BILL ANALYSIS SB 1355 Page 1 SENATE THIRD READING SB 1355 (Wright) As Amended August 12, 2010 Majority vote SENATE VOTE :35-0 JUDICIARY 9-1 APPROPRIATIONS 13-1 ----------------------------------------------------------------- |Ayes:|Feuer, Tran, Brownley, |Ayes:|Fuentes, Bradford, | | |Evans, Hagman, Jones, | |Charles Calderon, Coto, | | |Monning, Nava, Huffman | |Davis, De Leon, Gatto, | | | | |Hall, Miller, Skinner, | | | | |Solorio, Torlakson, | | | | |Torrico | | | | | | |-----+--------------------------+-----+--------------------------| |Nays:|Knight |Nays:|Harkey | | | | | | ----------------------------------------------------------------- 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)Provides, effective July 1, 2011, 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) above. 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 SB 1355 Page 2 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) above, 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 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, on or before July 1, 2011, to develop the forms necessary to implement these provisions, including a form to petition to adjust arrears. 9)Sunsets these provisions effective July 1, 2015. EXISTING LAW : 1)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. 2)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. FISCAL EFFECT : According to the Assembly Appropriations analysis: SB 1355 Page 3 1)To the extent that suspending child support orders encourages incarcerated noncustodial parents to resume paying child support upon their release, it could result in an increase in the amount of child support that is successfully collected. 2)The accumulation of past due child support, along with the reduction in current support payments reduces the state's performance on federal child support measures. This, in turn, reduces the incentive funding California receives from the federal government for its child support program. Therefore, suspending child support orders and reducing the amount of past due child support could increase the amount of federal funding for the Department of Child Support Services (DCSS). 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%. 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 1999, as part of legislation creating DCSS, DCSS was mandated to analyze the current amount of child support arrears statewide and determine the amount that is realistically collectible. The SB 1355 Page 4 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. 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. Research strongly suggests that the build-up of uncollectible debt has implications not just for the obligor, but also for the family: 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 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 SB 1355 Page 5 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. Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334 FN: 0005878