BILL NUMBER: S9712

SPONSOR: PERSAUD
 
TITLE OF BILL:

An act to amend the family court act, in relation to the filing of
objections to support magistrate determinations in child support, pater-
nity and parentage proceedings in family court and to the time-limit for
appeals in all categories of family court cases

This is one in a series of measures being introduced at the request of
the Acting Chief Administrative Judge upon the recommendation of her
Family Court Advisory and Rules Committee.

In order to provide continued access to justice during the recent
Covid-19 public health emergency, the Unified Court System, including
the Family Court, rapidly escalated its use of technology for all
aspects of proceedings. Pleadings, exhibits and other documents have
been transmitted to the Family Courts electronically, in many cases for
the first time, and the Courts, in turn, have transmitted its orders
electronically to litigants and attorneys. The New York City Family
Court, in fact, has initiated a pilot program for the use of the Court
System's Electronic Filing System.

              

Electronic transmission of orders by the courts, however, has led to a
serious gap in the statutory delineation of applicable deadlines for
filing notices of appeal in all categories of Family Court proceedings
under Family Court Act § 1113 and for filing objections to support
magistrate determinations in support, parentage, and paternity
proceedings under Family Court Act § 439. The Appellate Division, Fourth
Department, in two recent cases, has rejected arguments that appeals
were untimely, noting that the orders were neither provided in court nor
transmitted by mail and were thus not subject to any statutory dead-
lines. See Matter of Bukowski v.  Florentino, 176 A.D.3d 812 (4th Dept.,
2022); Matter of Grayson S.  (Thomas S.), 209 A.D.3d 1309 (4th Dept.,
2022). The Appellate Division in Grayson S. held that, contrary to Fami-
ly Court Act § 1113:

Here, "(t)here is no evidence in the record that the father was served
with the order of fact-finding and disposition by a party or the child's
attorney, that he received the order in court, or that the Family Court
mailed the order to the father" (Matter of Batts).  Muhammad. 198 AD3d
750, 751 j2d Dept 2021)). Instead, despite using a form order that
provided typewritten check boxes for the two methods of service by the
court mentioned in the statute (i.e., in court or by mail) (see Family
Ct Act § 1113), the court here crossed out the word "mailed" and edited
the form to indicate that the order was emailed to, among others, the
father's attorney. The statute, however, does not provide for service by
the court through email or any other electronic means (see id.) and,
contrary to the assertions of petitioner and the AFC (Attorney for the
Child, traditional mail and email are not indistinguishable (see CPLR
2103 (f) 111; see generally Family Ct Act 165 (al; 1118). It is well
settled that "(c)ourts should construe clear and unambiguous statutes so
as to give effect to the plain meaning of the words used" (Matter of
Alonzo M. v New York City Dept. of Probation, 72 NY2d 662, 665 (19881)
and, here, the statute permits court service by mail but does not
provide for such service by electronic means (see 1113), despite the
fact that the legislature has had the opportunity to include those means
in the years since email has become more prevalent (see e.g. L 2010, ch
41, § 83). Inasmuch as the father was served the order by the court via
email, which is not a method provided for in Family Court Act 1113, and
there is no indication that he was served by any of the methods author-
ized by the statute, we conclude that the time to take an appeal did not
begin to run and that it cannot be said that the father's appeal is
untimely (see Batts, 198 AD3d at 751; Matter of Tynell S., 43 AD3d 1171,
1172 (2d Dept 2007)).

Recognizing the importance of giving clear guidance regarding applicable
deadlines in Family Court proceedings, especially in light of the large
percentage of litigants without attorneys, the committee is proposing a
measure providing that where orders are transmitted to litigants elec-
tronically, they would have up to thirty-five days from the date of
transmission in which to file notices of appeal or objections to orders,
as applicable. As the United States Supreme Court held in Turner v.
Rogers, 564 U.S. 431 (2011), procedures in civil child support
proceedings must satisfy the precept of "fundamental fairness" a precept
clearly applicable to all categories of Family Court proceedings.

Among the most important remedies under New York law, litigants need to
be given accurate notice of the deadline for filing objections to deter-
minations by Support Magistrates so that they can be reviewed by a Fami-
ly Court judge, a prerequisite to the litigants' equally important right
to appeal. See Family Court Act § 439(e); Reynolds v.  Reynolds,. 92
A.D.3d 1109 (3rd Dept., 2012); Kasun v. Kasun, 82 A.D.3d 769 (2nd Dept.,
2011). Currently, Family Court Act § 439(e) requires litigants to file
their objections within "thirty days after receipt of the order in court
or by personal service, or, if the objecting party or parties did not
receive the order in court or by personal service, thirty-five days
after mailing." Likewise, Family Court Act § 1113 requires that an
appeal "must be taken no later than thirty days after the service by a
party or the child's attorney upon the appellant of any order from which
the appeal is taken, thirty days from receipt of the order by the appel-
lant in court or thirty-five days from the mailing of the order to the
appellant by the clerk of the court, whichever is earliest" and requires
that all orders contain a notice to that effect. No mention is made in
either statute of the electronic transmission by the Court of its
orders, leaving a glaring gap in the law as to the applicable time-lim-
its in such cases.

On the advice of our Family Court Advisory and Rules Committee we
propose this measure to remedy that gap by providing that where orders
are transmitted by electronic means, litigants would have up to thirty-
five days from the date of transmission in which to file notices of
appeal or objections to support magistrate determinations.  Especially
since electronic transmission of orders may remain the norm even after
the pandemic is over, it is vital for the statutes to be clear as to the
applicable time-limits for the parties to utilize applicable remedies.

This measure shall take effect one hundred twenty days after it shall
have become a law.

 
LEGISLATIVE HISTORY 2021-22:

S6824 (Sen Persaud) (PASSED)

A7795 (MA Wallace) (Ref to Judiciary)

OCA-14