Incarcerated with Child Support Orders
A second category of incarcerated noncustodial parents are those who are in prison for criminal offenses not involving child support and who have current and/or delinquent child support orders. As of 2018, approximately 2.2 million people were in jails and prisons throughout the United States. According to the Bureau of Justice Statistics, 47% of state prisoners and 58% of federal prisoners have at least one child under the age of 18. In the U.S., over 5 million (7%) of children in the U.S. have a parent who is or was incarcerated. At least 20% of those, or about 440,000 of parents in prisons and jails, have a child support obligation.
Modifications During Incarceration
Incarceration in the United States has increased by 500% since 1980. Despite recent reductions in state prison populations, men of color are still disproportionately represented across the criminal justice system. Some states are taking steps to reduce racial bias in the justice system, such as requiring juvenile justice and probation staff to use “race-neutral” risk assessments instruments to eliminate racial and ethnic bias in detention screening. Children and custodial parents often rely on child support payments for financial stability, and when a noncustodial parent is incarcerated, their earnings are drastically reduced, if not completely eliminated. The impacts of this can be serious for children. Financial insecurity and the traumatic experience of having a parent incarcerated are both adverse childhood experiences (ACEs), which have been shown to have significant long-term implications for children’s outcomes.
Many states once considered incarceration a form of voluntary unemployment and required incarcerated parents to continuing paying child support. With some exceptions, this is no longer the case, as a result of Turner v. Rogers. At least 11 states have statutes that establish exceptions to when noncustodial parents are still required to make child support payments while incarcerated. These exceptions most often include when the obligor is incarcerated due to failure to pay child support and had the means to pay for child support, or if the reason for incarceration is related to crimes against the custodial parent or child. States also created limits on when child support modifications could be altered depending on the amount of consecutive time during incarceration. The most common cutoff point is 180 days or 6 months, followed by 90 days.
Incarcerated parents with child support obligations often are unaware of child support debt accruing while they are locked up, leaving them with significant debt upon release. At least 13 states have statutes providing for automatic child support modifications without action from either parent. This ensures that child support debt will not accrue during the noncustodial parent’s incarceration and does not require them to be aware of any policies or submit any paperwork that might serve as a barrier to modifying the child support order.
Even when obligors are aware of their right to modify child support orders, knowing the process can be a challenge. In addition, child support agencies are not always notified when an obligor is incarcerated. Obligors sometimes do not become aware of modification opportunities until they have already served their time or are nearly finished. Modifying a child support order retroactively has become nearly impossible since passage of the Bradley Amendment in 1986. This amendment prohibits retroactively modifying child support orders—including the reduction or increase of arrears.
At least seven states have modification notification procedures for custodial and noncustodial parents in statute. The federal Office of Child Support Enforcement has a state-by-state page explaining how to request changes to child support orders.
State-specific legislation and statutes pertaining to modification of child support for incarcerated parents is outlined below.
The following states do not have statutes addressing modification of child support orders during incarceration; however, they may have administrative rules concerning child support and incarceration: Alaska, Arizona, Hawaii, Idaho, Iowa, Kansas, Kentucky, Missouri, Montana, Nevada, New Hampshire, South Carolina, Tennessee, Wisconsin and Wyoming.
ARJA Rule 32
MODIFICATIONS. The guidelines shall be used by the parties as the basis for periodic updates of child-support obligations.
(a) The provisions of any judgment respecting child support shall be modified only as to installments accruing after the filing of the petition for modification.
(b) A party seeking a modification of child support must plead and prove a substantial and continuing material change in circumstances has occurred since the last order of child support.
