Men Face Jail In New York for Child Support Arrearages
The class acton lawsuit Martinez versus Office of Court Administration seeks to speed up enforcement of child support arrearages. Certain mothers allege that family court support magistrates are dragging their heels in getting money into the hands of mothers to support their children. Dads beware!
The Support Violation Petition Seeking Willfulness in New YorkUnder current statute, any person receiving child support can allege that the obligor failed to pay. In one case I had before Magistrate Contaratos in Queens Family Court, the mother alleged $200,000 in arrears with no showing of any arrears. Hence the petitioner merely alleges and no proof is required except at a hearing.
On another case before Judge Connie Gonzalez, the referring magistrate listened to a hearing and ignored everything the obligor said. She then sprung a 100% purge amount on the obligor and referred him to Gonzalez. The man came with cash which the recipient refused to accept causing an adjournment for payment through the support collection unit.
In both cases, the court was simply ready to jail the men. In both cases, the men did not know what they owed at any point in litigation until jail was imminent. In one case, the mother refused to take payment in court. In both cases, the judges were females and both opposing counsel were females.
No Defenses and No ProceduresThe New York Family Court Act is all the due process the young father is going to get. Once the arrearages build up even either hypothetically or falsely, the mother files her petition and jail is imminent. The procedure used requires the magistrate to either find willfulness (failure to pay while having the ability to pay) or not.
If willfulness is found, then incarceration begins that day. If the parties arrive at an accommodation, it cannot be entered as a modification to the order of support because the enforcement court has no jurisdiction to enter modifications. If the case needs to be put on hold (taken off calendar), the magistrate has no authority to take the matter off calendar.
So in a case where the mother cannot prove any arrearages yet the man wants to and the incessant trips to court and missing work, the court cannot modify the order of support even if the parties consent.
No ProfessionalismMagistrates with whom I have spoken all say that the New York Office of Court Administration is coming down hard on magistrates. Magistrates are having their records scrutinized and their transcripts reviewed with a fine toothed comb as to why men are getting away without jail for non-payment of support.
The net results is Judge Martinez spoke down to my client and me about why wasn't he paying through support collections and why he brought cash to the courthouse. Whenever I represent men in family court, I get yelled at, and when I represent women, I get red carpeted. I never heard of a cash payment being rejected by a mother and getting a reprimand from a judge. Men can never do right.
These orders of support do not get scrutinized and why men cannot find jobs is also not scrutinized.
Flaky Order of SupportThe writers of the support law were familiar with W-2 employment, and they wrote a process for New York's employees: they wrote an income-shares model that heavily depends on knowledge of the obligor's income. If the obligor is self-employed or works off the books, then chaos is the result.
Provisions of child support law permit the magistrate to make a finding that the man is hiding income. This hiding triggers application of rules that permit the magistrate to whip up income figures from thin air. These figures then serve as a basis for a calculation of child support the man may or may not be able to pay.
Some men are never served and discover their arrearages once a warrant is entered for the man's arrest. Some men appear unrepresented and get imputed support orders. Others are unknown to the woman who has to search and locate the man to petition for his appearance in family court.
Threats of JailSome judges in New York pride themselves on threatening men with jail. They say that such threats cause money to appear like magic. Perhaps other women love those men and cannot have them separated for any period of time because that family will fall apart once the paycheck is gone and sitting in jail.
Most men disagree that they need threats of jail. They need steady employment which in today's America is inherited or won in a powerball lottery. Another problem is the provisional nature of relationships in the U.S. that encourage dramatic breakups (domestic violence arrests).
Ultimately, we now have a system of near automatic incarceration of any man accused of failing to pay on an order of support. I cannot imagine women accusing men of sexual assaults many decades ago being fielded in this system. Society as we know it will cease to exist.