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.
STATE OF NEW YORK
________________________________________________________________________
2572
2023-2024 Regular Sessions
IN SENATE
January 23, 2023
___________
Introduced by Sen. GOUNARDES -- read twice and ordered printed, and when
printed to be committed 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;
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06941-01-3
S. 2572 2
1 (iii) to the extent not already included in gross income in subpara-
2 graphs (i) and (ii) of this paragraph, the amount of income or compen-
3 sation voluntarily deferred and income received, if any, from the
4 following sources:
5 (A) workers' compensation,
6 (B) disability benefits,
7 (C) unemployment insurance benefits,
8 (D) social security benefits,
9 (E) veterans benefits,
10 (F) pensions and retirement benefits,
11 (G) fellowships and stipends, and
12 (H) annuity payments;
13 (iv) at the discretion of the court, the court may attribute or impute
14 income from such other resources as may be available to the vehicular
15 assailant, including, but not limited to:
16 (A) non-income producing assets,
17 (B) meals, lodging, memberships, automobiles, or other perquisites
18 that are provided as part of compensation for employment to the extent
19 that such perquisites constitute expenditures for personal use, or which
20 expenditures directly or indirectly confer personal economic benefits,
21 (C) fringe benefits provided as part of compensation for employment,
22 (D) money, goods, or services provided by relatives and friends, and
23 (E) an amount imputed as income based upon the vehicular assailant's
24 former resources or income, if the court determines that an assailant
25 has reduced resources or income in order to reduce or avoid the
26 assailant's obligation for child support; provided that incarceration
27 shall not be considered voluntary unemployment;
28 (v) to the extent not already included in gross income in subpara-
29 graphs (i) and (ii) of this paragraph, the following self-employment
30 deductions attributable to self-employment carried on by the taxpayer:
31 (A) any depreciation deduction greater than depreciation calculated on
32 a straight-line basis for the purpose of determining business income or
33 investment credits, and
34 (B) entertainment and travel allowances deducted from business income
35 to the extent said allowances reduce personal expenditures;
36 (vi) the following shall be deducted from income prior to applying the
37 provisions of subdivision three of this section:
38 (A) unreimbursed employee business expenses except to the extent said
39 expenses reduce personal expenditures,
40 (B) alimony or maintenance actually paid to a spouse pursuant to court
41 order or validly executed written agreement,
42 (C) child support actually paid pursuant to court order or written
43 agreement on behalf of any child for whom the vehicular assailant has a
44 legal duty of support and who is not subject to the instant action,
45 (D) public assistance,
46 (E) supplemental security income,
47 (F) New York city or Yonkers income or earnings taxes actually paid,
48 and
49 (G) federal insurance contributions act (FICA) taxes actually paid.
50 (d) "Self-support reserve" shall mean one hundred thirty-five percent
51 of the poverty income guidelines amount for a single person as reported
52 by the federal department of health and human services.
53 (e) "Surviving child" shall mean an individual or individuals under
54 the age of twenty-one who was under the physical care and supervision of
55 a deceased parent or guardian.
S. 2572 3
1 (f) "Surviving parent or guardian" shall mean a custodial parent,
2 legal guardian, or other person retaining legal custody of a surviving
3 child or any other person with whom a surviving child lives who has
4 assumed responsibility for the day-to-day care and custody of the child
5 after the death of one or both deceased parents or guardians, as defined
6 in paragraph (b) of this subdivision, by a vehicular assailant, as
7 defined in paragraph (g) of this subdivision.
8 (g) "Vehicular assailant" shall mean an individual convicted of vehic-
9 ular manslaughter in the second degree as described in section 125.12 of
10 the penal law, vehicular manslaughter in the first degree as described
11 in section 125.13 of the penal law, or aggravated vehicular homicide as
12 described in section 125.14 of the penal law.
13 2. In the event that a vehicular assailant, as defined in paragraph
14 (g) of subdivision one of this section causes the death of a parent or
15 guardian of an individual under the age of twenty-one, such assailant
16 shall be chargeable with the support of such surviving child, as defined
17 in paragraph (e) of subdivision one of this section, and, if possessed
18 of sufficient means or able to earn such means, shall be required to pay
19 child support, as defined in paragraph (a) of subdivision one of this
20 section, to a surviving parent or guardian in a fair and reasonable sum
21 as the court may determine. The court shall make its award for child
22 support pursuant to the provisions of this section.
23 3. The court shall calculate the child support obligation in an amount
24 it deems to be just and appropriate. Such finding shall be based upon
25 consideration of the following factors:
26 (a) the financial resources of the vehicular assailant and those of
27 the child and surviving parent or guardian;
28 (b) the income, as calculated pursuant to paragraph (c) of subdivision
29 one of this section, of the vehicular assailant and of the surviving
30 parent or guardian;
31 (c) the physical and emotional health of the child and his or her
32 special needs and aptitudes;
33 (d) the standard of living the child would have enjoyed had his or her
34 parent not been killed by the vehicular assailant;
35 (e) the tax consequences to the parties;
36 (f) the educational needs of the vehicular assailant and/or the child;
37 (g) the needs of the child or children of the vehicular assailant for
38 whom the assailant is providing support who are not subject to the
39 instant action and whose support has not been deducted from income
40 pursuant to clause (C) of subparagraph (vi) of paragraph (c) of subdivi-
41 sion one of this section, and the financial resources of any person
42 obligated to support such child or children, provided, however, that
43 this factor may apply only if the resources available to support such
44 child or children are less than the resources available to support the
45 child or children who are subject to the instant action;
46 (h) the length of the sentence to be served or currently being served
47 by the vehicular assailant for the crimes causing the death of the
48 deceased parent or guardian or for any other crime;
49 (i) the educational and employment needs of the vehicular assailant
50 after his or her period of incarceration, including the need for the
51 assailant to find new employment and the ease with which he or she may
52 be able to do so;
53 (j) child care expenses of the surviving parent or guardian; and
54 (k) any other factors the court determines are relevant in each case.
