There are two primary ways by which noncustodial parents with child support orders may intersect with the criminal justice system.
On one path, the noncustodial parent is not in compliance with a child support obligation and that noncompliance may lead to incarceration (short-term, primarily in local jails) as a result of either a civil contempt or criminal non-support action taken by the state.
The other way is for noncustodial parents who are incarcerated for a criminal offense and have a current or delinquent child support obligation. The incarceration is not related to child support and they may be incarcerated for longer periods of time in a state or federal prison. While child support isn’t the reason for incarceration for these parents, the ongoing child support obligation has repercussions for their confinement, release and re-entry.
As of Dec. 31, 2017 there were approximately 1.49 million people in federal and state prison. More than 50 percent of those inmates have one or more child under the age of 18, leaving an estimated 2.7 million children with a parent incarcerated. In addition, a 2003 study estimated that one quarter of inmates in prisons had a child support case. Based on current prison populations, this suggests that approximately 400,000 inmates have a child support case.
What the federal and state prison numbers do not capture are the numbers of noncustodial parents who are incarcerated in local jails for failure to pay child support. The Bureau of Justice Statistics estimated that more than 730,000 individuals were incarcerated in local jails in 2013, but what’s unknown is how many of those inmates were incarcerated due to child support noncompliance. A 2009 study in South Carolina found that 13.2 percent of county jail inmates were behind bars for civil contempt related to nonpayment of child support.
There is a great deal that state child support programs are currently doing to reduce the use of incarceration for child support noncompliance. The most widely developed efforts are focused on removing barriers to employment that are faced by low income and/or formerly incarcerated parents. The potential financial benefits of diverting nonpaying parents from jail into employment programs, to the family and the community at large, are significant.
The distinction between those noncustodial parents who are incarcerated for failure to pay child support and those who are incarcerated for a separate criminal offense who also have child support orders is an important one. The available approaches to improving child support compliance and encouraging ongoing, consistent child support payments within these populations are very different, particularly considering the reasons for and potential length of the incarceration. Below is a further discussion of this distinction as well as the varying policy options to address the needs of both populations.
New Federal Rule on Child Support
In addition, on Dec. 20, 2016, the Office of Child Support Enforcement (OCSE) published final rules updating the rules regarding child support enforcement. The rule is intended to increase the effectiveness of the child support program for all families, and provide for more flexibility in state child support programs. In an effort to accommodate the ever-changing world of technology, the rule also helps remove barriers to outdated systems to improve efficiency and simplify the process of collecting and distributing child support. While the new rule provisions are, for the most part, optional and will not require state legislation in most states, they do provide an opportunity for state legislators to clarify and shore up various child support enforcement laws.
The rule specifically addresses incarcerated noncustodial parents and incarceration for failure to pay child support, as well as modification procedures for incarcerated noncustodial parents. The major provisions of the rule regarding incarcerated noncustodial parents are:
- Incarceration for Failure to Pay Child Support: the rule requires states to implement due process safeguards from the Supreme Court case Turner v. Rogers. The rule addresses the use of civil contempt in child support cases and seeks to reflect the ruling of the U.S. Supreme Court in the 2011 case, Turner v. Rogers, which provided guidance on the factors to be considered when determining which cases should be referred to the court for civil contempt, including a determination of the noncustodial parent’s ability to pay.
- Incarcerated with a Child Support Order: the rule ensures the right of all parents to seek a review of their order when their circumstances change. While these provisions apply to all parties involved, they specifically address incarcerated noncustodial parents and their ability to have the child support order reviewed and potentially modified while they are incarcerated. The rule prohibits states from treating incarceration as voluntary unemployment for purposes of modifying a child support order. Currently 36 states and D.C. treat incarceration as involuntary unemployment.
The final rule made significant changes to the child support program to improve efficiency and flexibility in states. For more about the final rule, visit the Federal Office of Child Support Enforcement’s Final Rule Resources webpage and NCSL’s Office of Child Support Enforcement (OCSE) Final Rules Governing Child Support Enforcement Programs page for a rule summary.
Incarceration for Failure to Pay Child Support
Noncustodial parents may face incarceration for failure to pay child support through civil contempt or criminal nonsupport. Civil contempt is used more commonly than criminal contempt and the sentence is typically less severe and for a shorter length of time. Many states, recognizing that no support can be paid when a noncustodial parent is incarcerated, have established programs to encourage full compliance with child support orders, both before and as a part of the civil contempt process. These programs include examining child support orders to reflect realistic amounts given the individual's circumstances and diversion programs to reduce incarceration rates and increase child support payments.
