law or in any proceeding under section three hundred
 fifty-eight-a, three hundred eighty-three-c, three  hundred  eighty-four
 or  three  hundred  eighty-four-b  of  the social services law or when a
 minor is sought to be placed in protective  custody  under  section  one
 hundred  fifty-eight  of  this  act,  the  family court shall appoint an
 attorney to represent a minor who is the subject of  the  proceeding  or
 who  is  sought to be placed in protective custody, if independent legal
 representation is not available to such  minor.  In  any  proceeding  to
 extend  or  continue the placement of a juvenile delinquent or person in
 need of supervision pursuant to section seven hundred fifty-six or 353.3
 of this act or any proceeding to extend or continue a commitment to  the
 custody  of the commissioner of mental health or the commissioner of the
 office for people with developmental disabilities  pursuant  to  section
 322.2  of  this  act, the court shall not permit the respondent to waive
 the right to  be  represented  by  counsel  chosen  by  the  respondent,
 respondent's  parent,  or  other  person  legally  responsible  for  the
 respondent's care, or by assigned counsel. In any proceeding under arti-
 cle ten-B of this act, the family court shall  appoint  an  attorney  to
 represent  a  youth,  under the age of twenty-one, who is the subject of
 the proceeding, if independent legal representation is not available  to
 such youth. In any other proceeding in which the court has jurisdiction,
 the  court  may appoint an attorney to represent the child, when, in the
 opinion of the family court judge, such representation  will  serve  the
 purposes  of  this act, if independent legal counsel is not available to
 the child. The family court on its own motion may make such appointment.
   § 3. Paragraphs (vi) and (viii) of subdivision (a) of section  262  of
 the family court act, paragraph (vi) as added by chapter 682 of the laws
 of  1975  and  paragraph  (viii)  as added by chapter 456 of the laws of
 1978, are amended to read as follows:
   (vi) [any person] ALL PARTIES in any proceeding before  the  court  in
 which  an  order  or  other  determination is being sought to hold [such
 person] A PARTY OR PARTIES in  contempt  of  the  court  or  in  willful
 violation  of a previous order of the court, except for a contempt which
 may be punished summarily under section seven hundred fifty-five of  the
 judiciary law;
   (viii)  [the  respondent]  ALL  PARTIES in any proceeding TO ESTABLISH
 PATERNITY OR PARENTAGE under article five, FIVE-B,  OR  FIVE-C  OF  THIS
 ACT,  AND ALL NOTICED PERSONS WHO INTERVENE IN PROCEEDINGS UNDER ARTICLE
 FIVE-C of this act [in relation to the establishment of paternity].
   § 4. Subdivisions (a) and (b) of section 453 of the family court  act,
 subdivision (a) as amended by chapter 343 of the laws of 2009 and subdi-
 S. 9696                             3
 
