Bill S5902-2009

Relates to the child support obligation of indigent parents

Relates to the child support obligation of indigent parents.

Details

Actions

  • May 26, 2010: ADVANCED TO THIRD READING
  • May 25, 2010: 2ND REPORT CAL.
  • May 24, 2010: 1ST REPORT CAL.615
  • Apr 27, 2010: REPORTED AND COMMITTED TO CODES
  • Jan 6, 2010: REFERRED TO CHILDREN AND FAMILIES
  • Jun 18, 2009: REFERRED TO RULES

Votes

VOTE: COMMITTEE VOTE: - Children and Families - Apr 27, 2010
Ayes (6): Montgomery, Schneiderman, Huntley, Duane, McDonald, Marcellino
VOTE: COMMITTEE VOTE: - Codes - May 24, 2010
Ayes (16): Schneiderman, Breslin, Duane, Parker, Huntley, Sampson, Klein, Perkins, Squadron, Volker, Saland, DeFrancisco, Bonacic, Golden, Lanza, Flanagan

Memo

 BILL NUMBER:  S5902

TITLE OF BILL :

An act to amend the domestic relations law and the family court act, in relation to the child support obligation of indigent non-custodial parents

This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of her Family Court Advisory and Rules Committee.

In 1993, the New York State Court of Appeals, in Rose v Moody, 83 NY2d 65 1993 , cert. denied, 511 US 1084 1994 , held subdivision (1-b) of section 240 of the Domestic Relations Law and subdivision one of section 413 of the Family Court Act unconstitutional insofar as these provisions impose an inflexible minimum child support obligation against support obligors whose income would, by virtue of the obligation, fall below the poverty level. The Court ruled that the irrebuttable presumption mandating that an indigent, non-custodial parent be ordered to pay a minimum of $25 per month in child support contravened the Federal Child Support Enforcement Act Social Security Act, Title IV-D §467(b)(2), as amended, 42 USCA §667(b)(2) , thus violating the constitutional principle of Federal preemption. While the effect of the Court's ruling has been to require that support obligors be permitted to rebut the presumption in favor of a minimum obligation of $25 per month, the statutory language has not been conformed accordingly.

Additionally, in cases where the basic child support obligation would reduce the non-custodial parent's income to a level below the self-support reserve but not below the poverty level, both subdivisions provide alternative standards for determining child support, that is, the greater of $50 per month or the difference between the non-custodial parents' income and the self-support reserve. However, both statutes are silent regarding whether separate amounts may also be ordered in such cases for child care, future medical and educational expenses, in accordance with subparagraphs four, five, six and seven of paragraph (c) of both subdivision one of section 413 of the Family Court Act and subdivision (1-b) of section 240 of the Domestic Relations Law. Several cases have, therefore, disallowed the inclusion of any of these expenses as part of the child support order in such circumstances. See Callen v Callen, 287 AD2d 818 3rd Dept 2001 ; In Re Rhianna R., 256 AD2d 1184 4th Dept 1998 (citing Matter of Cary (Mahady) v Megrell, 219 AD2d 334 3rd Dept 1996 , Iv App Dismissed, 88 NY2d 1065 1996 ); Dunbar v. Dunbar, 233 AD2d 922 4th Dept 1996 .

On the advice of our Advisory Committee, we propose this measure to correct these anomalies and to codify the decision in Rose v Moody. This measure would make the presumption in favor of a minimum order of $25 per month rebuttable by a showing that such an order would be unjust or inappropriate, based upon the ten factors applicable to departures from the child support standards. See Domestic Relations Law §240(1-b)(f); Family Court Act §413(1)(f). Family Court and Supreme Court would thus be authorized to order payment of an amount it deems to be just and appropriate. It would eliminate the proviso that " i n no instance shall the court order child support below $25 per month." Finally, the measure would clarify that in cases where imposition of the basic child support obligation would reduce the non-custodial parent's income to an amount below the self-support reserve, but not the poverty level, the Court would be authorized, although not required, to direct payments for child care, educational and health care expenses, as part of its child support order.(1)

This measure, which would take effect 90 days after becoming a law, would have no meaningful fiscal impact on the public Treasury.

