What's happening
This bill revises child non-support laws to clarify when inability to pay is a defense and strengthens penalties for intentional non-support.
Why it matters
Clarifies the defense of inability to pay. The bill explicitly allows defendants in child non-support cases to use true inability to pay as an affirmative defense. However, it carefully limits this defense—parents who are “employable” but quit their jobs, reduce their earning ability, or do not try to get work cannot claim inability to pay.
Targets intentional avoidance of child support. By specifying that voluntary unemployment, underemployment, or lack of job-seeking does not excuse non-support, the bill aims to hold accountable those who intentionally evade their child support obligations.
Enhances penalties for repeat offenders. The bill strengthens enforcement by making it a felony (rather than just a misdemeanor) for those who have prior child non-support convictions within five years, increasing the legal consequences for chronic offenders.
Promotes fairness for those facing genuine hardship. By distinguishing between true financial hardship and willful avoidance, the bill seeks to protect individuals who are genuinely unable to pay from criminal conviction, while ensuring that children receive the support they are owed.
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Who cares
Headline styles
Can't Pay? Defense Allowed
Plain English, a few words. Used as the page title.
Sponsors
No co-sponsors yet.
History
- Referred to codes
- Referred to codes
Full text
2 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
1759
2019-2020 Regular Sessions
IN SENATE
January 16, 2019
Introduced by Sen. LANZA -- read twice and ordered printed, and when printed to be committed to the Committee on Codes
AN ACT to amend the penal law, in relation to non-support of a child
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
Section 1. Section 260.05 of the penal law, as amended by chapter 397 of the laws of 1997, the opening paragraph and subdivision 1 as amended and subdivision 2 as added by chapter 70 of the laws of 2008, is amended to read as follows: § 260.05 Non-support of a child in the second degree.
A person is guilty of non-support of a child when:
1. being a parent, guardian or other person legally charged with the care or custody of a child less than sixteen years old, he or she fails or refuses without lawful excuse to provide support for such child [when he or she is able to do so, or becomes unable to do so, when, though employable, he or she voluntarily terminates his or her employment, voluntarily reduces his or her earning capacity, or fails to diligently seek employment]; or
2. being a parent, guardian or other person obligated to make child support payments by an order of child support entered by a court of competent jurisdiction for a child less than eighteen years old, he or she knowingly fails or refuses without lawful excuse to provide support for such child [when he or she is able to do so, or becomes unable to do so, when, though employable, he or she voluntarily terminates his or her employment, voluntarily reduces his or her earning capacity, or fails to diligently seek employment].
In any prosecution under this section, it is an affirmative defense that the defendant is unable to provide support for the child. Provided that nothing in this paragraph shall constitute a defense to a prosecution for or preclude conviction of the offense defined in this section where the defendant becomes unable to provide support when, though
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD07442-01-9
S. 1759 2
employable, he or she voluntarily terminates his or her employment, voluntarily reduces his or her earning capacity, or fails to diligently seek employment.
Non-support of a child in the second degree is a class A misdemeanor.
§ 2. Section 260.06 of the penal law, as amended by chapter 70 of the laws of 2008, is amended to read as follows: § 260.06 Non-support of a child in the first degree.
A person is guilty of non-support of a child in the first degree when:
1. (a) being a parent, guardian or other person legally charged with the care or custody of a child less than sixteen years old, he or she fails or refuses without lawful excuse to provide support for such child [when he or she is able to do so]; or
(b) being a parent, guardian or other person obligated to make child support payments by an order of child support entered by a court of competent jurisdiction for a child less than eighteen years old, he or she fails or refuses without lawful excuse to provide support for such child [when he or she is able to do so]; and
2. he or she has previously been convicted in the preceding five years of a [crime defined in] violation of section 260.05 of this article or [a crime defined by the provisions] of this section.
In any prosecution under this section, it is an affirmative defense that the defendant is unable to provide support for the child. Provided that nothing in this paragraph shall constitute a defense to a prosecution for or preclude conviction of the offense defined in this section where the defendant becomes unable to provide support when, though employable, he or she voluntarily terminates his or her employment, voluntarily reduces his or her earning capacity, or fails to diligently seek employment.
Non-support of a child in the first degree is a class E felony.
§ 3. This act shall take effect on the first of November next succeeding the date on which it shall have become a law.
Reflowed for reading: line numbers and page breaks removed. Cite the official text.
Sponsor's memo
Title of bill
An act to amend the penal law, in relation to non-support of a child
Purpose
Requires a delinquent parent to demonstrate as an affirmative defense that the inability to pay excuses his or her failure to provide child support for their minor child.
Summary of provision
Section one amends sections 260.05 & 260.06 of the penal law by deleting the defendant's ability to pay from the definition of the offense found in such sections and adds to both sections a new provision that allows a defendant to show inability to pay as an affirmative defense.
Justification
Persons who are legally obligated to provide child support should not be permitted to escape criminal prosecution where they have deliberately taken action to avoid paying child support by engaging in wasteful personal spending and concealment of funds. Currently, parents guilty of the crime of non-support of a child may escape criminal liability simply because the prosecutor is tasked with proving the unknowable, that is, the parent's ability to pay. The ability to pay is an inherently subjec- tive question which requires that the prosecutor submit evidence not only of the parent's income and spending but proof which distinguishes between legitimate expenses and wasteful spending. Thisamendment will rightly place the burden of proving parent, who alone possesses the necessary information inability to pay on theto Codes/A.7052 - Referred to Codes to answer that question.
Legislative history
2018:S.6301- Referred to Codes/A.7052 - Referred to Codes
2017:S.6301- Passed Senate/A.7052- Referred to Codes
2016:S.2819- Passed Senate/A.3162- Referred to Codes
2015:S.2819- Passed Senate/A.3162- Referred to Codes
2014:S.3847- Passed Senate/A.7968- Referred to Codes
2012:S.2945- PassedSenate
2011:S.2945- PassedSenate
2010:S.7004- Referred to Codes /A.10169 - Referred to Codes
Fiscal implication
None.
Effective date
This act shall take effect on the first of November next succeeding the date on which it shall have become a law.
Summaries, headlines and scores are AI-generated from the official bill text. How we score bills. Source: NYS Open Legislation.