2006 New York Code - Support Magistrates.



 
    §  439.  Support  magistrates.  * (a)  The  chief administrator of the
  courts shall  provide,  in  accordance  with  subdivision  (f)  of  this
  section,   for  the  appointment  of  a  sufficient  number  of  support
  magistrates  to  hear  and  determine  support  proceedings.  Except  as
  hereinafter  provided,  support  magistrates shall be empowered to hear,
  determine and grant any relief within the powers of  the  court  in  any
  proceeding  under  this  article,  articles five, five-A, and five-B and
  sections two hundred thirty-four and two  hundred  thirty-five  of  this
  act, and objections raised pursuant to section five thousand two hundred
  forty-one of the civil practice law and rules. Support magistrates shall
  not be empowered to hear, determine and grant any relief with respect to
  issues  specified in subdivision five of section four hundred fifty-four
  or section four hundred fifty-five of  this  act,  issues  of  contested
  paternity  involving  claims  of equitable estoppel, custody, visitation
  including visitation as a defense, and orders of protection or exclusive
  possession of the home, which shall be referred to a judge  as  provided
  in  subdivision  (b) or (c) of this section. Where an order of filiation
  is issued by a judge in a paternity proceeding and child support  is  in
  issue,  the  judge,  or support magistrate upon referral from the judge,
  shall be authorized to immediately make a temporary or  final  order  of
  support, as applicable. A support magistrate shall have the authority to
  hear  and  decide  motions  and issue summonses and subpoenas to produce
  persons pursuant to section one hundred fifty-three of  this  act,  hear
  and decide proceedings and issue any order authorized by subdivision (g)
  of section five thousand two hundred forty-one of the civil practice law
  and  rules, issue subpoenas to produce prisoners pursuant to section two
  thousand three hundred two of the civil practice law and rules and  make
  a  determination  that  any  person  before the support magistrate is in
  violation of an order of the court as authorized by section one  hundred
  fifty-six  of  this  act subject to confirmation by a judge of the court
  who shall impose any punishment for such violation as provided by law. A
  determination by a support  magistrate  that  a  person  is  in  willful
  violation  of  an  order under subdivision three of section four hundred
  fifty-four of this article  and  that  recommends  commitment  shall  be
  transmitted  to  the  parties,  accompanied by findings of fact, but the
  determination shall have no force and effect until confirmed by a  judge
  of the court.
    * NB Effective until June 30, 2007
    * (a)  The  chief  administrator  of  the  courts  shall  provide,  in
  accordance with subdivision (f) of this section, for the appointment  of
  a sufficient number of support magistrates to hear and determine support
  proceedings.  Except  as hereinafter provided, support magistrates shall
  be empowered to hear, determine and grant any relief within  the  powers
  of  the  court  in  any  proceeding  under  this article, articles five,
  five-A, and five-B and sections two hundred thirty-four and two  hundred
  thirty-five  of this act, and objections raised pursuant to section five
  thousand two hundred forty-one of the  civil  practice  law  and  rules.
  Support  magistrates shall not be empowered to hear, determine and grant
  any relief with respect to issues  specified  in  section  four  hundred
  fifty-five  of  this act, issues of contested paternity involving claims
  of equitable estoppel, custody, visitation  including  visitation  as  a
  defense,  and  orders of protection or exclusive possession of the home,
  which shall be referred to a judge as provided in subdivision (b) or (c)
  of this section. Where an order of filiation is issued by a judge  in  a
  paternity  proceeding  and  child  support  is  in  issue, the judge, or
  support magistrate upon referral from the judge, shall be authorized  to
  immediately make a temporary or final order of support, as applicable. A
  support  magistrate  shall have the authority to hear and decide motions

