BILL ANALYSIS
SB 1355
Page 1
Date of Hearing: June 15, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 1355 (Wright) - As Amended: June 10, 2010
SENATE VOTE : 35-0
SUBJECT : Child Support: Suspension of Order
KEY ISSUE : IN ORDER TO PREVENT THE BUILD-UP OF UNCOLLECTIBLE
ARREARS, PREVENT RECIDIVISM, INCREASE FEDERAL INCENTIVE PAYMENTS
TO THE STATE, AND, MOST IMPORTANTLY, HELP ENSURE THAT CHILDREN
RECEIVE TIMELY CHILD SUPPORT, SHOULD A CHILD SUPPORT OBLIGATION
BE AUTOMATICALLY SUSPENDED WHEN AN OBLIGOR IS INCARCERATED OR
INVOLUNTARILY INSTITUTIONALIZED, UNLESS THE OBLIGOR HAS THE
MEANS TO PAY THE SUPPORT OBLIGATION?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
When noncustodial parents are incarcerated, unless they seek a
modification of their child support order, their support
obligation continues unabated, and interest accrues on the
unpaid debt. According to a study of California's child support
caseload by the Urban Institute, only about half of incarcerated
child support obligors had reported incomes in the two years
prior to their incarceration and, of those, their median annual
net income was just under $3,000. Their median arrears were
$14,564. Researchers have discovered that the build-up of
uncollectible child support while an obligor is incarcerated has
implications not just for the obligor, but also for the state
and the family. A just-released obligor, with a large support
debt and few employment prospects, is far more likely to avoid
the formal economy and, therefore, pay no child support and have
little or no contact with his or her children. In addition, the
failure to collect ongoing child support will result in the
state receiving less incentive funding from the federal
government. Finally, recidivism rates appear to increase for
obligors with large child support debts.
Effective July 1, 2011, this bill suspends the obligation to pay
child support for the period of time in which an obligor is
incarcerated or involuntarily institutionalized, unless the
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obligor has the means to pay support while incarcerated or
institutionalized. Upon release, the obligation to pay child
support immediately resumes to the amount specified in the child
support order prior to the suspension of that obligation. In
order to ensure children and the state benefit from these
proposed changes, this bill applies only to cases being enforced
by the state child support program and the program sunsets on
July 1, 2015. This bill is supported by the Family Law Section
of the State Bar, the California Public Defenders Association
and Fathers and Families. There is no known opposition.
SUMMARY : Suspends, until July 1, 2015, the obligation to pay
child support under an order enforced by the state child support
program while the obligor is incarcerated or involuntarily
institutionalized, except as specified. Specifically, this
bill :
1)Effective July 1, 2011, provides that the obligation to pay
child support pursuant to an order that is being enforced
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 90
consecutive days, unless the obligor has the means to pay
support while incarcerated or institutionalized.
2)Provides that the suspension only applies during the period of
incarceration or institutionalization and automatically
resumes to the original amount in the order upon release.
3)Allows the obligor, upon release from incarceration or
institutionalization, to petition the court to adjust arrears
pursuant to the suspension in #1. Requires the obligor to
show proof of dates of incarceration or involuntary
institutionalization, as well as proof that the obligor did
not have the means to pay support. Requires the obligor to
serve copies of the petition on the support obligee and the
local child support agency, who may file objections to the
petition. Provides that arrears may not be adjusted until the
court has approved the petition.
4)Provides that, notwithstanding #1, the court may continue the
support obligation if the obligor is incarcerated or
involuntarily institutionalized for any domestic violence
offense against the custodial parent or the supported child,
any offense that could be enjoined by a domestic violence
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protective order, or for failure to pay child support.
5)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.
6)Defines "suspend" as modifying the child support order to zero
for the period in which the obligor is incarcerated or
involuntarily institutionalized.
7)Applies to all child support orders issued or modified after
July 1, 2011.
8)Requires the Judicial Council to develop the form necessary to
implement these provisions, including a form to petition to
adjust arrears.
9)Sunsets these provisions effective July 1, 2015.
EXISTING LAW :
1)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. (Family Code Section 17202. Unless stated
otherwise, all further statutory references are to that code.)
2)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. (Section 17400.)
3)Provides that a support order may be modified or terminated at
any time as the court determines necessary. Provides that
such support modification or termination may only be made
pursuant to the filing of a motion or an order to show cause.
(Section 3651.)
4)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
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of motion or order to show cause to modify or terminate the
order. (42 U.S.C. Section 666(a)(9); Section 3653.)
