Enacts the "child support modernization act"

Section 2 of the bill would amend Social Services Law (SSL) § 11-i (2) to: (1) remove the requirement that publication of the self-support reserve and the child support standards chart published by the Commissioner of OTDA appear in regulation; and (2) define the combined parental income amount and require publication thereof in the child support standards chart.

Section 3 of the bill would amend SSL § 111-c to provide that: (1) in providing child support services, a local social services district represents the interests of the district in carrying out its duties under the child support program; (2) the provision of legal services under the child support program does not constitute or create an attorney-client relationship between the individual receiving services and any attorney representing or appearing for the district to provide such legal services; (3) the social services district has standing to appear in any child support proceeding involving an individual in receipt of child support services; and (4) the social services district will provide notice to individuals requesting or receiving services that the attorney representing or appearing for the district does not represent the individual.

Section 4 of the bill would amend FCA § 453 (a) to clarify that the support collection unit may originate and prosecute violation petitions on behalf of persons in receipt of public assistance or in receipt of services pursuant to SSL § 111-g.

Section 5 of the bill would amend FCA § 516-a to correct a reference to federal law.

Sections 6 and 7 of the bill would amend FCA § 413 and Domestic Relations Law (DRL) § 240, respectively, to increase from $80,000 to $130,000 the combined parental income amount used to calculate child support orders and for which application of the Child Support Standards Act (CSSA) percentages are mandatory. These sections also include a mechanism for revising the "combined parental income amount" every other year based upon the consumer price index for all urban consumers (CPI-U) published by the United States Department of Labor.

Section 8 of the bill would provide for an immediate effective date for all sections of the bill, except for sections 2, 6 and 7 which would take effect on January 31, 2010.

Existing law

Various sections of the FCA, the DRL and the SSL, including FCA § 413 and DRL § 240, contain provisions concerning the obligation of parents to support their children.

SSL § 111-c sets forth the functions, powers and duties of social services districts.

SSL § 111-i requires the commissioner of OTDA to publish annually in regulations the child support standards chart.

FCA § 453 provides that the support collection unit may originate a petition for a violation of a court order.

FCA § 516-a sets out the procedures for establishing paternity by written voluntary acknowledgement.

Prior legislative history

In the 2007 legislative session, S.4848 contained provisions similar to sections 2 and 3 of this bill. The bill was not reported from the Senate Judiciary Committee. In the 2008 legislative session, similar provisions were part of 5.8340 which was not reported from the Senate Rules Committee.

Statement in support

Under Title IV-D, child support enforcement services must be made available by the local district child support enforcement units (CSEU) to both custodial and non-custodial parents, public assistance recipients and non-public assistance recipients, and must be conducted in accordance with applicable State and federal laws and regulations. Likewise, legal services must be made available by the CSEU to all persons in receipt of public assistance and care and, upon request only, to persons in receipt of services pursuant to SSL § 111-g. However, existing law does not clearly provide that the role of the CSEU, including that of its legal staff, is to comply with State and federal program requirements and provide enforcement-related services to individuals and not to represent an individual in a traditional attorney-client relationship. The bill would clarify and confirm the role of the CSEU in providing child support enforcement services, thereby ensuring the program will comply with federal requirements.

As originally conceived in the 1970s, child support enforcement programs operating in compliance with Title IV-D were responsible for establishing paternity and obtaining support for custodial parents. Over the last several decades, the Title IV-D program has expanded to require state certified programs to provide services to both custodial and non-custodial parents and the caseload composition has changed from predominantly public assistance families to former or never-assistance families. Attorneys providing legal services are generally government employees (county attorneys or local county department of social services employees) or are under contract with local governments. In order to fulfill this expanded role and ensure compliance with attorney ethical obligations, the child support enforcement attorney's role has been clarified in states nationwide to provide that the IV-D attorney and the IV-D staff do not represent individual parties but instead represent the agency with respect to the delivery of IV-D services, specifically establishing paternity and establishing, modifying and enforcing orders of support. The bill would clarify that attorneys who provide child support services do not

represent individual parties, but represent the agency in the provision of these services.

The bill would also clarify that the support collection unit may not only originate but may also prosecute a violation proceeding on behalf of non-public assistance individuals in receipt of child support services pursuant to SSL § 111-g. This amendment is in response to MONROE COUNTY SUPPORT COLLECTION UNIT v. WHITE, 2 A.D.3d 1368 (4th Dept. 2003), which held that: (1) while the support collection unit had authority under FCA § 453 to originate the proceeding, it lacked authority to prosecute a violation proceeding regarding an order payable through the support collection unit for the support of a child not receiving public assistance; and (2) the support collection unit lacked standing to prosecute the violation proceedings because the custodial parent did not execute a "right to recovery" agreement permitting the support collection unit to recover its costs, and therefore was not a "party in interest."

The bill would also eliminate the requirement that the Commissioner of OTDA publish the revised self-support reserve and child support standards chart in regulation. The Commissioner would still publish this information, but it would appear in a document produced by OTDA.

The bill also corrects a, citation error contained in FCA § 516-a. FCA § 516-a (d) erroneously refers to section 652 of the Social Security Act. Section 652 (a) (7) is the U.S. Code section; section 452 is the relevant section of the Social Security Act.

Lastly, the bill would increase the "combined parental income amount" (the maximum dollar value of parental income, or "cap", to which the Child Support Standards Act (CSSA) percentages must be applied for the calculation of child support) from $80,000 to $130,000 upon the effective date of the proposal, with a mechanism beginning in 2012 for revising this threshold every two years to reflect changes in the consumer price index. The current threshold of $80,000 was created in 1989. Since then, there have been both increases in income levels and the cost of living, thus it no' longer signifies the high-income families it was intended to delineate, families with combined income levels potentially warranting deviation from the CSSA percentages. In short, the exception has lost its meaning. It is imperative that the "combined parental income amount" keep pace with current economic realities so that proper orders are granted on a consistent and predictable basis throughout the State, leaving only exceptional income cases to potentially be determined outside of the presumptively correct CSSA percentages.

BUDGET IMPLICATIONS This bill would have no significant fiscal implications.

Effective date

This bill would provide for an immediate effective date, except for sections 2, 6 and 7 which would take effect January 31, 2010.