UNEMPLOYMENT; UNDEREMPLOYMENT Incarceration may not be treated as voluntary unemployment in establishing or modifying a child-support order. If the court finds either parent is voluntarily unemployed or underemployed, it shall estimate the income that parent would otherwise have and shall impute to that parent that income; the court shall calculate child support based on that parent's imputed income. In determining the amount of income to be imputed to a parent who is unemployed or underemployed, the court should take into consideration the specific circumstances of the parent to the extent known, including such factors as the parent's assets, residence, employment and earnings history, job skills, educational attainment, literacy, age, health, criminal record and other employment barriers, and record of seeking work, as well as the local job market, the availability of employers willing to hire the parent, prevailing earnings level in the local community, and other relevant background factors in the case. The court may take into account the presence of a young or physically or mentally disabled child necessitating the parent's need to stay in the home and therefore the inability to work.
A.C.A. § 9-14-107
The incarceration of a parent shall not be treated as voluntary unemployment for purposes of determining a reasonable amount of support either initially or upon review.
As used in subdivision (a)(3)(A) of this section, “incarceration” means a conviction that results in a sentence of confinement to a local jail, state or federal correctional facility, or state psychiatric hospital for at least 180 days, excluding credit for time served before sentencing.
West's Ann. Cal. Fam. Code § 4007.5
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 against the supported party or supported child, for an offense that could be enjoined by a protective order, or as a result of the person's failure to comply with a court order to pay child support.
A local child support agency enforcing a child support order 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 suspended order for support of a child.
“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.
“Suspend” means 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 for the period in which the person owing support is incarcerated or involuntarily institutionalized.
Conn. Gen. Stat. § 46b-215e
Notwithstanding any provision of the general statutes, whenever a child support obligor is institutionalized or incarcerated, the Superior Court or a family support magistrate shall establish an initial order for current support, or modify an existing order for current support, upon proper motion, based upon the obligor's present income and substantial assets. Downward modification of an existing support order based solely on a loss of income due to incarceration or institutionalization shall not be granted in the case of a child support obligor who is incarcerated or institutionalized for an offense against the custodial party or the child subject to such support order.
In IV-D support cases, when the child support obligor is institutionalized or incarcerated for more than 90 days, any existing support order, shall be modified to zero dollars effective upon the date that a support enforcement officer files an affidavit in the Family Support Magistrate Division.
Prior to filing an affidavit, the support enforcement officer shall provide notice to the custodial party.
The notice shall be in clear and simple language.
A support order that is modified in accordance with subsection (b) of this section shall be reinstated to the prior support amount 90 days after the obligor is released from such institutionalization or incarceration.
Family Court Rules of Civil Procedure, Rule 506
Automatic Adjustment for Incarceration.
After 180 days of continuous incarceration, every prospective current support obligation established or modified after Jan. 31, 2019 will automatically decrease to one half of the minimum order amount.
The obligation will not revert upon release from incarceration, but release shall constitute a substantial change of circumstances for modification.
Every written order for new or modified current support shall advise of this potential adjustment.
Incarcerated parents subject to current child support orders that issued prior to Feb. 1, 2019 may petition for modification. However, if the obligation had already been calculated on the basis of continuous confinement under the prior standard, then relief may only be awarded 2 1/2 years after the last determination of current support.
Incarcerated parents. Service of a term of incarceration that exceeds 180 days of continuous confinement may be considered as evidence of a diminished earning capacity unless the individual is incarcerated for the nonpayment of child support or for any offense of which his or her dependent child or a child support recipient was a victim.
District of Columbia
DC ST § 16-916.01
Upon request or on the judicial officer's own motion, the presumption may be rebutted downward to $0 or upward above $75 per month by evidence of resources or circumstances affecting the parent's ability to pay, including incarceration, age, employability, disability, homelessness, inpatient substance abuse treatment, other inpatient treatment, housing expenses, provision or receipt of in-kind resources or services, benefits received from means-tested public assistance programs, other public benefits, subsidies, tax credits, or other appropriate circumstances.
West's F.S.A. § 61.30
Except for incarceration for willful nonpayment of child support or for an offense against a child or person who is owed child support, incarceration may not be treated as voluntary unemployment in establishing or modifying a support order.
