Bill Text: NY A08952 | 2009-2010 | General Assembly | Introduced
Bill Title: Relates to modifying child support orders, employer reporting of new hires and quarterly earnings, work experience programs and noncustodial earned income tax credit.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Passed) 2010-07-15 - signed chap.182 [A08952 Detail]
Download: New_York-2009-A08952-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
8952
2009-2010 Regular Sessions
I N A S S E M B L Y
June 16, 2009
___________
Introduced by M. of A. WEINSTEIN -- Multi-Sponsored by -- M. of A. JOHN
-- (at request of the Office of Temporary and Disability Assistance)
-- read once and referred to the Committee on Judiciary
AN ACT to amend the tax law, the family court act, the domestic
relations law and the social services law, in relation to the modifi-
cation of child support orders, employer reporting of new hires and
quarterly earnings, work programs and the noncustodial earned income
tax credit
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Short title. This act shall be known and may be cited as
2 the "Low Income Support Obligation and Performance Improvement Act".
3 S 2. Subsection (d-1) of section 606 of the tax law is amended by
4 adding a new paragraph 8 to read as follows:
5 (8) IN A REPORT PREPARED BY THE COMMISSIONER AND SUBMITTED TO THE
6 OFFICE OF TEMPORARY AND DISABILITY ASSISTANCE, THE DEPARTMENT SHALL
7 INCLUDE INFORMATION CONCERNING THE CREDIT ALLOWED PURSUANT TO THIS
8 SUBSECTION INDICATING WHETHER OR NOT TAXPAYERS IDENTIFIED BY THE OFFICE
9 OF TEMPORARY AND DISABILITY ASSISTANCE PURSUANT TO PARAGRAPH FOUR OF
10 THIS SUBSECTION FILED AN INCOME TAX RETURN, FILED FOR A CREDIT, RECEIVED
11 A CREDIT, AND THE AMOUNT OF ANY SUCH CREDIT. ANY INDIVIDUAL TAXPAYER
12 INFORMATION FURNISHED BY THE DEPARTMENT PURSUANT TO THIS SECTION SHALL
13 BE DEEMED CONFIDENTIAL AND MAY NOT BE DISCLOSED TO ANY THIRD PARTY AND
14 THE OFFICE OF TEMPORARY AND DISABILITY ASSISTANCE IS PROHIBITED FROM
15 USING THE INDIVIDUAL TAXPAYER INFORMATION EXCEPT FOR THE PURPOSE OF
16 ANALYZING THE IMPACT OF THE CREDIT AND ITS EFFECT ON CHILD SUPPORT
17 PAYMENTS.
18 S 3. Subdivision 1 of section 171-a of the tax law, as amended by
19 chapter 398 of the laws of 1997, is amended to read as follows:
20 (1) The department shall design, develop, implement and operate a wage
21 reporting system within the department utilizing information submitted
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD07739-06-9
A. 8952 2
1 by employers as defined under article eighteen of the labor law. The
2 department is authorized to require submission of a report, in such form
3 and in such manner as prescribed by regulations for not more frequently
4 than four times per annum, of the name, social security account number,
5 and gross wages paid to each employee who resides or is employed in this
6 state, whether or not such employee is a resident for purposes of this
7 chapter and whether or not the wages of such employee are subject to
8 withholding of tax or payments of tax under article twenty-two of this
9 chapter. EMPLOYERS ALSO SHALL REPORT IF DEPENDENT HEALTH INSURANCE
10 BENEFITS ARE AVAILABLE. No report shall be filed with respect to an
11 employee of a state or local agency performing intelligence or counter-
12 intelligence functions, if the head of such agency has determined that
13 filing such a report could endanger the safety of the employee or
14 compromise an ongoing investigation or intelligence mission.
15 S 4. Paragraphs (a) and (b) of subdivision 3 of section 171-h of the
16 tax law, as added by chapter 398 of the laws of 1997, are amended to
17 read as follows:
