Under New York State law, in a support proceeding where a violation is alleged to have occurred, the court, under the Family Court Act, may commit the party who failed to make payments to jail, so long as the party’s failure to pay was a willful violation of the court’s prior order of support. In this type of proceeding, it is critical that you have representation. Under New York State law, you are entitled to be represented by a Criminal Defense Attorney and must be given the opportunity to be heard and to present witnesses.
In this type of hearing under New York’s Family Court Act, the petitioner must show that respondent failed to pay the child support and that the failure was willful, which means the Respondent had the means to pay, but choose not to. In cases, where a party purposefully quits a job or takes a job where he or she makes so much less that the party can no longer pay child support, the failure to pay is nevertheless deemed willful. However, where a party does not have any funds and also lacks the means to obtain funds, the violation is not willful.
Once the Petitioner establishes the child support was not paid, the burden shifts to the respondent to provide evidence that the failure to pay child support was not willful. In other words, if you do not set forth evidence showing that you did not pay because you lacked the means, then the court will assume you had the ability but willfully failed to make the payments.
For more questions talk to a Criminal Defense Attorney Buffalo Ny