HLS 17RS-2137 REENGROSSED
2017 Regular Session
HOUSE BILL NO. 680 (Substitute for House Bill No 426 by Representative Marino)
BY REPRESENTATIVES MARINO, BAGNERIS, BOUIE, CARPENTER, GARY
CARTER, GLOVER, HALL, HOFFMANN, HUNTER, JAMES, TERRY
LANDRY, LEGER, LYONS, MARCELLE, NORTON, PIERRE, AND SMITH
Prefiled pursuant to Article III, Section 2(A)(4)(b)(i) of the Constitution of Louisiana.
CHILDREN/SUPPORT: Provides relative to child support when a parent is incarcerated
1 AN ACT
2To amend and reenact R.S. 9:311(A)(2) and (D) and 315.11(A) and (C), to enact Children's
3 Code Article 1353(G), R.S. 9:311.1 and 315.22(F), R.S. 13:4611(1)(d)(iii), R.S.
4 46:236.6(B)(4) and 236.7(C)(4), and to repeal R.S. 9:311(G), relative to child
5 support; to provide relative to child support obligations; to provide relative to
6 incarceration of the obligor; to provide procedures for the temporary modification
7 or suspension of child support orders; to provide for notice requirements; to provide
8 for a defense to contempt of court; and to provide for related matters.
9Be it enacted by the Legislature of Louisiana:
10 Section 1. Children's Code Article 1353(G) is hereby enacted to read as follows:
11 Art. 1353. Support provisions; contempt; penalties; defenses
12 * * *
13 G. It is a defense as provided by R.S. 9:311.1 to a charge of contempt of
14 court for failure to comply with a court order of child support if an obligor can prove
15 that he was incarcerated during the period of noncompliance. This defense applies
16 only to the time period of actual incarceration.
17 Section 2. R.S. 9:311(A)(2) and (D) and 315.11(A) and (C) are hereby amended and
18reenacted and R.S. 9:311.1 and 315.22(F) are hereby enacted to read as follows:
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1 §311. Modification or suspension of support; material change in circumstances;
2 periodic review by Department of Children and Family Services; medical
3 support
4 A.
5 * * *
6 (2) The Department of Children and Family Services shall prepare and
7 distribute information, forms, and rules for the modification or suspension of support
8 orders, in accordance with this Subsection, and for proceeding in forma pauperis.
9 The information provided by the Department of Children and Family Services shall
10 specifically include what may constitute a material change in circumstances. The
11 clerks of court in all parishes shall make this information available to the public upon
12 request. This information shall also be distributed by the Department of Public
13 Safety and Corrections or the sheriff of any parish, as appropriate, to every person
14 incarcerated in every state and parish jail and prison facility. When the initial
15 support order is entered, either the court or the department, if providing services,
16 shall provide this information to the parties.
17 * * *
18 D. A material change in circumstance need not be shown for either of the
19 following purposes of:
20 (1) modifying To modify a child support award to include a court-ordered
21 award for medical support.
22 (2) To suspend or modify a child support award in accordance with R.S.
23 9:311.1.
24 * * *
25 §311.1. Child support during the obligor's incarceration
26 A. In accordance with the provisions of this Section, every order of child
27 support shall be suspended when the obligor will be or is incarcerated for any period
28 of one hundred eighty consecutive days or more, unless any of the following
29 conditions exist:
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1 (1) The obligor has the means to pay support while incarcerated.
2 (2) The obligor is incarcerated for an offense against the custodial party or
3 the child subject to the support order.
4 (3) The incarceration resulted from the obligor's failure to comply with a
5 court order to pay child support.
6 B. As used in this Section:
7 (1) "Incarceration" means placement of an obligor in a county, parish, state
8 or federal prison or jail, in which the obligor is not permitted to earn wages from
9 employment outside the facility. "Incarceration" does not include probation or
10 parole.
11 (2) "Support enforcement services" shall have the same meaning as provided
12 in R.S. 46:236.1.1(14).
13 (3) "Suspension" means the modification of a child support order to zero
14 dollars due to an obligor's incarceration.
