My son is currently in an Oregon state prison. What options / rights does he have after child support has established paternity.

Asked 9 months ago - Eugene, OR

Mom has drug addiction. DHS has not opened an active case but is under a 6 month review period.

Attorney answers (3)

  1. Jay Bodzin

    Contributor Level 20

    3

    Lawyers agree

    Answered . Options or rights to what?

    As Ms. Gruber states, your son's child support obligation while he's in prison should reflect his actual income. This is important, because most of the time, if a parent makes less than minimum wage, the law assumes for child support calculation purposes that they make that much (which, at the moment, is about $1,551 per month). The assumption is that anyone can get a job making minimum wage, working 40 hours a week, and that parents should be held responsible for supporting their children at least to that extent. That way, a deadbeat parent can't refuse to work in order to avoid owing child support. If your son becomes involved in a support case, he must provide proof of his incarceration, to avoid being made responsible for an ever-increasing support arrears.

    That's about all he can do while he's in prison. For practical purposes, he can't possibly get custody or parenting time rights over a child while he's incarcerated. I don't care how drug-addicted the mom is, he can't raise a child while in prison. (If the mom has serious issues, then most likely, yes, it's a DHS case. This can seriously complicate the custody process later, but without more information about the specifics, it's hard to say how.)

    Once he's released, he can seek custody and parenting rights with the child. If he's been absent from the child's life for a long time - particularly if this is due to his being incarcerated, and particularly if that's due to a violent or drug-related crime - his initial contact with the child will likely be fairly limited. He may be required to be supervised around the child at first. But if he works hard and rebuilds his connection to the child, he may seek custody like any other parent.

    Please read the following notice:

    Jay Bodzin is licensed to practice law in the State of Oregon and... more
  2. Diane L Gruber

    Pro

    Contributor Level 18

    2

    Lawyers agree

    Answered . During the time that the payor of child support is in prison he can get the monthly amounts "suspended". Your son needs to contact Child Support Division and obtain the application to accomplish this.

    Be sure to designate "best answer." If you live in Oregon, you may call me for more detailed advice, 503-650-9662.... more
  3. Joanne Reisman

    Contributor Level 16

    2

    Lawyers agree

    Answered . Both my colleagues are correct that care needs to be taken to make sure that his income that is used to calculate the child support he will owe takes into account his low income status as being in incarcerated and he would not even have the ability to make minimum wage as would otherwise be presumed. If there is a way to suspend his child support then he should do it. I am just not sure if suspend means he doesn't owe for that month or if he owes but doesn't have to pay yet. So be sure to read the rules.

    My bigger concern is that if mom loses custody to DHS and dad is in prison DHS may move to terminate both of the parent's parental rights and get the baby adopted. This may not happen quickly - sometimes the mother is given a trial period while the children are in foster care to see if she can turn her life around. The better course of action would be for mom to place the child with a more responsible care taker - like a grand parent because as long as the child is in the care of a responsible adult DHS doesn't have grounds to remove the child. Your fact situation doesn't tell us how long dad is incarcerated for or what is the reason for his incarceration. If it's a minor offense and the term is short, there is a better chance that DHS will consider placing the child with the father when he is released. But if the charge is serious and involves behavior that poses a danger to a child or the term is long then the father is not going to be seen as a viable option. What remains is whether or not the paternal grandparents or aunts or uncles can intervene and take custody of the child.

    Also be aware if the child has Native American blood, then DHS has to seek placement that meets with approval of the associated Native American tribe before they can consider adoption. So if hte child is eligible to be enrolled in a Native American Tribe through either mother or father this may be something that needs to be explored. All these ideas should be discussed with an attorney. http://www.portlandlegalservices.com

    The comments by this author to questions posted on Avvo are designed to foster a general understanding of what... more
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