ASSEMBLY THIRD READING

ATR Bill Id:AB 1091

Author:(Jones-Sawyer)

As Amended Ver:March 21, 2019

Majority vote

SUMMARY:

Extends indefinitely a program to suspend the obligation to pay child support when the obligor is incarcerated or involuntarily institutionalized, as provided.

Major Provisions

1. Removes the January 1, 2020 sunset, so that the obligation to pay child support, as defined, 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 (the suspension then going back to the first day of the incarceration or involuntary institutionalization), 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 continues indefinitely. Continues the administrative adjustment process. Provides that the suspension applies to all orders issued or modified after the October 8, 2015.
2. Requires that the child support obligation resumes on the 90^th day following release of the obligor, upon that person commencing employment, or upon that person receiving earned or unearned income, whichever event occurs first.
3. To the extent authorized, requires Department of Child Support Services (DCSS) or a local child support agency (LCSA), upon learning of their erroneous collection of child support that had been suspended, to promptly correct the calculation of support owed.
4. 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 and recommended changes, to the Assembly and Senate Judiciary Committees by February 1, 2020.

COMMENTS:

When noncustodial parents are incarcerated, unless they seek a modification of their child support order, their support obligation continues unabated, despite the incarcerated parent's lack of income, 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, while 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 their 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 originally created a pilot program – only through July 1, 2015 and only for cases being enforced by the state child support program – to suspend the obligation to pay child support. SB 1355 (Wright), Chapter 495, Statutes of 2010. That program sunsetted July 1, 2015. The Legislature, through the author's AB 610 (Jones‑Sawyer), Chaptered 629, Statutes 2015, created a second pilot program, effective October 8, 2015, which reinstated the original pilot program until January 1, 2020, and allowed the LCSAs to administratively adjust orders based on the suspension.

This bill lifts the sunset to continue the program indefinitely and makes some additional changes to the program. It also directs DCSS and the Judicial Council to conduct an additional evaluation in an attempt to get better data on the program and see if there are alternatives to after-the-fact adjustments, such as data matches between DCSS and jails and prisons that would allow for automatic suspension.

According to the Author:

AB 1091 will ensure that individuals do not accrue insurmountable government debt due to their inability to make child support payments while they are incarcerated. California has led the way in ensuring that the formerly incarcerated are able to reintegrate back into society by allowing a suspension on child support orders when a parent is incarcerated or involuntarily institutionalized. . . .

If this law is allowed to sunset, individuals re-entering society will accrue mounting child support debt, charged at one of the highest interest rates in the country in addition to other criminal fines and fees. This not only undermines the successful reunification of parents with their children, but it undermines the goal of reducing recidivism.

Arguments in Support:

The sponsors of the bill write: "California should extend our current law which allows a non-custodial parent to suspend their child support order while in an institution while making important reforms necessary to achieve a more just child support system which achieves the goal of supporting the wellbeing of children."

Arguments in Opposition:

None.

FISCAL COMMENTS:

According to the Assembly Appropriations Committee:

1. Possible costs (Trial Court Trust Fund/General Fund (GF)) in the thousands of dollars annually for Judicial Council and DSCC to continue evaluating the effectiveness of the administrative adjustment process and report to the Legislature by February 1, 2020.
2. Minor and absorbable costs (GF) for DCSS to implement minor programmatic changes to the Child Support Enforcement system.

VOTES:

ASM JUDICIARY: 10-0-2

YES: Mark Stone, Chau, Chiu, Holden, Kalra, Fong, Maienschein, Obernolte, Petrie-Norris, Reyes

ABS, ABST OR NV: Gallagher, Gonzalez

ASM APPROPRIATIONS: 17-0-1

YES: Gonzalez, Bigelow, Bloom, Bonta, Calderon, Carrillo, Chau, Diep, Eggman, Fong, Gabriel, Jones-Sawyer, Maienschein, Obernolte, Petrie-Norris, Quirk, Robert Rivas

ABS, ABST OR NV: Brough

UPDATED:

VERSION: March 21, 2019

CONSULTANT: Leora Gershenzon / JUD. / (916) 319-2334 FN: 0000248

Date of Hearing: April 24, 2019

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 1091

Author:(Jones-Sawyer) – As Amended Ver:March 21, 2019

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill removes the January 1, 2020 sunset date on a program to suspend an obligation to pay child support when the obligor is incarcerated or involuntarily institutionalized. Specifically, this bill:

1. Requires the child support obligation resume on the 90th day following release of the obligor, upon that person commencing employment, or upon the person receiving earned or unearned income, whichever event occurs first.
2. The suspension applies to all orders issued or modified after the October 8, 2015.
3. To the extent authorized by federal law, requires Department of Child Support Services (DCSS) or a local child support agency (LCSA), upon learning of their erroneous collection of suspended child support, to promptly correct the calculation of support owed.
4. 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 February 1, 2020.

