that the current order of support does not provide for the health care
needs of the child through insurance or otherwise. Eligibility of the
child for medical assistance shall not relieve any obligation the
parties otherwise have to provide for the health care needs of the
child. The support collection unit`s review of a child support order
shall be made on notice to all parties to the current support order and
shall be subject to the provisions of section four hundred twenty-four-a
of this article. Nothing herein shall be deemed in any way to limit,
restrict, expand or impair the rights of any party to file for a
modification of a child support order as is otherwise provided by law.
b. Upon receipt of an adjustment finding and where appropriate a
proposed order in conformity with such finding filed by either party or
by the support collection unit, a party shall have thirty-five days from
the date of mailing of the adjustment finding and proposed adjusted
order, if any, to submit to the court identified thereon specific
written objections to such finding and proposed order.
(1) If specific written objections are submitted by either party or by
the support collection unit, a hearing shall be scheduled by the court
on notice to the parties and the support collection unit, who shall have
the right to be heard by the court and to offer evidence in support of
or in opposition to adjustment of the support order.
(2) The party filing the specific written objections shall bear the
burden of going forward and the burden of proof; provided, however, that
if the support collection unit has failed to provide the documentation
and information required by subdivision fourteen of section one hundred
eleven-h of the social services law, the court shall first require the
support collection unit to furnish such documents and information to the
parties and the court.
(3) If the court finds by a preponderance of the evidence that the
specific written objections have been proven, the court shall
recalculate or readjust the proposed adjusted order accordingly or, for
good cause, shall remand the order to the support collection unit for
submission of a new proposed adjusted order. Any readjusted order so
issued by the court or resubmitted by the support collection unit
following remand by the court shall be effective as of the date the
proposed adjusted order would have been effective had no written
objections been filed.
(4) If the court finds that the specific written objections have not
been proven by a preponderance of the evidence, the court shall
immediately issue the adjusted order, which shall be effective as of the
date the order would have been effective had no written objections been
filed.
(5) If the determination of the specific written objections has been
made by a family court support magistrate, the parties shall be
permitted to obtain judicial review of such determination by filing
timely written objections pursuant to subdivision (e) of section four
hundred thirty-nine of this act.
(6) If the court receives no specific written objections to the
support order within thirty-five days of the mailing of the proposed
order, the clerk of the court shall immediately issue the order without
any further review, modification, or other prior action by the court or
any judge or support magistrate thereof, and the clerk shall immediately
transmit copies of the order of support to the parties and to the
support collection unit.
c. A motion to vacate an order of support adjusted pursuant to this
section may be made no later than forty-five days after an adjusted
support order is executed by the court where no specific written
objections to the proposed order have been timely received by the court.
Such motion shall be granted only upon a determination by the court
issuing such order that personal jurisdiction was not timely obtained
over the moving party.
4. On-going cost of living adjustment of child support orders issued
prior to September fifteenth, nineteen hundred eighty-nine. Any party to
a child support order issued prior to September fifteenth, nineteen
hundred eighty-nine on the behalf of a child in receipt of public
assistance or child support services pursuant to section one hundred
eleven-g of the social services law may request that the support
collection unit review the order for a cost of living adjustment in
accordance with the provisions of section four hundred thirteen-a of
this article.
S 413-a. Review and cost of living adjustment of child support orders.
1. Request. Any party to a child support order issued on behalf of a
child in receipt of public assistance, or child support enforcement
services pursuant to section one hundred eleven-g of the social services
law, may request that the support collection unit review the order for
cost of living adjustment purposes pursuant to section one hundred
eleven-n of the social services law.
2. Adjustment process. (a) A cost of living adjustment shall be made
by the support collection unit with respect to an order of support under
review if the sum of the annual average changes of the consumer price
index for all urban consumers (CPI-U), as published annually by the
United States department of labor bureau of labor statistics, is ten
percent or greater.
(b) The cost of living adjustment and adjusted child support
obligation amount as calculated by the review shall be reflected on the
adjusted order issued by the support collection unit and mailed to the
parties by first class mail. The child support obligation amount
contained in the adjusted order shall be due and owing on the date the
first payment is due under the terms of the order of support which was
reviewed and adjusted occurring on or after the effective date of the
adjusted order.
