HLS 20RS-654 ORIGINAL
2020 Regular Session
HOUSE BILL NO. 767
BY REPRESENTATIVE GREGORY MILLER
CHILDREN/SUPPORT: Provides relative to child support obligations
1 AN ACT
2To amend and reenact Children's Code Article 1353(G), Code of Civil Procedure Article
3 197(A), R.S. 9:311(D), 311.1, and 315.11(C)(2), R.S. 13:4611(1)(d)(iii), and R.S.
4 46:236.6(B)(4) and 236.7(C)(4), to enact Code of Civil Procedure Article 197(C) and
5 R.S. 9:311.2, and to repeal R.S. 9:315.27, relative to child support; to provide
6 relative to child support obligations; to provide relative to incarceration of the
7 obligor; to provide for the taking of testimony of an incarcerated obligor; to provide
8 procedures for the temporary suspension of child support orders; to provide for
9 notice requirements; to provide for the continuation of a support obligation past its
10 termination date; to provide for the voluntary unemployment or underemployment
11 of a child support obligor; to provide for definitions; to provide for applicability; and
12 to provide for related matters.
13Be it enacted by the Legislature of Louisiana:
14 Section 1. Children's Code Article 1353(G) is hereby amended and reenacted to read
15as follows:
16 Art. 1353. Support provisions; contempt; penalties; defenses
17 * * *
18 G. It is a defense as provided by R.S. 9:311.1 to a charge of contempt of
19 court for failure to comply with a court order of child support if an obligor can prove
20 that he was incarcerated during the period of noncompliance. This defense applies
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1 only to the time period of actual incarceration. "Incarceration" shall have the same
2 meaning as provided in R.S. 9:311.1.
3 Section 2. Code of Civil Procedure Article 197(A) is hereby amended and reenacted
4and Code of Civil Procedure Article 197(C) is hereby enacted to read as follows:
5 Art. 197. Testimony of inmates
6 A. As used in this Article, "inmate" means a person confined in any prison,
7 jail, correctional or training institution operated by the state, any of its political
8 subdivisions, or any sheriff either while awaiting disposition of contemplated or
9 pending criminal charges, pursuant to a sentence imposed by a court following the
10 conviction of a crime, or pursuant to the judgment of a civil or juvenile court.
11 * * *
12 C. Notwithstanding the provisions of Paragraph B of this Article:
13 (1) The trial judge shall order the testimony of the inmate be taken, or the
14 proceedings conducted, by teleconference, video link, or other available remote
15 technology if all of the following apply:
16 (a) The Department of Children and Family Services is providing support
17 enforcement services as defined in R.S. 46:236.1.1.
18 (b) An interested party makes the request for an order by ex parte motion.
19 (c) The obligor or prospective obligor is an inmate.
20 (2) If the inmate is represented by an attorney during the proceeding, the
21 attorney may elect to be present either in the courtroom with the trial judge or in the
22 place where the inmate is confined.
23 (3) Nothing in this Paragraph shall be interpreted to require the trial judge
24 to use any means of communication other than those required by Children's Code
25 Article 1303.16(F).
26 (4) As used in this Article, "interested party" shall mean any of the
27 following:
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1 (a) The Department of Children and Family Services, the district attorney,
2 or the contract attorney providing support services pursuant to Title IV-D of the
3 Social Security Act.
4 (b) The inmate.
5 (c) The individual or current caretaker to whom the support obligation is
6 owed.
7 (d) The local, state, or federal government agency that controls the facility
8 that houses the inmate.
9 Section 3. R.S. 9:311(D), 311.1, and 315.11(C)(2) are hereby amended and
10reenacted and R.S. 9:311.2 is hereby enacted to read as follows:
11 §311. Modification or suspension of support; material change in circumstances;
12 periodic review by Department of Children and Family Services; medical
13 support
14 * * *
15 D. A material change in circumstance need not be shown for either
16 of the following purposes:
17 (1) To modify a child support award to include a court-ordered award for
18 medical support.
19 (2) To suspend or modify a child support award in accordance with R.S.
20 9:311.1 or 311.2.
21 * * *
22 §311.1. Suspension of Child child support during the obligor's incarceration;
23 Department of Children and Family Services providing support
24 enforcement services
25 A. In accordance with the provisions of this Section, When the Department
26 of Children and Family Services is providing support enforcement services, every
27 order of a child support order shall be suspended when the obligor will be or is
28 incarcerated for, or is sentenced to, any period of one hundred eighty consecutive
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1 days or more, with or without hard labor, unless any of the following conditions
2 exist:
3 (1) The obligor has the means to pay support while incarcerated.
4 (2) The obligor is incarcerated for an offense against the custodial party or
5 the child subject to the support order.
6 (3) The incarceration resulted from the obligor's failure to comply with a
7 court order to pay child support.
8 B. As used in this Section and R.S. 9:311.2:
9 (1) "Child support order" shall have the same meaning as Children's Code
10 Article 1301.2.
11 (2) "Incarceration" means placement of an obligor in a county, parish, state
12 or federal prison or jail, in which the obligor is not permitted to earn wages from
13 employment outside the facility. "Incarceration" does not include probation or
14 parole.
15 (2)(3) "Support enforcement services" shall have the same meaning as
16 provided in R.S. 46:236.1.1.
17 (3)(4) "Suspension" means the modification of a child support order to zero
18 dollars during the period of an obligor's incarceration a postponement of the
19 scheduled due date of any payment required to be paid under a child support order
20 or as previously suspended.
21 (5) "Suspension period" means a period during which no child support
22 payment is scheduled to be paid by reason of a suspension.
23 C. The Department of Public Safety and Corrections or the sheriff of any
24 parish, as appropriate, shall notify the Department of Children and Family Services
25 of any person who has been in their custody and may be subject to a child support
26 obligation order if either:
27 (1) The person will be or is incarcerated for, or is sentenced to, one hundred
28 eighty consecutive days or longer, with or without hard labor.
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1 (2) At least six months weeks before the person who was the subject of
2 notification under Paragraph (1) of this Subsection is scheduled to be released from
3 incarceration as defined in Subsection B of this Section.
4 D.(1) When the Department of Children and Family Services is providing
5 support enforcement services, the department The Department of Children and
6 Family Services shall, upon receipt of notice in accordance with Paragraph (C)(1)
7 of this Section, verify that none of the conditions in Subsection A of this Section
8 exists.
9 (2) Upon finding that If none of the conditions in Subsection A of this
10 Section exists, the department shall provide notice to the custodial party by
11 registered or certified mail, return receipt requested or commercial courier. The
12 notice shall state all of the following:
13 (a) The child support order shall be suspended unless the custodial party
14 objects no later than fifteen calendar days after receipt of such notice on any of the
15 following grounds:
16 (i) The obligor has sufficient income or assets to comply with the order of
17 child support order.
18 (ii) The obligor is incarcerated for an offense against his child or the current
19 custodian of the custodial party or the child subject to the order of child support.
20 (iii) The offense for which the obligor is incarcerated is due to the obligor's
21 failure to comply with an order to pay child support a child support order.
22 (b) The custodial party may object to the proposed modification suspension
23 by delivering a signed objection form, indicating the nature of the objection to the
24 department no later than fifteen calendar days after receipt of the notice in this
25 Paragraph. An objection may be raised only upon the conditions listed in Subsection
26 A of this Section.
27 (3) If no objection is received from the custodial party in accordance with
28 Paragraph (2) of this Subsection, the department shall file an affidavit with the court
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1 that has jurisdiction over the order of child support order. The affidavit shall include
2 all of the following:
3 (a) The beginning and expected end dates of such obligor's incarceration.
4 (b) A statement by the affiant of all of the following:
5 (i) A diligent search failed to identify any income or assets that could be
6 used to satisfy the order of child support order while the obligor is incarcerated.
7 (ii) The offense for which the obligor is incarcerated is not an offense against
8 the custodial party or the child subject to the order of child support order.
9 (iii) The offense for which the obligor is incarcerated is not due to the
10 obligor's failure to comply with an order to pay child support a child support order.
11 (iv) A notice was provided to the custodial party in accordance with
12 Paragraph (2) of this Subsection and an objection was not received from such party.
13 (4)E.(1) The suspension period of the order of support shall begin upon the
14 date that the department files the affidavit.
15 (2) The suspension period shall terminate by operation of law on the first day
16 of the second full month after the obligor's release from incarceration.