FISCAL EFFECT:

1. Possible costs (Trial Court Trust Fund/GF) in the thousands of dollars annually for Judicial Council and DSCC to continue evaluating the effectiveness of the administrative adjustment process and report to the Legislature by February 1, 2020.
2. Minor and absorbable costs (GF) for DCSS to implement minor programmatic changes to the Child Support Enforcement system.

COMMENTS:

1. Purpose. According to the author:

AB 1091 will ensure that individuals do not accrue insurmountable government debt due to their inability to make child support payments while they are incarcerated. California has led the way in ensuring that the formerly incarcerated are able to reintegrate back into society by allowing a suspension on child support orders when a parent is incarcerated or involuntarily institutionalized. However, due to a sunset date in statute, incarcerated individuals will no longer be able to temporarily suspend payments to their child after January 1, 2020. If this law is allowed to sunset, individuals re-entering society will accrue mounting child support debt, charged at one of the highest interest rates in the country in addition to other criminal fines and fees. This not only undermines the successful reunification of parents with their children, but it undermines the goal of reducing recidivism.

1. Background. When a noncustodial parent is incarcerated, unless the parent seek a modification of their child support order, their support obligation continues to accrue, despite the incarcerated parent’s lack of income. Interest also accrues on the unpaid debt. AB 610 (Jones-Sawyer) Chapter 629, Statutes of 2015, reinstated a previously sunset pilot program until January 1, 2020, that allow local child support agencies to administratively adjust orders based on the suspension of the child support order in the hopes that the pilot program could more successfully reduce uncollectible child support and help noncustodial parents better support their children. This bill lifts the January 1, 2020, sunset date to continue the program indefinitely. It also directs DCSS and the Judicial Council to conduct an additional evaluation of the program to get better data to determine if alternatives to after-the-fact adjustments, such as data matches between DCSS and jails and prisons, would allow for automatic suspension of orders.
   
2. Support. According to Anti-Recidivism Coalition:

California should extend our current law which allows a non-custodial parent to suspend their child support order while in an institution while making important reforms necessary to achieve a more just child support system which achieves the goal of supporting the wellbeing of children.

1. Related Legislation. AB 1092 (Jones-Sawyer) eliminates the interest charged on past-due support assigned to the county, as specified. AB 1092 is pending in this committee.
   
2. Prior Legislation.
   
   1. AB 610 (Jones-Sawyer), Chapter 629, Statutes of 2015, re-established the pilot program to suspend child support when an obligor is incarcerated. The pilot program expires on January 1, 2020.
      
   2. SB 1355 (Wright), Chap. Chapter 495, Statutes of 2010, originally created the pilot program to suspend child support when an obligor is incarcerated. The pilot program expired on July 1, 2015.

Analysis Prepared by: Kimberly Horiuchi / APPR. / (916) 319-2081

Date of Hearing: March 26, 2019

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 1091

Author:(Jones-Sawyer) – As Amended Ver:March 21, 2019

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 SUNSET ON THE PROGRAM TO AUTOMATICALLY SUSPEND A CHILD SUPPORT OBLIGATION WHEN AN OBLIGOR IS INCARCERATED OR INVOLUNTARILY INSTITUTIONALIZED BE LIFTED SO THAT THE PROGRAM WILL BE MADE PERMANENT?

SYNOPSIS

When noncustodial parents are incarcerated, unless they seek a modification of their child support order, their support obligation continues unabated, despite the incarcerated parent’s lack of income, 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, while 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 their 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 originally created a pilot program – but only through July 1, 2015 and only for cases being enforced by the state child support program – to suspend the obligation to pay child support for the period of time in which an obligor was incarcerated or involuntarily institutionalized, unless the obligor otherwise had the means to pay support while incarcerated or institutionalized. (SB 1355 (Wright), Chap. 495, Stats. 2010.) The Legislature, through AB 610, Chap. 629, Stats. 2015, by the author of this bill, created a second pilot program, effective October 8, 2015, by reinstating the original pilot program until January 1, 2020, and allowing the local child support agencies to administratively adjust orders based on the suspension in the hopes that the expanded pilot program could more successfully reduce uncollectible child support and help noncustodial parents better support their children.

