Position Statement – 2016
S.5189 (Bonacic) / A.7253 (Weinstein)
Enforcement Mechanisms for Collection of Child Support
The Women’s Bar Association of the State of New York (WBASNY) supports this legislation that would eliminate the existing Supreme Court requirement that all other enforcement remedies must be exhausted before contempt can be sought against a person who fails to pay child support, spousal support or combined child and spousal support pursuant to a court order in a matrimonial proceeding.
Under current law, the Family Court Act does not require a party to exhaust all remedies before seeking a contempt order against the defaulting spouse for failure to pay support. WBASNY believes that it is important to have consistency with contempt applications in both Family Court and Supreme Court.
WBASNY members reviewed the legislation carefully to determine how this legislation would impact indigent payors and concluded that there are currently sufficient safeguards in place to assure the rights of any payor who does not have the resources to pay an order of support. Anyone legitimately unable to pay (following a full hearing) will not be subject to imprisonment and inability to pay is a defense to a finding of contempt. Further, in Turner v. Rogers, 131 S. Ct. 2507 (2011), the U.S. Supreme Court established a standard procedure for handling matters of contempt that include additional layers of protection for debtors. The standard procedure in Turner requires:
- Notice to the defendant that the ability to pay is a critical issue at hearing
- Use of a form to elicit financial information
- Opportunity at a hearing to respond to statements regarding financial status
- Express finding by the court that the defendant has the ability to pay.
WBASNY encourages the legislature to support this legislation.