BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | SB 1355| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ THIRD READING Bill No: SB 1355 Author: Wright (D) Amended: 5/12/10 Vote: 21 SENATE JUDICIARY COMMITTEE : 4-0, 5/4/10 AYES: Corbett, Harman, Hancock, Leno NO VOTE RECORDED: Walters SUBJECT : Child support: suspension of support order SOURCE : Author DIGEST : This bill provides that the obligation of a person to pay child support pursuant to an order that is being enforced by a local child support agency is suspended for the period of time in which the obligor is incarcerated or involuntarily institutionalized, except as specified. This bill further provides that, upon the release of the obligor, the obligation to pay child support would immediately resume in the amount specified in the child support order prior to the suspension of that obligation, as specified. ANALYSIS : Existing law establishes the Department of Child Support Services (DCSS) as the single statewide agency responsible for the administration and management of California's child support enforcement program and administers the state plan CONTINUED SB 1355 Page 2 for securing child support and determining paternity. (Family Code Section 17202.) Existing law requires, at the local level, the child support enforcement program to be run by local child support agencies, which shall have the responsibility for promptly and effectively establishing, modifying, and enforcing child support obligations. (Family Code Section 17400.) Existing law provides that a support order may be modified or terminated at any time as the court determines to be necessary. Existing law provides that such support modifications or terminations may only be made pursuant to the filing of a motion or an order to show cause. (Family Code Section 3651.) Existing federal law prohibits states from enacting laws providing for the retroactive modification or termination of a support order, except that an order modifying or terminating a support order may be made retroactive to the date of the filing of a notice of motion or order to show cause to modify or terminate the order. (42 U.S.C. section 666(a)(9); Family Code Section 3653.) This bill provides that the obligation of a person to pay child support pursuant to an order that is being enforced by a local child support agency under Title IV-D of the Social Security Act is suspended for the period of time in which the obligor is incarcerated or involuntarily institutionalized for any period exceeding 30 consecutive days. The bill provides that the suspension of the support obligation shall only apply for the period of time during which the obligor is incarcerated or involuntarily institutionalized, after which the obligation shall immediately resume in the amount otherwise specified in the child support order. The bill requires the court to provide notice to the parties of the support obligation suspension at the time the order is issued. CONTINUED SB 1355 Page 3 The bill provides that upon release from incarceration or involuntary institutionalization, an obligor may petition the court for an adjustment of the arrears pursuant to the suspension of the support obligation. The obligor must show proof of the dates of incarceration or involuntary institutionalization, as well as proof that during that time, the obligor was unable to earn any income. The obligor shall serve copies of the petition to the support oblige and the local child support agency, who may file an objection to the obligor's petition with the court. An obligor's arrears shall not be adjusted until the court has approved the petition. The bill provides that the court may deny the obligor's petition if it makes a finding of one of the following: (1) the obligor had the means to pay support while incarcerated or involuntarily institutionalizes, or the obligor was incarcerated or involuntarily institutionalized for any offense constituting domestic violence, against the support obligee or supported child, or for any offense that could be enjoined by a protective order or as a result of his/her failure to comply with a court order to pay child support. This bill defines "incarcerated or involuntarily institutionalized" as including, but not limited to, involuntary confinement to a state prison, county jail, or juvenile facility operated by the Division of Juvenile Facilities in the Department of Corrections and Rehabilitation, or a mental health facility. The bill provides that "suspend" means that the child support order is modified and set to zero dollars for the period in which the obligor is incarcerated or involuntarily institutionalized. The bill provides that the above provisions apply to all child support orders issued and all modifications of child support order requested on or after January 1, 2011. The bill requires the Judicial Council shall proscribe forms necessary for the implementation of this section, including forms for a petition to adjust arrears. CONTINUED SB 1355 Page 4 Background As of June 30, 2008, 2.3 million prisoners were held in federal and state prisons, or local county jails. Approximately fifty-two percent of state inmates and sixty-three percent of federal inmates reported having an estimated combined 1.7 million children of minor age. Between 1991 and 1997, the number of incarcerated parents in state and federal prisons increased by seventy-nine percent. For incarcerated parents who are subject to a child support order, arrears and interest will accrue during their period of incarceration unless the parent petitions the court for a modification of the support order. However, this is not often a realistic alternative for incarcerated parents who are unlikely to know about the modification process. Currently, there is no uniform statewide approach being utilized to assist this population of obligors, although the Department of Child Support Services has recently established a workgroup to work towards this end. Lack of resources at the local level has also compounded this problem, as local child support agencies do not have the means to implement outreach programs to parents incarcerated within their jurisdiction. In the meantime, the arrears balance for the state's incarcerated parents continues to grow, but will remain largely uncollectible. This has implications not only for the state's federal child support performance measures, which affects the incentives funding received from the federal government, but also for the rates of recidivism for obligors. In order to address these issues, this bill seeks to automatically suspend child support obligations when a child support obligor is incarcerated or involuntarily institutionalized for more than 30 days. FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local: No SUPPORT : (Verified 5/12/10) California Public Defenders Association Family Law Section of the State Bar CONTINUED SB 1355 Page 5 ARGUMENTS IN SUPPORT : The author's office states, "There are a number of reasons why orders should be modified/suspended for prisoners. First, accumulated arrears may make it more difficult for prisoners to make a successful transition from prison back to the community. Ex-offenders may face wage attachments up to 65 percent of their income if they do become employed and can face driver's license suspensions or other coercive enforcement measures. "Additionally, families do not benefit from arrears that can never be paid. Finally, since prisoners are unlikely to be able to make current support payments and payments on arrears, failure to collect in these cases will negatively influence the federal performance measures and, hence, the amount of incentives the state receives from the federal government ? There are a large number of men and women who are incarcerated, institutionalized or entering prison unaware of the existing child support orders against them. For those individuals and others who are or become aware of the support order, many are unaware of their responsibility to notify the court of their change in circumstance. In these cases, a parent's legal responsibilities to comply with their child support order remain. On an average, incarcerated parents owe more than $20,000 when they are released from prison [citation omitted]. Unless modified, accumulated child support debt can undermine an individual's effort to obtain and maintain regular employment when released - resulting in their inability to pay child support and reunite with their family." In support, the Family Law Section of the State Bar writes, "As amended, SB 1355 follows the spirit of the Santa Clara County Standard Orders Attachment which is made a part of all matters being enforced under Title IV of the Social Security Act. The Santa Clara County Standards Orders Attachment provides that child support is automatically modified and set at zero dollars per month starting on the 1st day of the month following the incarceration of a child support obligor or the entrance of an obligor into a court-ordered licensed residential drug and/or alcohol treatment facility program that lasts for 30 or more consecutive days and the child support obligor has no CONTINUED SB 1355 Page 6 earnings or other source of income." RJG:do 5/12/10 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED