Legislative Memo: Child Care Assistance Eligibility

Introduction

This legislation would cure a flaw in existing law that frustrates the ability of a single parent to obtain child care assistance. To be eligible for such assistance, the parent must first seek a child support order from a non-custodial parent.

This administrative rule subverts the very intent of the law. The primary effect of this rule is to discourage women from seeking the child care assistance for which they are eligible and which they badly need to support themselves and their children.

A.3657/S.2091 would remove this barrier to obtaining child care assistance. The NYCLU strongly recommends that the legislature pass the bill.

Current Law

Child care assistance is available to needy families from New York State through a combination of federal and state funding. The legislature has adopted eligibility guidelines that require a family receiving such assistance to earn less than 200% of the federal poverty line and that the parent seeking child care assistance require the child care in order to participate in employment or another approved activity. Current eligibility guidelines in the law do not require custodial parents to pursue child support orders in order to access such assistance.

The Office of Children and Family Services (“OCFS”) has adopted the administrative requirement that, as a condition of eligibility, all applicants and recipients for child care subsidies must obtain or actively pursue child support orders from non-custodial parents for each of the children in a household, regardless of whether the custodial parent is seeking a child care subsidy for a specific child.

While the requirement is currently under review through litigation and may ultimately be rejected by the courts, we believe, for the reasons stated below, that this legislation appropriately eliminates the requirement by making clear that pursuing a child support order, while encouraged, should not be a condition of eligibility.

A.3657/S. 2091 eliminates a significant barrier for single mothers requiring child care assistance

According to a report issued by the U.S. Census Bureau, five out of six custodial parents were mothers and 27.7% of single custodial mothers were living in poverty in 2006. In New York, just over 40% of New York children are living in low-income families. Approximately 57% of children living in low-income families, many of whom would qualify for child care assistance, are living with a single parent—more often than not, their mother. Therefore, it is clear that any barrier placed on a custodial parent seeking to receive child care assistance will certainly fall more heavily on the shoulders of women.

For years women have earned less than men, experienced greater economic insecurity and bore a higher share of household labor. Federal and state legislative efforts have attempted to rectify these inequities by enhancing access to educational opportunities and workforce engagement. Child care assistance provides parents, particularly women, an opportunity to pursue an education or engage in the workforce. Yet, rather than reduce the number of barriers preventing single women from accessing safe, affordable childcare for their children, OCFS has chosen to implement a requirement that deters women from seeking assistance. The child support requirement hampers women’s ability to obtain an education, enter the workforce and, in the case of domestic violence, establish independence from a dangerous former partner.

A survey conducted by the Welfare Reform Network’s Child Care Committee of 86 centers run by Administration for Children’s Services in Brooklyn and the Bronx demonstrated that three out of four center directors attribute the loss of single-parent applications for child care assistance to the requirement that applicants initiate a proceeding for support against non-custodial parents. Of the directors able to estimate a percentage of lost applicants, some indicated a loss as high as 75% while the average was 38%. Similarly, ten Federation of Protestant Welfare Agency member providers estimated in an informal survey that 60% of incoming applicants gave up once they learned of the requirement while another 20% began the application process and then abandoned it due to difficulties with satisfying the requirement. Therefore, while the intent of the requirement may have been to persuade women to pursue child support orders, it has in fact dissuaded women from seeking assistance to place their children in safe child care. Single parents are not the only ones harmed by this requirement; their children are prevented from obtaining the benefit of quality child care essential to early childhood development. What’s worse, the harsh penalty for failure to comply affects all of the children in a household, not only those without a child support order.

The child support requirement ignores the legitimate reasons that single parents have for not pursuing an official child support order.

The requirement to pursue a child support order, while beneficial to many women, may not be uniformly beneficial to women who have legitimate reasons for not pursuing a child support order for each of her children. Although there is a good cause exception for when the pursuit of child support would “adversely affect the health, safety or welfare” of the child or other persons in the household, many women have legitimate reasons for choosing not to pursue a child support order that may not qualify for this exception. The burden is on the woman to demonstrate the good cause and the decision is left to child care workers, who may or may not appropriately evaluate the situation.

The requirement ignores the delicate and diverse array of family relationships and strips women of their autonomy to decide what is best for their households. For example a single mother who is already working may calculate that it does not make economic sense to sacrifice several days of paid work to undergo the onerous family court process and pursue a child support order against a non-custodial father who is incapable of paying the required amount because he is too young, incarcerated, or currently un- or underemployed.

Alternatively, a single mother may determine that it is not worth the risk of damaging her child’s delicate relationship with the non-custodial father by bringing him into court proceedings, especially where a father is voluntarily contributing time or money that may not be legally sufficient in the eyes of a court. In addition, such a father may default because he is unable to pay the entire amount, and stop contributing altogether. Furthermore, a survivor of an abusive relationship may feel deterred from seeking economic independence simply because she cannot document the abuse and thus qualify for a good cause exception.

The child support requirement exceeds statutory authority and ignores legislative intent.

Statutory law does not require otherwise eligible parents to seek child support as a condition of child care assistance eligibility. In fact, the legislature’s intent to not condition eligibility for child care assistance on whether custodial parents obtain child support orders is clear especially given the legislature’s explicit inclusion of such a requirement in the context of other assistance programs. This omission, along with the fact that since establishing the program, the legislature has amended the law on various occasions to expand access to child care assistance demonstrates a legislative intent to ensure that low-income parents are not unnecessarily impeded from obtaining assistance to provide their children with safe and affordable child care.

Conclusion

In a time of great economic insecurity for everyone, it is the responsibility of the legislature to ensure that unnecessary barriers are removed so that the most vulnerable can access essential supports that will help their families weather the economic crisis. One significant barrier is the requirement to pursue a child support order as a condition of eligibility for child care assistance. For the foregoing reasons, the NYCLU urges the passage of A.3657/S. 2091.