Testimony Presented by Robert Doar, Commissioner
 NYS Office of Temporary and Disability Assistance,
 to the Matrimonial Commission of the NYS Office of Court Administration

 Empire State Plaza – Concourse – Mtg. Rm. 7
Albany, New York
Thursday, November 4, 2004
10:45 AM – 10:55 AM

I have a firm conviction, after almost ten years experience with child-support and public-assistance issues, that one of the best things we can do for children is to see to it that – whenever possible – they have the support and the nurturing of both parents.  And I believe this is true whether the parents are together or apart, married, separated, divorced or never married. 

We all know that divorce and custody disputes can engender severe antagonism and bitterness.  But the court processes should not add to this burden.  I’ve watched the process firsthand, in courtrooms in New York City and elsewhere.  I’ve witnessed what appeared to me frankly to be a sometimes bizarre scheduling system that can require parents to take an entire day off from work for the opportunity to file a petition for support or to make a brief appearance in court.  There are undue delays, and a labyrinthine network of rules, some of them so vague that they confound litigants and lawyers alike. 

In some areas, we’ve made a lot of progress in the last ten years.  Child support collections, for example, have more than doubled since 1995, thanks in large measure to Governor Pataki’s leadership and to the introduction of a number of statewide automated enforcement programs.  The court system, too, has moved in very positive directions under the leadership of the Chief Judge and with the persistent efforts of the Office of Court Administration.  My agency has worked more cooperatively with the court system than ever before, with some gratifying results.  But the Chief Judge would not have created this Commission if the system had been operating at peak efficiency and effectiveness.  It’s not.  We all recognize this.

Allow me, then, to discuss with you particular areas that would benefit from reforms which we believe would enable the courts and the child support program to be more responsive to the needs of children and parents. 

It is well documented, in fact, it hardly bears repeating, that the New York court system is long overdue for a major restructuring.  There are specific issues related to the existing court structure that impact separated or divorcing families’ efforts to obtain child support, and affect the child support program’s ability to assist these families. 

The Family Court has exclusive original jurisdiction over proceedings for support.  Yet, the Supreme Court has jurisdiction over divorces and may exercise and retain jurisdiction to hear and enforce child support matters incidental to a divorce.  And so, an order of child support established in the Family Court may be terminated when the Supreme Court makes an order for child support in a divorce or separation.

The existence of two entirely different courts to address child support is burdensome and leads to confusion for the families we serve, inconsistencies in the orders established and gaps that impede our program’s ability to effectively enforce child support orders on behalf of families. 

Over the years, my agency has responded to complaints by Support Collection Units of the local departments of social services and by parties that new or modified child support orders entered by the Supreme Court are not entered on the computerized record.  In these instances, neither the court nor the parties to the divorce or separation proceeding notified the Support Collection Unit of the new or modified obligation amount and in fact, the Family Court may not have learned of the entry of the Supreme Court order.  As a result, the child support program continues to enforce an incorrect amount, resulting in either an underpayment or overpayment of child support  - a problem that could be addressed by a one-court-serves-all system or by ensuring proper communication between the Family and Supreme Courts and the Support Collection Units. 

The Support Collection Units provide a vital function in assisting families to receive child support and in ensuring families remain financially self-sufficient.  They do so by employing a wide variety of methods to enforce child support orders including many highly effective automated enforcement processes.  These enforcement tools are triggered when certain criteria are met in an individual’s computerized child support record.  It is imperative that the computer records be as accurate and up to date as possible. 

While a “one court system” would obviously alleviate the confusion, burdens and communication problems, an alternative, more immediate fix in this instance is available.  I recommend that the Office of Court Administration issue a rule requiring the Supreme Court, prior to issuing a new or modified order of child support, to inquire whether there is an existing order and whether this order is being enforced by a Support Collection Unit.  If it is, the court should direct service of a copy of the order upon the Support Collection Unit. 

Another issue that is impacted by New York’s existing court structure regards cases in which the children are receiving public assistance.  The Support Collection Units play a central role in establishing and collecting child support obligations on behalf of these children.  A custodial parent who applies for or receives public assistance and care assigns his or her right to receive child support to the local district department of social services.  Sometimes, however, individual parties to child support proceedings in the Family Court or parties to a divorce in the Supreme Court are not aware of the legal implications of the receipt of public assistance or care.  We have experienced a number of cases where a child support order on behalf of children receiving public assistance was established or modified without notice or an opportunity to participate by the Support Collection Unit. 

We encourage a solution to address this issue.  The ultimate restructuring of the court would help, but – again – I recommend a more immediate solution: namely, the issuance of a court rule or procedure to require that the Supreme Court establishing or modifying an order of child support inquire at the commencement of the proceedings whether or not the children are in receipt of public assistance.  If they are, the rule or procedure would require the moving or petitioning party to notify the Support Collection Unit and to provide it with a copy of the pleadings and the opportunity to be heard.  The proceeding should be adjourned for the appearance of the Support Collection Unit. 

We also need reform in the laws governing the modification of child support orders – an area that has become so complex and factually driven that it is difficult for litigants, attorneys and decision makers to identify clear rules that govern modifications.  In 1989, New York enacted the child support standards act to provide a uniform and consistent method for calculating child support awards, commensurate with the parents’ ability to support their children.  Under federal and state law, the child support obligation calculated using the child support standards act is presumed to be a just and appropriate level of child support. 

