Current through Register Vol. 63, No. 9, September 1, 2024
(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.
Statutory/Other Authority: ORS
25.247,
25.505 & 180.345
Statutes/Other Implemented: ORS
25.247 &
25.527
