Bill Text: FL S0116 | 2024 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Child Maintenance Restitution

Spectrum: Bipartisan Bill

Status: (Failed) 2024-03-08 - Died in Rules [S0116 Detail]

Download: Florida-2024-S0116-Introduced.html

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       Florida Senate - 2024                                     SB 116
       
       
        
       By Senator Burgess
       
       
       
       
       
       23-00240-24                                            2024116__
    1                        A bill to be entitled                      
    2         An act relating to child maintenance restitution;
    3         creating s. 775.088, F.S.; defining the term “child
    4         maintenance restitution”; authorizing a court to order
    5         a defendant to pay child maintenance restitution to
    6         the surviving parent or guardian of a minor if the
    7         defendant is convicted of violating specified
    8         provisions of law and the deceased victim of the
    9         offense was the parent or guardian of the child;
   10         requiring monthly payments; providing an exception;
   11         requiring the court to determine an amount that is
   12         reasonable and necessary based on specified relevant
   13         factors if it sentences the defendant to pay child
   14         maintenance restitution; providing for the resolution
   15         of disputes as to the proper amount of child
   16         maintenance restitution; providing for the collection,
   17         disbursement, and enforcement of child maintenance
   18         restitution; providing requirements for the issuance
   19         of income deduction orders with an order for
   20         restitution; specifying requirements for a notice that
   21         is required to accompany income deduction orders;
   22         providing for enforcement of income deduction orders;
   23         prohibiting a person from discharging, refusing to
   24         employ, or taking disciplinary action against an
   25         employee subject to child maintenance restitution;
   26         providing requirements for payors; providing civil
   27         penalties; providing for payments after a defendant’s
   28         incarceration; specifying circumstances under which
   29         child maintenance restitution may not be ordered or
   30         under which child maintenance restitution must be an
   31         offset by a judgment award; providing that a court may
   32         modify an order of child maintenance restitution;
   33         providing for jurisdiction of the defendant; providing
   34         an effective date.
   35          
   36  Be It Enacted by the Legislature of the State of Florida:
   37  
   38         Section 1. Section 775.088, Florida Statutes, is created to
   39  read:
   40         775.088 Child maintenance restitution.—
   41         (1) As used in this section, the term “child maintenance
   42  restitution” means a court-ordered obligation for monetary
   43  support for the care, maintenance, training, and education of a
   44  child younger than 18 years of age whose parent or guardian is a
   45  deceased victim of an offense specified in subsection (2).
   46         (2) In addition to any punishment, the court may order a
   47  defendant convicted of a violation of s. 316.193(3)(c)3., s.
   48  782.04, s. 782.07(1), or s. 782.071(1) to make child maintenance
   49  restitution to the surviving parent or guardian of a minor child
   50  if the deceased victim of the offense was the parent or guardian
   51  of such child. Such obligation must be paid monthly, unless
   52  otherwise ordered by the court, until such child reaches 18
   53  years of age.
   54         (3) If a sentencing court orders the defendant to pay child
   55  maintenance restitution, the court must determine an amount that
   56  is reasonable and necessary for the support of each child of the
   57  deceased victim after considering all relevant factors,
   58  including, but not limited to, all of the following:
   59         (a) The financial needs and resources of the child.
   60         (b) The financial needs and resources of the surviving
   61  parent or guardian of the child, including the state if the
   62  child is in the custody of the Department of Children and
   63  Families.
   64         (c) The standard of living to which the child is
   65  accustomed.
   66         (d) The physical and emotional condition of the child and
   67  the child’s educational needs.
   68         (e) The child’s physical and legal custody arrangements.
   69         (f) The reasonable work-related child care expenses of the
   70  surviving parent or guardian.
   71         (4) Any dispute as to the proper amount of child
   72  maintenance restitution must be resolved by the court by the
   73  preponderance of the evidence. The court may consider hearsay
   74  evidence for this purpose, provided that it finds that the
   75  hearsay evidence has a minimal indicia of reliability. The
   76  burden of demonstrating an amount that is reasonable and
   77  necessary for the support of the victim’s child or children is
   78  on the state attorney.
   79         (5) The court may order the clerk of the court to collect,
   80  enforce, and dispense child maintenance restitution payments.
   81         (6)(a) Issuance of income deduction order with an order for
   82  child maintenance restitution.—
   83         1. Upon the entry of an order for restitution, the court
   84  must enter a separate order for income deduction if one has not
   85  been entered.
   86         2. The income deduction order must direct a payor to deduct
   87  from all income due and payable to the defendant the amount
   88  required by the court to meet the defendant’s obligation.
   89         3. The income deduction order must be effective as long as
   90  the order for restitution upon which it is based is effective or
   91  until further order of the court.
   92         4. When the court orders the income deduction, the court
   93  shall furnish to the defendant a statement of his or her rights,
   94  remedies, and duties in regard to the income deduction order.
   95  The statement must include all of the following:
   96         a. All fees or interest imposed.
   97         b. The total amount of income to be deducted for each pay
   98  period.
   99         c. A statement that the income deduction order applies to
  100  current and subsequent payors and periods of employment.
  101         d. A statement that a copy of the income deduction order
  102  will be served on the defendant’s payor or payors.
  103         e. A statement that the defendant is required to notify the
  104  clerk of the court within 7 days after changes in the
  105  defendant’s address or payors, or the addresses of his or her
  106  payors.
  107         (b) Enforcement of income deduction orders.—
