Family Court Support Magistrates and Written Objections
There are many complex nuances to consider when evaluating the hurdles and complications of family law – including cases that involve child support and spousal support. Typically, cases of support, are initiated when petitions are filed with your local New York family court, except divorces, which also can have elements of support, are done in the appropriate local Supreme Courts. Family Court support and paternity cases, are assigned to support magistrates. These professionals are responsible for hearing and helping to determine how support will be awarded. They have the power to grant or determine various forms of relief according to the Family Court Act, regarding proceedings that involve support, the enforcement of support, paternity, or matters regarding the Uniform Interstate Family Support Act. Within any applicable case, the support magistrate present will be given the authority to issue summons, decide motions, and deliver subpoenas according to section 153 of the Family Court Act, as well as deciding proceedings according to section 5241 of Civil Practice Law which involves income executions for support.
What Can Support Magistrates Do?
The part that a support magistrate will play in any given court proceeding will depend on the distinct and unique features of each case. For instance, in a proceeding intended to establish paternity, the magistrate must advise both the putative father, and the mother regarding their right to access counsel. In the same circumstances, the magistrate will advise the putative father and the mother of their right to request DNA tests and other genetic marker testing, however these tests are not always appropriate or ordered as detailed below if estoppel or similar circumstances apply. If a genetic marker test is allowed, from that point, the support magistrate will be given the power to determine all matters regarding that proceeding, including the delivery of an order of filiation which officially names a man the father of a child. An order of filiation can allow a father to file for visitation or parenting time with the child, custody of the child in some cases, and, if the father is the non-custodial parent, the responsibility of paying child support. Once the order of filiation has been issued, and child support becomes relevant, the support magistrate will be given authority to make a temporary and/or final order of support.
Importantly, in child support and other proceedings that take place before a support magistrate, rules of evidence will be applicable. As such, the support magistrate in question will be able to administer oaths, issue subpoenas, and direct parties involved within the proceedings to permit disclosure in expediting the disposition of issues. All matters involved within the proceedings, including the conduct of the trial, the findings of fact and decisions, and any issues incidental to the proceedings must be accordance with any rules provided by the chief administer of the court. What’s more, any proceedings involving the presence of a support magistrate shall be recorded, and a transcript of that recording could be made available in particular circumstances.
What Support Magistrates Cannot Do
Although support magistrates hold a great deal of power and authority within the courts regarding issues of support and paternity, it’s important to be aware of what they cannot do, as well as what they can do. For instance, support magistrates do not have the authority to determine and grant relief from issues regarding commitment (incarceration), contested paternity involving equitable estoppel claims, visitation, or visitation as a defense, custody, orders of protection – which must all be referred to a judge. However, in circumstances wherein the respondent in question denies paternity and that paternity is contested according to grounds of equitable estoppel, the support magistrate will not be able to determine paternity unless and until a judge has determined whether or not equitable estoppel applies to prevent a DNA test. Briefly, equitable estoppel might be applied to prevent a DNA test because for someone that has held himself out as the father of the child by exercising parenting time, providing support or other circumstances. Please see my other blog entries, website or call for more details about equitable estoppel and other topics.
Rulings Given By Support Magistrates and Written Objections
The determination that a support magistrate provides will need to include findings of fact and in most cases, a final order – which is generally delivered to both parties involved. As some parties involved within cases of support and paternity do not always agree with the final orders given, certain written objections to those orders can be served and filed by either party within thirty days of the order if the order is hand delivered to them in court or 35 days of the mailing date of the order. Importantly, any party involved within a case that chooses to file objections against the final order must have a copy of those objections properly served upon the opposing party. What’s more, the opposing party will be given thirteen days in which to file a written rebuttal to the objections given. To ensure that the documentation is received by the opposing party, proof of service must be filed with the court at the same time rebuttal and objections are filed. Once the time given for the opposing party to file their rebuttal has expired, or after fifteen days wherein the rebuttal has been filed, a judge is supposed to review the information and may remand any issues of fact to the support magistrate. The judge might also make their own findings given the information, and with or without a new hearing, choose to grant or deny those objections. Written objections are necessary prerequisite prior to filing an appeal of a ruling by a support magistrate.
During the time in which the review of objections given is pending, the order that was given by the support magistrate will be in full effect. However, in the case that a new order will be issued, payments that the respondent has made that go over the amount dictated by the new order will be applied as credit to following obligations of support.
As with all cases of child support, paternity, and matters of family law, the nuances of each case are often complex, personal, and highly complicated. Without the guidance of a lawyer who has experience in dealing with the matters that you are facing, you could find that the process of achieving your desired outcome may be difficult to accomplish. For more information on the aspects of family law and spousal or child support, please see our other web pages and blog entries. If you would like to discuss your own case, please call about your free initial consultation – it would be our pleasure to speak with you about it.