1. On the Front Lines: Building Skills for Reentry and Diversion March 31, 2010 1

2. Child Support and Reentry Annie Eisenberg, The Bronx Defenders 2 On the Front Lines: Building Skills for Reentry and Diversion

3. Some Basics Child Support generally refers to the financial obligation of both parents to make financial contributions to raise a child. ▫ This obligation extends to teen parents, incarcerated parents, low-income parents, and parents whose children are in foster care. This obligation continues until the child is 21 years old unless: ▫ The parent dies; ▫ The child is emancipated; or ▫ The child is legally adopted. The right to support cannot be waived by the custodial parent or guardian. 3 On the Front Lines: Building Skills for Reentry and Diversion

4. Some Basics (cont’d) If the parents do not reside together and the custodial parent is NOT on public assistance, and the parents have an agreement regarding child support that works for them, there is no need for a court order. 4 On the Front Lines: Building Skills for Reentry and Diversion

5. But courts are often involved… There are 2 kinds of cases handled in Family Court: ▫ Public Cases ▫ Private Cases 5 On the Front Lines: Building Skills for Reentry and Diversion

6. Public Cases Public cases occur when the custodial parent goes on public assistance with the child. At that time, it is standard for DSS to open a child support case against the non-custodial parent. The underlying rationale for this policy is that if the child is being supported by the city, the city wants to be reimbursed by the parent who should be contributing to raise that child. Public cases comprise about 30% of NYC child support cases. 6 On the Front Lines: Building Skills for Reentry and Diversion

7. Private Cases Occur when the custodial parent is raising a child by him or herself without receipt of public assistance. Cases arise for a variety of reasons, e.g., the NCP refuses to support the child, isn’t supporting the child sufficiently, can’t be located, or presents a danger to the CP. If the parents cannot agree on an out-of- court arrangement, the CP may file a private child support case against the NCP. 7 On the Front Lines: Building Skills for Reentry and Diversion

8. Private Cases, continued Even with a private case, the CP can take advantage of the SCU services and enforcement tools. ▫ This is done by filing a “Change of Payee” with the Child Support Office in Family Court (no hearing is required). ▫ Then payments are made through SCU and not to the CP directly. Private cases comprise about 70% of all NYC child support cases. 8 On the Front Lines: Building Skills for Reentry and Diversion

9. I’ve Received Court Papers. Now What? After being served with a child support summons, the most important action a NCP can take is to show up in court. Even when the NCP feels he/she is unable to contribute any money for child support, it is still in his or her best interest to appear in court and be straightforward with the magistrate about their financial/employment situation. ▫ There are laws and regulations protecting NCPs who are indigent, unemployed, or living below the poverty line. 9 On the Front Lines: Building Skills for Reentry and Diversion

10. What If I Don’t Show Up in Court? If the NCP fails to show up at court, a default order will be entered against him or her in an amount that can be, and usually is, unmanageable for the NCP. This is because the magistrates will often impute income based on the limited information they have about the NCP, which is generally supplied by the CP. 10 On the Front Lines: Building Skills for Reentry and Diversion

11. What If I Receive Court Papers While Incarcerated? If a NCP is issued a summons to come to court while incarcerated, it is important that they inform the court clerk in writing ASAP that they are incarcerated and they will need the judge to issue an order to produce. The NCP should also show a copy of the summons to their warden or counselor. The NCP can also write a letter directly to the court part explaining that they are incarcerated, they want to be involved in the proceeding, and they are only not present because they weren’t produced. These steps will help to prevent a default order. 11 On the Front Lines: Building Skills for Reentry and Diversion

12. How is the Amount of Child Support Determined? Child Support Standards Act encompasses the guideline regarding how much child support a NCP owes. If you are employed and earning over the poverty guideline, your child support order is a set percentage of your income per child. 12 On the Front Lines: Building Skills for Reentry and Diversion

13. How is the Amount of Child Support Determined? (cont’d) 1 Child – 17% 2 Children – 25% 3 Children – 29% 4 Children – 31% 5 or more Children – At least 35% Note: If you have 2 children with 2 different people, it is more expensive – 17% of income for each child, going to each CP, for a total of 34%. 13 On the Front Lines: Building Skills for Reentry and Diversion

