N.Y. Comp. Codes R. & Regs. Tit. 18 § 347.8 - Establishment, modification, and enforcement of support obligations

(a) General case processing procedures.

1. In any case receiving child support services in which the location of the noncustodial parent or putative father is known, the child support enforcement unit must:

i. if there is no order of child support, establish parentage if necessary pursuant to section 347.6 of this Part and establish an order of support pursuant to the child support standards set forth in section 240 of the Domestic Relations Law (DRL) and section 413 of the Family Court Act (FCA) as set forth in subdivision (b) of this section;

ii. if there is an order of child support, modify and/or enforce the order as set forth in subdivision (c) of this section.

iii. maintain in the automated case record any information from new or modified orders of support, including the factual basis for the support obligation.

2. Prior to any proceeding to establish, modify, or enforce an order of child support, the child support enforcement unit shall take reasonable steps to determine the noncustodial parent's income, financial circumstances, and ability to pay support in accordance with the child support standards set forth in section 240 of the DRL and section 413 of the FCA, by conducting a financial investigation pursuant to the following guidelines:

i. Review available local, State, and federal information sources pursuant to section 347.7(b) of this Part, including, as appropriate, electronic data from other governmental agencies, State and national directories of new hires, and State and other tax information.

ii. Obtain information by case conferencing, interviews with either or both parties, mandatory financial disclosure, or questionnaires, as appropriate.

iii. Obtain information from the noncustodial parent or third parties using subpoenas or requests pursuant to sections 111-p, 111-r, and 111-s of the Social Services Law or article 31 of the Civil Practice Law and Rules, as appropriate.

iv. If there is insufficient evidence of the noncustodial parent's income or financial circumstances to use as the measure of the noncustodial parent's ability to pay, then any recommendation by the child support enforcement unit regarding the support obligation shall be based on available information about the specific circumstances of the noncustodial parent, including assets, residence, employment and earnings history, job skills, education, literacy, age, health, criminal record or other employment barriers, record of seeking work, job market conditions, the availability of employers willing to hire the noncustodial parent, prevailing earnings level, and other relevant background factors in the case to the extent such information is available and relevant.

v. Create a record of the information or documents obtained as a result of the financial investigation.

3. In any proceeding to establish or modify an order of child support, the child support enforcement unit shall provide the individual receiving services with a copy of the child support standards chart as published annually by the commissioner pursuant to section 111-i(2) of the Social Services Law and advise such individual of the amount derived from the application of the child support percentages, as defined in section 240 of the DRL and section 413 of the FCA, to the noncustodial parent's income.

4. In any proceeding to establish, modify, or enforce an order of child support, the child support enforcement unit shall review the record for information obtained from the financial investigation conducted on the noncustodial parent which may assist the court in making a factual determination regarding the noncustodial parent's ability to pay child support in accordance with the standards set forth in section 240 of the DRL and section 413 of the FCA and provide such information to the court.

5. The attorney or other person appearing on behalf of the social services district must become thoroughly familiar with the case and the financial circumstances of both parents. If it appears that the basic child support obligation, determined in accordance with the child support standards as set forth in section 240 of the DRL and sections 413 and 416 of the FCA, is other than the amount ordered by the court, the attorney or other person appearing on behalf of the social services district must consider and, if appropriate, submit written objections to the court and, if necessary, ensure that an appeal is filed within the statutory time period. The social services district's representative also must ensure that any support payments are payable to the support collection unit.

6. If the court or administrative authority dismisses a petition to establish, modify, or enforce a support order without prejudice, the child support enforcement unit must, at the time of the dismissal, examine the reasons for dismissal and determine when, in the future, it would be appropriate to petition for an order of support, and, at that time, again file a petition for such order.

(b) Establishment of a Child Support Order.

1. Elements of a guidelines order. A child support order must include the following elements, where appropriate, pursuant to the child support standards as set forth in section 240 of the DRL and section 413 of the FCA:

i. a support amount derived from application of the appropriate child support percentage to the noncustodial parent's income in accordance with the child support standards including the establishment of the amount of retroactive support, if any;

ii. reasonable child care expenses incurred by the custodial parent, if the custodial parent is working or receiving elementary or secondary education, or if the custodial parent is receiving higher education or vocational training which will lead to employment, and order that the noncustodial parent's share of such expenses be in the same proportion as his or her income is to the combined parental income;

iii. reasonable child care expenses incurred by the custodial parent when seeking work and order that the noncustodial parent's portion of such expenses be in the same proportion as his or her income is to the combined parental income;

iv. a direction for either or both parents to obtain and maintain health insurance benefits as defined in section 416 of the FCA and section 240 of the DRL, including the execution and delivery of any forms, notices, documents or instruments necessary to ensure timely payments of any health insurance claims for the person on whose behalf the petition is brought, where such health insurance is available;

v. cash medical support pursuant to section 240 of the DRL and section 413 of the FCA either in addition to, or in lieu of, health insurance benefits;

vi. expenses necessary for the provision of present or future post-secondary, private, special, or enriched education for the child(ren), where appropriate; and

vii. other requirements, as directed by the Office and as provided by articles 4, 5 and 5-A, and 5-B of the FCA.

