Mom has drug addiction. DHS has not opened an active case but is under a 6 month review period.
Family Law Attorney
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. Please be aware that each answer on this website is based upon the facts, or lack thereof, provided in the question. To be sure you get complete and comprehensive answers, based upon the totality of your situation, contact a local attorney who specializes in the area of law that involves your legal problem. Diane L. Gruber has been practicing law in Oregon for 27 years, specializing in family law, bankruptcy, estate planning and probate. Note: Diane L. Gruber does not represent you until a written fee agreement has been signed by you and Diane L. Gruber, and the fee listed in the agreement has been paid.
Family Law Attorney
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: <br> <br> Jay Bodzin is licensed to practice law in the State of Oregon and the Federal District of Oregon, and cannot give advice about the laws of other jurisdictions. All comments on this site are intended for informational purposes only, and do not constitute legal advice or create an attorney-client relationship. No posts or comments on this site are in any way confidential. Each case is unique. You are advised to have counsel at all stages of any legal proceeding, and to speak with your own lawyer in private to get advice about your specific situation. <br> <br> Jay Bodzin<br> Bodzin Donnelly Mockrin & Slavin, LLP<br> 2029 SE Jefferson Street, Suite 101, Milwaukie, OR 97222<br> <br> Telephone: 503-227-0965<br> Facsimile: 503-345-0926<br> Email: email@example.com<br> Online: www.bodzindonnelly.com
3 lawyers agree
Estate Planning Attorney
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 might be the law governing the area of the legal problem stated and suggest what might be the approach to finding a legal solution. Under no circumstances is this author acting as the attorney for the party who posted the question or as the attorney for subsequent readers to the question or response and no attorney client relationship is being formed. This attorney's comments are not intended to be a substitute for getting legal advice from a licensed attorney. A reader of this author's comments should never act on the information provided in these comments as though these comments were legal advice and should always seek legal advice in a personal consultation with an attorney in their jurisdiction before taking action. The information provided here is not intended to cover every situation with similar facts. Please remember that the law varies between states and other countries and is always changing through actions of the courts and the Legislature.