MISSISSIPPI LEGISLATURE
2023 Regular Session
To: Judiciary A
By: Representatives Ladner, Felsher
AN ACT TO CREATE A NEW STATUTE TO BE KNOWN AS "BENTLEY'S LAW"; TO AUTHORIZE A SURVIVING PARENT OR A GUARDIAN OF A CHILD HAVING A PARENT WHOSE DEATH WAS CAUSED BY A MOTOR VEHICLE INCIDENT IN WHICH A PERSON IS CONVICTED OF AGGRAVATED DUI TO PETITION THE CHANCERY COURT FOR AN ORDER TO RECEIVE CHILD MAINTENANCE FROM THE OFFENDER; TO REQUIRE THE MAINTENANCE TO CONTINUE UNTIL THE CHILD REACHES 21 YEARS OF AGE UNLESS OTHER CONDITIONS ARE PRESENT; TO REQUIRE AN INCARCERATED PERSON ORDERED TO PAY CHILD MAINTENANCE TO BEGIN MAKING PAYMENTS WITHIN ONE YEAR AFTER BEING RELEASED AND TO PAY ALL ARREARAGES NOTWITHSTANDING THE AGE OF THE RECIPIENT; TO PROHIBIT THE ISSUANCE OF A MAINTENANCE ORDER IF THE SURVIVING PARENT HAS OBTAINED A JUDGMENT IN A CIVIL SUIT BEFORE SEEKING THE MAINTENANCE ORDER; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) This section shall be known and may be cited as "Bentley's Law."
(2) If a person is convicted under Section 63-11-30 of the offense of aggravated DUI and the offense caused the death of a parent or parents of a child or children, and a surviving parent or guardian files a petition to receive child maintenance from the person convicted of the offense in the chancery court in the county in which the child or children reside, the person must be ordered by the court to pay child maintenance to each child until the child:
(a) Dies;
(b) Marries;
(c) Enters active military duty;
(d) Reaches eighteen (18) years of age, unless subsection (3) of this section applies; or
(e) Reaches twenty-one (21) years of age unless the maintenance order specifically extends beyond the child's twenty-first birthday for reasons provided under paragraph (a) of subsection (3) of this section.
(3) (a) If the child is physically or mentally incapacitated from supporting himself or herself and insolvent and unmarried, the court may extend the maintenance obligation past the child's eighteenth birthday.
(b) (i) If the child reaches eighteen (18) years of age and is attending high school, maintenance must continue, if the child continues to attend and progress toward completion of high school, until the child graduates from high school or reaches twenty-one (21) years of age, whichever occurs first.
(ii) As used in this subparagraph, "institution of higher learning" means an institution offering postsecondary training or schooling for which the child is assessed a fee and attends classes regularly and includes a public or private community or junior college, college, state institution of higher learning or school or college required to be registered under the Mississippi Proprietary School and College Registration Law. If the child is enrolled in an institution of higher learning before October 1 next succeeding high school graduation or the earning of a High School Equivalency Diploma, so long as the child completes the equivalency of at least twelve (12) hours of credit each semester, not including the summer semester, and achieves grades sufficient to reenroll at the institution, maintenance must continue until the child completes his or her education or until the child reaches twenty-one (21) years of age, whichever occurs first. To remain eligible for this continued maintenance, at the beginning of each semester, the child must submit to the court a transcript or similar official document provided by the institution which includes the courses the child is enrolled in and has completed for each term, the grades and credits received for each course, and an official document from the institution listing the courses that the child is enrolled in for the upcoming term and the number of credits for those courses. When taking at least twelve (12) credit hours, if the child receives failing grades in one-half (1/2) or more of the child's course load in any one (1) semester, payment of maintenance for the child may be terminated and is not eligible for reinstatement. Upon request for notification of the child's grades by the court, the child must produce the required documents to the court within thirty (30) days of receipt of grades from the institution. If the child fails to produce the required documents, payment of maintenance may terminate without the accrual of any maintenance arrearage and is not eligible for reinstatement. If the circumstances of the child manifestly dictate, the court may waive the October first deadline for enrollment required by this subparagraph. A child diagnosed with a developmental disability, or whose physical disability or diagnosed health problem limits the child's ability to carry the number of credit hours required under this subparagraph, must remain eligible for maintenance so long as the child is enrolled in and attending an institution of higher learning and the child continues to meet the other requirements of this subparagraph. A child who is employed at least fifteen (15) hours per week during the semester may take as few as the equivalency of nine (9) credit hours per semester and remain eligible for maintenance so long as all other requirements of this subparagraph are complied with.
(4) Whenever the court orders an offender to pay child maintenance under subsection (2), the court shall determine the amount that is reasonable or necessary for the maintenance of the child or children after considering all relevant factors, including:
(a) The financial needs and resources of the child or children;
(b) The financial resources and needs of the surviving parent or, if no other parent is alive or capable of caring for the child or children, the guardian of the child or children, including the state if the state is the guardian;
(c) The standard of living the child or children would have enjoyed;
(d) The physical and emotional condition of the child or children and each child's educational needs;
(e) Each child's physical and legal custody arrangements; and
(f) The reasonable work-related child care expenses of the surviving parent or guardian.
(5) In addition to the relevant factors listed under subsection (4), the court shall consider the legal guidelines established for determining the amount reasonable or necessary for the maintenance of a child or children in a child support proceeding.
(6) The court shall order that child maintenance payments be made to the office of the chancery clerk as trustee for remittance to the surviving parent or guardian entitled to receive the payments. The chancery clerk shall remit the payments to the surviving parent or guardian within three (3) working days of receipt by the office of the chancery clerk. The chancery clerk must deposit all receipts no later than the next working day after receipt.
(7) In addition to any other remedy provided by law for the enforcement of child maintenance, if a maintenance order has been entered, the court may issue an order directing any employer or other payer of the person required to pay child maintenance under this section to withhold and pay over to the clerk of the court an amount not to exceed federal wage garnishment limitations.
(8) If a person ordered to pay child maintenance under this section is incarcerated and unable to pay the required maintenance, the person has up to one (1) year after the release from incarceration to begin payment, including any arrearage. If any obligation under this section is to terminate under subsection (2) but the person's obligation is not paid in full yet, payments must continue until the entire arrearage is paid.
(9) (a) If the surviving parent or guardian of the child or children brings a civil action against the person convicted of aggravated DUI before any child maintenance order is issued under this section and the surviving parent or guardian obtains a judgment in his or her favor in the civil suit, no maintenance may be ordered under this section.
(b) If the court orders child maintenance under this section but the surviving parent or guardian subsequently brings a civil action and obtains a judgment in his or her favor, the child maintenance order must offset the judgment awarded in the civil action.
(10) The provisions of any order respecting maintenance under this section may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms of the child maintenance order unreasonable.
SECTION 2. This act shall take effect and be in force from and after July 1, 2023.