Fill and Sign the Federal Court of Appeal Reaffirms the Onus of Proof Rules in Form

F.C.A. § § 156, 439(a); Article 5-B Form 4-12c (Order Upon Support Magistrate Determination of Willfulness) 12/2012 At a term of the Family Court of the State of New Y ork, held in and for the County of at , New Y ork, on PRESENT: Hon. Judge ................................................... ...................... In the matter of a Proceeding under Article(4)(5-B) of the Family Court Act Docket No. (Commissioner of Social Services, Assignee, on behalf of , Assignor) ORDER (Order Upon Support Magistrate Determination Petitioner of Willfulness) S.S.#: xxxx-xx- -against- Respondent. S.S.#: xxxx-xx- ................................................... ...................... NOTICE: YOUR WILLFUL FAILURE TO OBEY THIS ORDER MAY RESULT IN INCARCERATION FOR CRIMINAL NON-SUPPORT OR CONTEMPT. YOUR FAILURE TO OBEY THIS ORDER MAY RESULT IN SUSPENSIO N OF YOUR DRIVER’S LICENSE, STATE-ISSUED PROFESSIONAL, TRADE, BUSINESS AND OCCUPATIONAL LICENSES AND RECREATIONAL AND SPORTING LICENSES AND PERMITS; AND IMPOSITION OF REAL OR PERSONAL PRO PERTY LIENS. An order in the above-entitled proceeding dated , , having been duly made and entered herein by a Support Magistrate of this Court containing a determination that Respondent has willfully failed to obey an order of the Court pursuant to Section 156 of the Family Court Act and referring the determination to a Judg e of this Court for confirmation in accordance with Section 439 (a) of the Family Court Act; Form 4-12c Page 2 [Delete if inapplicable]: 1 And the Respondent having Qshown Qfailed to show good cause for failure to make applications for relief f rom the order of this court directing payment prior to the accrual of the arrears; IT IS HEREBY QADJUDGED that the Respondent failed to obey the ord er of this Court and that such failure Q was Q was not willful; OR Q ADJUDGED that the Respondent did not fail to obey t he order of this Court; and it is further Q ADJUDGED that the Respondent knowingly, consciously and voluntarily disregarded (his)(her)obligation under a lawful court order in that Respondent willfully failed to pay the sum of $ wh ich amount the Court finds to be the arrears due an d owing under the Order. And the name, date of birth and social security num ber of the child(ren) involved is/are; NAME DATE OF BIRTH LAST 4 DIGITS OF SOC. SEC. # The name, address and telephone number of Responden t’s current employer(s) are: NAME ADDRESS TELEPHONE NOW after examination and inquiry into the facts an d circumstances of the case (and after hearing the proofs and testimony offered in relatio n thereto) it is hereby ; ORDERED that the determination of the Support Magis trate pursuant to Section 156 of the Family Court Act made herein that Respondent wi llfully failed to obey an order of the Court “ is 2 “ is not hereby confirmed; and ORDERED that a copy of this order be provided promp tly by [check applicable box]: “ IV-D cases: Support Collection Unit “ Non-IV-D cases: Clerk of Court to the New York 1To be used in instances of spousal support or maint enance. 