Senate Bill 1092 (2023) — Child maintenance restitution
SB 1092
Florida Bills
Florida Senate - 2023 SB 1092 By Senator Burgess 23-00401B-23 20231092__ Page 1 of 8 CODING: Words stricken are deletions; words underlined are additions. A bill to be entitled 1
An act relating to child maintenance restitution; 2 creating s. 775.088, F.S.; defining the term “child 3 maintenance restitution”; authorizing a court to order 4 a defendant to pay child maintenance restitution to 5 the surviving parent or guardian of a minor if the 6 defendant is convicted of violating specified 7 provisions of law and the deceased victim of the 8 offense was the parent or guardian of a child; 9 requiring monthly payments; providing an exception; 10 requiring the court to determine an amount that is 11 reasonable and necessary based on specified relevant 12 factors if it sentences the defendant to pay child 13 maintenance restitution; providing for the resolution 14 of disputes as to the proper amount of child 15 maintenance restitution; providing for the collection, 16 disbursement, and enforcement of child maintenance 17 restitution; providing requirements for the issuance 18 of income deduction orders with an order for 19 restitution; specifying requirements for a notice that 20 is required to accompany income deduction orders; 21 providing for enforcement of income deduction orders; 22 prohibiting a person from discharging, refusing to 23 employ, or taking disciplinary action against an 24 employee subject to child maintenance restitution; 25 providing civil penalties; providing requirements for 26 payors; providing civil penalties; providing for 27 payments after a defendant’s incarceration; providing 28 circumstances under which child maintenance 29
Florida Senate - 2023 SB 1092 23-00401B-23 20231092__ Page 2 of 8 CODING: Words stricken are deletions; words underlined are additions. restitution may not be ordered or under which there 30 must be an offset by a judgment award; providing that 31 a court may modify an order of child maintenance 32 restitution; providing for jurisdiction of the 33 defendant; providing an effective date. 34 35 Be It Enacted by the Legislature of the State of Florida: 36 37
Section
Section 775.088, Florida Statutes, is created to 38 read: 39 775.088 Child maintenance restitution.— 40 (1) “Child maintenance restitution” means a court-ordered 41 obligation for monetary support for the care, maintenance, 42 training, and education of a child younger than 18 years of age 43 whose parent or guardian is a deceased victim of an offense 44 specified in subsection (2). 45
(2) In addition to any punishment, the court may order a 46 defendant convicted of a violation of s. 316.193(3)(c)3., s. 47 782.04, s. 782.07(1), or s. 782.071(1) to make child maintenance 48 restitution to the surviving parent or guardian of a minor 49 child, if the deceased victim of the offense was the parent or 50 guardian of such child. Such obligation must be paid monthly, 51 unless otherwise ordered by the court, until such child reaches 52 18 years of age. 53
(3) If a sentencing court orders the defendant to pay child 54 maintenance restitution, the court must determine an amount that 55 is reasonable and necessary for the support of each child of the 56 deceased victim after considering all relevant factors, 57 including, but not limited to, all of the following: 58
Florida Senate - 2023 SB 1092 23-00401B-23 20231092__ Page 3 of 8 CODING: Words stricken are deletions; words underlined are additions. (
a) The financial needs and resources of the child. 59 (
b) The financial needs and resources of the surviving 60 parent or guardian of the child, including the state if the 61 child is in the custody of the Department of Children and 62 Families. 63 (
c) The standard of living to which the child is 64 accustomed. 65 (
d) The physical and emotional condition of the child and 66 the child’s educational needs. 67 (
e) The child’s physical and legal custody arrangements. 68 (
f) The reasonable work-related child care expenses of the 69 surviving parent or guardian. 70
(4) Any dispute as to the proper amount of child 71 maintenance restitution must be resolved by the court by the 72 preponderance of the evidence. The court may consider hearsay 73 evidence for this purpose, provided that it finds that the 74 hearsay evidence has a minimal indicia of reliability. The 75 burden of demonstrating an amount that is reasonable and 76 necessary for the support of the victim’s child or children is 77 on the state attorney. 78
(5) The court may order the clerk of the court to collect, 79 enforce, and dispense child maintenance restitution payments. 80 (6)(
a) Issuance of income deduction order with an order for 81 restitution.— 82 1. Upon the entry of an order for restitution, the court 83 shall enter a separate order for income deduction if one has not 84 been entered. 85 2. The income deduction order shall direct a payor to 86 deduct from all income due and payable to the defendant the 87
Florida Senate - 2023 SB 1092 23-00401B-23 20231092__ Page 4 of 8 CODING: Words stricken are deletions; words underlined are additions. amount required by the court to meet the defendant’s obligation. 88 3. The income deduction order must be effective as long as 89 the order for restitution upon which it is based is effective or 90 until further order of the court. 91 4. When the court orders the income deduction, the court 92 shall furnish to the defendant a statement of his or her rights, 93 remedies, and duties in regard to the income deduction order. 94 The statement must include all of the following: 95 a.
