Relates to sanctions for willful failure to comply with court orders for child support

To realize the statutory goal of providing adequate support to New York's children, Family Court must be able to rigorously enforce its orders. It must be able to secure compliance through imposition of a diverse array of sanctions appropriate in severity and responsive to the individual problems presented. License suspensions, Department of Taxation and Finance referrals, lottery and tax refund interceptions, sequestration of property, imposition of income deduction orders and referrals to rehabilitative or work programs, where available, are all useful tools in particular cases. See Family Court Act § 454, et seq. However, in particularly intractable cases of willful violations of court orders for child support, including those involving child support obligors who are self-employed or who are paid in cash or "off the books," the ultimate sanction of incarceration may be the only meaningful sanction currently available to the Court. Clearly, incarceration, which at least temporarily cuts off a support obligor's earning capacity altogether, is a costly, sometimes self-defeating option that must be reserved for cases in which lesser sanctions have been exhausted or are not efficacious.

Along the continuum of sanctions for willful violations, there must be a means of providing regular, in-person monitoring by someone in authority who can compel a change of behavior under threat of a more serious sanction and who may be able, at the same time, to provide services and rehabilitative assistance to the support obligor that will facilitate compliance with child support obligations. That vital in-person monitoring and provision of individualized assistance may best be provided by placing a support obligor on probation. However, while explicitly authorized in the Family Court Act, probation has been only sporadically utilized in Family Court child support cases, frequently in some counties and not at all in others. Moreover, there is no authorization in the Family Court Act to combine either a probation sanction or a requirement to participate in a rehabilitative program with a sentence of incarceration, even though such a combination may present the most promise in some cases to compel the change of an offender's behavior necessary to correct the violation and ensure consistent, future provision of child support to the offender's family. We have identified statutory impediments to the effective use of probation in child support cases and we now submit this measure to address these problems.

First, to make probation less costly for local probation departments and fairer to probationers, this measure would impose a limit on the duration of probation more commensurate with probation in other contexts. Alone among probation provisions in both the Family Court Act and Criminal Procedure Law, section 456 of the Family Court Act permits a child support obligor to be placed on probation for an extended period of time, i.e., the entire duration of a child support

or visitation order or order of protection. Since a child support order may last until the youngest child reaches the age of 21, this may mean more than two decades of probation four times greater than the duration of probation for all but the most serious felonies. Cf. Penal Law § 65(3). This disproportionate degree of supervision is beyond the capacity of most local probation departments to provide, particularly in times of fiscal constraint, and may explain the reluctance of probation departments to become involved in child support matters. This measure, therefore, would impose the same time limit that exists for orders of protection in family offense cases in Family Court - i.e., not more than two years or, where the court finds aggravating circumstances, a period of not more than five years. Cf., Family Court Act § 842. This period may be extended, after notice to the support obligor and an opportunity to be heard, for an additional year upon a finding of exceptional circumstances.

Second, this measure would provide needed flexibility to the menu of sanctions available for willful violations of child support orders by adding authorization to combine a sentence of probation or a sentence of participation in a rehabilitative program with a sentence of incarceration. Section 454(3)(a) of the Family Court Act already permits a sentence of intermittent incarceration to be imposed, including, for example, weekend incarceration so that an offender may work or seek gainful employment during the week. The effectiveness of this sanction, as well as sanctions of short periods of incarceration, would be significantly enhanced if the Family Court had the ability to combine it with probation supervision.

Finally, section 456 of the Family Court Act is entirely silent regarding procedures to be followed in the event of a violation of probation. All too often, the burden falls upon custodial parents to take time off from work to prepare, file and arrange service of violation petitions. Again comparable to other probation violation provisions, this measure would instead require the local probation department to file a verified probation violation petition and would provide an opportunity for the probationer and parties to be to be heard as prerequisites to revocation of probation in the event of a willful violation. As in criminal, juvenile delinquency and PINS proceedings, this measure would provide that the period of probation would be tolled as of the date of filing of the violation petition. See Penal Law § 65.15(2); Family Court Act §§ 360.2(4), 779-a. Further, in the event the violation petition is not sustained, the tolling period would be credited to the period of probation. Providing a mechanism consistent with due process to bring alleged child support violators to the attention of the Court would benefit the families as well - taking the onus off of custodial parents to initiate and prosecute violation proceedings that should instead be handled by local probation departments.

Enactment of this measure would afford Family Court essential, flexible tools with which to address willful violation of its child support orders so as to spur offenders to modify their behavior and live up to their child support obligations. It would make probation a viable alternative for probation departments by limiting its duration and delineating procedures to be utilized in the event of a violation of its terms and conditions. Further, the measure would augment the effectiveness of both probation and the requirement for respondent to

participate in a rehabilitative program by authorizing these sanctions to be combined with a sentence or suspended sentence of incarceration. In so doing, the proposed statute would improve the collection of child support for the children in the State, would make the probation provisions fairer for support obligors and would greatly enhance the Court's capacity to respond effectively to serious instances of willful violations of child support that are so detrimental to children in New York.

This measure, which would have no fiscal impact upon the State, would take effect immediately.

2007 Legislative History:

OCA 2007-57 Senate 5139 (Sen. DeFrancisco) (com to Rules).