BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 610 (Jones-Sawyer)
Version: July 2, 2015
Hearing Date: July 14, 2015
Fiscal: Yes
Urgency: Yes
NR
SUBJECT
Child support: suspension of support order
DESCRIPTION
This bill until January 1, 2020, would specify that the
suspension of a child support order occurs by operation of law
when an obligor is incarcerated or involuntarily
institutionalized, unless the obligor was incarcerated for
domestic violence or failure to pay child support or has the
ability to pay. This bill would also authorize, after notice to
the obligee and obligor, the local child support agency to
administratively adjust account balances for cases managed by
the agency, if neither the obligor nor the obligee object to the
adjustment. If either the obligor or the obligee objects to the
adjustment, the bill would require the agency to file a motion
with the court to adjust the arrears. This bill would require
the child support obligation to resume after the release of the
obligor.
This bill would also require the Department of Child Support
Services, in consultation with the Judicial Council, to develop
forms to implement these provisions, and would require them to
report specified information relating to these provisions to the
Assembly Judiciary Committee and the Senate Judiciary Committee
on or before January 1, 2019.
This bill would take effect immediately as an urgency statute.
BACKGROUND
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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. 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, the Legislature approved SB
1355 (Wright, Chapter 495, Statutes of 2010), which created a
pilot program to suspend the obligation to pay child support,
for certain obligors who are involuntarily institutionalized or
incarcerated, unless the obligor otherwise has the means to pay
support. Upon release, that bill required that the obligation
to pay child support immediately resume to the amount specified
in the child support order prior to the suspension. SB 1355,
which has only had limited success because very few obligors
have succeeded in having their obligations suspended while
incarcerated, will sunset in July of this year. This bill,
seeking to better effectuate and evaluate the goals of SB 1355,
would, expand the provisions of SB 1355 to extend to all
obligors by operation of law, allow a local child support agency
to administratively adjust arrears, and would require the
Judicial Council and the Department of Child Support Services to
evaluate the program before it sunsets in 2020.
CHANGES TO EXISTING LAW
Existing law establishes the Department of Child Support
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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. (Fam. Code Sec.
17202.)
Existing law requires, at the local level, the child support
enforcement program to be run by local child support agencies
(LCSA), which shall have the responsibility for promptly and
effectively establishing, modifying, and enforcing child support
obligations. (Fam. Code Sec. 17400.)
Existing law provides that a support order may be modified or
terminated at any time as the court determines to be necessary,
pursuant to the filing of a motion or an order to show cause.
(Fam. Code Sec. 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. Sec. 666(a)(9); Fam. Code Sec.
3653.)
Existing law provides that the provision below does not apply 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. (Fam. Code Sec. 4007.5.)
Existing law provides that the obligation to pay child support,
as specified, 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, upon release from incarceration or
institutionalization, may petition the court to adjust the
arrears as follows:
the obligor must show proof of dates of incarceration or
involuntary institutionalization, as well as proof that the
obligor did not have the means to pay support;
the obligor must serve copies of the petition on the
support obligee and the LCSA, who may file objections to
the petition;
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provides that arrears may not be adjusted until the
court has approved the petition; and
sunsets these provisions effective July 1, 2015. (Fam.
Code Sec. 4007.5.)
This bill would remove the sunset in the above provision and
instead make it operative on January 1, 2020.
This bill would provide, until January 1, 2020, that the
obligation to pay child support is suspended by operation of law
for the period of time that an obligor is incarcerated or
involuntarily institutionalized, as specified, unless:
the obligor has the means to pay support while incarcerated or
institutionalized;
the obligor was incarcerated for any domestic violence
offence; or
the obligor was incarcerated for failure to pay child support.
This bill would provide 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.
This bill would allow a local child support agency to
administratively adjust a child support order if the LCSA
notifies the obligee and provides him or her with a form to
object to any adjustment, if one of the following apply:
the arears and interest accrued were in violation of the
provisions of this bill;
the agency verifies that the obligor 1) did or did not have
the ability to pay support, or 2) was, or was not,
incarcerated for domestic violence, as specified, or failure
to pay child support; and
neither the obligee or obligor object, as specified.
This bill would provide that if either party objects to an
adjustment of child support arears by the LCSA, the LCSA must
instead file a motion to adjust arears with the court and serve
copies of the motion on the parties.
This bill would require DCSS in consultation with Judicial
Council, to develop forms to implement the administrative
adjustment process.
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This bill would require DCSS and the Judicial Council to conduct
an evaluation of the effectiveness of the administrative
adjustment process, as specified, and report the results and any
recommended changes to the Assembly Judiciary Committee and the
Senate Judiciary Committee.
COMMENT
1.Stated need for the bill
According to the author:
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 $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), Ch. 495, Stats. 2010,
which sunsets on July 1, 2015. Assembly Bill 610 will extend
this law as well as correct ineffective interpretation and
implementation of the bill by the Department of Child Support
Services.
2.Policy arguments for an automatic suspension of obligation
In 1999, Governor Gray Davis signed legislation creating the
Department of Child Support Services (DCSS) and enacting massive
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reforms of the state's child support system. (AB 196 (Kuehl,
Chapter 478, Statutes of 1999); SB 542 (Burton, Chapter 542,
Statutes of 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.
DCSS contracted with the Urban Institute to conduct this study,
which published its findings and recommendations on how to
improve collectibility of arrears in 2003. (The Urban
Institute, Examining Child Support Arrears in California: The
Collectibility Study, March 2003.)
