BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
SB 1355 (Wright)
As Amended April 5, 2010
Hearing Date: May 4, 2010
Fiscal: No
Urgency: No
KB:jd
SUBJECT
Child Support: Suspension of Support Order
DESCRIPTION
This bill would provide 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, except as specified. This bill would further
provide 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.
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
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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 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.
CHANGES TO EXISTING LAW
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. (Fam. Code Sec.
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. (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.
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. (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. section 666(a)(9); Fam. Code
Sec. 3653.)
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This bill would provide that the obligation of a person 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 30
consecutive days.
This bill would provide 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.
This bill would provide that, notwithstanding the
above-described provisions, the court may continue the
obligation of the person ordered to pay support of a child
during a period in which the person is ordered to pay support is
incarcerated or involuntarily institutionalized upon the request
of the person to whom the support payments are to be made, and
upon the finding that the obligor has the means to pay support
while incarcerated or involuntarily institutionalized.
This bill would define "incarcerated or involuntarily
institutionalized" as including, but not limited to, 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.
The bill would provide 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.
COMMENT
1.Stated need for the bill
The author states:
There 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.
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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.
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
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,
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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. However, while there
appears to be a general consensus that more needs to be done to
reach out to this specific population of support obligors and
find ways to reduce or eliminate arrears, there are several
obstacles to implementing a statewide automatic suspension of
support obligations. These are discussed below.
3.General concerns regarding workability of automatic suspension
of order
a) Tracking of incarcerated obligors
California currently has an automated child support system,
which, among other things, tracks open child support cases,
payments, and arrears. However it 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 30 days for the purposes of
suspending the support obligations. Furthermore, DCSS has no
way of knowing when the obligor has been released so that the
support obligation can be reinstated. In order to properly
effectuate this bill the state would need more sophisticated
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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.
b) Notice to the custodial parent
There is a lack of clarity on how notice would be provided to
the custodial parent who is receiving the support payments
under a system that automatically suspends child support
obligations when obligors are incarcerated for a specified
period of time. For payments or arrears owed to the state,
this would arguably not be as much of an obstacle since
presumably DCSS or a local child support agency would be
notified of the incarceration in order for the obligation
amount to be adjusted. However, 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.
Under this bill, the court would be authorized to continue the
obligation at the request of the custodial parent if it makes
a finding that the obligor has means to pay support during his
or her period of incarceration or involuntary
institutionalization. Assuming that a custodial parent has
evidence of the obligor's ability to pay, the lack of notice
would prevent him or her from actually petitioning the court
to continue the order.
c) Incarcerations due to abuse of supported child
This bill would provide for an automatic suspension of support
obligations regardless of the reason why the obligor was
incarcerated or involuntarily institutionalized. Potentially,
an obligor who is incarcerated for committing acts of domestic
violence against the child or custodial parent would have his
or her support obligation suspended. This is arguably not
consistent with the state's public policy in providing for
children's support and safety.
4.Suggested amendments
The author has acknowledged some of the obstacles discussed
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above in implementing a full-fledged automatic suspension of
support for individuals who are incarcerated or involuntarily
institutionalized, particularly the lack of information
sharing between DCSS and CDCR. According to the author, this
bill is intended to provide a way for an obligor to obtain an
adjustment of arrears after he or she is released from a
prison or institution without having to seek a modification in
court, and without running afoul of the federal prohibition on
the retroactive modification of arrears.
Accordingly, this Committee may wish to consider whether this
bill should be amended to address the concerns in Comment 3.
Tracking of incarcerated individuals/Notice to support
obligee
In light of the difficulties of tracking incarcerated
obligors, the following amendment would provide that the
obligor would be required to petition the court for an
adjustment of arrears, and serve copies on both the support
obligee and the local child support agency. The burden
would be on the obligor to show proof of the dates of
his/her incarceration or involuntary institutionalization,
as well as proof that during such time, he/she was unable
to earn any income. The obligor's arrears would not be
adjusted until the court has approved the petition.
On page 2, line 6, after the period, insert:
"(2) 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.
(b)The court shall provide notice to the parties of the
obligation suspension provided for in subdivision (a) at
the time the order is issued.
On page 2, strike lines 7-10 and insert:
"Upon his or her release from incarceration or
involuntary institutionalization, an obligor may petition
the court for an adjustment of the arrears pursuant to
suspension of support obligation authorized in
subdivision(b). The obligor must show proof of the dates
of his/her incarceration or involuntary
institutionalization, as well as proof that during such
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time, he/she was unable to earn any income during that
time. The obligor shall serve copies of the petition to
the support obligee and the local child support agency.
An obligor's arrears shall not be adjusted until the
court has approved the petition.
Incarceration due to domestic violence or abuse
The following amendments would ensure that the court has
discretion not to approve the petition if it finds that the
obligor had means to pay the ordered support during the
period of incarceration or if the obligor was incarcerated
for domestic violence, failure to pay child support, and
other related offenses.
On page 2, line 11, strike "continue the"
On page 2, strike lines 13-15
On page 2, line 16, strike "whom the support payments are
to be made, and upon" and insert:
"deny the obligor's petition if it makes a finding that:
(1) The obligor had the means to pay support while
incarcerated or involuntarily institutionalized; or (2)
The obligor was incarcerated or involuntarily
institutionalized for any offense constituting domestic
violence, as defined in Section 6211, against the support
obligee or supported child, or for any offense that could
be enjoined by a protective order pursuant to Section
6320, or as a result of his or her failure to comply with
a court order to pay child support.
On page 2, strike lines 17-19
Prospective application
The following amendment would clarify that this bill would
only apply to orders issued after the effective date of the
bill:
On page 2, line 28, after the period insert:
(g) This section applies to all child support orders
issued and all modifications of child support orders
requested on or after January 1, 2011.
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Judicial Council Forms
In order to make the adjustment process as simplified as
possible, the following amendment would require Judicial
Council to develop a form for the petition for adjustment
of arrears.
On page 2, after Section 1, insert:
The Judicial Council shall proscribe forms necessary for
the implementation of Section 4007.5 of the Family Code,
including forms for a petition to adjust arrears.
Committee staff notes that these amendments, in addition to
addressing the concerns raised in Comment 3, would also
incorporate additional elements from Santa Clara County's
program, which is reportedly working well.
Support : California Public Defenders Association; Family Law
Section of the State Bar
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation :
AB 862 (Bass) of the 2005 legislative session 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 the California
Department of Corrections and Rehabilitation (CDCR). This bill
was vetoed.
AB 2245 (Wright) of the 2002 legislative session 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. This bill failed
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passage in the Assembly Judiciary Committee.
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