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2021 Regular Session
HOUSE BILL NO. 449
BY REPRESENTATIVE WILFORD CARTER
Prefiled pursuant to Article III, Section 2(A)(4)(b)(i) of the Constitution of Louisiana.
CHILDREN/SUPPORT: Provides relative to the reduction of a child support obligation
during the obligor's incarceration
1 AN ACT
2To amend and reenact R.S. 9:311(A)(2), (C)(3), and (D)(2), 311.1, 315.11(C)(2), and 315.27
3 and to enact R.S. 9:311(D)(3), relative to the reduction of child support obligations;
4 to provide for reduction during an obligor's incarceration; to remove provisions for
5 suspension and exceptions to suspension of a support order during the obligor's
6 incarceration; to provide for requirements of the Department of Children and Family
7 Services when providing support enforcement services; to provide for definitions;
8 to provide for notifications required of the Department of Public Safety and
9 Corrections and the Department of Children and Family Services; to provide a
10 timeframe for the Department of Children and Family Services to file an affidavit
11 with the court; to remove provisions regarding notice given to the custodial party;
12 to provide for the voluntary unemployment or underemployment of the obligor; to
13 authorize the promulgation of rules; to provide for an effective date; and to provide
14 for related matters.
15Be it enacted by the Legislature of Louisiana:
16 Section 1. R.S. 9:311(A)(2), (C)(3), and (D)(2), 311.1, 315.11(C)(2), and 315.27 are
17hereby amended and reenacted and R.S. 9:311(D)(3) is hereby enacted to read as follows:
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1 §311. Modification or suspension reduction of support; material change in
2 circumstances; periodic review by Department of Children and Family
3 Services; medical 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 reduction
8 of support orders, in accordance with this Subsection, and for proceeding in forma
9 pauperis. The information provided by the Department of Children and Family
10 Services shall specifically include what may constitute a material change in
11 circumstances. The clerks of court in all parishes shall make this information
12 available to the public upon request. This information shall also be distributed by
13 the Department of Public Safety and Corrections or the sheriff of any parish, as
14 appropriate, to every person incarcerated in every state and parish jail and prison
15 facility. When the initial support order is entered, either the court or the department,
16 if providing services, shall provide this information to the parties.
17 * * *
18 C. For purposes of this Section, in cases where the Department of Children
19 and Family Services is providing support enforcement services:
20 * * *
21 (3)(a) The department shall request a judicial review under any of the
22 following conditions:
23 (i) If the best interest of the child so requires, the department shall request
24 a judicial review upon request of either party or on the department's own initiative.
25 If appropriate, the court may modify the amount of the existing child support award
26 every three years if the existing award differs from the amount which would
27 otherwise be awarded under the application of the child support guidelines.
28 (ii) Upon the request of either party or on the department's own initiative
29 after an obligor's incarceration ends when the child support award has been reduced
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1 under R.S. 9:311.1. For the purpose of this Section, "incarceration" shall have the
2 same meaning as provided in R.S. 9:311.1.
3 (iii) Upon the request of either party or on the department's own initiative
4 upon the incarceration of any party.
5 (b) A material change in circumstances shall not be required for the purpose
6 of this Paragraph.
7 D. A material change in circumstance need not be shown for either any of
8 the following purposes:
9 * * *
10 (2) To suspend or modify a child support award in accordance with
11 previously reduced pursuant to R.S. 9:311.1 after the obligor's incarceration ends.
12 (3) To modify a child support award upon the incarceration of either party.
13 * * *
14 §311.1. Child Reduction of child support during the obligor's incarceration:
15 Department of Children and Family Services providing support enforcement
16 services
17 A. In accordance with the provisions of this Section, every order of When
18 the Department of Children and Family Services is providing support enforcement
19 services, a child support order shall be suspended reduced when the obligor will be
20 or is incarcerated for, or is sentenced to, with or without hard labor, any period of
21 one hundred eighty consecutive days or more, unless any of the following conditions
22 exist:.
23 (1) The obligor has the means to pay support while incarcerated.
24 (2) The obligor is incarcerated for an offense against the custodial party or
25 the child subject to the support order.
26 (3) The incarceration resulted from the obligor's failure to comply with a
27 court order to pay child support.
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1 B. As used in this Section:
2 (1) "Child support order" shall have the same meaning provided in Children's
3 Code Article 1301.2.
4 (2) "Incarceration" means placement of an obligor in a county, parish, state
5 or federal prison or jail, in which the obligor is not permitted to earn wages from
6 employment outside the facility. "Incarceration" does not include probation or
7 parole.
8 (2) (3) "Support enforcement services" shall have the same meaning as
9 provided in R.S. 46:236.1.1.
10 (3) "Suspension" means the modification of a child support order to zero
11 dollars during the period of an obligor's incarceration.