(c) The support collection unit shall provide a copy of the adjusted
order to the court which issued the most recent order of support, which
shall append it to the order.
3. Objection process. (a) An objection to a cost of living adjustment,
as reflected in an adjusted order issued by a support collection unit,
may be made to the court by either party to the order, or by the support
collection unit, and shall be submitted to the court in writing within
thirty-five days from the date of mailing of the adjusted order. A copy
of the written objection shall be provided by the objecting party to the
other party and to the support collection unit.
(b) Where such objections are timely filed, the cost of living
adjustment shall not take effect, and a hearing on the adjustment of
such order shall be granted pursuant to the provisions of this section,
which shall result in either:
(1) the issuance by the court of a new order of support in accordance
with the child support standards as set forth in section four hundred
thirteen of this article; or
(2) where application of the child support standards as set forth in
section four hundred thirteen of this article results in a determination
that no adjustment is appropriate, an order of no adjustment.
(c) Any order of support made by the court under this section shall
occur without the requirement for proof or showing of a change in
circumstances.
(d) The court shall conduct the hearing and make its determination no
later than forty-five days from the date it receives an objection. If
the order under review does not provide for health insurance benefits
for the child, the court shall make a determination regarding such
benefits pursuant to section four hundred sixteen of this part. The
clerk of the court shall immediately transmit copies of the order of
support or order of no adjustment issued by the court pursuant to this
subdivision to the parties and the support collection unit. Where a
hearing results in the issuance of a new order of support, the effective
date of the court order shall be the earlier of the date of the court
determination or the date the cost of living adjustment would have been
effective had it not been challenged.
(e) Where no objection has been timely raised to a cost of living
adjustment as reflected in an adjusted order, such adjustment shall
become final without further review by the court or any judge or support
magistrate thereof.
4. Modification of orders. Nothing herein shall be deemed in any way
to limit, restrict, expand or impair the rights of any party to file for
a modification of a child support order as is otherwise provided by law.
5. Notice. Parties eligible for adjustment of child support orders
shall receive notice of the right to review such orders as follows:
(a) All applications or motions by the support collection unit or by
persons seeking support enforcement services through the support
collection unit for the establishment, modification, enforcement,
violation or adjustment of child support orders shall on their face in
conspicuous type state:
NOTICE REQUIREMENT
S 415. Duties to support recipient of public assistance or welfare and patients in institutions in the department of mental hygiene. Except as otherwise provided by law, the spouse or parent of a recipient of public assistance or care or of a person liable to become in need thereof or of a patient in an institution in the department of mental hygiene, if of sufficient ability, is responsible for the support of such person or patient, provided that a parent shall be responsible only for the support of his child or children who have not attained the age of twenty-one years. In its discretion, the court may require any such person to contribute a fair and reasonable sum for the support of such relative and may apportion the costs of such support among such persons as may be just and appropriate in view of the needs of the petitioner and the other circumstances of the case and their respective means. Step-parents shall in like manner be responsible for the support of children under the age of twenty-one years. S 416. Elements of support; provisions for accident, life and health insurance benefits. (a) The court may include in the requirements for an order for support the providing of necessary shelter, food, clothing, care, medical attention, expenses of confinement, the expense of education, payment of funeral expenses, and other proper and reasonable expenses. (b) The court may also order a party to purchase, maintain, or assign a policy of accident insurance or insurance on the life of either party and designate in the case of life insurance, the person or persons on whose behalf the petition is brought or in the case of accident insurance, the insured party as irrevocable beneficiaries during a period of time fixed by the court. The obligation to provide such insurance shall cease upon the termination of such party`s duty to provide support. (c) Every support order shall provide that if any legally responsible relative currently, or at any time in the future, has health insurance benefits available that may be extended or obtained to cover any person on whose behalf the petition is brought, such responsible relative is required to exercise the option of additional coverage in favor of such person whom he or she is legally responsible to support and to execute and deliver to such person any forms, notices, documents, or