S T A T E O F N E W Y O R K
________________________________________________________________________
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:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10641-05-1
S. 5473 2 A. 7931
(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
S. 5473 3 A. 7931
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
S. 5473 4 A. 7931
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.