HLS 21RS-1008 REENGROSSED
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(C)(3), 311.1, and 315.11(C)(2), and to repeal R.S.
3 9:315.27, relative to the suspension of child support obligations; to provide for
4 suspension during an obligor's incarceration; to remove exceptions to suspension of
5 a support order during the obligor's incarceration; to provide for requirements of the
6 Department of Children and Family Services when providing support enforcement
7 services; to provide for definitions; to provide for notifications required of the
8 Department of Public Safety and Corrections and the Department of Children and
9 Family Services; to provide a timeframe for the Department of Children and Family
10 Services to file an affidavit with the court; to remove provisions regarding notice
11 given to the custodial party; to provide for the voluntary unemployment or
12 underemployment of the obligor; to provide for the continuation of child support
13 beyond the termination date; to authorize the promulgation of rules; to provide for
14 an effective date; and to provide for related matters.
15Be it enacted by the Legislature of Louisiana:
16 Section 1. R.S. 9:311(C)(3), 311.1, and 315.11(C)(2) are hereby amended and
17reenacted to read as follows:
18 §311. Modification or suspension of support; material change in circumstances;
19 periodic review by Department of Children and Family Services; medical
20 support
21 * * *
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1 C. For purposes of this Section, in cases where the Department of Children
2 and Family Services is providing support enforcement services:
3 * * *
4 (3)(a) The department shall request a judicial review under any of the
5 following conditions:
6 (i) If the best interest of the child so requires, the department shall request
7 a judicial review upon request of either party or on the department's own initiative.
8 If appropriate, the court may modify the amount of the existing child support award
9 every three years if the existing award differs from the amount which would
10 otherwise be awarded under the application of the child support guidelines.
11 (ii) Upon the request of either party or on the department's own initiative
12 after an obligor's incarceration ends when the child support award has been
13 suspended under R.S. 9:311.1. For the purpose of this Section, "incarceration" shall
14 have the same meaning as provided in R.S. 9:311.1.
15 (iii) Upon the request of either party or on the department's own initiative
16 upon the incarceration of any party.
17 (b) A material change in circumstances shall not be required for the purpose
18 of this Paragraph.
19 * * *
20 §311.1. Child support during the obligor's incarceration; Department of Children
21 and Family Services providing support enforcement services
22 A. In accordance with the provisions of this Section, every order of child
23 support order shall be suspended when the obligor will be or is incarcerated for, or
24 is sentenced to, with or without hard labor, any period of one hundred eighty
25 consecutive days or more, unless any of the following conditions exist:.
26 (1) The obligor has the means to pay support while incarcerated.
27 (2) The obligor is incarcerated for an offense against the custodial party or
28 the child subject to the support order.
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HB NO. 449
1 (3) The incarceration resulted from the obligor's failure to comply with a
2 court order to pay child support.
3 B. As used in this Section:
4 (1) "Child support order" shall have the same meaning provided in Children's
5 Code Article 1301.2.
6 (2) "Incarceration" means placement of an obligor in a county, parish, state
7 or federal prison or jail, in which the obligor is not permitted to earn wages from
8 employment outside the facility. "Incarceration" does not include probation or
9 parole.
10 (2) (3) "Support enforcement services" shall have the same meaning as
11 provided in R.S. 46:236.1.1.
12 (3) (4) "Suspension" means the modification of a child support order to zero
13 dollars during the period of an obligor's incarceration.
14 C. The Department of Public Safety and Corrections or the sheriff of any
15 parish, as appropriate, shall notify the Department of Children and Family Services
16 of any person who has been in their custody and may be subject to a child support
17 obligation order if either:
18 (1) The person will be or is incarcerated for, or is sentenced to, with or
19 without hard labor, one hundred eighty consecutive days or longer.
20 (2) At least six months before the The person who was the subject of
21 notification under Paragraph (1) of this Subsection is scheduled to be released from
22 incarceration. as defined in Subsection B of this Section The timeframe for such
23 notification under this Paragraph shall be determined by an interagency agreement
24 between the Department of Children and Family Services and the Department of
25 Public Safety and Corrections.
26 D.(1) When the Department of Children and Family Services is providing
27 support enforcement services, the department shall, upon receipt of notice in
28 accordance with Paragraph (C)(1) Subsection C of this Section, verify that none of
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HB NO. 449
1 the conditions in Subsection A exists provide notice to the custodial party by regular
2 mail.
3 (2) Upon finding that none of the conditions in Subsection A exists, the
4 department shall provide notice to the custodial party by certified mail, return receipt
5 requested. The notice shall state all of the following:
6 (a) The child support order shall be suspended unless the custodial party
7 objects no later than fifteen calendar days after receipt of such notice on any of the
8 following grounds:
9 (i) The obligor has sufficient income or assets to comply with the order of
10 child support.
11 (ii) The obligor is incarcerated for an offense against the custodial party or
12 the child subject to the order of child support.
13 (iii) The offense for which the obligor is incarcerated is due to the obligor's
14 failure to comply with an order to pay child support.
15 (b) The custodial party may object to the proposed modification by delivering
16 a signed objection form, indicating the nature of the objection to the department no
17 later than fifteen calendar days after receipt of the notice in this Paragraph.
