Relates to the child support obligations of indigent non-custodial parents

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 (Sen. 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 (Sen. Kruger) [Social Services, Children & Families] Assembly 8513 (M. of A. O'Donnell) [Judiciary]

2009-10 LEGISLATIVE HISTORY:

Senate 5902 (Sen. Montgomery) [Adv to 3rd Rdg] Assembly 8523 (M. of A. O'Donnell) [Adv to 3rd Rdg, Cal. 742]

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].