18 (a) General. Employers shall furnish to the state directory of new
19 hires a report that contains the name, address, and social security
20 number of each newly hired or re-hired employee who works in the state,
21 and the employer's name, address, and identification number as assigned
22 pursuant to section six thousand one hundred nine of the internal reven-
23 ue code of 1986. EMPLOYERS ALSO SHALL REPORT IF DEPENDENT HEALTH INSUR-
24 ANCE BENEFITS ARE AVAILABLE AND THE DATE THE EMPLOYEE QUALIFIES FOR THE
25 BENEFITS.
26 (b) Format. Each report shall be submitted on a W-4 (employee's with-
27 holding allowance certificate) form or, at employer option, an equiv-
28 alent form and transmitted by first class mail, magnetically, or elec-
29 tronically to the state directory of new hires. IN ADDITION, IF EACH
30 REPORT IS SUBMITTED ON A W-4, AN ADDITIONAL FORM AS PRESCRIBED BY THE
31 DEPARTMENT SHALL BE SUBMITTED TO REPORT IF DEPENDENT HEALTH INSURANCE
32 BENEFITS ARE AVAILABLE AND THE DATE THE EMPLOYEE QUALIFIES FOR THE BENE-
33 FITS. THAT ADDITIONAL FORM SHALL BE TRANSMITTED BY FIRST CLASS MAIL,
34 MAGNETICALLY, OR ELECTRONICALLY TO THE STATE DIRECTORY OF NEW HIRES.
35 S 5. Paragraph 3 of subsection (e) of section 697 of the tax law, as
36 amended by section 4 of part V of chapter 57 of the laws of 2009, is
37 amended to read as follows:
38 (3) Nothing herein shall be construed to prohibit the department, its
39 officers or employees from furnishing information to the office of
40 temporary and disability assistance relating to the payment of the cred-
41 it for certain household and dependent care services necessary for gain-
42 ful employment under subsection (c) of section six hundred six of this
43 article and the earned income credit under subsection (d) of section six
44 hundred six of this article AND THE ENHANCED EARNED INCOME CREDIT UNDER
45 SUBSECTION (D-1) OF SECTION SIX HUNDRED SIX OF THIS ARTICLE, or pursuant
46 to a local law enacted by a city having a population of one million or
47 more pursuant to subsection (f) of section thirteen hundred ten of this
48 chapter, only to the extent necessary to calculate qualified state
49 expenditures under paragraph seven of subdivision (a) of section four
50 hundred nine of the federal social security act or to document the prop-
51 er expenditure of federal temporary assistance for needy families funds
52 under section four hundred three of such act. The office of temporary
53 and disability assistance may redisclose such information to the United
54 States department of health and human services only to the extent neces-
55 sary to calculate such qualified state expenditures or to document the
56 proper expenditure of such federal temporary assistance for needy fami-
A. 8952 3
1 lies funds. Nothing herein shall be construed to prohibit the delivery
2 by the commissioner to a commissioner of jurors, appointed pursuant to
3 section five hundred four of the judiciary law, or, in counties within
4 cities having a population of one million or more, to the county clerk
5 of such county, of a mailing list of individuals to whom income tax
6 forms are mailed by the commissioner for the sole purpose of compiling a
7 list of prospective jurors as provided in article sixteen of the judici-
8 ary law. Provided, however, such delivery shall only be made pursuant
9 to an order of the chief administrator of the courts, appointed pursuant
10 to section two hundred ten of the judiciary law. No such order may be
11 issued unless such chief administrator is satisfied that such mailing
12 list is needed to compile a proper list of prospective jurors for the
13 county for which such order is sought and that, in view of the responsi-
14 bilities imposed by the various laws of the state on the department, it
15 is reasonable to require the commissioner to furnish such list. Such
16 order shall provide that such list shall be used for the sole purpose of
17 compiling a list of prospective jurors and that such commissioner of
18 jurors, or such county clerk, shall take all necessary steps to insure
19 that the list is kept confidential and that there is no unauthorized use
20 or disclosure of such list. Furthermore, nothing herein shall be
21 construed to prohibit the delivery to a taxpayer or his or her duly
22 authorized representative of a certified copy of any return or report
23 filed in connection with his or her tax or to prohibit the publication
24 of statistics so classified as to prevent the identification of partic-
25 ular reports or returns and the items thereof, or the inspection by the
26 attorney general or other legal representatives of the state of the
27 report or return of any taxpayer or of any employer filed under section
28 one hundred seventy-one-h of this chapter, where such taxpayer or
29 employer shall bring action to set aside or review the tax based there-
30 on, or against whom an action or proceeding under this chapter or under
31 this chapter and article eighteen of the labor law has been recommended
32 by the commissioner, the commissioner of labor with respect to unemploy-
33 ment insurance matters, or the attorney general or has been instituted,
34 or the inspection of the reports or returns required under this article
35 by the comptroller or duly designated officer or employee of the state
36 department of audit and control, for purposes of the audit of a refund
37 of any tax paid by a taxpayer under this article, or the furnishing to
38 the state department of labor of unemployment insurance information
39 obtained or derived from quarterly combined withholding, wage reporting
40 and unemployment insurance returns required to be filed by employers
41 pursuant to paragraph four of subsection (a) of section six hundred
42 seventy-four of this article, for purposes of administration of such
