BILL ANALYSIS Ó
AB 610
Page 1
Date of Hearing: April 7, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 610
(Jones-Sawyer) - As Introduced February 24, 2015
As Proposed to be Amended
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 THE PILOT PROGRAM TO
AUTOMATICALLY SUSPEND A CHILD SUPPORT OBLIGATION WHEN THE
OBLIGOR IS INCARCERATED OR INVOLUNTARILY INSTITUTIONALIZED BE
CONTINUED?
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. Of those, their median annual net
income was just under $3,000, and their median arrears were
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$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.
In an effort to address these negative impacts, the Legislature
approved SB 1355 (Wright), Chap. 495, Stats. 2010, which created
a pilot program to suspend the obligation to pay child support,
for child support obligors in the state child support program,
for the period of time in which the obligor is incarcerated or
involuntarily institutionalized, unless the obligor otherwise
has the means to pay support. 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. That program, which is scheduled to sunset on July
1, 2015, has had limited success, with very few child support
obligors seeking to have their arrears suspended in court and
even fewer actually succeeded in having their arrears suspended.
This urgency legislation would extend the pilot until January 1,
2020 and expand it to include all child support cases, not just
those in the state child support program. In addition, the
expanded pilot would permit the local child support agency to
administratively adjust the arrears, provided no party objects.
The bill would also require that an evaluation of the program be
performed, with a report to the Legislature. The California
Judges Association supports this bill, and there is no reported
opposition.
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SUMMARY: Continues, effective immediately as urgency
legislation, a pilot program to suspend the obligation to pay
child support while an obligor is incarcerated or involuntarily
institutionalized, except as specified. Specifically, this
bill:
1)Provides, until January 1, 2020, that the obligation to pay
child support is suspended for the period of time in which the
obligor is incarcerated or involuntarily institutionalized, as
defined, for any period exceeding 90 consecutive days, unless
the obligor has the means to pay support while incarcerated or
institutionalized or was incarcerated for any domestic
violence offense or as a result of failure to pay child
support. Takes effect immediately as urgency legislation.
2)Provides that the suspension only applies during the period of
incarceration or institutionalization and automatically
resumes to the amount of the pre-suspension order on the first
day of the first full month after release.
3)Allows a local child support agency (LCSA) to administratively
adjust the order based on the suspension during incarceration
or institutionalization if: (a) The LCSA verifies the arrears
and interest that accrued during the period of incarceration
or institutionalization; (b) the LCSA notifies the obligor and
the obligee, in writing, of the possible adjustment and
neither objects within 30 days; and (c) the LCSA confirms that
the obligor did not have the means to pay child support while
incarcerated and was not incarcerated for domestic violence or
for failure to pay child support.
4)Prohibits the LCSA, if either the child support obligor or the
oblige objects, from administratively adjusting the arrears
and requires the LCSA instead to file a motion to adjust the
arrears with the court and to serve copies of the motion on
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the parties.
5)Requires, by January 1, 2016, the Department of Child Support
Services (DCSS), in consultation with the Judicial Council, to
develop forms to implement the administrative adjustment
process.
6)Requires DCSS and the Judicial Council to conduct an
evaluation of the effectiveness of the administrative
adjustment process and to report the results of the review, as
well as any recommended changes, to the Assembly and Senate
Judiciary Committees by January 1, 2019. Requires the
evaluation to include a review of the ease of the process to
both the obligor and obligee, as well as an analysis of the
number of cases administratively adjusted, the number of cases
adjusted in court, and the number of cases not adjusted.
7)Re-establishes, effective January 1, 2020, the original pilot
project that 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.
EXISTING LAW:
1)Establishes 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
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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
of motion or order to show cause to modify or terminate the
order. (42 U.S.C. Section 666(a)(9); Section 3653.)
5)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. Allows the
obligor, upon release from incarceration or
institutionalization, to petition the court to adjust the
arrears pursuant to the suspension. 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
LCSA, who may file objections to the petition. Provides that
arrears may not be adjusted until the court has approved the
petition. Sunsets these provisions effective July 1, 2015.
