CHILD SUPPORT ENFORCEMENT
THE COURT CAN DENY AN ADJOURNMENT IN A CHILD SUPPORT VIOLATION PROCEEDING WHERE THE ACCUSED HAS NOT PAID CHILD SUPPORT!
Divorce & Child Support Lawyer Nassau County NY
H. Michael Stern, Esq., a New York matrimonial and family law attorney and mediator with over 33 years of experience suggests that every effort should be undertaken to obtain enough time from the Court to present a defense to a support violation petition.
In a recent case decided by the Appellate Division First Judicial Department, the Court was presented with a situation where the Family Court had directed that the accused non-paying parent be incarcerated for 90 days unless $5,000 was paid to the Support Collection Unit. The Family Court had appointed counsel the day before the hearing. However, the Court-appointed attorney did not argue to the Family Court Judge that counsel needed more time to prepare for the hearing. The accused non-paying parent did not request an adjournment or seek additional preparation time with newly appointed counsel either. The Appellate Court noted that newly appointed counsel did not raise an effective representation issue. Counsel did not deny the charge of non-payment, and counsel confirmed that the accused non-paying parent could have moved for a downward modification but had not done so. Counsel apparently conceded that the accused non-paying parent earned an income, albeit that it was unpredictable and fluctuated. The Appellate Court determined that given the accused non-paying parent’s lack of any excuse for nonpayment, any such adjournment request could have been reasonably denied by the Family Court and upheld the sentence of 90 days in jail.
The point here is that where counsel is appointed or privately retained, appearing on very short notice and the accused non-paying parent is facing incarceration, the attorney must try to make a lack of effective representation argument if there is insufficient time to prepare a e defense. This should be done before any of the non-payment issues are explored by the Family Court Judge at the dispositional hearing. It is my unrelated opinion that it may be the constitutional responsibility of the Family Court Support Magistrate (who hears the case first) to offer Court appointed counsel prior to any willfulness hearing, where the accused is given the opportunity to oppose any finding of a violation of a support Order, as such a finding can quickly result in a term of incarceration before a Family Court Judge. After all, the client’s liberty is at stake if the Support Magistrate finds that a willful violation occurred. I cannot emphasize enough how critical it is to make the necessary arguments to defend the client in such cases, including a request to serve any term of incarceration on weekends only. This enables the accused parent to avoid falling further behind in support payments while continuing to work.
I have been prosecuting and defending Family Court child support cases for more than three decades. My personal preference is to use highly experienced private Counsel in these situations.
Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island practice for over 30 years. Feel free to contact me, H. Michael Stern, Esq. a Long Island divorce and family law attorney, if you are interested in discussing your matrimonial, divorce or family law matter at hmsternesq@gmail.com or by phone at 516-747-2290. My office is conveniently located adjacent to the Roosevelt Field Mall Ring Road at 666 Old Country Road in Garden City, New York.
Written by, H. MICHAEL STERN, ESQ. – Family Law Attorney, Long Island, NY.