N.Y. Comp. Codes R. & Regs. tit. 18 § 346.12

Current through Register Vol. 46, No. 25, June 18, 2024

Section 346.12 - Suspension of driving privileges

(a)

(1) Enforcement of orders by suspension of driving privileges. Support arrears/past due support for child support or combined spousal and child support payable to the support collection unit (SCU) may be enforced by the suspension of the support obligor's driving privileges when the support obligor is in default as defined in subdivision (b) of this section.

(2) Child support orders in the amount of $25 per month dated before January 1, 1994 are not subject to enforcement pursuant to this section.

(b) Definitions.

(1) Default. Subject to the limitation set forth in paragraph (a)(2) of this section, a support obligor is in default if he or she has failed to remit to the SCU the accumulation of an amount equal to or greater than the amount directed by court order to be paid for four months. For purposes of this section, a default may not be founded upon the existence of retroactive support; however, if a support obligor defaults subsequent to the date of the court order, retroactive support may be collected pursuant to the provisions of this section. Any support arrears/past due support collected pursuant to this section need not be reduced to judgment.

(2) Satisfactory payment arrangements. For purposes of this section, satisfactory payment arrangements means:

(i) execution of a confession of judgment for the total balance of the arrears/past due support; and

(ii) execution of a verified statement of net worth setting forth the support obligor's income from all sources, liquid assets, and other holdings, copies of the support obligor's drivers license, most recent Federal and State income tax returns, and a representative pay stub for each source of employment; and an 18-month employment history; and

(iii) execution and verification of a stipulation that the support obligor will notify the SCU of all future changes of address until such time as the obligation to pay support is terminated; and

(iv) payment of support to the SCU by an income execution issued pursuant to section 5241 of the Civil Practice Law and Rules (CPLR), which must include deductions sufficient to ensure compliance with the direction in the order of support and must include an additional amount calculated pursuant to section 347.9(e) of this Title to be applied to the reduction of support arrears/past due support, or by execution of an agreement for payment of the support arrears/past due support and any current support directly to the SCU in an amount consistent with that which would be paid under such an income execution.

(c) Procedure. Support arrears/past due support may be enforced by the suspension of the support obligor's driving privileges when the support obligor is in default, as follows:

(1) Service of notice. For any support obligor in default as defined in paragraph (b)(1) of this section, the SCU must send a notice by first class mail to the support obligor's last known address or such other place where the support obligor is likely to receive notice, or in the same manner as a summons may be served. The notice must advise the support obligor that his or her continued failure to pay the support arrears/past due support will result in notification to the Department of Motor Vehicles (DMV) to suspend the support obligor's driving privileges unless the support obligor complies with the requirements set forth in paragraph (7) of this subdivision or asserts pursuant to subdivision (d) of this section a written challenge to the correctness of the SCU's determination that the support obligor's driving privileges should be suspended. However, no notice will be issued to a support obligor from whom support payments are being received by the SCU as a result of an income execution or an income deduction order issued pursuant to section 5241 or 5242 of the CPLR.

(2) Format of notice. The notice required by paragraph (1) of this subdivision must contain the following information:

(i) the caption of the order of support, the date the order of support was entered, the court in which the order was entered, the amount of periodic payments directed by the order, and the amount of outstanding support arrears/past due support;

(ii) an explanation of the actions the support obligor may take to avoid the suspension of his or her driving privileges;

(iii) a statement that 45 days after the date of the notice the SCU will notify the DMV to suspend the support obligor's driving privileges unless the support obligor challenges the correctness of the SCU's determination as set forth in subdivision (d) of this section within 45 days of the date of the notice; a statement of the manner in which the support obligor may challenge the SCU's determination; and a statement that if the support obligor challenges the correctness of the SCU's determination then the SCU will complete its review of the challenge within 75 days of the date of the notice;

(iv) a statement that if within 45 days after the date of the notice the support obligor does not challenge the correctness of the SCU's determination then the SCU will notify the DMV to suspend the support obligor's driving privileges unless the support obligor contacts the SCU to arrange for full payment of the support arrears/past due support or to make satisfactory payment arrangements or to comply otherwise with the requirements set forth in paragraph (7) of this subdivision;

(v) the address and telephone number of the SCU that the support obligor may contact to request information about a challenge or to comply with the requirements set forth in paragraph (7) of this subdivision;

(vi) a statement that the suspension of the support obligor's driving privileges will continue until the support obligor pays the support arrears/past due support or complies with the requirements set forth in paragraph (7) of this subdivision; and

(vii) a statement printed in boldface type that the support obligor's intentional submission of false written statements to the SCU for the purpose of frustrating or defeating the lawful enforcement of support obligations is punishable pursuant to section 175.35 of the Penal Law.

