Senate Bill S7584

                                BILL NUMBER:S7584

TITLE OF BILL:
An act
to amend the family court act and the social services law, in relation
to orders for child support obligors to seek employment, and to repeal
paragraph (i) of subdivision 2 of section 454 of the family court act
relating thereto

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 chapter 592 of the Laws of 2011, the Legislature amended chapter
182 of the Laws of 2010, which authorized Family Court to direct
individuals who are obligated to pay child support to take steps to
seek employment or to participate in job training, employment
counseling or other available programs designed to lead to employment
in proceedings to establish a child support order in the initial
instance. The amendments clarified that such directions could be made
in proceedings seeking a downward modification of a child support
order, proceedings to enforce or remedy a violation of a child
support order or proceedings to establish a child support order in
the first instance.
The instant measure, prepared in conjunction with the Governor's
office, would make technical revisions and harmonize the
              

newly-amended statutes with earlier enactments in order to eliminate
any possible doubt as to the State's compliance with Federal child
support laws and regulations.

First, this measure would amend section 437-a of the Family Court Act
to permit work program orders in any proceeding for a modification,
not simply a proceeding denominated one to decrease a child support
order. While perhaps more common in the latter, a work program
directive may also be appropriate in a modification proceeding that
originates as an upward modification but in which a cross-motion for
a reduction in the child support obligation is later made. Elsewhere
in Article 4 of the Family Court Act,
particularly in section 451, the term "modify" is used without
limitation as to whether an increase or decrease in the child support
obligation is sought. This change, therefore, is consistent with the
language in other child support provisions in the Family Court Act.

Second, this measure would eliminate any possible uncertainty as to
New York's continued compliance with the Federal requirements of
Title IV-D of the Social Security Act, a condition of eligibility for
funding for the State's child support enforcement program and the
Temporary Assistance for Needy Families (TANF) block grant. The State
receives Federal reimbursement for its child support program at a
rate of 66%. See 42 U.S.C.A §655(a)(2)(C). Federal regulations
prescribe severe penalties for noncompliance with provisions of an

approved state child support plan. See 45 C.F.R. § 305.66. One
requirement for all state child support plans is that, with respect
to children receiving public assistance, the adjudicator must be
authorized to address problems of overdue child support by directing
child support obligors to participate in "work activities," as defined
in 42 D.S.C. §607(d), unless they are "incapacitated." See 42 D.S.C.

§666(a)(l5). That authorization, contained in section 454(2)(h) of the
Family Court Act, was enacted by chapter 214 of the Laws of 1998 and
is a component of the State's Federally-approved child support plan.
Specifications regarding the required "work activities" are
delineated in title nine-b of article five
of the Social Services Law, including the exemption for individuals
determined to be "incapacitated." See S.S.L.
§§332,332-b.

Section 437-a of the Family Court Act, enacted in 2010, contains an
exemption for child support obligors who are "in receipt of
supplemental security income or social security disability payments,"
an exemption that may apply to individuals who would not necessarily
be deemed "incapacitated" under section 454(2)(h) of the Family Court
Act.
Incapacitation requires an individualized determination, as not all
individuals receiving supplemental security income or social security
disability benefits are automatically unable to participate in any
work-related activities. Indeed, some employment training and job
placement programs are specifically geared toward disabled
individuals. Thus, addition of the reference to "enforcement" of
child support obligations in section 437-a of the Family Court Act,
as amended in 2011, raises the question whether the exemption for
obligors receiving supplemental security income or social security
disability payments would apply to all orders for work-related
activities under section 454 of the Family Court Act.

To eliminate any possible confusion, this measure deletes the term
"enforce" from section 437-a of the Family Court Act, thus addressing
work-related directives in enforcement or violation proceedings
solely in section 454(2) of such Act. The measure further simplifies
section 454(2) by incorporating paragraph (i) into paragraph (h). The
existing language of paragraph (h), which conforms to the
requirements of New York's
Federally-approved child support plan, would be retained, thus
ensuring the State's full compliance with Federal law. A sentence
would be added that specifically applies to only to cases involving
children who are not applicants for, or in receipt of, public
assistance and thus are not subject to the Federal work activity
requirements. That sentence would, in essence, apply the provisions
of section 437-a of the Family Court Act to such cases, viz., it would
authorize orders for work programs where the respondent is unemployed
and not in receipt of supplemental security income or social security
disability benefits and provided such programs are available.

Finally, although a support obligor who may be subject to a work
program order may sometimes be the petitioner in the Family Court
proceeding, e.g., a petitioner for a downward modification of a child
support order, this measure substitutes the term "respondent" in
section 111-h(20) of the Social Services Law, since "respondent" is
the term used elsewhere in that statute.

This measure would take effect immediately.

2011 LEGISLATIVE HISTORY:
None. New proposal.