As a New York Family Law attorney I handle proceedings for a violation of a Court Order to pay child support.
One of the most serious issues a parent can face in Family Court is an allegation of a violation of a child support order due to willfulness. Many parents misunderstand what a willfulness finding means and what consequences it carries — including possible incarceration.
What Is a Willfulness Hearing?
A willfulness hearing is a court proceeding, usually held in a New York Family Court, where the Support Magistrate determines whether a parent intentionally and knowingly failed to obey a court order to pay child or spousal support in a Fact Finding hearing. The focus is on whether the failure to pay was a deliberate choice — not simply due to an inability to pay. It is wise to hire an experienced family law attorney if you are facing a willful violation of a family court order.
How Much Child Support Must Be Paid?
In New York, for example, the statutory percentages for basic child support are:
- One child: 17% of combined parental income
- Two children: 25%
- Three children: 29%
- Four children: 31%
- Five or more children: No less than 35%
Failing to pay these amounts, if ordered by the court, can lead to arrears and a violation proceeding.
How Are Arrears Calculated?
If you fall behind, your unpaid child support — called arrears — is calculated from the date the custodial parent files the violation petition back to the date the court order began. Each day that passes increases the amount owed because arrears accrue retroactively.
Proper Service and Due Process
Before the family court can make a willfulness finding, the other party must prove you were properly served with the court order. If you were not served, you can request a dismissal or later file a motion to vacate a default finding if you can prove improper service. The burden of proving service is on the party alleging the violation and must be shown by an affidavit of service.
Working On or Off the Books
If you are employed on the books, support magistrates often avoid incarceration because losing your job may defeat the purpose of support enforcement.
If you work off the books, it is vital to document your income and expenses accurately. Keep receipts and, if needed, promptly file for a modification if your circumstances change. Modification petitions stop arrears from increasing based on your old income if filed correctly and on time.
Example:
Imagine you lose your job and cannot pay the full child support amount. If you do not file for a modification, arrears will continue to grow at the ordered rate — not based on your new lower income.
Immigration Status and Limited Income
If your immigration status prevents you from working legally, you must still show diligent efforts to find work or earn income. Maintain a daily job search log, which courts may accept as a business record, to demonstrate good faith.
Payments Outside the Child Support Unit
Always make payments through the Support Collection Unit (SCU) or get clear receipts if paying directly to the custodial parent. If you only buy clothes or food without paying court-ordered cash support, you may still be found in violation.
Defenses Against Willfulness
Common defenses include:
- Inability to pay due to job loss, disability, or documented poverty level income. If your income was below the poverty guidelines during the violation period, arrears may be limited to $250.
- Notice for add-on expenses: If you were not properly notified of extra expenses, this can sometimes serve as a defense.
- Efforts to pay: Even partial payments can help show good faith and may avoid a finding of willfulness.
Note: Criticizing the other parent’s spending habits is not a valid defense — the court expects compliance with its order, regardless of your opinion of the other parent.
What Happens If You Are Found Willful?
If the court finds you willfully violated a child support order:
- You may be ordered to pay a purge amount to avoid incarceration.
- Other enforcement actions include income withholding, probation, and contempt proceedings.
- Repeated violations increase the likelihood of jail time.
Fact-Finding vs. Penalty
A support magistrate determines whether you were willful but does not decide the penalty. A Family Court judge decides penalties, which can include incarceration.
Why Hire an Attorney?
A finding of willfulness can lead to jail. Having an experienced attorney is crucial:
- Your lawyer can negotiate a possible settlement or reduced payment.
- They can protect you from making statements that may be used against you.
- In some cases, your attorney may negotiate a downward modification or help contest a default judgment.
Key Takeaway
If you have a court order for child support, pay something, document everything, and file for modification immediately if your circumstances change. Being proactive can protect you from a devastating willfulness finding and the risk of jail.
If you’re facing a violation of a child support order or a willfulness hearing, seek legal advice immediately.
For questions or representation in Family Court, contact the Gilmer Law Firm PLLC an experienced family law attorney with over 20 years of experience today at 718-864-2011.
