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Urgent Legislation effective October 8, 2015, affects suspension of child support during payor’s incarceration

Posted By Anthony P. Azemika, Esq.   |   Comments (0)
Child Custody & Visitation, Child Support,

 

 

     California Assembly Bill 610 (Ch 629) Suspension of Child Support During Payor’s Incarceration. As a pilot project that was effective until July 15, 2015, California Family Code Section 4700.5 provided that child support orders being enforced by a local child support agency would be suspended during any period beyond 90 days when the support payor was incarcerated or involuntarily institutionalized, unless he or she (1) had the means to pay support while in custody; or (2) was incarcerated for failure to comply with a child support order or for domestic violence against the support recipient or child.

     Effective October 8, 2015, as urgency legislation, Assembly Bill 610 re-enacted California Family Code Section 4700.5 to re-establish, expand, and extend this pilot project. The new version of the statute applies to all child support orders, not just those being enforced by a local agency. And, instead of requiring the child support obligor to petition Trial Courts for adjustment of back child support after his or her release, the new statute specifies that the order will be suspended “by operation of law” during the relevant incarceration period, unless either of the same exceptions apply.

     New California Family Code Section 4700.5(c) provides that a local child support agency may administratively adjust account balances for a suspended child support order if the agency is currently enforcing the order (even if it was not doing so when the obligor was incarcerated) and has verified that neither of the statute’s exceptions for automatic suspension applies, but back support and interest accrued during the incarceration. However, the agency must first give written notice to both the child support payor and recipient, along with forms for objecting to the proposed adjustment. If either party objects within 30 days after receiving the notice, the agency may not adjust the arrearages unless it files a motion, serves a copy on the parties (who may again object), and obtains Trial Court’s approval of the adjustment.

     New California Family Code Section 4700.5(b) provides that the support obligation will resume on the first day of the first full month after the obligor’s release, in an amount presumed to be appropriate under federal and state law. The new statute specifies that it does not preclude the payor from seeking a modification based on changed circumstances or other appropriate reason, and it does not prohibit a party or child support agency from petitioning Trial Court to set child support or determine the back child support owed.

     The new statute applies to all child support orders issued or modified on or before October 8, 2015.

     The pilot project under the new statute will sunset on January 1, 2020, unless extended by subsequent legislation. Meanwhile, California Family Code Section 4700.5(h) requires DCSS and Judicial Council to evaluate the effectiveness of the administrative adjustment process provided in the new statute and report the results to the Legislature.

 

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