All 50 states have processes for criminal prosecution for failure to pay child support, however, this more severe punishment is very rarely meted out. These laws generally make criminal nonsupport a felony or misdemeanor. The fines and potential prison sentences, as well as the delinquent threshold amount in order for criminal prosecution to be triggered, vary state by state.
See NCSL’s Criminal Nonsupport and Child Support page for details on each states’ statute.
Every state has a procedure for civil contempt that may be used for violations of various court orders. Civil contempt is designed to incentivize the defendant, or obligor in the case of child support, to comply with the court order. While incarceration is certainly an option when a child support obligor is noncompliant, civil contempt is not intended to punish the defendant, rather, it is intended to prompt compliance with the court’s order.
Federal law, according to U.S. Supreme Court case Turner v. Rogers, requires that civil contempt only be used when the noncustodial parent has the ability to pay and is willfully avoiding paying. State policies and practices vary in regards to how this limitation is implemented by the state child support agency. With noncustodial parents who are simply unable to pay their child support obligation, diversion or employment programs could have a significant impact in improving the likelihood of payment. The new federal rule, discussed above, seeks to shore up the due process requirements from Turner v. Rogers, by providing guidance on the factors to be considered when determining which cases should be referred to the court for civil contempt, including a determination of the noncustodial parent’s ability to pay.
Some may see diversion or employment programs as letting the delinquent obligor off the hook, however, parents are generally ordered into these programs by the courts and may still face a period of incarceration for failing to follow the rules of the diversion program. For example, Georgia enacted house bill 310 during the 2015 legislative session to allow for a county diversion program for delinquent obligors who are in contempt of court. There are rules of the diversion program and “If the respondent fails to comply with any of the requirements…nothing shall prevent the sentencing judge from revoking such assignment to a diversion program and providing for alternative methods of incarceration.”
Diversion programs may reduce the number of non-custodial parents in jail, as well as increase the receipt of child support, reduce reliance on public assistance and save money from the reduced jail population. (See below for a discussion of state diversion programs). The federal Office of Child Support Enforcement also has an infographic comparing job services to jail.
The majority of states use civil contempt to enforce child support orders, though limited data is available on how often it is used and the costs associated with subsequent incarceration.
State Diversion Programs
In addition to the legislation described above, Georgia has a series of problem solving courts, also called Parental Accountability Courts, which seek to remove barriers to non-payment of child support, such as unemployment, substance abuse, low level education. The overarching goal of these courts is to keep people out of jail for failing to pay child support, and to obtain support payments.
2015 Georgia HB 310: Creates a diversion center for child support obligors who have been sentenced for contempt of court for failure to pay child support. Allows people in the diversion program to travel to and from his or her place of employment and to continue his or her occupation. Details the requirements of traveling while in the diversion program. Requires the obligor to remain in the diversion center for the duration of the sentence, with the exception of traveling to and from work. Requires the obligor to pay alimony or child support as previously ordered, including arrears. Allows the obligor to participate in educational or counseling programs offered at the diversion center. Any additional funds that are available will go towards reimbursing the center for the cost (not to exceed $30 per day) of maintaining the obligor. Allows for alternative methods of incarceration if the obligor does not comply with the detailed requirements.
2015 Louisiana HCR 175: Urges and requests that the Department of Public Safety and Corrections make recommendations for the development of a work release program which would be suited for individuals convicted of offenses involving the failure to pay child support in order to facilitate employment and the fulfillment of child support obligations, and make recommendations to the Louisiana Legislature prior to the convening of the 2016 Regular Session.
Texas NCP Choices Program is a court diversion program that assists unemployed or underemployed noncustodial parents find and maintain employment. Program participants must spend 30 hours a week looking for a job, meet with the Workforce Counselor every week until employment is found, attend all court hearings and program appointments, comply with the child support order and stay in communication with their Workforce Counselor monthly following employment.
A 2011 report on the impact of the NCP Choices Program showed the following results:
- Participants paid $57 more child support 47 percent more often, showing a 51 percent increase in total collections. These results continued for 2-4 years after programs participation.