For the court to impute income at an amount other than the median income of year-round full-time workers as derived from current population reports or replacement reports published by the United States Bureau of the Census, the court must make specific findings of fact consistent with the requirements of this paragraph. The party seeking to impute income has the burden to present competent, substantial evidence that:
a. The unemployment or underemployment is voluntary; and
b. Identifies the amount and source of the imputed income, through evidence of income from available employment for which the party is suitably qualified by education, experience, current licensure, or geographic location, with due consideration being given to the parties' time-sharing schedule and their historical exercise of the time-sharing provided in the parenting plan or relevant order.
Ga. Code § 19-6-15
A determination of willful or voluntary unemployment or underemployment shall not be made when an individual's incarceration prevents employment.
Willful or voluntary unemployment or underemployment. In determining whether a parent is willfully or voluntarily unemployed or underemployed, the court or the jury shall ascertain the reasons for the parent's occupational choices and assess the reasonableness of these choices in light of the parent's responsibility to support his or her child and whether such choices benefit the child. A determination of willful or voluntary unemployment or underemployment shall not be limited to occupational choices motivated only by an intent to avoid or reduce the payment of child support but can be based on any intentional choice or act that affects a parent's income. In determining willful or voluntary unemployment or underemployment, the court may examine whether there is a substantial likelihood that the parent could, with reasonable effort, apply his or her education, skills, or training to produce income.
C.R.S.A. § 14-10-115
If a parent is voluntarily unemployed or underemployed, child support must be calculated based on a determination of potential income; except that a determination of potential income must not be made for:
(A) A parent who is physically or mentally incapacitated;
(B) A parent who is caring for a child under the age of 24 months for whom the parents owe a joint legal responsibility; or
(C) An incarcerated parent sentenced to 180 days or more.
750 ILCS 5/505
For parents with no gross income, who receive only means-tested assistance, or who cannot work due to a medically proven disability, incarceration, or institutionalization, there is a rebuttable presumption that the $40 per month minimum support order is inapplicable and a zero-dollar order shall be entered.
Ind. Code § 31-9-2-54.7
Sec. 54.7. "Incarceration", for purposes of IC 31-16 and IC 31-25-4, means confinement of an individual on a full-time basis in a place of detention that prohibits the individual from gainful employment, including home detention or a municipal, county, state, or federal prison or jail. The term does not include an individual on parole, probation, work release, community corrections, or any other detention alternative program that allows the individual to be gainfully employed.
Ind. Code § 31-16-6-1
(f) In determining the amount to be ordered for support of a child, incarceration of a parent may not be considered to be voluntary unemployment.
Ind. Code § 31-16-8-1
(d) Incarceration may constitute a change in circumstances so substantial and continuing as to make terms of an order unreasonable.
Ind. Code § 31-16-8-4
Sec. 4. If:
(1) a petition to modify a child support order based on incarceration of a party is filed; and
(2) no party files an objection or request for a hearing within thirty (30) days after receiving notice;
the court may modify the child support order, or approve a proposed modification, without holding a hearing.
Ind. Code § 31-25-4-17
(a) The bureau shall do the following:
(8) Beginning July 1, 2019, not later than 15 days after learning that an obligor in a Title IV-D case is or may be incarcerated for a period of at least 180 calendar days, notify both parties of each party's right to request a modification of the child support order.
In accordance with the provisions of this Section, every child support order shall be suspended when the obligor is incarcerated for, or is sentenced to, with or without hard labor, one hundred eighty consecutive days or more.
“Incarceration” means placement of an obligor in a county, parish, state or federal prison or jail, in which the obligor is not permitted to earn wages from employment outside the facility. “Incarceration” does not include probation or parole.
“Suspension” means the modification of a child support order to zero dollars during the period of an obligor's incarceration.
The Department of Public Safety and Corrections or the sheriff of any parish, as appropriate, shall notify the Department of Children and Family Services of any person who has been in their custody and may be subject to a child support order if either:
(1) The person is incarcerated for, or is sentenced to, with or without hard labor, 180 consecutive days or longer.
