BILL NUMBER: S6560

SPONSOR: PERSAUD
 
TITLE OF BILL:  An act to amend the family court act and the domestic
relations law, in relation to establishment and modification of child
support orders; and to amend the social services law, in relation to an
increase in the annual service fee for child support services

 
PURPOSE OF THE BILL:

This bill would amend the Domestic Relations Law (DRL) and the Family
Court Act (FCA) to comply with the provisions of the federal 2016 Flexi-
bility, Efficiency and Modernization in Child Support Enforcement
Programs regarding the establishment or modification of child support
orders for incarcerated noncustodial parents. It would clarify that the
incarceration of the child support obligor is not to be treated as
voluntary unemployment in either the establishment or modification of a
support order unless such incarceration is the result of non-payment of
a child support order, or an offense against the custodial parent or
child who is the subject of the order or judgment. The bill provides
that incarceration shall not be a bar to establish a substantial change
in circumstances, barring these exceptions.
              

This bill would also amend the Social Services Law (SSL) to comply with
the mandatory provision of the federal Bipartisan Budget Act of 2018 to
increase from $25 to $35 the annual service fee for providing child
support services in the case of an individual who has never received
Title IV-A assistance. In addition, the bill would amend the SSL to
comply with the federal requirement to increase from $500 to $550 the
amount of support that the State must collect and disburse to the family
prior to imposing the fee for each federal fiscal year.

 
SUMMARY OF PROVISIONS:

Section 1 of the bill would amend FCA § 413 to provide that incarcera-
tion shall not be considered voluntary unemployment in establishing
child support obligations, except in certain situations.

Section 2 of the bill would amend DRL § 240 to provide that incarcera-
tion shall not be considered voluntary unemployment in establishing
child support obligations, except in certain situations.

Section 3 of the bill would amend FCA § 451 to provide that incarcera-
tion shall not be considered voluntary unemployment in modifying child
support obligations and shall not be a bar to establish a substantial
change in circumstances, except in certain situations.

Section 4 of the bill would amend Part B of DRL § 236 to provide that
incarceration shall not be considered voluntary unemployment in modify-
ing child support obligations and shall not be a bar to establish a
substantial change in circumstances, except in certain situations.

Section 5 of the bill would amend SSL § 111-g to increase the annual
service fee imposed on persons who receive child support service s who
have never received assistance pursuant to Title IV-A of the federal
Social Security Act (SSA), from $25 to $35, and to increase the minimum
collection requirement from $500 to $550 per federal fiscal year.


Section 6 of the bill would provide that the bill would take effect
immediately and would apply to any pending action or proceeding.

 
JUSTIFICATION:

This would implement conforming changes to bring New York State law into
compliance with the federal regulatory amendments published in the Flex-
ibility, Efficiency and Modernization in Child Support Enforcement
Programs ("Final Rule"). The Final Rule provides that states may not
treat incarceration as voluntary unemployment in proceedings to estab-
lish or modify a child support order. The bill implements this federal
requirement and provides that incarceration shall not be a bar to estab-
lish a substantial change in circumstance s, unless such incarceration
is the result of non-payment of a child support order, or an offense
against the custodial parent or child who is the subject of the order or
judgment. Because incarceration cannot be treated as voluntary unemploy-
ment (except in the enumerated circumstances), support awards for incar-
cerated individuals will not be imputed from pre-incarceration earnings.
Instead, modification would be based on the incarcerated individual's
current financial circumstances. If there is a basis for a modification
(see FCA 451 
3), the child support guidelines would be applied to the
incarcerated individual's current income and assets to determine his or
her new support obligation. While incarceration itself would not be
grounds for a modification, any significant reduction in the noncusto-
dial parent's ability to pay support could be the basis of a downward
modification (except in the enumerated circumstances).

Incarcerated parents usually have limited earning ability while in pris-
on. Addressing these circumstances at the establishment stage, or
through modification of the child support order early in the incarcera-
tion, is important considering that the accrual of significant child
support debt during that period can interfere with employment success
and lead to engagement with the underground economy or nonpayment of
support. These parents currently leave incarceration with an average of
$20,000 or more in unpaid child support* and annual earnings reduced by
40 percent** This bill also seeks to ensure the right of all parents to
seek a review of their child support order when circumstances change.
Removing the barriers to obtaining a modification during the period of
incarceration would help ensure that orders for incarcerated parents are
set based upon the obliger's ability to pay while that person is in
jail.

This bill would also amend SSL § 111-g which provides for child support
services to individuals not otherwise eligible by virtue of receipt of
public benefits. SSL § 111-g currently mandates the $25 annual service
fee imposed on persons who receive child support services pursuant to
this section of law, who have never received assistance pursuant to
Title IV-A of the federal SSA, and to whom at least $500 of child
support has been disbursed during the federal fiscal year. Section five
of the bill amends SSL . 111-g to comply with a federal mandate requir-
ing the increase in the annual fee from $25 to $35 and the increase in
the minimum collection requirement for assessment of the fee from $500
to $550 per federal fiscal year. The imposition of the annual service
fee is a condition of continued eligibility for funding of the Title
IV-D Child Support Program and the Temporary Assistance for Needy Fami-
lies (TANF) block grant.

 
PRIOR LEGISLATIVE HISTORY:
This is a new bill. Fiscal implications:  Failure to comply with the
Title IV-D State Plan requirement to increase the annual support
collection fee by January 1, 2020 could subject the State to loss of 66
percent federal financial participation for administrative expenditures
by the Child Support Program and a penalty against the TANF block grant.

This federally-mandated change to the service fees is expected to
increase the annual amount of program fee revenue from custodial parents
by $1.5 million, from $3.8 million to $5.3 million. The social services
districts would retain 34 percent, or $1.8 million, of this revenue for
administrative relief, an increase of approximately $500,000 over
current levels. The remaining 66 percent of the fee revenue would be
retained by the Federal Government.

 
EFFECTIVE DATE:
The bill provides for an immediate effective date and would apply to any
pending action or proceeding.
* National Conference of State Legislatures, Child Support and Incarcer-
ation, 2016 available at httpliwww.ncsi.orgiresearch/human-
servicesichild-support-and- incarceration.aspx.
** U.S. Department of Health and Human Services, Office of Child Support
Enforcement, Division of Policy and Training, "Jobs not Jail Infograph-
ic", published October 2015 on the OCSE website at
https://www.acf.hhs.govisitesidefault/ffies/Programsicssijobs not rail
final 10 02.pdf and Collateral Costs: Incarceration's Effect on Economic
Mobility. The Pew Charitable Trusts. (2010, September), available at:
http://www.pewtrusts.oreimedia/legacv/uploadedfiles/pcs
assets/2010/collateralcosts1pdf.pdf.