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Incarcerated Parents Manual:
Credits
Dedication
Introduction
Arrest
Placement
Foster Care & Dependency
Family Reunification
Making a Record
Paternity
De facto Parent
Child Support
Special Immigrant Juvenile Status
Conclusion
Definitions
Samples
Resources
Organizations
 
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Child Support
How can I pay when don't have any money?

What do I do if I am served Child Support papers while incarcerated?

If you are served with a Summons and Complaint from the District Attorney/Family Support Division (DA/FSD), or other Child Support Agency (CSA), you should immediately file an "Answer" to the Complaint. if you are not the father of the child, this is your only chance to contest paternity. If you are the father, you will need to make the court aware that you are incarcerated and have no source of income.

The instructions and proper form for answering the complaint will be attached to the Summons and Complaint. It is very important that you do not ignore these papers, because if you fail to file the Answer (or make an appearance in court), the district attorney will obtain a default judgment against you. If you need assistance you should contact/write to the Family Law Facilitator in the county in which the DA/FSD is located (see Resources section of this manual). You are entitled to a court-appoined attorney in child support actions. You must request an attorney from the court, not from the FSD.

What do I do if there is a default judgment against me?

If you think the support order was entered against you inappropriately, you may be able to have the order "set aside"(disregarded). There are four ways to set aside a support order, depending on the type of order and why you need it set aside. An order may be set aside for one of the following reasons:

  1. The order was due to fraud, perjury, or lack of notice. If you can show the order was based on fraud or perjury, you must bring an action to set aside within six months after you learned of the fraud or perjury. If you want to set aside based on lack of notice, the action must be brought within six months after you knew or should have known of the order. Family Code §§3690-91.
  2. Default judgment was entered against you based on presumed income. If box number 3 on the Judgment Regarding Parental Obligations was checked, then the court did not have information about your actual income or income history and presumed you make enough money to meet your child(ren)'s minimum basic needs. There is an easy way to set aside a default judgment based on presumed income. File a motion with the court within 90 days after (1) child support is collected from you or (2) you are served with notice of collection, whichever happens first.
  3. Default judgment was based on mistaken identity. You must file a claim with the FSD or CSA along with supporting documents. They must investigate and resolve your claim within 30 days. If they think your claim has merit, they must immediately terminate enforcement proceedings and ask the court to set aside the support order. If the FSD or CSA rejects the claim or fails to follow the required steps to terminate the order, you may file an action in the Superior Court. Family Code §§17433, 17530.
  4. The judgment was issued because of your mistake, inadvertence, surprise or excusable neglect. You may ask the court to set aside the default judgment for up to six months after it was entered if it was issued because of your mistake, inadvertence, surprise, or excusable neglect. Code of Civil Procedure §473.

What do I do if I know I have a current child support order?

One of the basic rules in child support cases is that the court cannot make retroactive modifications. This means that your child support obligation continues while you are incarcerated unless you request the court to change the order. While the court cannot legally eliminate your past due child support, it can and will reduce your current payment to zero while you are incarcerated.

There are two different modification procedures available to you: (1) have the FSD of your county DA's office modify the order, or (2) do the Motion for Modification yourself.

  1. How do I have the FSD do the modification? You should write to the FSD or CSA directly and tell them that you are in custody, how long you expect to be incarcerated, and that you need to have the order modified. The FSD must get a modification for you within 6 months if your case meets certain requirements. The FSD services are free to you.
  2. How do I file a request for modification on my own? To request a modification you should contact the Family Law Facilitator in the county in which you owe the child support (see the Resources section of this manual). Write to the facilitator and ask for the proper forms to fill out for a modification. After you have the forms filled out, send them to the facilitator and ask her/him to please file the papers for you and send you a stamped copy (enclose a self-addressed stamped envelope for convenience). See sample forms in the Samples section of this manual.

NOTE: It is very important to take the above steps as soon as possible because the court will only reduce your payment to zero as of the date you file the request for modification.

What do I do if my current order is zero but I have an arrearage (owe a past due amount)?

As stated above, the court cannot make retroactive modifications. Some FSDs/ CSAs will reduce the arrearage (past due amount) if you can show that you were in prison and/or unable to pay when the arrearage accrued. You should contact the county DA/FSD or CSA that has the order against you, or contact the Family Law Facilitator in that county for help, and request a reduction.

What do I do if the FSD does not act properly?

If the FSD does not act as it is required by law to act, you may do any of the following:

  1. Write a complaint letter directly to your local District Attorney. Often the District Attorney is located in a different office than the FSD. The correct address should be on any paperwork you have received or you can find the address you need in the county government section of the telephone book.
  2. Tell the District Attorney what the FSD did wrong. Be as specific as you can with the actions taken or not taken by the FSD. Be sure to include in your letter any FSD or case number.
    • If the matter is not satisfactorily resolved in 30 days, write a complaint letter to: Director, Department of Social Services, 744 P Street, Sacramento, CA 95814.
    • If the matter is not satisfactorily resolved in 30 days, then write a complaint letter to the Department of Health and Human Services, Family Support Administration, Region IX, Office of Family Support Enforcement, 50 United Nations Plaza, San Francisco, CA 94102.

    Don't forget to:

    • Include your mailing address (and phone) on all letters.
    • Date and sign your letters.
    • Keep copies of all letters.

NOTE: Please be aware that failure to deal with your child support issues may cause you major problems when you are released from jail or prison. If you fall behind in your payments at least 30 days, the DA/FSD can have your driver's license or state commercial or business license denied (new issue or renewal). If you are more than four (4) months behind in payments, these licenses can be revoked. Commercial/business licenses include licenses to practice law, medicine, construction contracting, commercial truck driving, and auto repair. See Welfare and Institutions Code §11350.6.

Whether you have a current order, owe an arrearage or owe nothing, it is important that you contact the law facilitator or the DA/FSD or CSA upon your release to make sure that you have no problems in the future.

Dealing with the FSD can be a frustrating process. Make sure you keep track of all your correspondence and follow through on everything (see the section How to Make a Record in this manual). Giving up is no way to deal with child support issues; the problem will not go away.

 

Legal Services for Prisoners with Children
1540 Market St., Suite 490  •  San Francisco, CA 94102
(415) 255-7036  •  info@prisonerswithchildren.org