(2) The person who was the subject of notification is scheduled to be released from incarceration. The timeframe for such notification under this Paragraph shall be determined by an interagency agreement between the Department of Children and Family Services and the Department of Public Safety and Corrections.
A child support order suspended in accordance with this Section shall resume by operation of law on the first day of the second full month after the obligor's release from incarceration.
An order that suspends a child support order because of the obligor's incarceration shall contain a provision that the previous order will be reinstated on the first day of the second full month after the obligor's release from incarceration.
19-A M.R.S.A. § 2001
A party who is incarcerated in a correctional or penal institution is deemed available only for employment that is available through such institutions.
Gross income may include the difference between the amount a party is earning and that party's earning capacity when the party voluntarily becomes or remains unemployed or underemployed, if sufficient evidence is introduced concerning a party's current earning capacity. In the absence of evidence in the record to the contrary, a party that is personally providing primary care for a child under the age of 24 months is deemed not available for employment. The court shall consider anticipated child care and other work-related expenses in determining whether to impute income, or how much income to impute, to a party providing primary care to a child between the ages of 24 months and 12 years.
MD Code, Family Law, § 12-104.1
A child support payment is not past due and arrearages may not accrue during any period when the obligor is incarcerated, and continuing for 60 days after the obligor's release from confinement, if:
(1) the obligor was sentenced to a term of imprisonment of 180 consecutive calendar days or more;
(2) the obligor is not on work release and has insufficient resources with which to make payment; and
(3) the obligor did not commit the crime with the intent of being incarcerated or otherwise becoming impoverished.
In any case in which the Administration is providing child support services under the Social Security Act, the Administration may, without the necessity of any motion being filed with the court, adjust an incarcerated obligor's payment account to reflect the suspension of the accrual of arrearages.
Before making an adjustment, the Administration shall send written notice of the proposed action to the obligee, including the obligee's right to object to the proposed action and an explanation of the procedures for filing an objection.
Child Support Guidelines, Guidelines
In P.F. v. Department of Revenue, 90 Mass. App. Ct. 707 (2016), the Appeals Court addressed attribution of income where the payor is incarcerated. “‘Income may be attributed where a finding has been made that [the payor] is capable of working and is unemployed or underemployed,’ ... or where the payor owns ‘substantial assets.”’
P.F. v. Department of Revenue, 90 Mass. App. Ct. 707, 710 (2016) (quoting Wasson v. Wasson, 81 Mass. App. Ct. 574, 581 (2012), quoting from Flaherty v. Flaherty, 40 Mass. App. Ct. 289, 291 (1996)). However, where there is “no income or assets from which to pay child support”, the Court may not attribute income to the payor based on the payor's prior earning capacity, even if the payor is incarcerated due to committing a crime against the child for whom child support is being paid. P.F. v. Department of Revenue, 90 Mass. App. Ct. 707, 710-11 (2016).
The payor being incarcerated and having insufficient financial resources to pay support may support deviating, above or below the presumptive guidelines amount, including the minimum order amount.
M.S.A. § 518A.32
A parent is not considered voluntarily unemployed, underemployed, or employed on a less than full-time basis upon a showing by the parent that the unemployment, underemployment, or employment on a less than full-time basis is because a parent is physically or mentally incapacitated or due to incarceration.
M.S.A. § 518A.42
It is a rebuttable presumption that a child support order should not exceed the obligor's ability to pay.
At the initiative of the office, orders can be reviewed if there are reasonable grounds to believe that the amount of child support awarded in the judgment should be modified. Reasonable grounds to review an order include incarceration or release from incarceration after a criminal conviction and sentencing to a term of more than 1 year. Within 14 days after receiving information that a recipient of support or payer is incarcerated or released from incarceration, the office shall initiate a review of the order.
45 C.F.R. § 303.8
The State may elect in its State plan to initiate review of an order, after learning that a noncustodial parent will be incarcerated for more than 180 calendar days, without the need for a specific request and, upon notice to both parents, review and, if appropriate, adjust the order.
