BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 1355|
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UNFINISHED BUSINESS
Bill No: SB 1355
Author: Wright (D)
Amended: 8/12/10
Vote: 21
SENATE JUDICIARY COMMITTEE : 4-0, 5/4/10
AYES: Corbett, Harman, Hancock, Leno
NO VOTE RECORDED: Walters
SENATE APPROPRIATIONS COMMITTEE : 10-0, 5/24/10
AYES: Kehoe, Cox, Alquist, Corbett, Denham, Leno, Walters,
Wolk, Wyland, Yee
NO VOTE RECORDED: Price
SENATE FLOOR : 35-0, 6/2/10
AYES: Aanestad, Alquist, Ashburn, Calderon, Cedillo,
Cogdill, Corbett, Correa, Cox, Denham, DeSaulnier,
Ducheny, Dutton, Florez, Hancock, Hollingsworth, Huff,
Kehoe, Leno, Liu, Lowenthal, Negrete McLeod, Padilla,
Pavley, Price, Romero, Runner, Simitian, Steinberg,
Strickland, Walters, Wolk, Wright, Wyland, Yee
NO VOTE RECORDED: Harman, Oropeza, Wiggins, Vacancy,
Vacancy
ASSEMBLY FLOOR : 51-24, 8/23/10 - See last page for vote
SUBJECT : Child support: suspension of support order
SOURCE : Author
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DIGEST : This bill provides, until July 1, 2015, 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,
any period exceeding 90 days, 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.
Assembly Amendments (1) provide for a July 1, 2015 sunset
date (2) and provide the provisions apply to support orders
and modifications on or after July 1, 2011.
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 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.)
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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 90 consecutive
days unless the obligor has the means to pay support while
incarcerated or institutionalized.
This 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.
This bill requires the court to provide notice to the
parties of the support obligation suspension at the time
the order is issued.
This 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 did not have the means to pay the
support. 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.
This bill provides that the court may the obligor's
petition if it finds that 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,
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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.
This 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.
This bill provides that the above provisions apply to all
child support orders and modifications of child support
order requested on or after July 1, 2011.
This bill requires the Judicial Council, on or before July
1, 2011, proscribe forms necessary for the implementation
of this section, including forms for a petition to adjust
arrears.
The provisions of this bill sunset on July 1, 2015.
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
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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
According to the Senate Appropriations Committee analysis:
Fiscal Impact (in thousands)
Major Provisions 2010-11 2011-12
2012-13 Fund
Suspension of arrearsPotentially significant decrease in
revenue General
New court petition------Unlikely to create new costs----
General*
process
New forms -------Minor and absorbable----------
General*
*Trial Courts Trust Fund
SUPPORT : (Verified 8/23/10)
California Public Defenders Association
Family Law Section of the State Bar
Fathers and Families
ARGUMENTS IN SUPPORT : The author's office states, "There
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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
earnings or other source of income."
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ASSEMBLY FLOOR :
AYES: Ammiano, Arambula, Bass, Beall, Blumenfield,
Bradford, Brownley, Buchanan, Caballero, Charles
Calderon, Carter, Chesbro, Coto, Davis, De La Torre, De
Leon, Eng, Evans, Feuer, Fletcher, Fong, Fuentes,
Galgiani, Gilmore, Hall, Hayashi, Hernandez, Hill,
Huffman, Jones, Lieu, Bonnie Lowenthal, Ma, Mendoza,
Monning, Nava, Nestande, V. Manuel Perez, Portantino,
Ruskin, Salas, Saldana, Skinner, Solorio, Swanson,
Torlakson, Torrico, Tran, Villines, Yamada, John A. Perez
NOES: Adams, Anderson, Bill Berryhill, Tom Berryhill,
Conway, Cook, DeVore, Fuller, Gaines, Garrick, Gatto,
Harkey, Huber, Jeffries, Knight, Logue, Miller, Niello,
Nielsen, Norby, Silva, Smyth, Audra Strickland, Torres
NO VOTE RECORDED: Block, Furutani, Hagman, Vacancy,
Vacancy
RJG:do:kc 8/24/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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