This bill has been amended

Bill S5473-2011

Relates to enforcement of orders of child support against inmates

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.

Details

Actions

  • Mar 7, 2012: DEFEATED IN CRIME VICTIMS, CRIME AND CORRECTION
  • Feb 21, 2012: NOTICE OF COMMITTEE CONSIDERATION - REQUESTED
  • Jan 4, 2012: REFERRED TO CRIME VICTIMS, CRIME AND CORRECTION
  • May 25, 2011: REFERRED TO CRIME VICTIMS, CRIME AND CORRECTION

Votes

VOTE: COMMITTEE VOTE: - Crime Victims, Crime and Correction - Mar 7, 2012
Ayes (5): Rivera, Hassell-Thompson, Montgomery, Peralta, Espaillat
Ayes W/R (1): Kennedy
Nays (8): Nozzolio, DeFrancisco, Gallivan, Griffo, Little, Maziarz, Ranzenhofer, Ritchie

Memo

BILL NUMBER:S5473

TITLE OF BILL: An act to amend the correction law, the domestic relations law, the family court act and the criminal procedure 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 and Section 3 of the bill amend section 240 of the domestic relations law and section 413 of the family court act, respectively, to remove the requirement that non-custodial parents pay a minimum of $25 per month in child support, in accordance with the Court of Appeals ruling in Rose v. Moody, 83 N.Y.2s65, 607 N.Y.S.2d 906 (1993), cert denied. 511 U.S. 1084 (1994). In Rose v. Moody the Court of Appeals held that New York child support statutes which requires indigent non-custodial parents with incomes below the federal poverty level to pay a minimum of $25 per month in child support was unconstitutional as it was in conflict with the Federal Child Support Enforcement Act [Social Security Act, Title IV-D §467(b) (2), as amended, 42 U.S.C.A. § 667(b) (2)], and thus violated the constitutional provision of federal preemption. This bill seeks to bring the statute into compliance with federal law and the COUlt'S decision in Roe v. Moody by removing the minimum $25 per month requirement and providing that in determining the amount of child support obligation an indigent parent shall pay, the court shall issue an order which is "just and appropriate" based on existing statutory considerations.

In accordance with section one hundred eleven-i of the social services law, sections 2 and 3 of the bill also amend the statute to change reference from the commissioner of social service is to commissioner of the office of temporary and disability assistance.

Section 4 of the bill amends the criminal procedure law to require that a pre-sentence investigation also include defendants' child support obligations.

Section 5 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 6 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.

Section 7 provides that the bill shall take effect ninety days after enactment.

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 non-custodial 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.

EFFECTIVE DATE: 90 days after becoming law.