43 department's unemployment insurance program, employment services
44 program, federal and state employment and training programs, employment
45 statistics and labor market information programs, worker protection
46 programs, federal programs for which the department has administrative
47 responsibility or for other purposes deemed appropriate by the commis-
48 sioner of labor consistent with the provisions of the labor law, and
49 redisclosure of such information in accordance with the provisions of
50 sections five hundred thirty-six and five hundred thirty-seven of the
51 labor law or any other applicable law, or the furnishing to the state
52 office of temporary and disability assistance of information obtained or
53 derived from New York state personal income tax returns as described in
54 paragraph (b) of subdivision two of section one hundred seventy-one-g of
55 this chapter for the purpose of reviewing support orders enforced pursu-
56 ant to title six-A of article three of the social services law to aid in
A. 8952 4
1 the determination of whether such orders should be adjusted, or the
2 furnishing of information obtained from the reports required to be
3 submitted by employers regarding newly hired or re-hired employees
4 pursuant to section one hundred seventy-one-h of this chapter to the
5 state office of temporary and disability assistance, the state depart-
6 ment of health, the state department of labor and the workers' compen-
7 sation board for purposes of administration of the child support
8 enforcement program, verification of individuals' eligibility for one or
9 more of the programs specified in subsection (b) of section eleven
10 hundred thirty-seven of the federal social security act and for other
11 public assistance programs authorized by state law, and administration
12 of the state's employment security and workers' compensation programs,
13 and to the national directory of new hires established pursuant to
14 section four hundred fifty-three-A of the federal social security act
15 for the purposes specified in such section, or the furnishing to the
16 state office of temporary and disability assistance of the amount of an
17 overpayment of income tax and interest thereon certified to the comp-
18 troller to be credited against past-due support pursuant to section one
19 hundred seventy-one-c of this chapter and of the name and social securi-
20 ty number of the taxpayer who made such overpayment, or the disclosing
21 to the commissioner of finance of the city of New York, pursuant to
22 section one hundred seventy-one-l of this chapter, of the amount of an
23 overpayment and interest thereon certified to the comptroller to be
24 credited against a city of New York tax warrant judgment debt and of the
25 name and social security number of the taxpayer who made such overpay-
26 ment, or the furnishing to the New York state higher education services
27 corporation of the amount of an overpayment of income tax and interest
28 thereon certified to the comptroller to be credited against the amount
29 of a default in repayment of any education loan debt, including judg-
30 ments, owed to the federal or New York state government that is being
31 collected by the New York state higher education services corporation,
32 and of the name and social security number of the taxpayer who made such
33 overpayment, or the furnishing to the state department of health of the
34 information required by paragraph (f) of subdivision two and subdivision
35 two-a of section two thousand five hundred eleven of the public health
36 law and by subdivision eight of section three hundred sixty-six-a and
37 paragraphs (b) and (d) of subdivision two of section three hundred
38 sixty-nine-ee of the social services law, or the furnishing to the state
39 university of New York or the city university of New York respectively
40 or the attorney general on behalf of such state or city university the
41 amount of an overpayment of income tax and interest thereon certified to
42 the comptroller to be credited against the amount of a default in repay-
43 ment of a state university loan pursuant to section one hundred seven-
44 ty-one-e of this chapter and of the name and social security number of
45 the taxpayer who made such overpayment, or the disclosing to a state
46 agency, pursuant to section one hundred seventy-one-f of this chapter,
47 of the amount of an overpayment and interest thereon certified to the
48 comptroller to be credited against a past-due legally enforceable debt
49 owed to such agency and of the name and social security number of the
50 taxpayer who made such overpayment, or the furnishing of employee and
51 employer information obtained through the wage reporting system, pursu-
52 ant to section one hundred seventy-one-a of this chapter, as added by
53 chapter five hundred forty-five of the laws of nineteen hundred seven-
54 ty-eight, to the state office of temporary and disability assistance,
55 the department of health or to the state office of the medicaid inspec-
56 tor general for the purpose of verifying eligibility for and entitlement
A. 8952 5
1 to amounts of benefits under the social services law or similar law of
2 another jurisdiction, locating absent parents or other persons legally
3 responsible for the support of applicants for or recipients of public
4 assistance and care under the social services law and persons legally
5 responsible for the support of a recipient of services under section one
6 hundred eleven-g of the social services law and, in appropriate cases,
7 establishing support obligations pursuant to the social services law and
8 the family court act or similar provision of law of another jurisdiction
9 for the purpose of evaluating the effect on earnings of participation in
10 employment, training or other programs designed to promote self-suffici-
