Child Support and an Incarcerated Parent in Louisiana – What You Need to Know

Child support and custody laws in Louisiana and across the country adhere to one basic principle: all stakeholders and the law must be geared towards the child’s best interest. An incarcerated parent or guardian must be liable for child support payments to promote the child’s wellbeing. However, Louisiana law also acknowledges the financial roadblocks incarceration places on a person’s ability to earn gainful employment. Thus, Louisiana law provides an alternative for payment of child support while a parent or guardian is incarcerated.

Suspension of Child Support Order

Under Louisiana law, orders for child support are suspended after the subject order has been incarcerated for a specific period. Section 311.1(a) of the Louisiana Revised Statutes states that child support orders will be suspended if the person paying the support is incarcerated or sentenced to hard labor for 180 consecutive or more days. Suspension means the incarcerated parent will pay zero dollars until the incarceration period has concluded.

Notification of Incarceration

Once a parent has been incarcerated, the Louisiana of Public Safety and Corrections (LPSC) must provide notice to the non-incarcerated parent or guardian, the Department of Child and Family Services (if the child is held in their custody), and the court with jurisdiction over the matter that child support payments must be suspended. In addition, LPSC will submit an affidavit detailing the incarceration timeline. 

Resuming Child Support Orders

Once an incarcerated parent has been released from custody, the suspension of child support payments can terminate. The parent must continue to pay child support payments on the first day of the second month after their release from the correctional facility. However, the termination of child support payment suspension does not terminate automatically. Instead, DCFS or the other parent must petition the court for a modification to terminate the suspension. Without a termination order, the incarceration suspension will still be in effect.

Child Support for Adult Children

Because some periods of incarceration can last years, it is no surprise that some release dates may occur after a child has turned 18. Thus, if a child has turned 18 during a child support suspension period, the custodial parent or the adult child can petition to award back child support within 24 months of the incarcerated parent’s release. Child support can be awarded for the total duration of the suspension—nothing more. To calculate the monthly child support rate, the court with jurisdiction over the matter must abide by Louisiana’s child support guidelines.

Understanding the Court Order Modification Process

A parent required to pay monthly child support payments cannot simply stop making payments or provide notification to the custodial parent/guardian that child support payments will stop. Instead, a parent ordered to pay child support must seek a modification to change the parameters of the child support regime.

Modification

To change a child support order, the interested parent must petition the court overseeing the case with a modification order stating the reasons for the change. To modify a child support order, the interested parent must show that they have experienced or are about to experience a material change in circumstances. This means that the parent’s current living situation will materially change their ability to abide by the current framework of the existing child support order.

Only three parties may petition the court to change a child support order: 

• The non-custodial parent charged with paying child support.
• The custodial parent of the child.
• A child welfare agency assigned as the child’s principal guardian.

Examples of Material Change in Circumstances

A material change in circumstances can come in a variety of forms. Although many family law judges see a wide range of petitions arguing a material change in circumstances, below are some of the most common examples:

• Change in employment, whether the interested parent has lost a previous job or gained a new one.
• Change in income.
• Changes to the child’s living arrangements (for example, diagnosis of live-altering illness).
• Change in medical insurance status.
• Change in cost of monthly childcare.
• Addition of new medical bills.
• Age and education status (many child support orders include language stating that an interested parent may still be required to pay child support after the child turns 18 if the child continues to attend school).
• Incarceration.

Any changes in state law are not considered material changes in circumstances regarding obligations to pay regarding an existing child support order.

Modification Hearing

Once the petitioning parent or guardian files their child support modification petition, the court with jurisdiction over the case will set a hearing date. During the hearing, the petitioning party must provide evidence to prove a modification of the original child support order.

Evidence may include the testimony of the petitioning party, witness testimony, and submission of evidence demonstrating a material change in circumstances. Examples of evidence can include:

• Pay stubs.
• Federal and state tax returns.
• Invoices and receipts of childcare costs.
• Health insurance premium bills.
• An affidavit detailing monthly income and expenses.
• The original child support order.

Modification Order

If the judge decides to modify the existing order, they may notify the parties at the hearing and complete a written order detailing their judgment. A modification order may change child support obligations from when the child support modification petition was first filed. Any outstanding child support payment cannot be modified.

Interested parties should be mindful of the circumstances of child support. Awareness of these issues allows an interested party to spot issues early and seek a modification based on changes in circumstances. When parents delay taking action or miss a deadline, they risk losing potential support for their child or saving funds if the custodial parent’s living situation improves.

Enforcing Child Support Orders

Once a child support order is in place, the State of Louisiana provides numerous resources for custodial and non-custodial parents to enforce valid orders. Louisiana’s Child Support Enforcement Service, operated by DCFS, provides parents with ample resources to enforce orders, including: 

• Parental locator. 
• Asset forfeiture or interception. 
• Suspension of professional or occupational licensure. 
• Other civil penalties.