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21.   Collection of Spousal Support

Federal law requires Child Support Enforcement Agencies to collect alimoney if a child support arrearage also exists. 42 U.S.C. § 654(4)(B)(2).

22.   Computer/Automated Tracking Systems for Child Support Enforcement

States must develop plans to establish and operate a statewide automated data processing and information retrieval system to control, account for, and monitor all the factors in support enforcement collection and paternity determination. 42 U.S.C. § 654 A(6).

               Federal law mandates states have the first part of the automated systems in place by 

               October 1, 1997, and completely in place by October 1, 2000. Many states will not meet these timeframes, and will suffer penalties as a result of this failure to comply with federal law. 42 U.S.C. § 654(24), 45 C.F.R. §307.5(a). For further investigation of which states are in compliance with federal law, see ACES publication “Status of Automated Child Support Systems in the U.S.”.

                The state is required to have in operation one single statewide system. 42 U.S.C. § 654A (a).

               The automated system must perform certain functions including:

-controlling and accounting for use of Federal, State and Local funds in carrying out the program. 42 U.S.C. § 654A(b).

-maintaining the data necessary to meet federal reporting requirements.

-maintaining state performance data.

-calculating paternity establishment data.

-transmit orders and notices to employers for withholding of income

-this does not include the functions of the other mandated automated systems including the case registry, the new hire registries, the state parent locator, and the state disbursement unit.

 -monitoring payment defaults

-using automatic enforcement procedures. The system must to the maximum amount feasible implement expedited administrative procedures.

-calculating performance indicators

-maintaining data integrity and security

45 C.F.R.  § 307

Federal regulations outline federal participation in Child Support Enforcement Agencies statewide computerized systems and provides federal funding up to 90% for costs of the system. 45 C.F.R § 307.30

Funding for the computer system is:

90% federal funding for provisions mandated under the  Family Support Act of 1988. 42 U.S.C. § 655(a)(3)(A).

80% federal funding for post Family Support Act provisions of Case Registry and other enhancements to statewide automated systems. 42 U.S.C. § 655(a)(3)(B).

OCSE was required to establish uniform data definitions and effective FY 1997, collect new data on:

1. number of IVA cases that become ineligible and received child support during the month

2. current support and arrears

3. unpaid support

4. former Medicaid cases

42 U.S.C. § 304.

23.   Conditions for obtaining a waiver from federal mandates for a computerized system

Federal law allows the Secretary of HHS to relax the criteria for obtaining a waiver for having a statewide system that meets the requirements within the specified timeframe. The law requires HHS to grant waivers to those who meet relaxed criteria, but if a waiver is granted states must pay for cost related to locally linked systems. 42 U.S.C. § 652(d)(3). 45 C.F.R. § 307.5(b).

The state must present an alternative approach to the advanced planning document (APD) requirements. That alternative approach must enable the state to be in substantial compliance with Title IV-D requirements or else the state must provide written assurance that the state will take steps to otherwise improve the child support enforcement program. 45 C.F.R. § 307.5 (c).

The APD  must also describe the state’s base system; include a detailed description of the states’ manual or separate automated process and tell how the state will interface with the base system; show how the alternative system will enable the state to be in substantial compliance with IV-D requirements; show how the problem is not related to performance of the system; show what the state plan to do to correct the problem; show why they could not meet the conditions and show that meeting the conditions of section 307 of the C.F.R. would be inappropriate or unnecessary. 45 C.F.R. § 307.5(d).

Best Practice:  Using standardized data elements, forms and definitions throughout the state. This allows for easier programming of the system, and avoids catastrophes such as the catastrophe that occurred in California when they tried to implement the SACSS system.

24.   Contempt procedures to enforce child support orders

 No federal law requirements are needed.  All courts have contempt powers.

25.   Court/Judicial issues involving child support

There are many unexplored issues involving child support enforcement and the involvement of the courts. Some of these issues involve the use of judicial discretion and whether that discretion is being abused in some of the family courts. The support guidelines, for instance, are idealistically created requiring the use of mathematical formulae in order to assure even- handed meting out of child support amounts. Problems arise, however, because there is some judicial discretion in allowing exceptions tot he guideline rules. There are times when this discretion tends to swallow the entire guidelines process. The result of the abuse of loopholes in the law negates the intent of the law, because now we have cases where the meting out of amounts is not even-handed.