2. Voluntary agreements to support. Where appropriate, the child support enforcement unit may seek to obtain a written voluntary agreement to support from the noncustodial parent using forms provided by the Office, and in accordance with the following requirements:

i. the noncustodial parent shall be advised, orally or using digital, audio or video recording, and in writing, of the consequences of such agreement;

ii. the parties may enter a written voluntary agreement or stipulation to support for a support obligation greater than, equal to, or less than the presumptively correct child support obligation computed pursuant to the child support standards as set forth in section 240 of the DRL and section 413 of the FCA provided that the agreement or stipulation complies with the provisions of subparagraph (iii) of this paragraph and is approved in writing by the court; and

iii. in all cases in which a validly executed support agreement or voluntary stipulation between the parties is obtained and presented to a court for incorporation in an order or judgment, the recipient of services must be provided with a copy of the child support standards chart as published annually by the commissioner pursuant to section 111-i(2) of the Social Services Law. In addition, the agreement or stipulation must state that the parties have been advised of the child support standards as set forth in section 240 of the DRL and section 413 of the FCA and that the basic child support obligation provided for therein would be the presumptively correct amount of child support to be awarded by the court. In the event that any such agreement or stipulation deviates from the basic child support obligation, the agreement or stipulation must also specify the amount that the basic child support obligation would have been and the reason or reasons that the agreement or stipulation does not provide for payment of that amount.

3. In all other cases, the child support enforcement unit shall petition the Family Court for an order of support pursuant to paragraph (1) of subdivision (b) of this section and

i. within 90 calendar days of locating a noncustodial parent, alleged parent, or intended parent regardless of whether parentage has been established, establish an order of support or complete service of process necessary to commence proceedings to establish an order of support and, if necessary, parentage, or document on the automated case record the unsuccessful diligent efforts to serve process as defined in section 347.7(b) of this Part; and

ii. advise the custodial parent that all payments received from the noncustodial parent must be transmitted to the support collection unit for crediting to the noncustodial parent's account and for distribution and disbursement as necessary.

(c) Modification and Enforcement of a Child Support Order.

1. General Provisions.

i. Pursuant to section 571 of the FCA, the child support enforcement unit must send a notice to the parties advising that the order of support is payable to the support collection unit.

ii. The child support enforcement unit must advise the custodial parent that all payments received from the noncustodial parent must be transmitted to the support collection unit for crediting to the noncustodial parent's account and for distribution and disbursement as necessary.

2. Modification.

i. If the child support order does not include all of the appropriate elements of support as set out in paragraph 1 of subdivision (b) of this section, including but not limited to provisions mandating health care coverage and/or cash medical support, and such obligations that may be appropriate considering the parties' financial circumstances, the child support enforcement unit must immediately petition the Family Court or the Supreme Court, if the Supreme Court has retained jurisdiction over support issues in the case, for modification of the order of support.

ii. If a review of the terms of the order of child support and/or the results of the financial investigation demonstrate a change in the parties' financial or factual circumstances such that modification of the support obligation may be appropriate, the child support enforcement unit must immediately petition or otherwise assist the recipient of services to petition the Family Court or the Supreme Court, if the Supreme Court has retained jurisdiction over support issues in the case, for modification of the order of support.

iii. Upon receipt of information that a noncustodial parent will be incarcerated for more than 180 calendar days, the child support enforcement unit shall provide notice to both parties informing them of the right to seek a modification of the order of support.

3. Enforcement.

i. Where an order of support payable to the custodial parent is not being complied with, the child support enforcement unit must ensure that any petition to the Family Court or the Supreme Court, if the Supreme Court has retained jurisdiction over support issues in the case, alleges a violation of the order of support, includes a request for the adjudication of the delinquency amount and the award of a money judgment, and provides clear notice to the noncustodial parent that his or her inability to pay child support as ordered is a defense to a finding of willful violation or contempt.

ii. The child support enforcement unit must review the case file and provide the court with information contained therein regarding the noncustodial parent's ability to pay, or otherwise comply with the child support order, which may assist the court in making a factual determination regarding the noncustodial parent's ability to pay a purge amount or comply with any conditions set in a hearing pursuant to sections 454 or 455 of the FCA.

(d) Child Support Services for a Noncustodial Parent.

Where a noncustodial parent has applied for child support services pursuant to section 347.17 of this Part, the child support enforcement unit shall provide all child support services under this Part and Part 346 of this Title, as appropriate.

Notes

N.Y. Comp. Codes R. & Regs. Tit. 18 § 347.8

Adopted New York State Register December 20, 2017 /Volume XXXIX, Issue 51, eff. 12/20/2017 Amended New York State Register August 11, 2021/Volume XLIII, Issue 32, eff. 8/11/2021