N.Y. Family Court Act § 439: 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, five-B and five-C

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 article,

issues of contested parentage involving claims of equitable estoppel,

custody, visitation including visitation as a defense, determinations of

parentage made pursuant to section 581-407 of this act, 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 August 31, 2027

* (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 article, 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 August 31, 2027

(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 and an application to change the name of the child

pursuant to section sixty of the civil rights law, 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 or electronic transmission of the order to such party or

parties. A party filing objections shall arrange for the service by a

non-party over the age of eighteen of a copy of such objections upon the

opposing party, who shall have thirteen days from such service to file a

written rebuttal to such objections, which shall be served by a

non-party over the age of eighteen upon the other party. Proof of

service upon the opposing party shall be filed with the court at the

time of filing of objections and any rebuttal. Within thirty-five days

after the objection is filed, 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, the judge's 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.