new-york-state civil-law family-law
Can a lay person help a friend bring a petition of violation of child support to Family Court?
<p>A friend of the family, who only got up to the fifth grade, needs to file a petition for violation for child support in Family Court.  I can help her assemble her evidence -- it's pretty simple, it's bank statements showing the shortfall in the father's payments -- and I can help her fill out the form and write the letter.  But I would like to help her present her case in Family Court.  It's a simple case, but my friend can't do it alone -- her first language isn't English, and she gets nervous, flustered and can't function well when she goes to Family Court, even when there's a translator present.</p>

<p>The reason I don't want to use a lawyer is that when we used a lawyer for a similar petition, about unpaid medical expenses, the father convinced my friend's lawyer that he's a poor shmo who shouldn't be blamed for not paying what he should, and the lawyer didn't go after him aggressively enough.</p>

<p>I would not let myself be beguiled.</p>

<p>Side question: how far back in time can we go?  We already found proof going back two full years, and with more digging we might be able to go back farther.</p>

<p>(Please don't feel tempted to feel sorry for the father.  He earns three times as much as the mother does, and he doesn't have shared custody.  He doesn't even have the child for visits any more.  He dropped the child like a hot potato a year ago when the child was discovered to have epilepsy.  Also note, the amount of child support is tragically small -- $100/week.  We are going to petition to increase this, but we want to clear up the violation first.)</p>

<p>(Would like to create new tag for Family Court, not enough rep.)</p>

<p><strong>Edit 9/27/16</strong></p>

<p>Update: I was allowed to go in and sit next to my friend, which she found helpful as moral support.</p>

<p>The important thing we learned subsequently is that for an amazingly low fee, there is legal help available for this type of action, through the Department of Social Services.</p>

<p>Another thing I learned is that the low-man-on-the-totem-pole front desk receptionist at our court was not very helpful, but the main court clerk was.  I learned to phone ahead and make sure the court clerk was in before delivering paperwork.  I learned to check with the court clerk to make sure we were doing things right.</p>

<blockquote>
<h3>How to Best Help</h3>
<p>I suggest you ask around at the courthouse. You might need to get advanced permission from the judge. Every courthouse is setup a bit differently so it's hard to say exactly whom you will need to ask. But ultimately that will probably require the judge's advanced approval.</p>
</blockquote>
<h3>Order of Child Support</h3>
<p>You used the term <em><strong>violation</strong></em> so I will assume the mother has in her possession a copy of the <em><strong>Order of Child Support</strong></em> (OCS) resulting from the divorce or paternity case that determined the amount and timing of support payments she is entitled to. Correct?</p>
<p>Aside: If the mother doesn't already have an OCS it's pretty simple to get one. Most states just have a standard set of forms and a formula to apply. There is very little subjectivity involved. Unless one or more of the parties has unreported or variable income. And she can also collect back child support too.</p>
<h3>Back Child Support</h3>
<p>AFAIK you are not barred by statute for seeking back support as far back as when dad's obligation began. Which AFAIK is when mom became the primary caregiver. In practical terms, this would be the first day mom had the kids living with her and dad didn't live with them.</p>
<h3>Interest on Unpaid Child Support</h3>
<p>Most states allow mom to collect interest on (ordered but) unpaid child support at a rate set by statute. In some states the interest rate is in the 9 to 12% range. You need to compute it using a spreadsheet. You go back to each ordered monthly obligation, calculate the number of months from then until the current date, then multiply that number times the obligation amount times 1/12 of the interest rate. Then add all those months together to get the total. Like I said, a spreadsheet is the easiest way to do this calculation.</p>
<h3>Motion for Contempt of Court</h3>
<p>Assuming you have acquired an OCS, enforcement is also pretty straightforward. In some states, the mechanism to force the father to pay is called a <em><strong>Motion for Contempt of Court</strong></em> for violating the OCS. Again, it's so common, unfortunately, most courthouses support <em><strong>pro se</strong></em> litigants by having all the necessary forms on hand and volunteers to help people fill them out! When mom files the contempt motion with the court she will schedule a date for a <em><strong>Show Cause Hearing</strong></em>, at which time dad will need to appear and explain why he should not either pay up or be found in contempt of court. Courts enforce child support VERY strictly. So the paperwork alone should be enough for her to win her case.</p>
<h3>Unlicensed Practice of Law</h3>
<p>As for you &quot;helping her&quot; in court. Be very careful. That sounds dangerously like practicing law without a law license. There is a thing called a &quot;bar&quot; in the courtroom that only attorneys or clients are allowed to cross (by practice and tradition). That's where the term <em><strong>bar exam</strong></em> originated. Anyway, if you want to try that, be very careful and you might want to run that by the judge or clerk and get prior approval first because the unlicensed practice of law has the potential to be a sticky wicket.</p>
<h3>Use of an Interpreter</h3>
<p>I would be shocked if the court did not make allowances for non-native English speakers to use the services of an interpreter in the courtroom. That's something you definitely need to ask around at the courthouse for all the details. And whether the interpreter needs to be licensed, registered or otherwise approved by the court in advance.</p>
<h3>Process Service</h3>
<p>One last point. Make sure to properly <em><strong>process serve</strong></em> dad with the motion and paperwork. Process service is what will bind him to appear at the show cause hearing. You should be able to find forms, instructions and a professional process server by asking around down at the courthouse.</p>
<p>Dad will have a chance to respond in writing to the motion prior to the hearing. And mom will have a chance to respond to his response. Ask around at the courthouse how all this works. Especially the deadlines involved. These are also strictly enforced.</p>
<h3>State Registry Enforcement Assistance</h3>
<p>One last, last point. In the future, it might help if the OCS made a provision for the father to pay directly to the state registry for child support enforcement. The will keep track of all the payments and can provide enforcement assistance like levying bank accounts and garnishing wages, etc. So that could help with future enforcement.</p>
<h3>Disclaimer</h3>
<p>I am not a lawyer. I am not your lawyer and you nor the mom are my client. <em><strong>This is not legal advice.</strong></em> So please don't do anything based on what I write here; if you do, please be aware you do so at your own risk. So seek the advice of a real lawyer if you are going to actually do anything that might create an issue.</p>
