Enforcement of Tribal &
State Child Support
Materials and Presentation by:
Peter Eric Martin
Glossary of Terms
• Child Support
Financial support paid by a parent to help support
a child or children. Can be paid voluntarily or
by court order.
• Custody Order
Court order establishing which parent will have
legal & physical custody of the child or children.
Custody may be sole, shared, joint, split, etc.
• Type of Child Support
Medical Support- Child(ren) are provided health
coverage by the non-custodial parent.
Monetary Payments- may be one-time, installment,
or automatic withholding.
• Custodial Parent- The parent having the
sole/primary care, custody, and control of the
• Dependent Child- A child who is under the care
of another. Age of emancipation determined by
state or tribal law. Children may remain
dependent beyond the age of emancipation
depending on law ( i.e. graduation from high
school or college)
• Disposable Income- Portion of earnings after
deductions for taxes or other obligations used to
determine amount of child support to be paid.
• Child Support Guidelines- A standardized
method for determining child support obligation
based on the respective income of the parents
and other factors as set forth by state or tribe.
• Putative Father
A person alleged to be the father of a child who
has not been medically or legally declared to be
the legal father.
Periodic form of payment regardless of source,
• Worker’s Compensation
• Pensions or other retirement programs
I. History of IV-D Programs
a.) Title IV of Social Security Act added 1975
b.) Mandates: Locate NCPs
c.) Establish Paternity
d.) Establish & Enforce Child Support Obligations
e.) Collect and Distribute Payments
f.) Family Support Act of 1988 —mandatory wage
withholding; mandatory review and adjustment;
statewide automated child support system
g.) Personal Responsibility and Work Opportunity Act of 1996
[PRWORA]—created TANF; goal is for families to be self-
sufficient. Purpose is to assist needy families so children can
be cared for in their own homes; reduce dependency of needy
parents by promoting job preparation, work and marriage;
prevent out-of-wedlock pregnancy; encourage the formation
and maintenance of two-parent families.
h.) Federal Child Support Performance and Incentive Act of
1998—(1) % paternity establishment; (2) % cases with a child
support order; (3) % current support collected; (4) % cases
with arrears collections; (5) cost effectiveness = total child
support $ collected per $1 of expenditure
2. Basic Elements of a Support Case
a.) Case open or closed?
b.) Where are the parents?
Local—all in County; Intrastate—all in State; Long-Arm—CP
in State, local agency directly enforcing against NCP in another
state; Interstate—Two agencies involved, one in each state.
c.) What is the case type? Welfare or Non-Welfare? Current
Support v. Arrears?
d.) What services is the agency providing? Paternity; Child
Support; Medical Support; Spousal Support.
a. Why? Compelling state or tribal interest in
establishing paternity for all children; first step
toward child support order.
– CP opens case
– Agency files complaint
– Respondent is served
– Answer—admit or deny paternity Or defaults
– Paternity est. by default judgment.
c.)POPs —hospital-based form used at child’s
– gives father the chance to est. paternity at birth—res
– POPs set-aside (1) rescission by declarant; (2) court
order—motion based on mistake, surprise, fraud,
d.) Presumptions of Paternity:
– Marital Presumption—child of wife cohabiting with
husband at time of conception who is neither impotent nor
sterile is presumed to be child of the marriage.
e.) Actual parent-child relationship to be preserved
over biological father. Steven W. v. Matthew S. (1st
f.) Genetic Testing —When paternity at issue
– Administrative or Court Order;
– Uncooperative parents
– Testing Fraud
– Paternity Index > 100.
4. The Support Obligation
– Both parents have the obligation
– agreement between parents cannot abridge child’s right to
– Agreements terminating child support void as against
public policy. County of Shasta v. Caruthers (1995) 31
Cal.App.4th 1838, 38 Cal.Rptr.2d 18.
b.) Minor as Parent —required to live with adult
parent/guardian to receive aid. Cal W&I 11254(a).
Support Obligation cont’d
c.) Support where Minor lives in Foster
Care/Juvenile Hall —both parents pay.
d.) Termination of Parental Rights —by court order,
terminates support obligation.
e.) Adult Disabled Children: Support obligation may
continue past emancipation.
f.) Effective Date of Child Support Orders —
generally, not prior to the filing of the Complaint or
Support Obligation cont’d
g.) Death of Obligor: Child Support obligation
survives the death of the payor parent and
becomes a charge against her estate. IRMO
Gregory (1991) 230 Cal.App.3d 112, 281
h.) Emancipation (California): Duty to support
ends at 18, or 19 if in high-school full-time, or
upon marriage, or otherwise emancipated.
a.) Support is set based upon the parents’ disposable
income and time-share of the children.
b.) Need-based benefits, e.g. General Relief, SSI,
TANF, student financial aid are not income, but SSA,
worker’s compensation, unemployment benefits and
disability benefits are income.
c.) Loans are not income —they must be repaid.
d.) Principal vs. Income. Some courts have found that
inheritances, personal injury awards, and other lump
sum amounts are principal, and not income for
support purposes. But the interest earned from such
sources is income.
e.) Employer Fringe Benefits, e.g. auto or housing
allowances, are income.
f.) Ability to Earn. Change to job with lower earnings.
