BILL ANALYSIS Ó
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
AB 610 (Jones-Sawyer) - Child support: suspension of support
order
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|Version: July 16, 2015 |Policy Vote: JUD. 7 - 0 |
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|Urgency: Yes |Mandate: No |
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|Hearing Date: August 17, 2015 |Consultant: Jolie Onodera |
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This bill meets the criteria for referral to the Suspense File.
Bill
Summary: AB 610, an urgency measure, would until January 1,
2020, specify that the suspension of a child support order
occurs by operation of law for any period exceeding 90
consecutive days in which an obligor is incarcerated or
involuntarily institutionalized, subject to specified
exceptions. This bill would require the Department of Child
Support Services (DCSS) and the Judicial Council to evaluate the
effectiveness of the administrative adjustment process and
report to the Legislature by January 1, 2019.
Fiscal
Impact:
Retroactive modification provisions : The DCSS has indicated
the provisions of this measure could potentially be in
violation of federal law with regard to the prohibition on
AB 610 (Jones-Sawyer) Page 1 of
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retroactive modification of child support orders, as
specified. According to the DCSS, violations of federal law
could potentially put federal child support funding of $680
million at risk.
Forms and legislative report : Minor and absorbable one-time
costs to the Judicial Council and the DCSS to develop the
required forms, evaluate the process and report to the
Legislature, as specified, on or before January 1, 2019.
LCSA administration : Potential minor to moderate increase in
local child support agency (LCSA) administrative costs
(Federal Funds/General Fund) to comply with the bill's
provisions.
CalWORKs impact : Minor, if any, loss of child support payment
revenue to offset CalWORKs program costs, as only those
obligors who do not have the means to pay support will have
their child support orders automatically suspended.
Background: Prior law required, until July 1, 2015, that the obligation to
pay child support pursuant to an order being enforced by a LCSA
was to be suspended for the period of time exceeding 90
consecutive days in which an obligor is incarcerated or
involuntarily institutionalized, unless the obligor has the
means to pay, the obligor was incarcerated for an offense
constituting domestic violence, or the obligor was incarcerated
for failure to pay child support. Prior law provided that upon
release from incarceration or involuntary institutionalization,
an obligor could petition the court for an adjustment of the
arrears pursuant to the suspension of the support obligation
authorized, subject to 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. An obligor's arrears were not to be adjusted until the
court approved the petition.
This bill seeks to provide for the suspension of child support
by operation of law during a period of incarceration or
involuntary institutionalization, and authorizes an LCSA to
administratively adjust the order, as specified. This bill would
also expand the population of applicable obligors beyond those
individuals whose support orders are being enforced by LSCAs to
all child support obligors.
AB 610 (Jones-Sawyer) Page 2 of
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Proposed Law:
This bill would provide, until January 1, 2020, that the
obligation to pay child support is suspended by operation of law
for any period exceeding 90 consecutive days that an obligor is
incarcerated or involuntarily institutionalized, as specified,
unless the obligor meets any of the following criteria:
Has the means to pay support while incarcerated or
institutionalized.
Incarcerated for any domestic violence offence.
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.
Additionally, this bill:
Allows a LCSA to administratively adjust a child support
order upon written notification of the obligee and obligor
and provision to him or her of a form to object to any
adjustment, if all of the following occurs:
o The arrears and interest were accrued in
violation of the provisions of this bill.
o 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.
o Neither the obligee or obligor object, as
specified.
Provides that if either party objects to an adjustment
of child support arrears by the LCSA, the LCSA must instead
file a motion to adjust arrears with the court and serve
copies of the motion on the parties.
Defines "suspend" to mean that the payment due on the
current child support order and any arrears payment, or
interest resulting from these amounts, is, by operation of
law, set to zero dollars for the period in which the person
owing support is incarcerated or involuntarily
institutionalized.
Provides that if a local child support agency is
enforcing a child support order, as specified, the
provisions of the bill apply to an order or modification
AB 610 (Jones-Sawyer) Page 3 of
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issued on or after July 1, 2011.
Requires DCSS, by January 1, 2016, in consultation with
Judicial Council, to develop forms to implement the
administrative adjustment process.
Requires 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 by January 1,
2019.
Sunsets the bill's provisions on January 1, 2020.
Prior
Legislation: SB 1355 (Wright) Chapter 495/2010 created a pilot
program to suspend child support payments when an obligor is
incarcerated, as specified. This pilot program expired on July
1, 2015.