Within 15 business days of when the IV–D agency learns that a noncustodial parent will be incarcerated for more than 180 calendar days, the State must notify both parents informing them of the right to request the State to review and, if appropriate, adjust the order, consistent with this section.
The notice must specify, at a minimum, the place and manner in which the request should be made. Neither the notice nor a review is required under this paragraph if the State has a comparable law or rule that modifies a child support obligation upon incarceration by operation of State law.
The State may establish a reasonable quantitative standard based upon either a fixed dollar amount or percentage, or both, as a basis for determining whether an inconsistency between the existent child support award amount and the amount of support determined as a result of a review is adequate grounds for petitioning for adjustment of the order. Such reasonable quantitative standard must not exclude incarceration as a basis for determining whether an inconsistency between the existing child support order amount and the amount of support determined as a result of a review is adequate grounds for petitioning for adjustment of the order.
Neb. Rev. Stat. § 43-512.12
Within 15 business days of learning that a noncustodial parent will be incarcerated for more than 180 calendar days, the department shall send notice by first-class mail to both parents informing them of the right to request the state to review and, if appropriate, adjust the order. Such notice shall be sent to the incarcerated parent at the address of the facility at which the parent is incarcerated.
Neb. Rev. Stat. § 43-512.15
For purposes of this section, a person who has been incarcerated for a period of one year or more in a county or city jail or a federal or state correctional facility shall be considered to have an involuntary reduction of income unless (i) the incarceration is a result of a conviction for criminal nonsupport or a conviction for a violation of any federal law or law of another state substantially similar, (ii) the incarcerated individual has a documented record of willfully failing or neglecting to provide proper support which he or she knew or reasonably should have known he or she was legally obligated to provide when he or she had sufficient resources to provide such support, or (iii) the incarceration is a result of a conviction for a crime in which the child who is the subject of the child support order was victimized.
New Jersey Directives Dir. 15-08
Where an obligor has been ordered at an Expedited ELR hearing to make a payment toward child support arrears or provide medical coverage and fails to do so, and relief other than incarceration has been deemed necessary to coerce compliance with the order, the court may set forth those requirements in the “Order for Relief to Litigant, Enforcement of Litigant's Rights” (Form: CN 11213).
If the obligor's responses lead the court to conclude that modification of the support order may be appropriate because of the obligor's incarceration, disability, or other change in circumstance, the court in its discretion may (1) recommend that the obligor file a support modification motion, or (2) arrange for a hearing to address the relevant change in circumstances, with such hearing to be on a date provided by the Family Division or the Probation Division, as appropriate, that will allow adequate time for service of notice on the obligee of the hearing.
N. M. S. A. 1978, § 40-4-11.1
Income may not be imputed to a parent if the parent is incarcerated for a period of 180 days or longer. Incarceration is not considered a voluntary unemployment.
McKinney's Family Court Act § 413
The court can determine that a parent has reduced resources or income in order to reduce or avoid the parent's obligation for child support; provided that incarceration shall not be considered voluntary unemployment, unless such incarceration is the result of non-payment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment.
N.C.G.S.A. § 50-13.10
A child support payment or the relevant portion thereof, is not past due, and no arrearage accrues during any period when the supporting party is incarcerated, is not on work release, and has no resources with which to make the payment.
N.D. Cent. Code § 14-09-09.38
A monthly support obligation established under any provision of this code and in effect after Dec. 31, 2017, expires by operation of law upon incarceration of the obligor under a sentence of one hundred eighty days or longer, excluding credit for time served before sentencing.
Notwithstanding subsection 1, a monthly support obligation may be established for an obligor incarcerated under a sentence of 180 days or longer if the obligation is based on actual income of the obligor and the moving party makes a prima facie showing the obligor's income exceeds the minimum amount provided in the guidelines.
As used in this section, “incarceration” means placement of an obligor in a custodial setting in which the obligor is not permitted to earn wages from employment outside the correctional facility and does not include probation or work release.
The child support agency shall notify the obligor and obligee of the expiration of a monthly support obligation under this section, including a description of how the obligation can be re-established after the obligor is released from incarceration.
