Child support orders may originate from the Family Court or out of the Supreme Court from a divorce. If the non-custodial parent has violated the order, the order can be enforced by filing a violation petition in Family Court (in most instances) or a contempt motion in the Supreme Court after a Judgment of Divorce has been filed with the clerk’s office. The Supreme Court will hold exclusive jurisdiction if the case was reserved within the Supreme Court by the terms of the divorce. However, if jurisdiction was not reserved in the Supreme Court, or the order was originally from the Family Court, any future matters involving child support may be able to be dealt with in the Family Court or the Supreme Court. Darren M. Shapiro, Esq. regularly appears in both the Supreme and Family Courts all over Nassau County, Suffolk County, New York City and the surrounding areas pursuing and defending against violations. Call about your consultation to see if this office is the right fit for you.
Regardless of whether the order emanated from the Family Court or Supreme Court, the child support order should direct when and how child support will be paid. If the order was not paid, there is a presumption that the payor is in willful violation. The presumption of willfulness can be overcome so the legal arguments by the custodial and non-custodial parents, preferably through their lawyers, can be all important to influence this determination. Willfulness allows a court to enforce some of the harsher penalties such as up to six months incarceration. Child support, accordingly, needs to be carefully handled.
There are advantages and disadvantages to either the Supreme Court or Family Court forums. Darren can help you decide which is the right choice for you when there is a decision to be made. Generally, Supreme Court cases are more paperwork intensive. Family Court cases usually are resolved quicker, however, family court divides up cases into individual components. For example, a custody case will be a separate case from child support handled in a different court room and often on different court dates. In Supreme Court, usually most issues can be included in one case.
For Supreme Court cases, when the payor is in violation of the settlement agreement or consent order, a contempt motion is brought to the Court and the payor is directed to appear in court and show cause as to why the support was not paid and why an order should not be issued punishing the payor. The judge will decide if the payor willfully violated the child support order. With the help of an experienced matrimonial and family law attorney, hopefully the court will be persuaded to your position whether it is in support of or against the violation. A payor may be able to overcome the presumption of willfulness. This becomes the payor’s burden if it is proven that an order was made and not paid. If the payor is not financially able to pay the child support due to a loss of employment, the payor needs to provide proof that the job loss was not due to any fault of their own. They must also prove they have been diligently making efforts to secure replacement employment to no avail. There is a chance the other party may argue that diligent efforts were not made to secure a job and the loss of employment was the payor’s fault. Darren will work with you throughout this process to make sure you understand the applicable law and that you make the best informed choices about your case.
Should the court enter a violation of the child support order, there can be serious consequences. A judgment for the unpaid support can be made which would start collecting statutory interest which is currently 9% per annum. Wage garnishments wages may be ordered, professional and driver’s licenses might be suspended, and an order for the payor to participate in work activities or up to six months incarceration for willful violations are possibilities.
Mr. Shapiro can discuss with you the different methods that can be used regarding child support violations. Support violations are frequently settled by an arrangement on consent, between both parties, however, if an agreement cannot be reached between the parties, Darren will do his best to persuade the court that your position is the right result.
Support Violations are a serious matter and is highly recommended that you seek solid legal representation whether bringing or defending against the motion. Call the office today and request a free consultation regarding support violations. It would be our pleasure to speak with you.