New York Codes, Rules and Regulations
Title 18 - DEPARTMENT OF SOCIAL SERVICES
Chapter II - Regulations of the Department of Social Services
Subchapter A - General Welfare
Article 5 - Miscellaneous
Part 347 - Establishment of Parentage and Enforcement of Child Support
Section 347.9 - Enforcement of support obligations and issuance of income withholding orders

Universal Citation: 18 NY Comp Codes Rules and Regs § 347.9

Current through Register Vol. 46, No. 39, September 25, 2024

(a) Immediate issuance of income execution for support enforcement (income withholding order).

For any child support or combined child and spousal support court order issued under the provisions of section 236 or 240 of the Domestic Relations Law, or article 4, 5, 5-A or 5-B of the Family Court Act, which directs payments to the Support Collection Unit (SCU), the local child support enforcement unit through its SCU, must:

(1) immediately issue and process an income withholding order within 15 calendar days of the date the support order is received if the employer's or income payor's address is known or, if unknown, within two business days of the date the automated case record receives notice of the income source from the State New Hire Directory or other source, unless:

(i) the court finds and sets forth in writing the reasons that there is good cause not to require immediate income withholding. For purposes of this paragraph, good cause means substantial harm to the debtor. The absence of an arrearage or the mere issuance of an income withholding order does not constitute good cause; or

(ii) when the child is not in receipt of public assistance, a written agreement providing for an alternative arrangement has been executed by the parties. A written agreement may include an oral stipulation made on the record in court which results in a written order:

(2) issue and process an income withholding order as follows:

(i) use the form for income withholding promulgated by the office;

(ii) serve the income withholding order upon the debtor's employer or income payor, and provide a copy of the income withholding order to the debtor. Service must be by regular mail or in the same manner as a summons may be served; the debtor's copy may be mailed to the debtor's last known residence or such other place where the debtor is likely to receive notice;

(iii) correct any error made in the issuance of an income withholding order which is to the detriment of the debtor, within 30 days after notification by the debtor of such error; and

(iv) to the extent not already included on the form provided by the office, include the following information in a separate document served with the income withholding order:

(a) the court in which the order of support was entered;

(b) the amount of the periodic payments directed;

(d) the names of the debtor and creditor;

(e) the name and address of the employer or income payor from whom the debtor is receiving or will receive income;

(f) the amount of the deduction to be made from the debtor's income to satisfy the court-ordered current support obligation;

(g) the amount, determined in accordance with subdivision (e) of this section, of any additional deduction to be made from the debtor's income, to be applied to the reduction of support arrears/past due support;

(h) a statement providing notice of the following:

(1) the deductions will apply to current and future income;

(2) the income withholding order will be served upon any current or subsequent employer or income payor;

(3) the income withholding order is binding until further notice; and

(4) the procedures available for claiming that the support collection unit made an error in issuing the income withholding order;

(5) no employer is permitted to discharge, lay off or discipline an employee or refuse to hire a prospective employee because one or more wage assignments or income withholding orders have been served upon such employer or a former employer against the employee's or prospective employee's wages, and that a violation of this provision is punishable as a contempt of court by fine or imprisonment or both;

(6) each payment remitted by an employer or income payor must be payable to the State disbursement unit and must include the information as instructed in the income withholding order;

(7) an employer or income payor served with an income withholding order is required to commence deductions from income due or thereafter due to the debtor no later than the first pay period that occurs 14 days after service of the income withholding order, and is required to remit payments to the State disbursement unit within seven business days of the date that the debtor is paid;

(8) an employer or income payor is liable to the creditor for failure to deduct the amounts specified; provided, however, that deduction of the amounts specified by the employer or income payor does not relieve the debtor of the underlying obligation of support;

(9) if the employer or income payor fails to remit payments as provided in the income withholding order, the creditor or the debtor may commence a proceeding against such person for accrued deductions, together with interest and reasonable attorney's fees;

(10) if the money due to the debtor consists of salary or wages and the debtor's employment is terminated by resignation or dismissal at any time after service of the income withholding order, the levy will thereafter be ineffective and the income withholding order will be returned, unless the debtor is reinstated or reemployed within 90 days after such termination;

(11) an employer or income payor must notify the State disbursement unit promptly when the debtor terminates employment or no longer receives income, and must provide the debtor's last address and the name and address of the new employer, if known;