R.C. § 3119.05
When a court or agency calculates the income of a parent, it shall not determine a parent to be voluntarily unemployed or underemployed and shall not impute income to that parent if the parent is incarcerated.
As used in this section, a parent is considered “incarcerated” if the parent is confined under a sentence imposed for an offense or serving a term of imprisonment, jail, or local incarceration, or other term under a sentence imposed by a government entity authorized to order such confinement.
43 Okl.St.Ann. § 118I
Child support orders may be modified upon a material change in circumstances which includes incarceration of a parent for a time period of more than 180 consecutive days. The court shall apply the principles of equity in modifying any child support order due to changes in the circumstances of either party as it relates to the best interests of the children.
After Nov. 1, 2021, there shall be a rebuttable presumption that an obligor who is incarcerated for a period of 180 or more consecutive days is unable to pay child support.
The obligor's child support obligation shall be abated without court action effective the first day of the month following the date of entry into the correctional facility or jail and shall not accrue for the duration of the incarceration unless the presumption is rebutted by a showing of means to pay.
Upon release from incarceration, the monthly child support obligation shall revert to the pre-incarceration order amount beginning the first day of the month following a lapse of 90 calendar days after release from incarceration.
The abatement of a monthly support obligation under this subsection shall not affect any past-due support that has accrued prior to the abatement of the obligation.
If any of the crimes for which the obligor is incarcerated are a result of indirect contempt of court for failure to pay child support, the crime of omission to provide child support or for any offense for which the obligee's dependent child or the obligee was a victim, the abatement shall not be presumed and the child support obligation shall continue to accrue.
Or. Rev. Stat. § 25.247
An obligor who is incarcerated for a period of 180 or more consecutive days shall be rebuttably presumed unable to pay child support and a child support obligation does not accrue for the duration of the incarceration unless the presumption is rebutted as provided in this section or as determined by the court.
Within 30 days following identification of an incarcerated obligor, whose child support obligation has not already been modified due to incarceration, the entity responsible for support enforcement services shall provide notice of the presumption to the obligee and obligor and shall inform all parties to the support order that, unless a party objects, child support shall cease accruing beginning with the first day of the first month that follows the obligor becoming incarcerated for a period of at least 180 consecutive days and continuing through the support payment due in the last month prior to the reinstatement of the support order.
An obligor's incarceration for at least 180 consecutive days or an obligor's release from incarceration is considered a substantial change of circumstances for purposes of child support modification proceedings.
O.R.S. § 25.527
An obligor's incarceration for a period of at least 180 consecutive days or an obligor's release from incarceration is considered a substantial change of circumstances for purposes of proceedings brought under this section.
23 Pa.C.S.A. § 4352
The Supreme Court shall by general rule establish procedures by which each interested party shall be notified of all proceedings in which support obligations might be established or modified and shall receive a copy of any order issued in a case within 14 days after issuance of such order. A petition for modification of a support order may be filed at any time and shall be granted if the requesting party demonstrates a substantial change in circumstances.
(a.1) Automatic review—Upon request of either parent, or automatically if there is an assignment under Title IV-A of the Social Security Act (49 Stat. 620, 42 U.S.C. § 301 et seq.), each order of support shall be reviewed at least once every three years from the date of establishment or the most recent review. The review shall be for the purpose of making any appropriate increase, decrease, modification or rescission of the order. During the review, taking into account the best interest of the child involved, the court shall adjust the order, without requiring proof of a change in circumstances, by applying the Statewide guidelines or a cost-of-living adjustment in accordance with a formula developed by general rule. Automated methods, including automated matches with wage or State income tax data, may be used to identify the support orders eligible for review and implement appropriate adjustments.
(a.2) Effect of incarceration—Incarceration, except incarceration for nonpayment of support, shall constitute a material and substantial change in circumstance that may warrant modification or termination of an order of support where the obligor lacks verifiable income or assets sufficient to enforce and collect amounts due.