 vision  (b)  as added by chapter 456 of the laws of 1978, are amended to
 read as follows:
   (a)  Persons who may originate and prosecute proceedings. The original
 petitioner, the support collection unit 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, 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 and prose-
 cute a proceeding under this part. IF THE PROCEEDING IS COMMENCED  BY  A
 PERSON TO WHOM THE ORDER IS PAYABLE OR BY ANY OTHER PERSON WHO MAY ORIG-
 INATE PROCEEDINGS UNDER SECTION FOUR HUNDRED TWENTY-TWO OF THIS ARTICLE,
 SUCH  PERSON  SHALL  HAVE  A  RIGHT TO COUNSEL UNDER SECTION TWO HUNDRED
 SIXTY-TWO OF THIS ACT, INCLUDING THE RIGHT TO APPOINTED COUNSEL IF  SUCH
 PERSON  IS FINANCIALLY UNABLE TO OBTAIN COUNSEL, OR, IF SUCH PERSON IS A
 MINOR, A RIGHT TO AN ATTORNEY FOR THE CHILD UNDER  SECTION  TWO  HUNDRED
 FORTY-NINE OF THIS ACT.
   (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] THE RESPONDENT
 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 commit-
 ment 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 UNDER SECTION  TWO  HUNDRED  SIXTY-TWO  OF
 THIS ACT, if [indigent] FINANCIALLY UNABLE TO AFFORD COUNSEL OR, IF SUCH
 PERSON  IS  A MINOR, A RIGHT TO APPOINTMENT OF AN ATTORNEY FOR THE CHILD
 UNDER SECTION TWO HUNDRED FORTY-NINE OF THIS ACT.
   § 5. Section 522 of the family court act, as amended by chapter 892 of
 the laws of 1986, is amended to read as follows:
   § 522. Persons who may originate proceedings. Proceedings to establish
 the paternity of the child and to compel support under this article  may
 be commenced by the mother, whether a minor or not, by a person alleging
 to be the father, whether a minor or not, by the child or child's guard-
 ian or other person standing in a parental relation or being the next of
 kin of the child, or by any authorized representative of an incorporated
 society  doing  charitable  or  philanthropic  work, or if the mother or
 child is or is likely to become a public charge on  a  county,  city  or
 town, by a public welfare official of the county, city or town where the
 mother resides or the child is found. If a proceeding is originated by a
 public  welfare  official  and thereafter withdrawn or dismissed without
 consideration on the merits, such withdrawal or dismissal shall be with-
 out prejudice to other persons.   IF THE PROCEEDING IS  COMMENCED  BY  A
 PARENT  OR  ALLEGED  PARENT,  SUCH  PERSON SHALL HAVE A RIGHT TO COUNSEL
 UNDER SECTION TWO HUNDRED SIXTY-TWO OF THIS ACT, INCLUDING THE RIGHT  TO
 APPOINTED  COUNSEL  IF SUCH PERSON IS FINANCIALLY UNABLE TO OBTAIN COUN-
 SEL.  IF SUCH PERSON IS A MINOR, SUCH  PERSON  SHALL  HAVE  A  RIGHT  TO
 APPOINTMENT OF AN ATTORNEY FOR THE CHILD PURSUANT TO SECTION TWO HUNDRED
 FORTY-NINE OF THIS ACT.
   §  6.  Subdivision  (b)  of  section  524  of the family court act, as
 amended by chapter 398 of the laws  of  1997,  is  amended  to  read  as
 follows:
 S. 9696                             4
 
   (b)  The summons shall contain or have attached thereto a notice stat-
 ing:  (i)  that  the  respondent's failure to appear shall result in the
 default entry of an order of  filiation  by  the  court  upon  proof  of
 respondent's  actual  notice  of the commencement of the proceeding; and
 (ii)  that a respondent's failure to appear may result in the suspension
 of [his or her] THE RESPONDENT'S driving privileges; state professional,
 occupational and business licenses; and sporting licenses  and  permits;
 AND  (III)  THAT THE RESPONDENT HAS A RIGHT TO COUNSEL UNDER SECTION TWO
 HUNDRED SIXTY-TWO OF THIS ACT, IF FINANCIALLY UNABLE TO  AFFORD  COUNSEL
 OR, IF SUCH PERSON IS A MINOR, A RIGHT TO APPOINTMENT OF AN ATTORNEY FOR
 THE CHILD UNDER SECTION TWO HUNDRED FORTY-NINE OF THIS ACT.
   §  7.  This  act shall take effect on the ninetieth day after it shall
 have become a law; provided, however, that the amendments to subdivision
 (a) of section 249 of the family court act made by section one  of  this
 act shall be subject to the expiration and reversion of such subdivision
 pursuant  to  section  8  of chapter 29 of the laws of 2011, as amended,
 when upon such date the provisions of section two of this act shall take
 effect.

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Senate Bill S9696

Sponsored By

Current Bill Status - In Assembly Committee

Jun 4, 2024 - Floor Vote

Floor Vote: Jun 4, 2024

Jun 4, 2024 - Rules Committee Vote

Rules Committee Vote: Jun 4, 2024

2023-S9696 (ACTIVE) - Details

2023-S9696 (ACTIVE) - Summary

2023-S9696 (ACTIVE) - Sponsor Memo

2023-S9696 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S9696

Share this bill

Sponsored By

Jabari Brisport

Current Bill Status - In Assembly Committee

2023-S9696 (ACTIVE) - Details

2023-S9696 (ACTIVE) - Summary

2023-S9696 (ACTIVE) - Sponsor Memo

2023-S9696 (ACTIVE) - Bill Text download pdf

Comments