(3) Right to challenge SCU determination or to claim financial exemption from suspension process. A support obligor who has received the notice required by paragraph (1) of this subdivision may, pursuant to subdivision (d) of this section, submit a written challenge to the correctness of the SCU's determination that his or her driving privileges should be suspended or may submit documentation indicating that he or she is financially exempt from a suspension of his or her driving privileges.

(4) Notice to the DMV to suspend driving privileges. If within 45 days from the date of the notice required by paragraph (1) of this subdivision, a support obligor has not challenged pursuant to subdivision (d) of this section the correctness of the SCU's determination that the support obligor's driving privileges should be suspended, and if the support obligor has failed to avoid the suspension of his or her driving privileges in the manner permitted by paragraph (7) of this subdivision, the SCU must notify the DMV that the support obligor's driving privileges are to be suspended pursuant to section 510 of the Vehicle and Traffic Law (VTL).

(5) Termination of suspension of driving privileges. Upon the respondent's compliance with the provisions of paragraph (7) of this subdivision, the SCU must notify the DMV within five business days that the suspension of the support obligor's driving privileges due to support arrears/past due support must be terminated. If the support obligor satisfies the requirements of paragraph (7) of this subdivision during a personal appearance at the SCU, the SCU must immediately provide a notice of compliance to the support obligor in addition to the notice provided by the SCU to the DMV.

(6) Failure to comply with satisfactory payment arrangements.

(i) When a support obligor has failed to comply with satisfactory payment arrangements entered into pursuant to paragraph (7) of this subdivision by missing payments in an amount equivalent to four months of payments due according to the terms of the payment arrangement, and where the support obligor has not demonstrated that he or she has filed a petition for modification that is pending, the SCU must send a notice by first class mail to the support obligor advising that the support obligor may avoid or terminate the suspension of his or her driving privileges by paying to the SCU at least 50 percent of all outstanding support arrears/past due support and by making satisfactory payment arrangements with the SCU within 15 days of the date of the notice.

(ii) When a support obligor has failed more than once within a 12-month period to comply with satisfactory payment arrangements entered into pursuant to paragraph (7) of this subdivision by missing payments in an amount equivalent to four months of payments due according to the terms of the payment arrangement, and where the support obligor has not demonstrated that he or she has filed a petition for modification that is pending, the SCU must send a notice by first class mail to the support obligor advising that the support obligor may avoid or terminate the suspension of his or her driving privileges by paying to the SCU the balance of all outstanding support arrears/past due support within 15 days of the date of the notice.

(iii) The SCU must determine whether the support obligor has complied with the requirements stated in the notice required by subparagraph (i) or (ii) of this paragraph within 15 days of the date of either notice, and if the support obligor has failed to comply with the requirements stated in the notice the SCU must notify the DMV that the support obligor's driving privileges are to be suspended pursuant to section 510 of the VTL.

(7) Conditions for avoidance or termination of suspension. A support obligor who has received the notice required by paragraph (1) of this subdivision may, subject to the limitations set forth at paragraph (c)(6) of this section, avoid or terminate a suspension of his or her driving privileges by:

(i) making full payment of all support arrears/past due support to the SCU; or

(ii) making satisfactory payment arrangements with the SCU for payment of the support arrears/past due support and the current support obligation; or

(iii) providing documentation that shows the support obligor is receiving public assistance or supplemental security income; or

(iv) providing to the SCU the documentation required by subparagraphs (b)(2)(i), (ii) and (iii) of this section, where such documentation is sufficient for the SCU to determine:

(a) that the support obligor's income, as defined by section 413.1(b)(5) of the Family Court Act (FCA), falls below the self-support reserve as defined by FCA section 413.1(b) (6); or

(b) that the amount of the support obligor's income, as defined by FCA section 413.1(b)(5), remaining after the payment of the current support obligation would fall below the self-support reserve as defined by FCA section 413.1(b)(6).

(8) Procedure when support obligor did not receive notice. A support obligor who alleges to the SCU that he or she did not receive the notice required by paragraph (1) of this subdivision and whose driving privileges have been suspended may, at any time, challenge the correctness of the SCU's determination that the support obligor's driving privileges should be suspended and/or may produce evidence of financial exemption from the suspension of his or her driving privileges pursuant to subdivision (d) of this section, or may comply with the requirements of paragraph (7) of this subdivision. Upon a determination that the support obligor has not accumulated support arrears equivalent to or greater than the amount of support due for a period of four months or that the support obligor has complied with the requirements of paragraph (7) of this subdivision, the SCU must notify the DMV to terminate the suspension of the support obligor's driving privileges due to support arrears/past due support.