instruments to assure timely payment of any health insurance claims for such person. (d) As used in this section, the following terms shall have the following meanings: (1) "Health insurance benefits" means any medical, dental, optical and prescription drugs and health care services or other health care benefits that may be provided for a dependent through an employer or organization, including such employers or organizations which are self insured, or through other available health insurance or health care coverage plans. (2) "Available health insurance benefits" means any health insurance benefits that are reasonable in cost and that are reasonably accessible to the person on whose behalf the petition is brought. Health insurance benefits that are not reasonable in cost or whose services are not reasonably accessible to such person shall be considered unavailable. (e) When the person on whose behalf the petition is brought is a child, the court shall consider the availability of health insurance benefits to all parties and shall take the following action to insure that health insurance benefits are provided for the benefit of the child: (1) Where the child is presently covered by health insurance benefits, the court shall direct in the order of support that such coverage be maintained, unless either parent requests the court to make a direction for health insurance benefits coverage pursuant to paragraph two of this subdivision. (2) Where the child is not presently covered by health insurance benefits, the court shall make its determination as follows: (i) If only one parent has available health insurance benefits, the court shall direct in the order of support that such parent provide health insurance benefits. (ii) If both parents have available health insurance benefits the court shall direct in the order of support that either parent or both parents provide such health insurance. The court shall make such determination based on the circumstances of the case, including, but not limited to, the cost and comprehensiveness of the respective health insurance benefits and the best interests of the child. (iii) If neither parent has available health insurance benefits, the court shall direct in the order of support that the custodial parent apply for the state`s child health insurance plan pursuant to title one-A of article twenty-five of the public health law and the medical assistance program established pursuant to title eleven of article five of the social services law. If eligible for such coverage, the court shall prorate the cost of any premium or family contribution in accordance with subdivision (f) of this section. A direction issued under this subdivision shall not limit or alter either parent`s obligation to obtain health insurance benefits at such time as they become available as required pursuant to subdivision (c) of this section. (f) The cost of providing health insurance benefits pursuant to subdivision (e) of this section shall be prorated between the parties in the same proportion as each parent`s income is to the combined parental income. If the custodial parent is ordered to provide such benefits, the non-custodial parent`s pro rata share of such costs shall be added to the basic support obligation. If the non-custodial parent is ordered to provide such benefits, the custodial parent`s pro rata share of such costs shall be deducted from the basic support obligation. Where the court finds that such proration is unjust or inappropriate, the court shall: (1) order the parties to pay such amount of the cost of health insurance benefits as the court finds just and appropriate; (2) add or subtract such amount in the manner set forth herein; and (3) set forth in the order the factors it considered, the amount of each party`s share of the cost and the reason or reasons the court did not order such pro rata apportionment. (g) The court shall provide in the order of support that the legally responsible relative immediately notify the other party, or the other party and the support collection unit when the order is issued on behalf of a child in receipt of public assistance and care or in receipt of services pursuant to section one hundred eleven-g of the social services law, of any change in health insurance benefits, including any termination of benefits, change in the health insurance benefit carrier, premium, or extent and availability of existing or new benefits. (h) Where the court determines that health insurance benefits are available, the court shall provide in the order of support that the legally responsible relative immediately enroll the eligible dependents named in the order who are otherwise eligible for such benefits without regard to any seasonal enrollment restrictions. The support order shall further direct the legally responsible relative to maintain such benefits as long as they remain available to such relative. Such order shall further direct the legally responsible relative to assign all insurance reimbursement payments for health care expenses incurred for his or her eligible dependents to the provider of such services or the party actually having incurred and satisfied such expenses, as appropriate. (i) When the court issues an order of child support or combined child and spousal support on behalf of persons in receipt of public assistance and care or in receipt of services pursuant to section one hundred eleven-g