Staff
Comments: By authorizing LCSAs to administratively adjust child
support orders pursuant to specified standards and procedures,
this bill could result in additional workload for LCSAs. The
magnitude of workload to provide written notification of
proposed adjustments to child support obligors/obligees is
dependent on the volume of cases statewide requesting
retroactive adjustments, which at this time is unknown. Any
increase in administration costs of the child support program
would be funded from federal funds (66 percent) and state
General Fund (34 percent). Child support administration
expenditures are comprised of local staff salaries, local staff
benefits, and operating expenses and equipment.
The DCSS has indicated that the provisions of this bill could
potentially be in violation of federal law. Pursuant to 42 USC §
666(a)(9), also known as the "Bradley Amendment," the
retroactive modification of child support orders is prohibited,
with the exception of pending modifications, but only from the
date that notice has been given to the obligee or obligor.
This bill provides that if a local child support agency is
enforcing a child support order, as specified, the provisions of
the bill apply to an order or modification issued on or after
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July 1, 2011. The prior provisions of Family Code § 4007.5 have
expired, and any modifications to orders prior to the enactment
date of this measure could potentially be found to be in
violation of federal law.
Additionally, state law (Code of Civil Procedure §§ 685.010,
685.030, 695.211) mandates that interest be charged on all money
judgments at the legal rate, as specified, with no exceptions
that apply to incarcerated debtors. Therefore, suspension of
interest on arrears balances should only be applied to those
amounts accrued during the period of incarceration. As a result,
broad application to interest being accrued on any arrears
balance existing prior to the date of incarceration is also
potentially a violation of state and federal law.
To the extent the issues identified above can be addressed,
staff notes the overall intent of this measure appears
consistent with the provisions of a federal notice of proposed
rulemaking by the Centers for Medicare and Medicaid Services
(CMS) and the Children and Families Administration (November 17,
2014), which stated:
"Also, we propose to add a new paragraph (b)(2) that would allow
the child support agency to elect in its State plan the option
to initiate the review of a child support order and seek to
adjust the order, if appropriate, after being notified that a
noncustodial parent will be incarcerated for more than 90 days.
This review would not need a specific request, provided both
parents had received notice. In electing this State plan option,
the State may also need to consider whether further changes to
State laws are required to implement this procedure. In most
States, incarcerated parents must take affirmative steps to have
their orders modified. We have found that very few incarcerated
parents petition for a modification, even though their order
could be suspended during incarceration. As a result, by the
time that noncustodial parents are released from prisons, their
child support arrearages have grown to very high levels, and may
help drive the noncustodial parents into the underground economy
to avoid paying support and may create an additional barrier to
parent-child contact."
Under existing law, as a condition of receiving CalWORKs
benefits, the custodial party automatically assigns all rights
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to child support to the county up to the amount of aid paid.
When a child support payment is collected, the party receiving
support receives the first $50 of the child support payment
(called the disregard) and the county retains what is remaining
to repay the cost of the CalWORKs benefit. This includes all
current and past-due support and continues as long as a family
is receiving aid. Because this bill will automatically suspend
child support orders only for persons who do not have the
ability to pay support while incarcerated or institutionalized,
it is estimated that the impact to the level of child support
payment revenue offsetting CalWORKs program costs will be minor,
if any, as it is anticipated that the cases that do have their
child support orders automatically suspended would likely not
have the ability to pay and would have otherwise been accruing
arrearage balances and interest.
Recommended
Amendments: To clarify that the LCSA may adjust orders
specifically for those cases in which suspension is required by
operation of law, staff recommends the following amendment:
On page 3, line 29, after the word "for" insert:
a money judgment or order for support of a child suspended
pursuant to subdivision (a)
To clarify that only the payments towards interest on any
arrears balance that existed prior to incarceration is suspended
and that interest on said arrears balance will continue to
accrue as required by law, staff recommends the following
amendment:
On page 4, in line 29, delete lines 21-25, and insert:
(2) "Suspend" means that the payment due on the current child
support order, any arrears payment on preexisting arrears
balance, and interest on any arrears created during qualifying
periods of incarceration under this section, is, by operation of
law, set to zero dollars ($0) for the period in which the person
owing support is incarcerated or involuntarily
institutionalized.
To ensure orders are modified prospectively, staff recommends
the following amendments:
AB 610 (Jones-Sawyer) Page 6 of
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On page 4, in line 26, delete "as follows:"
On page 4, in line 27, delete "(1) To" and insert "to"
On page 4, delete lines 29-32.
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