- Participants paid their child support 50 percent more consistently over time
- Participants were employed at 21 percent higher rates than non-participants, an effect that also persisted at least two to four years after the program
- Participants were about one third less likely to file an unemployment claim in any given month in the first year after the program
- The custodial parents associated with NCP Choices participants were 21 percent less likely to receive TANF benefits in the first year after the program, and 29 percent less likely two to four years after the program.
Virginia’s Intensive Case Monitoring Program (ICMP) was established by the Virginia General Assembly in 2008 (HB 1257). ICMP is a diversion/referral program for noncustodial parents following an administrative determination or order of the court. If a parent is in court for failure to pay child support, they may be referred to ICMP for case monitoring and referral services. The program then refers participants to “(i) employment services, to include employment assessment, employment search, and employment training; (ii) family services, including parenting skills, co-parenting skills, and relationship-building activities for parents and children; (iii) educational services, including GED preparation and GED testing; (iv) housing services, including referrals to organizations that operate shelters and provide subsidies; (v) document assistance, including referrals to organizations and assistance in securing vital records, driver's licenses, commercial driver's licenses, or other documents; and (vi) social services, health and mental health services, substance abuse services, or other services that may be necessary to enable the person to pay child support owed in the future.” Of the 979 program participants since ICMP was first enacted, 326 have graduated, 277 are still active and 376 were dropped for noncompliance with program requirements. Further, through December 2011, the program had collected over $3 million dollars, showing significant increases in average monthly child support payments among all three groups.
In Seattle, Wash., the King County Prosecutor’s Office operates a Navigator Program consisting of two full-time paralegals who are there to assist parents “navigate” the child support system. The navigator program is voluntary and open to parents who are involved in the Family Support Division’s Contempt of Court Unit or those who have been referred by the Division of Child Support because they are in search of employment or educational and training opportunities. The navigators connect parents with community partners who can assist the parents with obtaining housing, food and utilities.
Similar to the King County Prosecutor’s Office’s Navigator Program, the Washington State Division Child Support operates a program called Alternative Solutions. Alternative Solutions is a statewide program that seeks to connect parents with over 3,500 community resources across the state. These community resources are available to help parents with finding a job, training, housing, food, medical care or legal resources. In addition, the program can assist parents with lowering child support payments, reducing state-owed debt, and other case management actions, such as getting a suspended driver’s license back.
In addition to diversion and work release programs, states have also looked at the ways in which child support orders are established to ensure child support obligations are being calculated, as federal law requires, on the noncustodial parent’s ability to pay. State efforts to establish orders that reflect a parent’s current earnings are designed to promote regular payment of support and reduce the likelihood a parent will fall behind on child support and accrue debt.
The federal Office of Child Support Enforcement (OCSE) has a Project to Avoid Increasing Delinquencies (PAID) resource with various fact sheets addressing this issue.
Incarcerated with Child Support Order
The other population 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. On average, an incarcerated parent with a child support order has the potential to leave prison with nearly $20,000 in child support debt, having entered the system with around half that amount owed.
According to 2013 data from the Bureau of Justice:
- 46 percent of incarcerated parents have HS diploma or equivalent, as compared to 82% of men ages 18-34
- Nearly 60 percent of black men who are high school dropouts have done time by their mid-30s
- About two-thirds of people in prison or jail were employed at least part time before arrest with a median income of less than $1000 per month.
In addition, in Illinois in 2013:
- There was 5,589 active orders for currently incarcerated noncustodial parents involved in the IV-D child support program with 6,646 cases
- There was $986,000 in new current support debt per month with more than $97.4 million in accumulated debt.
- There was 15,387 current or formerly incarcerated parents in the Illinois IV-D caseload
- 41 percent of those incarcerated parents had an average income of $10,136 per year prior to incarceration
- The remaining 59 percent had no reported income prior to incarceration.
Modification during Incarceration
Whether a parent is incarcerated or not, a material and substantial change in circumstances is required to modify child support orders in the majority of jurisdictions. Two situations that may be treated as a material and substantial change in circumstances are incarceration and unemployment.
Some states allow incarceration to be considered a substantial change in circumstances allowing for modification while others do not allow incarceration alone to be a sufficient reason for modification and would require other circumstances to be shown in order to modify. State policies regarding modification of child support during incarceration vary and depend on a number of factors.