(Section 4007.5.)
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6)Provides that, notwithstanding #5, 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.
(Section 4007.5.)
FISCAL EFFECT: As currently in print this bill is keyed
non-fiscal.
COMMENTS: 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.
In response to these grim findings, the Legislature created a
pilot program - only through July 1, 2015 and only for cases
being enforced by the state child support program - to suspend
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the obligation to pay child support for the period of time in
which an obligor is incarcerated or involuntarily
institutionalized, unless the obligor otherwise has the means to
pay support while incarcerated or institutionalized. (SB 1355
(Wright), Chap. 495, Stats. 2010.) 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.
Unfortunately, that program has not proved very successful at
preventing the build-up of uncollectible arrears. Data from
DCSS show that very few noncustodial sought to have their
arrears suspended once out of prison - just 178 petitions were
filed - and of those only 14 (or 8 percent) were granted under
the pilot program. That program is scheduled to sunset on July
1st of this year. This bill seeks to extent and expand that
pilot in the hopes that the expanded pilot program can be more
successful at helping reducing uncollectible child support and
in helping noncustodial parents better support their children.
In support of the bill, the author writes:
If [the pilot program] is allowed to sunset, incarcerated
Obligors will have no ability to obtain the protections
that they are legally entitled to under this provision
(burdensome as they are), federal prohibitions against
retroactive adjustments of arrears will again control for
the state of California, and the amount of California's
arrears accumulation due to incarcerated Obligors will
continue to grow, and accumulate 10% interest.
The law was well intentioned but largely ineffectual which
resulted in the main purpose of the statute (administrative
authority to adjust arrears) unavailable to LCSA's.
Problems with the current law included:
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A large portion of those who qualify for this
relief are not aware of it, nor how to avail
themselves of it.
An inability to track and measure results
effectively and accurately.
A lack of consistent and uniform outreach to
incarcerated obligors to inform them of their rights
under this section.
A requirement that those seeking relief under
this section obtain a court hearing (which is
confusing, challenging, time-consuming, and for some
in this classification, frightening)
Inconsistent application among LCSA's and
courts.
The intent of the new law, if operating as intended is
multi-faceted. When offenders are sentenced, almost
invariably they have no income while incarcerated. This is
a legal justification for modifying an order, but offenders
are usually unaware of this, and it is a difficult and
lengthy process to obtain a court date. While
incarcerated, Obligors accrue child support arrears due to
an inability to pay. Many studies indicate that not only
is it highly likely that this population had an initial
child support order that was set too high (for various
reasons), but a large portion of these accrued arrears will
likely never be paid back, while having additional adverse
side-affects for the Obligors, affecting employability,
licenses, passports, bank accounts, and liens, among other
enforcement consequences.
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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
debt has implications not just for the obligor, but also for the
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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 (Dec. 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.
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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
Clearinghouse Review (July-Aug. 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,
directly reduces 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
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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
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 very
similar to California's current pilot, 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).)
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Limited Data Makes Clear That California Pilot Project Failed to
Help Most Incarcerated Noncustodial Parents: The original pilot
project did not require an evaluation and none was performed.
However, DCSS did provide the Committee with some limited data
on the effectiveness of the project. According to DCSS, in the
first three years of the pilot (through early 2014) only 178
petitions were filed by noncustodial parents to suspend their
arrears. Of those petitions, only 14 - or 8 percent - were
granted under the pilot program, while 11 petitions were granted
for other reasons. Sixty-one petitions - or 35 percent - were
denied based on the pilot project, another 15 were denied
without prejudice, 45 were dropped, and 21 resulted in
stipulations between the parties. While this data may not be
complete or fully accurate, it is hard to believe that in the
three-year period in question only 14 noncustodial parents were
able to met the criteria to have their child support arrears
suspended based on incarceration. It is obvious that the pilot
project did not work as anticipated and did not help the vast
majority of recently released noncustodial parents avoid
uncollectable child support arrears.