2003-04 LEGISLATIVE HISTORY : Senate 3572 (Rath) Passed

2005-06 LEGISLATIVE HISTORY : OCA 2005-53 Assembly 8656 (Rules-Glick) Codes Assembly 8380 (Rules, Glick et at) Codes

2007-08 LEGISLATIVE HISTORY : Senate 4536 (Kruger) Social Services, Children & Families Assembly 8513 (M. of A. O'Donnell) Judiciary

FOOTNOTE : (1) The measure does not change the current alternate standards for determining the amount of child support that the Court may order in such cases - that is, the greater of $50 per month or the difference between the non-custodial parent's income and the self-support reserve. Deletion of the current standards in the measure passed by the Legislature in 2002 had prompted a gubernatorial veto. See Governor's Veto Message 2 S.3434-A .










































Text

STATE OF NEW YORK ________________________________________________________________________ 5902 2009-2010 Regular Sessions IN SENATE June 18, 2009 ___________
Introduced by Sen. MONTGOMERY -- (at request of the Office of Court Administration) -- read twice and ordered printed, and when printed to be committed to the Committee on Rules AN ACT to amend the domestic relations law and the family court act, in relation to the child support obligation of indigent non-custodial parents THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Paragraphs (d), (g) and (i) of subdivision 1-b of section 240 of the domestic relations law, paragraphs (d) and (i) as added by chapter 567 of the laws of 1989 and paragraph (g) as amended by chapter 41 of the laws of 1992, are amended to read as follows: (d) Notwithstanding the provisions of paragraph (c) of this subdivi- sion, where the annual amount of the basic child support obligation would reduce the non-custodial parent's income below the poverty income guidelines amount for a single person as reported by the federal depart- ment of health and human services, the basic child support obligation shall be twenty-five dollars per month [or the difference between the non-custodial parent's income and the self-support reserve, whichever is greater], PROVIDED, HOWEVER, THAT IF THE COURT FINDS THAT SUCH BASIC CHILD SUPPORT OBLIGATION IS UNJUST OR INAPPROPRIATE, WHICH FINDING SHALL BE BASED UPON CONSIDERATIONS OF THE FACTORS SET FORTH IN PARAGRAPH (F) OF THIS SUBDIVISION, THE COURT SHALL ORDER THE NON-CUSTODIAL PARENT TO PAY SUCH AMOUNT OF THE CHILD SUPPORT AS THE COURT FINDS JUST AND APPRO- PRIATE. Notwithstanding the provisions of paragraph (c) of this subdi- vision, where the annual amount of the basic child support obligation would reduce the non-custodial parent's income below the self-support reserve but not below the poverty income guidelines amount for a single person as reported by the federal department of health and human services, the basic child support obligation shall be fifty dollars per month or the difference between the non-custodial parent's income and
the self-support reserve, whichever is greater, IN ADDITION TO ANY AMOUNTS THAT THE COURT MAY, IN ITS DISCRETION, ORDER IN ACCORDANCE WITH SUBPARAGRAPHS FOUR, FIVE, SIX AND/OR SEVEN OF PARAGRAPH (C) OF THIS SUBDIVISION. (g) Where the court finds that the non-custodial parent's pro rata share of the basic child support obligation is unjust or inappropriate, the court shall order the non-custodial parent to pay such amount of child support as the court finds just and appropriate, and the court shall set forth, in a written order, the factors it considered; the amount of each party's pro rata share of the basic child support obli- gation; and the reasons that the court did not order the basic child support obligation. Such written order may not be waived by either party or counsel; provided, however, and notwithstanding any other provision of law, the court shall not find that the non-custodial parent's pro rata share of such obligation is unjust or inappropriate on the basis that such share exceeds the portion of a public assistance grant which is attributable to a child or children. [In no instance shall the court order child support below twenty-five dollars per month.] Where the non-custodial parent's income is less than or equal to the poverty income guidelines amount for a single person as reported by the federal department of health and human services, unpaid child support arrears in excess of five hundred dollars shall not accrue. (i) Where either or both parties are unrepresented, the court shall not enter an order or judgment other than a temporary order pursuant to section two hundred thirty-seven of this article, that includes a provision for child support unless the unrepresented party or parties have received a copy of the child support standards chart promulgated by the commissioner of [social services] THE OFFICE OF TEMPORARY AND DISA- BILITY ASSISTANCE pursuant to subdivision two of section one hundred eleven-i of the social services law. Where either party is in receipt of child support enforcement services through