R.I. Gen. Laws § 15-5-16.2
When the department of human services, office of child support services, becomes aware of the fact that the noncustodial parent is or will be incarcerated for 180 days or more, the department may automatically file a motion to modify or a motion for relief, to be heard before the court via a video conference hearing or other type of hearing. A specific request for the filing of this motion need not be made in writing or otherwise by the incarcerated, noncustodial parent, but the parent shall be notified of the hearing and provided a meaningful opportunity to respond.
The court shall schedule a hearing to determine the noncustodial parent's ability to pay, taking into consideration the assets and financial resources and any benefits the noncustodial parent may be receiving, the length of the sentence, and shall modify or suspend all child-support orders.
Upon the obligor's release, the department of human services, office of child support services, shall file a motion for support, and a hearing shall be scheduled to determine the obligor's ability to begin paying child support pursuant to the child support guidelines in effect. This section does not apply to those individuals who are serving a sentence for criminal nonsupport in state or federal prison, or who are found to be in civil contempt for failure to pay child support and incarcerated for that reason.
SDCL § 25-7-6.10
Deviation from the child support order schedule shall be considered if raised by either party and made only upon the entry of specific findings based upon the voluntary and unreasonable act of a parent which causes the parent to be unemployed or underemployed, unless the reduction of income is due to incarceration.
The court may modify an order that provides for the support of a child if the circumstances of the child or a person affected by the order have materially and substantially changed.
Incarceration of a child support obligor in a local, state, or federal jail or prison for a period exceeding 180 days is a material and substantial change of circumstances for the purposes of this section.
Release of a child support obligor from incarceration is a material and substantial change in circumstances for purposes of this section if the obligor's child support obligation was abated, reduced, or suspended during the period of the obligor's incarceration.
V.T.C.A., Family Code § 154.066
The court may not consider incarceration as intentional unemployment or underemployment when establishing or modifying a support order.
Utah Code § 78B-12-203
Incarceration of at least six months may not be treated as voluntary unemployment by the office in establishing or modifying a support order.
15 V.S.A. § 660
On motion of either parent, the Office of Child Support, any other person to whom support has previously been granted, or any person previously charged with support, and upon a showing of a real, substantial and unanticipated change of circumstances, the court may annul, vary, or modify a child support order, whether or not the order is based upon a stipulation or agreement. If the child support order has not been modified by the court for at least three years, the court may waive the requirement of a showing of a real, substantial, and unanticipated change of circumstances.
The Office of Child Support may independently file a motion to modify child support or change payee if providing services under Title IV-D of the Social Security Act, if a party is or will be incarcerated for more than 90 days.
Incarceration for more than 90 days, unless incarceration is for failure to pay child support, shall be considered a real, substantial, and unanticipated change of circumstances.
West's RCWA 26.09.320
When a child support order contains language providing for abatement based on incarceration of the person required to pay child support, there is a rebuttable presumption that an incarcerated person is unable to pay the child support obligation.
If the child support order does not contain language providing for abatement based on incarceration of the person required to pay support, the department, the person required to pay support, the payee under the order, or the person entitled to receive support may commence an action in the appropriate forum to:
(i) Modify the support order to contain abatement language; and
(ii) Abate the person's child support obligation due to current incarceration for at least six months.
If the court or administrative forum determines that abatement of support is appropriate:
The child support obligation under that order will be abated to ten dollars per month, without regard to the number of children covered by that order, while the person required to pay support is confined in a jail, prison, or correctional facility for at least six months or is serving a sentence greater than six months in a jail, prison, or correctional facility.
If the incarcerated person's support obligation under the order is abated, the obligation will remain abated to $10 per month through the last day of the third month after the person is released from confinement.
West's RCWA 26.09.170
A party to an order of child support may petition for a modification based upon a showing of substantially changed circumstances at any time.
An order of child support may be modified at any time to add language regarding abatement to $10 per month per order due to the incarceration of the person required to pay support, as provided in RCW 26.09.320.