COMMENTS : There are approximately 2.3 million prisoners in the
United States. A majority of these inmates have children under
18 years of age. Between 1991 and 1997, the number of
incarcerated parent in state and federal prisons increased by 79
percent.
For incarcerated parents who are subject to child support
orders, 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 often not 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 DCSS has recently established a
workgroup to work towards this end. Lack of resources at the
local level has 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 balances for the state's
incarcerated parents continue to grow, but will remain largely
uncollectible. According to research, discussed below, this
uncollectible support negatively impacts not only the obligor,
but also federal funding of the child support program, future
child support payments, as well as the obligor's contact with
the child, and even rates of recidivism for the obligor.
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 90 days, unless the obligor
otherwise has the means to pay the support.
In support of the bill, the author writes:
There are a number of good 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
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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.
Research Demonstrates Various Benefits From Not Accruing Child
Support Debt During Periods of Incarceration : In 1999, Governor
Gray Davis signed legislation creating DCSS and enacting massive
reforms of the state's child support system. (AB 196 (Kuehl),
Chap. 478, Stats. 1999; SB 542 (Burton), Chap. 542, Stats.
1999.) As part of the reforms, DCSS was mandated to analyze the
current amount of child support arrears statewide and determine
the amount that is realistically collectible.
The study found that, although very few obligors were in state
prison at any point in time, their child support situations
were, on average, dismal. The median amount of child support
orders for incarcerated obligors was $291 per month, which was
only slightly lower than the median amount among all obligors.
However, the reported income and assets for incarcerated
obligors was substantially lower than other obligors. According
to the study, only about half of incarcerated child support
obligors had reported incomes in the two years prior to their
incarceration and, of those, their median annual net income was
just under $3,000. Their median arrears were $14,564. As a
result, the study recommended suspending child support orders by
operation of law while noncustodial parents are incarcerated if
they have no income or assets. (Elaine Sorensen, Examining
Child Support Arrears in California: The Collectibility Study
(Urban Institute, March 2003).)
Studies in other states show similar arrears accumulation for
incarcerated obligors. (See Pamela Caudill Ovwigho, Correne
Saunders, and Catherine E. Born, The Intersection of
Incarceration & Child Support: A Snapshot of Maryland's
Caseload (Family Welfare Research and Training Group, University
of Maryland, School of Social Work, July 2005).)
Research strongly suggests that the build-up of uncollectible
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debt has implications not just for the obligor, but also for the
state and the family:
The [obligor] who will face, upon release, a
significant debt that could contribute to the
challenges ex-offenders face related to their re-entry
into society and discourage the [obligor]'s
participation in the formal economy.
The custodial parent, who not only does not receive
the amount due to him or her for support of a child as
delineated in an order while the [obligor] is
incarcerated, but may also not receive payments
subsequent to release if large arrears discourage the
[obligor]'s participation in the formal economy.
The child support enforcement system, whose ability
to collect current support, reduce current arrears, and
prevent the accumulation of additional debt may be
compromised. The correctional system, which has an
interest in eliminating barriers to ex-offenders'
successful re-entry into society, thereby minimizing
recidivism.
(Jennifer L. Noyes, Review of Child Support Policies for
Incarcerated Payers (Institute for Research on Poverty,
University of Wisconsin-Madison (December 2006).)
In particular, these formerly incarcerated obligors with large
uncollectible child support debt can cause harm to their
families both financially and emotionally:
Most people agree that parents should support their
children to the best of their ability. However,
children receive the most benefit from reliable long-
term support from their parents, even if those payments
are modest. The key to regular child support payments
is steady employment. The reality is that most parents
coming home from prison have trouble supporting
themselves, let alone their children. Those who cannot
maintain steady employment and keep up with their child
support obligations fall deeply into debt, and their
children lose out. . . .
When researchers from the Urban Institute asked
recently released men what kept them from returning to
prison, the largest percentage singled out support from
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their families and seeing their children as the most
important factors: ties with family and children
mattered even more than housing or employment. Strong
family relationships are positively correlated with
maintaining employment, staying away from drugs, and
rebuilding a social network after
incarceration-practices that also make society safer
and save taxpayers money. Yet, when parents walk away
from jobs, they often pull away from their children.
Parents who see no end in sight to their child support
debts are less likely to remain in low-wage jobs, to
comply with child support obligations in the future, or
to reunite with their children and reintegrate into
society.
(Kristen D. Levingston and Vicki Turetsky, Debtor's Prison -
Prisoners' Accumulation of Debt as a Barrier to Reentry (41
Clearinghouse Review (July-August 2007) (footnotes omitted).)
