Friday, March 14, 2014

Support through CPS proceedings - how about equal procedure?

NY Bill A2956-2013 authorizes the court to make an order of support in assistance or as a condition of any other order made in a child protective proceeding directing that a person who is liable to pay support pursuant to the provisions of article four of the family court act and who is a party to the proceeding, contribute to the support of the child or the spouse without the need for further proceedings.


I wonder if the esteemed legislators are aware of the regular court procedure in child neglect proceedings (Article 10 of the Family Court Act) and in child and spousal support proceedings (Article 4 of the Family Court Act).


                        Article 10   child neglect                                    Article 4 support


Who starts           CPS Commissioner                                      Whoever is owed child support -
                                                                                                  parent or legal guardian


                                                                                                  Spouse for spousal support


Who presides      Elected Family Court                                    Appointed support
                            Judge                                                             magistrate


Who reviews       NYS Supreme Court                                     1) Elected Family Court Judge
appeals                Appellate Division                                        of that county - objections to finding
                                                                                                   of support;


                                                                                                  2) NYS Supreme Court Appellate
                                                                                                       Division


How many         1 (one)                                                                 2 (two)
appellate
layers
between
finding of
support and
Appellate
Division


What follows from the above table is that, for the sake of convenience (expediency) of the court, a parent who has the misfortune of being brought into child abuse or neglect proceedings by the CPS, is somehow denied equal procedural protections that other parents have.


For a parent sued by CPS, Family Court judge who is normally an appellate judge in support proceedings, becomes a trial judge, and the parent loses a whole layer (step) of appellate review.


Moreover, in CPS proceedings, if CPS does not have custody of the subject child and the custodial parent is not brought in as a Respondent in the CPS proceedings, the court will find itself awarding child support to a non-party ("interested party")?  That simply cannot happen in court proceedings.


I do not believe this one passes constitutional muster under the Equal Protection Clause of the 14th Amendment of the U.S. Constitution.



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