Bill Proposes Significant Changes from the Existing Pilot to
Make the Program More Effective: This new proposed pilot
program makes a number of changes from the existing pilot to,
hopefully, make it more effective. First, the new pilot would
apply to all cases, not just cases within the state child
support program. This should open up the suspension program to
many more noncustodial parents.
Second, this bill creates an administrative adjustment process
that allows local child support agencies to administratively
adjust any arrears that accrued while the order was suspended by
operation of law. This significantly reduces the burden on the
noncustodial parent who now has to, under the existing pilot
program, know about the program, file the petition with the
court, serve the petition, go into court and seek the
adjustment, which by itself may have resulted in the low number
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of petitions filed under the existing pilot program. However,
to ensure that the order is only adjusted appropriately, this
bill only allows the local child support agency to
administratively adjust the arrears if the local agency: (1)
verifies the arrears and interest that accrued during the period
of incarceration or institutionalization; (2) notifies the
obligor and the obligee, in writing, of the possible adjustment
and neither objects within 30 days; and (3) confirms that the
obligor did not have the means to pay child support while
incarcerated and was not incarcerated for domestic violence or
for failure to pay child support.
Even then, if either the child support obligor or the oblige
objects, the local agency cannot adjust the arrears and must
instead file a motion to adjust the arrears with the court and
serve copies of the motion on the parties. This ensures that
the court is making the decision about the arrears adjustment
when there is any issue or concern. In order to ensure that the
process works smoothly, the bill requires DCSS, in consultation
with the Judicial Council, to develop forms to implement the
administrative adjustment process.
These changes should make the program more effective in helping
reduce uncollectible arrears, increasing federal incentive
payments and helping formerly incarcerated noncustodial parents
better support their children.
Like the Existing Pilot, this Bill Continues to Help 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 pre-suspension amount
one month after the obligor is released. Second, the order will
never suspend if the obligor has the means to pay support, even
while in prison.
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Finally, the bill, like the original pilot, prevents reduction
of arrears if the obligor was incarcerated or involuntarily
institutionalized for any domestic violence offense against the
custodial parent or the support child, any 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 or the child.
In Order to Ensure that the Bill Benefits Families, This Bill
Rightly Proposes to Pilot the New Expansion, With a Required
Evaluation and a Sunset of the New Expansion 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, while extending the program to all cases and
testing an administrative adjustment of arrears, to sunset the
expansion at the end of 2019. At that point, the program would
revert to the current, less than effective program, but would
still allow some relief for those noncustodial parents with
cases in the state child support program who are sufficiently
able and motivated to go to court themselves.
In addition, this bill requires DCSS and the Judicial Council to
conduct an evaluation of the effectiveness of the expanded pilot
program, including its expansion to all cases and the
administrative adjustment process, and to report the results of
the review, as well as any recommended changes, to the Assembly
and Senate Judiciary Committees by January 1, 2019. The
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evaluation must include a review of the ease of the process to
both the obligor and obligee, as well as an analysis of the
number of cases administratively adjusted, the number of cases
adjusted in court, and the number of cases not adjusted. This
information should help better inform the Legislature on how the
program is working and if any part of it needs to be changed,
which, in turn, should lead to a more successful statewide child
support program. The report is due a year before the expanded
pilot is set to expire, which will give the Legislature
sufficient time to fully evaluate the pilot.
ARGUMENTS IN SUPPORT: The California Judges Association writes:
"AB 610 will clarify that the temporary suspension of child
support occurs by operation of law for incarcerated obligors.
This will relieve the burden on incarcerated obligors who often
do not know that their support obligations continue while they
are incarcerated unless they take affirmative steps to suspend
them, and will likely reduce courtroom and administrative time
processing those actions."
Prior Legislation: SB 1355 (Wright), Chap. 495, Stats. 2010,
created a pilot program to suspend child support when an obligor
is incarcerated, which expires on July 1, 2015.
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.
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REGISTERED SUPPORT / OPPOSITION:
Support
None on file
Opposition
None on file
Analysis Prepared by:Leora Gershenzon / JUD. / (916) 319-2334
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