Or. Admin. Code § 137-055-3300 - Incarcerated Obligors
(1) For
purposes of this rule:
(a) "Correctional
facility" has the meaning as defined in ORS 162.135 and includes the following:
(A) Any place used for the confinement of
persons charged with or convicted of a crime or otherwise confined under a
court order and includes but is not limited to a youth correction
facility;
(B) A state hospital only
as to persons detained therein charged with or convicted of a crime or after
having been found guilty of a crime except for insanity.
(C) Includes any other location where a
person completes an alternative form of confinement while still in the custody
of a county, state, federal, military, or Tribal correctional agency, including
but not limited to transitional leave or house arrest.
(b) "Incarcerated obligor" means an obligor
who is, or is expected to be, confined in a correctional facility for at least
180 consecutive days. The 180 days shall not include any time prior to January
1, 2018.
(c) "Release from
incarceration" means release of an incarcerated obligor from confinement in a
correctional facility.
(2) An incarcerated obligor is presumed
unable to pay child support, and a child support obligation does not accrue for
the duration of the incarceration unless the presumption is rebutted.
(3) Within 30 days of identifying an
"incarcerated obligor" who is ordered to pay ongoing support, the administrator
will provide notice pursuant to ORS 25.247 of the administrator's intent to
suspend support; and
(a) If an objection is
received, the administrator shall cause the case to be set for a hearing before
an administrative law judge with the Office of Administrative Hearings to
determine whether the presumption has been rebutted; or
(b) If no objection is received or if the
administrative law judge upholds the suspension over an objection, the
administrator shall:
(A) Discontinue billing
monthly support to the obligor, beginning with the first day of the first month
following the date of the obligor's incarceration or January 1, 2018, whichever
is later; and
(B) File the notice
of suspension or any order of the administrative law judge in the circuit court
of the county where the support order is filed.
(4) Unless already modified or reinstated,
the support order is reinstated by operation of law at 50% of the previously
ordered support amount on the first day of the first month after obligor has
been released for at least 120 days.
(a)
Within 30 days following reinstatement of the order, the administrator will
issue notice of the reinstatement to all parties pursuant to ORS
25.247.
(b) The administrator will
file the notice of reinstatement in the circuit court of the county where the
support order is filed with a money award showing that support has been
reinstated at 50% of the previous support amount.
(c) Within 60 days following reinstatement of
the order, the administrator shall review the support order for the purpose of
modifying support under OAR 137-055-3430.
(5)
(a)
When a support order would otherwise qualify for reinstatement by operation of
law, arrears are due, and all of the children are 18, 19 or 20 years old and
not qualified to receive support under ORS 107.108, the notice described in
(4)(a) of this rule will also specify that current support will not accrue
unless a child qualifies as a child attending school pursuant to ORS
107.108.
(b) If the order does not
qualify for reinstatement because no child remains under the age of 21 and
arrears are due, the notice described in (4)(a), will specify that collection
of arrears will resume. The money award described in (4)(b) will not be
filed.
(c) When notice is issued
pursuant to subsections (a) or (b) and arrears are due, income withholding will
be issued at 50% of the previous support amount.
(6) Upon receiving proof that an obligor was
confined in a correctional facility for at least 180 consecutive days, on or
after January 1, 2018, and unless the presumption of inability to pay has been
rebutted, the administrator will allow a credit and satisfaction against child
support arrearages. Credit shall begin with the first day of the first month
following the date of the obligor's incarceration and continue through the end
of the month in which the number of days obligor has been released from a
qualifying period of incarceration equals 120.
(a) The administrator will provide notice
pursuant to ORS 25.247 of the administrator's intent to credit and satisfy
child support arrearages.
(b) If an
objection is received, the administrator shall cause the case to be set for a
hearing before an administrative law judge to determine whether the presumption
has been rebutted.
(c) If no
objection is received or if the administrative law judge upholds the credit
over an objection, the administrator shall allow a credit and satisfaction
against child support arrearages.
(d) The notice of credit or any order of the
administrative law judge shall be filed in the circuit court of the county
where the support order is filed.
(7) To preserve the obligor's income to meet
the expenses of reintegration, the administrator will not issue an income
withholding order during the time an incarcerated obligor's order is suspended
unless they are participating in the Prison Industry Enhancement Certification
Program.
(8)
(a) Pursuant to ORS 25.247(6), a party may
object to the continued suspension of support by describing evidence of the
incarcerated obligor's ability to pay that was not available at the time the
order was suspended.
(b) If an
objection as described in section (8)(a) of this rule is received, the
administrator shall cause the case to be set for a hearing before an
administrative law judge to determine whether the presumption has been rebutted
and support should be reinstated.
(9)
(a) If
the administrative law judge determines that the presumption has now been
rebutted pursuant to ORS 25.247(7), they will issue an order reinstating
support at 50% of the previous support amount effective the first day of the
following month; and
(b) Within 60
days following reinstatement of the order, the administrator shall review the
support order for the purpose of modifying support under OAR
137-055-3430.
(10) If
support is reinstated as provided in section (4) of this rule, after a request
for hearing has been referred to the Office of Administrative Hearings, the
following provisions apply:
(a) If support is
reinstated prior to a hearing taking place, the referral to the Office of
Administrative Hearings will be withdrawn pursuant to OAR 137-003-0515(4)(b);
or
(b) If support is reinstated on
or before the date that support is reinstated pursuant to section (9)(a) of
this rule, the order issued by the administrative law judge will be considered
moot and have no force and effect.
(11) If the program received notice during a
period of incarceration that the obligor met the definition provided in section
(1)(b) and their support order was not suspended prior to their release, the
administrator may proceed to retroactively suspend and reinstate support as
provided in sections (3) and (4) of this rule.
(12) Orders modified to zero due to
incarceration prior to January 1, 2018, are not subject to suspension and
reinstatement under this rule.
(13)
This rule applies only to child support judgments and orders originally entered
in Oregon or which Oregon modified and assumed continuing, exclusive
jurisdiction over pursuant to ORS Chapter 110.
Notes
Statutory/Other Authority: ORS 25.247, 25.505 & 180.345
Statutes/Other Implemented: ORS 25.247 & 25.527
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