All fees or interest imposed. 96 b. The total amount of income to be deducted for each pay 97 period. 98 c. A statement that the income deduction order applies to 99 current and subsequent payors and periods of employment. 100 d. A statement that a copy of the income deduction order 101 will be served on the defendant’s payor or payors. 102 e. A statement that the defendant is required to notify the 103 clerk of the court within 7 days after changes in the 104 defendant’s address or payors, or the addresses of his or her 105 payors. 106 (
b) Enforcement of income deduction orders.— 107 1. The clerk of the court or the defendant’s probation 108 officer shall serve an income deduction order and the notice 109 described in subparagraph 4. to each of the defendant’s payors, 110 unless the defendant has applied for a hearing to contest the 111 enforcement of the income deduction order. 112 2.a. Service by or upon any person who is a party to a 113 proceeding under this paragraph must be made in the manner 114 prescribed in the Florida Rules of Civil Procedure for service 115 upon parties. 116
Florida Senate - 2023 SB 1092 23-00401B-23 20231092__ Page 5 of 8 CODING: Words stricken are deletions; words underlined are additions. b. Service upon the defendant’s payor or successor payor 117 under this paragraph must be made by prepaid certified mail, 118 return receipt requested, or in the manner prescribed in
chapter 119 48. 120 3. Within 15 days after having an income deduction order 121 entered against him or her, the defendant may apply for a 122 hearing to contest the enforcement of the income deduction order 123 on the ground of mistake of fact regarding the amount of 124 restitution owed. The timely request for a hearing stays the 125 service of an income deduction order on all payors of the 126 defendant until a hearing is held and a determination is made as 127 to whether the enforcement of the income deduction order is 128 proper. 129 4.
The notice to each payor may contain only that 130 information necessary for the payor to comply with the income 131 deduction order. The notice must: 132 a. Require the payor to deduct from the defendant’s income 133 the amount specified in the income deduction order and to pay 134 that amount to the clerk of the court; 135 b. Instruct the payor to implement the income deduction 136 order no later than the first payment date that occurs more than 137 14 days after the date the income deduction order was served on 138 the payor; 139 c.
Instruct the payor to forward within 2 days after each 140 payment date to the clerk of the court the amount deducted from 141 the defendant’s income and a statement as to whether the amount 142 totally or partially satisfies the periodic amount specified in 143 the income deduction order; 144 d. Specify that, if a payor fails to deduct the proper 145
Florida Senate - 2023 SB 1092 23-00401B-23 20231092__ Page 6 of 8 CODING: Words stricken are deletions; words underlined are additions. amount from the defendant’s income, the payor is liable for the 146 amount the payor should have deducted plus costs, interest, and 147 reasonable attorney fees; 148 e. State that the income deduction order and the notice to 149 payor are binding on the payor until further notice by the court 150 or until the payor no longer provides income to the defendant; 151 f.
Instruct the payor that, when he or she no longer 152 provides income to the defendant, the payor must notify the 153 clerk of the court and must also provide the defendant’s last 154 known address and the name and address of the defendant’s new 155 payor, if known, and that, if the payor violates this sub-156 subparagraph, the payor is subject to a civil penalty not to 157 exceed $250 for the first violation or $500 for any subsequent 158 violation; 159 g.
State that the payor may not discharge, refuse to 160 employ, or take disciplinary action against the defendant 161 because of an income deduction order and that a violation of 162 this sub-subparagraph subjects the payor to a civil penalty not 163 to exceed $250 for the first violation or $500 for any 164 subsequent violation; 165 h.
Inform the payor that, when he or she receives income 166 deduction orders requiring that the income of two or more 167 defendants be deducted and sent to the same clerk of the court, 168 the payor may combine the amounts that are to be paid to the 169 depository in a single payment as long as he or she identifies 170 the portion of the payment attributable to each defendant; and 171 i. Inform the payor that if the payor receives more than 172 one income deduction order against the same defendant, he or she 173 must contact the court for further instructions. 174
Florida Senate - 2023 SB 1092 23-00401B-23 20231092__ Page 7 of 8 CODING: Words stricken are deletions; words underlined are additions. 5. The clerk of the court shall enforce income deduction 175 orders against the defendant’s successor payor who is located in 176 this state in the same manner prescribed in this subsection for 177 the enforcement of an income deduction order against an original 178 payor. 179 6. A person may not discharge, refuse to employ, or take 180 disciplinary action against an employee because of the 181 enforcement of an income deduction order.
An employer who 182 violates this subparagraph is subject to a civil penalty not to 183 exceed $250 for the first violation or $500 for any subsequent 184 violation. 185 7. When a payor no longer provides income to a defendant, 186 the payor must notify the clerk of the court and must provide 187 the defendant’s last known address and the name and address of 188 the defendant’s new payor, if known. A payor who violates this 189 subparagraph is subject to a civil penalty not to exceed $250 190 for the first violation or $500 for a subsequent violation. 191
(7) A defendant who is ordered to pay child maintenance 192 restitution and is incarcerated and unable to pay such 193 restitution may have up to 1 year after release from 194 incarceration to begin payment. Such defendant must enter into a 195 payment plan with the clerk of the court to address any 196 arrearage. If a defendant’s child maintenance restitution 197 payments are set to terminate but the defendant’s obligation is 198 not paid in full, such payments must continue until the entire 199 arrearage is paid. 200 (8)(
a) If the surviving parent or guardian of the child 201 brings a civil action against the defendant before the 202 sentencing court orders child maintenance restitution and the 203
Florida Senate - 2023 SB 1092 23-00401B-23 20231092__ Page 8 of 8 CODING: Words stricken are deletions; words underlined are additions. surviving parent or guardian obtains a judgment in a civil suit, 204 child maintenance restitution may not be ordered under this 205 section. 206 (
b) If the court orders the defendant to make child 207 maintenance restitution under this
section and the surviving 208 parent or guardian subsequently brings a civil action and 209 obtains a judgment, the child maintenance restitution order must 210 be offset by the amount of the judgment awarded in the civil 211 action. 212
(9) The court may modify an order of child maintenance 213 restitution upon finding that such modification is reasonable 214 and necessary, based on a substantial change in circumstance. 215
(10) The court may retain jurisdiction over a defendant 216 whom the court has ordered to pay child maintenance restitution 217 until such restitution order is satisfied or until the court 218 orders otherwise. 219