the local social services district, the local social services district child support enforcement unit shall advise such party of the amount derived from application of the child support percentage and that such amount serves as a starting point for the determination of the child support award, and shall provide such party with a copy of the child support standards chart. [In no instance shall the court approve any voluntary support agreement or compromise that includes an amount for child support less than twenty- five dollars per month.] S 2. Paragraphs (d), (g) and (i) of subdivision 1 of section 413 of the family court act, paragraphs (d) and (i) as added by chapter 567 of the laws of 1989 and paragraph (g) as amended by chapter 41 of the laws of 1992, are amended to read as follows: (d) Notwithstanding the provisions of paragraph (c) of this subdivi- sion, where the annual amount of the basic child support obligation would reduce the non-custodial parent's income below the poverty income guidelines amount for a single person as reported by the federal depart- ment of health and human services, the basic child support obligation shall be twenty-five dollars per month [or the difference between the non-custodial parent's income and the self-support reserve, whichever is greater]; PROVIDED, HOWEVER, THAT IF THE COURT FINDS THAT SUCH BASIC CHILD SUPPORT OBLIGATION IS UNJUST OR INAPPROPRIATE, WHICH FINDING SHALL BE BASED UPON CONSIDERATIONS OF THE FACTORS SET FORTH IN PARAGRAPH (F) OF THIS SUBDIVISION, THEN THE COURT SHALL ORDER THE NON-CUSTODIAL PARENT TO PAY SUCH AMOUNT OF THE CHILD SUPPORT AS THE COURT FINDS JUST AND APPROPRIATE. Notwithstanding the provisions of paragraph (c) of this
subdivision, where the annual amount of the basic child support obli- gation would reduce the non-custodial parent's income below the self- support reserve but not below the poverty income guidelines amount for a single person as reported by the federal department of health and human services, the basic child support obligation shall be fifty dollars per month or the difference between the non-custodial parent's income and the self-support reserve, whichever is greater, IN ADDITION TO ANY AMOUNTS THAT THE COURT MAY, IN ITS DISCRETION, ORDER IN ACCORDANCE WITH SUBPARAGRAPHS FOUR, FIVE, SIX AND/OR SEVEN OF PARAGRAPH (C) OF THIS SUBDIVISION. (g) Where the court finds that the non-custodial parent's pro rata share of the basic child support obligation is unjust or inappropriate, the court shall order the non-custodial parent to pay such amount of child support as the court finds just and appropriate, and the court shall set forth, in a written order, the factors it considered; the amount of each party's pro rata share of the basic child support obli- gation; and the reasons that the court did not order the basic child support obligation. Such written order may not be waived by either party or counsel; provided, however, and notwithstanding any other provision of law, including but not limited to section four hundred fifteen of this [act] PART, the court shall not find that the non-custo- dial parent's pro rata share of such obligation is unjust or inappropri- ate on the basis that such share exceeds the portion of a public assist- ance grant which is attributable to a child or children. [In no instance shall the court order child support below twenty-five dollars per month.] Where the non-custodial parent's income is less than or equal to the poverty income guidelines amount for a single person as reported by the federal department of health and human services, unpaid child support arrears in excess of five hundred dollars shall not accrue. (i) Where either or both parties are unrepresented, the court shall not enter an order or judgment other than a temporary order pursuant to section two hundred thirty-seven of [this article] THE DOMESTIC RELATIONS LAW, that includes a provision for child support unless the unrepresented party or parties have received a copy of the child support standards chart promulgated by the commissioner of [social services] THE OFFICE OF TEMPORARY AND DISABILITY ASSISTANCE pursuant to subdivision two of section one hundred eleven-i of the social services law. Where either party is in receipt of child support enforcement services through the local social services district, the local social services district child support enforcement unit shall advise such party of the amount derived from application of the child support percentage and that such amount serves as a starting point for the determination of the child support award, and shall provide such party with a copy of the child support standards chart. [In no instance shall the court approve any voluntary support agreement or compromise that includes an amount for child support less than twenty-five dollars per month.] S 3. This act shall take effect on the ninetieth day after it shall have become a law.

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