A significant reduction in income due to a job loss or job change is generally considered a material and substantial change for purposes of modifying child support, as long as the job loss or reduction in earnings was involuntary. Conversely, voluntary un- or underemployment in order to avoid payment of child support is not considered to be a material and substantial change of circumstances and therefore does not warrant consideration for modifying child support.
Approximately 40 states and D.C. currently treat imprisonment as involuntary unemployment which means the obligor could request a modification. Certain exceptions to this determination exist if the reason for the incarceration is related to the failure to pay child support or avoidance of child support. A small number of states treat incarceration as voluntary unemployment because the crime, which led to the inability to work or pay child support, is considered a voluntary act. As such, modification of child support during incarceration is not allowed in those states. The new federal rule, discussed above, prohibits state child support programs from treating incarceration as voluntary unemployment, allowing for modification of child support orders during incarceration.
The states that allow for modification during incarceration generally require the noncustodial parent to be proactive in making that request. This process requires the incarcerated parent to know of the modification procedure and access the necessary resources in order to obtain timely modification. Most recently, however, California passed legislation which requires the suspension of a child support order to occur automatically when an obligor is incarcerated or involuntarily institutionalized. In addition. Vermont and Wisconsin allow the child support agency to file a motion to modify the child support orders of incarcerated obligors.
The federal Office of Child Support Enforcement has a State-by-State-How to Change a Child Support Order page to inform child support obligors and state policymakers on the available resources and processes involved.
Modification of Child Support Orders during Incarceration
At least 20 states have statutory provisions addressing the modification or suspension of child support during periods of incarceration, or the treatment of incarceration as voluntary or involuntary unemployment. California and Texas enacted legislation in 2015, while the federal rule was being considered:
- 2015 California AB 610: Requires the suspension of a child support order to occur by operation of law when an obligor is incarcerated or involuntarily institutionalized. Creates an exception to the automatic suspension of child support orders to include obligors who are incarcerated or involuntarily institutionalized for domestic violence or failure to pay child support. Authorizes the local child support agency to administratively adjust account balances for child support cases managed by the agency if the agency verifies that arrears and interest were accrued in violation of these provisions, that specified conditions relating to the obligor's inability to pay while incarcerated and the underlying offense for which he or she was incarcerated do not exist, and neither the obligor nor the obligee object to the adjustment. Details the procedures for notifying the obligor and obligee about the suspension or adjustment of the child support order. Clarifies that the child support obligation will resume following the obligor’s release from incarceration.
- 2015 Texas HB 943: Current law presumes that a child support obligors earnings are equal to the federal minimum wage for a 40-hour week, absent evidence to the contrary, for purposes of calculating child support. This bill makes the presumption inapplicable in cases where the child support obligor is subject to an order of confinement that exceeds 90 days and is incarcerated in a local, state, or federal jail or prison at the time the court makes the determination regarding the party’s income.
Since adoption of the federal rule in December 2016, 20 states have introduced 34 bills addressing the modification or suspension of child support orders during periods of incarceration. Nine of those states enacted legislation. For more about how states address modification of child support orders during periods of incarceration, see OCSE’s Modification Laws and Policies for Incarcerated Noncustodial Parents facts sheet, part of the PAID project discussed above.
Enacted Legislation 2017-2019
2017 HB 7131
Conn. Gen. Stat. § 46b-215e
(a) 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, if any, in accordance with the child support guidelines established pursuant to section 46b-215a. 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.
(b) In IV-D support cases, as defined in section 46b-231, when the child support obligor is institutionalized or incarcerated for more than ninety days, any existing support order, as defined in section 46b-231, shall be modified to zero dollars effective upon the date that a support enforcement officer files an affidavit in the Family Support Magistrate Division. The affidavit shall include: (1) The beginning and expected end dates of such obligor's institutionalization or incarceration; and (2) a statement by such officer that (A) a diligent search failed to identify any income or assets that could be used to satisfy the child support order while the obligor is incarcerated or institutionalized, (B) the offense for which the obligor is institutionalized or incarcerated was not an offense against the custodial party or the child subject to such support order, and (C) a notice in accordance with subsection (c) of this section was provided to the custodial party and an objection form was not received from such party.
2018 SB 427
Ga. Code § 19-6-15
(4) Reliable evidence of income.
