Relates to enforcement of orders of child support against inmates

Summary of provisions

Section 1 of the bill amends the correction law to add a new section 149-a requiring that all people residing in a correctional facility be notified of their possible eligibility to modify an existing child support order based on their "substantial change in circumstances."

Section 2 of the bill amends section 390.30 of the criminal procedure law, to require that the presentence investigation include gathering information with respect to child support obligations.

Section 3 of the bill amends section 236 of the domestic relations law to give the court discretion to stay an order of child support for up to 180 days following the release of a non-custodial parent from a period of incarceration.

Section 6 of the bill amends section 13 of Chapter 182 of the Laws of 2010 to provide that persons whose incarceration began prior to the effective date of such chapter shall have the ability to modify their child support orders.

Justification

Parents have an obligation to provide for their children in every way possible, and that includes making timely child support payments based on their income and ability to pay. Child support programs, criminal justice agencies, and the courts all play a critical role in the development of fair child support policies for noncustodial parents in prison and the parole system. While New York has taken some steps to address the effects of incarceration on the child support obligations of people in prison, systemic reform has not gone far enough.

Under a 2010 law, New Yorkers entering the prison system are allowed to apply for a modification of their child support order based on the substantial change in their circumstances. Before the law was enacted, incarcerated individuals were barred from filing for a modification based on a Court of Appeals ruling.

The 2010 law, however, does not apply to people who were incarcerated prior to the law taking effect. Consequently, this population is not permitted to even apply to have their child support order changed despite the fact that they are "involuntarily unemployed." And, for them, the monthly child support obligations at the time of imprisonment continue to accrue throughout their incarceration, sometimes resulting in thousands upon thousands of dollars in back support payments - an unrealistic sum that they will never be able to pay in a lifetime. They emerge from prison with enormous debts, severely hampering their chances for successful reentry into society by making employment - already difficult with a conviction history -- counterproductive to their economic success and their ability to provide for their children.

The current inability to stay or modify child support orders compounds the difficulties noncustodial parents face in the reentry process. If there is a court order for support, continuation of payments can be made a condition of release to parole and a non-custodial parent can face reincarnation if they are unable to pay. Moreover, a parent reentering society from the prison justice system can lose their drivers license and face additional jail time if they fail to make timely child support payments. Without a driver's license, parents in many rural upstate counties and suburban counties with limited access to public transportation are unable to travel to and from work. This alone would make it difficult - if not impossible - for non-custodial parents to fulfill their financial responsibilities to their children. New York is doing a disservice to children and families when a child support modification is deserved but not allowed.

Motivating efforts to enable all men and women who are incarcerated and who are eligible to apply for a child support modification are cases like that of 40-year-old Glenn Martin. As noted in Prisoner's Dilemma in the March 14, 2011, edition of American Prospect, "Mr. Martin was convicted in 1995 for an armed robbery of a New York City jewelry store and was sentenced to six years in prison. When he went to jail, he had $300 in outstanding child-support debt and owed $100 a week as part of his regular court-ordered payment. He was worried because he'd have no income in prison and knew he'd emerge owing more money. He guessed at the time it would total $3,000 or $4,000.

When he got out in June 2001, he decided to turn his life around, get a job, and stay out of trouble. But then he found out about his child-support bill. Not only had his payments accrued during the six years but the state had tacked on 9 percent compounding interest. The bill was $50,000."

There are many barriers to a person's ability to make a successful transition from prison to community and family life, including getting a living wage job, finding a safe and affordable place to live and having access to supportive services. These challenges begin the day a person is released from prison. It is

unrealistic to expect that every formerly incarcerated person will be able to begin fulfilling their child support obligations immediately, and that is why the bill gives the court discretion to stay an order for up to 180 days.

Fiscal impact

Minimal.

Effective date

90 days after becoming law.