Text

STATE OF NEW YORK ________________________________________________________________________ S. 5473 A. 7931 2011-2012 Regular Sessions S E N A T E - A S S E M B L Y May 25, 2011 ___________
IN SENATE -- Introduced by Sen. MONTGOMERY -- read twice and ordered printed, and when printed to be committed to the Committee on Crime Victims, Crime and Correction IN ASSEMBLY -- Introduced by M. of A. AUBRY -- read once and referred to the Committee on Correction AN ACT to amend the correction law, the domestic relations law, the family court act and the criminal procedure 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 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. Paragraphs (d), (g) and (i) of subdivision 1-b of section 240 of the domestic relations law, paragraphs (d) and (i) as added by chapter 567 of the laws of 1989 and paragraph (g) as amended by chapter 41 of the laws of 1992, are amended to read as follows:
(d) Notwithstanding the provisions of paragraph (c) of this subdivi- sion, where the annual amount of the basic child support obligation would reduce the non-custodial parent's income below the poverty income guidelines amount for a single person as reported by the federal depart- ment of health and human services[, the basic child support obligation shall be twenty-five dollars per month or the difference between the non-custodial parent's income and the self-support reserve, whichever is greater], OR IF THE COURT FINDS THAT SUCH BASIC CHILD SUPPORT OBLIGATION IS UNJUST OR INAPPROPRIATE, WHICH FINDING SHALL BE BASED UPON CONSIDER- ATIONS OF THE FACTORS SET FORTH IN PARAGRAPH (F) OF THIS SUBDIVISION, THE COURT SHALL ORDER THE NON-CUSTODIAL PARENT TO PAY SUCH AMOUNT OF THE CHILD SUPPORT AS THE COURT FINDS JUST AND APPROPRIATE. Notwithstanding the provisions of paragraph (c) of this subdivision, where the annual amount of the basic child support obligation would reduce the non-custo- dial parent's income below the self-support reserve but not below the poverty income guidelines amount for a single person as reported by the federal department of health and human services, the basic child support obligation shall be fifty dollars per month or the difference between the non-custodial parent's income and the self-support reserve, whichev- er is greater, IN ADDITION TO ANY AMOUNTS THAT THE COURT MAY, IN ITS DISCRETION, ORDER IN ACCORDANCE WITH SUBPARAGRAPHS FOUR, FIVE, SIX AND/OR SEVEN OF PARAGRAPH (C) OF THIS SUBDIVISION. (g) Where the court finds that the non-custodial parent's pro rata share of the basic child support obligation is unjust or inappropriate, the court shall order the non-custodial parent to pay such amount of child support as the court finds just and appropriate, and the court shall set forth, in a written order, the factors it considered; the amount of each party's pro rata share of the basic child support obli- gation; and the reasons that the court did not order the basic child support obligation. Such written order may not be waived by either party or counsel; provided, however, and notwithstanding any other provision of law, the court shall not find that the non-custodial parent's pro rata share of such obligation is unjust or inappropriate on the basis that such share exceeds the portion of a public assistance grant which is attributable to a child or children. [In no instance shall the court order child support below twenty-five dollars per month.] Where the non-custodial parent's income is less than or equal to the poverty income guidelines amount for a single person as reported by the federal department of health and human services, unpaid child support arrears in excess of five hundred dollars shall not accrue. (i) Where either or both parties are unrepresented, the court shall not enter an order or judgment other than a temporary order pursuant to section two hundred thirty-seven of this article, that includes a provision for child support unless the unrepresented party or parties have received a copy of the child support standards chart promulgated by the commissioner of [social services] THE OFFICE OF TEMPORARY AND DISA- BILITY ASSISTANCE pursuant to subdivision two of section one hundred eleven-i of the social services law. Where either party is in receipt of child support enforcement services through the local social services district, the local social services district child support enforcement unit shall advise such party of the amount derived from application of the child support percentage and that such amount serves as a starting point for the determination of the child support award, and shall provide such party with a copy of the child support standards chart. [In no instance shall the court approve any voluntary support agreement or
compromise that includes an amount for child support less than twenty- five dollars per month.]
S 3. Paragraphs (d), (g) and (i) of subdivision 1 of section 413 of the family court act, paragraphs (d) and (i) as amended by chapter 567 of the laws of 1989 and paragraph (g) as amended by chapter 41 of the laws of 1992, are amended to read as follows: (d) Notwithstanding the provisions of paragraph (c) of this subdivi- sion, where the annual amount of the basic child support obligation would reduce the non-custodial parent's income below the poverty income guidelines amount for a single person as reported by the federal depart- ment of health and human services, [the basic child support obligation shall be twenty-five dollars per month or the difference between the non-custodial parent's income and the self-support reserve, whichever is greater]OR IF THE COURT FINDS THAT SUCH BASIC CHILD SUPPORT OBLIGATION IS UNJUST OR INAPPROPRIATE, WHICH FINDING SHALL BE BASED UPON CONSIDER- ATIONS OF THE FACTORS SET FORTH IN PARAGRAPH (F) OF THIS SUBDIVISION, THEN THE COURT SHALL ORDER THE NON-CUSTODIAL PARENT TO PAY SUCH AMOUNT OF THE CHILD SUPPORT AS THE COURT FINDS JUST AND APPROPRIATE. Notwith- standing the provisions of paragraph (c) of this subdivision, where the annual amount of the basic child support obligation would reduce the non-custodial parent's income below the self-support reserve but not below the poverty income guidelines amount for a single person as reported by the federal department of health and human services, the basic child support obligation shall be fifty dollars per month or the difference between the non-custodial parent's income and the self-sup- port reserve, whichever is greater, IN ADDITION TO ANY AMOUNTS THAT THE COURT MAY, IN ITS DISCRETION, ORDER IN ACCORDANCE WITH SUBPARAGRAPHS FOUR, FIVE, SIX AND/OR SEVEN OF PARAGRAPH (C) OF THIS SUBDIVISION. (g) Where the court finds that the non-custodial parent's pro rata share of the basic child support obligation is unjust or inappropriate, the court shall order the non-custodial parent to pay such amount of child support as the court finds just and appropriate, and the court shall set forth, in a written order, the factors it considered; the amount of each party's pro rata share of the basic child support obli- gation; and the reasons that the court did not order the basic child support obligation. Such written order may not be waived by either party or counsel; provided, however, and notwithstanding any other provision of law, including but not limited to section four hundred fifteen of this [act] PART, the court shall not find that the non-custo- dial parent's pro rata share of such obligation is unjust or inappropri- ate on the basis that such share exceeds the portion of a public assist- ance grant which is attributable to a child or children. [In no instance shall the court order child support below twenty-five dollars per month.] Where the non-custodial parent's income is less than or equal to the poverty income guidelines amount for a single person as reported by the federal department of health and human services, unpaid child support arrears in excess of five hundred dollars shall not accrue. (i) Where either or both parties are unrepresented, the court shall not enter an order or judgment other than a temporary order pursuant to section two hundred thirty-seven of [this article] THE DOMESTIC RELATIONS LAW, that includes a provision for child support unless the unrepresented party or parties have received a copy of the child support standards chart promulgated by the commissioner of [social services] THE OFFICE OF TEMPORARY AND DISABILITY ASSISTANCE pursuant to subdivision two of section one hundred eleven-i of the social services law. Where either party is in receipt of child support enforcement services through
the local social services district, the local social services district child support enforcement unit shall advise such party of the amount derived from application of the child support percentage and that such amount serves as a starting point for the determination of the child support award, and shall provide such party with a copy of the child support standards chart. [In no instance shall the court approve any voluntary support agreement or compromise that includes an amount for child support less than twenty-five dollars per month.] S 4. 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, 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 5. 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 6. 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 7. This act shall take effect on the ninetieth day after it shall have become a law.

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