Federal law and due process considerations mandate some involvement by the courts in the child support collections process.  Federal law and federal regulations set up the ability of IV-D Agencies to enter into cooperative agreements with courts to provide for child support enforcement. 42 U.S.C. § 654(7),  45 C.F.R. § 302.34.

Best Practice: Child support should be handled in a friendlier, more administrative setting.  The administrative law procedures utilized by most states that have a fair hearing process for welfare or unemployment benefit hearings would be the best setting.  In this setting, the Administrative Law Judge presides over the hearing. The room is generally not a courtroom, but instead has a long table where one party sits on one side and the other party sits across from that party. Both parties are allowed to give whatever evidence they feel is pertinent (without application of formal evidence rules) and state whatever issues and facts that they feel should be taken into consideration. The judge then makes a decision based on all of the evidence, applying the laws and guidelines for the issuance of the child support order.

ACES advocates the use of a legal access program, such as the Family Law Facilitators Program in California. By expanding this program, the state provides access to an understanding of legal rights and procedures that might not otherwise be available to families. This access to understanding the legal system would further alleviate problems incurred by parties that enter into agreements without a full understanding of the situation and possible outcomes.

Some considerations and special exceptions would have to be built in to assure that those persons involved in domestic violence situations are not placed in compromising situations where coercion or violence is at all a possibility.

Also, the resulting decision would not be final unless both parties agreed to the outcome. If one party did not agree with the outcome, they would be afforded an opportunity to appeal.

The appeal would include moving the case to a regular court, using all the procedures that apply to the judicial process in that courtroom.

The benefits of this arrangement include a more congenial setting, which leads to settlements that are agreeable to both parties. If both parties feel that they got to have their say and that the outcome was fair, they will be more likely to comply with the order. Also, the need for legal counsel to be involved in this process is greatly reduced. This will allow for great cost savings for all involved, and will reduce the adversarial atmosphere that is ever present in the courtroom. 

26.   Criminal non-support

1992 Child Support Recovery Act made non-support a federal misdemeanor on interstate cases where failure to pay on $5,000 in child support or failure to pay for one year. U.S. Attorney is responsible to prosecute cases. Case can be referred by State IV-D agencies, private attorneys or families owed support. 18 U.S.C. § 228

1998 Deadbeat Parents Punishment Act makes non-support in interstate case where is was a repeat offense

                 or 2 years on non-support or $10,000 owed a federal felony offense. Cases are prosecuted in the same

                 manner as 1992 Child Support Recovery Act.

Most states have state laws making non-support a misdemeanor or felony offense. See the Appendix section “Status of Child Support Enforcement in the U.S.” to determine that status of the law in specific states.

27.   Debtor's hearing (depositions) to gather information about payor's assets

Federal law:  No requirements. All States have laws  for debtor’s hearings or depositions

28.   Employer Non-Compliance with income-withholding

Employers play a vital role in assuring that child support is deducted from an employee’s wages and is sent to the IV-D agency for disbursement to the family.  When employers do not comply, there are serious repercussions to the family.  Federal law outlines sanctions and liabilities that will be applied in cases where the employer refuses to withhold money from an employee, or the employer refuses to employ, discharges or takes disciplinary action upon an employee subject to income-withholding.

Upon receiving notice, the employer must withhold the specified amount from the non-custodial parent’s income.  The employer may charge a fee if such provision has been established by the state.  The employer must then pay the withheld child support amount to the state disbursement unit within 7 business days after the amount deducted is credited to the employee. 42 U.S.C. § 666 (b)(6)(A), 45 C.F.R. §§303.100 (f)(1)(i), (ii), (iii).

The employer must be held liable to the state for any amounts the employer fails to withhold after receiving notice, but the employer will not be required to vary normal pay and disbursement cycles in order to comply. 42 U.S.C. § 666 (b)(6)(C), 45 C.F.R. § 303.100 (f)(vi).

