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Empire Justice Urges Governor to Sign Bill to Improve Access to Child Care Assistance

Governor David Paterson
Executive Chamber,
State Capitol,
Albany, NY 12224

RE: A.3657/S2091


Attn: Peter Kiernan, Counsel to the Governor

Dear Governor Paterson,

The Empire Justice Center strongly urges the Governor to sign this bill which encourages applicants for and recipients of child care subsidies to obtain orders of child support, but makes clear that such applicants and recipients may not be required to obtain such orders as a condition of receiving a subsidy. At the present time, state regulations at 18 NYCRR 415.3(c) contain such a requirement, which has no basis in statute, and has a detrimental effect on the most vulnerable children in New York State.  
Although we have been pleased to learn that the Office of Children and Family Services (OCFS) has sent a notice of proposed rulemaking to the Department of State which would repeal this regulation, we urge the Governor to sign this bill nevertheless for the following reasons.  First, the bill is effective immediately. The regulatory process can take many months and does not always result in the action proposed.  Our review of OCFS rulemaking over the last two years reveals that even the most non-controversial OCFS proposed regulations take at least three months to be adopted. More controversial bills can take over a year from the date the rule is proposed, and sometimes, they are never adopted at all.

Second, without this statute, the future of this issue will be at the whim of the future administrations. This issue needs to be settled with finality because children are best served if child support cooperation is voluntary. Here are a few reasons why: 

  • Single parents are required to miss 4-5 days of work to file petitions, make court appearances, and return to court for multiple appearances to obtain a child support order that is often minimal. Many low income parents do not have paid leave days and going to court means that their families suffer economically;
  • OCFS policy documents interpreting the regulation at issue require a parent to pursue child support for all children, even those for whom she is not requesting child care assistance. [1] Thus where the children have different fathers, the parent will have to maintain multiple proceedings to become eligible for a child care subsidy. This means more lost time from work and economic hardship, particularly in cases where the resulting order is against an indigent father and is de minimus and unlikely to be paid;
  • No analysis of the likelihood of obtaining an enforceable order is made prior to imposing this requirement - quite the contrary.  For example, if the father of a woman's child is in prison, she is only exempted from the requirement if the father is incarcerated without chance of parole and the Child Support Collection Unit has previously closed the case. [2] However, requiring a parent in a vulnerable job position to miss work to obtain an order against an incarcerated father with no income or assets makes no sense.  In Monroe County approximately 19% of the applicants in the facilitated enrollment program have incarcerated parents and most of them do not complete the application process for subsidized care because of the child support cooperation requirement;
  • The penalty for not obtaining an order is too extreme. A custodial parent who fails to obtain a child support order for ALL the children in the household (even if the failure is only for those children not receiving child care assistance) faces the loss of eligibility for childcare for all children in the household. [3] This penalty is harsher than the penalty for those on Temporary Assistance who do not get a child support order - a 25% reduction in benefits.  Further, those on public assistance who do not get a child support order suffer no loss in child care assistance, because by law they are guaranteed child care. [4]  
  • Many fathers of children born out of wedlock are voluntarily paying child support and are engaged in their children's lives.  When this is the case, a custodial parent may not wish to involve the father in an adversarial proceeding in Family Court.  Even when the custodial parent is willing to sign a notarized affidavit attesting to the fact that she receives support so that the voluntarily paid child support income is counted toward subsidy eligibility, she is nonetheless disqualified from receiving child care assistance under the current requirement.
  • The current policy requires that the support order contain an additional amount to be added to the basic order to defray the cost of child care. However, the implementation of this is confusing and is treated differently depending on what judge made the support order - OCFS contends that the add-on must defray the costs of the local social services districts, not reduce the parent co-pay. However, many Family Court Judges do not believe the Family Court Act authorizes this and expressly order that the add-on defray the cost of the custodial parent’s child care expense. So whether the parent gets the benefit of the add on depends on where the parent lives.
  • Domestic violence victims who leave batterers before the violence escalates to a point where hospitalization or the police are necessary are not granted good cause exemptions because they do not have proof. However, these women will not pursue support because they are still afraid of the batterer.
  • Immigrant families are discouraged from applying for child care subsidies because if the absent parent is here legally but applying for citizenship, any default in the support order could be considered “evidence of bad moral character,” resulting in the denial of a petition for citizenship or even deportation.  Particularly if the non-custodial parent is providing support voluntarily and is engaged in the child’s life, most immigrant custodial parents do not want to take the risk of jeopardizing the deportation of the father of their children.  

For all of the forgoing reasons, we urge the governor to sign A.3657/S.2091.

End Notes:

[1] 05 OCFS ADM-03, at page 46.
[2] 05 OCFS ASD 03 , p. 57.
[3] Id at 46.
[4] Id. at 47.

For more information, please contact:

Susan C. Antos

Empire Justice Center
119 Washington Avenue
Albany, NY  12210 

P:(518) 462-6831
F:(518) 935-2852

July 20, 2009