Bill Text: NY A09724 | 2023-2024 | General Assembly | Introduced


Bill Title: Imposes a duty on a vehicular assailant to support a surviving child of a parent or guardian killed by such person; defines income; provides for a determination of support.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2024-04-03 - referred to judiciary [A09724 Detail]

Download: New_York-2023-A09724-Introduced.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                          9724

                   IN ASSEMBLY

                                      April 3, 2024
                                       ___________

        Introduced by M. of A. EACHUS -- read once and referred to the Committee
          on Judiciary

        AN  ACT  to  amend  the family court act and the social services law, in
          relation to a vehicular assailant's duty to support a surviving child

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section 1. The family court act is amended by adding a new section 419
     2  to read as follows:
     3    §  419.  Vehicular  assailant's duty to support a surviving child.  1.
     4  For purposes of this section, the following definitions shall apply:
     5    (a) "Child support" shall mean a sum to  be  paid  pursuant  to  court
     6  order  or  decree by a vehicular assailant for the care, maintenance and
     7  education of any unemancipated surviving child.
     8    (b) "Deceased parent or guardian" shall mean a custodial parent, legal
     9  guardian, or other person who prior to their death had legal custody  of
    10  a  surviving child or any other person with whom a surviving child lived
    11  who had assumed responsibility for the day-to-day care  and  custody  of
    12  the child and whose death was caused by a vehicular assailant.
    13    (c)  "Income"  shall mean, but shall not be limited to, the sum of the
    14  amounts determined by the application of subparagraphs (i), (ii), (iii),
    15  (iv) and (v) of this paragraph reduced by the amount determined  by  the
    16  application of subparagraph (vi) of this paragraph:
    17    (i) gross income as should have been reported or should be reported in
    18  the most recent federal income tax return. If an individual files his or
    19  her  federal  income tax return as a married person filing jointly, such
    20  person shall be required to prepare a form, sworn to  under  penalty  of
    21  law, disclosing his or her gross income individually;
    22    (ii)  to  the  extent not already included in gross income in subpara-
    23  graph (i) of this paragraph, investment income reduced by sums  expended
    24  in connection with such investment;
    25    (iii)  to  the extent not already included in gross income in subpara-
    26  graphs (i) and (ii) of this paragraph, the amount of income  or  compen-
    27  sation  voluntarily  deferred  and  income  received,  if  any, from the
    28  following sources:

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD06941-01-3

        A. 9724                             2

     1    (A) workers' compensation,
     2    (B) disability benefits,
     3    (C) unemployment insurance benefits,
     4    (D) social security benefits,
     5    (E) veterans benefits,
     6    (F) pensions and retirement benefits,
     7    (G) fellowships and stipends, and
     8    (H) annuity payments;
     9    (iv) at the discretion of the court, the court may attribute or impute
    10  income  from  such  other resources as may be available to the vehicular
    11  assailant, including, but not limited to:
    12    (A) non-income producing assets,
    13    (B) meals, lodging, memberships,  automobiles,  or  other  perquisites
    14  that  are  provided as part of compensation for employment to the extent
    15  that such perquisites constitute expenditures for personal use, or which
    16  expenditures directly or indirectly confer personal economic benefits,
    17    (C) fringe benefits provided as part of compensation for employment,
    18    (D) money, goods, or services provided by relatives and friends, and
    19    (E) an amount imputed as income based upon the  vehicular  assailant's
    20  former  resources  or  income, if the court determines that an assailant
    21  has reduced resources  or  income  in  order  to  reduce  or  avoid  the
    22  assailant's  obligation  for  child support; provided that incarceration
    23  shall not be considered voluntary unemployment;
    24    (v) to the extent not already included in  gross  income  in  subpara-
    25  graphs  (i)  and  (ii)  of this paragraph, the following self-employment
    26  deductions attributable to self-employment carried on by the taxpayer:
    27    (A) any depreciation deduction greater than depreciation calculated on
    28  a straight-line basis for the purpose of determining business income  or
    29  investment credits, and
    30    (B)  entertainment and travel allowances deducted from business income
    31  to the extent said allowances reduce personal expenditures;
    32    (vi) the following shall be deducted from income prior to applying the
    33  provisions of subdivision three of this section:
    34    (A) unreimbursed employee business expenses except to the extent  said
    35  expenses reduce personal expenditures,
    36    (B) alimony or maintenance actually paid to a spouse pursuant to court
    37  order or validly executed written agreement,
    38    (C)  child  support  actually  paid pursuant to court order or written
    39  agreement on behalf of any child for whom the vehicular assailant has  a
    40  legal duty of support and who is not subject to the instant action,
    41    (D) public assistance,
    42    (E) supplemental security income,
    43    (F)  New  York city or Yonkers income or earnings taxes actually paid,
    44  and
    45    (G) federal insurance contributions act (FICA) taxes actually paid.
    46    (d) "Self-support reserve" shall mean one hundred thirty-five  percent
    47  of  the poverty income guidelines amount for a single person as reported
    48  by the federal department of health and human services.
    49    (e) "Surviving child" shall mean an individual  or  individuals  under
    50  the age of twenty-one who was under the physical care and supervision of
    51  a deceased parent or guardian.
    52    (f)  "Surviving  parent  or  guardian"  shall mean a custodial parent,
    53  legal guardian, or other person retaining legal custody of  a  surviving
    54  child  or  any  other  person  with whom a surviving child lives who has
    55  assumed responsibility for the day-to-day care and custody of the  child
    56  after the death of one or both deceased parents or guardians, as defined

