Relates to enforcement of orders of child support against inmates; requires that inmates be notified of their right to seek modification of child support orders; provides a 180 day stay of enforcement following release; makes provisions permitting modification applicable to inmates incarcerated prior to effective date of such amendments.
TITLE OF BILL: An act to amend the correction law, the criminal procedure law and the domestic relations law, in relation to child support obligations of inmates; and to amend section 13 of chapter 182 of the laws of 2010 amending the tax law, the family court act, the domestic relations law and the social services law relating to the modification of child support orders, employer reporting of new hires and quarterly earnings, work programs and the noncustodial earned income tax credit, in relation to the effectiveness of certain provisions thereof
PURPOSE: This bill would enable people residing in a state correctional facility to be informed of their right to modify an existing child support order pursuant to Chapter 182 of the Laws of 2010. In addition and with the approval of the court, individuals released from prison may be granted up to 180 days before they begin to fulfill their child support obligations.
SUMMARY OF PROVISIONS:
Section 1 of the bill amends the correction law to add a new section 149-a requiring that all people residing in a correctional facility be notified of their possible eligibility to modify an existing child support order based on their "substantial change in circumstances."
Section 2 of the bill amends section 390.30 of the criminal procedure law, to require that the presentence investigation include gathering information with respect to child support obligations.
Section 3 of the bill amends section 236 of the domestic relations law to give the court discretion to stay an order of child support for up to 180 days following the release of a non-custodial parent from a period of incarceration.
Section 4 of the bill amends section 13 of Chapter 182 of the Laws of 2010 to provide that persons whose incarceration began prior to the effective date of such chapter shall have the ability to modify their child support orders.
JUSTIFICATION: Parents have an obligation to provide for their children in every way possible, and that includes making timely child support payments based on their income and ability to pay. Child support programs, criminal justice agencies, and the courts all play a critical role in the development of fair child support policies for noncustodial parents in prison and the parole system. While New York has taken some steps to address the effects of incarceration on the child support obligations of people in prison, systemic reform has not gone far enough.
Under a 2010 law, New Yorkers entering the prison system are allowed to apply for a modification of their child support order based on the substantial change in their circumstances. Before the law was enacted, incarcerated individuals were barred from filing for a modification based on a Court of Appeals ruling.
The 2010 law, however, does not apply to people who were incarcerated prior to the law taking effect. Consequently, this population is not permitted to even apply to have their child support order changed despite the fact that they are "involuntarily unemployed." And, for them, the monthly child support obligations at the time of imprisonment continue to accrue throughout their incarceration, sometimes resulting in thousands upon thousands of dollars in back support payments - an unrealistic sum that they will never be able to pay in a lifetime. They emerge from prison with enormous debts, severely hampering their chances for successful reentry into society by making employment - already difficult with a conviction history -counterproductive to their economic success and their ability to provide for their children.
The current inability to stay or modify child support orders compounds the difficulties noncustodial parents face in the reentry process. If there is a court order for support, continuation of payments can be made a condition of release to parole and a non-custodial parent can face reincarnation if they are unable to pay. Moreover, a parent reentering society from the prison justice system can lose their drivers license and face additional jail time if they fail to make timely child support payments. Without a driver's license, parents in many rural upstate counties and suburban counties with limited access to public transportation are unable to travel to and from work. This alone would make it difficult -if not impossible - for non-custodial parents to fulfill their financial responsibilities to their children. New York is doing a disservice to children and families when a child support modification is deserved but not allowed.
Motivating efforts to enable all men and women who are incarcerated and who are eligible to apply for a child support modification are cases like that of 40-year-old Glenn Martin. As noted in Prisoner's Dilemma in the March 14, 2011, edition of American Prospect, "Mr. Martin was convicted in 1995 for an armed robbery of -a New York City jewelry store and was sentenced to six years in prison. When he went to jail, he had $300 in outstanding child-support debt and owed $100 a week as part of his regular court-ordered payment. He was worried because he'd have no income in prison and knew he'd emerge owing more money. He guessed at the time it would total $3,000 or $4,000.
When he got out in June 2001, he decided to turn his life around, get a job, and stay out of trouble. But then he found out about his child-support bill. Not only had his payments accrued during the six years but the state had tacked on 9 percent compounding interest. The bill was $50,000."
There are many barriers to a person's ability to make a successful transition from prison to community and family life, including getting a living wage job, finding a safe and affordable place to live and having access to supportive services. These challenges begin the day a person is released from prison. It is unrealistic to expect that every formerly incarcerated person will be able to begin fulfilling their child support obligations immediately, and that is why the bill gives the court discretion to stay an order for up to 180 days.
FISCAL IMPACT: Minimal.