18 (3) If no objection is received from the custodial party in accordance with
19 Paragraph (2) of this Subsection,
20 E.(1) No more than fifteen days after receiving notice as provided in
21 Paragraph (C)(1) of this Section, the department shall file an affidavit with the court
22 that has jurisdiction over the order of child support. The affidavit shall include all
23 of the following:
24 (a) The beginning and expected end dates of such obligor's incarceration.
25 (b) A statement by the affiant of all of the following:
26 (i) A diligent search failed to identify any income or assets that could be
27 used to satisfy the order of child support while the obligor is incarcerated.
28 (ii) The offense for which the obligor is incarcerated is not an offense against
29 the custodial party or the child subject to the order of child support.
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1 (iii) The offense for which the obligor is incarcerated is not due to the
2 obligor's failure to comply with an order to pay child support.
3 (iv) A notice was provided to the custodial party in accordance with
4 Paragraph (2) of this Subsection and an objection was not received from such party.
5 (4)(2) The suspension of the order of child support order shall begin upon
6 the date that the department files the affidavit.
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 A child support order suspended in accordance
22 with this Section shall resume by operation of law on the first day of the second full
23 month after the obligor's release from incarceration.
24 (2) An order that suspends an obligor's order of support a child support order
25 because of the obligor's incarceration shall contain a provision that the previous
26 order will be reinstated on the first day of the second full month after the obligor's
27 release from incarceration.
28 (3)(a)(i) If the obligor is released from incarceration while the child is a
29 minor, upon the obligor's release the Department of Children and Family Services
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1 or either party shall petition the court prior to the first day of the second full month
2 after the obligor's release from incarceration for a modification hearing to establish
3 the terms of the previously suspended child support order. Unless the terms of the
4 order of support have been otherwise modified, the suspended order of support shall
5 resume at the same terms that existed before the suspension.
6 (ii) At the modification hearing, the court may continue the award beyond
7 the termination date provided by R.S. 9:315.22. If the court extends the child
8 support award, the amount of support shall be established using the child support
9 guidelines. Any continuation of a child support award extended pursuant to this
10 Subsection shall not exceed the amount of time the child support order was
11 suspended.
12 (b) If the obligor is released from incarceration after the child has reached
13 the age of majority, the custodial party or the child may petition the court to establish
14 an award of support for the period of suspension within twenty-four months of the
15 obligor's release from incarceration. The amount of support shall be established
16 using the child support guidelines. Any child support award established pursuant to
17 this Subsection shall not exceed the amount of time the child support order was
18 suspended.
19 H. The suspension of an order of support in accordance with Nothing in this
20 Section shall not affect any past due support that has accrued before the effective
21 date of the suspension reduction.
22 I. The provisions of this Section shall not apply if a court does not have
23 continuing exclusive jurisdiction to modify the order of child support order in
24 accordance with Children's Code Article 1302.5.
25 * * *
26 §315.11. Voluntarily unemployed or underemployed party
27 * * *
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1 C. A party shall not be deemed voluntarily unemployed or underemployed
2 if either:
3 * * *
4 (2) He is or was incarcerated for one hundred eighty consecutive days or
5 longer and is unemployed or underemployed as a direct result of the incarceration.
6 "Incarceration" shall have the same meaning provided in R.S. 311.1.
7 Section 2. R.S. 9:315.27 is hereby repealed in its entirety.
8 Section 3. The secretary of the Department of Children and Family Services shall
9promulgate rules necessary to implement the provisions of this Act in accordance with the
10Administrative Procedure Act.
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 Reengrossed 2021 Regular Session Wilford Carter
Abstract: Provides for the procedures related to suspension 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 suspended pursuant to present law and proposed law
provisions relative to the suspension of a child support obligation during the obligor's
incarceration.
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.
Proposed law defines "child support 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 notification to be
determined by an interagency agreement between DCFS and DPSC.
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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.
Proposed law repeals present law.
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 instead provides that DCFS shall file an affidavit with the court no more than
15 days after receiving the notice provided by DPSC and the suspension shall become
effective when DCFS files an affidavit with the court.
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 a suspended child support order shall resume 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 if the obligor is released from incarceration while the child is a
minor, DCFS or either party shall petition the court prior to the first day of the second full
month after the obligor's release from incarceration for a modification hearing to establish
the terms of the previously suspended child support order.
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.
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.
Present law (R.S. 9:315.27) provides for continuing a suspended child support award beyond
the termination date under certain circumstances.
Proposed law retains present law but provides that if the child is a minor at the time of the
obligor's release from incarceration, the court may continue the child support award at the
modification hearing held following the obligor's release.
Present law provides that if the child has reached the age of majority at the time of the
obligor's release from incarceration, the custodial party or the child may petition the court
to continue the child support order under certain circumstances.
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HB NO. 449
Proposed law retains 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 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(C)(3), 311.1, and 315.11(C)(2); Repeals R.S. 9:315.27)
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.
5. Add provisions requiring notice and deadlines for filing certain motions.
6. Remove the special effective date.
The House Floor Amendments to the engrossed bill:
1. Add provisions for the suspension of a support obligation during the obligor's
incarceration.
2. Remove provisions for the reduction of a support obligation during the obligor's
incarceration.
3. Require the DCFS or either party to request a modification hearing within a
certain time frame following the obligor's release from incarceration.
4. Allow the court to continue a suspended order pursuant to present law at the
modification hearing.
5. Remove the restriction that suspension is only available if DCFS is providing
support enforcement services.
6. Make technical changes.
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