11 ency authorized pursuant to the social services law by current recipi-
12 ents of public assistance and care and by former applicants and recipi-
13 ents of public assistance and care, (except that with regard to former
14 recipients, information which relates to a particular former recipient
15 shall be provided with client identifying data deleted), to the state
16 office of temporary and disability assistance for the purpose of deter-
17 mining the eligibility of any child in the custody, care and custody or
18 custody and guardianship of a local social services district or of the
19 office of children and family services for federal payments for foster
20 care and adoption assistance pursuant to the provisions of title IV-E of
21 the federal social security act by providing information with respect to
22 the parents, the stepparents, the child and the siblings of the child
23 who were living in the same household as such child during the month
24 that the court proceedings leading to the child's removal from the
25 household were initiated, or the written instrument transferring care
26 and custody of the child pursuant to the provisions of section three
27 hundred fifty-eight-a or three hundred eighty-four-a of the social
28 services law was signed, provided however that the office of temporary
29 and disability assistance shall only use the information obtained pursu-
30 ant to this subdivision for the purpose of determining the eligibility
31 of such child for federal payments for foster care and adoption assist-
32 ance pursuant to the provisions of title IV-E of the federal social
33 security act, and to the state department of labor, or other individuals
34 designated by the commissioner of labor, for the purpose of the adminis-
35 tration of such department's unemployment insurance program, employment
36 services program, federal and state employment and training programs,
37 employment statistics and labor market information programs, worker
38 protection programs, federal programs for which the department has
39 administrative responsibility or for other purposes deemed appropriate
40 by the commissioner of labor consistent with the provisions of the labor
41 law, and redisclosure of such information in accordance with the
42 provisions of sections five hundred thirty-six and five hundred thirty-
43 seven of the labor law, or the furnishing of information, which is
44 obtained from the wage reporting system operated pursuant to section one
45 hundred seventy-one-a of this chapter, as added by chapter five hundred
46 forty-five of the laws of nineteen hundred seventy-eight, to the state
47 office of temporary and disability assistance so that it may furnish
48 such information to public agencies of other jurisdictions with which
49 the state office of temporary and disability assistance has an agreement
50 pursuant to paragraph (h) or (i) of subdivision three of section twenty
51 of the social services law, and to the state office of temporary and
52 disability assistance for the purpose of fulfilling obligations and
53 responsibilities otherwise incumbent upon the state department of labor,
54 under section one hundred twenty-four of the federal family support act
55 of nineteen hundred eighty-eight, by giving the federal parent locator
56 service, maintained by the federal department of health and human
A. 8952 6
1 services, prompt access to such information as required by such act, or
2 to the state department of health to verify eligibility under the child
3 health insurance plan pursuant to subdivisions two and two-a of section
4 two thousand five hundred eleven of the public health law, to verify
5 eligibility under the medical assistance and family health plus programs
6 pursuant to subdivision eight of section three hundred sixty-six-a and
7 paragraphs (b) and (d) of subdivision two of section three hundred
8 sixty-nine-ee of the social services law, and to verify eligibility for
9 the program for elderly pharmaceutical insurance coverage under title
10 three of article two of the elder law, or to the office of vocational
11 and educational services for individuals with disabilities of the educa-
12 tion department, the commission for the blind and visually handicapped
13 and any other state vocational rehabilitation agency, for purposes of
14 obtaining reimbursement from the federal social security administration
15 for expenditures made by such office, commission or agency on behalf of
16 disabled individuals who have achieved economic self-sufficiency or to
17 the higher education services corporation for the purpose of assisting
18 the corporation in default prevention and default collection of educa-
19 tion loan debt, including judgments, owed to the federal or New York
20 state government; provided, however, that such information shall be
21 limited to the names, social security numbers, home and/or business
22 addresses, and employer names of defaulted or delinquent student loan
23 borrowers.
24 Provided, however, that with respect to employee information the
25 office of temporary and disability assistance shall only be furnished
26 with the names, social security account numbers and gross wages of those
27 employees who are (A) applicants for or recipients of benefits under the
28 social services law, or similar provision of law of another jurisdiction
29 (pursuant to an agreement under subdivision three of section twenty of
30 the social services law) or, (B) absent parents or other persons legally
31 responsible for the support of applicants for or recipients of public
32 assistance and care under the social services law or similar provision
33 of law of another jurisdiction (pursuant to an agreement under subdivi-
34 sion three of section twenty of the social services law), or (C) persons
35 legally responsible for the support of a recipient of services under
