Relates to applications to modify orders of child support in the family court

An application to modify an order of child support pursuant to section 451 of the Family Court Act must be accompanied by "an affidavit and other evidentiary material sufficient to establish a prima facie case for the relief requested" in order to entitle the petitioner to a hearing on any material issues of fact. No hearing is required if an affidavit has not been submitted even if material issues are present in the case. In order to preserve the possibility of a hearing, this requirement has been applied literally by many Family Courts statewide in all cases, thus preventing child support modification petitions from being filed in the absence of an affidavit.

This requirement has proven to be both unnecessary and unduly restrictive. It is unnecessary because it is duplicative. The uniform "Affidavit in Support of Modification of Support" (Family Court Form 4-11b) contains virtually the same information as the support modification petition (Family Court Form 4-11).* And, most important, it is unduly restrictive as an impediment to effective access to the Family Court by unwary litigants, most of whom are unrepresented.**

The Chief Judge's Task Force to Expand Access to Civil Legal Services in its Report to the Chief Judge of the State of New York in November, 2011, at p. 31, recommended, inter alia, that Family Court child support forms be simplified. This effort is now ongoing through the forms simplification initiative described in the 2012 report of the New York State Courts Access to Justice Program.*** The public "New York CourtHelp" web-site of the Unified Court System includes an on-line "Do It Yourself' (DIY) program in English and Spanish for litigants to utilize to prepare child support modification petitions, a "Lawhelp Interactive" program operated by ProBono.Net.**** The DIY process in unnecessarily encumbered by the requirement that litigants prepare an affidavit in addition to the petition.

This measure would further the goal of forms simplification. It would amend section 451 of the Family Court Act. Instead, the petition itself would need to "allege facts sufficient to meet one or more of the grounds" for modification set forth in the statute. In eliminating the need for litigants to file an extra document, the measure would ease the DIY process, a meaningful step in the Court System's ongoing effort to increase the ease with which litigants can obtain needed relief in the Family Court.

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

Legislative History:

None. New proposal.

*The forms are available at htto://www.nvcourts.gov/forms/familvcourt/childsunport.shtml.

** The Chief Judge's Task Force to Expand Access to Civil Legal Services in its Report to the Chief Judge of the State of New York in November, 2010, estimated that: "In 611,768 Family Court matters in which assigned counsel is not provided, approximately 74 percent of the litigants are unrepresented. In child support matters in the Family Court in New York City, 93 percent of the parties are completely unrepresented and another 4 to 5 percent had counsel for only part of the case. Effectively, 97 to 98 percent of New Yorkers dealing with child support issues in New York City do so without full benefit of counsel. In child support matters in Family Court outside of New York City, 86 percent of the parties are unrepresented, and another 9 to 11 percent have counsel for only part of the case." (Footnotes omitted)." Id. At p.17.

*** New York State Courts Access to Justice Program, 2012 Report, p. 18 fhttp://www.nvcourts.gov/ip/nya2j/pdfs/NYA2J 20 12report.pdfl

**** See www.nycourts.Rovicourthelp/DIY/supportmodification.html.