LEGISLATIVE HISTORY: 2011-2012: S.5473-A - Died in Committee
EFFECTIVE DATE: 90 days after becoming law.
STATE OF NEW YORK ________________________________________________________________________ 1402 2013-2014 Regular Sessions IN SENATE (PREFILED) January 9, 2013 ___________Introduced by Sens. MONTGOMERY, HASSELL-THOMPSON, PERKINS, RIVERA -- read twice and ordered printed, and when printed to be committed to the Committee on Crime Victims, Crime and Correction AN ACT to amend the correction law, the criminal procedure law and the domestic relations law, in relation to child support obligations of inmates; and to amend section 13 of chapter 182 of the laws of 2010 amending the tax law, the family court act, the domestic relations law and the social services law relating to the modification of child support orders, employer reporting of new hires and quarterly earn- ings, work programs and the noncustodial earned income tax credit, in relation to the effectiveness of certain provisions thereof THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. The correction law is amended by adding a new section 149-a to read as follows: S 149-A. NOTIFICATION TO INMATES OF THEIR ABILITY TO SEEK MODIFICA- TIONS OF AN ORDER OF CHILD SUPPORT. NOTWITHSTANDING ANY PROVISION OF LAW TO THE CONTRARY, THE DEPARTMENT SHALL NOTIFY ALL INMATES RESIDING IN A CORRECTIONAL FACILITY WITHIN THE STATE OF NEW YORK OF THE POSSIBILITY THAT THEY MAY BE ABLE TO MODIFY AN EXISTING CHILD SUPPORT ORDER BASED ON A "SUBSTANTIAL CHANGE IN CIRCUMSTANCES" IN ACCORDANCE WITH SECTION TWO HUNDRED THIRTY-SIX OF THE DOMESTIC RELATIONS LAW AND SECTION FOUR HUNDRED FIFTY-ONE OF THE FAMILY COURT ACT. S 2. Subdivision 1 of section 390.30 of the criminal procedure law is amended to read as follows: 1. The investigation. The pre-sentence investigation consists of the gathering of information with respect to the circumstances attending the commission of the offense, the defendant's history of delinquency or criminality, and the defendant's social history, employment history, family situation, economic status, INCLUDING CHILD SUPPORT OBLIGATIONS,EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD04008-01-3 S. 1402 2
education, and personal habits. Such investigation may also include any other matter which the agency conducting the investigation deems rele- vant to the question of sentence, and must include any matter the court directs to be included. S 3. Subdivision 9 of part B of section 236 of the domestic relations law is amended by adding a new paragraph e to read as follows: E. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, UPON AN APPLICATION FOR A MODIFICATION OF CHILD SUPPORT PURSUANT TO THIS SUBDI- VISION, THE COURT IN ITS DISCRETION, MAY ISSUE AN ORDER DIRECTING THAT AN ORDER FOR PAYMENT OF CHILD SUPPORT BE STAYED FOR A PERIOD OF UP TO ONE HUNDRED EIGHTY DAYS FOLLOWING THE RELEASE OF A NON-CUSTODIAL PARENT FROM A PERIOD OF INCARCERATION. ARREARS SHALL ACCRUE DURING SUCH PERI- OD. THE ORIGINAL ORDER, OR ANY MODIFIED ORDER SHALL BE ENFORCEABLE AT THE END OF SUCH STAY. S 4. Section 13 of chapter 182 of the laws of 2010 amending the tax law, the family court act, the domestic relations law and the social services law relating to the modification of child support orders, employer reporting of new hires and quarterly earnings, work programs and the noncustodial earned income tax credit is amended to read as follows: S 13. This act shall take effect on the ninetieth day after it shall have become law; provided however, that sections six and seven of this act shall apply to any action or proceeding to modify any order of child support entered on or after the effective date of this act except that if the child support order incorporated without merging a valid agree- ment or stipulation of the parties, the amendments regarding the modifi- cation of a child support order set forth in sections six and seven of this act shall only apply if the incorporated agreement or stipulation was executed on or after this act's effective date, AND EXCEPT THAT SECTIONS SIX AND SEVEN OF THIS ACT SHALL APPLY TO ANY ACTION OR PROCEED- ING TO MODIFY A CHILD SUPPORT ORDER ENTERED AGAINST ANY PERSON WHO IS AN INMATE IN A CORRECTIONAL FACILITY IN THIS STATE WHOSE INCARCERATION BEGAN PRIOR TO THE EFFECTIVE DATE OF THIS ACT; provided however, that sections three and four of this act shall take effect on the three hundred sixty-fifth day after it shall have become a law. S 5. This act shall take effect on the ninetieth day after it shall have become a law.