14. How is the Amount of Child Support Determined? (cont’d) Add-Ons to Support Order ▫ Childcare (if CP is working, seeking work, in training or attending school); ▫ Medical Insurance; ▫ Education. 14 On the Front Lines: Building Skills for Reentry and Diversion

15. How is the Amount of Child Support Determined? (cont’d) Deductions from Income ▫ Alimony to former spouse; ▫ Child support paid for other children; ▫ Public Assistance and SSI; ▫ City taxes; ▫ FICA (Social Security and Medicare Tax) 15 On the Front Lines: Building Skills for Reentry and Diversion

16. What if I Have Little or No Income? If the NCP is unemployed, in a full-time drug rehabilitation program, in a job- training program, or working but earning under the poverty guidelines, they may be eligible for a poverty order. These can be as low as $25/month. Also, in instances where a NCP can prove that he or she is indigent, a $500 cap should be placed on any arrears that accumulated during that period of indigence. 16 On the Front Lines: Building Skills for Reentry and Diversion

17. Common Misconceptions About Child Support Obligations A NCP cannot stop paying if the CP is preventing visitation with the child(ren). The remedy for this is petitioning for visitation in Family Court A NCP cannot stop paying because he or she thinks that the CP is not spending the money on the child(ren). NCPs simply have no say in the matter. Child support money is directed generally for the well- being of the child. 17 On the Front Lines: Building Skills for Reentry and Diversion

18. Incarceration and Child Support In NY, incarceration is considered voluntary. Therefore, incarceration generally does NOT suspend or reduce a NCP’s child support obligation during the period of incarceration. It is still advisable to petition for a downward modification while incarcerated since it indicates to the court that the NCP is taking their obligation seriously and is trying to prevent the accumulation of arrears. 18 On the Front Lines: Building Skills for Reentry and Diversion

19. What if My Order is Too High? If a child support order is made that is too high, a NCP can appeal the decision within 30 days. If the initial determination was made by a Support Magistrate, then the appeal is to a Family Court judge. If the NCP loses the appeal, they can appeal again or petition for a downward modification. 19 On the Front Lines: Building Skills for Reentry and Diversion

20. Downward Modification Petitions If a NCP experiences a substantial change in circumstances from the time that the original child support order was made, and he is unable to pay the amount ordered, he should petition for a downward modification. Examples of a “substantial change” ▫ Job loss ▫ An injury renders you unable to work ▫ You go on PA ▫ New child 20 On the Front Lines: Building Skills for Reentry and Diversion

21. Be Proactive It is critical that NCPs are proactive on their child support cases. A court will not reduce a NCP’s support obligation until the NCP asks. A court will not go back and lower what they were charging before a NCP filed their petition. A NCP should petition as soon as possible. No retroactive modification is permitted. 21 On the Front Lines: Building Skills for Reentry and Diversion

22. Petitioning for a Downward Modification What’s the Process? A NCP must file their petition where the child lives or where there’s a prior order. All PA cases are in Manhattan (Child Support Enforcement Term – “CSET”). 22 On the Front Lines: Building Skills for Reentry and Diversion

23. Petitioning for a Downward Modification What does the Judge Look For? Proof the NCP is trying – trying to pay and trying to find work. Proof is key: job diaries, receipts of payments made, etc. (See job search history tool on Reentry.net) It is also crucial that the NCP fills out the Financial Disclosure Affidavit. Note: A NCP should be honest about money earned “off-the-books.” No judge will believe a NCP has no income. 23 On the Front Lines: Building Skills for Reentry and Diversion

24. Modifying Orders in Public Cases In an effort to engage more low-income NCPs in the child support system, HRA has introduced a new initiative whereby a NCP can meet with a child support worker at HRA’s Customer Service Walk-In Center and enter into a stipulation modifying their DSS order to reflect their actual income. Arrears owed to DSS will also be reviewed as part of this process and will be capped at $500 if it is determined that the arrears accrued while the NCP was living below the poverty line. See Modify Department of Social Services Order Initiative on Reentry Net/NY for more information. 24 On the Front Lines: Building Skills for Reentry and Diversion

25. Arrears If a NCP is being charged with child support but they’re not paying, he or she will accumulate a debt, referred to as “arrears.” 25 On the Front Lines: Building Skills for Reentry and Diversion