of the social services law, such order shall further direct that the provision of health care benefits shall be immediately enforced pursuant to section fifty-two hundred forty-one of the civil practice law and rules. (j) When the court issues an order of child support or combined child and spousal support on behalf of persons other than those in receipt of public assistance and care or in receipt of services pursuant to section one hundred eleven-g of the social services law, the court shall also issue a separate order which shall include the necessary direction to ensure the order`s characterization as a qualified medical child support order as defined by section six hundred nine of the employee retirement income security act of 1974 (29 USC 1169). Such order shall: (i) clearly state that it creates or recognizes the existence of the right of the named dependent to be enrolled and to receive benefits for which the legally responsible relative is eligible under the available group health plans, and shall clearly specify the name, social security number and mailing address of the legally responsible relative, and of each dependent to be covered by the order; (ii) provide a clear description of the type of coverage to be provided by the group health plan to each such dependent or the manner in which the type of coverage is to be determined; and (iii) specify the period of time to which the order applies. The court shall not require the group health plan to provide any type or form of benefit or option not otherwise provided under the group health plan except to the extent necessary to meet the requirements of a law relating to medical child support described in section one thousand three hundred and ninety-six g-1 of title forty-two of the United States code. (k) Upon a finding that a legally responsible relative wilfully failed to obtain health insurance benefits in violation of a court order, such relative will be presumptively liable for all health care expenses incurred on behalf of such dependents from the first date such dependents were eligible to be enrolled to receive health insurance benefits after the issuance of the order of support directing the acquisition of such coverage. S 417. Child of ceremonial marriage. A child born of parents who at any time prior or subsequent to the birth of said child shall have entered into a ceremonial marriage shall be deemed the legitimate child of both parents for all purposes of this article regardless of the validity of such marriage. S 418. Genetic marker and DNA tests; admissibility of records or reports of test results; costs of tests. (a) The court, on its own motion or motion of any party, when paternity is contested, shall order the mother, the child and the alleged father to submit to one or more genetic marker or DNA marker tests of a type generally acknowledged as reliable by an accreditation body designated by the secretary of the federal department of health and human services and performed by a laboratory approved by such an accreditation body and by the commissioner of health or by a duly qualified physician to aid in the determination of whether the alleged father is or is not the father of the child. No such test shall be ordered, however, upon a written finding by the court that it is not in the best interests of the child on the basis of res judicata, equitable estoppel or the presumption of legitimacy of a child born to a married woman. The record or report of the results of any such genetic marker or DNA test shall be received in evidence, pursuant to subdivision (e) of rule forty-five hundred eighteen of the civil practice law and rules where no timely objection in writing has been made thereto. Any order pursuant to this section shall state in plain language that the results of such test shall be admitted into evidence, pursuant to rule forty-five hundred eighteen of the civil practice law and rules absent timely objections thereto and that if such timely objections are not made, they shall be deemed waived and shall not be heard by the court. If the record or report of results of any such genetic marker or DNA test or tests indicate at least a ninety-five percent probability of paternity, the admission of such record or report shall create a rebuttable presumption of paternity, and, if unrebutted, shall establish the paternity of and liability for the support of a child pursuant to this article and article five of this act. (b) Whenever the court directs a genetic marker or DNA test pursuant to this section, a report made as provided in subdivision (a) of this section may be received in evidence pursuant to rule forty-five hundred eighteen of the civil practice law and rules if offered by any party. (c) The cost of any test ordered pursuant to subdivision (a) of this section shall be, in the first instance, paid by the moving party. If the moving party is financially unable to pay such cost, the court may direct any qualified public health officer to conduct such test, if practicable; otherwise, the court may direct payment from the funds of the appropriate local social services district. In its order of disposition, however, the court may direct that the cost of any such test be apportioned between the parties according to their respective abilities to pay or be assessed against the party who does not prevail on the issue of paternity, unless such party is financially unable to pay.