States are required to make provisions for the imposition of a fine against an employer who discharges, refuses to employ, or takes disciplinary action against any non-custodial parent subject to income-withholding.  There must also be provisions for fines against employers who fail to withhold income. 42 U.S.C. § 666(b)(6)(D)    

Employers are required to report new hire information within 20 days of hiring., 16 days if automated filing available 42 U.S.C § 653a(b)(2).

States can set penalties against employers for non-compliance with new hire reporting at $25 per instance or less than each time, or up to $500 if the failure to comply is the result of a conspiracy between employer and employee not to supply the information. 42 U.S.C. § 653A(d).

Best Practice: $25 per instance penalty for non-compliance with New Hire reporting, and an investigatory process developed in order to assure that conspiracy practices are discouraged.

29.   Establishment of child support orders for families who have been deserted and/or families where the parents are still married but living apart and separate

IV-D agencies are required, as child support enforcement agencies, to establish orders for these families. 42 U.S.C. § 654 (4), 42 U.S.C. §  654(6), 45 C.F.R. §  302.31(a)(2).

States must use Child Support Guidelines to establish the amount of support to be paid, see Guidelines.

30.   Establishment of Paternity

Federal law and regulations require Child Support Enforcement Agencies to establish paternity and allow blood test fees to be paid for with federal funds. Federal law:  42 U.S.C. § 666 (a)(5); Federal Regulation: 45 C.F.R. § 302.31.

Federal law requires performance standards for paternity establishment and federal funding provisions. Paternity Establishment Percentage (PEP) is 90% for new cases sor for audit penalty calculations of Title I Block Grant the penalty if 1-5% of block grant funds, States between 75-89% must improve 2% to avoid sanction risk. State can use either a IV-D or statewide PEP calculation. 42 U.S.C. § 652(g).

Federal financial participation:  provides federal funds to defray the cost to the state for materials about paternity and distributing them as well for short term training: 45 C.F.R. §§ 304.20(b)(2)(vii), 304.20(b)(2)(viii).

Federal regulations make federal funds of up to $20 available for each paternity established by hospitals, birth record agencies and other entities that provide prenatal or birthing services. 45 C.F.R.  § 304.20(b)(2)(vi).

States must have in place procedures that permit establishment of paternity at any time before the child reaches the age of 18. 42 U.S.C. § 666(a)(5)(i).

Federal law requires states to adopt laws that mandate all parties in a contested paternity case submit to genetic tests when one party requests them, except for individuals who have established good cause not to cooperate. 42 U.S.C. § 666 (a)(5)(B)(i), 45 C.F.R. § 303.5(b).

States must have procedures in place to pay the costs of paternity establishment, but can also recoup testing costs from the alleged father if paternity is established. The states must also have procedures in place to obtain additional testing if the original  paternity testing result is contested, but the state can require that the alleged father pay in advance or such additional testing. 42 U.S.C. § 666(a)(5)(B)(ii), 45 C.F.R.

§ 303.5(d)(3) .

Federal law requires procedures requiring the results of any generally acknowledged reliable genetic testing admissible as evidence of paternity without the need for foundation testimoney or other proof of authenticity or accuracy unless objection is made. 42 U.S.C. § 666(a)(5)(F)(iii). 

Federal law also requires the states to establish procedures under which bills for pregnancy, childbirth, and genetic testing are admissible as evidence without requiring third-party foundation testimoney, and shall constitute prima facie evidence of amounts incurred for such  services or for testing on behalf of the child. 42 U.S.C. § 666(a)(5)(K)

The state must develop procedures to place the father’s name on the birth certificate of the child when the parents are unmarried only when the mother and father have signed a voluntary acknowledgment of paternity or a court has issued an adjudication of paternity. 42 U.S.C. § 666(a0(5)(D)(i).

Voluntary acknowledgments automatically become the equivalent of a judicial order of paternity within 60 days of signing, or  the date of any earlier judicial or administrative proceeding relating to the child to which the signatory is a party. 42 U.S.C. § 666 (a)(5)(D)(ii).

