THE DANDELION CONNECTION
Ellicott Square Building., 295 Main Street Room 495, Buffalo, New York 14203
(716) 847-0655 ext. 402   dandelion@nls.org    www.nls.org
Volume 8 Issue 4                                                                              July/August 2000
Copyright 2000, Neighborhood Legal Services, Inc.

in this issue..
Child Support continued
Child Care Corner
SSI Overpayments
Poetry
Student Loan Clinic

OBTAINING CHILD SUPPORT
PART II
By John J. Aman, Hearing Examiner
Erie County Family Court

Last month Family Court Hearing Examiner John J. Aman discussed introductory child support issues and how to get to Court to obtain child support. In this final installment of the series Mr. Aman discusses what to do when you get to Court. This article does not attempt to advise you as to what the child support laws are; you should consult an attorney for that. The article is oriented toward providing you with practical in-Court pointers should you proceed in the child support Courts without an attorney.

        Above all, be prepared and organized. Don’t be afraid to write down your thoughts beforehand so you know you won’t forget them.

        If you do not have a Support Order presently and you are asking that the ‘Hearing Examiner’ (the person who will hear your case and decide on the amount of the support) establish one, remember to request that it be retroactive to the date you filed your Petition. Also, you should decide whether you want the Support Order to go through the Erie County Child Support Collection Unit (if you are receiving the child support payment, you probably do) or if you will allow the payor to pay you directly. You also should not forget to address health insurance; and the payment of uninsured health related expenses, day care expenses and educational expenses, as appropriate. And, if the Hearing Examiner is adjourning the case, ask for a Temporary Order of Support. You have an absolute right to a Temporary Order if there is not an Order in effect.

        If you already have a Support Order and you are asking that the Court modify your Order, be prepared to tell the Court how circumstances have changed from the time of your original Order to the present.

        If your case is a violation case, make sure you do the math and know specifically how much arrears are owed and how they came to be.

        And, because the Hearing Examiner will try to settle the case on the first appearance, have an idea before you go to Court as to the particular circumstances under which you would agree to settle the case.

• Dress appropriately.
• Be respectful and courteous, but try not to be bullied by your opponent, your opponent’s attorney, or by the Hearing Examiner.
• Know what relief you are asking for and what you want to say before you go to Court. If you think you are going to be nervous and forget things, write them down.
• Be persistent, but stay reasonable in your persistence.
• Try to listen. Many parties will leave Court not having any idea as to what happened. Treat this as a business transaction. Try not to get too emotional, but don’t be embarrassed if that happens.

        As I said above, be certain as to what you want, but also be reasonable and practical.

        Finally, try not to be hostile or nasty. Don’t talk directly to the other party and don’t be reduced to mud-slinging. Be as civil as you are able to be under the circumstances.

        Sometimes. As I said above, at the time of the appearance the Hearing Examiner will try to settle the case and the parties may agree on a settlement.

        But if there is no agreement at the first appearance, the Hearing Examiner likely will not take formal testimony (put the parties under oath) at that time. There may be an adjournment for that purpose, for what’s called a “Hearing.”

        Also, cases may be adjourned for other specific purposes, for example, for one party to get an attorney, or for one or both parties to produce financial records. The Hearing Examiner may schedule the parties to “Report Back” on specific issues. If you are told to bring something to Court, for example, a tax return or pay stub or a day care receipt, or if you are told to report back on an issue, do it. If you are told to exchange documents with the other side, do it. You will look better in the Hearing Examiner’s eyes if you follow directions.

        So be open to the fact that you may have to return to Court.

        As I said above, you should understand that a “Hearing” means that the Hearing Examiner will hear testimony (questions and answers under oath) of the parties and any appropriate witnesses.

        The Hearing Examiner will also consider any documents offered by either of the parties.

        So, if your case is scheduled for a Hearing, that means that you should be prepared to present your case in an organized fashion.

        If the parties do not have attorneys, the Hearing Examiner will likely allow the parties to make their presentations somewhat informally. You should be allowed to give your presentation without interruption by the other side. Likewise, you should not interrupt your opponent’s presentation.

        Also, if you have documents that you feel are appropriate, bring them and ask the Hearing Examiner to look at them.

        If you know of other individuals who might be able to testify in support of your case, bring them and tell the Hearing Examiner you’d like them to testify. Be prepared to ask your ‘witness’ questions that will develop answers relevant to your case. Be aware that your opponent will have the opportunity to ‘cross-examine’ (ask questions of) you and your witnesses. Likewise, you will be able to ‘cross-examine’ your opponent and your opponent’s witnesses. You should bring paper and take notes when your opponent is testifying. Do not interrupt the opponent’s testimony unless you think something he or she is saying is inappropriate and should not be considered by the Court.