NOTICE REQUIREMENTS 415. Duties to support recipient of public assistance or welfare and patients in institutions in the department of mental hygiene. Except as otherwise provided by law, the spouse or parent of a recipient of public assistance or care or of a person liable to become in need thereof or of a patient in an institution in the department of mental hygiene, if of sufficient ability, is responsible for the support of such person or patient, provided that a parent shall be responsible only for the support of his child or children who have not attained the age of twenty-one years. In its discretion, the court may require any such person to contribute a fair and reasonable sum for the support of such relative and may apportion the costs of such support among such persons as may be just and appropriate in view of the needs of the petitioner and the other circumstances of the case and their respective means. Step-parents shall in like manner be responsible for the support of children under the age of twenty-one years. S 416. Elements of support; provisions for accident, life and health insurance benefits. (a) The court may include in the requirements for an order for support the providing of necessary shelter, food, clothing, care, medical attention, expenses of confinement, the expense of education, payment of funeral expenses, and other proper and reasonable expenses. (b) The court may also order a party to purchase, maintain, or assign a policy of accident insurance or insurance on the life of either party and designate in the case of life insurance, the person or persons on whose behalf the petition is brought or in the case of accident insurance, the insured party as irrevocable beneficiaries during a period of time fixed by the court. The obligation to provide such insurance shall cease upon the termination of such party`s duty to provide support. (c) Every support order shall provide that if any legally responsible relative currently, or at any time in the future, has health insurance benefits available that may be extended or obtained to cover any person on whose behalf the petition is brought, such responsible relative is required to exercise the option of additional coverage in favor of such person whom he or she is legally responsible to support and to execute and deliver to such person any forms, notices, documents, or instruments to assure timely payment of any health insurance claims for such person. (d) As used in this section, the following terms shall have the following meanings: (1) "Health insurance benefits" means any medical, dental, optical and prescription drugs and health care services or other health care benefits that may be provided for a dependent through an employer or organization, including such employers or organizations which are self insured, or through other available health insurance or health care coverage plans. (2) "Available health insurance benefits" means any health insurance benefits that are reasonable in cost and that are reasonably accessible to the person on whose behalf the petition is brought. Health insurance benefits that are not reasonable in cost or whose services are not reasonably accessible to such person shall be considered unavailable. (e) When the person on whose behalf the petition is brought is a child, the court shall consider the availability of health insurance benefits to all parties and shall take the following action to insure that health insurance benefits are provided for the benefit of the child: (1) Where the child is presently covered by health insurance benefits, the court shall direct in the order of support that such coverage be maintained, unless either parent requests the court to make a direction for health insurance benefits coverage pursuant to paragraph two of this subdivision. (2) Where the child is not presently covered by health insurance benefits, the court shall make its determination as follows: (i) If only one parent has available health insurance benefits, the court shall direct in the order of support that such parent provide health insurance benefits. (ii) If both parents have available health insurance benefits the court shall direct in the order of support that either parent or both parents provide such health insurance. The court shall make such determination based on the circumstances of the case, including, but not limited to, the cost and comprehensiveness of the respective health insurance benefits and the best interests of the child. (iii) If neither parent has available health insurance benefits, the court shall direct in the order of support that the custodial parent apply for the state`s child health insurance plan pursuant to title one-A of article twenty-five of the public health law and the medical assistance program established pursuant to title eleven of article five of the social services law. If eligible for such coverage, the court shall prorate the cost of any premium or family contribution in accordance with subdivision (f) of this section. A direction issued under this subdivision shall not limit or alter either parent`s obligation to obtain health insurance benefits at such time as they become available as required pursuant to subdivision (c) of this section. (f) The cost of providing health insurance benefits pursuant to subdivision (e) of this section shall be prorated between the parties in the same proportion as each parent`s income is to the combined parental income. If the custodial parent is ordered to provide such benefits, the non-custodial parent`s pro rata share of such costs shall be added to the basic support obligation. If the non-custodial parent is ordered to provide such benefits, the custodial parent`s pro rata share of such costs shall be deducted from the basic support obligation. Where the court finds that such proration is unjust or inappropriate, the court shall: (1) order the parties to pay such amount of the cost of health insurance benefits as the court finds just and appropriate; (2) add or subtract such amount in the manner set forth herein; and (3) set forth in the order the factors it considered, the amount of each party`s share of the cost and the reason or reasons the court did not order such pro rata apportionment. (g) The court shall provide in the order of support that the legally responsible relative immediately notify the other party, or the other party and the support collection unit when the order is issued on behalf of a child in receipt of public assistance and care or in receipt of services pursuant to section one hundred eleven-g of the social services