SS#2 SCS HCS HB 2332, 2016 (Amended Section - Proposed Language)
568.040. 1. A person commits the offense of nonsupport if he or she knowingly fails to provide adequate support for his or her spouse; a parent commits the offense of nonsupport if such parent knowingly fails to provide adequate support which such parent is legally obligated to provide for his or her child or stepchild who is not otherwise emancipated by operation of law.
2. For purposes of this section:
(1) "Child" means any biological or adoptive child, or any child whose paternity has been established under chapter 454, or chapter 210, or any child whose relationship to the defendant has been determined, by a court of law in a proceeding for dissolution or legal separation, to be that of child to parent;
(2) "Good cause" means any substantial reason why the defendant is unable to provide adequate support. Good cause does not exist if the defendant purposely maintains his inability to support;
(3) "Support" means food, clothing, lodging, and medical or surgical attention;
(4) It shall not constitute a failure to provide medical and surgical attention, if nonmedical remedial treatment recognized and permitted under the laws of this state is provided. 3.
Inability to provide support for good cause shall be an affirmative defense under this section.
A defendant who raises such affirmative defense has the burden of proving the defense by a preponderance of the evidence.
4. The defendant shall have the burden of injecting the issues raised by subdivision (4) of subsection 2 of this section.
5. The offense of criminal nonsupport is a class A misdemeanor, unless the total arrearage is in excess of an aggregate of twelve monthly payments due under any order of support issued by any court of competent jurisdiction or any authorized administrative agency, in which case it is a class E felony.
6. If at any time an offender convicted of criminal nonsupport is placed on probation or parole, there may be ordered as a condition of probation or parole that the offender commence payment of current support as well as satisfy the arrearages. Arrearages may be satisfied first by making such lump sum payment as the offender is capable of paying, if any, as may be shown after examination of the offender's financial resources or assets, both real, personal, and mixed, and second by making periodic payments. Periodic payments toward satisfaction of arrears when added to current payments due may be in such aggregate sums as is not greater than fifty percent of the offender's adjusted gross income after deduction of payroll taxes, medical insurance that also covers a dependent spouse or children, and any other court- or administrative-ordered support, only. If the offender fails to pay the current support and arrearages as ordered, the court may revoke probation or parole and then impose an appropriate sentence within the range for the class of offense that the offender was convicted of as provided by law, unless the offender proves good cause for the failure to pay as required under subsection 3 of this section.
7. During any period that a nonviolent offender is incarcerated for criminal nonsupport, if the offender is ready, willing, and able to be gainfully employed during said period of incarceration, the offender, if he or she meets the criteria established by the department of corrections, may be placed on work release to allow the offender to satisfy his or her obligation to pay support. Arrearages shall be satisfied as outlined in the collection agreement.
8. Beginning August 28, 2009, every nonviolent first- and second-time offender then incarcerated for criminal nonsupport, who has not been previously placed on probation or parole for conviction of criminal nonsupport, may be considered for parole, under the conditions set forth in subsection 6 of this section, or work release, under the conditions set forth in subsection 7 of this section.
9. Beginning January 1, 1991, every prosecuting attorney in any county which has entered into a cooperative agreement with the child support enforcement service of the family support division of the department of social services shall report to the division on a quarterly basis the number of charges filed and the number of convictions obtained under this section by the prosecuting attorney's office on all IV-D cases. The division shall consolidate the reported information into a statewide report by county and make the report available to the general public.
10. Persons accused of committing the offense of nonsupport of the child shall be prosecuted:
(1) In any county in which the child resided during the period of time for which the defendant is charged; or
(2) In any county in which the defendant resided during the period of time for which the defendant is charged.