(d) Submission of written challenge or documentation indicating financial exemption from suspension of driving privileges.

(1) Within 45 days of the date of the notice required by paragraph (c)(1) of this section, a support obligor may challenge in writing the correctness of the SCU's determination that the support obligor's driving privileges should be suspended, and in support of the challenge may submit documentation to the SCU demonstrating the mistaken identity of the individual served with the notice; that the SCU's calculation of the support arrears indicated erroneously that the support obligor had accumulated at least four months of support arrears after the date of the order; that the order(s) referenced in the notice do not exist or have been terminated; or any another reason to explain why the SCU's determination is incorrect. Such documentation may include, but are not limited to, a copy of the order of support or other relevant court orders; copies of cancelled checks, receipts for support payments, pay stubs, or other documents providing evidence of wage withholding or payment; or proof of the individual's identity. In addition, the support obligor may challenge the suspension by producing evidence of his or her financial exemption from the suspension of his or her driving privileges as follows:

(i) by providing documentation that shows the support obligor receives public assistance or Supplemental Security Income; or

(ii) by providing to SCU the documentation required by subparagraphs (b)(2)(i), (ii) and (iii) of this section, where such documentation is sufficient for the SCU to determine:

(a) that the support obligor's income, as defined by FCA section 413.1(b)(5), falls below the self-support reserve as defined by FCA section 413.1(b)(6); or

(b) that the amount of the support obligor's income, as defined by FCA section 413.1(b)(5), remaining after the payment of the current support obligation would fall below the self-support reserve as defined by FCA section 413.1(b)(6); or

(iii) by making full payment of all support arrears/past due support to the SCU; or

(iv) by making satisfactory payment arrangements with the SCU as described in paragraph (b)(2) of this section.

(2) If the support obligor submits to the SCU a challenge to the correctness of the SCU's determination that the support obligor's driving privileges should be suspended or submits documentation indicating financial exemption from the suspension of his or her driving privileges within 45 days of the date of the notice required by paragraph (c)(1) of this section, the SCU must:

(i) review the documentation submitted by the support obligor, adjust the support obligor's account if appropriate, and notify the support obligor of the results of the SCU's review within 75 days of the date of the notice required by paragraph (c)(l) of this section, as follows:

(a) if the SCU's review indicates that the SCU incorrectly determined that the support obligor's driving privileges should be suspended or that the support obligor is financially exempt from the suspension of his or her driving privileges, the SCU must notify the support obligor of the results of the review and that the SCU will not notify the DMV to suspend the support obligor's driving privileges;

(b) if the SCU's review indicates that the SCU correctly determined that the support obligor's driving privileges should be suspended or that the support obligor is not financially exempt from the suspension of his or her driving privileges, the SCU must notify the support obligor of the results of the review and that the support obligor has 30 days from the date of the notice of the SCU's determination to satisfy the full amount of the arrears or to make satisfactory payment arrangements with the support collection unit as described in paragraph (b)(2) of this section, and that if the respondent fails to do so then the SCU will notify the DMV to suspend such support obligor's driving privileges. The SCU also must notify the support obligor that if the support obligor files objections with the family court and serves the objections on the SCU within 30 days of the date of the notice of the SCU's determination, the SCU will not notify the DMV to suspend the support obligor's driving privileges until 15 days after the entry of judgment by the family court judge denying the objection;

(c) a support obligor may, within 30 days of the date of the notice of the SCU's determination, file objections with the family court and request the family court to review the SCU's determination. A support obligor who files such objections must serve a copy of the objections upon the SCU, which has 10 days from such service to file a written rebuttal to such objections and a copy of the record upon which the SCU's determination was made, including all documentation submitted by the support obligor. Proof of service must be filed with the court at the time any such objections or rebuttal is submitted to the court. If the support obligor requests the family court to review the SCU's determination, the SCU must not notify the DMV to suspend the support obligor's driving privileges until 15 days after entry of judgment by the family court denying the objections;

(d) the SCU must implement the court's order resulting from the court's review.

(e) Forms. The SCU must implement the procedures set forth in this section using forms provided through the Child Support Management System (CSMS).

(f) Records of the SCU.

(1) Each SCU must keep a record on the CSMS of all enforcement activities administered pursuant to this section.

(2) Each SCU must add to the CSMS case record a support obligor's drivers license identification number when the number is obtained by the SCU.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 346.12