Incarceration and Childsupport

When the custodial parent who receives child support is incarcerated, then the person who is actually caring for the children, such as a grandparent or other relative, should request that the child support payments be temporarily redirected to that caregiver. Before any child support will be sent to someone other than the custodial parent, a redirect order must be issued by the Court (note that a redirection of support payments doesn't modify the underlying support order). 

Here at the Law Offices of Scott David Stewart, we are frequently asked to explain what happens to the child support obligation when the non-custodial, obligor parent is imprisoned.Such an event can be catastrophic for a family, both emotionally and financially. If the jailed individual is able to earn any money in jail or in prison, it may not be much unless outside interests like a business continue to generate income. This is a legitimate concern for the other parent, grandparent, or caregiver with physical custody of the child. We'll limit today's discussion to those parents who were charged and convicted of a crime and who are serving a sentence (not the parent who is jailed for contempt for nonpayment of child support). 


Can a jailed non-custodial parent be ordered to pay child support?

The question is whether the Court can order an imprisoned parent to pay child support. The answer is Yes -- the Court will order child support even when the non-custodial parent is imprisoned and has little, if any, income. The legal papers in the divorce or family law case are served on the parent in the local, state, or federal facility.

If the parents were married when the child was born, then there is a presumption of paternity. If the parents were unmarried when the child was born, however, then paternity must be established or acknowledged before the Court will issue a child support order. Oncepaternity is legally established following acknowledgement or DNA test evidence, the issue of child support will go forward even though a party is incarcerated. 


Does the non-custodial parent have to pay child support while he or she is incarcerated?

"I'm in prison and can't work. Why doesn't my child support order change? -- Your child's needs don't change just because you are incarcerated. In fact, they are probably greater." From Incarcerated Parents and Child Support -- The Handbook for Incarcerated Parents, Attorney General of Texas. The fact is, child support is not automatically suspended while the obligor parent rides out a jail sentence.

If the non-custodial parent has the financial resources to continue paying child support while serving a prison sentence, then it is in the child's best interests that the money continue to be paid under the existing support order. If the obligor parent does not have the resources to make support payments from jail, then he or she should request a modification of the support order. That request should come as early as possible, before the obligor parent falls into substantial arrears. 


Can the child support order be modified while the obligor parent is incarcerated?

In general, child support may be modified when circumstances have substantially changed. Under A.R.S. § 25-503(E): 

"E. Any order for child support may be modified or terminated on a showing of changed circumstance that is substantial and continuing, except as to any amount that may have accrued as an arrearage before the date of notice of the motion or order to show cause to modify or terminate..."

The incarcerated parent needs to take action and file a petition requesting child support modification based upon a substantial and continuing change of circumstances. Without a Court order modifying support, the obligation continues and any arrearages will be waiting for the parent upon release from jail or prison. 

In Arizona, imprisonment would rebut the statutory presumption that every non-custodial parent obligated to pay child support can earn minimum wage. Furthermore, incarceration of the obligor parent doesn't mean that a reduction of the amount of support will occur, but it is a factor that the Court will consider when presented with a petition to modify.

By Scott David Stewart

For more information on these matters, please call our office at 305-548-5020.

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