BILL NUMBER: S8197
SPONSOR: BRISPORT
 
TITLE OF BILL:
An act to amend the family court act, in relation to the right to coun-
sel in proceedings regarding violations of orders of child support and
to establish paternity or parentage in the family court
2.  
SOURCE OF BILL
This bill is being introduced at the request of the Unified Court
System, upon the recommendation of the Chief Administrative Judge's
Family Court Advisory and Rules Committee.
3.  
PURPOSE OF BILL
This bill fills two longstanding gaps in the provision of legal repre-
sentation to parties in child support violation, paternity, and parent-
age proceedings.
4.  
SUMMARY OF PROVISIONS
Section 1 of the bill amends Family Court Act § 249(a), set out first,
to provide a right to an appointed attorney for the child where a minor
is a party to a child support, paternity, or Uniform Interstate Family
Support Act proceeding.
Section 2 of this bill amends Family Court § 249(a), set out second, to
provide a right to an appointed attorney for the child where a minor is
a party to a child support, paternity, or Uniform Interstate Family
Support Act proceeding.
Section 3 of the bill amends Family Court Act §§ 262(a)(vi) and (viii)
to provide a right to appointed counsel for parties who cannot afford to
obtain counsel in proceedings regarding contempt, willful violation of a
court order, paternity and parentage, including noticed parties who
intervene in parentage proceedings.
Section 4 of the bill amends Family Court Act § 453 to provide a right
to counsel (or, if the party is a minor, an attorney for the child) in
proceedings regarding willful child support violations.
Section 5 of the bill amends Family Court Act § 522 to provide a right
to counsel for petitioners (or, if a petitioner is a minor, an attorney
for the child) in paternity proceedings.
Section 6 of the bill amends Family Court Act § 524 to provide a right
to counsel for respondents (or, if the respondent is a minor, an attor-
ney for the child) in paternity proceedings.
Section 7 of the bill provides that, if enacted, the bill shall take
effect 90 days after it becomes a law.
5.  
JUSTIFICATION
This bill would enhance access to justice and assist the Family Court in
effectively resolving paternity and child support violation cases,
ensuring that both sides, not simply one side, in these cases have a
right to appointed counsel if they cannot afford an attorney and, if a
child is a party, that an attorney for the child be appointed. In
parentage proceedings, counsel for the person acting as a surrogate is
paid for by the intended parents, but there is no provision for counsel
for other individuals who receive notice of and have a right to inter-
vene in these cases. This measure would remedy these significant gaps in
New York State law.
Establishment of a right to counsel under Family Court Act § 262 in 1975
for adults in Family Court, including the right to appointed counsel for
those who cannot afford an attorney, was accompanied by legislative
findings underscoring the importance of this fundamental right. Section
261 of the Family Court Act provides:
Persons involved in certain family court proceedings may face the
infringements of fundamental interests and rights, including the loss of
a child's society and the possibility of criminal charges, and therefore
have a constitutional right to counsel in such proceedings. Counsel is
often indispensable to a practical realization of due process of law and
may be helpful to the court in making reasoned determinations of fact
and proper orders of disposition. The purpose of this part is to provide
a means for implementing the right to assigned counsel for indigent
persons in proceedings under this act.
Through a patchwork of enhancements since 1975, Family Court Act § 262
has been amended to delineate numerous categories of litigants whose
rights are so important that the Legislature has determined they are
entitled to have counsel assigned at public expense if they cannot
afford attorneys. Several of these categories encompass all parties to
the litigation, including, among others, all parties to family offense
proceedings under Article 8 of the Family Court Act, a parent seeking
child custody or contesting "substantial infringement" of custodial
rights, and, in destitute minor cases under Article 10-C of the Family
Court Act, any parents, caretakers, and "interested adults."
However, Article 5 of the Family Court Act is an outlier in requiring
only that counsel be appointed for the respondent in a paternity
proceeding, regardless of whether the respondent is an alleged father or
a birth parent defending an affirmative action by an alleged father.
Likewise, a right to counsel is provided only for respondents in
contempt and willful violation proceedings in child support matters
under Article 4 of the Family Court Act, although petitioners in such
cases may have significant perspectives to convey to the court. It is
anomalous not to provide a right to counsel for both parties in this
type of litigation, as both parties have fundamental interests and
rights regarding determinations of child support, paternity, and parent-
age with respect to children. Finally, although teenagers have sometimes
been parties in both child support violation and paternity proceedings,
both as petitioners and respondents, the current statutes do not clarify
the applicability of the attorney for the child statutes to them.
The rights that are being protected in a proceeding under Article 5 -
either establishing or defending against the establishment of paternity
(and increasingly, maternity) - are fundamentally the same. There is no
reason to provide counsel to a respondent in a paternity case, who may
be an alleged father or a birth parent, but deny counsel to the same
person when they are a petitioner. In addition, many paternity and
parentage proceedings involve third persons such as spouses of birth
parents and earlier signatories of acknowledgments of parentage, whose
status as parents are at risk in these proceedings and who are equally
in need of counsel. Similarly, in Uniform Interstate Child Support Act
cases under Article 5-B of the Family Court Act, there are no procedural
differences in parentage determinations that would justify the denial of
counsel to litigants, especially in light of the extra challenges often
posed by litigation involving parties in different jurisdictions. More-
over, in child support contempt and willful violation proceedings, it
makes little sense not to provide counsel for the party who must initi-
ate and prosecute the proceedings, while providing assistance to the
accused support obligor. Both parties have essential perspectives that
compel access to the assistance of counsel.
Finally, Article 5-C parentage proceedings present special challenges to
litigants. While persons acting as surrogates have a right to have coun-
sel paid for by intended parents (see Family Court Act § 581-603), this
is not the case for the other individuals who are provided notice
regarding the often-complex Child-Parent Security Act cases, including
spouses of birth parents, earlier signatories of acknowledgments of
parentage, and alleged non-anonymous donors. Instead of the relative
certainty of DNA testing that guides determinations in Article 5
proceedings, for example, litigants in cases involving surrogacy agree-
ments or assisted reproduction under Article 5-C must marshal evidence,
inter alia, regarding whether the parties agreed to parentage at the
time of conception and whether the person who provided genetic material
intended to be a donor, rather than a parent. All are potentially in
need of experienced counsel to protect their rights and interests.
6.  
PRIOR LEGISLATIVE HISTORY
This bill passed the Senate in 2024 (S.9696 . Brisport)
7.  
FISCAL IMPLICATIONS
This bill would incur a modest level of local funding under County Law
Article 18-B.
8.  
EFFECTIVE DATE
This bill would take effect on the 90th day after enactment.