BILL NUMBER:A8888

TITLE OF BILL:  An act to amend the social services law, in relation to
publication of a child support standards chart; to amend the social
services law and the family court act, in relation to clarifying the
role of the support collection unit in violation proceedings and the
role of an attorney appearing for the social services district on behalf
of an individual receiving child support services; to amend the family
court act, in relation to correcting references to federal authority;
and to amend the social services law, the family court act and the
domestic relations law, in relation to increasing the combined parental
income amount utilized for the calculation of child support

Purpose of the bill:  This bill would: (1) clarify and confirm the role
of the child support enforcement unit relating to the provision of child
support enforcement services to individual parties; (2) ensure consist-
ency between Social Services Law and the federal Office of Child Support
Enforcement, the oversight agency for state child support enforcement
programs operating in compliance with Title IV-D of the Federal Social
Security Act ("Title IV-D") by providing that attorneys providing legal
services under Title IV-D represent the IV-D agency in carrying out its
duties; (3) correct a reference to federal law in Family Court Act (FCA)
§ 413; (4) remove a requirement that certain charts published annually
by the Commissioner of OTDA must appear in regulation; and (5) increase
the consistency of support orders throughout the State by updating the
combined parental income amount utilized by courts for calculating
              

support to reflect current economic realities.

Summary of provisions:  Section 1 of the bill would give the bill the
short title of the "Child Support Modernization Act."

Section 2 of the bill would amend Social Services Law (SSL) § 111-i (2)
to: (1) remove the requirement that publication of the self-support
reserve and the child support standards chart published by the Commis-
sioner 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 attor-
ney-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, includ-
ing FCA § 413 and DRL § 240, contain provisions concerning the obli-
gation 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 writ-
ten 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 legis-
lative session, similar provisions were part of S.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 attor-
ney-client relationship. The bill would clarify and confirm the role of
the CSEU in providing child support enforcement services, thereby ensur-
ing 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 establish-
ing 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 predomi-
nantly public assistance families to former or never-assistance fami-
lies. 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 author-
ity 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 stand-
ards 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 rele-
vant 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 effec-
tive date of the proposal, with a mechanism beginning in 2012 for revis-
ing 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 deter-
mined outside of the presumptively correct CSSA percentages.

Budget implications:  This bill would have no significant fiscal impli-
cations.

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.