A bill

 

TO AMEND THE SOUTH CAROLINA CODE OF LAWS BY ENACTING THE "CHILD FINANCIAL ASSISTANCE ACT" BY ADDING ARTICLE 25 TO CHAPTER 17, TITLE 63 SO AS TO CREATE A CIVIL PROCESS TO PETITION THE CIRCUIT COURT FOR AN ORDER REQUIRING A PERSON WHO CAUSES THE DEATH OF THE PARENT OR GUARDIAN OF A MINOR CHILD TO PAY FINANCIAL ASSISTANCE FOR SUPPORT OF THE CHILD, WITH EXCEPTIONS, TO REQUIRE AN EVIDENTIARY HEARING AND THE CONSIDERATION OF CERTAIN FACTORS AS PART OF DETERMINING APPROPRIATE FINANCIAL ASSISTANCE, AND FOR OTHER PURPOSES; AND BY AMENDING SECTION 17-25-322, RELATING TO RESTITUTION FOR CRIME VICTIMS, SO AS TO MAKE CONFORMING CHANGES.

 

Be it enacted by the General Assembly of the State of South Carolina:

 

SECTION 1.  This act may be cited as the "Child Financial Assistance Act."

 

SECTION 2.  Chapter 17, Title 63 of the S.C. Code is amended by adding:

 

Article 25

 

Child Financial Assistance

 

    Section 63-17-4100.  (A) The parent or guardian of a minor child under the age of sixteen may file a petition in circuit court in the circuit of residence of the minor child for an order seeking financial assistance for support of the child from a person who caused the death of the child's other parent or guardian, regardless of any potential, pending, or concluded civil or criminal proceeding against the person related to the death of the child's other parent or guardian.

    (B) The court shall hold an evidentiary hearing to determine by a preponderance of the evidence whether the person's conduct caused the death of the child's other parent or guardian and, if so, the financial assistance for support due, ordering the person to pay an amount that is reasonable and necessary to support the child through the child's sixteenth birthday, considering all relevant factors, including:

       (1) the financial needs and resources of the child;

       (2) the extent to which the deceased parent or guardian financially supported the child;

       (3) the financial needs and resources of the surviving parent or guardian or other current guardian of the child, including the State, if the State is the guardian;

       (4) the standard of living to which the child is accustomed;

       (5) the physical and emotional condition of the child and the child's educational needs;

       (6) the child's physical and legal custody arrangements;

       (7) the reasonable work-related childcare expenses of the surviving parent or guardian or other current guardian, if applicable; and

       (8) the financial resources of the person from whom financial assistance to support the child is sought.

    (C)(1) An order of financial assistance for support of the child pursuant to this section must require payments to be:

           (a) delivered in the manner described pursuant to subsection (D), as appropriate; and

           (b) directed to the parent or guardian of the child, who is the child's caregiver, for the child's benefit.

       (2) If the State is the guardian of the child, the financial assistance paid to the State pursuant to item (1) must be deposited in an interest-bearing account for the benefit of the minor child and paid to the child upon emancipation from the State.

    (D) An order of financial assistance for support of the child must require the person to:

       (1) make payments directly to the child's caregiver, whether the child's surviving parent or the child's guardian, for the child's benefit; or

       (2) deliver the amount due to the South Carolina Department of Probation, Parole and Pardon Services or to the South Carolina Department of Corrections for transfer to the child's caregiver, in accordance with item (1), if the person is incarcerated or on probation or parole.

    (E) An order requiring a person to make payments of financial assistance for support of the child is due and payable according to its terms as of the date of entry of the order. The order establishing the amount and schedule of child assistance payments must:

       (1) include notice to the person that failure to pay child financial assistance as ordered may result in wage withholding;

       (2) require the person to provide requisite consent to wage withholding and complete forms to authorize wage withholding by the court with the person's employer; and

       (3) require the person to notify the court, and the child's caregiver to whom child financial assistance payments are made, any time the person changes employment, for the purposes of updating the court with information needed to facilitate appropriate wage withholding.

 

    Section 63-17-4110.  If a person ordered to pay financial assistance for support of the child pursuant to Section 63-17-4100 is unable to make the required payments because the person is confined or imprisoned in a correctional facility, the person shall begin payments no later than the first anniversary of the date of the person's release from the facility. The person may enter into a payment plan to address any arrearage that exists on the date of the person's release. The person shall pay all arrearages regardless of whether the payments were scheduled to terminate while confined or imprisoned in the correctional facility.

 

    Section 63-17-4120.  (A) An order for financial assistance for support of the child may be enforced by the child's caregiver who is the designated recipient of payments pursuant to Section 63-17-4100(D) or by the Office of the Attorney General, in the same manner as a judgment in a civil action.

    (B)(1) If a person subject to an order issued pursuant to this article is subsequently found to be, or is found to have been, delinquent pursuant to an order for financial assistance for support of the child in an amount equal to three or more months of the child financial assistance obligation, the clerk of court must order the person's wages enrolled for wage withholding to begin immediately for the payment of the person's obligation, even if the arrearage has been fully or partially paid at the time of the hearing.

       (2) The person obligated to make payments may file a motion with the court not to withhold wages for good cause shown. The motion must be served on the child's caregiver who is the designated recipient of payments pursuant to Section 63-17-4100(D) and the court must provide parties an opportunity to be heard on the motion.

 

    Section 63-17-4130.  Financial assistance for support of the child ordered pursuant to this article may not be deducted from or setoff against any pecuniary damages owed or paid for the death of the child's parent, whether negotiated through a civil settlement, awarded as a civil damages in a civil action, or ordered as part of criminal restitution for damages due a victim pursuant to Section 17-25-322. Provided, however, criminal restitution calculated specifically pursuant to Section 17-25-322(F), which must be paid to the child's other parent or guardian for the benefit of the child, is in lieu of an action filed pursuant to this article. An order of restitution pursuant to Section 17-25-322(F) may be enforced as provided in Section 63-17-4120.

 

SECTION 3.  Section 17-25-322 of the S.C. Code is amended by adding:

 

    (F) For purposes of this section, in determining the amount of pecuniary damages or loss when the crime victim died as a result of the crime for which the defendant was convicted and the victim was the parent of a minor child under the age of sixteen, the court must determine as part of the pecuniary damages appropriate financial assistance for support of the child, taking into consideration all relevant factors, including those set forth in Section 63-17-4100(B), and must order payment of that portion of total restitution be paid to the caregiver of the child, whether the surviving parent or guardian, for the benefit of the child. Restitution for pecuniary damages calculated pursuant to this subsection may be enforced pursuant to Section 63-17-4120.

 

SECTION 4.  The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide.  After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.

 

SECTION 5.  This act takes effect upon approval by the Governor.

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