  108         1. The clerk of the court or the defendant’s probation
  109  officer shall serve an income deduction order and the notice
  110  described in subparagraph 4. to each of the defendant’s payors,
  111  unless the defendant has applied for a hearing to contest the
  112  enforcement of the income deduction order.
  113         2.a. Service by or upon any person who is a party to a
  114  proceeding under this paragraph must be made in the manner
  115  prescribed in the Florida Rules of Civil Procedure for service
  116  upon parties.
  117         b. Service upon the defendant’s payor or successor payor
  118  under this paragraph must be made by prepaid certified mail,
  119  return receipt requested, or in the manner prescribed in chapter
  120  48.
  121         3. Within 15 days after having an income deduction order
  122  entered against him or her, the defendant may apply for a
  123  hearing to contest the enforcement of the income deduction order
  124  on the ground of mistake of fact regarding the amount of
  125  restitution owed. The timely request for a hearing stays the
  126  service of an income deduction order on all payors of the
  127  defendant until a hearing is held and a determination is made as
  128  to whether the enforcement of the income deduction order is
  129  proper.
  130         4. The notice to each payor may contain only that
  131  information necessary for the payor to comply with the income
  132  deduction order. The notice must:
  133         a. Require the payor to deduct from the defendant’s income
  134  the amount specified in the income deduction order and to pay
  135  that amount to the clerk of the court;
  136         b. Instruct the payor to implement the income deduction
  137  order no later than the first payment date that occurs more than
  138  14 days after the date the income deduction order was served on
  139  the payor;
  140         c. Instruct the payor to forward within 2 days after each
  141  payment date to the clerk of the court the amount deducted from
  142  the defendant’s income and a statement as to whether the amount
  143  totally or partially satisfies the periodic amount specified in
  144  the income deduction order;
  145         d. Specify that, if a payor fails to deduct the proper
  146  amount from the defendant’s income, the payor is liable for the
  147  amount the payor should have deducted plus costs, interest, and
  148  reasonable attorney fees;
  149         e. State that the income deduction order and the notice to
  150  payor are binding on the payor until further notice by the court
  151  or until the payor no longer provides income to the defendant;
  152         f. Instruct the payor that, when he or she no longer
  153  provides income to the defendant, the payor must notify the
  154  clerk of the court and must also provide the defendant’s last
  155  known address and the name and address of the defendant’s new
  156  payor, if known, and that, if the payor violates this sub
  157  subparagraph, the payor is subject to a civil penalty not to
  158  exceed $250 for the first violation or $500 for any subsequent
  159  violation;
  160         g. State that the payor may not discharge, refuse to
  161  employ, or take disciplinary action against the defendant
  162  because of an income deduction order and that a violation of
  163  this sub-subparagraph subjects the payor to a civil penalty not
  164  to exceed $250 for the first violation or $500 for any
  165  subsequent violation;
  166         h. Inform the payor that, when he or she receives income
  167  deduction orders requiring that the income of two or more
  168  defendants be deducted and sent to the same clerk of the court,
  169  the payor may combine the amounts that are to be paid to the
  170  depository in a single payment as long as he or she identifies
  171  the portion of the payment attributable to each defendant; and
  172         i. Inform the payor that if the payor receives more than
  173  one income deduction order against the same defendant, he or she
  174  must contact the court for further instructions.
  175         5. The clerk of the court shall enforce income deduction
  176  orders against the defendant’s successor payor who is located in
  177  this state in the same manner prescribed in this subsection for
  178  the enforcement of an income deduction order against an original
  179  payor.
  180         6. A person may not discharge, refuse to employ, or take
  181  disciplinary action against an employee because of the
  182  enforcement of an income deduction order. An employer who
  183  violates this subparagraph is subject to a civil penalty not to
  184  exceed $250 for the first violation or $500 for any subsequent
  185  violation.
  186         7. When a payor no longer provides income to a defendant,
  187  the payor must notify the clerk of the court and must provide
  188  the defendant’s last known address and the name and address of
  189  the defendant’s new payor, if known. A payor who violates this
  190  subparagraph is subject to a civil penalty not to exceed $250
  191  for the first violation or $500 for a subsequent violation.
  192         (7) A defendant who is ordered to pay child maintenance
  193  restitution and is incarcerated and unable to pay such
  194  restitution may have up to 1 year after release from
  195  incarceration to begin payment. Such defendant must enter into a
  196  payment plan with the clerk of the court to address any
  197  arrearage. If a defendant’s child maintenance restitution
  198  payments are set to terminate but the defendant’s obligation is
  199  not paid in full, such payments must continue until the entire
  200  arrearage is paid.
  201         (8)(a) If the surviving parent or guardian of the child
  202  brings a civil action against the defendant before the
  203  sentencing court orders child maintenance restitution and the
  204  surviving parent or guardian obtains a judgment in a civil suit,
  205  child maintenance restitution may not be ordered under this
  206  section.
  207         (b) If the court orders the defendant to make child
  208  maintenance restitution under this section and the surviving
  209  parent or guardian subsequently brings a civil action and
  210  obtains a judgment, the child maintenance restitution order must
  211  be offset by the amount of the judgment awarded in the civil
  212  action.
  213         (9) The court may modify an order of child maintenance
  214  restitution upon finding that such modification is reasonable
  215  and necessary, based on a substantial change in circumstance.
  216         (10) The court may retain jurisdiction over a defendant
  217  whom the court has ordered to pay child maintenance restitution
  218  until such restitution order is satisfied or until the court
  219  orders otherwise.
  220         Section 2. This act shall take effect July 1, 2024.