(D) 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. A determination of willful or voluntary unemployment or underemployment shall not be made when an individual's incarceration prevents employment. 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. Specific factors for the court to consider when determining willful or voluntary unemployment or underemployment include, but are not limited to:
2018 SB 179
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 fifteen (15) days after learning that an obligor in a Title IV-D case is or may be incarcerated for a period of at least one hundred eighty (180) calendar days, notify both parties of each party's right to request a modification of the child support order.
2017 HB 680
La. Rev. Stat. § 9:311 (effective Jan. 1, 2019)
D. A material change in circumstance need not be shown for either of the following purposes:
(1) To modify a child support award to include a court-ordered award for medical support.
(2) To suspend or modify a child support award in accordance with R.S. 9:311.1.
E. If the court does not find good cause sufficient to justify an order to modify child support or the motion is dismissed prior to a hearing, it may order the mover to pay all court costs and reasonable attorney fees of the other party if the court determines the motion was frivolous.
F. The provisions of Subsection E of this Section shall not apply when the recipient of the support payments is a public entity acting on behalf of another party to whom support is due.
La. Rev. Stat. § 9:311.1 (effective Jan. 1, 2019)
A. In accordance with the provisions of this Section, every order of child support shall be suspended when the obligor will be or is incarcerated for any period of one hundred eighty consecutive days or more, unless any of the following conditions exist:
(1) The obligor has the means to pay support while incarcerated.
(2) The obligor is incarcerated for an offense against the custodial party or the child subject to the support order.
(3) The incarceration resulted from the obligor's failure to comply with a court order to pay child support.
La. Rev. Stat. § 9:315.11
C. A party shall not be deemed voluntarily unemployed or underemployed if either:
(1) He has been temporarily unable to find work or has been temporarily forced to take a lower paying lower-paying job as a direct result of Hurricane Katrina or Rita.
(2) He is or was incarcerated for one hundred eighty consecutive days or longer.
La. Children’s Code, Art. 1353: G. It is a defense as provided by R.S. 9:311.1 to a charge of contempt of court for failure to comply with a court order of child support if an obligor can prove that he was incarcerated during the period of noncompliance. This defense applies only to the time period of actual incarceration.
2018 LB 702
Neb. Rev. Stat. § 43-512.12
(3) Notwithstanding the time periods set forth in subdivision (1)(a) of this section, within fifteen business days of learning that a noncustodial parent will be incarcerated for more than one hundred eighty 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
(1) The county attorney or authorized attorney, upon referral from the Department of Health and Human Services, shall file a complaint to modify a child support order unless the attorney determines in the exercise of independent professional judgment that:
(a) The variation from the Supreme Court child support guidelines pursuant to section 42-364.16 is based on material misrepresentation of fact concerning any financial information submitted to the attorney;
(b) The variation from the guidelines is due to a voluntary reduction in net monthly income. 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 pursuant to section 28-706 or a conviction for a violation of any federal law or law of another state substantially similar to section 28-706, (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; or
(c) When the amount of the order is considered with all the other undisputed facts in the case, no variation from the criteria set forth in subdivisions (1)(a) and (b) of section 43-512.12 exists.
(2) The department, a county attorney, or an authorized attorney shall not in any case be responsible for reviewing or filing an application to modify child support for individuals incarcerated as described in subdivision (1)(b) of this section.
(3) The proceedings to modify a child support order shall comply with section 42-364, and the county attorney or authorized attorney shall represent the state in the proceedings.
(4) After a complaint to modify a child support order is filed, any party may choose to be represented personally by private counsel. Any party who retains private counsel shall so notify the county attorney or authorized attorney in writing.
2017 SB 2277
N.D. Cent. Code § 14-09-09.38
1. A monthly support obligation established under any provision of this code and in effect after December 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.
2. Notwithstanding subsection 1, a monthly support obligation may be established for an obligor who is incarcerated under a sentence of one hundred eighty days or longer if the obligation is based on actual income of the obligor and the moving party makes a prima facie showing that the obligor's income exceeds the minimum amount provided in the guidelines established under section 14-09-09.7.
3. 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.
4. The expiration of a monthly support obligation under subsection 1 does not affect any past-due support that is owed before the expiration of the obligation.
2017 SB 682
Or. Rev. Stat. § 25.247
(1) 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.
(2) The Department of Justice and the Department of Corrections shall enter into an agreement to conduct data matches to identify the obligors described in subsection (1) of this section or as determined by the court.