This bill, sponsored by a coalition of groups which include Policy Link and the Western Center on Law and Policy, seeks to lift the sunset and continue the program indefinitely. It also extends the date that the suspension ends, to give the obligor more time to secure employment post-incarceration or seek a modification based on actual income. The bill also requires that the Department of Child Support Services and the Judicial Council conduct an evaluation of the program and the possibility of an information sharing agreement between child support and state prisons, county jails, juvenile facilities or mental health facilities to help keep orders accurate. The bill is supported by American Civil Liberties Union of California, Legal Services for Prisoners with Children, and the San Francisco Public Defenders Office. The bill is supported if amended by the Child Support Directors Association and opposed unless amended by Family Law Section of the California Lawyers Association who are both concerned with how the introduced bill addressed when the child support order suspension ends. The bill, as amended, changes how that is done and may address these groups’ concerns.

SUMMARY: Extends indefinitely a program to suspend the obligation to pay child support when the obligor is incarcerated or involuntarily institutionalized, as provided. Specifically, this bill:

1. Removes the January 1, 2020 sunset, so that the obligation to pay child support, as defined, 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 (the suspension then going back to the first day of the incarceration or involuntary institutionalization), 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 continues indefinitely. Continues the administrative adjustment process. Provides that the suspension applies to all orders issued or modified after the October 8, 2015.
2. Requires that the child support obligation resumes on the 90^th day following release of the obligor, upon that person commencing employment, or upon that person receiving earned or unearned income, whichever event occurs first.
3. To the extent authorized by federal law, requires Department of Child Support Services (DCSS) or a local child support agency (LCSA), upon learning of their erroneous collection of child support that had been suspended, to promptly correct the calculation of support owed.
4. 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 February 1, 2020. Requires the evaluation to include a review of the ease of the process to both the obligor and obligee, as well as any changes necessary to maximize the positive impact of the adjustment process on parents, families, and children, an analysis of the number of cases administratively adjusted, the number of cases adjusted in court, and the number of cases not adjusted. Requires that the recommendations consider whether an information sharing agreement between DCSS and state prisons, county jails, juvenile facilities or mental health facilities should be developed, and, if so, the parameters of the agreement and funding necessary to execute the agreement.

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 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. Provides, until January 1, 2020, that the obligation to pay child support, as defined, 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. Provides that the suspension applies to all orders issued or modified after the enactment of this provision (October 8, 2015). (Section 4007.5.)
6. 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. (Id.)
7. Allows an LCSA to administratively adjust a child support 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. Prohibits the LCSA, if either the child support obligor or the obligee 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 the parties. (Id.)
8. Requires, by January 1, 2016, DCSS, in consultation with the Judicial Council, to develop forms to implement the administrative adjustment process. (Id.)
9. 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. (Id.)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: When noncustodial parents are incarcerated, unless they seek a modification of their child support order, their support obligation continues unabated, despite the incarcerated parent’s lack of income, 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, while 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 their 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 originally created a pilot program – only through July 1, 2015 and only for cases being enforced by the state child support program – to suspend the obligation to pay child support for the period of time in which an obligor was incarcerated or involuntarily institutionalized, unless the obligor otherwise had 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 resumed to the amount specified in the child support order prior to the suspension of that obligation. Unfortunately, that program did not prove very successful at preventing the build-up of uncollectible arrears. Data from DCSS showed 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) of the requests were granted under the pilot program. That program sunsetted July 1, 2015.

The Legislature, through the author’s AB 610, Chap. 629, Stats. 2015, created a second pilot program, effective October 8, 2015, which reinstated the original pilot program until January 1, 2020, and allowed the LCSAs to administratively adjust orders based on the suspension in the hopes that the expanded pilot program could more successfully reduce uncollectible child support and help noncustodial parents better support their children. Data from the required DCSS and Judicial Council study of this pilot indicated that the expanded pilot was more successful. Of 8,389 cases identified, 498 (or 5.9%) were administratively adjusted and 105 cases (or 1.3%) were adjusted in court. The vast majority of cases – 92.8% – were not adjusted under the pilot program. However, according to the DCSS-Judicial Council report, the majority were modified to a zero order under existing regulations, although the report provides no supporting data.