law, of any change in health insurance benefits, including any termination of benefits, change in the health insurance benefit carrier, premium, or extent and availability of existing or new benefits. (h) Where the court determines that health insurance benefits are available, the court shall provide in the order of support that the legally responsible relative immediately enroll the eligible dependents named in the order who are otherwise eligible for such benefits without regard to any seasonal enrollment restrictions. The support order shall further direct the legally responsible relative to maintain such benefits as long as they remain available to such relative. Such order shall further direct the legally responsible relative to assign all insurance reimbursement payments for health care expenses incurred for his or her eligible dependents to the provider of such services or the party actually having incurred and satisfied such expenses, as appropriate. (i) When the court issues an order of child support or combined child and spousal support on behalf of persons in receipt of public assistance and care or in receipt of services pursuant to section one hundred eleven-g of the social services law, such order shall further direct that the provision of health care benefits shall be immediately enforced pursuant to section fifty-two hundred forty-one of the civil practice law and rules. (j) When the court issues an order of child support or combined child and spousal support on behalf of persons other than those in receipt of public assistance and care or in receipt of services pursuant to section one hundred eleven-g of the social services law, the court shall also issue a separate order which shall include the necessary direction to ensure the order`s characterization as a qualified medical child support order as defined by section six hundred nine of the employee retirement income security act of 1974 (29 USC 1169). Such order shall: (i) clearly state that it creates or recognizes the existence of the right of the named dependent to be enrolled and to receive benefits for which the legally responsible relative is eligible under the available group health plans, and shall clearly specify the name, social security number and mailing address of the legally responsible relative, and of each dependent to be covered by the order; (ii) provide a clear description of the type of coverage to be provided by the group health plan to each such dependent or the manner in which the type of coverage is to be determined; and (iii) specify the period of time to which the order applies. The court shall not require the group health plan to provide any type or form of benefit or option not otherwise provided under the group health plan except to the extent necessary to meet the requirements of a law relating to medical child support described in section one thousand three hundred and ninety-six g-1 of title forty-two of the United States code. (k) Upon a finding that a legally responsible relative wilfully failed to obtain health insurance benefits in violation of a court order, such relative will be presumptively liable for all health care expenses incurred on behalf of such dependents from the first date such dependents were eligible to be enrolled to receive health insurance benefits after the issuance of the order of support directing the acquisition of such coverage. S 417. Child of ceremonial marriage. A child born of parents who at any time prior or subsequent to the birth of said child shall have entered into a ceremonial marriage shall be deemed the legitimate child of both parents for all purposes of this article regardless of the validity of such marriage. S 418. Genetic marker and DNA tests; admissibility of records or reports of test results; costs of tests. (a) The court, on its own motion or motion of any party, when paternity is contested, shall order the mother, the child and the alleged father to submit to one or more genetic marker or DNA marker tests of a type generally acknowledged as reliable by an accreditation body designated by the secretary of the federal department of health and human services and performed by a laboratory approved by such an accreditation body and by the commissioner of health or by a duly qualified physician to aid in the determination of whether the alleged father is or is not the father of the child. No such test shall be ordered, however, upon a written finding by the court that it is not in the best interests of the child on the basis of res judicata, equitable estoppel or the presumption of legitimacy of a child born to a married woman. The record or report of the results of any such genetic marker or DNA test shall be received in evidence, pursuant to subdivision (e) of rule forty-five hundred eighteen of the civil practice law and rules where no timely objection in writing has been made thereto. Any order pursuant to this section shall state in plain language that the results of such test shall be admitted into evidence, pursuant to rule forty-five hundred eighteen of the civil practice law and rules absent timely objections thereto and that if such timely objections are not made, they shall be deemed waived and shall not be heard by the court. If the record or report of results of any such genetic marker or DNA test or tests indicate at least a ninety-five percent probability of paternity, the admission of such record or report shall create a rebuttable presumption of paternity, and, if unrebutted, shall establish the paternity of and liability for the support of a child pursuant to this article and article five of this act. (b) Whenever the court directs a genetic marker or DNA test pursuant to this section, a report made as provided in subdivision (a) of this section may be received in evidence pursuant to rule forty-five hundred eighteen of the civil practice law and rules if offered by any party. (c) The cost of any test ordered pursuant to subdivision (a) of this section shall be, in the first instance, paid by the moving party. If the moving party is financially unable to pay such cost, the court may direct any qualified public health officer to conduct such test, if practicable; otherwise, the court may direct payment from the funds of the appropriate local social services district. In its order of disposition, however, the court may direct that the cost of any such test be apportioned between the parties according to their respective abilities to pay or be assessed against the party who does not prevail on the issue of paternity, unless such party is financially unable to pay.