One of the study's recommendations was to suspend child support
orders by operation of law while noncustodial parents are
incarcerated if they have no income or assets. The study found
that, although very few debtors were in state prison at any
point in time, their child support situations were dismal on
average. The median amount of child support orders for
incarcerated debtors was $291 per month, which was only slightly
lower than the median amount among all debtors. However, the
reported income and assets for incarcerated debtors was
substantially lower than other debtors. According to the study,
approximately half of incarcerated debtors had reported incomes
in the two years prior to incarceration and their median annual
net income was just under $3,000. The median arrears amount was
$14,564. The large amount of arrears, combined with an
inability to pay, can make it more difficult for individuals to
make the successful transition from prison back into the
community, thus increasing the likelihood of recidivism.
3. Limited success of SB 1355
When SB 1355 (Wright, Chapter 495, Statutes of 2010) was before
the Legislature, this Committee considered whether the automatic
suspension of support while the obligor was incarcerated would
affect the ability of a custodial parent to receive notice that
an obligor had been incarcerated. This Committee's analysis
noted that "in cases where payments are being made directly to a
custodial parent, there does not appear to be any process in
place by which the custodial parent would be notified of the
incarceration or subsequent suspension of obligation.
Potentially a custodial parent would stop receiving payments
with no prior knowledge of the automatic suspension and no way
to object to the suspension." Accordingly, the bill was amended
to limit the pilot project of SB 1355 to obligors who owed
payments or arrears to the state, thereby ensuring that DCSS or
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the local child support agency would be notified in order for
the support amount to be modified. However, since the
enactment of that pilot, only 187 petitions have been filed to
adjust child support payments and/or arrears. Of those 187
petitions, only a fraction have been granted. Thus, it is
arguably difficult to measure the success of SB 1355, and
whether the policy goals of that bill are being met. This
urgency measure would therefore, in response to the sunset of SB
1355 this month, extend and modify its provisions to better
achieve the policy goals of that legislation.
a) Expanding program to all obligors and allowing an
administrative adjustment
This bill would apply to all obligors, instead of only
obligors whose support order is being enforced by the local
child support agency, and suspend the order for support "by
operation of law" for any period exceeding 90 consecutive days
in which the obligor is incarcerated or involuntarily
institutionalized. This bill would also give the local child
support agency the ability to administratively adjust account
balances, either to reflect an appropriate suspension of an
obligation or to reverse an inappropriate suspension if the
obligor had the ability to pay, for a case managed by the
agency. For cases not managed by the agency when the obligor
was incarcerated, this bill would allow the agency, once it
began managing the child support case, to make this
administrative adjustment.
These changes will ensure that obligors do not need to file an
action in court prior to having arrears adjusted, and will
allow the local child support agency, in addition to the
court, to increase or decrease support amounts in the event
that the amount of support payments are inappropriate because
of the obligor's ability to pay. In practice, this will also
address the "notice" concern, mentioned above, by ensuring
that when a custodial parent who is not receiving support from
an obligor seeks the aid of the local child support agency to
collect, she will be able to learn whether the obligor is
incarcerated or not. If the custodial parent has knowledge
that the obligor, despite being incarcerated, has the means to
pay support, the local child support agency may
administratively adjust the support obligation, after notice
to the parties, thereby requiring the obligor to pay. In
support, the California Judges Association writes, "AB 610
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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."
b) Requiring report by Judicial Council and Department of
Child Support Services
This bill would require that the Department of Child Support
Services and the Judicial Council conduct an evaluation and
report on the effectiveness of the administrative adjustment
process, to both the obligor and obligee, as well as an
analysis of the number of cases adjusted administratively, by
the court, or not adjusted. This report is due to the Senate
and Assembly Judiciary Committees one year before the
provisions of this bill, if enacted, are set to expire. This
provision arguably will ensure that the Legislature has
adequate information with which to determine whether the
policy goals of this legislation are being met, and
potentially extend the provisions of the bill beyond 2020.
4. Sunset dates
This bill would remain in effect until January 1, 2020, unless a
statute enacted before that date deletes or extends that sunset.
This bill would also provide that, beginning January 1, 2020,
the provisions of the current version of Family Code Section
4007.5, enacted by SB 1355 and set to sunset this year (see
Background), would be enacted.
This bill, brought largely in response to the lack of documented
success of SB 1355, arguably should not, without further review
and action by the Legislature, remove the sunset in SB 1355.
The following amendment would instead ensure that the provisions
of this bill truly replace those of the pilot project it seeks
to improve, and if the Legislature chooses not to extend or
remove the sunset on this bill, the provisions of SB 1355 and AB
610 will both be repealed.
Author's amendment:
Strike Section 3
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Support : Butte County Board of Supervisors; California Judges
Association; California State Association of Counties; Legal
Services for Prisoners with Children; one individual
Opposition : None Known
HISTORY
Source : Placer County; San Francisco County; San Joaquin
County; Stanislaus County
Related Pending Legislation : None Known
Prior Legislation :
SB 1355 (Wright, Chapter 495, Statutes of 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 California Department of Corrections and
Rehabilitation. 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.
Prior Vote :
Assembly Floor (Ayes 69, Noes 4)
Assembly Appropriations Committee (Ayes 16, Noes 1)
Assembly Judiciary Committee (Ayes 9, Noes 1)
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