36 section one hundred eleven-g of the social services law or similar
37 provision of law of another jurisdiction (pursuant to an agreement under
38 subdivision three of section twenty of the social services law), or (D)
39 employees about whom wage reporting system information is being
40 furnished to public agencies of other jurisdictions, with which the
41 state office of temporary and disability assistance has an agreement
42 pursuant to paragraph (h) or (i) of subdivision three of section twenty
43 of the social services law, or (E) employees about whom wage reporting
44 system information is being furnished to the federal parent locator
45 service, maintained by the federal department of health and human
46 services, for the purpose of enabling the state office of temporary and
47 disability assistance to fulfill obligations and responsibilities other-
48 wise incumbent upon the state department of labor, under section one
49 hundred twenty-four of the federal family support act of nineteen
50 hundred eighty-eight, and, only if, the office of temporary and disabil-
51 ity assistance certifies to the commissioner that such persons are such
52 applicants, recipients, absent parents or persons legally responsible
53 for support or persons about whom information has been requested by a
54 public agency of another jurisdiction or by the federal parent locator
55 service and further certifies that in the case of information requested
56 under agreements with other jurisdictions entered into pursuant to
A. 8952 7
1 subdivision three of section twenty of the social services law, that
2 such request is in compliance with any applicable federal law. Provided,
3 further, that where the office of temporary and disability assistance
4 requests employee information for the purpose of evaluating the effects
5 on earnings of participation in employment, training or other programs
6 designed to promote self-sufficiency authorized pursuant to the social
7 services law, the office of temporary and disability assistance shall
8 only be furnished with the quarterly gross wages (excluding any refer-
9 ence to the name, social security number or any other information which
10 could be used to identify any employee or the name or identification
11 number of any employer) paid to employees who are former applicants for
12 or recipients of public assistance and care and who are so certified to
13 the commissioner by the commissioner of the office of temporary and
14 disability assistance. Provided, further, that with respect to employee
15 information, the department of health shall only be furnished with the
16 information required pursuant to the provisions of paragraph (f) of
17 subdivision two and subdivision two-a of section two thousand five
18 hundred eleven of the public health law and subdivision eight of section
19 three hundred sixty-six-a and paragraphs (b) and (d) of subdivision two
20 of section three hundred sixty-nine-ee of the social services law, with
21 respect to those individuals whose eligibility under the child health
22 insurance plan, medical assistance program, and family health plus
23 program is to be determined pursuant to such provisions and with respect
24 to those members of any such individual's household whose income affects
25 such individual's eligibility and who are so certified to the commis-
26 sioner or by the department of health. Provided, further, that wage
27 reporting information shall be furnished to the office of vocational and
28 educational services for individuals with disabilities of the education
29 department, the commission for the blind and visually handicapped and
30 any other state vocational rehabilitation agency only if such office,
31 commission or agency, as applicable, certifies to the commissioner that
32 such information is necessary to obtain reimbursement from the federal
33 social security administration for expenditures made on behalf of disa-
34 bled individuals who have achieved self-sufficiency. Reports and returns
35 shall be preserved for three years and thereafter until the commissioner
36 orders them to be destroyed.
37 S 6. Section 451 of the family court act, as amended by chapter 533 of
38 the laws of 1999, is amended to read as follows:
39 S 451. Continuing jurisdiction. 1. Except as provided in article
40 five-B of this act, the court has continuing jurisdiction over any
41 support proceeding brought under this article until its judgment is
42 completely satisfied and may modify, set aside or vacate any order
43 issued in the course of the proceeding, provided, however, that the
44 modification, set aside or vacatur shall not reduce or annul child
45 support arrears accrued prior to the making of an application pursuant
46 to this section. The court shall not reduce or annul any other arrears
47 unless the defaulting party shows good cause for failure to make appli-
48 cation for relief from the judgment or order directing payment prior to
49 the accrual of the arrears, in which case the facts and circumstances
50 constituting such good cause shall be set forth in a written memorandum
51 of decision. A modification may increase support payments nunc pro tunc
52 as of the date of the initial application for support based on newly
53 discovered evidence. Any retroactive amount of support due shall be paid
54 [in one lump sum or periodic sums, as the court directs, taking into
55 account any amount of support which has been paid] AND BE ENFORCEABLE AS
56 PROVIDED IN SECTION FOUR HUNDRED FORTY OF THIS ARTICLE. Upon an applica-
A. 8952 8
1 tion to modify, set aside or vacate an order of support, no hearing
2 shall be required unless such application shall be supported by affida-
3 vit and other evidentiary material sufficient to establish a prima facie
4 case for the relief requested.