The department of social and health services, the person entitled to receive support or the payee under the order, or the person required to pay support may petition for a prospective modification of a child support order if the person required to pay support is currently confined in a jail, prison, or correctional facility for at least six months or is serving a sentence greater than six months in a jail, prison, or correctional facility, and the support order does not contain language regarding abatement due to incarceration.
West's RCWA 74.20A.059
The department, the person entitled to receive support, the payee under the order, or the person required to pay support may petition for a prospective modification of a final administrative order if the person required to pay support is currently confined in a jail, prison, or correctional facility for at least six months or is serving a sentence greater than six months in a jail, prison, or correctional facility, and the support order does not contain language regarding abatement due to incarceration.
W. Va. Code, § 48-18-202
To make a request for assistance under this article, a party shall submit the request in writing to the Bureau for Child Support Enforcement on a form provided by the bureau. The written request form shall include all of the requesting party's information known to the party that is relevant to determine the child support amount.
Upon receipt of notification that an obligor is incarcerated in a regional jail or a state or federal correctional facility, the Bureau for Child Support Enforcement shall determine whether the expected incarceration will exceed six months. If the incarceration will exceed six months, the bureau shall file a petition to modify child support.
State Programs Addressing Incarceration and Child Support
Illinois has several programs to support incarcerated parents who have child support orders. The Paternity Establishment Prison Program enables noncustodial parents to establish paternity while incarcerated through genetic testing or voluntary acknowledgements of paternity. From there, they can establish an administrative child support order based on that determination of paternity. From this program came Project CHILD (Collaboration Helps Inmates Lessen Debt), which has been in place for nearly 20 years and helps incarcerated noncustodial parents review and modify child support orders. Project CHILD staff go into prisons to talk to incarcerated parents and help them with modification requests.
Minnesota operates programs meant to support incarcerated obligors and their families. The Child Support Liaison program educates and informs incarcerated parents about the child support system during inmate orientation, facilitates communication between offenders and county child support enforcement agencies, and helps families support their children while the noncustodial parent is incarcerated. The liaison is also available to help incarcerated noncustodial parents with child support enforcement services, including requesting a modification and obtaining genetic testing.
Minnesota also participates in the Prison Industry Enhancement Certification Program, a program that pays incarcerated workers at least minimum wage while mandating a certain amount of their earnings be directly deducted as child support payments. As of 2021, the program generated over $50 million for inmate family support.
South Carolina operates a “Jobs not Jails” model, a prevention-based approach that gives family court judges the option to enroll unemployed or underemployed noncustodial parents in a comprehensive parenthood program. This program helps parents provide the emotional and financial support their children need. Topics incorporated into the Jobs not Jails program include improving job readiness, finding employment, acquiring life skills and navigating the child support system. This option is for initial contempt hearings and offers a non-punitive approach to addressing non-payment of child support.
The Texas Attorney General’s Incarcerated Parents Program supports incarcerated parents by educating and providing resources regarding paternity and child support issues. The program’s handbook includes inquiry forms for issues commonly experienced by incarcerated parents and outlines the basics of paternity and child support. The Family Initiatives Section of the program helps with modification procedures, which reduce child support payments to $0 while obligors are incarcerated.
Child support policies have shifted as a result of the Turner v. Rogers ruling in 2011 and subsequent rulemaking within the federal Office of Child Support Enforcement in 2016. Greater consideration is now given to the needs of families and the unintended costs and consequences of parental incarceration. At the same time, a 500% increase in incarceration rates over the past four decades has resulted in obligors left with the possibility of overwhelming child support debt and families with financial insecurity. Policymakers are responding to these complex issues in a variety of ways.
Policy Questions to Consider:
- How many noncustodial parents are incarcerated in county jails for failure to pay child support? What is the cost of incarceration in county jails?
- What policies and/or programs would maximize payment of child support while optimizing parents’ access to employment and diversion programs?
- What administrative or judicial process exists to modify child support once a noncustodial parent is incarcerated?
- Will debt and interest on child support debt accrue while the parent is incarcerated?