        A. 9724                             3

     1  in  paragraph  (b)  of  this  subdivision,  by a vehicular assailant, as
     2  defined in paragraph (g) of this subdivision.
     3    (g) "Vehicular assailant" shall mean an individual convicted of vehic-
     4  ular manslaughter in the second degree as described in section 125.12 of
     5  the  penal  law, vehicular manslaughter in the first degree as described
     6  in section 125.13 of the penal law, or aggravated vehicular homicide  as
     7  described in section 125.14 of the penal law.
     8    2.  In  the  event that a vehicular assailant, as defined in paragraph
     9  (g) of subdivision one of this section causes the death of a  parent  or
    10  guardian  of  an  individual under the age of twenty-one, such assailant
    11  shall be chargeable with the support of such surviving child, as defined
    12  in paragraph (e) of subdivision one of this section, and,  if  possessed
    13  of sufficient means or able to earn such means, shall be required to pay
    14  child  support,  as  defined in paragraph (a) of subdivision one of this
    15  section, to a surviving parent or guardian in a fair and reasonable  sum
    16  as  the  court  may  determine. The court shall make its award for child
    17  support pursuant to the provisions of this section.
    18    3. The court shall calculate the child support obligation in an amount
    19  it deems to be just and appropriate. Such finding shall  be  based  upon
    20  consideration of the following factors:
    21    (a)  the  financial  resources of the vehicular assailant and those of
    22  the child and surviving parent or guardian;
    23    (b) the income, as calculated pursuant to paragraph (c) of subdivision
    24  one of this section, of the vehicular assailant  and  of  the  surviving
    25  parent or guardian;
    26    (c)  the  physical  and  emotional  health of the child and his or her
    27  special needs and aptitudes;
    28    (d) the standard of living the child would have enjoyed had his or her
    29  parent not been killed by the vehicular assailant;
    30    (e) the tax consequences to the parties;
    31    (f) the educational needs of the vehicular assailant and/or the child;
    32    (g) the needs of the child or children of the vehicular assailant  for
    33  whom  the  assailant  is  providing  support  who are not subject to the
    34  instant action and whose support  has  not  been  deducted  from  income
    35  pursuant to clause (C) of subparagraph (vi) of paragraph (c) of subdivi-
    36  sion  one  of  this  section,  and the financial resources of any person
    37  obligated to support such child or  children,  provided,  however,  that
    38  this  factor  may  apply only if the resources available to support such
    39  child or children are less than the resources available to  support  the
    40  child or children who are subject to the instant action;
    41    (h)  the length of the sentence to be served or currently being served
    42  by the vehicular assailant for the  crimes  causing  the  death  of  the
    43  deceased parent or guardian or for any other crime;
    44    (i)  the  educational  and employment needs of the vehicular assailant
    45  after his or her period of incarceration, including  the  need  for  the
    46  assailant  to  find new employment and the ease with which he or she may
    47  be able to do so;
    48    (j) child care expenses of the surviving parent or guardian; and
    49    (k) any other factors the court determines are relevant in each  case.
    50  The court shall set forth, in a written order, the factors it considered
    51  when  determining  the amount of the child support obligation to be paid
    52  by a vehicular assailant to a surviving parent or guardian.
    53    4. The court shall give strong consideration to the  financial  status
    54  of  the  vehicular assailant upon release from incarceration, accounting
    55  for court fines and fees and other debts to the state previously paid or
    56  to be paid by such assailant. In no case shall the court order an amount