5 2. (A) THE COURT MAY MODIFY AN ORDER OF CHILD SUPPORT, INCLUDING AN
6 ORDER INCORPORATING WITHOUT MERGING AN AGREEMENT OR STIPULATION OF THE
7 PARTIES, UPON A SHOWING OF A SUBSTANTIAL CHANGE IN CIRCUMSTANCES.
8 INCARCERATION SHALL NOT BE A BAR TO FINDING A SUBSTANTIAL CHANGE IN
9 CIRCUMSTANCES PROVIDED SUCH INCARCERATION IS NOT THE RESULT OF NON-PAY-
10 MENT OF A CHILD SUPPORT ORDER, OR AN OFFENSE AGAINST THE CUSTODIAL
11 PARENT OR CHILD WHO IS THE SUBJECT OF THE ORDER OR JUDGMENT.
12 (B) IN ADDITION, UNLESS THE PARTIES HAVE SPECIFICALLY OPTED OUT OF THE
13 FOLLOWING PROVISIONS IN A VALIDLY EXECUTED AGREEMENT OR STIPULATION
14 ENTERED INTO BETWEEN THE PARTIES, THE COURT MAY MODIFY AN ORDER OF CHILD
15 SUPPORT WHERE:
16 (I) THREE YEARS HAVE PASSED SINCE THE ORDER WAS ENTERED, LAST MODIFIED
17 OR ADJUSTED; OR
18 (II) THERE HAS BEEN A CHANGE IN EITHER PARTY'S GROSS INCOME BY FIFTEEN
19 PERCENT OR MORE SINCE THE ORDER WAS ENTERED, LAST MODIFIED, OR ADJUSTED.
20 A REDUCTION IN INCOME SHALL NOT BE CONSIDERED AS A GROUND FOR MODIFICA-
21 TION UNLESS IT WAS INVOLUNTARY AND THE PARTY HAS MADE DILIGENT ATTEMPTS
22 TO SECURE EMPLOYMENT COMMENSURATE WITH HIS OR HER EDUCATION, ABILITY,
23 AND EXPERIENCE.
24 S 7. Paragraph b of subdivision 9 of part B of section 236 of the
25 domestic relations law, as amended by chapter 354 of the laws of 1993,
26 is amended to read as follows:
27 b. (1) Upon application by either party, the court may annul or modify
28 any prior order or judgment as to maintenance [or child support], upon a
29 showing of the recipient's inability to be self-supporting or a substan-
30 tial change in circumstance or termination of child support awarded
31 pursuant to section two hundred forty of this article, including finan-
32 cial hardship. Where, after the effective date of this part, a sepa-
33 ration agreement remains in force no modification of a prior order or
34 judgment incorporating the terms of said agreement shall be made as to
35 maintenance without a showing of extreme hardship on either party, in
36 which event the judgment or order as modified shall supersede the terms
37 of the prior agreement and judgment for such period of time and under
38 such circumstances as the court determines. [Provided, however, that no
39 modification or annulment shall reduce or annul any arrears of child
40 support which have accrued prior to the date of application to annul or
41 modify any prior order or judgment as to child support.] The court shall
42 not reduce or annul any arrears of maintenance which have been reduced
43 to final judgment pursuant to section two hundred forty-four of this
44 [chapter] ARTICLE. No other arrears of maintenance which have accrued
45 prior to the making of such application shall be subject to modification
46 or annulment unless the defaulting party shows good cause for failure to
47 make application for relief from the judgment or order directing such
48 payment prior to the accrual of such arrears and the facts and circum-
49 stances constituting good cause are set forth in a written memorandum of
50 decision. Such modification may increase maintenance [or child support]
51 nunc pro tunc as of the date of application based on newly discovered
52 evidence. Any retroactive amount of maintenance[, or child support] due
53 shall, except as provided for herein, be paid in one sum or periodic
54 sums, as the court directs, taking into account any temporary or partial
55 payments which have been made. [Any retroactive amount of child support
56 due shall be support arrears/past due support. In addition, such retro-
A. 8952 9
1 active child support shall be enforceable in any manner provided by law
2 including, but not limited to, an execution for support enforcement
3 pursuant to subdivision (b) of section fifty-two hundred forty-one of
4 the civil practice law and rules. When a child receiving support is a
5 public assistance recipient, or the order of support is being enforced
6 or is to be enforced pursuant to section one hundred eleven-g of the
7 social services law, the court shall establish the amount of retroactive
8 child support and notify the parties that such amount shall be enforced
9 by the support collection unit pursuant to an execution for support
10 enforcement as provided for in subdivision (b) of section fifty-two
11 hundred forty-one of the civil practice law and rules, or in such peri-
12 odic payments as would have been authorized had such an execution been
13 issued. In such case, the court shall not direct the schedule of repay-
14 ment of retroactive support.] The provisions of this subdivision shall
15 not apply to a separation agreement made prior to the effective date of
16 this part.
