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  








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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. 










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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  








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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:








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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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