        And remember, if you go to a Hearing, you are allowing the Hearing Examiner to make the final determination.

        Sometimes. However, most of the time the Hearing Examiner will ‘reserve decision’. That means the Hearing Examiner will review his or her notes, review the law and make a written decision sometime thereafter (fairly soon). You will receive the decision in the mail.

        Yes. The appeal process for the child support Orders is called “Objections”. This is a very informal process and can be as simple as a letter addressed to the Court (the Family Court Judge who will review the Hearing Examiner’s decision) in your own words and handwriting telling the Court why you do not agree with the decision.

        You will receive easy-to-read and specific directions with the decision which tell you specifically how to file your Objections.

        You still have the right to appeal the Objections to the Appellate Division in Rochester. However, you will need a lawyer for this and it is a somewhat expensive proposition.

        At some point you have to accept the fact that you did the best that you could do, and you have to be ready to live with the decision of the Court.

        I would suggest that you get a notebook and keep track of various items in the notebook. This suggestion is especially valuable if you expect to return to Court sometime in the near future.

        For example, if the support payments are not consistent, I would suggest that you keep track of when you receive the payments and how much the arrears are as they continue to add up. You might not go into Court immediately to enforce the arrears, but it will be helpful to have this record in the future.

        Also, keep track of uninsured health related bills that were supposed to be paid but were not and day care expenses that were supposed to be paid but were not.

        Finally, you have the right to ask for a new Order of Support if there is a substantial change in circumstances in the future. Keep track of what the circumstances were at the time the Order was established and closely monitor any changes that may happen.

Good luck!

Child Care Corner

Did you know that Project Dandelion is now providing legal services regarding child care for both parents and providers? If not, welcome to Dandelion’s newest column! This column discusses topics related to child care for both parents and for child care providers. For parents, the information will range from informing you how to choose the right type of child care for your children to describing all of the different types of child care that are available. For child care providers, we will discuss issues regarding rates of pay, regulations that you may not know about, and programs that will help you in the development of your business.

Types of Child Care: For parents who use child care services:

There are many types of child care that you can choose from for your children. Each type has benefits and disadvantages, and it is important that you carefully consider what environment you would like to place your children into. We will inform you of the types of child care available in New York State, how many children are permitted, and whether or not they are regulated. Being regulated is a very important issue to consider, and has to do with safety, building and programming rules. This article is very brief - if you would like more information about the types of care listed, please contact Project Dandelion at the number listed below.

HOME CARE: If you are interested in having your children watched within your home, or someone else’s home, there are four main types of child care to look at.

In-Home Care occurs when a friend or relative comes into your home to watch your children - like babysitting. This kind of care is not regulated by New York.

Informal/Exempt Care also occurs in a home, but is provided to only 1 or 2 children at a time. This type of care is not regulated by New York State.

Family Day Care Homes provide care for 3 to 6 (or 8 if after school care is provided) children in their home for more than 3 hours a day. Family Day Care Homes are regulated, and providers must be registered with the Office of Children and Family Services.

Group Home Day Care occurs when a person cares for between 7 and 12 children in their home for more than 3 hours a day. Group Home Day Care Centers must employ an assistant, so that attention is given to all children. Group Homes are also regulated, and must have a license from the Office of Children and Family Services.

CENTER CARE: You may also be interested in having your children in a larger setting that is not a residential home. Types of center-based care include:

Day Care Centers provide care for more than 6 children for more than 3 hours a day in a center that is not someone’s home. Often a day care center will have structured activities and several employees. Centers are regulated, and must have licenses. Small Day Care Center’s provide the same kind of care, but for less than 6 children at a time.

Nursery Schools offer programs that are not in someone’s home, for an unlimited number of children, but for less than 3 hours a day.

Head Start programs are licensed day care centers that also provide programs for parents and children. Head Start programs often offer care to larger numbers of children, and provide educational and structured programs.

In the next issue, we will discuss things to consider when you are choosing child care for your children, or are evaluating the type of care your child is already in. We will describe the basic differences between regulated (licensed or registered) child care providers, and those who are not. This article will be informative both for parents so that they can choose the type of care that they want for their children, as well as for providers - so that they may understand the benefits or differences in becoming a certain type of provider.

If you have questions or concerns about child care, please contact Mindy Marranca at 847-0650, x226.