2If the determination of the Support Magistrate is confirmed, this order must be accompanied by Form 4-12b (Order of Disposition for Violation of Support Order). Form 4-12c Page 3 State Case Registry of Child Support Orders established pursuant to Section 111-b(4-a) of the Social Services Law ; and it is further ORDERED ENTER __________________________________ __ Judge of the Family Court Dated: , . Check applicable box: 9 Order mailed on [specify date(s) and to whom maile d ]:___________________________ 9 Order received in court on [specify date(s) and to whom given]:_____________________ INFORMATION CONCERNING COST OF LIVING ADJUSTMENTS AND MODIFICATIONS (1) THIS ORDER OF CHILD SUPPORT SHALL BE ADJUSTED BY THE APPLICATION OF A COST OF LIVING ADJUSTMENT AT THE DIRECTION OF THE SUPPORT COLLECTION UNIT NO EARLIER THAN TWENTY-FOUR MONTHS AFTER THIS ORDER IS ISSUED, LAST MODIFIED OR LAST ADJUSTED, UPON THE REQUEST OF ANY PARTY TO THE ORDER OR PURSUANT TO PARAGRAPH ( 2) BELOW. UPON APPLICATION OF A COST OF LIVING ADJUSTMENT AT THE DIRECTION OF THE SUPPORT COLLECTION UNIT, AN ADJUST ED ORDER SHALL BE SENT TO THE PARTIES WHO, IF THEY OB JECT TO THE COST OF LIVING ADJUSTMENT, SHALL HAVE THIRTY-FI VE (35) DAYS FROM THE DATE OF MAILING TO SUBMIT A WRITTEN OBJECTION TO THE COURT INDICATED ON SUCH ADJUSTED ORDER. UPON RECEIPT OF SUCH WRITTEN OBJECTION, THE COURT SHALL SCHEDULE A HEARING AT WHICH THE PARTIES MAY BE PRESENT TO OFFER EVIDENCE WHICH THE COURT WILL CONS IDER IN ADJUSTING THE CHILD SUPPORT ORDER IN ACCORDANCE WITH THE CHILD SUPPORT STANDARDS ACT. (2) A RECIPIENT OF FAMILY ASSISTANCE SHALL HAVE TH E CHILD SUPPORT ORDER REVIEWED AND ADJUSTED AT THE DIRECTIO N OF THE SUPPORT COLLECTION UNIT NO EARLIER THAN TWENTY- FOUR MONTHS AFTER SUCH ORDER IS ISSUED, LAST MODIFIED O R LAST ADJUSTED WITHOUT FURTHER APPLICATION OF ANY PARTY. ALL PARTIES WILL RECEIVE NOTICE OF ADJUSTMENT FINDINGS. Form 4-12c Page 4 (3) WHERE ANY PARTY FAILS TO PROVIDE, AND UPDATE UPON ANY CHANGE, THE SUPPORT COLLECTION UNIT WITH A CURRENT ADDRESS TO WHICH AN ADJUSTED ORDER CAN BE SENT, AS REQUIRED BY SECTION 443 OF THE FAMILY COURT ACT. THE SUPPO RT OBLIGATION AMOUNT CONTAINED THEREIN SHALL BECOME DUE AND OWING ON THE DATE THE FIRST PAYMENT IS DUE UNDER THE TERMS OF TH E ORDER OF SUPPORT WHICH WAS REVIEWED AND ADJUSTED OCCURRING ON OR AFTER THE EFFECTIVE DATE OF THE ORDER, REGARDLESS O F WHETHER OR NOT THE PARTY HAS RECEIVED A COPY OF THE ADJUSTED O RDER. (4) IN ADDITION TO A COST OF LIVING ADJUSTMENT, EACH PARTY HAS A RIGHT TO SEEK A MODIFICATION OF THE CHILD SUPPORT ORDER U PON A SHOWING OF: (I) A SUBSTANTIAL CHANGE IN CIRCUMSTANCES; OR (II) THAT THREE YEARS HAVE PASSED SINCE THE ORDER WAS ENTERED, LAST MODIF IED OR ADJUSTED; OR (III) THERE HAS BEEN A CHANGE IN EITHER PARTY'S GROSS INCOME BY FIFTEEN PERCENT OR MORE SINCE THE ORDER WAS ENTERED , LAST MODIFIED, OR ADJUSTED; HOWEVER, IF THE PARTIES HAVE SPECIFICA LLY OPTED OUT OF SUBPARAGRAPH (II) OR (III) OF THIS PARAGRAPH IN A V ALIDLY EXECUTED AGREEMENT OR STIPULATION, THEN THAT BASIS TO SEEK M ODIFICATION DOES NOT APPLY. PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.