New York Family Law Blog
In a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Suffolk County, dated November 4, 1999, which, in effect, confirmed a determination of the same court, dated September 13, 1999, that he had willfully failed to obey an order of the same court, dated December 9, 1996, and thereupon committed him to a term of incarceration of 120 days, unless he purged himself of his contempt by paying the sum of $10,000 towards arrears of child support.
A New York Family Lawyer said that, pursuant to an order of the Family Court, Suffolk County, dated December 9, 1996, the appellant was obligated to pay $576 per month in child support. The appellant allegedly has not made any payment under that order, and the Commissioner of Social Services filed a violation of child support order petition. A hearing was conducted on September 13, 1999, although the appellant was not represented by counsel and was not advised of his right to have counsel present. A Suffolk Family Lawyer said that, the Hearing Examiner found the appellant guilty of a willful violation of the support order, and on November 4, 1999, the Family Court denied his objections, confirmed the Hearing Officer’s findings, and committed the appellant to a term of incarceration. A Suffolk Child Support Lawyer said that, the appellant contends that he was not properly notified of his right to counsel and therefore his consent to go forward at the hearing was not given knowingly, intelligently, and voluntarily.
The issue in this case is whether court erred in citing the father in contempt for not paying the ordered child support.
A New York Custody Lawyer said the court agrees with the appellant. It was the responsibility of the Hearing Examiner to advise the appellant of his right to be represented by counsel of his own choosing, his right to an adjournment to confer with counsel, and his right to have counsel assigned if he was financially unable to obtain representation (see, Family Ct Act §§ 261, 262[a]).
The Hearing Examiner only inquired as to whether the appellant needed time to confer with an attorney. When the appellant stated he was “ready today”, the Hearing Examiner commenced the hearing. Thus, a Brooklyn Family Lawyer said there was a failure to advise the appellant that he had the right to be represented by counsel and that if he was unable to afford an attorney, one would be appointed for him. The appellant’s statement that he was ready to proceed did not reflect an explicit, informed waiver of his right to counsel. It cannot be said that the appellant had a “sufficient awareness of the relevant circumstances and probable consequences of his waiver’.
A Brooklyn Custody Lawyer said the purpose of USDL proceedings is to “secure support in civil proceedings for dependant spouses and children” (DRL 30). Thus, the intent of the draftsmen of the USDL was to enlarge the remedies of dependants, not diminish them. A corollary of that intention is that the USDL was designed to enforce previously determined support obligations by the making of support orders, not to modify or terminate non-USDL support orders. The USDL provides an independent source of jurisdiction over a respondent, unrelated to the continuing jurisdiction attendant to the prior divorce proceeding between the parties. Domestic Relations Law § 41 provide that the USDL shall be construed to furnish “an additional or alternative civil remedy and shall in no way effect or impair any other remedy available to the petitioner.” Clearly, if the “petitioner” prevails here, the respondent’s rights under the divorce decree will have been effected or impaired.
Accordingly, the court held that the order dated November 4, 1999, is reversed, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Suffolk County, for a new hearing and determination in accordance herewith.
The right to be heard is an important part of due process in any proceedings, whether it be a child support proceedings or otherwise. Seek the representation of a competent Suffolk Child Support Attorney and/or Suffolk Family Attorney at Stephen Bilkis and Associates in order to protect your constitutional rights.