Relates to the child support obligations of indigent and near-indigent support obligors

This measure corrects a long-standing anomaly in the interpretation of New York's child support statutes with respect to non-custodial parents whose child support obligations would reduce their incomes to a level below the self-support reserve.

Chapter 436 of the Laws of 2011 conformed New York's child support statutes to the Federal Child Support Enforcement Act (Social Security Act, Title IV-D §467(b)(2), as amended, 42 USCA §667(b)(2)) by incorporating a rebuttable presumption, rather than a mandate, that the child support obligation of a non-custodial parent, whose income is below the Federal poverty level, would be a minimum of $25 per month ($300 per year). The new statute thus codified the decision of the Court of Appeals in Rose v. Moody, 83 N.Y.2d 65 (1993), cert. denied, 511 U.S. 1084 (1994), by incorporating the same factors that may justify a departure from the State's Child Support Standards Act percentages, i.e., the factors enumerated in Family Court Act §413(1)(f) and Domestic Relations Law §240(1-b)(f). At the same time, chapter 436 authorized the courts to include child care, medical and educational expenses in determining the support obligation of non-custodial parents whose incomes exceeded the Federal poverty level but were less than the self-support reserve for a single individual, an amount set and published by the New York State Office of Temporary and Disability Assistance.

As noted, however, the new statute failed to correct a long-standing anomaly in the interpretation of New York's child support statutes with respect to non-custodial parents whose child support obligation would reduce their incomes to a level below the self-support reserve. Ironically, a literal reading of the current statutory language has led to the conclusion that the more children a non-custodial parent is obligated to support the less the child support obligation would be. We, therefore, propose this measure to prevent this unintended consequence.

Family Court Act §413(1)(d) and Domestic Relations Law §240(1-b)(d) both provide that "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 United States 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." Where such a calculation reduces the non-custodial parent's income below the Federal poverty level, the child support obligation would be a minimum of $25 per month, which would be rebuttable, as noted above. These provisions were intended to provide a floor for child support orders, which would generally be $50 per month ($600 per year) if the non-custodial parent's income is above the self-support reserve level, between $25 and $50 per month if the non-custodial parent's income is above the Federal poverty level but below the self-support reserve level and a rebuttable presumption of $25 per month if the non-custodial parent's income is below the Federal poverty level.

However, these provisions have been interpreted to require an obligation of less than $50 per month in situations where the income is above the self-support reserve but would be reduced to an amount below the poverty level simply because the non-custodial parent has multiple children with the custodial parent to support. For example, if a non-custodial parent with one child has an annual income at the self-support reserve ($14,702 for 2011), the basic child support obligation (17% of income) of $2,499 would reduce his or her income to $12,203. Since this amount is above the poverty level ($10,890 in 2011), then the support obligation would be $50 per month ($600 per year). However, if the same non-custodial parent had five children, the basic child support obligations (35% of income) would be $5,146, which would reduce the income to $9,556 annually. Since that amount is below the poverty level, the non-custodial parent would be deemed obligated to pay $25 per month, an amount that would be rebuttable. Surely the Legislature did not intend that a custodial parent struggling to raise five children would receive less support from the non-custodial parent than a custodial parent raising only one child.

This measure expands the applicability of the rebuttable presumption regarding the support obligation of indigent non-custodial parents to those whose income is above the poverty level but below the self-support reserve. It expresses the child support obligation as an annual, rather than a monthly, amount so as to be consistent with both the poverty and self-support reserve levels as published by the State Office of Temporary and Disability Assistance. Most significantly, it corrects the unintended and unfair consequence of the interpretation of current law by eliminating the disparity between the support obligations of non-custodial parents with one child as compared to those with multiple children. Under the example given above, this measure provides that a non-custodial parent with an income at the self-support level of $14,702 would have a child support obligation of $600 per year regardless of whether he or she was supporting one or five children. No longer would the non-custodial parent with five children pay just half of the amount paid by the parent with one child. Enactment of this measure would, therefore, replace an anomalous result with one that takes into account the circumstances of both the non-custodial parent and his or her children.

This measure would have no fiscal impact upon the State, and would take effect on the ninetieth day after it shall have become a law.

Legislative history

None. New proposal.