§ 440 — Order of support

New York § 440

• Jurisdiction: New York
• Law FCT: Family Court Act
• Part 4: Orders
• Art. 4: Support Proceedings

Text

§ 440. Order of support. 1. (a) Any support order made by the court in\nany proceeding under the provisions of article five-B of this act,\npursuant to a reference from the supreme court under section two hundred\nfifty-one of the domestic relations law or under the provisions of\narticle four, five or five-A of this act (i) shall direct that payments\nof child support or combined child and spousal support collected on\nbehalf of persons in receipt of services pursuant to section one hundred\neleven-g of the social services law, or on behalf of persons in receipt\nof public assistance be made to the support collection unit designated\nby the appropriate social services district, which shall receive and\ndisburse funds so paid; or (ii) shall be enforced pursuant to\nsubdivision (c) of section five thousand two hundred forty-two of the\ncivil practice law and rules at the same time that the court issues an\norder of support; and (iii) shall in either case, except as provided for\nherein, be effective as of the earlier of the date of the filing of the\npetition therefor, or, if the children for whom support is sought are in\nreceipt of public assistance, the date for which their eligibility for\npublic assistance was effective. Any retroactive amount of support due\nshall be support arrears/past due support and shall be paid in one sum\nor periodic sums, as the court directs, and any amount of temporary\nsupport which has been paid to be taken into account in calculating any\namount of such retroactive support due. In addition, such retroactive\nchild support shall be enforceable in any manner provided by law\nincluding, but not limited to, an execution for support enforcement\npursuant to subdivision (b) of section fifty-two hundred forty-one of\nthe civil practice law and rules. When a child receiving support is a\npublic assistance recipient, or the order of support is being enforced\nor is to be enforced pursuant to section one hundred eleven-g of the\nsocial services law, the court shall establish the amount of retroactive\nchild support and notify the parties that such amount shall be enforced\nby the support collection unit pursuant to an execution for support\nenforcement as provided for in subdivision (b) of section fifty-two\nhundred forty-one of the civil practice law and rules, or in such\nperiodic payments as would have been authorized had such an execution\nbeen issued. In such case, the court shall not direct the schedule of\nrepayment of retroactive support. Where such direction is for child\nsupport and parentage has been established by a voluntary acknowledgment\nof parentage as defined in section forty-one hundred thirty-five-b of\nthe public health law, the court shall inquire of the parties whether\nthe acknowledgment has been duly filed, and unless satisfied that it has\nbeen so filed shall require the clerk of the court to file such\nacknowledgment with the appropriate registrar within five business days.\nThe court shall not direct that support payments be made to the support\ncollection unit unless the child, who is the subject of the order, is in\nreceipt of public assistance or child support services pursuant to\nsection one hundred eleven-g of the social services law. Any such order\nshall be enforceable pursuant to section fifty-two hundred forty-one or\nfifty-two hundred forty-two of the civil practice law and rules, or in\nany other manner provided by law. Such orders or judgments for child\nsupport and maintenance shall also be enforceable pursuant to article\nfifty-two of the civil practice law and rules upon a debtor's default as\nsuch term is defined in paragraph seven of subdivision (a) of section\nfifty-two hundred forty-one of the civil practice law and rules. The\nestablishment of a default shall be subject to the procedures\nestablished for the determination of a mistake of fact for income\nexecutions pursuant to subdivision (e) of section fifty-two hundred\nforty-one of the civil practice law and rules. For the purposes of\nenforcement of child support orders or combined spousal and child\nsupport orders pursuant to section five thousand two hundred forty-one\nof the civil practice law and rules, a "default" shall be deemed to\ninclude amounts arising from retroactive support. Where permitted under\nfederal law and where the record of the proceedings contains such\ninformation, such order shall include on its face the social security\nnumber and the name and address of the employer, if any, of the person\nchargeable with support provided, however, that failure to comply with\nthis requirement shall not invalidate such order.\n (b) (1) When the court issues an order of child support or combined\nchild and spousal support on behalf of persons in receipt of public\nassistance or in receipt of services pursuant to section one hundred\neleven-g of the social services law, the support collection unit shall\nissue an income execution immediately for child support or combined\nspousal and child support, and shall issue an execution for medical\nsupport enforcement in accordance with the provisions of the order of\nsupport unless: (i) the court finds and sets forth in writing the\nreasons that there is good cause not to require immediate income\nwithholding; or (ii) when the child is not in receipt of public\nassistance, a written agreement providing for an alternative arrangement\nhas been reached between the parties. Such written agreement may include\nan oral stipulation made on the record resulting in a written order. For\npurposes of this paragraph, good cause shall mean substantial harm to\nthe debtor. The absence of an arrearage or the mere issuance of an\nincome execution shall not constitute good cause. When an immediate\nincome execution or an execution for medical support enforcement is\nissued by the support collection unit, such execution shall be issued\npursuant to section five thousand two hundred forty-one of the civil\npractice law and rules, except that the provisions thereof relating to\nmistake of fact, default and any other provisions which are not relevant\nto the issuance of an execution pursuant to this paragraph shall not\napply; provided, however, that if the support collection unit makes an\nerror in the issuance of an execution pursuant to this paragraph, and\nsuch error is to the detriment of the debtor, the support collection\nunit shall have thirty days after notification by the debtor to correct\nthe error. Where permitted under federal law and where the record of the\nproceedings contains such information, such order shall include on its\nface the social security number and the name and address of the\nemployer, if any, of the person chargeable with support; provided,\nhowever, that failure to comply with this requirement shall not\ninvalidate such order. When the court determines that there is good\ncause not to immediately issue an income execution or when the parties\nagree to an alternative arrangement as provided in this paragraph, the\ncourt shall provide expressly in the order of support that the support\ncollection unit shall not issue an immediate income execution.