However, all things change.  As the parties move away from the emotional intensity of the divorce, as the children grow, as people change jobs, as earnings increase or decrease, and as the needs of the children change, it becomes necessary to revisit the child support orders to ensure that they remain consistent with the standards act and are thus just and appropriate.  Yet, before the court can calculate a party’s new child support obligation under the child support standards act, the petitioning party must prove that he or she meets the appropriate threshold.  If the threshold is not met, the court may dismiss the petition without providing relief to the party. 

The problem with this arrangement is that there is no uniform threshold for modifying child support awards in New York.  While the domestic relations law specifies that a child support order may be modified following “a substantial change in circumstances,” the family court act is silent on the issue.  The courts have determined that the “substantial-change-in-circumstances” test does not apply if the child support award is based on an agreement of the parties that is incorporated but not merged with the order setting child support.  In these cases, the petitioning party must show either that the needs of the children are not being met or that there was an unforeseen and unanticipated change in circumstances.  The application of these threshold standards is very case specific.  Litigation and appeals in this area may be frequent and protracted, as the parties, attorneys and courts struggle to apply these vague and general legal phrases to the specific facts and circumstances of the parties’ income and expenses.  There are numerous exceptions and variants of these rules, and in some cases the Appellate Division decisions are in conflict. 

As a result, parents, both custodial and non-custodial, cannot determine with any surety whether they are entitled to an increase or reduction in the child support obligation.  Few if any attorneys could make that determination with any assurance. 

And so, many petitions to modify child support orders are filed needlessly and litigated endlessly.  The unnecessary filing of petitions and the resulting litigation clogs the courts, drains the parents emotionally and financially, and generates unnecessary legal expenses. 

The converse is also true.  Some custodial parents, unwilling or unable to make the attempt to navigate this perplexing system, end up with orders that provide less than their children deserve.  Likewise, obligated parents whose circumstances have changed, also beleaguered by the complexity, can opt not to file for modification and find themselves unable to meet their obligation, building up mounting, uncollectible child support debt. 

We believe that the modification laws in New York should be simplified to reduce confusion and to ensure that child support orders remain commensurate with the child support guidelines, which are presumed to fix a fair and adequate level of child support.  The level of support should be based on the current financial circumstances and incomes of the parties, and other factors set forth in guidelines.  Of course, modification law amendments should incorporate currently existing protections against voluntary reductions in income intended to avoid a parent’s responsibility to support his or her child.  Child support orders based on current and accurate financial information will also help reduce the level of uncollectible debt accruing on orders that are no longer affordable. 

Another area that would benefit from reform and assist parents in negotiating the child support process is the creation of a child support worksheet.  The standard use of this worksheet would help parents be better informed about how orders are established and would enable them to be better prepared for court. 

The child support standards act requires the court to calculate the basic support obligation in all cases, including orders incorporating agreements by the parties that would deviate from the child support guidelines.  The court is required to state this basic support obligation amount in all orders. 

However, parents seeking to establish or modify child support obligations may not be aware of these requirements.  In addition, parties not represented by counsel may not be able to navigate the child support standards act requirements.  If parties have a clear worksheet to use to calculate the basic, presumptively correct support obligation, they may more readily reach an agreement in court on child support issues.  Having the parties’ calculation of the basic support obligation in writing will assist the court in conducting a hearing and determining the correct amount of child support.  In addition, the use of the guidelines worksheet by the court in each case will do much to ensure consistent and thorough application of the child support standards act in all courts that hear child support matters. 

We recommend the development of a “Guidelines Worksheet” with easy step-by-step instructions in plain language to assist parents to calculate the basic support obligation.  Such a worksheet has been developed and is in use in virtually every other state.  All parties should be required to complete the Guidelines Worksheet and present it to the court as part of the mandatory financial disclosure provisions of the domestic relations law and family court act.  The court, as an outcome of the proceeding, should complete a final guidelines worksheet that would determine the child support award and  provide it to the parties along with the court order. 

One final thought.  There are a fair number of aggrieved fathers who feel that they’ve been neglected or treated unfairly by the system – either by my agency’s operations or by the courts.  Certainly, not all these protests have merit.  But some of these men have legitimate complaints.  Some men who could be closer to their children, who want to be a more positive influence in their lives, are prevented from doing so.  And, again, it’s the child who suffers. 

We are all realists here.  We know there can be real safety issues in some instances.  We know the possibility of abuse exists in some instances.  That’s why some parents are justifiably and necessarily limited in the contact they have with their children, or excluded from contact at all.

But we also know that children who have the support of both parents generally do better emotionally, socially, educationally, and have better prospects for an independent, productive adult life. 

Therefore, there should never be a presumptive prejudice against fathers, as there sometimes is. 

We are paying more attention in our programs to the positive roles that fathers can play.  I believe the court system should do the same. 

The truth is that the court system has not always shown sufficient respect for the role of fathers in their children’s lives.  The Office of Court Administration provides excellent training to trial court judges to help them to deal with the complex issues of domestic violence, child abuse, and drug abuse. I would hope that the courts could, without reducing the training in these important areas, provide additional training to its judges in promoting and encouraging both parents to take an active and constructive role in the lives of their children. 

Thank you for the opportunity to present these ideas. I hope we can work together to create a better, more efficient court system in New York.