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Enforcement of Tribal and State Child Support Orders - Conquering .ppt

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Enforcement of Tribal and State Child Support Orders - Conquering .ppt Powered By Docstoc
					Enforcement of Tribal &
  State Child Support
        Orders
   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
  child(ren).
• 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.
                   Income
Periodic form of payment regardless of source,
  including:
• Wages
• Salary
• Commissions
• Bonuses
• Worker’s Compensation
• Disability
• 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
     mandatory.
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.
                   3. Paternity

a. Why? Compelling state or tribal interest in
   establishing paternity for all children; first step
   toward child support order.
b. Beginning:
   –   CP opens case
   –   Agency files complaint
   –   Respondent is served
   –   Answer—admit or deny paternity Or defaults
   –   Paternity est. by default judgment.
              Paternity cont’d
c.)POPs —hospital-based form used at child’s
  birth
  – gives father the chance to est. paternity at birth—res
    judicata.
  – POPs set-aside (1) rescission by declarant; (2) court
    order—motion based on mistake, surprise, fraud,
    excusable neglect.
               Paternity Cont’d
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
     DCA, 1995)
f.) Genetic Testing —When paternity at issue
   –   Administrative or Court Order;
   –   Uncooperative parents
   –   Testing Fraud
   –   Paternity Index > 100.
          4. The Support Obligation

a.) Existence:
   –   Both parents have the obligation
   –   agreement between parents cannot abridge child’s right to
       support.
   –   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
    Motion.
      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
    Cal.Rptr. 188.
h.) Emancipation (California): Duty to support
    ends at 18, or 19 if in high-school full-time, or
    upon marriage, or otherwise emancipated.
                     5. Income

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.
                Income cont’d
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.
              Income cont’d
g.) Overtime —obligors are not required to
    continue working unreasonable amounts, but
    normal overtime is generally included in
    income.
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
              expenses.
 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
     required.
 – 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.
                7. Enforcement

a.) Wage Assignment:
  –   Employer broadly defined—includes independent
      contractors.
  –   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
      agency.
            Enforcement cont’d
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.
  –   Subordination.
  –   Refinancing.
               Enforcement cont’d
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.)
            Enforcement cont’d
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
           Enforcement cont’d
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.
                   Enforcement cont’d
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
            Enforcement cont’d
J.) QDRO —to attach pension funds. 29 USC 1056(d).
  –   Join plan as a party and get order enjoining plan from
      distributing assets.
  –   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.
            Enforcement cont’d
k.) Execution on Community Property Assets.
  –   Community Property Assets are liable for prior
      non-community debts.
  –   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
      Cal.Rptr.2d 76.
            Enforcement cont’d
L.) Uniform Fraudulent Transfer Act (Cal Civ
    Code 3439)
  –   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
      Arrears.
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
      payment.
                  9. Bankruptcy

(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,
  reimbursement.
(c) Domestic child support obligation not
  dischargeable in bankruptcy. 11 USC 523(a)(5).
               Bankruptcy cont’d
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-
       estate property.
10. UIFSA—Uniform Interstate Family
          Support Act
a.) Basic Principles
   – Where parents reside in different jurisdictions and no order is
     in place, the agency in the obligor’s jurisdiction may establish
     an order.
   – 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
     enforceable order.
                  UIFSA cont’d

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.
                 UIFSA cont’d
c.) Changes in CEJ:
    (1) Parties may stipulate in writing to a new state
    having CEJ.
    (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.
                UIFSA cont’d
d.) A new issuing state cannot modify any
    aspects of the order which are non-
    modifiable under the laws of the former
    issuing state.
  –   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
      the order.
                    UIFSA cont’d
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
     state lines.
                11. FFACCSOA
     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)
                  Program


• Provides Eligibility Requirements for Direct
  Grants to Indian Tribes and Tribal
  Organizations to operate Child Support
  Enforcement Programs

• On- Going Federal Funding to operate a Tribal
  IV-D Program
     Title IV-D Plan Objectives
• Protecting Due Process Rights of Individuals

• Establishment of Paternity

• Establishment/Modification/Enforcement of
  Support Order

• 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
  Accuracy
• 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.

				
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