15 C. The Department of Public Safety and Corrections or the sheriff of any
16 parish, as appropriate, shall notify the Department of Children and Family Services
17 of any person who has been in their custody and may be subject to a child support
18 obligation if either of the following occurs:
19 (1) The person will be or is incarcerated for one hundred eighty consecutive
20 days or longer.
21 (2) The person who was the subject of notification under Paragraph (1) of
22 this Subsection is no longer incarcerated as defined in Subsection B of this Section.
23 D.(1) When the Department of Children and Family Services is providing
24 support enforcement services, the department shall, upon receipt of notice in
25 accordance with Paragraph (C)(1) of this Section, verify that none of the conditions
26 in Subsection A exists.
27 (2) Upon finding that none of the conditions in Subsection A exists, the
28 department shall provide notice to the custodial party by certified mail, return receipt
29 requested. The notice shall state all of the following:
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1 (a) The child support order shall be suspended unless the custodial party
2 objects no later than fifteen calendar days after receipt of such notice on any of the
3 following grounds:
4 (i) The obligor has sufficient income or assets to comply with the order of
5 child support.
6 (ii) The obligor is incarcerated for an offense against the custodial party or
7 the child subject to the order of child support.
8 (iii) The offense for which the obligor is incarcerated is due to the obligor's
9 failure to comply with an order to pay child support.
10 (b) The custodial party may object to the proposed modification by delivering
11 a signed objection form, indicating the nature of the objection to the department no
12 later than fifteen calendar days after receipt of the notice in this Paragraph.
13 (3) If no objection is received from the custodial party in accordance with
14 Paragraph (2) of this Subsection, the department shall file an affidavit with the court
15 that has jurisdiction over the order of child support. The affidavit shall include all
16 of the following:
17 (a) The beginning and expected end dates of such obligor's incarceration.
18 (b) A statement by the affiant of all of the following:
19 (i) A diligent search failed to identify any income or assets that could be
20 used to satisfy the order of child support while the obligor is incarcerated.
21 (ii) The offense for which the obligor is incarcerated is not an offense against
22 the custodial party or the child subject to the order of child support.
23 (iii) The offense for which the obligor is incarcerated is not due to the
24 obligor's failure to comply with an order to pay child support.
25 (iv) A notice was provided to the custodial party in accordance with
26 Paragraph (2) of this Subsection and an objection was not received from such party.
27 (4) The suspension of the order of support shall begin upon the date that the
28 department files the affidavit.
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1 (5) If the custodial party makes a timely objection, the department shall file
2 a contradictory motion with the court that has jurisdiction over the order of child
3 support.
4 (6) If a timely objection is made, the order of child support shall continue
5 until further order of the court.
6 E. Nothing in this Section shall prevent either party from seeking a
7 suspension or a modification of the order of support under this Section or any other
8 provision of law.
9 F.(1) Upon motion of either party or the Department of Children and Family
10 Services, after notice and hearing, the court shall suspend the child support
11 obligation unless it finds one of the conditions in Subsection A of this Section exists.
12 (2) If one of the conditions in Subsection A of this Section exists, the court
13 shall use the child support guidelines in R.S. 9:315 et seq. to determine an obligor's
14 support obligation during his period of incarceration.
15 G.(1) An order of support suspended in accordance with this Section shall
16 resume by operation of law on the first day of the second full month after the
17 obligor's release from incarceration.
18 (2) An order that suspends an obligor's order of support because of the
19 obligor's incarceration shall contain a provision that the previous order will be
20 reinstated on the first day of the second full month after the obligor's release from
21 incarceration.
22 (3) Unless the terms of the order of support have been otherwise modified,
23 the suspended order of support shall resume at the same terms that existed before the
24 suspension.
25 H. The suspension of an order of support in accordance with this Section
26 shall not affect any past due support that has accrued before the effective date of the
27 suspension.
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1 I. The provisions of this Section shall not apply if a court does not have
2 continuing exclusive jurisdiction to modify the order of child support in accordance
3 with Children's Code Article 1302.5.