(3) Within 30 days following identification of an obligor described in subsection (1) of this section whose child support obligation has not already been modified due to incarceration, the entity responsible for support enforcement services under ORS 25.080 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 as provided in subsection (4) of this section, 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 as provided in subsection (6) of this section. The entity shall serve the notice on the obligee in the manner provided for the service of summons in a civil action, by certified mail, return receipt requested, or by any other mail service with delivery confirmation and shall serve the notice on the obligor by first class mail to the obligor's last-known address. The notice shall specify the month in which the obligor became incarcerated and shall contain a statement that the administrator represents the state and that low-cost legal counsel may be available.
(9) 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.
(10) Proof of incarceration for at least 180 consecutive days is sufficient cause for the administrator, court or administrative law judge to allow a credit and satisfaction against child support arrearages for each month that the obligor was incarcerated or that is within 120 days following the obligor's release from incarceration unless the presumption of inability to pay has been rebutted.
Or. Rev. Stat. § 416.425
(11) 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.
2017 HB 5553
2017 SB 406
R.I. Gen. Laws § 15-5-16.2
(c) (3) When the department of human services, office of child support services, becomes aware of the fact, through an electronic data exchange of information with the department of corrections, or by any other means, that the noncustodial parent is or will be incarcerated for one hundred eighty (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, after setting forth in its decision specific findings of fact that show circumstances upon which the court has decided to modify or suspend all child-support orders during the period of incarceration. 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.
2017 SB 153
Utah Code § 78B-12-203
(6) Incarceration of at least six months may not be treated as voluntary unemployment by the office in establishing or modifying a support order.
State Prison Outreach and Data Collection
2015 Hawaii SB 913: Requires the Department of Public Safety to collect data relating to the number of incoming offenders into the state correctional system who are parents, and the number of children they have that are under the age of eighteen, in order to provide services to incarcerated parents and their children. Requires a plan for the management of the data collected and public disclosure of the data.
Illinois has several programs that are working with incarcerated parent who have child support orders. The Paternity Establishment Prison Project (PEPP) enables noncustodial parents to establish paternity while incarcerated through genetic testing or voluntary acknowledgements of paternity and then 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 more than 10 years and assists incarcerated noncustodial parents with review and modification of support orders. Project CHILD includes dedicated, specially trained staff, who go into prisons to talk to incarcerated parents, provide the required forms and answer any questions they may have.
Minnesota’s “Child Support Liaison” program allows newly incarcerated noncustodial parents to speak with a child support enforcement representative upon intake into prison. That liaison then educates and informs the offenders about the child support system during inmate orientation, facilitates communication between the offender and the county child support enforcement agencies, and helps families support their children while the noncustodial parent is incarcerated. The liaison is also available to assist incarcerated noncustodial parents with the typical child support enforcement services, such as requesting a modification, obtaining genetic testing and other child support issues the parent may be facing.
Texas recently performed a demonstration project called Behavioral Interventions to Advance Self-Sufficiency (BIAS). This project used behavioral economics to help incarcerated parents apply for child support modification by changing the way child support enforcement staff contacted and interacted with incarcerated parents. The project increased the application for modification response rate from 28 percent to 39 percent.
While there is a great deal that we do know, there is also a lot that we do not know, including how many incarcerated parents have child support orders and how many people are incarcerated for nonpayment of child support. Having this information could greatly inform both child support and criminal justice policy in the states.
Questions to Consider:
- How many noncustodial parents are incarcerated in county jails for failure to pay child support?
- Do these parents have the ability to pay the amount of support that is court-ordered, or the amount required to get out, or stay out, of jail?
- What is the cost of incarceration in county jails?
- How much child support has been collected by using civil contempt?
- How much child support has been collected by using diversion programs?
- What administrative or judicial process exists to adjust child support once a noncustodial parent is incarcerated?
- Is incarceration treated as voluntary or involuntary unemployment?
- Can incarcerated noncustodial parents modify their child support orders?
- Can the agency or judicial entity automatically modify a child support order?
- Will debt and interest accrue while the parent is incarcerated?
For more information or to request technical assistance on state or federal child support policies and programs, please send a message to Children & Families staff. As a membership organization serving state legislators and legislative staff, we do not respond to inquiries or provide legal advice related to individual child support or family law cases.