12 C. The Department of Public Safety and Corrections or the sheriff of any
13 parish, as appropriate, shall notify the Department of Children and Family Services
14 of any person who has been in their custody and may be subject to a child support
15 obligation order if either:
16 (1) The person will be or is incarcerated for, or is sentenced to, with or
17 without hard labor, one hundred eighty consecutive days or longer.
18 (2) At least six months before the The person who was the subject of
19 notification under Paragraph (1) of this Subsection is scheduled to be released from
20 incarceration. as defined in Subsection B of this Section The timeframe for such
21 notification under this Paragraph shall be determined by an interagency agreement
22 between the Department of Children and Family Services and the Department of
23 Public Safety and Corrections.
24 D.(1) When the Department of Children and Family Services is providing
25 support enforcement services, the department shall, upon receipt of notice in
26 accordance with Paragraph (C)(1) Subsection C of this Section, verify that none of
27 the conditions in Subsection A exists provide notice to the custodial party by regular
28 mail.
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1 (2) Upon finding that none of the conditions in Subsection A exists, the
2 department shall provide notice to the custodial party by certified mail, return receipt
3 requested. The notice shall state all of the following:
4 (a) The child support order shall be suspended unless the custodial party
5 objects no later than fifteen calendar days after receipt of such notice on any of the
6 following grounds:
7 (i) The obligor has sufficient income or assets to comply with the order of
8 child support.
9 (ii) The obligor is incarcerated for an offense against the custodial party or
10 the child subject to the order of child support.
11 (iii) The offense for which the obligor is incarcerated is due to the obligor's
12 failure to comply with an order to pay child support.
13 (b) The custodial party may object to the proposed modification by delivering
14 a signed objection form, indicating the nature of the objection to the department no
15 later than fifteen calendar days after receipt of the notice in this Paragraph.
16 (3) If no objection is received from the custodial party in accordance with
17 Paragraph (2) of this Subsection,
18 E.(1) No more than fifteen days after receiving notice as provided in
19 Paragraph (C)(1) of this Section, the department shall file an affidavit with the court
20 that has jurisdiction over the order of child support. The affidavit shall include all
21 of the following:
22 (a) The beginning and expected end dates of such obligor's incarceration.
23 (b) A statement by the affiant of all of the following:
24 (i) A diligent search failed to identify any income or assets that could be
25 used to satisfy the order of child support while the obligor is incarcerated.
26 (ii) The offense for which the obligor is incarcerated is not an offense against
27 the custodial party or the child subject to the order of child support.
28 (iii) The offense for which the obligor is incarcerated is not due to the
29 obligor's failure to comply with an order to pay child support.
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1 (iv) A notice was provided to the custodial party in accordance with
2 Paragraph (2) of this Subsection and an objection was not received from such party.
3 (4)(2) The suspension reduction of the order of child support order shall
4 begin upon the date that the department files the affidavit. The support order shall
5 be reduced to the minimum support provided in R.S. 9:315.14 until modified by
6 subsequent order of the court.
7 (5) If the custodial party makes a timely objection, the department shall file
8 a contradictory motion with the court that has jurisdiction over the order of child
9 support.
10 (6) If a timely objection is made, the order of child support shall continue
11 until further order of the court.
12 E. F. Nothing in this Section shall prevent either party from seeking a
13 suspension or a modification of the order of child support order under this Section
14 or any other provision of law.
15 F.(1) Upon motion of either party or the Department of Children and Family
16 Services, after notice and hearing, the court shall suspend the child support
17 obligation unless it finds one of the conditions in Subsection A of this Section exists.
18 (2) If one of the conditions in Subsection A of this Section exists, the court
19 shall use the child support guidelines in R.S. 9:315 et seq. to determine an obligor's
20 support obligation during his period of incarceration.
21 G.(1) An order of support suspended in accordance with this Section shall
22 resume by operation of law on the first day of the second full month after the
23 obligor's release from incarceration.
24 (2) An order that suspends an obligor's order of support because of the
25 obligor's incarceration shall contain a provision that the previous order will be
26 reinstated on the first day of the second full month after the obligor's release from
27 incarceration.
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1 (3) Unless the terms of the order of support have been otherwise modified,
2 the suspended order of support shall resume at the same terms that existed before the
3 suspension.
4 H. G. The suspension of an order of support in accordance with Nothing in
5 this Section shall not affect any past due support that has accrued before the effective
6 date of the suspension reduction.
7 I. H. The provisions of this Section shall not apply if a court does not have
8 continuing exclusive jurisdiction to modify the order of child support order in
9 accordance with Children's Code Article 1302.5.
10 * * *
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 provided in R.S. 311.1.
