Relates to orders for child support obligors to seek employment or participate in job training, employment counseling or other programs; repealer

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.