Posted on January 24, 2021

My Child’s Father or Mother Is In Prison. Can They Still Pay Child Support?

When a parent goes away it’s sad for everyone but when a parent is literally locked up and inaccessible to their children and unable to provide for their children, it’s a tragedy.

But, just because someone is in jail and cannot get a job from which their check can be garnished, does not relieve them of the obligation to support their children.

How Does Child Support Get Established In Illinois

If the parents of the child were married, there will be a child support order if either parent files for divorce or separation.

“[T]he court may order either or both parents owing a duty of support to a child of the marriage or civil union to pay an amount reasonable and necessary for support.” 750 ILCS 5/505(a)

If the parents of the child are not married, there will be a child support order upon a court’s determination of parentage.

“[P]ending the outcome of a judicial determination of parentage, the court shall issue an order for child support upon motion by a party and a showing of clear and convincing evidence of parentage” 750 ILCS 46/801

The child support amount gets determined by using a chart that compares the parties’ incomes as a way to determine what the needs of the child are.

“In determining the amount of the child support award, the court shall use the guidelines and standards set forth in Sections 505 and 505.2 of the Illinois Marriage and Dissolution of Marriage Act.” 750 ILCS 46/801

The only advantage to asking an incarcerated parent for child support is that they are easy to serve. The divorce or parentage papers can be issued directly to the sheriff of the jail or the warden of the prison who will promptly serve them on the imprisoned parent.

How Do You Determine Child Support If A Parent Is In Jail Or Prison?

Almost everyone simply uses this calculator to determine child support.

If one parent is in prison that parent will definitely be the non-custodial parent and their number of overnight visits will be zero.

If someone is in prison, they’re probably not making any money. It could be argued that the imprisoned parent’s income should be imputed because it is their own fault that they’re in prison and the child should not suffer due to their bad decisions.

Imputing income for the purposes of child support requires a complicated test that doesn’t really have imprisoned people in mind.

“Illinois appellate courts have developed three primary factors to consider in determining when it is proper to impute income to a noncustodial parent. In order to impute income, a court must find that one of the following factors applies: (1) the payor is voluntarily unemployed ( In re Marriage of Adams, 348 Ill. App. 3d 340 (2004)); (2) the payor is attempting to evade a support obligation ( Sweet, 316 Ill. App. 3d 101); or (3) the payor has unreasonably failed to take advantage of an employment opportunity ( In re Marriage of Hubbs, 363 Ill. App. 3d 696 (2006)). If none of these factors are in evidence, the court may not impute income to the noncustodial parent.” In re Marriage of Gosney, 394 Ill. App. 3d 1073, 1077 (Ill. App. Ct. 2009)

It’s hard to argue that a parent in prison is “voluntarily unemployed.” “attempting to evade a support obligation” or “has unreasonably failed to take advantage of an employment opportunity.” Unemployment and child support are the least of an imprisoned parent’s problems.

More likely than not, child support be determined on a non-guidelines basis due to the extreme nature of one parent being incarcerated.

If “the court makes a finding that application of the guidelines would be inappropriate, after considering the best interests of the child and evidence which shows relevant factors including, but not limited to, one or more of the following:

(A) the financial resources and needs of the child;

(B) the financial resources and needs of the parents;

(C) the standard of living the child would have enjoyed had the marriage or civil union not been dissolved; and

(D) the physical and emotional condition of the child and his or her educational needs.” 750 ILCS 5/505(a)(2)

The financial needs of the child will largely be determined by the custodial parent’s financial affidavit’s section for “Minor and Dependent Children.”

The total expenses will then be divided among the two parents and the non-custodial parents share will be owed through child support.

The imprisoned parent will definitely owe something.

“Incarceration of the noncustodial parent does not automatically relieve that parent of the obligation to support his child.  Instead, the decision whether to order the imprisoned parent to pay child support lies within the trial court’s discretion. In exercising its discretion, the court should consider all relevant factors, including the following: (1) the assets of the incarcerated parent; (2) the reason the parent entered prison; (3) the length of incarceration; and (4) the potential for work release. In addition, this court has noted that the trial court’s discretion generally should be guided by the principle that child support obligations should not be suspended or terminated if the incarcerated, noncustodial parent has available assets” In Re Marriage of Hari, 804 N.E.2d 144 (Ill. App. Ct. 2004)

“[I]ncarceration, as a foreseeable result of criminal activity, does not ipso facto relieve one of the obligation to pay child support” Meyer v. Nein, 209 Ill. App. 3d 1087, 1089, 568 N.E.2d 436, 437 (1991)

In almost all circumstances, there is a minimum child support amount.