17 (2) (I) THE COURT MAY MODIFY AN ORDER OF CHILD SUPPORT, INCLUDING AN
18 ORDER INCORPORATING WITHOUT MERGING AN AGREEMENT OR STIPULATION OF THE
19 PARTIES, UPON A SHOWING OF A SUBSTANTIAL CHANGE IN CIRCUMSTANCES. INCAR-
20 CERATION SHALL NOT BE A BAR TO FINDING A SUBSTANTIAL CHANGE IN CIRCUM-
21 STANCES PROVIDED SUCH INCARCERATION IS NOT THE RESULT OF NON-PAYMENT OF
22 A CHILD SUPPORT ORDER, OR AN OFFENSE AGAINST THE CUSTODIAL PARENT OR
23 CHILD WHO IS THE SUBJECT OF THE ORDER OR JUDGMENT.
24 (II) IN ADDITION, UNLESS THE PARTIES HAVE SPECIFICALLY OPTED OUT OF
25 THE FOLLOWING PROVISIONS IN A VALIDLY EXECUTED AGREEMENT OR STIPULATION
26 ENTERED INTO BETWEEN THE PARTIES, THE COURT MAY MODIFY AN ORDER OF CHILD
27 SUPPORT WHERE:
28 (A) THREE YEARS HAVE PASSED SINCE THE ORDER WAS ENTERED, LAST MODIFIED
29 OR ADJUSTED; OR
30 (B) THERE HAS BEEN A CHANGE IN EITHER PARTY'S GROSS INCOME BY FIFTEEN
31 PERCENT OR MORE SINCE THE ORDER WAS ENTERED, LAST MODIFIED, OR ADJUSTED.
32 A REDUCTION IN INCOME SHALL NOT BE CONSIDERED AS A GROUND FOR MODIFICA-
33 TION UNLESS IT WAS INVOLUNTARY AND THE PARTY HAS MADE DILIGENT ATTEMPTS
34 TO SECURE EMPLOYMENT COMMENSURATE WITH HIS OR HER EDUCATION, ABILITY,
35 AND EXPERIENCE.
36 (III) NO MODIFICATION OR ANNULMENT SHALL REDUCE OR ANNUL ANY ARREARS
37 OF CHILD SUPPORT WHICH HAVE ACCRUED PRIOR TO THE DATE OF APPLICATION TO
38 ANNUL OR MODIFY ANY PRIOR ORDER OR JUDGMENT AS TO CHILD SUPPORT. SUCH
39 MODIFICATION MAY INCREASE CHILD SUPPORT NUNC PRO TUNC AS OF THE DATE OF
40 APPLICATION BASED ON NEWLY DISCOVERED EVIDENCE. ANY RETROACTIVE AMOUNT
41 OF CHILD SUPPORT DUE SHALL, EXCEPT AS PROVIDED FOR IN THIS SUBPARAGRAPH,
42 BE PAID IN ONE SUM OR PERIODIC SUMS, AS THE COURT DIRECTS, TAKING INTO
43 ACCOUNT ANY TEMPORARY OR PARTIAL PAYMENTS WHICH HAVE BEEN MADE. ANY
44 RETROACTIVE AMOUNT OF CHILD SUPPORT DUE SHALL BE SUPPORT ARREARS/PAST
45 DUE SUPPORT. IN ADDITION, SUCH RETROACTIVE CHILD SUPPORT SHALL BE
46 ENFORCEABLE IN ANY MANNER PROVIDED BY LAW INCLUDING, BUT NOT LIMITED TO,
47 AN EXECUTION FOR SUPPORT ENFORCEMENT PURSUANT TO SUBDIVISION (B) OF
48 SECTION FIFTY-TWO HUNDRED FORTY-ONE OF THE CIVIL PRACTICE LAW AND RULES.
49 WHEN A CHILD RECEIVING SUPPORT IS A PUBLIC ASSISTANCE RECIPIENT, OR THE
50 ORDER OF SUPPORT IS BEING ENFORCED OR IS TO BE ENFORCED PURSUANT TO
51 SECTION ONE HUNDRED ELEVEN-G OF THE SOCIAL SERVICES LAW, THE COURT SHALL
52 ESTABLISH THE AMOUNT OF RETROACTIVE CHILD SUPPORT AND NOTIFY THE PARTIES
53 THAT SUCH AMOUNT SHALL BE ENFORCED BY THE SUPPORT COLLECTION UNIT PURSU-
54 ANT TO AN IMMEDIATE EXECUTION FOR SUPPORT ENFORCEMENT AS PROVIDED FOR BY
55 THIS CHAPTER, OR IN SUCH PERIODIC PAYMENTS AS WOULD HAVE BEEN AUTHORIZED
A. 8952 10
1 HAD SUCH AN EXECUTION BEEN ISSUED. IN SUCH CASE, THE COURT SHALL NOT
2 DIRECT THE SCHEDULE OF REPAYMENT OF RETROACTIVE SUPPORT.
3 S 8. Subdivision 4 of section 440 of the family court act, as amended
4 by chapter 398 of the laws of 1997, is amended to read as follows:
5 4. Any support order made by the court in any proceeding under the
6 provisions of article five-B of this act, pursuant to a reference from
7 the supreme court under section two hundred fifty-one of the domestic
8 relations law or under the provisions of THIS article [four,] OR ARTICLE
9 five or five-A of this act shall include, on its face, a notice printed
10 or typewritten in a size equal to at least eight point bold type:
