A parent has a legal duty to support their child, according to Dept. of Revenue v. Jackson, 846 So. 2d 486, 492 (Fla. 2003), but questions arise when that parent is incarcerated. Unlike under- or unemployed parents who can support their children, an incarcerated parent is incapable of producing the necessary income while they are in state custody. This doesn’t mean that their duty is discharged, but it does complicate matters considerably.
The state is trying to balance competing policy concerns: on one hand, the incarcerated parent doesn’t have the ability to pay, but their actions leading to incarceration were voluntary. Furthermore, some cases differentiate between whether the support decree was obtained before or after the parent’s incarceration.
If your child’s other parent is incarcerated, what can you do to receive child support? Read on for some helpful information from a child support attorney in Miami, FL.
Child support decree before incarceration
The courts have generally come to a consensus about post-award incarceration: the parent is still on the hook for child support payments, even if they don’t have the capability of providing the money until their sentence is over. This is based on the assumption that the parent was or could have been employed, and their voluntary actions (the crime they committed) are the reason they’re unable to pay.
Child support decree after incarceration
Things get more complicated with pre-award incarceration. The 2017 case Wilkerson v. Wilkerson, 220 So. 3d 480 (Fla. 5th DCA 2017) dealt with a parent whose child support decree was obtained shortly after he began serving a long prison term. The District Court agreed that the parent still had the duty to pay, which levels the playing field for children whose parents were incarcerated before the support decree was reached.
Earlier precedent has been conflicted. While courts generally agree that the duty to pay existed, they disagree about whether the child support decree can be modified simply because the parent is in prison. The policy behind this is that the child deserves support and not receiving that support is a hardship. Courts can “impute” income to an unemployed or underemployed parent based on what they could be making, but an incarcerated parent will not be able to get a job until their release.
While there may be little that the courts can do to ensure the children receive the money during incarceration, Florida courts have decided that having the support decree is a good precedent to set for post-incarceration payments. The parent may never be able to pay the full amount accumulated during their term, even with a restructured payment plan, but it will be more likely the support payments will begin in full upon their release.
Meet with a child support attorney in Miami, FL
For more information about the processes associated with getting child support from an incarcerated parent, contact the experienced attorneys at the Law Offices of Granoff & Kessler. We look forward to meeting with you and working on your case.
Categorized in: Child Custody