SSI Overpayments
How to file for a Waiver

        If you are an SSI recipient and get more SSI benefits than you are entitled to during any month or a number of months, you have been overpaid. This is called an SSI Overpayment. The amount of the overpayment is the amount of benefits paid to you minus the amount of benefits you were actually entitled to. The Social Security Administration (SSA) can take money out of future checks to pay back an overpayment. There are ways to stop SSA from doing this! One way is to file for a waiver.

WHAT IS A WAIVER?
DO I WANT TO REQUEST ONE?

        You can ask the SSA to “waive” or “give up” an overpayment claim against you by filing a REQUEST FOR A WAIVER. Requesting a waiver means that you are asking SSA not to make you pay the overpayment back.

        You can also ask SSA to check their decision because you think it is wrong by filing a REQUEST FOR RECONSIDERATION. You should file this form if you think no overpayment has occurred or if SSA has overestimated the amount of the overpayment.

        You can file BOTH a Request for a Waiver and a Request for a Reconsideration. You may wish to do this if you think that the SSA did not overpay you, but even if they did, it wasn’t your fault and you should not have to pay the money back. If you request only a waiver (and not a Request for Reconsideration) you are admitting the overpayment occurred and the amount of the overpayment is correct, but it should not be collected.

        A Request for Reconsideration must be filed within 60 days of the Notice of the Overpayment. A waiver can be filed at any time. Deductions from your check can be stopped if you file an appeal within 30 days.

        Call Project Dandelion if you have questions about which form is appropriate for your situation. Both forms are available at your local SSA office.

        The law says that even if you are liable for an overpayment, your responsibility to pay it will be “waived” if you meet certain requirements. You must show:

        1. That you were without fault in causing the overpayment, AND

        2. Repayment of the money would not leave you enough money to live, OR

        Repayment would not be fair to you, OR

        The amount of the overpayment is so small that it would not be worth Social Security’s administrative cost to collect it from you.

Generally, you will be found “without fault” when any of the following are true:

• You were NOT aware that you needed to report a change in circumstances
• You were NOT aware that a change in circumstance would affect your benefits
• You made an EFFORT to report a change in circumstances but were unsuccessful
• You did not have the ABILITY or OPPORTUNITY to comply with the reporting requirements (for example, you were seriously ill and unable to report right away)
• You MISUNDERSTOOD information or instructions sent you by the SSA
• You were given INCORRECT INFORMATION by a SSA worker
• You have TROUBLE UNDERSTANDING what is said to you, have a poor memory, or trouble following instructions.

As you can see, there are many circumstances in which you might not have been “at fault” for an overpayment. Do not simply accept the SSA’s decision that an overpayment was your fault!

Generally, you ARE considered to be “at fault” in causing an overpayment when:

        1. You failed to report a change in circumstances which needed to be reported to the SSA, AND

        2. The change was important enough to affect your benefits, AND

        3. You knew the change would affect your benefits.

All three of the above factors must be present for the SSA to consider you at fault. If you are only partially responsible for causing the overpayment, you may still get your waiver request approved.

        When you file for a waiver, the SSA may deny it. There are many arguments that the SSA may you use to say you are still at fault.

SSA ARGUMENT: “But we explained everything to you when you applied!”

Your argument: I did not understand an explanation I was given. I have received incorrect information from an interviewer. My interviewer instructed me to cash an overpayment check I was not entitled to. My application was filled out by an examiner for me but I did not read or was not told about important information. Ask for a copy of your original application and the instructions you were given. See if the information given to you on these forms even relates to your situation.

Financial hardship is the second thing that you must prove to secure a waiver of repayment. To say that a repayment would cause you or your family “financial hardship” means that having to repay an overpayment would leave you without income or savings to meet ordinary and necessary living expenses. In most cases, if you are eligible for SSI payments, you automatically meet the “financial hardship” test. There are some exceptions- if you have not yet cashed the overpayment checks, you may not automatically meet the “financial hardship” test. Social Security Disability (SSD) recipients will not automatically meet the test.

Your request for a waiver may be denied. If so, you may request a RECONSIDERATION of your waiver denial. (This is NOT the same thing as the Request for Reconsideration mentioned above.) You have 60 days to appeal and request a HEARING. If you lose your hearing, the next appeal is to the APPEALS COUNCIL. You must file for this appeal within 60 days. After that you may appeal to FEDERAL COURT. As you can see, the appeals process may be a lengthy one - Don’t give up!

Yesterday is history.
Tomorrow is mystery.
Today is a gift.

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