and issue summonses and subpoenas to produce persons pursuant to section one hundred fifty-three of this act, hear and decide proceedings and issue any order authorized by subdivision (g) of section five thousand two hundred forty-one of the civil practice law and rules, issue subpoenas to produce prisoners pursuant to section two thousand three hundred two of the civil practice law and rules and make a determination that any person before the support magistrate is in violation of an order of the court as authorized by section one hundred fifty-six of this act subject to confirmation by a judge of the court who shall impose any punishment for such violation as provided by law. A determination by a support magistrate that a person is in willful violation of an order under subdivision three of section four hundred fifty-four of this article and that recommends commitment shall be transmitted to the parties, accompanied by findings of fact, but the determination shall have no force and effect until confirmed by a judge of the court. * NB Effective June 30, 2007 (b) In any proceeding to establish paternity which is heard by a support magistrate, the support magistrate shall advise the mother and putative father of the right to be represented by counsel and shall advise the mother and putative father of their right to blood grouping or other genetic marker or DNA tests in accordance with section five hundred thirty-two of this act. The support magistrate shall order that such tests be conducted in accordance with section five hundred thirty-two of this act. The support magistrate shall be empowered to hear and determine all matters related to the proceeding including the making of an order of filiation pursuant to section five hundred forty-two of this act, provided, however, that where the respondent denies paternity and paternity is contested on the grounds of equitable estoppel, the support magistrate shall not be empowered to determine the issue of paternity, but shall transfer the proceeding to a judge of the court for a determination of the issue of paternity. Where an order of filiation is issued by a judge in a paternity proceeding and child support is in issue, the judge, or support magistrate upon referral from the judge, shall be authorized to immediately make a temporary or final order of support, as applicable. Whenever an order of filiation is made by a support magistrate, the support magistrate also shall make a final or temporary order of support. (c) The support magistrate, in any proceeding in which issues specified in section four hundred fifty-five of this act, or issues of custody, visitation, including visitation as a defense, orders of protection or exclusive possession of the home are present or in which paternity is contested on the grounds of equitable estoppel, shall make a temporary order of support and refer the proceeding to a judge. Upon determination of such issue by a judge, the judge may make a final determination of the issue of support, or immediately refer the proceeding to a support magistrate for further proceedings regarding child support or other matters within the authority of the support magistrate. (d) Rules of evidence shall be applicable in proceedings before a support magistrate. A support magistrate shall have the power to issue subpoenas, to administer oaths and to direct the parties to engage in and permit such disclosure as will expedite the disposition of issues. The assignment of proceedings and matters to support magistrates, the conduct of the trial before a support magistrate, the contents and filing of a support magistrate's findings of fact and decision and all matters incidental to proceedings before support magistrates shall be in accordance with rules provided for by the chief administrator of the
courts. Proceedings held before a support magistrate may be recorded mechanically as provided by the chief administrator of the courts. A transcript of such proceeding may be made available in accordance with the rules of the chief administrator of the courts. (e) The determination of a support magistrate shall include findings of fact and, except with respect to a determination of a willful violation of an order under subdivision three of section four hundred fifty-four of this article where commitment is recommended as provided in subdivision (a) of this section, a final order which shall be entered and transmitted to the parties. Specific written objections to a final order of a support magistrate may be filed by either party with the court within thirty days after receipt of the order in court or by personal service, or, if the objecting party or parties did not receive the order in court or by personal service, thirty-five days after mailing of the order to such party or parties. A party filing objections shall serve a copy of such objections upon the opposing party, who shall have thirteen days from such service to serve and file a written rebuttal to such objections. Proof of service upon the opposing party shall be filed with the court at the time of filing of objections and any rebuttal. Within fifteen days after the rebuttal is filed, or the time to file such rebuttal has expired, whichever is applicable, the judge, based upon a review of the objections and the rebuttal, if any, shall (i) remand one or more issues of fact to the support magistrate, (ii) make, with or without holding a new hearing, his or her own findings of fact and order, or (iii) deny the objections. Pending review of the objections and the rebuttal, if any, the order of the support magistrate shall be in full force and effect and no stay of such order shall be granted. In the event a new order is issued, payments made by the respondent in excess of the new order shall be applied as a credit to future support obligations. The final order of a support magistrate, after objections and the rebuttal, if any, have been reviewed by a judge, may be appealed pursuant to article eleven of this act. (f) The chief administrator shall promulgate written rules for the selection, appointment, reappointment, compensation and training of support magistrates, who shall be attorneys admitted to the practice of law in this state for at least three years and who shall be knowledgeable with respect to the family court and federal and state support law and programs. Support magistrates shall be appointed on a full-time basis for a term of three years and may be reappointed for subsequent terms which shall be five years in length, except that the rules promulgated hereunder may permit the appointment of an acting support magistrate to serve during a support magistrate's authorized leave of absence. Where it is determined that the employment of a full-time support magistrate is not required, one or more counties may agree to share the services of a full-time support magistrate or a support magistrate may be appointed to serve within one or more counties on a part-time basis.

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