17 (3) Notwithstanding any other law to the contrary, the termination of the
18 child support order under R.S. 9:315.22 or any other applicable provision of law
19 shall be extended by either of the following, whichever is shorter:
20 (a) The suspension period granted under this Section or R.S. 9:311.2.
21 (b) The amount of time that elapsed between the first day of the suspension
22 period granted under this Section or R.S. 9:311.2 and the date the obligation would
23 have terminated under R.S. 9:315.22.
24 (5)F.(1) If the custodial party makes a timely objection, the department shall
25 file a contradictory motion pursuant to R.S. 9:311.2 with the court that has
26 jurisdiction over the order of child support order.
27 (6)(2) If a timely objection is made, the order of child support order shall
28 continue until further order of the court.
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1 E.G. Nothing in this Section shall prevent either a party from seeking a
2 suspension or a modification of the child support order of support under this Section
3 or any other provision of law.
4 F.(1) Upon motion of either party or the Department of Children and Family
5 Services, after notice and hearing, the court shall suspend the child support
6 obligation unless it finds one of the conditions in Subsection A of this Section exists.
7 (2) If one of the conditions in Subsection A of this Section exists, the court
8 shall use the child support guidelines in R.S. 9:315 et seq. to determine an obligor's
9 support obligation during his period of incarceration.
10 G.(1) An order of support suspended in accordance with this Section shall
11 resume by operation of law on the first day of the second full month after the
12 obligor's release from incarceration.
13 (2) An order that suspends an obligor's order of support because of the
14 obligor's incarceration shall contain a provision that the previous order will be
15 reinstated on the first day of the second full month after the obligor's release from
16 incarceration.
17 (3) Unless the terms of the order of support have been otherwise modified,
18 the suspended order of support shall resume at the same terms that existed before the
19 suspension.
20 H. The suspension of an order of support a child support order in accordance
21 with this Section shall not affect any past due support that has accrued before the
22 effective date of the suspension.
23 I. The provisions of this Section shall not apply if a court does not have
24 continuing, exclusive jurisdiction to modify the order of child support child support
25 order in accordance with Children's Code Article 1302.5.
26 §311.2. Suspension of child support order during the obligor's incarceration; judicial
27 proceedings
28 A.(1) When an obligor is incarcerated for, or is sentenced to, one hundred
29 eighty consecutive days or more, with or without hard labor, upon motion of an
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1 interested party, after notice and hearing, the court shall suspend the child support
2 order unless it finds one of the conditions listed in R.S. 9:311.1(A) exists.
3 (2) If one of the conditions listed in R.S. 9:311.1(A) exists, the court shall
4 use the child support guidelines in R.S. 9:315 et seq. to determine an obligor's
5 support obligation during his period of incarceration.
6 (3) As used in this Section, "interested party" shall mean any of the
7 following:
8 (a) The Department of Children and Family Services, the district attorney,
9 or the contract attorney providing support services pursuant to Title IV-D of the
10 Social Security Act.
11 (b) The person owing the support obligation.
12 (c) The individual or current caretaker to whom the support obligation is
13 owed.
14 B.(1) The suspension period shall terminate on the first day of the second
15 full month after the obligor's release from incarceration.
16 (2) Unless the terms of the child support order have been otherwise
17 modified, the suspended child support order shall resume at the same terms that
18 existed before the suspension.
19 (3) Notwithstanding any other law to the contrary, the termination of the
20 child support order under R.S. 9:315.22 or any other applicable provision of law
21 shall be extended by either of the following, whichever is shorter:
22 (a) Any suspension period granted under this Section or R.S. 9:311.1.
23 (b) The amount of time that elapsed between the first day of the suspension
24 period granted under this Section or R.S. 9:311.1 and the date the obligation would
25 have terminated under R.S. 9:315.22.
26 (4) An order that suspends an obligor's child support order in accordance
27 with this Section shall contain the following provisions:
28 (a) That the suspension period shall terminate on the first day of the second
29 full month after the obligor's release from incarceration.
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1 (b) The new termination date of the child support order as calculated under
2 Paragraph (3) of this Subsection.
3 C. The suspension of a child support order in accordance with this Section
4 shall not affect any past due support that has accrued before the effective date of the
5 suspension.
6 D. Nothing in this Section shall prevent any party from seeking a suspension
7 or a modification of the child support order under any other provision of law.
