2019 Louisiana Laws
Revised Statutes
Title 9 - Civil Code-Ancillaries
§311.1. Child support during the obligor's incarceration
RS 311.1 - Child support during the obligor's incarceration
A. In accordance with the provisions of this Section, every order of child support shall be suspended when the obligor will be or is incarcerated for any period of one hundred eighty consecutive days or more, unless any of the following conditions exist:
(1) The obligor has the means to pay support while incarcerated.
(2) The obligor is incarcerated for an offense against the custodial party or the child subject to the support order.
(3) The incarceration resulted from the obligor's failure to comply with a court order to pay child support.
B. As used in this Section:
(1) "Incarceration" means placement of an obligor in a county, parish, state or federal prison or jail, in which the obligor is not permitted to earn wages from employment outside the facility. "Incarceration" does not include probation or parole.
(2) "Support enforcement services" shall have the same meaning as provided in R.S. 46:236.1.1.
(3) "Suspension" means the modification of a child support order to zero dollars during the period of an obligor's incarceration.
C. The Department of Public Safety and Corrections or the sheriff of any parish, as appropriate, shall notify the Department of Children and Family Services of any person who has been in their custody and may be subject to a child support obligation if either:
(1) The person will be or is incarcerated for one hundred eighty consecutive days or longer.
(2) At least six months before the person who was the subject of notification under Paragraph (1) of this Subsection is scheduled to be released from incarceration as defined in Subsection B of this Section.
D.(1) When the Department of Children and Family Services is providing support enforcement services, the department shall, upon receipt of notice in accordance with Paragraph (C)(1) of this Section, verify that none of the conditions in Subsection A exists.
(2) Upon finding that none of the conditions in Subsection A exists, the department shall provide notice to the custodial party by certified mail, return receipt requested. The notice shall state all of the following:
(a) The child support order shall be suspended unless the custodial party objects no later than fifteen calendar days after receipt of such notice on any of the following grounds:
(i) The obligor has sufficient income or assets to comply with the order of child support.
(ii) The obligor is incarcerated for an offense against the custodial party or the child subject to the order of child support.
(iii) The offense for which the obligor is incarcerated is due to the obligor's failure to comply with an order to pay child support.
(b) The custodial party may object to the proposed modification by delivering a signed objection form, indicating the nature of the objection to the department no later than fifteen calendar days after receipt of the notice in this Paragraph.
(3) If no objection is received from the custodial party in accordance with Paragraph (2) of this Subsection, the department shall file an affidavit with the court that has jurisdiction over the order of child support. The affidavit shall include all of the following:
(a) The beginning and expected end dates of such obligor's incarceration.
(b) A statement by the affiant of all of the following:
(i) A diligent search failed to identify any income or assets that could be used to satisfy the order of child support while the obligor is incarcerated.
(ii) The offense for which the obligor is incarcerated is not an offense against the custodial party or the child subject to the order of child support.
(iii) The offense for which the obligor is incarcerated is not due to the obligor's failure to comply with an order to pay child support.
(iv) A notice was provided to the custodial party in accordance with Paragraph (2) of this Subsection and an objection was not received from such party.
(4) The suspension of the order of support shall begin upon the date that the department files the affidavit.
(5) If the custodial party makes a timely objection, the department shall file a contradictory motion with the court that has jurisdiction over the order of child support.
(6) If a timely objection is made, the order of child support shall continue until further order of the court.
E. Nothing in this Section shall prevent either party from seeking a suspension or a modification of the order of support under this Section or any other provision of law.
F.(1) Upon motion of either party or the Department of Children and Family Services, after notice and hearing, the court shall suspend the child support obligation unless it finds one of the conditions in Subsection A of this Section exists.
(2) If one of the conditions in Subsection A of this Section exists, the court shall use the child support guidelines in R.S. 9:315 et seq. to determine an obligor's support obligation during his period of incarceration.
G.(1) An order of support suspended in accordance with this Section shall resume by operation of law on the first day of the second full month after the obligor's release from incarceration.
(2) An order that suspends an obligor's order of support because of the obligor's incarceration shall contain a provision that the previous order will be reinstated on the first day of the second full month after the obligor's release from incarceration.
(3) Unless the terms of the order of support have been otherwise modified, the suspended order of support shall resume at the same terms that existed before the suspension.
H. The suspension of an order of support in accordance with this Section shall not affect any past due support that has accrued before the effective date of the suspension.
I. The provisions of this Section shall not apply if a court does not have continuing exclusive jurisdiction to modify the order of child support in accordance with Children's Code Article 1302.5.
J. Repealed by Acts 2018, No. 136, §2, eff. May 11, 2018.
Acts 2017, No. 264, §2, eff. Aug. 1, 2019; Acts 2018, No. 136, §2, eff. May 11, 2018; Acts 2019, No. 277, §2.