        A. 9724                             4

     1  of basic child support obligation which would place an undue  or  exces-
     2  sive  financial  burden  upon  a vehicular assailant and/or severely and
     3  adversely impact their economic condition upon release  from  incarcera-
     4  tion,  giving full consideration to the state of such assailant's finan-
     5  cial resources and barriers he or she may face in future employment.
     6    5.  Notwithstanding  the  provisions  of  subdivision  three  of  this
     7  section,  where  the annual amount of the child support obligation would
     8  reduce the vehicular assailant's income below the poverty income  guide-
     9  lines  amount  for a single person as reported by the federal department
    10  of health and human services, the basic child support  obligation  shall
    11  be  twenty-five  dollars  per  month.  Notwithstanding the provisions of
    12  subdivision three of this section, where the annual amount of the  child
    13  support  obligation  would reduce the vehicular assailant's income below
    14  the self-support reserve but not below  the  poverty  income  guidelines
    15  amount  for  a  single  person  as reported by the federal department of
    16  health and human services, the child support obligation shall  be  fifty
    17  dollars  per  month  or the difference between the vehicular assailant's
    18  income and the self-support reserve, whichever is greater.
    19    6. Where a vehicular assailant is or may be entitled to  receive  non-
    20  recurring  payments  from extraordinary sources not otherwise considered
    21  as income pursuant to this section, including but not limited to:
    22    (a) life insurance policies;
    23    (b) discharges of indebtedness;
    24    (c) recovery of bad debts and delinquency amounts;
    25    (d) gifts and inheritances; and
    26    (e) lottery winnings,
    27  the court, in accordance with subdivision three  of  this  section,  may
    28  allocate  a  proportion  of  the  same to child support, and such amount
    29  shall be paid in a manner determined by the court.
    30    7. A validly executed agreement  or  stipulation  voluntarily  entered
    31  into  between  the  parties  after  the  effective  date of this section
    32  presented to the court for incorporation in an order or  judgment  shall
    33  include  a  provision  stating that the parties have been advised of the
    34  provisions of this section. Nothing contained in this section  shall  be
    35  construed  to  alter the rights of the parties to voluntarily enter into
    36  validly executed agreements or stipulations which deviate from the child
    37  support obligation provided herein  provided  that  such  agreements  or
    38  stipulations comply with the provisions of this section.
    39    8.  In  addition  to  financial  disclosure  required  in section four
    40  hundred twenty-four-a of this article, the court may  require  that  the
    41  income  and/or  expenses  of  any  party  be verified with documentation
    42  including, but not limited to, past  and  present  income  tax  returns,
    43  employer  statements,  pay  stubs,  corporate,  business, or partnership
    44  books and records, corporate and business tax returns, and receipts  for
    45  expenses  or  such  other  means of verification as the court determines
    46  appropriate. Nothing herein shall affect any  party's  right  to  pursue
    47  discovery pursuant to this chapter or the civil practice law and rules.
    48    9.  The  court  shall retain discretion in determining (a) the date by
    49  which a vehicular assailant shall be required to begin the child support
    50  payments described herein and (b) the duration of time of such payments,
    51  giving due account to the age of the surviving child and the  length  of
    52  the  vehicular  assailant's  incarceration,  provided that child support
    53  payments shall only be ordered for surviving children who are under  the
    54  age  of  twenty-one  at  the  time of the commission of the crime by the
    55  vehicular assailant which caused the death  of  such  surviving  child's
    56  deceased parent or guardian.

        A. 9724                             5

     1    10.  If a surviving child entitled to receive child support under this
     2  section  has  been  placed  in  the  custody  of a local social services
     3  district in either foster care  or  a  residential  facility,  then  any
     4  support  ordered  under  this  section shall be paid to the local social
     5  services district responsible for such placement or facility.
     6    11.    Notwithstanding  any  other  provision  of  this section to the
     7  contrary, the amount of the child support  obligation  described  herein
     8  shall  be  reduced  by the amount of any civil award paid by a vehicular
     9  assailant to a surviving child or surviving parent or guardian  pursuant
    10  to  an  action brought against such assailant by such child or parent or
    11  guardian.
    12    § 2. Paragraph (b) of subdivision 3 of section  413-a  of  the  family
    13  court  act,  as  added by chapter 398 of the laws of 1997, is amended to
    14  read as follows:
    15    (b) Where such objections are timely filed, the cost of living adjust-
    16  ment shall not take effect, and a hearing  on  the  adjustment  of  such
    17  order shall be granted pursuant to the provisions of this section, which
    18  shall result in either:
    19    (1)  the issuance by the court of a new order of support in accordance
    20  with the child support standards as set forth in  section  four  hundred
    21  thirteen or four hundred nineteen of this article; or
    22    (2)  where  application of the child support standards as set forth in
    23  section four hundred thirteen or four hundred nineteen of  this  article
    24  results  in  a determination that no adjustment is appropriate, an order
    25  of no adjustment.
    26    § 3. Section 413-a of the family court act is amended by adding a  new
    27  subdivision 6 to read as follows:
    28    6.  The provisions of this section shall apply to child support orders
    29  issued pursuant to section four hundred nineteen of this part.
    30    § 4. Paragraph (d) of subdivision 2 of section  111-n  of  the  social
    31  services law, as added by chapter 398 of the laws of 1997, is amended to
    32  read as follows:
    33    (d)  "Order"  shall  mean  an original, modified, or adjusted order of
    34  support; or, after a hearing in response to  objections  to  a  cost  of
    35  living  adjustment  as  set  forth  in an adjusted order of support, the
    36  order of support reflecting the application of the child support  stand-
    37  ards pursuant to section two hundred forty of the domestic relations law
    38  or  section four hundred thirteen or four hundred nineteen of the family
    39  court act, or an order of no adjustment.
    40    § 5. This act shall take effect immediately and  shall  apply  to  all
    41  offenses and actions commenced on and after such effective date.
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