“There is a rebuttable presumption that a minimum child support obligation of $40 per month, per child, will be entered for an obligor who has actual or imputed gross income at or less than 75% of the most recent United States Department of Health and Human Services Federal Poverty Guidelines for a family of one person, with a maximum total child support obligation for that obligor of $120 per month to be divided equally among all of the obligor’s children.” 750 ILCS 5/505(a)(3.3a)

But (and this is a big but), the next statute says that incarcerated people have a zero dollar obligation to pay child support.

“For parents with no gross income, who receive only means-tested assistance, or who cannot work due to a medically proven disability, incarceration, or institutionalization, there is a rebuttable presumption that the $40 per month minimum support order is inapplicable and a zero dollar order shall be entered.” 750 ILCS 5/505(a)(3.3a)

In summary, the case law says that incarcerated parents have an obligation to support their parents but the statute says the incarcerated do not get a $ 40 minimum but rather a $ 0 child support order. 

This does not mean that incarcerated parents always have a $0 child support order. It just means that if the court deems that the incarcerated parent should pay the “minimum” that minimum payment shall be $ 0. Any other order shall stand.

How Do You Get An Incarcerated Parent To Pay Child Support

If the parents are married, the custodial parent can ask the court to award them a greater share of marital assets to cover the child support that is owed and will be owed during the incarcerated parent’s tenure in prison.

“The court if necessary to protect and promote the best interests of the children may set aside a portion of the jointly or separately held estates of the parties in a separate fund or trust for the support, maintenance, education, physical and mental health, and general welfare of any minor, dependent, or incompetent child of the parties.”  750 ILCS 5/503(g)

“Thus, section 503(g) explicitly allows the trial court to set aside in a separate fund a portion of the noncustodial parent’s nonmarital or marital assets to assure payment of his child support obligation if that parent is either unwilling or unable to make child support payments.” In Re Marriage of Hari, 804 N.E.2d 144 (Ill. App. Ct. 2004)

If the parents were not married or there is no marital estate to divide, you’re going to have to wait for the parent to be released to ask for the payments on what is owed.

After release, the custodial parent will need to file a motion to enforce and modify child support and set arrears.

The previous child support order stands until modified based on a substantial change in circumstances (getting out of jail and getting a job are about as substantial as changes get).

The amount of child support owed will be set and a delinquency amount will be determined.

”Delinquency” means any payment, including a payment of interest, under an order for support which becomes due and remains unpaid after entry of the order for support.” 750 ILCS 28/1

“The amount for payment of delinquency shall not be less than 20% of the total of the current support amount and the amount to be paid periodically for payment of any arrearage stated in the order for support” 750 ILCS 28/20(a)(2)

So, if the child support payment (either before or after modification) is $ 1000 a month, a delinquency payment of $ 200 a month at a minimum will be added to that child support payment for a total payment of $ 1200 a month.

This delinquency payment will remain in effect until the child support arrearage is paid in full.

Custody And Incarcerated Parents

The parent who is not in prison will automatically be awarded full custody of the children. It is infeasible for the children to be forced to visit the incarcerated parent or for the custodial parent to consult with the incarcerated parent regarding decisions made regarding the children.

When the incarcerated parent is released, they will need to re-establish their relationship with the children. This is often done through reintegrative therapy.

Depending on the formerly incarcerated parent’s history and criminal background, supervised visitation may be necessary.

Formerly incarcerated parents have rights in Illinois. A criminal background does not automatically prevent a parent from seeing their children.

“In allocating parenting time, the court shall not consider conduct of a parent that does not affect that parent’s relationship to the child.” 750 ILCS 5/602.7(c)

The lack of a parent’s involvement with the children during their incarceration is also not a bar to visitation.

“A parent who has established parentage under the laws of this State and who is not granted significant decision-making responsibilities for a child is entitled to reasonable parenting time with the child 750 ILCS 5/602.7(d)

How Do You Serve An Incarcerated Person In Illinois

Every court action requires some kind of notice to the other party. When the parent of your child is in jail, you cannot just hand them the court papers. Illinois jails and prisons have a procedure for accepting service on behalf of an inmate.

“For the security of a correctional institution or facility or jail, a process server may be refused entry into that correctional institution or facility or jail. Each correctional institution or facility or jail shall designate a representative to accept service from a licensed or registered private detective or agency for purposes of effectuating service upon an inmate in the custody of the institution, facility, or jail.” 735 ILCS 5/2-203.2

If your child’s other parent is incarcerated, you’ve got a lot of responsibilities. Don’t let the incarcerated parent’s poor life choices hurt you and your children more than necessary. Establish child support today for your children’s future. Contact my Chicago, Illinois family law firm to speak with an experienced Chicago family law attorney.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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