8 E. The provisions of this Section shall not apply if a court does not have
9 continuing exclusive jurisdiction to modify the child support order in accordance
10 with Children's Code Article 1302.5.
11 §315.11. Voluntarily unemployed or underemployed party
12 * * *
13 C. A party shall not be deemed voluntarily unemployed or underemployed
14 if either:
15 * * *
16 (2) He is or was incarcerated for one hundred eighty consecutive days or
17 longer and is unemployed or underemployed as a direct result of the incarceration.
18 "Incarceration" shall have the same meaning as provided in R.S. 9:311.1.
19 Section 4. R.S. 13:4611(1)(d)(iii) is hereby enacted to read as follows:
20 §4611. Punishment for contempt of court; defenses
21 Except as otherwise provided for by law:
22 (1) The supreme court, the courts of appeal, the district courts, family courts,
23 juvenile courts, and the city courts may punish a person adjudged guilty of a
24 contempt of court therein, as follows:
25 * * *
26 (d)
27 * * *
28 (iii) It is a defense as provided by R.S. 9:311.1 to a charge of contempt of
29 court for failure to comply with a court order of child support if an obligor can prove
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1 that he was incarcerated during the period of noncompliance. This defense applies
2 only to the time period of actual incarceration. "Incarceration" shall have the same
3 meaning as provided in R.S. 9:311.1.
4 Section 5. R.S. 46:236.6(B)(4) and 236.7(C)(4) are hereby amended and reenacted
5to read as follows:
6 §236.6. Failure to pay support; procedure, penalties and publication
7 * * *
8 B. If at the hearing of such rule the court finds the accused guilty of contempt
9 for failure to comply with the previous judgment, the contempt shall be deemed
10 constructive contempt under Code of Civil Procedure Article 224(2) and the
11 defendant may be punished as follows:
12 * * *
13 (4) 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. "Incarceration" shall have the same
17 meaning as provided in R.S. 9:311.1.
18 * * *
19 §236.7. Order of support; stipulation by district attorney and party
20 * * *
21 C. If the defendant is held in contempt by the court, he may be punished as
22 follows:
23 * * *
24 (4) It is a defense as provided by R.S. 9:311.1 to a charge of contempt of
25 court for failure to comply with a court order of child support if an obligor can prove
26 that he was incarcerated during the period of noncompliance. This defense applies
27 only to the time period of actual incarceration. "Incarceration" shall have the same
28 meaning as provided in R.S. 9:311.1.
29 * * *
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1 Section 6. R.S. 9:315.27 is hereby repealed in its entirety.
2 Section 7. The provisions of Sections 1, 4, 5, and 6 and the provisions of R.S.
39:311(D) and 311.1 contained in Section 3 of this Act supercede the provisions of Sections
41 through 4 of Act No. 264 of the 2017 Regular Session of the Legislature that amend and
5reenact R.S. 9:311(D) and enact Children's Code Article 1353(G), R.S. 9:311.1 and 315.27,
6R.S. 13:4611(1)(d)(iii) and R.S. 46:236.6(B)(4) and 236.7(C)(4).
7 Section 8. The provisions of this Act shall become effective August 1, 2020.
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 767 Original 2020 Regular Session Gregory Miller
Abstract: Provides for the procedures related to suspension of a child support order for and
the taking of testimony of an incarcerated obligor.
Present law (C.C.P. Art. 197) provides procedures for receiving testimony from inmates
confined pursuant to a sentence imposed by a court following the conviction of a crime, or
pursuant to the judgment of a juvenile court.
Proposed law retains present law and extends the procedures to inmates confined pursuant
to the judgment of a civil court.
Proposed law requires the trial judge to order the testimony of the inmate be taken, or the
proceedings conducted, by teleconference, video link, or other available remote technology
in cases where the inmate is an obligor, the Dept. of Children and Family Services (DCFS)
is providing support enforcement services, and an interested party makes the request for an
order by ex parte motion. Proposed law defines interested party as DCFS, the district
attorney or contract attorney providing support enforcement services, the inmate, the
individual or current caretaker to whom the support obligation is owed, or the local, state,
or federal government agency that controls the facility that houses the inmate.
Present law (R.S. 9:311.1) provides for the temporary suspension of a child support order
due to an obligor's incarceration for more than 180 days.
Proposed law retains present law, and includes cases in which the obligor is sentenced to 180
days or more with or without hard labor. Further limits present law application to cases in
which DCFS is providing support enforcement services.