55 The court shall set forth, in a written order, the factors it considered
S. 2572 4
1 when determining the amount of the child support obligation to be paid
2 by a vehicular assailant to a surviving parent or guardian.
3 4. The court shall give strong consideration to the financial status
4 of the vehicular assailant upon release from incarceration, accounting
5 for court fines and fees and other debts to the state previously paid or
6 to be paid by such assailant. In no case shall the court order an amount
7 of basic child support obligation which would place an undue or exces-
8 sive financial burden upon a vehicular assailant and/or severely and
9 adversely impact their economic condition upon release from incarcera-
10 tion, giving full consideration to the state of such assailant's finan-
11 cial resources and barriers he or she may face in future employment.
12 5. Notwithstanding the provisions of subdivision three of this
13 section, where the annual amount of the child support obligation would
14 reduce the vehicular assailant's income below the poverty income guide-
15 lines amount for a single person as reported by the federal department
16 of health and human services, the basic child support obligation shall
17 be twenty-five dollars per month. Notwithstanding the provisions of
18 subdivision three of this section, where the annual amount of the child
19 support obligation would reduce the vehicular assailant's income below
20 the self-support reserve but not below the poverty income guidelines
21 amount for a single person as reported by the federal department of
22 health and human services, the child support obligation shall be fifty
23 dollars per month or the difference between the vehicular assailant's
24 income and the self-support reserve, whichever is greater.
25 6. Where a vehicular assailant is or may be entitled to receive non-
26 recurring payments from extraordinary sources not otherwise considered
27 as income pursuant to this section, including but not limited to:
28 (a) life insurance policies;
29 (b) discharges of indebtedness;
30 (c) recovery of bad debts and delinquency amounts;
31 (d) gifts and inheritances; and
32 (e) lottery winnings,
33 the court, in accordance with subdivision three of this section, may
34 allocate a proportion of the same to child support, and such amount
35 shall be paid in a manner determined by the court.
36 7. A validly executed agreement or stipulation voluntarily entered
37 into between the parties after the effective date of this section
38 presented to the court for incorporation in an order or judgment shall
39 include a provision stating that the parties have been advised of the
40 provisions of this section. Nothing contained in this section shall be
41 construed to alter the rights of the parties to voluntarily enter into
42 validly executed agreements or stipulations which deviate from the child
43 support obligation provided herein provided that such agreements or
44 stipulations comply with the provisions of this section.
45 8. In addition to financial disclosure required in section four
46 hundred twenty-four-a of this article, the court may require that the
47 income and/or expenses of any party be verified with documentation
48 including, but not limited to, past and present income tax returns,
49 employer statements, pay stubs, corporate, business, or partnership
50 books and records, corporate and business tax returns, and receipts for
51 expenses or such other means of verification as the court determines
52 appropriate. Nothing herein shall affect any party's right to pursue
53 discovery pursuant to this chapter or the civil practice law and rules.
54 9. The court shall retain discretion in determining (a) the date by
55 which a vehicular assailant shall be required to begin the child support
56 payments described herein and (b) the duration of time of such payments,
S. 2572 5
1 giving due account to the age of the surviving child and the length of
2 the vehicular assailant's incarceration, provided that child support
3 payments shall only be ordered for surviving children who are under the
4 age of twenty-one at the time of the commission of the crime by the
5 vehicular assailant which caused the death of such surviving child's
6 deceased parent or guardian.
7 10. If a surviving child entitled to receive child support under this
8 section has been placed in the custody of a local social services
9 district in either foster care or a residential facility, then any
10 support ordered under this section shall be paid to the local social
11 services district responsible for such placement or facility.
12 11. Notwithstanding any other provision of this section to the
13 contrary, the amount of the child support obligation described herein
14 shall be reduced by the amount of any civil award paid by a vehicular
15 assailant to a surviving child or surviving parent or guardian pursuant
16 to an action brought against such assailant by such child or parent or
17 guardian.
18 § 2. Paragraph (b) of subdivision 3 of section 413-a of the family
19 court act, as added by chapter 398 of the laws of 1997, is amended to
20 read as follows:
21 (b) Where such objections are timely filed, the cost of living adjust-
22 ment shall not take effect, and a hearing on the adjustment of such
23 order shall be granted pursuant to the provisions of this section, which
24 shall result in either:
25 (1) the issuance by the court of a new order of support in accordance
26 with the child support standards as set forth in section four hundred
27 thirteen or four hundred nineteen of this article; or
28 (2) where application of the child support standards as set forth in
29 section four hundred thirteen or four hundred nineteen of this article
30 results in a determination that no adjustment is appropriate, an order
31 of no adjustment.
32 § 3. Section 413-a of the family court act is amended by adding a new
33 subdivision 6 to read as follows:
34 6. The provisions of this section shall apply to child support orders
35 issued pursuant to section four hundred nineteen of this part.
36 § 4. Paragraph (d) of subdivision 2 of section 111-n of the social
37 services law, as added by chapter 398 of the laws of 1997, is amended to
38 read as follows:
39 (d) "Order" shall mean an original, modified, or adjusted order of
40 support; or, after a hearing in response to objections to a cost of
41 living adjustment as set forth in an adjusted order of support, the
42 order of support reflecting the application of the child support stand-
43 ards pursuant to section two hundred forty of the domestic relations law
44 or section four hundred thirteen or four hundred nineteen of the family
45 court act, or an order of no adjustment.
46 § 5. This act shall take effect immediately and shall apply to all
47 offenses and actions commenced on and after such effective date.