4 J. The secretary of the Department of Children and Family Services, in
5 consultation with the courts, the Department of Public Safety and Corrections, and
6 law enforcement entities, shall promulgate rules in accordance with the
7 Administrative Procedure Act necessary to implement the provisions of this Section.
8 * * *
9 §315.11. Voluntarily unemployed or underemployed party
10 A.(1) If a party is voluntarily unemployed or underemployed, child support
11 shall be calculated based on a determination of income earning potential, unless the
12 party is physically or mentally incapacitated, or is caring for a child of the parties
13 under the age of five years. In determining the party's income earning potential, the
14 court may consider the most recently published Louisiana Occupational Employment
15 Wage Survey. In determining whether to impute income to a party, the court's
16 considerations shall include, to the extent known, all of the following:
17 (a) Assets owned or held by the party.
18 (b) Residence.
19 (c) Employment and earnings history.
20 (d) Job skills.
21 (e) Educational attainment.
22 (f) Literacy.
23 (g) Age and health.
24 (h) Criminal record and other employment barriers.
25 (i) Record of seeking work.
26 (j) The local job market.
27 (k) The availability of employers willing to hire the noncustodial parent.
28 (l) Prevailing earnings level in the local community.
29 (m) Other relevant background factors in the case.
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1 (2) Absent evidence of a party's actual income or income earning potential,
2 there is a rebuttable presumption that the party can earn a weekly gross amount equal
3 to thirty-two hours at a minimum wage, according to the laws of his state of domicile
4 or federal law, whichever is higher.
5 * * *
6 C. A party shall not be deemed voluntarily unemployed or underemployed
7 if he or she either:
8 (1) He has been temporarily unable to find work or has been
9 temporarily forced to take a lower paying lower-paying job as a direct result
10 of Hurricane Katrina or Rita.
11 (2) He is or was incarcerated for one hundred eighty consecutive days or
12 longer.
13 * * *
14 §315.22. Termination of child support upon majority or emancipation; exceptions
15 * * *
16 F. If a child support award has been suspended pursuant to R.S. 9:311.1, the
17 court may, in its discretion and upon motion of any party, continue the award beyond
18 the termination date otherwise provided by subsections A through E of this Section.
19 However, any continuation of a child support award ordered pursuant to this
20 Subsection shall not exceed the amount of time the child support order was
21 suspended during the obligor's incarceration.
22 Section 3. R.S. 13:4611(1)(d)(iii) is hereby enacted to read as follows:
23 §4611. Punishment for contempt of court; defenses
24 Except as otherwise provided for by law:
25 (1) The supreme court, the courts of appeal, the district courts, family courts,
26 juvenile courts and the city courts may punish a person adjudged guilty of a
27 contempt of court therein, as follows:
28 * * *
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1 (d)
2 * * *
3 (iii) It is a defense as provided by R.S. 9:311.1 to a charge of contempt of
4 court for failure to comply with a court order of child support if an obligor can prove
5 that he was incarcerated during the period of noncompliance. This defense applies
6 only to the time period of actual incarceration.
7 * * *
8 Section 4. R.S. 46:236.6(B)(4) and 236.7(C)(4) are hereby enacted to read as
9follows:
10 §236.6. Failure to pay support; procedure, penalties and publication
11 * * *
12 B.
13 * * *
14 (4) It is a defense as provided by R.S. 9:311.1 to a charge of contempt of
15 court for failure to comply with a court order of child support if an obligor can prove
16 that he was incarcerated during the period of noncompliance. This defense applies
17 only to the time period of actual incarceration.
18 * * *
19 §236.7. Order of support; stipulation by district attorney and party
20 * * *
21 C.
22 * * *
23 (4) It is a defense as provided by R.S. 9:311.1 to a charge of contempt of
24 court for failure to comply with a court order of child support if an obligor can prove
25 that he was incarcerated during the period of noncompliance. This defense applies
26 only to the time period of actual incarceration.
27 * * *
28 Section 5. R.S. 9:311(G) is hereby repealed in its entirety.
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1 Section 6. The legislature finds that the purpose of modifying child support during
2a person's incarceration is to increase the likelihood of successful reintegration into the
3workforce and long-term stability after a jail or prison term. Establishing financial stability
4in the weeks and months following a jail or prison term reduces the risk of recidivism,
5increasing both public safety and the likelihood of consistent payment of child support over
6time.