This bill lifts the sunset to continue the program indefinitely and makes some additional changes to the program. It also directs DCSS and the Judicial Council to conduct an additional evaluation in an attempt to get better data on the program and see if there are alternatives to after-the-fact adjustments, such as data matches between DCSS and jails and prisons that would allow for automatic suspension.

In support of the bill, the author writes:

AB 1091 will ensure that individuals do not accrue insurmountable government debt due to their inability to make child support payments while they are incarcerated. California has led the way in ensuring that the formerly incarcerated are able to reintegrate back into society by allowing a suspension on child support orders when a parent is incarcerated or involuntarily institutionalized. However, due to a sunset date in statute, incarcerated individuals will no longer be able to temporarily suspend payments to their child after January 1, 2020.

If this law is allowed to sunset, individuals re-entering society will accrue mounting child support debt, charged at one of the highest interest rates in the country in addition to other criminal fines and fees. This not only undermines the successful reunification of parents with their children, but it undermines the goal of reducing recidivism.

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 was 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 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, [] 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. 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 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).)

Data make clear that California pilot project still did not 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.

The renewed pilot required DCSS and Judicial Council to perform an evaluation of the program. Data from that study indicated that the expanded pilot was more successful. Of 8,389 cases identified, 498 (or 5.9%) were administratively adjusted and 105 cases (or 1.3%) were adjusted in court. The vast majority of cases – 92.8% – were not adjusted under the pilot program. (DCSS and Judicial Council, Evaluation of the Effectiveness of Family Code Section 4007.5: Report to the Legislature (Jan. 2019).) However, according to the DCSS-Judicial Council report, the majority were modified to a zero order under existing regulations, although the report does not provide supporting data. Moreover, if most orders are modified to zero while the obligor is incarcerated, it is unclear how and when they revert to pre-incarceration, non-zero amount when the obligor is released. The report concludes by requesting more time to do further data analysis:

Family Code section 4007.5 is a relatively recent addition to statute. While it allows LCSAs to retroactively adjust accounts and suspend current support, it does not solve the problem of having support resume so soon following release. Due to the limited availability of pertinent data, a correlative analysis cannot be performed. To provide conclusive findings, DCSS would need additional time to thoroughly evaluate the relevant data. DCSS has submitted a system change request to grant CSE the ability to assist with identifying case outcomes related to Family Code section 4007.5, permitting DCSS to prospectively (from system change forward) analyze section 4007.5–related data in a more efficient and thorough manner. (Id. at 14-15.)

This bill accommodates DCSS’s apparent request for more time to do a better analysis of the data by requiring DCSS and the Judicial Council to conduct a new 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 February 1, 2020. The evaluation must include a review of the ease of the process to both the obligor and obligee, as well as any changes necessary to maximize the positive impact of the adjustment process on parents, families, and children, an analysis of the number of cases administratively adjusted, the number of cases adjusted in court, and the number of cases not adjusted.

In addition, the recommendations must consider whether an information-sharing agreement between DCSS and state prisons, county jails, juvenile facilities or mental health facilities should be developed, and, if so, the parameters of the agreement and funding necessary to execute the agreement. This latter requirement has support from the federal Office of Child Support Enforcement, which in its most recent regulations encouraged states to “actively establish partnerships with federal, state, local, and private prisons to conduct data matches to locate, as well as to educate incarcerated parents about the child support program. We encourage states to develop electronic interfaces with corrections institutions to maximize the identification of incarcerated parents and to implement outreach strategies designed to educate incarcerated parents of their rights to request reviews of their support orders, which will help to increase program efficiency.” (Office of Child Support Enforcement, Flexibility, Efficiency, and Modernization in Child Support Enforcement Programs Final Rule: Modification for Incarcerated Parents, p. 2 (Jan. 5, 2017).) It is hoped that the February 2020 DCSS/Judicial Council study required by this bill will help make such information-sharing between DCSS and prisons a reality.

Bill proposes some changes to the existing program to help improve it. This bill makes several changes to the child support suspension program beyond just lifting the sunset. First, the bill clarifies that while suspension does not occur until the obligor has been incarcerated or institutionalized for at least 90 consecutive days, if the obligor reaches that point, the suspension goes back to the first day of incarceration or institutionalization. This clarification is consistent with how DCSS has interpreted existing law. (See DCSS, Child Support Order Suspension for Incarcerated or Involuntarily Institutionalized Obligors, p. 3, CSSP Letter 17-03 (Oct. 10, 2017), which suspends the order back to the first day of the first full month following incarceration of institutionalization.)