Retirement. Caring for new children. Marry wealthy
spouse. Receipt of TANF. Back to School. Jail.
g.) Overtime —obligors are not required to
continue working unreasonable amounts, but
normal overtime is generally included in
h.) New Spouse Income. Generally not
considered, except in cases of severe hardship.
6. Modifications of Child Support
a.) Guideline Amount
– Agency cannot stipulate to other than guideline amount in
a welfare case
– court may order different amount if it finds guideline
amount unjust or against child’s best interest
– Possible reasons to deviate from guideline: stipulation of
the parties, extreme hardship, extraordinarily high income,
parent’s contribution not in line with timeshare,
other children in home, extraordinary health care
Modifications of Child Support cont’d
b.) Add-Ons to Guideline:
– Mandatory vs. Discretionary Add-Ons
– Child Care Expenses
– Uncovered Medical Expenses
– Educational/Special Needs Expenses
– Travel Expenses for Visitation
Modifications of Child Support cont’d
c.) Change of Circumstances
– required showing to modify support, unless support is
below guideline, then no change of circumstances is
– Repeat Filers
d.) Disposable Income:
– Net of Taxes.
– Use Actual Taxes Paid.
– Use Actual Filing Status.
– Back out loss carryovers from prior years.
– Issue of Depreciation.
a.) Wage Assignment:
– Employer broadly defined—includes independent
– Restrictions on Garnishment: 50% of disposable
income if not supporting new family or spouse,
otherwise maximum is 60% of disposable income
15 USC 1673.
– Employer penalty for failure to withhold—
employer liable for amount not withheld directly to
b.) Real Property Liens.
– States must have law in place to allow for liens
against real and personal property of NCPs who
owe overdue support. 45 CFR 302.70
– OMB has form lien for use across state lines.
– Lien Priority.
c.) Judgment Debtor Examination.
– No Fifth Amendment Privilege on ground exam
could lead to contempt proceeding. IRMO Sachs
(2002) 95 Cal.App.4th 1144, 116 Cal.Rptr.2d 273
(father cannot rely on failure to pay support as
justification for refusal to provide financial
information—to hold otherwise would allow him to
take advantage of his own wrong.)
d.) Credit Reporting
– monthly update
– submission to credit reporting agencies
e.) License Suspension
– current or arrears overdue
– driver’s license
– professional licenses and recreational licenses
– Payment Plans
– Judicial Review of Agency Actions on Licenses
f.) IRS Intercept Program
• applies to arrears in child support cases
• If amount collected exceeds arrears, agency to
refund difference to NCP
• Joint returns—non-obligor spouse can claim
his/her share of refund
• Injured Spouse Claim, up to 6 years after filing
original return. Includes the EIC.
g.) Passport Denial —42 USC 652(k).
• Child Support arrears must exceed $5000.
• Passport denied at time of application or renewal.
h.) Look for Work Orders.
i.) Writs of Execution:
– Equipment - Inventory
– Vessels and vehicles - Mobile homes
– Notes - securities
– deposit accounts - accounts receivable
– money judgment - interest in a decedent’s estate
– life insurance
J.) QDRO —to attach pension funds. 29 USC 1056(d).
– Join plan as a party and get order enjoining plan from
– Court then issues order and plan can pay out.
– QDRO can only pay out what would be available to
member under the plan, e.g. if member can’t get cash out
or access plan till a certain age, QDRO won’t be able to
reach plan assets until then.
– Order should provide that plan member is responsible for
all taxes on the distribution.
k.) Execution on Community Property Assets.
– Community Property Assets are liable for prior
– The non-obligor spouse may have a right of
reimbursement against the obligor spouse, but this
will not prevent the execution. Lezine v. Security
Pacific Financial Services (1996) 14 Cal.4th 56, 58
L.) Uniform Fraudulent Transfer Act (Cal Civ
– A transfer made is fraudulent if the debtor made
the transfer with intent to hinder, delay or defraud
creditor or made the transfer without receiving
equivalent value in exchange, and debtor rendered
insolvent by the transfer.
8. Child Support Arrears
a.) Motions to Determine Arrears and Set Aside
b.) Laches as a Defense to Arrears.
c.) Equitable Credit Toward Arrears through
custody of child
d.) Does the child support judgment expire?
e.) Interest on Arrears
f.) Compromise of Arrears through lump sum
(a) Bankruptcy Abuse Prevention and Consumer
Protection Act of 2005 (BAPCA) simplified
everything in child support.
(b) New law added definition of “domestic child
support obligation.” Covers all support, child and
spousal, assigned, unassigned, ongoing, arrears,
(c) Domestic child support obligation not
dischargeable in bankruptcy. 11 USC 523(a)(5).
d.) The filing of a bankruptcy petition imposes an automatic
stay on establishment, enforcement or collection of debts.
