Family Court and Willful Failure to Pay Child Support

There is a presumption, applicable to child support enforcement proceedings in Family Court that a party, against whom a child support order was issued, has sufficient means to support his/her minor children. See Family Court Act § 437. The evidence that the party directed to pay child support has failed to pay support as ordered, constitutes “prima facie evidence of a willful violation”. Family Court Act § 454(3)(a). Once the petition alleging willful violation of a child support order was filed in the Family Court, the burden then shifts to respondent to adduce some competent, credible evidence of his/her inability to make the required payments. If the requisite showing is not made, the party will be found to have willfully failed to pay child support. Once this finding is made, the party is liable to a range of penalties, including attorneys fees and possible incarceration.

This presumption does not apply to child support enforcement proceedings brought in Supreme Court under the Domestic Relations law. If an enforcement proceeding is brought in Supreme Court, the usual remedies sought are a judgment for any unpaid arrears, attorneys fees and, possibly, a finding of contempt. The burden of proof applicable to contempt proceedings is much higher than that applicable to the proceedings brought under Family Court Act § 437.

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