This bill also seeks to create a process to correct an obligor’s account when collection errors occur. Under the bill, if DCSS or a LCSA erroneously collects or attempts to collect child support that has been suspended, they must, upon learning of the error, promptly correct the calculation of child support that is owed. This should help address errors that are sure to occur.

This bill extends the time period before an order reverts back to its original amount. This bill extends the period post-incarceration or institutionalization before the original order springs back into being. Under the current program, the order resumes on the first day of the first full month after the obligor’s release. Understanding that most obligors will probably not, on their first day outside of prison, begin earning the same amount they did before they were incarcerated, this bill gives the obligor a little more time to either secure employment or go to court (usually through the LCSA) to secure a modification of the amount of the order. Under this bill, as recently amended, the order would not spring back into being until the earlier of the 90^th day following release of the obligor, the obligor commencing employment, or the obligor receiving earned or unearned income. This attempts to balance the sometimes competing objections of helping prevent the build-up of uncollectible arrears for an obligor who may not have a job lined up immediately upon release, while helping ensure the child receives support as soon as possible. If the obligor cannot find a job within 90 days or finds one that pays less that the job prior to incarceration, the obligor can seek to have the order modified to reflect actual income prior to that 90^th day.

The Child Support Directors Association (CSDA) supports the original version of bill if amended to provide more time for the obligor to secure employment, but also wants a date certain. As amended, this bill provides that, although not precisely as requested by CSDA.

The provision of the bill, as introduced and not as amended, is opposed unless amended by the Family Law Section of the California Lawyers Association (Section). The Section is concerned that the open-ended re-start of the order, as originally contemplated by the bill would “effectively shift the burden to the party who would be receiving the payments (the custodial parent) to investigate whether the obligor has commenced employment or is in receipt of unearned income, but still not paying the support obligation. This could be difficult, at best, particularly when the obligor and custodial parent are not otherwise communicating with each other.”

However, as amended, the bill now has a date certain by when the order will revert to its original amount – 90 days after release from the institution. It may revert sooner if the obligor starts working in the interim, but it will at least revert at 90 days.

Like the existing program, 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 the sooner of the 90^th day following release of the obligor, the obligor commencing employment, or the obligor receiving earned or unearned income. Second, the order will never suspend if the obligor has the means to pay support, even while in prison.

Finally, the bill, like the existing program, 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.

ARGUMENTS IN SUPPORT: The sponsors of the bill write:

High child support debt also undermines the ability of a non-custodial parent to co-parent their own child as they lack resources to visit them or take time off work to attend school functions. Research shows that the two most important factors in a former prisoner's successful reentry into the community are employment and positive relationships with family. Both of these are hindered by the aggressive pursuit of child support arrears sending him bills that are so far beyond his capacity to pay that he keeps his distance from his family.

California should extend our current law which allows a non-custodial parent to suspend their child support order while in an institution while making important reforms necessary to achieve a more just child support system which achieves the goal of supporting the wellbeing of children. (Footnotes omitted.)

Related Legislation: AB 1092 (Jones-Sawyer), 2018, would eliminate the interest charged on past-due support assigned to the county. AB 1092 is scheduled to be heard in this Committee the same day as this bill.

AB 610 (Jones-Sawyer), Chap. 629, Stats. 2015, re-established the pilot program to suspend child support when an obligor is incarcerated, which expires on January 1, 2020.

SB 1355 (Wright), Chap. 495, Stats. 2010, originally created the pilot program to suspend child support when an obligor is incarcerated, which expired 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. That 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.

REGISTERED SUPPORT / OPPOSITION:

Support

Anti-Recidivism Coalition (co-sponsor)

Good+ Foundation – Fatherhood Initiative (co-sponsor)

Insight Center for Community Economic Development (co-sponsor)

Policy Link (co-sponsor)

Tipping Point Community (co-sponsor)

Western Center on Law and Poverty (co-sponsor)

American Civil Liberties Union of California

Child Support Directors Association (if amended)

Legal Services for Prisoners with Children

San Francisco Public Defenders Office

Opposition

Family Law Section of the California Lawyers Association (unless amended)

Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334