\nNotwithstanding any such order, the support collection unit shall issue\nan income execution for support enforcement when the debtor defaults on\nthe support obligation, as defined in section five thousand two hundred\nforty-one of the civil practice law and rules. When an income execution\nfor support enforcement is issued pursuant to this paragraph, such\nincome execution shall supersede any income deduction order previously\nissued for enforcement of the same support order pursuant to subdivision\n(c) of section five thousand two hundred forty-two of the civil practice\nlaw and rules, whereupon such income deduction order shall cease to have\nfurther effect.\n (2) When the court issues an order of child support or combined child\nand spousal support on behalf of persons other than those in receipt of\npublic assistance or in receipt of services pursuant to section one\nhundred eleven-g of the social services law, the court shall issue an\nincome deduction order pursuant to subdivision (c) of section five\nthousand two hundred forty-two of the civil practice law and rules at\nthe same time at which it issues the order of support. The court shall\nenter the income deduction order unless the court finds and sets forth\nin writing: (i) the reasons that there is good cause not to require\nimmediate income withholding; or (ii) that an agreement providing for an\nalternative arrangement has been reached between the parties. Such\nagreement may include a written agreement or an oral stipulation, made\non the record, that results in a written order. For purposes of this\nparagraph, good cause shall mean substantial harm to the debtor. The\nabsence of an arrearage or the mere issuance of an income deduction\norder shall not constitute good cause. Where permitted under federal law\nand where the record of the proceedings contains such information, the\norder shall include on its face the social security number and the name\nand address of the employer, if any, of the person chargeable with\nsupport; provided, however, that failure to comply with this requirement\nshall not invalidate the order. When the court determines that there is\ngood cause not to immediately issue an income deduction order or when\nthe parties agree to an alternative arrangement as provided in this\nparagraph, the court shall not issue an income deduction order. In\naddition, the court shall make provisions for health insurance benefits\nin accordance with the requirements of section four hundred sixteen of\nthis article.\n (c) Any order of support issued on behalf of a child in receipt of\nfamily assistance or child support enforcement services pursuant to\nsection one hundred eleven-g of the social services law shall be subject\nto review and adjustment by the support collection unit pursuant to\nsection one hundred eleven-n of the social services law, section two\nhundred forty-c of the domestic relations law and section four hundred\nthirteen-a of this article. Such review and adjustment shall be in\naddition to any other activities undertaken by the support collection\nunit relating to the establishment, modification, and enforcement of\nsupport orders payable to such unit.\n 2. The court shall require any person chargeable with support under\nthe provisions of article five-B of this act or under any support order\nmade pursuant to a reference from the supreme court under section two\nhundred fifty-one of the domestic relations law or in any proceeding\nunder the provisions of article four, five or five-A of this act to\nprovide his or her social security number, the name and address of his\nor her employer and to report any changes of employer or change in\nemployment status affecting compensation received, including rate of\ncompensation or loss of employment, to the support collection unit\ndesignated by the appropriate social services district and to keep such\nsupport collection unit advised of his or her current employer and\ncurrent employment status; provided, however, that a social security\nnumber may be required only where permitted under federal law.\n 3. The amount of support determined in accordance with the statewide\nchild support standards, as set forth in section four hundred thirteen\nof this act, shall constitute prima facie evidence of the ability of any\nperson chargeable with support in accordance with the provisions of\narticle three-A of the domestic relations law or under any support order\nmade pursuant to a reference from the supreme court under section two\nhundred fifty-one of the domestic relations law or in any proceeding\nunder the provisions of article four, five or five-A of this chapter to\nsupport or contribute such amount towards the support of his or her\nchildren.\n 4. Any support order made by the court in any proceeding under the\nprovisions of article five-B of this act, pursuant to a reference from\nthe supreme court under section two hundred fifty-one of the domestic\nrelations law or under the provisions of this article or article five or\nfive-A of this act shall include, on its face, a notice printed or\ntypewritten in a size equal to at least eight point bold type:\n (a) informing the respondent that a willful failure to obey the order\nmay, after court hearing, result in commitment to jail for a term not to\nexceed six months for contempt of court, and\n (b) informing the parties of their right to seek a modification of the\nchild support order upon a showing of:\n (i) a substantial change in circumstances; or\n (ii) that three years have passed since the order was entered, last\nmodified or adjusted; or\n (iii) there has been a change in either party's gross income by\nfifteen percent or more since the order was entered, last modified, or\nadjusted;\nhowever, if the parties have specifically opted out of subparagraph (ii)\nor (iii) of this paragraph in a validly executed agreement or\nstipulation, then that basis to seek modification does not apply.\n 5. The court shall direct that a copy of any child support or combined\nchild and spousal support order issued by the court on or after the\nfirst day of October, nineteen hundred ninety-eight, in any proceeding\npursuant to a reference from the supreme court under section two hundred\nfifty-one of the domestic relations law or under the provisions of\narticle four, five, five-A or five-B of this act be provided promptly to\nthe state case registry established pursuant to subdivision four-a of\nsection one hundred eleven-b of the social services law.\n 6. Any order of support made by the court shall provide for health\ninsurance benefits pursuant to section four hundred sixteen of this\narticle.\n