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Mike, Lawyer
Category: Family Law
Satisfied Customers: 573
Experience:  Family law experience and many years of legal analysis and research
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what is neededfor article 4 of the family court act for ...

Resolved Question:

what is neededfor article 4 of the family court act for modification of order of support: my petion was dismissed petitioner me failed to present a prima facie case pursuant to family court act 451 to warrant application
Submitted: 9 years ago.
Category: Family Law
Expert:  Mike replied 9 years ago.
Here is the part of the ACT you are providing, but it doesn't speak on Prima Facia issues:

S 454. Powers of the court on violation of a support order. 1. If a
respondent is brought before the court for failure to obey any lawful
order of support and if, after hearing, the court is satisfied by
competent proof that the respondent has failed to obey any such order,
the court may use any or all of the powers conferred upon it by this
part. The court has the power to use any or all enforcement powers in
every proceeding brought for violation of a court order under this part
regardless of the relief requested in the petition.
2. Upon a finding that a respondent has failed to comply with any
lawful order of support:
(a) the court shall enter a money judgment under section four hundred
sixty of this article; and
(b) the court may make an income deduction order for support
enforcement under section fifty-two hundred forty-two of the civil
practice law and rules;
(c) the court may require the respondent to post an undertaking under
section four hundred seventy-one of this article;
(d) the court may make an order of sequestration under section four
hundred fifty-seven of this article.
(e) the court may suspend the respondent`s driving privileges pursuant
to section four hundred fifty-eight-a of this article.
(f) the court may suspend the respondent`s state professional or
business license pursuant to section four hundred fifty-eight-b of this
(g) the court may suspend the recreational license or licenses of the
respondent pursuant to section four hundred fifty-eight-c of this
(h) the court may require the respondent, if the persons for whom the
respondent has failed to pay support are applicants for or recipients of
public assistance, to participate in work activities as defined in title
nine-B of article five of the social services law. Those respondents
ordered to participate in work activities need not be applicants for or
recipients of public assistance.
3. Upon a finding by the court that a respondent has willfully failed
to obey any lawful order of support, the court shall order respondent to
pay counsel fees to the attorney representing petitioner pursuant to
section four hundred thirty-eight of this act and may in addition to or
in lieu of any or all of the powers conferred in subdivision two of this
section or any other section of law:
(a) commit the respondent to jail for a term not to exceed six months.
For purposes of this subdivision, failure to pay support, as ordered,
shall constitute prima facie evidence of a willful violation. Such
commitment may be served upon certain specified days or parts of days as
the court may direct, and the court may, at any time within the term of
such sentence, revoke such suspension and commit the respondent for the
remainder of the original sentence, or suspend the remainder of such
sentence. Such commitment does not prevent the court from subsequently
committing the respondent for failure thereafter to comply with any such
order; or
(b) require the respondent to participate in a rehabilitative program
if the court determines that such participation would assist the
respondent in complying with such order of support and access to such a
program is available. Such rehabilitative programs shall include, but
not be limited to, work preparation and skill programs, non-residential
alcohol and substance abuse programs and educational programs; or
(c) place the respondent on probation under such conditions as the
court may determine and in accordance with the provisions of the
criminal procedure law.
4. The court shall not deny any request for relief pursuant to this
section unless the facts and circumstances constituting the reasons for
its determination are set forth in a written memorandum of decision.
* 5. The court may review a support collection unit`s denial of a
challenge made by a support obligor pursuant to paragraph (d) of
subdivision twelve of section one hundred eleven-b of the social
services law if objections thereto are filed by a support obligor who
has received notice that the department of social services intends to
notify the department of motor vehicles that the support obligor`s
driving privileges are to be suspended. Specific written objections to a
support collection unit`s denial may be filed by the support obligor
within thirty-five days of the mailing of the notice of the support
collection unit`s denial. A support obligor who files such objections
shall serve a copy of the objections upon the support collection unit,
which shall have ten days from such service to file a written rebuttal
to such objections and a copy of the record upon which the support
collection unit`s denial was made, including all documentation submitted
by the support obligor. Proof of service shall be filed with the court
at the time of filing of objections and any rebuttal. The court`s review
shall be based upon the record and submissions of the support obligor
and the support collection unit upon which the support collection unit`s
denial was made. Within forty-five days after the rebuttal, if any, is
filed, the family court judge shall (i) deny the objections and remand
to the support collection unit or (ii) affirm the objections if the
court finds the determination of the support collection unit is based
upon a clearly erroneous determination of fact or error of law,
whereupon the court shall direct the support collection unit not to
notify the department of motor vehicles to suspend the support obligor`s
driving privileges. Provisions set forth herein relating to procedures
for appeal to the family court by individuals subject to suspension of
driving privileges for failure to pay child support shall apply solely
to such cases and not affect or modify any other procedure for review or
appeal of administrative enforcement of child support requirements.
* NB Repealed June 30, 2005
Customer: replied 9 years ago.
it has been three years since supoort was heard and I am trying to get my support increased and they have turn my proceeding down due to failure to allege a sufficient changein circumstancewhich would justify a modification i have 30 days to file and objection to this and I wnat to know what I need to do this
Expert:  Mike replied 9 years ago.
What is the change in circumstance? Please provide and I will review
Customer: replied 9 years ago.
the cost of raiseing the two girls, cost more as they are older, clothing is costing more food has gone up and they eat more the father i feel has had and increase in pay since he has all of a sudden in april he paid 6,000 inarears child support and then again he paid 2,000 inthe beginning of may and now after thee years he can afford all this makes me wonder if he has had a increase in pay, he also for the first time paying on time and he has also remarried and has a child due in july and can aford to travel from ga to ny with me trying to make ends meet, and in ny it is 17% for one child and 25% for 2 and I don't know how to get this modified to do this
Expert:  Mike replied 9 years ago.

What will hamper is that his change in circumstance will be the new child. As for your situation, you would need to obtain his financials to prove to the court his pay has increased. And if it has this would give you the grounds to modify. But, lets get past the speculation, what facts do you have to pursue a modification?
Customer: replied 9 years ago.
just that he now can afford things and money seems to be there now and was claiming poverty for so long and to come up with the money he has in the last two months just to me through child suport collection unit has been 8,000 plus his regular month support of 962.00 he is in the service and has taken courses to move up in rank but I don't know how to prove this without a court date and i am having a problem with getting one if i could get this then he would have to prove income and acount for where all this money is comming from and if my children are entiled to but I need to know how i can file a petition or specificwritten objection to this dismissal so I can at least get a court date I have 30 days to sumitt my objections and I don't want to screw it up
Expert:  Mike replied 9 years ago.
He is required by law to provide his financials. As for proving he is a higher rank, you would only need to call his comand and request the rank of said person, or you can email the comand and request the rank, and with the rank you can look up the pay scale online from OPM and or the service section he is in.
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