The California legislature has reenacted Family Code section 4007.5. Effective January 1, 2021, child support obligations will be suspended by operation of law when the child support order is established after January 1, 2021, the parent paying support has been incarcerated or involuntarily institutionalized for more than 90 consecutive days prior to the suspension. This means that payment due on the current child support order, arrears or interest during a qualifying period of incarceration is set to $0 during the period the parent paying support is incarcerated or involuntarily institutionalized. The prior child support obligation resumes on the first day of the first full month after release.
Exceptions to suspension of the child support order are when the parent paying support has the means to pay support while incarcerated or involuntarily institutionalized, is incarcerated or involuntarily institutionalized for domestic violence against the supported party and/or the supported children, various offenses that are subject to restraining order including stalking and harassment, or incarceration is for failure to comply with the child support order.
When the parent paying support has been incarcerated or involuntarily institutionalized, the Local Child Support Agency (LCSA) must administratively adjust the child support order and/or modify the court order. For administrative adjustment, the LCSA must verify: the order was issued on or after January 1, 2021, the period of confinement has lasted more than 90 consecutive days, there is no evidence to support an exclusion from administrative adjustment, the LCSA has sent notice of the intended adjustment to both the person paying support and the person ordered to receive support, and neither party has objected to administrative adjustment within 30 days of receipt of the notice. If either party objects to administrative adjustment, the LCSA must file a motion with the court.
Existing review and adjustment regulations are unchanged. If there is no evidence of support potential when the parent paying support is incarcerated or involuntarily institutionalized, the LCSA can ask the court to establish a zero-dollar order or move that an existing order be modified to zero. If there is evidence the parent paying support has some ability to pay, an order can be established or an existing order can be modified to the appropriate amount.
Family Code section 4007.5 now sunsets on January 1, 2023 unless that date is extended by legislation. Any administrative adjustment action must be completed before January 1, 2023. The prior order must be reinstated on January 1, 2023. (CSSP Letter 21-01, February 10, 2021.)