Child Support Owed While Incarcerated

Father [F] and Mother [M] were never married, but had a daughter [D] in 1994.  In 1995, under a paternity request, M went into court seeking child support from F based on his income and how much time he spent visiting with D.  The court took jurisdiction of the case, F was determined to be D’s father and the court ordered F to pay M $360.00 per month in child support for D.

In May of 1998, F was convicted of a crime and incarcerated.  He was not released from prison until July of 2005.  F never attempted to modify the amount of his child support obligation, even though while in prison he was unable to earn money to pay the support.

In 2004, M went to the Santa Clara County Department of Child Support Services [Department] to help her receive the child support from F.

In May of 2010, the court found that F owed M more than $93,000.00 in back child support, and ordered F to pay M an additional $40.00 per month in back support until paid in full.

In 2015, D was now an adult, and F was no longer required to pay child support for her, but he was still obligated to pay M for his child support arrearage.  Department went back into court and requested that F’s obligation to M for back support be increased to $500.00 per month to liquidate his debt.  At the time, F’s debt had now reached $114,000.00.  At that time, F asked how he could prevent owing M money for the time F had spent in prison.  The court told him to provide proof of his incarceration at the hearing scheduled for December of 2015.

At the December 2015 hearing F provided proof from his parole officer that he had been incarcerated from May of 1995 through July of 2005.  Without a request from F, the court took it upon itself (sua sponte) to eliminate the support and interest owed during that period of time.  The court noted that in 2010, the legislature enacted a law suspending child support obligations for incarcerated inmates.  This reduced F’s financial burden to M from $115,000 to $41,000.  Both M and Department argued that F should pay his debt because it wasn’t M’s fault F went to prison.  Further, M had to hold two jobs to support D, and she should be reimbursed for having to pay F’s financial responsibility to D as well as her own.  The court held for F, and Department appealed.

In its appeal, Department argued that the trial court lacked authority to retroactively adjust F’s arrears, stating that although legislation enacted in 2010 and 2015 suspended the accrual of child support for incarcerated parents, these statutes do not apply retroactively.  F’s child support order was issued in 1995, and F never sought a modification during his incarceration nor after his release.  The Appellate Court agreed with Department:

“…There is no dispute that the 1995 support order was effective when made, that it followed proceedings at which father was involved, and that thereafter father never filed any motion to quash, terminate, or modify the order.  It was not until 2015, and after the Department filed its own motion to enforce child support, that [F] first raised his prior incarceration…  The trial court sua sponte ordered the Department to recalculate the arrears owed by [F] for the period [F] had been incarcerated…”

“…We recognize that the Legislature in 2010 and 2015 enacted statutes that address the “suspension” of child support for incarcerated parents in certain circumstances.  However, those statutes do not assist [F] because they do not apply to orders issued before 2011...”

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