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AB-2325 Child support: suspension.(2019-2020)

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Date Published: 09/30/2020 02:00 PM

Assembly Bill No. 2325

An act to add and repeal Section 4007.5 of the Family Code, relating to child support.

[ Approved by Governor  September 28, 2020. Filed with Secretary of State  September 28, 2020. ]


AB 2325, Carrillo. Child support: suspension.
Prior law, until January 1, 2020, suspended a money judgment or order for child support for any period exceeding 90 consecutive days in which the person ordered to pay support was incarcerated or involuntarily institutionalized, except as specified. Under that law, a suspended child support obligation resumed on the first day of the first full month after the release of the person owing the child support.
This bill, until January 1, 2023, would reenact those repealed provisions. The bill would also require the Department of Child Support Services, in consultation with the Judicial Council, to develop forms to implement these provisions by January 1, 2022. The bill would require the department and the Judicial Council to conduct an evaluation of the effectiveness of the administrative adjustment process authorized according to these provisions, as specified.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


 The Legislature finds and declares all of the following:
(a) In 2016, there was a new federal rule concerning child support orders when a noncustodial parent is incarcerated.
(b) The new rule codified case law, which said that a noncustodial parent has the right to adjust their order if they are impoverished as a result of institutionalization.
(c) People in prison are paid pennies on the dollar due to a constitutional provision, dating back to chain gangs, that allows for workers in prison to be paid less than others for equal work and therefore, even though tens of thousands of California workers, of whom about one-half are parents of children under 18 years of age, work while in prison, they do not earn enough to pay child support.
(d) California law established regulations facilitating this federally required process for the courts, the prisons, and the local child support agencies, but this law was allowed to sunset on January 1, 2020, and as a result, the administrators of the program will need to resort to more administrative processes to comply with this law and noncustodial parents may not be supported in securing their federal right to a reduced child support order while in prison.

SEC. 2.

 Section 4007.5 is added to the Family Code, to read:

 (a) Every money judgment or order for support of a child shall be suspended, by operation of law, for any period exceeding 90 consecutive days in which the person ordered to pay support is incarcerated or involuntarily institutionalized, unless either of the following conditions exist:
(1) The person owing support has the means to pay support while incarcerated or involuntarily institutionalized.
(2) The person owing support was incarcerated or involuntarily institutionalized for an offense constituting domestic violence, as defined in Section 6211, against the supported party or supported child, or for an offense that could be enjoined by a protective order pursuant to Section 6320, or as a result of the person’s failure to comply with a court order to pay child support.
(b) The child support obligation shall resume on the first day of the first full month after the release of the person owing support in the amount previously ordered, and that amount is presumed to be appropriate under federal and state law.  This section does not preclude a person owing support from seeking a modification of the child support order pursuant to Section 3651, based on a change in circumstances or any other appropriate reason.
(c) (1) A local child support agency enforcing a child support order under Title IV-D of the Social Security Act (42 U.S.C. Sec. 651 et seq.) may, upon written notice of the proposed adjustment to the support obligor and obligee along with a blank form provided for the support obligor or obligee to object to the administrative adjustment to the local child support agency, administratively adjust account balances for a money judgment or order for support of a child suspended pursuant to subdivision (a) if all of the following occurs:
(A) The agency verifies that arrears and interest were accrued in violation of this section.
(B) The agency verifies that neither of the conditions set forth in paragraph (1) or (2) of subdivision (a) exist.
(C) Neither the support obligor nor obligee objects, within 30 days of receipt of the notice of proposed adjustment, whether in writing or by telephone, to the administrative adjustment by the local child support agency.
(2) If either the support obligor or obligee objects to the administrative adjustment set forth in this subdivision, the agency shall not adjust the order, but shall file a motion with the court to seek to adjust the arrears and shall serve copies of the motion on the parties, who may file an objection to the agency’s motion with the court.  The obligor’s arrears shall not be adjusted unless the court approves the adjustment.
(3) The agency may perform this adjustment without regard to whether it was enforcing the child support order at the time the parent owing support qualified for relief under this section.
(d) This section does not prohibit the local child support agency or a party from petitioning a court for a determination of child support or arrears amounts.
(e) For purposes of this section, the following definitions shall apply:
(1) “Incarcerated or involuntarily institutionalized” includes, but is not limited to, involuntary confinement to the state prison, a county jail, a juvenile facility operated by the Division of Juvenile Facilities in the Department of Corrections and Rehabilitation, or a mental health facility.
(2) “Suspend” means that the payment due on the current child support order, an arrears payment on a preexisting arrears balance, or interest on arrears created during a qualifying period of incarceration pursuant to 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.
(f) This section applies to every money judgment or child support order issued or modified on or after the enactment of this section.
(g) The Department of Child Support Services shall, by January 1, 2022, and in consultation with the Judicial Council, develop forms to implement this section.
(h) On or before January 1, 2022, the Department of Child Support Services and the Judicial Council shall conduct an evaluation of the effectiveness of the administrative adjustment process authorized by this section and shall report the results of the review, as well as any recommended changes, to the Assembly Judiciary Committee and the Senate Judiciary Committee.  The evaluation shall 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.
(i) This section shall remain in effect only until January 1, 2023, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2023, deletes or extends that date.