– Under BAPCA, most child support collection activity is exempted
from the automatic stay, including: establishment of paternity,
establishment or modification of a domestic support obligation,
collection of a domestic support obligation from property that is not
property of the estate, withholding of income for payment of a
domestic support obligation (even if property of the estate), suspension
of a license, reporting to a consumer credit agency, and interception of
a tax refund. 11 USC 362(b)(2).
– Notice that once a debtor has filed bankruptcy, the child support
creditor may not place a lien on property of the estate, since the
exception to the stay allows enforcement of support only against non-
10. UIFSA—Uniform Interstate Family
a.) Basic Principles
– Where parents reside in different jurisdictions and no order is
in place, the agency in the obligor’s jurisdiction may establish
– The core principle of UIFSA is that only one child support
order shall be in effect at any one time.
– The first state to enter a valid support order, with both
personal and subject matter jurisdiction, becomes the issuing
state of the controlling order, which will be the only
b.) CEJ—Continuing Exclusive Jurisdiction:
– To prevent multiple orders, UIFSA restricts the
ability of court to issue child support orders, or
modify the controlling order.
– UIFSA gives continuing exclusive jurisdiction over
the issue of modification to the court that issued
the controlling order.
– The first state to issue a valid child support order
has CEJ as long as the obligor, obligee or any child
remains a resident of that state.
c.) Changes in CEJ:
(1) Parties may stipulate in writing to a new state
(2) All parties and children move to a new state.
(3) Parties and children leave for different state.
Issuing state loses CEJ when last party or child leaves.
Then no state has CEJ until the moving party
registers the order in a state that has personal
jurisdiction over the responding party. The state of
residence of the moving party cannot acquire CEJ.
d.) A new issuing state cannot modify any
aspects of the order which are non-
modifiable under the laws of the former
– Many cases hold that duration of the order (date of
emancipation) is non-modifiable.
– The only court that may modify a spousal support
order is the court of the state which initially issued
e.) Reconciliation of Multiple Orders. If two or more courts
have CEJ, priority is given to the child’s current home state, or
if none, to the most recent order.
f.) Registration for Enforcement. An order may be registered
in another state solely for enforcement. The order remains
the order of the issuing state, whose laws govern the order.
Exception: If the issuing state and registering state have
different statutes of limitation on collection of arrears, the
longer one applies. The registering state applies its own rules
of evidence and procedure in enforcement.
g.) UIFSA allows direct income withholding orders across
Federal Full Faith and Credit for Child
Support Orders Act—28 USC 1738B.
a.) Its purpose is to keep non-custodial parents who move to
other states from obtaining lower child support orders in
the new state. It imposed the constraints of UIFSA upon states
and tribes that had not yet enacted UIFSA. FFACCSOA was
enacted in 1994.
b.) FFACCSOA affects states that did not enact UIFSA until
after 1994 and tribes that have not adopted UIFSA. If a child
support order was issued in a non-UIFSA state after 1994, which
attempted to modify another state’s order, that order is void for
lack of subject matter jurisdiction.
12. Tribal Child Support
a.) Tribes are not subject to the state’s
jurisdiction in actions for child support.
Bryan v. Itasca County, Minnesota (1976) 426 US
373, 96 S.Ct. 2102.
(b) Indians, on or off the reservation, are
subject to the state’s jurisdiction in child
support cases. County of Inyo v. Jeff (1991) 227
Cal.App.3d 487, 277 Cal.Rptr. 841
Tribal Child Support cont’d
(c) In cases where the only income available for
support comes from tribes or Indian trusts, the
funds cannot be intercepted prior to distribution
to the obligor without the consent of the tribal
government. Many tribes co-operate with state
child support agencies and honor withholding.
(d) UIFSA and FFACCSOA include ―Indian
Country‖ and ―Indian Tribe‖ under the
definition of the word ―state.‖
45 C.F.R. Part 309
Tribal Child Support Enforcement (IV-D)
• Provides Eligibility Requirements for Direct
Grants to Indian Tribes and Tribal
Organizations to operate Child Support
• On- Going Federal Funding to operate a Tribal
Title IV-D Plan Objectives
• Protecting Due Process Rights of Individuals
• Establishment of Paternity
• Establishment/Modification/Enforcement of
• Location of Non-Custodial Parents
Tribal IV-D Plan Includes:
• One Set of Child Support Guidelines
• Cash/non-cash Support Acceptance Policy
• What will Satisfy the Support Obligation
• Review/Revise Guidelines Periodically
• Rebuttable Presumption of Support Award
• Allow for Justification of variance to the
Support Order per special circumstances
Tribal Procedures Governing:
• Income Withholding
• Distribution of Child Support
• Intergovernmental Procedures Available
Plan Can Provide for Many Services
• Tribal Parent Locator Service
• Maintenance of Case Records
• Data Processing Systems
• Office Automation
• Staffing and Equipment
• Service of process
• Technical Assistance, etc.