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.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A9724
SPONSOR: Eachus TITLE OF BILL:
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
PURPOSE OR GENERAL IDEA OF BILL:
To create a child support program for children whose parents are killed
as a result of reckless driving.
SUMMARY OF PROVISIONS:
Section one of this bill adds a new section 419 to the Family Court
Act to provide that an individual convicted of vehicular manslaughter in
the first or second degree or aggravated vehicular homicide who causes
the death of a parent as a result of such action shall provide child
support for the surviving children of such deceased parent.
Sections two and three make conforming changes to section 413-A of the
Family Court Act.
Section four makes a conforming change to section 111-n of the Social
Services Law.
Section five sets the effective date.
JUSTIFICATION:
New York State has enforced a policy of child support, or ongoing, peri-
odic payments made by a parent for the support of a child after the
dissolution of a household, for decades. Reformed and modernized in 1989
with the passage of the Child Support Standards Act, child support obli-
gations are set when judges examine both parents' incomes and assets,
ordering the noncustodial parent to pay the custodial parent a certain
amount based on their adjusted gross income and the number of children
in custody. Child support is a useful way to correct for differences in
the financial circumstances between parents, and is traditionally viewed
as a means to ensure that a noncustodial parent with a greater assets
who no longer retains custody of a child is still responsible for ensur-
ing that the custodial parent has the proper levels of support to rear
such child. Child support orders are continued until the child reaches
age 21.
This bill applies this same principle of restitution to instances where
individuals convicted of certain vehicular crimes have caused the death
of a custodial parent as a result of such crime(s). In this case, the
driver will be required to pay child support, in an amount deemed fair
and reasonable by a judge, to a surviving parent or guardian responsible
for rearing the child who has lost his or her parent as at result of the
driver's actions. In the event that both parents were killed in the car
crash and the child retains no legal guardian and has been placed in
foster care, the driver must pay child support to the state, consistent
with existing child support policy. The judge is required under this
bill to closely examine the income and assets of all parties when
setting a child support order, giving strong consideration to the finan-
cial status of the driver upon release from incarceration and court
fines and fees that such driver may already have paid. The court can in
no circumstance create a child support order that would place an undue
financial burden upon the driver after the examination of such factors.
The judge shall also retain discretion when determining when to start
the child support payments and how long they will
last, accounting for the age of the surviving child and length of the
driver's incarceration. The bill also includes a provision to offset any
child support orders by civil awards already paid by the driver from
claims such as a wrongful death lawsuit.
Modeled after similar legislation introduced in several other states and
recently passed in Tennessee, this bill covers the crimes of vehicular
manslaughter in the second degree, vehicular manslaughter in the first
degree, and aggravated vehicular homicide, all of which involve intoxi-
cation by drugs or alcohol which is presumed by law to have caused the
death(s) in the car crash absent evidence to the contrary. Thus, all
three crimes involve elements of serious recklessness and are considered
felonies under NYS's penal code with mandatory incarceration periods.
While there is nothing that policymakers can do to reverse the reckless-
ness inherent in these vehicular crimes and bring a surviving child's
parents back to life, it is the sponsor's hope that this bill will
further disincentivize such reckless driving as well as provide recom-
pense for families whose economic prospects may be severely impacted by
the loss of income of one or more parents killed by a drunk driver.
PRIOR LEGISLATIVE HISTORY:
2022: S9489 - Referred to Rules
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
To be determined.
EFFECTIVE DATE:
This act shall take effect immediately and shall apply to all offenses
committed on or after such date.
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.
