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. LBD06941-01-3A. 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 definedA. 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 amountA. 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.