26. Common Misconception About Arrears Some NCPs provide financial support directly to their children or the CP while ignoring the actual child support bill they are being sent. This is a dangerous approach which results in the accumulation of arrears. If a NCP has a court-ordered support obligation, their first responsibility is to pay that amount. 26 On the Front Lines: Building Skills for Reentry and Diversion

27. Enforcement NCPs who fail to pay their court-ordered support obligation face a number of enforcement mechanisms. NCPs are supposed to receive notices before any specific enforcement action takes place. NCPs who receive PA or SSI or can prove a hardship situation may be exempted from the enforcement process. These enforcement mechanisms are either administrative or judicial, which require a court hearing. 27 On the Front Lines: Building Skills for Reentry and Diversion

28. Administrative Enforcement Mechanisms Income Execution (up to 65% of income after taxes and FICA; 55% if supporting other children; 50% if there are no arrears); ▫ CAN’T be taken from PA or SSI but CAN be from SSD and UIB. Credit Bureau Reporting; Tax Refund Offset; Lottery Prize Intercept; Property Execution; Medical Support Execution (through employer); Drivers License Suspension (lifted with Benefits card); Referral to Dept. of Taxation and Finance for seizure of other assets; Denial of NYC business or professional licenses; Denial of new and renewed passports. 28 On the Front Lines: Building Skills for Reentry and Diversion

29. Judicial Enforcement Mechanisms Before judicial enforcement mechanisms snap into place, a violation petition must first be filed, which turns arrears into a judgment. A court hearing is required. 29 On the Front Lines: Building Skills for Reentry and Diversion

30. Judicial Enforcement Mechanisms (cont’d) Money judgment (accumulates 9% interest); Lien on property and/or personal injury claims; Cash deposit; Suspension of state-issued professional and occupational licenses; Arrest /Incarceration (for willful non- payment – NCP could pay but chose not to); Referral for criminal prosecution; Participation in a work program (can also be ordered at initial hearing). 30 On the Front Lines: Building Skills for Reentry and Diversion

31. Managing Arrears If a NCP has already accumulated arrears, they can work out a payment plan to pay the amount off. This enables NCPs to make modest, regular payments which will chip away at the arrears owed, resulting in enforcement mechanisms to slowly drop off. 31 On the Front Lines: Building Skills for Reentry and Diversion

32. Bankruptcy and Arrears Bankruptcy offers little protection. It does not discharge arrears or modify orders. SCU can still use all enforcement tools EXCEPT: ▫ Referral to Dept. of Taxation and Finance; ▫ Seizure of Bank Accounts and Property. 32 On the Front Lines: Building Skills for Reentry and Diversion

33. Modifying Arrears Very difficult to accomplish. In private cases, the CP can forgive any arrears owed to him or her via a waiver letter presented to SCU. (See Waiver Letter for Child Support Arrears on Reentry.net) A court can only adjust arrears accumulated by mistake. 33 On the Front Lines: Building Skills for Reentry and Diversion

34. Modifying Arrears (cont’d) First step is for the NCP to find out exactly the amount of arrears owed and to whom. If arrears accumulated due to a default order, NCP should move to vacate the default order and should request modification to the original date. If a child is emancipated (e.g., not living with the parents, has a source of income, is in the military, or is married), arrears accumulated during the period of emancipation are a mistake. 34 On the Front Lines: Building Skills for Reentry and Diversion

35. Modifying Arrears (cont’d) NCP should make a timeline of income earned during the period arrears were accruing. If NCP’s income is below the poverty level (particularly if they are on PA), arrears can be capped (see Income History Tool on Reentry.net) or even reduced entirely based on mistake. 35 On the Front Lines: Building Skills for Reentry and Diversion

36. Modifying Arrears (cont’d) If the NCP can provide documentation that he or she was receiving PA, SSI, or SSD when the order was made or subsequently while he was being charged, he or she may request that an adjustment be made to their arrears. A NCP can request that the court “review arrears” (because they were on PA/SSI/lived with the child, etc.) when they show up to court on their modification petition. 36 On the Front Lines: Building Skills for Reentry and Diversion

37. Resources on Reentry Net/NY Follow-Up Legal Action Plan; Job Search Diary; Waiver Letter for Child Support Arrears; HRA initiative; Income History Tool (to invoke $500 arrears cap). 37 On the Front Lines: Building Skills for Reentry and Diversion