S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9505
 
                           I N  A S S E M B L Y
 
                              March 15, 2024
                                ___________
 
 Introduced  by M. of A. McMAHON -- read once and referred to the Commit-
   tee on Judiciary
 
 AN ACT to amend the family court act and the domestic relations law,  in
   relation to establishment and modification of child support orders
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section 1. Clause (iv) of subparagraph 5 of paragraph (b) of  subdivi-
 sion 1 of section 413 of the family court act, as amended by chapter 567
 of the laws of 1989, is amended to read as follows:
   (iv) at the discretion of the court, the court may attribute or impute
 income  from[,]  such other resources as may be available to the parent,
 including, but not limited to:
   (A) non-income producing assets,
   (B) meals, lodging, memberships, automobiles or other perquisites that
 are provided as part of compensation for employment to the  extent  that
 such  perquisites  constitute  expenditures  for  personal use, or which
 expenditures directly or [indirecly] INDIRECTLY confer personal economic
 benefits,
   (C) fringe benefits provided as part of compensation  for  employment,
 and
   (D) money, goods, or services provided by relatives and friends;
   IN DETERMINING THE AMOUNT OF INCOME THAT MAY BE ATTRIBUTED OR IMPUTED,
 THE  COURT  SHALL  CONSIDER THE SPECIFIC CIRCUMSTANCES OF THE PARENT, TO
 THE EXTENT KNOWN, INCLUDING SUCH FACTORS AS THE PARENT'S  ASSETS,  RESI-
 DENCE,  EMPLOYMENT  AND EARNING HISTORY, JOB SKILLS, EDUCATIONAL ATTAIN-
 MENT, LITERACY, AGE, HEALTH, CRIMINAL RECORD AND OTHER EMPLOYMENT BARRI-
 ERS, RECORD OF SEEKING WORK, THE LOCAL JOB MARKET, THE  AVAILABILITY  OF
 EMPLOYERS  WILLING  TO HIRE THE PARENT, PREVAILING EARNINGS LEVEL IN THE
 LOCAL COMMUNITY, AND OTHER RELEVANT BACKGROUND FACTORS SUCH AS THE  AGE,
 NUMBER,  NEEDS,  AND  CARE  OF THE CHILDREN COVERED BY THE CHILD SUPPORT
 ORDER. ATTRIBUTION OR IMPUTATION  OF  INCOME  SHALL  BE  ACCOMPANIED  BY
 SPECIFIC WRITTEN FINDINGS IDENTIFYING THE BASIS OR BASES FOR SUCH DETER-
 MINATION UTILIZING FACTORS REQUIRED OR PERMITTED TO BE CONSIDERED PURSU-
 ANT TO THIS CLAUSE;
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD14925-01-4
 A. 9505                             2
 