Temporary support orders can be issued based on probable paternity in contested cases.  Procedures must be developed by the state which require that a temporary order be issued, upon motion by a party, requiring the provision of child support pending an administrative or judicial determination of parentage, if there is clear and convincing evidence of paternity (on the basis of genetic tests or other evidence).  42 U.S.C.

§ 666(a)(5)(J).

Before a mother or alleged father can sign a voluntary paternity acknowledgment, each must be given notice (both orally and in writing) of the alternatives to, legal consequences of, and rights and responsibilities arising from the signed acknowledgment. 42 U.S.C. § 666(a)(5)(C)(i).

If state law affords any special rights to minors, the notice must include a discussion of these rights.

42 U.S.C. § 666(a)(5)(C)(i).

Federal law requires the Secretary of Health and Human Services (HHS) will specify the minimum requirements of a voluntary acknowledgment form. Each state must then develop an acknowledgment form which includes HHS’s minimum requirements.42 U.S.C. § 652(a)(7)

States must give full faith and credit to acknowledgments signed in other states if the form meets HHS minimum standards. 42 U.S.C. § 666(a)(5)(C)(iv).

Federal regulations requires states to offer paternity acknowledgment services at sites other than hospitals. Theses sites will include birth records agencies  and other sites chosen from a list to be developed by HHS. 45 C.F.R. § 303.5(g)(1)

.

Entities offering paternity acknowledgment services at these other sites will have to use the same materials and forms  as those used in hospitals and their staffs will be subject to the same training and evaluation requirements. 45 C.F.R. § 303.5(g)(8).

States must bar jury trials for parties attempting to establish paternity. 42 U.S.C. § 666 (a)(5)(I).

31.   Federal Case Registry of Child Support Orders

The Federal Case Registry of Child Support Orders should contain an abstract of every child support order that is part of the IV-D system as well any order issued or modified in any state after October 1, 1998. 42 U.S.C. § 653(h)(1).  The Federal Case Registry of Child Support Orders is to be maintained in the Federal Parent Locator Service. The Federal Case Registry is to contain all the information necessary to identify individuals who owe or are owed support, as well as the names and social security numbers of any children of those individuals 42 U.S.C. § 653(h)(2).

32.   Federal Employees

Federal agencies are required to have in place system to facilitate service of process, income-withholdings and other enforcement methods for federal employees (including those in the military) will be easier to locate and pursue. 42 U.S.C. § 659.

33.   Fees that may be charged to families by the  IV-D Child Support Enforcement Agency

Federal law allows child support agencies to charge up to a maximum $25 fee for a payee to qualify as a IV-D case if not currently receiving TANF or enrolled in the foster care program.  The child support agency may charge additional fees to payees for attachment of Federal and State income tax refunds, some Homestead Act refunds, and for location only services.

States may elect in its State plan to recover any costs incurred in excess of any fees collected to cover administrative costs under the IV-D State plan, fees may exceed the actual average cost per case in the state. 45 C.F.R. § 304.5Every state is required to have a child support program to provide assistance to those needing to locate an absent parent, establish paternity, obtain or modify a child support order, and/or enforce such an order. 42 U.S.C. § 654(4)(A), 45 C.F.R. § 302.  TANF recipients are required to use the services of these state agencies. 42 U.S.C. § 654(4)(A)(i). TANF families do not have to apply for these services or pay an application fee. 42 U.S.C. § 654(6)(B). However, families could be asked to pay a fee for specific services such as federal tax intercept, genetic tests and costs in excess of fees. 42 U.S.C. §§ 654(6)(C), 654(6)(D), 654(6)(E).

When a family no longet receives TANF assistance, states must provide a notice that child support enforcement services will continue to be provided. 42 U.S.C. § 654(25).

Best Practice: No fees or costs should be imposed families entitled to child support, TANF or Non-TANF.

34.   Food Stamps/Cooperation custodial parents and non-custodial parents

States the option to require non-custodial parents to establish paternity and pay child support. Also, natural or adoptive parents and those living with and exercising control over a child under the age of 18 (hereafter "custodial parents") in households receiving food stamps to cooperate with the state child support agency in establishing paternity and securing support in order to be eligible to receive food stamps for themselves. The Secretary of Agriculture, after consulting with the Secretary of HHS, will develop standards for "good cause" exceptions to this requirement. The Food Stamp agency will be responsible for administering these "good cause" exceptions. 42 U.S.C. §654(29)(A).