Present law defines "suspension" as the modification of a child support order to zero dollars
during the period of the obligor's incarceration.
Proposed law repeals present law and instead defines "suspension" as a postponement of the
scheduled due date of any payment required to be paid under a child support order or as
previously suspended.
Proposed law defines "child support order" and "suspension period".
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Present law requires the Dept. of Public Safety and Corrections (DPSC) or the sheriff to
notify DCFS of any person in their custody that may be subject to a child support order at
least six months before the inmate is scheduled to be released from incarceration.
Proposed law retains present law, but reduces the notice period from six months to six
weeks.
Present law requires DCFS to provide notice to the custodial party by certified mail, return
receipt requested that a child support obligation will be suspended.
Proposed law instead requires DCFS to provide the notice by registered or certified mail, or
commercial courier.
Present law requires DCFS to include in the notice a statement that the child support order
shall be suspended unless the custodial party objects within 15 days upon certain grounds
including that the obligor is incarcerated for an offense against the custodial party or the
child subject to the order of child support.
Proposed law retains present law but provides instead that the custodial party may object on
grounds that the obligor is incarcerated for an offense against his child or the current
custodian of the child.
Present law provides that if the custodial party does not object, the suspension shall become
effective when DCFS files an affidavit with the court. Further provides that the suspension
period shall terminate by operation of law on the first day of the second full month after the
obligor's release from incarceration. Proposed law retains present law.
Proposed law provides that the termination of the child support order pursuant to present law
shall be extended by the shorter of: (a) the suspension period granted under present law or
proposed law, or (b) the amount of time that elapsed between the first day of the suspension
period granted under present law or proposed law and the date the obligation would have
terminated under present law.
Present law requires that the order suspending the child support order shall contain certain
provisions. Proposed law requires that the order also contain a provision explaining that the
new termination date will be calculated as provided by proposed law.
Present law authorizes DCFS or either party to file a motion with the court, upon which the
court shall suspend the child support obligation unless certain conditions exist. Further
provides that if the custodial party makes a timely objection, DCFS shall file a contradictory
motion with the court. Proposed law retains present law, but clarifies that the parties that
may make the motion include DCFS, the obligor, or the individual or current caretaker to
whom the obligation is owed.
Present law provides that unless the terms of the child support order have been modified, the
suspended child support order shall resume at the same terms that existed before the
suspension. Proposed law retains present law.
Proposed law provides that the suspension of a child support order under present law shall
not affect any past due child support that has accrued before the effective date of the
suspension. Further provides that a party is not prevented from seeking a suspension or
modification of child support under any other provision of law and that present law and
proposed law shall not apply if a court does not have continuing exclusive jurisdiction to
modify the child support order in accordance with present law.
Present law (R.S. 9:315.11) provides that a party shall not be deemed voluntarily
unemployed or underemployed for purposes of calculating a child support obligation if he
is or was incarcerated for 180 consecutive days or longer. Proposed law instead provides that
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a party shall not be deemed voluntarily unemployed or underemployed if he is incarcerated
and is unemployed or underemployed as a direct result of incarceration.
Proposed law provides cross-references to present law definition of "incarceration."
Present law (R.S. 9:315.27) provides for continuing a child support award pursuant to
present law beyond the termination date under certain circumstances.
Proposed law repeals present law.
Proposed law provides that proposed law (Sections 1, 4, 5, and 6 and the provisions of R.S.
9:311(D) and 311.1 contained in Section 3) shall supercede present law (Sections 1 through
4 of Act No. 264 of the 2017 Regular Session of the Legislature that amend and reenact R.S.
9:311(D) and enact Children's Code Article 1353(G), R.S. 9:311.1 and 315.27, R.S.
13:4611(1)(d)(iii) and R.S. 46:236.6(B)(4) and 236.7(C)(4)).
Effective Aug. 1, 2020.
(Amends Ch.C. Art. 1353(G), C.C.P. Art. 197(A), R.S. 9:311(D), 311.1, and 315.11(C)(2),
R.S. 13:4611(1)(d)(iii), and R.S. 46:236.6(B)(4) and 236.7(C)(4); Adds C.C.P. Art. 197(C)
and R.S. 9:311.2; Repeals R.S. 9:315.27)
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