11 (A) informing the respondent that a willful failure to obey the order
12 may, after court hearing, result in commitment to jail for a term not to
13 exceed six months for contempt of court[.], AND
14 (B) INFORMING THE PARTIES OF THEIR RIGHT TO SEEK A MODIFICATION OF THE
15 CHILD SUPPORT ORDER UPON A SHOWING OF:
16 (I) A SUBSTANTIAL CHANGE IN CIRCUMSTANCES; OR
17 (II) THAT THREE YEARS HAVE PASSED SINCE THE ORDER WAS ENTERED, LAST
18 MODIFIED OR ADJUSTED; OR
19 (III) THERE HAS BEEN A CHANGE IN EITHER PARTY'S GROSS INCOME BY
20 FIFTEEN PERCENT OR MORE SINCE THE ORDER WAS ENTERED, LAST MODIFIED, OR
21 ADJUSTED;
22 HOWEVER, IF THE PARTIES HAVE SPECIFICALLY OPTED OUT OF SUBPARAGRAPH (II)
23 OR (III) OF THIS PARAGRAPH IN A VALIDLY EXECUTED AGREEMENT OR STIPU-
24 LATION, THEN THAT BASIS TO SEEK MODIFICATION DOES NOT APPLY.
25 S 9. Subdivision 7 of part B of section 236 of the domestic relations
26 law is amended by adding a new paragraph d to read as follows:
27 D. ANY CHILD SUPPORT ORDER MADE BY THE COURT IN ANY PROCEEDING UNDER
28 THE PROVISIONS OF THIS SECTION SHALL INCLUDE, ON ITS FACE, A NOTICE
29 PRINTED OR TYPEWRITTEN IN A SIZE EQUAL TO AT LEAST EIGHT POINT BOLD TYPE
30 INFORMING THE PARTIES OF THEIR RIGHT TO SEEK A MODIFICATION OF THE CHILD
31 SUPPORT ORDER UPON A SHOWING OF:
32 (I) A SUBSTANTIAL CHANGE IN CIRCUMSTANCES; OR
33 (II) THAT THREE YEARS HAVE PASSED SINCE THE ORDER WAS ENTERED, LAST
34 MODIFIED OR ADJUSTED; OR
35 (III) THERE HAS BEEN A CHANGE IN EITHER PARTY'S GROSS INCOME BY
36 FIFTEEN PERCENT OR MORE SINCE THE ORDER WAS ENTERED, LAST MODIFIED, OR
37 ADJUSTED;
38 HOWEVER, IF THE PARTIES HAVE SPECIFICALLY OPTED OUT OF SUBPARAGRAPH (II)
39 OR (III) OF THIS PARAGRAPH IN A VALIDLY EXECUTED AGREEMENT OR STIPU-
40 LATION, THEN THAT BASIS TO SEEK MODIFICATION DOES NOT APPLY.
41 S 10. The family court act is amended by adding a new section 437-a to
42 read as follows:
43 S 437-A. REFERRAL TO WORK PROGRAMS. IN ANY PROCEEDING TO ESTABLISH AN
44 ORDER OF SUPPORT, IF THE RESPONDENT IS UNEMPLOYED, THE COURT MAY REQUIRE
45 THE RESPONDENT TO SEEK EMPLOYMENT, OR TO PARTICIPATE IN JOB TRAINING,
46 EMPLOYMENT COUNSELING OR OTHER PROGRAMS DESIGNED TO LEAD TO EMPLOYMENT
47 PROVIDED SUCH PROGRAMS ARE AVAILABLE. THE COURT SHALL NOT REQUIRE THE
48 RESPONDENT TO SEEK EMPLOYMENT OR TO PARTICIPATE IN JOB TRAINING, EMPLOY-
49 MENT COUNSELING, OR OTHER PROGRAMS DESIGNED TO LEAD TO EMPLOYMENT UNDER
50 THIS SECTION IF THE RESPONDENT IS IN RECEIPT OF SUPPLEMENTAL SECURITY
51 INCOME OR SOCIAL SECURITY DISABILITY BENEFITS.
52 S 11. Section 111-h of the social services law is amended by adding a
53 new subdivision 20 to read as follows:
54 20. IF THE RESPONDENT IS REQUIRED TO PARTICIPATE IN WORK PROGRAMS
55 PURSUANT TO SECTION FOUR HUNDRED THIRTY-SEVEN-A OF THE FAMILY COURT ACT,
56 AND THE COURT ENTERS AN ORDER OF SUPPORT ON BEHALF OF THE PERSONS IN
A. 8952 11
1 RECEIPT OF PUBLIC ASSISTANCE, THE SUPPORT COLLECTION UNIT SHALL NOT FILE
2 A PETITION TO INCREASE THE SUPPORT OBLIGATION FOR TWELVE MONTHS FROM THE
3 DATE OF ENTRY OF THE ORDER OF SUPPORT IF THE RESPONDENT'S INCOME IS
4 DERIVED FROM PARTICIPATION IN SUCH PROGRAMS.
5 S 12. Subdivision (b) of section 461 of the family court act is
6 amended to read as follows:
7 (b) If an order of the supreme court or of another court of competent
8 jurisdiction requires support of the child, the family court may:
9 (i) entertain an application to enforce the order requiring support;
10 or
11 (ii) entertain an application to modify such order [on the ground that
12 changed circumstances requires such modification] AS PROVIDED UNDER
13 SUBDIVISION TWO OF SECTION FOUR HUNDRED FIFTY-ONE OF THIS ARTICLE,
14 unless the order of the supreme court provides that the supreme court
15 retains exclusive jurisdiction to enforce or modify the order.
16 S 13. This act shall take effect on the ninetieth day after it shall
17 have become law; provided however, that sections six and seven of this
18 act shall apply to any action or proceeding to modify any order of child
19 support entered on or after the effective date of this act except that
20 if the child support order incorporated without merging a valid agree-
21 ment or stipulation of the parties, the amendments regarding the modifi-
22 cation of a child support order set forth in sections six and seven of
23 this act shall only apply if the incorporated agreement or stipulation
24 was executed on or after this act's effective date; provided however,
25 that sections three and four of this act shall take effect on the three
26 hundred sixty-fifth day after it shall have become a law.