Moreover, the accumulation of uncollectible debt, along with the
reduction in current support payments will reduce the state's
performance on federal child support measures. This, in turn,
will directly reduce the incentive funding California receives
from the federal government for its child support program.
Other State Strategies : States have tried a variety of
strategies to deal with the problem of child support debt
accumulation for incarceration obligors. Some rely on their
automated system to determine when an obligor is incarcerated
and have that trigger a request for modification of the order.
Unfortunately, California's automated system does not interface
with the database maintained by the California Department of
Corrections and Rehabilitation (CDCR). Thus, there is no way
for DCSS to immediately know when an obligor has been
incarcerated for more than 90 days for the purposes of
suspending or modifying the support obligations. Furthermore,
DCSS has no way of knowing when the obligor has been released so
that the support obligation can be reinstated. To do this, DCSS
would need more sophisticated and comprehensive interlinked
databases. But, even this type of system would have limitations
because it would not necessarily contain information on obligors
who are incarcerated in different states.
In others states, child support staff work directly in the
prisons to obtain and process modification requests. In
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California, some local child support agencies work in a number
of facilities to help process modification requests, but this
strategy, which requires sufficient staff, is not done in many
of the jails and prisons in the state, and, most importantly,
does not easily allow the support order to go back to its
original amount when the obligor is released, since DCSS and the
local agencies have no way of knowing when the obligor is
released. Thus, even if there were sufficient child support
staff to be in every jail and prison in the state and to seek
modifications in all appropriate cases, the child owed support
would not benefit from having the order return to the
pre-incarceration amount once the obligor is released.
North Carolina has an order suspension process that is almost
identical to the one proposed in this bill, whereby child
support does not accrue during any period of time the obligor is
incarcerated and has no other resources with which to pay the
support. (N.C. Gen. Stat. Section 50-13.10(d)(4).)
This Bill Helps Protect Custodial Parents and Children in
Several Key Ways : First, under the terms of the bill, the
support obligation only suspends during the periods the obligor
is incarcerated or involuntarily institutionalized for more than
90 days and then the order automatically goes back to the
original amount as soon as the obligor is released. Second, the
order will never suspend if the obligor has the means to pay
support, even while in prison.
Third, while the order automatically suspends, in order to
actually reduce the arrears that accrued during incarceration or
institutionalization, the obligor must bring a petition in court
to adjust the arrears. As part of that petition, the obligor
must prove when he or she was incarcerated and must show that he
or she was unable to pay support during that time. Both the
custodial parent and the local child support agency get notice
of the petition and can object to the adjustment of arrears,
including by showing that the obligor had the ability to pay,
even while incarcerated. If the court denies the obligor's
petition, the court, effectively, denies the suspension of the
order while the obligor was incarcerated or institutionalized.
Finally, the bill allows the court to deny the obligor's
petition to adjust arrears if the obligor was incarcerated or
involuntarily institutionalized for any domestic violence
offense against the custodial parent or the support child, any
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offense that could be enjoined by a domestic violence protective
order, or for failure to pay child support. This should allow
the court to ensure that the obligor is not in any way
advantaged by directly harming the custodial parent and the
child.
In Order to Ensure that the Bill Benefits Families, This Bill
Rightly Proposes to Pilot the Automatic Suspension First with
State Child Support Cases, With a Sunset Four Years Later : As
discussed above, research strongly supports the proposal that
the accumulation of child support arrears while a support
obligor is in prison with no means to pay the support harms not
only the obligor, but also the state child support system and
its federal funding, the prison system with increased recidivism
rates, and, most importantly, the family owed support. However,
it is acknowledged that more research in this area is necessary
to fully quantify these harms and ensure that the bill's
proposed suspension will work to reduce them. Thus, this bill
rightly proposes to apply the automatic suspension only to cases
in the state's Title IV-D system. Moreover, the provisions of
the bill will sunset after four years, thus allowing the
Legislature time to review the results of the program and see if
it is working as anticipated and helping ensure that more
obligor parents, who have spent time incarcerated or
involuntarily institutionalized, are able to timely pay support
to their children upon their release.
Prior Legislation : AB 862 (Bass), 2005, would have required
that information and other materials regarding child support
modification be distributed to any parent with minor children,
while the parent is in the custody of CDCR. This bill was
vetoed.
AB 2245 (Wright), 2002, would have, among other things, required
that a child support order be suspended, including any
arrearage, interest, or penalty that may accrue, if the support
obligor is or was incarcerated in a penal institution for more
than 29 consecutive days, and is without the resources to pay
child support. That bill failed passage in this Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
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California Public Defenders Association
Family Law Section of the State Bar
Fathers and Families
Opposition
None on file
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334