19 §315.27. Child Continuing child support award
20 A. If a child support award is has been suspended pursuant to R.S. 9:311.1
21 Act 264 of the 2017 Regular Session of the Legislature, any interested party may file
22 a motion for and the obligor is released from incarceration while the child is a minor,
23 the Department of Children and Family Services may petition the court to continue
24 the child support award beyond the termination date provided by R.S. 9:315.22. If,
25 after notice and hearing, the court extends continues the child support award, the
26 amount of support shall be established using the child support guidelines. However,
27 any continuation of a child support award extended pursuant to this Subsection shall
28 not exceed the amount of time the child support order was suspended.
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1 B. If a child support award is suspended pursuant to R.S. 9:311.1 and the
2 obligor is released from incarceration after the child has reached the age of majority,
3 the custodial party or the child may petition the court to establish an award of
4 support for the period of suspension within twenty-four months of the obligor's
5 release from incarceration. If the court establishes a child support award for the
6 period of suspension, the amount shall be established using the child support
7 guidelines. However, any child support award established pursuant to this Subsection
8 shall not exceed the amount of time the child support order was suspended. As used
9 in this Section, the following words shall have the following meanings:
10 (1) "Incarceration" shall have the same meaning as in R.S. 9:311.1.
11 (2) "Interested party" includes any of the following:
12 (a) The Department of Children and Family Services, the district attorney,
13 or the contract attorney providing support services pursuant to Title IV-D of the
14 Social Security Act.
15 (b) The person owing the support obligation.
16 (c) The individual or current caretaker to whom the support obligation is
17 owed.
18 (3) "Support enforcement services" shall have the same meaning as in R.S.
19 46:236.1.1.
20 C. The proceeding shall be brought within one of the following time periods:
21 (1) If the suspension ended after August 1, 2021, within a two-year period
22 commencing on the date on which the obligor's incarceration has ended.
23 (2) If the suspension ended on or before August 1, 2021, on or before August
24 1, 2023.
25 Section 2. The secretary of the Department of Children and Family Services shall
26promulgate rules necessary to implement the provisions of this Act in accordance with the
27Administrative Procedure Act.
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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 449 Engrossed 2021 Regular Session Wilford Carter
Abstract: Provides for the procedures related to suspension and reduction of a child support
order for an incarcerated obligor.
Present law (R.S. 9:311) provides that in cases where the Dept. of Children and Family
Services ("DCFS") is providing support enforcement services, if the best interest of the child
so requires, DCFS shall request a judicial review upon request of either party or on DCFS's
own initiative.
Proposed law retains present law and further provides that DCFS shall request a judicial
review upon request of either party or DCFS's own initiative when a party is incarcerated or
when the child support award is reduced pursuant to proposed law provisions relative to the
reduction of a child support obligation during the obligor's incarceration.
Present law provides that a material change in circumstances need not be shown to suspend
or modify a child support award pursuant to present law.
Proposed law instead provides that a material change in circumstances need not be shown
to modify a child support award previously reduced pursuant to proposed law after an
obligor's incarceration or to modify the award upon the incarceration of either party.
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 removes present law provisions for suspension and instead provides for the
reduction of child support to the minimum support obligation provided by present law during
the obligor's incarceration, and includes cases in which the obligor is sentenced to 180 days
or more with or without hard labor. Proposed law provides that the support order shall
remain at the reduced obligation until modified by subsequent court order.
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 requires the time frame for the notification period to
be determined by an interagency agreement between DCFS and DPSC.
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 notice by regular mail.
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 repeals present law.
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Present law provides that if the custodial party does not object, the suspension shall become
effective when DCFS files an affidavit with the court.
Proposed law repeals present 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 repeals present law.
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 repeals present law and provides that orders suspended pursuant to present
law may be continued by the court after notice and hearing and the amount of support shall
be established using the child support guidelines. Proposed law further provides a limited
time period within which such action may be brought.
Present law provides that the suspension of a child support order 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 shall not apply if a court does not have
continuing exclusive jurisdiction to modify the child support order.
Proposed law retains present law relative to reduction, rather than suspension.
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 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".
(Amends R.S. 9:311(A)(2), (C)(3), and (D)(2), 311.1, and 315.11(C)(2), and 315.27; Adds
R.S. 9:311(D)(3))
Summary of Amendments Adopted by House
The Committee Amendments Proposed by House Committee on Civil Law and
Procedure to the original bill:
1. Remove provisions for the suspension and exceptions to the suspension of a
support obligation during the obligor's incarceration.
2. Add provisions for the reduction of a support obligation during the obligor's
incarceration.
3. Add conditions for which a material change in circumstances need not be shown.
4. Provide for the continuation of support obligations suspended pursuant to present
law.
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5. Add provisions requiring notice and deadlines for filing certain motions.
6. Remove the special effective date.
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