Child Support in Jail
The appellate case of County of San Diego Department of Child Support Services v. C.P. turns on the timing of the enactment of a new statute and the sunset of a former statute which had virtually identical terms.
In this case, the father of a minor child was in prison for several years after a child support order was entered. As soon as he was released from jail, he requested the family court to adjust the arrears that had accrued while he was in jail. The Department of Child Support Services (DCSS) opposed the motion, because it said that under the current statute, suspension did not apply.
While the father was incarcerated, two statutes allowed the suspension of child support while an individual is in jail. The first statute contained a sunset clause that allowed it to expire automatically in 2015. The second statute was enacted after the first one expired and contained many of the same provisions. The family court granted the father’s request to suspend child support while the father was in jail noting that the statutes were similar in nature and the father had a vested right.. DCSS opposed the motion and appealed the order.
The court of appeal reversed the trial court. It reasoned that although section 4007.5 of the Family Code allows a person who is incarcerated to have their child support suspended during the incarceration, that statute was only enacted in 2015 and expressly applies to orders entered or modified after 2015. Even though the prior statute contained the same provisions, the current section did not allow retroactivity for prior incarcerations. The court stated that when a right is created solely by a statute, and is dependent upon the statute alone, and such right is still inchoate, and not reduced to possession, or perfected by final judgment, the repeal of the statute destroys the remedy, unless the repealing statute contains a savings clause. Therefore under the current statute, the father did not have a right to a suspension of child support while he was in jail. The case was remanded to the trial court to determine if the former statute contained a savings clause which would apply to the father’s situation.
Family Code Section 4007.5:
(a) Every money judgment or order for support of a child shall be suspended, by operation of law, for any period exceeding 90 consecutive days in which the person ordered to pay support is incarcerated or involuntarily institutionalized . . .
(f) This section applies to every money judgment or child support order issued or modified on or after the enactment of this section.
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