(12) where the income is compensation paid or payable to the debtor for personal services, the amount of the deductions to be withheld are not permitted to exceed 50 percent of the earnings of the debtor remaining after the deduction therefrom of any amounts required by law to be withheld (hereinafter referred to as disposable earnings), except that if any part of such deduction is to be applied to the reduction of arrears which have accrued more than 12 weeks prior to the beginning of the week for which such earnings are payable, the amount of such deduction cannot exceed 55 percent of disposable earnings;

(13) upon a finding by the family court that the employer or income payor failed to deduct or remit deductions as specified in the income withholding order, the court shall issue to the employer or income payor an order directing compliance and may direct the payment to the creditor of a civil penalty not to exceed $500 for the first instance and $1,000 per instance for the second and subsequent instances of employer or income payor noncompliance; and

(14) when an employer or income payor receives an income withholding order issued by another state, the employer or income payor shall apply the income withholding law of the state of the debtor's principal place of employment in determining:

(i) the employer's fee, if any, for processing income withholding;

(ii) the maximum amount permitted to be withheld from the debtor's income;

(iii) the time periods within which the employer must implement the income withholding and forward the child support payments to the other state;

(iv) the priorities for withholding and allocating income withheld for multiple child support creditors; and

(v) any withholding terms or conditions not specified in the withholding instrument.

(b) Issuance of income withholding order upon default.

For any child support or combined child and spousal support court order issued prior to November 1, 1990, the local child support enforcement unit, through its support collection unit (SCU), must maintain an effective system for identifying those debtors who become delinquent in meeting their court-ordered support obligation(s). The following action must be taken against those respondents who have been identified as being delinquent:

(1) For those debtors who have failed to pay up to two required weekly court-ordered support payments or one biweekly court-ordered support payment, districts should attempt to obtain voluntary resumption of support payments.

(2) For those debtors who have failed to remit three payments when due in the full amount directed by an order of support, or if the accumulation of arrears is equal to or greater than the amount directed to be paid for one month, local district SCUs must issue and process an income withholding order as follows:

(i) Use the form for income withholding promulgated by the office.

(ii) Serve a copy of the income withholding order upon the debtor, by regular mail or in the same manner as a summons may be served, at the debtor's last known residence or such other place where the debtor is likely to receive notice.

(iii) If a mistake of fact is alleged by the debtor, determine the validity of such claim and provide written notice of such determination within 45 days after notice to the debtor of the intent to serve the income withholding order on the employer or income payor. If the mistake of fact is disallowed, the written notice must state that the income withholding order will be served on the employer or income payor, and the time that deductions will begin.

(iv) If no mistake of fact is alleged by the debtor, or if a determination is made by the SCU that the alleged mistake of fact is not valid, proceed with the expeditious implementation of the income withholding order by serving the income withholding order upon the debtor's employer or income payor.

(v) To the extent not already included on the form for income withholding, the following information must be provided in a separate document served with the income withholding order:

(a) the court in which the order of support was entered;

(b) the amount of the periodic payments specified in the order of support;

(d) the names of the debtor and creditor;

(e) the name and address of the employer or income payor from whom the debtor is receiving or will receive income;

(f) the amount of the deduction to be made from the debtor's income to satisfy the current court-ordered support obligation;

(g) the amount, determined in accordance with subdivision (e) of this section, of any additional deduction to be made from the debtor's income to be applied to the reduction of support arrears/past due support;

(h) a statement of the manner in which a mistake of fact may be asserted;

(i) a statement providing notice of the following:

(1) the deductions will apply to current and future income;

(2) the income withholding order will be served upon any current or subsequent employer or income payor, unless a mistake of fact is asserted within 15 days;

(3) if the debtor claims a mistake of fact, a determination of the validity of such claim will be made within 45 days after notice to the debtor is provided and the debtor will receive written notice of:

(i) whether or not the income withholding order will be served; and

(ii) the date when deductions will begin; and

(4) the income withholding order is binding until further notice; and

(j) the statements set forth in clause (a)(2)(iv)(h)(5)-(14) of this section.

