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Violation of NY Child Support Order

If you possess a child support order, and the payor (the one who is ordered to pay child support) parent ceases to pay you as directed, the payee (the one who is ordered to receive child support) can can file a violation petition or an enforcement petition with the local Family Court. If you were married, the Supreme Court will also have jurisdiction to hear the case. The court will hold a hearing to determine whether a violation of the court order has occurred, and if so what relief should be awarded to the payee parent.

Under New York law there is a presumption that a parent’s failure to pay court ordered child support is willful. Willful is a legal term under the law. A payee’s sworn testimony as to non receipt of ordered child support payments from payor would amount to prima facie evidence of a willful violation (Family Ct Act § 454 [3] [a]). Once the violation is shown, the burden shifts to the payor to demonstrate his or her inability to make the required payments. The payor would need to demonstrate to the court through competent and credible evidence his or her inability to make the court ordered payments in accordance with the terms of the child support order. Mitigating circumstances on their own will not alleviate a court order for child support.

Ultimately the Payee parent wants a money judgment. The money judgment is a document that will list the late child support that is owed and awarded to the Payee. This is called the arrears and the amount of child support that the payor must pay. If the payor does not pay the judgement, then the support magistrate or family court judge can order certain action including but not limited to:

Take away the payor’s business or professional licenses.

Suspend any recreational licenses that the payor may have, like hunting and fishing

Force the payor to pay the support in advance before the payments are due

Put the payor in jail for up to 6 months (support magistrate recommends, family court judge orders)

Put the payor on probation in accordance with the criminal procedure law (support magistrate recommends, family court judge orders)

Order the payor to pay the payee’s attorneys fees

Add interest to the amount of money judgment

Order the payor to join a rehabilitation program for work preparation, alcohol or substance abuse, or education.

If the Payee parent is receiving child support through the Support Collection Unit (“SCU”) then SCU can help collect past due support at no charge to you. They can:

Have the payor’s employer take money directly from his salary before paying

him (called income execution) and send it directly to SCU, who will

then forward it to you.

Have the government send them his state or federal income tax refund,

or a portion of his unemployment benefits.

Have the Department of Motor Vehicles suspend his driver’s license.

Take money from his bank accounts and retirement accounts.

Put liens on his property (like cars and home) so he can’t sell that

property without paying you child support.

Report his late support payments to credit agencies

Once the Payee parent is awarded money judgment, there are a variety of ways a money judgment can be enforced and collected. The Payee parent who is awarded the money judgment is called the judgment creditor and the payor parent who is subject to the money judgment is called the judgment debtor. Collecting the judgment may be done through:

garnishment of debtor’s wages

garnishment of debtor’s bank accounts

lien, seizure and/or sale of personal or real property of the debtor such as a car.

revocation, suspension, or denial of renewal of debtor’s personal or business licenses or permits

a penalty equal to three times the amount of the unsatisfied judgment plus attorney’s fees, if there are unpaid claims.

In order to physically collect the money owed to you, you may want to use the services of an enforcement officer (person designated by law to collect money judgments) such as a Sheriff or City Marshall. A sheriff is employed by the city whereas a City Marshall works independently. Both have the same powers allowed by law to collect money judgments. Each county has a deputy sheriff and there are many City Marshall’s, see here: http://www.nyc.gov/html/doi/html/marshals/list.shtml.

To get the collection started, you should contact an enforcement officer in the county in which you know the debtor has property or lives. You will have to cooperate and assist the enforcement officer in locating the debtor’s property and obtaining an “execution” from the court, which is a permission from the court to seize the judgment debtor’s property or money.

Once the judgment debtor’s property is discovered and an execution is obtained from court, the enforcement officer will be able to serve a restraining notice on the bank, or anyone else that owes money to the judgment debtor, and eventually take the money. If the judgment debtor is employed, the enforcement officer will be able to garnish (take) a portion of his or her salary to satisfy the judgment. If the judgment debtor owns a car, the enforcement officer can take the car and sell it to pay your judgment. You may also be entitled to suspend a judgment debtor’s driver’s license. If the judgment debtor does not pay three or more recorded judgments despite having enough money or resources to pay them, you may be able to sue the judgment debtor for triple damages.

You may be required to pay the enforcement officer for his or her services provided to you, however sometimes those fees can be added to the amount of the judgment and will be paid by the debtor.

Spodek Law Group P.C. is a NY family law firm located at 100 Church Street, 8th Floor New York, NY 10007. (888) 997-4123.

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