7 Section 7. The provisions of this Act shall become effective on January 1, 2019.
DIGEST
The digest printed below was prepared by House Legislative Services. It constitutes no part
of the legislative instrument. The keyword, one-liner, abstract, and digest do not constitute
part of the law or proof or indicia of legislative intent. [R.S. 1:13(B) and 24:177(E)]
HB 680 Reengrossed 2017 Regular Session Marino
Abstract: Provides for the modification or suspension of child support under certain
circumstances when an obligor is incarcerated for 180 days or more.
Proposed law provides for the temporary modification or suspension of a child support order
due to an obligor's incarceration of more than 180 days. Requires the Dept. of Children and
Family Services, once it is notified that an individual subject to support enforcement services
is being incarcerated, to verify that none of the following exceptions exist:
(1)The incarceration is pursuant to an intentional failure to pay a child support
obligation.
(2)The obligor has the means to pay support while incarcerated.
(3)The obligor is incarcerated for an offense against the custodial party or the child
subject to the support order.
Proposed law adds that a person shall not be considered voluntarily unemployed or
underemployed if that person is incarcerated for more than 180 days.
Proposed law requires the Dept. of Public Safety and Corrections or the sheriff in certain
circumstances to distribute information to every person in a prison facility regarding the
suspension of child support, including information specific as to what may constitute a
material change in circumstances.
Proposed law requires the Dept. of Children and Family Services to provide notice to the
custodial party by certified mail that the child support obligation will be suspended (if none
of the exceptions exist) unless the custodial party objects no later than fifteen calendar days
from receipt of notice.
Proposed law outlines the grounds for the custodial parent to object to modification or
suspension of support, and provides the means required for the custodial parent to object.
Proposed law requires the Dept. of Children and Family Services to file an affidavit with the
court having jurisdiction over the order of child support and provides for the mandatory
contents of the affidavit.
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Proposed law permits a court, at its discretion and upon motion of any party, to continue an
award of child support that would be otherwise terminated, if the award was suspended due
to the obligor's incarceration. Proposed law prohibits such a continuation from exceeding
a longer period of time than the award was suspended due to the obligor's incarceration.
Provides that proposed law does not apply if a court does not have continuous exclusive
jurisdiction to modify the order pursuant to the Uniform Interstate Family Support Act.
Effective Jan. 1, 2019.
(Amends R.S. 9:311(A)(2) and (D) and 315.11(A) and (C); Adds Ch.C. Art. 1353(G), R.S.
9:311.1 and 315.22(F), R.S.13:4611(1)(d)(iii), and R.S. 46:236.6(B)(4) and 236.7(C)(4);
Repeals R.S. 9:311(G))
Summary of Amendments Adopted by House
The House Floor Amendments to the engrossed bill:
1. Add a requirement that the Dept. of Public Safety and Corrections or the sheriff
must distribute information to every person in a correctional facility regarding
the suspension of child support, including information as to what may constitute
a material change in circumstances.
2. Change proposed notice requirements to require the Dept. of Children and
Family Services to provide notice to the custodial party by certified mail that the
child support obligation will be suspended (if none of the exceptions exist) unless
the custodial party objects no later than fifteen calendar days from receipt of
notice.
3. Outline the grounds for the custodial parent to object to modification or
suspension of support, and provides the means required for the custodial parent
to object.
4. When no objection is received, require the Dept. of Children and Family Services
to file an affidavit with the court having jurisdiction over the order of child
support, and provide for the mandatory contents of the affidavit.
5. Provide that proposed law does not apply if a court does not have continuous
exclusive jurisdiction to modify the order pursuant to the Uniform Interstate
Family Support Act.
6. Provide that when a child support award is suspended due to the obligor's
incarceration, a court may, at its discretion and upon motion of any party,
continue the award that would be otherwise terminated, but the award shall not
be continued for a longer period of time than it was suspended due to the
obligor's incarceration.
7. Make technical changes.
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