(3) With regard to debtors who have defaulted on their court-ordered support obligations and who are unemployed, social services districts should proceed as follows:

(i) if the amount in default is not sufficient for the implementation of an income withholding order, an attempt should be made to obtain a written voluntary agreement to support, whereby the Department of Labor would be authorized to withhold the amount agreed upon from the debtor's unemployment insurance benefits and remit such amount to the State disbursement unit; or

(ii) if the amount in default is sufficient for the implementation of an income withholding order, action should be taken as set forth in paragraph (2) of this subdivision.

(c) In cases in which attempts to enforce a support order have been unsuccessful, the child support enforcement unit, at the time such attempts fail, must examine the reasons for the failure and determine when, in the future, it would be appropriate to take enforcement actions and, at that time, take such actions.

(d) Additional enforcement action.

The child support enforcement unit, in addition to following the procedures set forth in subdivisions (a) and (b) of this section, must employ all appropriate statutory support enforcement remedies, within 30 calendar days of identifying a failure to comply with the support provisions of the order, or of locating the absent parent, whichever occurs later. Every petition to find the noncustodial parent in violation or motion to hold a noncustodial parent in contempt of an order to pay child support shall provide clear notice to the noncustodial parent that his or her inability to pay child support as ordered by the court is a defense to a finding of willful violation or contempt. If service of process is necessary prior to initiating an enforcement action, such service must be completed and enforcement action taken or the child support enforcement unit must document in the automated case record unsuccessful diligent efforts to serve process, as defined in section 347.7 of this Part, no later than 60 calendar days after identifying a failure to comply with the support provisions of the order or of locating the absent parent, whichever occurs later.

(e) Calculation of the amount of additional deduction for income withholding.

(1) When an income withholding order is issued under subdivision (a) or (b) of this section for a debtor who owes support arrears/past due support, the SCU must set the amount of the additional deduction to be made from the debtor's income. Such deduction must be in addition to the amount withheld to ensure compliance with the support obligation directed in the order of support. The amount of the additional deduction must be set as follows:

(i) If the income from which deductions are to be made represents wage, salary, commission, draws on commissions, pension, or retirement income, or other periodic payments, including but not limited to workers' compensation, disability, social security, or unemployment insurance benefits income, the amount of the additional deduction shall be one-half (50 percent) of the amount of the current support obligations, at the same frequency as the current support obligation. Where a current support obligation no longer exists the additional amount shall be one and one-half (150 percent) of the amount of the most recent current support obligation greater than zero, at the same frequency as the most recent support obligation. Where no current support obligation ever existed for current support but support arrears were established by the court, the additional amount shall be the amount of arrears divided by 12, payable in monthly installments.

(ii) If the income is from a source not identified in subparagraph (i) of this paragraph including, but not limited to, lump sum payments of bonuses, interest, dividends, workers' compensation, disability, social security, or unemployment insurance benefits income, the amount of the additional deduction shall be the total amount of support arrears/past due support. Provided, however, that two or more periodic payments of workers' compensation, disability, social security, or unemployment insurance benefits income disbursed to a debtor as a single payment shall not be considered a lump sum payment, but shall be treated as separate periodic payments, each subject to deduction pursuant to subparagraph (i) of this paragraph.

(2) Where the debtor provides documentary proof to the SCU that the imposition of the additional amount would reduce the debtor's remaining income below the self-support reserve, the SCU must eliminate or reduce the amount of the additional deduction as appropriate to ensure that the debtor's remaining income does not fall below the self-support reserve. Thereafter, the SCU must increase the amount of the additional deduction to the amount calculated pursuant to paragraph (1) of this subdivision at such time as its application would no longer reduce the debtor's remaining income below the self-support reserve.

(3) Where the debtor provides documentary proof to the SCU that the debtor has physical custody of the children who are the subjects of the support order, and a current support obligation no longer exists, the SCU may modify the amount of the additional deduction after taking into account the debtor's income and ability to support such children.

(4) The amount of the additional deduction for an income withholding order must be eliminated by the SCU upon satisfaction of the support arrears/past due support.

(5) The SCU must maintain on the automated case record a record of any action to eliminate or modify the amount of the additional deduction.

(f) Issuance of income withholding orders upon request.

Upon request of the debtor, the SCU must issue an income withholding order pursuant to subdivision (a) of this section. Upon receipt of a written revocation of the debtor's request for an income withholding order, the SCU must notify the employer or income payor that the income withholding order is no longer effective.

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