Best Practices: It is certainly a good idea to maximize the child support available to low income children by making sure that those who care for them pursue support in appropriate cases. These provisions, however, present some real challenges and concerns  to states which want to use them. However:

taking this option also subjects the state to the possibility of litigation. If three different agencies (TANF, Medicaid, and Food Stamps), using three different standards, reach differing conclusions about a given custodial parent's failure to cooperate without good cause, a due process claim will likely be raised and won.

 for these reasons, states should not exercise the option to implement a food stamp cooperation requirement on custodial parents. They could, however, conduct an outreach campaign at food stamp offices, using the state's child support community education materials, to encourage those few food stamp recipients who are custodial parents not receiving TANF or Medicaid to pursue paternity and support for their children and make them aware of the availability of the state child support agencies services. This type of campaign would have the same goal as the cooperation initiative, but would actually help families, involve no duplication of state resources and avoid costly litigation.

It is certainly a good idea to maximize the child support available to low income children by making sure that those who owe support pay it. The PRWORA provisions, however, present some real challenges and concerns  to states which want to use them.

                   In imposing a requirement that alleged fathers cooperate with the establishment of paternity, there are some difficult legal issues. Can a father be deemed "uncooperative" if he:

(1) insists on his right to a genetic test;

                   (2) challenges a genetic test result even if it indicates a high probability that he is the father;

(3) insists on a court, rather than administrative agency hearing;

(4) pursues an appeal of an adverse determination;

                   (5) declines to cooperate because it will make him subject to criminal prosecution for statutory rape?

Implementing the food stamp cooperation requirement will require hiring additional staff, developing explanatory materials for staff and food stamp clients, and staff training. It will also require the establishment of an appeals procedure and staff/training for the appeals process. Whether this is a good use of state resources will have to be determined.

In imposing a food stamp sanction on those who fail to pay their child support, the largest barrier is the issue of computerization. Very few states have the computer capacity to determine whether a particular person is current in his/her support obligations. It is unlikely that such capacity will exist in the near future. While states could give priority to putting this infrastructure in place, the effort will divert scarce state resources from implementation of other new PRWORA computer requirements.

Another factor to  consider is whether other child support measures the state is implementing pursuant to the PRWORA (e.g. driver's license revocation, new hire reporting) will meet the same goals without the need for creating a separate food stamp overlay.

35.   Funding for IV-D Child Support Agencies and Audit requirements

States are eligible to receive incentive payments from the federal government for performing child support services. In order to determine the amount of these incentive payments, the federal government has set up a percentage plan that pays the states based upon percentage of collections.  42 U.S.C. § 658(a), 45 C.F.R.

§ 304.12.

The incentive formula is based on cost effectiveness and there is a reimbursement plan of 66% federal funding for enforcement and establishment of orders.  42 U.S.C. § 655 (a)(2), 45 C.F.R. 302.55.

In the Child Support Performance and Incentive Act of 1998, provisions for welfare reform included requiring the U.S. Department of Health and Human Services in consultation with State IV-D directors to develop a new revenue neutral incentive system and report to Congress by 3/1/97. The new system became effective on 10/1/99. The new system provides incentives to states based on a 5% increase in collections, number of paternities established, orders established, parents located, amount of child support collected, number of families receiving payments. Also, States receive incentives based on ranking between states from an incentive payment pool. 42 U.S.C. § 658, 45 C.F.R. § 304.12.

The Paternity Establishment Percentage (PEP) is increased from 75% to 90%. States must establish paternity on 75% of new cases IV-D or statewide. States between 75-89% must now improve 2% to avoid sanction risk. State can use either a IV-D or statewide PEP calculation.  42 U.S.C. § 655.

Federal conditions for improvement of the child support system set up requirements for states to use expedited processes. States must annually review compliance with expedited procedures, perform timely processing and other requirements and extract performance data from automated system. Effective 12 months or more after enactment OCSE will audit state data quality and financial management every three years. 42 U.S.C. § 666, 658(b)(5)(B).

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