S 7352: Makes the inability to pay child support an affirmative defense to non-support of child offenses, rather than an element of such offenses.

  
  STATE OF NEW YORK ________________________________________________________________________ 7352 2025-2026 Regular Sessions  IN SENATE April 10, 2025 ___________ 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 Assem- bly, do enact as follows: 1 Section 1. Section 260.05 of the penal law, as amended by chapter 397 2 of the laws of 1997, the opening paragraph and subdivision 1 as amended 3 and subdivision 2 as added by chapter 70 of the laws of 2008, is amended 4 to read as follows: 5 § 260.05 Non-support of a child in the second degree. 6 A person is guilty of non-support of a child when: 7 1. being a parent, guardian or other person legally charged with the 8 care or custody of a child less than sixteen years old, [he or she] such 9 person fails or refuses without lawful excuse to provide support for 10 such child [when he or she is able to do so, or becomes unable to do so, 11 when, though employable, he or she voluntarily terminates his or her 12 employment, voluntarily reduces his or her earning capacity, or fails to 13 diligently seek employment]; or 14 2. being a parent, guardian or other person obligated to make child 15 support payments by an order of child support entered by a court of 16 competent jurisdiction for a child less than eighteen years old, [he or 17 she] such person knowingly fails or refuses without lawful excuse to 18 provide support for such child [when he or she is able to do so, or 19 becomes unable to do so, when, though employable, he or she voluntarily 20 terminates his or her employment, voluntarily reduces his or her earning 21 capacity, or fails to diligently seek employment]. 22 In any prosecution under this section, it is an affirmative defense 23 that the defendant is unable to provide support for the child. Provided 24 that nothing in this paragraph shall constitute a defense to a prose- 25 cution for or preclude conviction of the offense defined in this section 26 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. LBD05661-01-5 
 S. 7352 2 1 employable, such defendant voluntarily terminates their employment, 2 voluntarily reduces their earning capacity, or fails to diligently seek 3 employment. 4 Non-support of a child in the second degree is a class A misdemeanor. 5 § 2. Section 260.06 of the penal law, as amended by chapter 70 of the 6 laws of 2008, is amended to read as follows: 7 § 260.06 Non-support of a child in the first degree. 8 A person is guilty of non-support of a child in the first degree when: 9 1. (a) being a parent, guardian or other person legally charged with 10 the care or custody of a child less than sixteen years old, [he or she] 11 such person fails or refuses without lawful excuse to provide support 12 for such child [when he or she is able to do so]; or 13 (b) being a parent, guardian or other person obligated to make child 14 support payments by an order of child support entered by a court of 15 competent jurisdiction for a child less than eighteen years old, [he or 16 she] fails or refuses without lawful excuse to provide support for such 17 child [when he or she is able to do so]; and 18 2. [he or she] such person has previously been convicted in the 19 preceding five years of a [crime defined in] violation of section 260.05 20 of this article or [a crime defined by the provisions] of this section. 21 In any prosecution under this section, it is an affirmative defense 22 that the defendant is unable to provide support for the child. Provided 23 that nothing in this paragraph shall constitute a defense to a prose- 24 cution for or preclude conviction of the offense defined in this section 25 where the defendant becomes unable to provide support when, though 26 employable, such defendant voluntarily terminates their employment, 27 voluntarily reduces their earning capacity, or fails to diligently seek 28 employment. 29 Non-support of a child in the first degree is a class E felony. 30 § 3. This act shall take effect on the first of November next succeed- 31 ing the date on which it shall have become a law.