   § 2. Clause (iv) of subparagraph 5 of paragraph (b) of subdivision 1-b
 of section 240 of the domestic relations law, as added by chapter 567 of
 the laws of 1989, is amended to read as follows:
   (iv) at the discretion of the court, the court may attribute or impute
 income  from[,]  such other resources as may be available to the parent,
 including, but not limited to:
   (A) non-income producing assets,
   (B) meals, lodging, memberships, automobiles or other perquisites that
 are provided as part of compensation for employment to the  extent  that
 such  perquisites  constitute  expenditures  for  personal use, or which
 expenditures directly or [indirecly] INDIRECTLY confer personal economic
 benefits,
   (C) fringe benefits provided as part of compensation  for  employment,
 and
   (D) money, goods, or services provided by relatives and friends;
   IN DETERMINING THE AMOUNT OF INCOME THAT MAY BE ATTRIBUTED OR IMPUTED,
 THE  COURT  SHALL  CONSIDER THE SPECIFIC CIRCUMSTANCES OF THE PARENT, TO
 THE EXTENT KNOWN, INCLUDING SUCH FACTORS AS THE PARENT'S  ASSETS,  RESI-
 DENCE,  EMPLOYMENT  AND EARNING HISTORY, JOB SKILLS, EDUCATIONAL ATTAIN-
 MENT, LITERACY, AGE, HEALTH, CRIMINAL RECORD AND OTHER EMPLOYMENT BARRI-
 ERS, RECORD OF SEEKING WORK, THE LOCAL JOB MARKET, THE  AVAILABILITY  OF
 EMPLOYERS  WILLING  TO HIRE THE PARENT, PREVAILING EARNINGS LEVEL IN THE
 LOCAL COMMUNITY, AND OTHER RELEVANT BACKGROUND FACTORS SUCH AS THE  AGE,
 NUMBER,  NEEDS,  AND  CARE  OF THE CHILDREN COVERED BY THE CHILD SUPPORT
 ORDER. ATTRIBUTION OR IMPUTATION  OF  INCOME  SHALL  BE  ACCOMPANIED  BY
 SPECIFIC WRITTEN FINDINGS IDENTIFYING THE BASIS OR BASES FOR SUCH DETER-
 MINATION UTILIZING FACTORS REQUIRED OR PERMITTED TO BE CONSIDERED PURSU-
 ANT TO THIS CLAUSE;
   § 3. Paragraph (k) of subdivision 1 of section 413 of the family court
 act,  as  amended by chapter 567 of the laws of 1989, is amended to read
 as follows:
   (k) When a party has defaulted and/or the court is otherwise presented
 with insufficient evidence to determine gross income, [the  court  shall
 order  child  support  based upon the needs or standard of living of the
 child, whichever is greater] THE SUPPORT OBLIGATION SHALL  BE  BASED  ON
 AVAILABLE INFORMATION ABOUT THE SPECIFIC CIRCUMSTANCES OF THE PARENT, IN
 ACCORDANCE  WITH  CLAUSE  (IV)  OF SUBPARAGRAPH FIVE OF PARAGRAPH (B) OF
 THIS SUBDIVISION. Such order may be retroactively modified upward, with-
 out a showing of change in circumstances.
   § 4. Paragraph (k) of subdivision 1-b of section 240 of  the  domestic
 relations  law,  as added by chapter 567 of the laws of 1989, is amended
 to read as follows:
   (k) When a party has defaulted and/or the court is otherwise presented
 with insufficient evidence to determine gross income, [the  court  shall
 order  child  support  based upon the needs or standard of living of the
 child, whichever is greater] THE SUPPORT OBLIGATION SHALL  BE  BASED  ON
 AVAILABLE INFORMATION ABOUT THE SPECIFIC CIRCUMSTANCES OF THE PARENT, IN
 ACCORDANCE  WITH  CLAUSE  (IV)  OF SUBPARAGRAPH FIVE OF PARAGRAPH (B) OF
 THIS SUBDIVISION. Such order may be retroactively modified upward, with-
 out a showing of change in circumstances.
   § 5. Clause (v) of subparagraph 5 of paragraph (b) of subdivision 1 of
 section 413 of the family court act, as amended by chapter  313  of  the
 laws of 2019, is amended to read as follows:
   (v)  an  amount  imputed  as  income  based  upon  the parent's former
 resources or income, if the court determines that a parent  has  reduced
 resources  or income in order to reduce or avoid the parent's obligation
 A. 9505                             3
 
 for child support; provided that incarceration shall not  be  considered
 voluntary  unemployment[,  unless  such  incarceration  is the result of
 non-payment of a child support order, or an offense against  the  custo-
 dial parent or child who is the subject of the order or judgment];
   §  6. Clause (v) of subparagraph 5 of paragraph (b) of subdivision 1-b
 of section 240 of the domestic relations law, as amended by chapter  313
 of the laws of 2019, is amended to read as follows:
   (v)  an  amount  imputed  as  income  based  upon  the parent's former
 resources or income, if the court determines that a parent  has  reduced
 resources  or income in order to reduce or avoid the parent's obligation
 for child support; provided that incarceration shall not  be  considered
 voluntary  unemployment[,  unless  such  incarceration  is the result of
 non-payment of a child support order, or an offense against  the  custo-
 dial parent or child who is the subject of the order or judgment];
   § 7. Paragraph (a) of subdivision 3 of section 451 of the family court
 act,  as  amended by chapter 313 of the laws of 2019, is amended to read
 as follows:
   (a) The court may modify an order of child support, including an order
 incorporating  without  merging  an  agreement  or  stipulation  of  the
 parties,  upon  a  showing  of  a  substantial  change in circumstances.
 Incarceration shall not be considered voluntary unemployment  and  shall
 not  be a bar to finding a substantial change in circumstances [provided
 such incarceration is not the result of non-payment of a  child  support
 order,  or  an  offense against the custodial parent or child who is the
 subject of the order or judgment].
   § 8. Clause (i) of subparagraph 2 of paragraph b of subdivision  9  of
 part B of section 236 of the domestic relations law, as amended by chap-
 ter 313 of the laws of 2019, is amended to read as follows:
   (i) The court may modify an order of child support, including an order
 incorporating  without  merging  an  agreement  or  stipulation  of  the
 parties, upon a  showing  of  a  substantial  change  in  circumstances.
 Incarceration  shall  not be considered voluntary unemployment and shall
 not be a bar to finding a substantial change in circumstances  [provided
 such  incarceration  is not the result of non-payment of a child support
 order, or an offense against the custodial parent or child  who  is  the
 subject of the order or judgment].
   §  9.  This  act shall take effect immediately, and shall apply to any
 action or proceeding pending upon or commenced on or after  such  effec-
 tive date.