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36.   Good Cause Exceptions

Each state shall define “good cause.” States are allowed to develop “other exceptions” to the cooperation requirement. The only restriction is that both the “good cause” and “other exceptions” must be based on the “best interests of the child”. In addition to defining “good cause” and “other exceptions”, states will establish the standards for proving a claim. States will also have to decide which agency will inform caretakers about the cooperation exemptions, and which will make the decision about the validity of a given claim. These responsibilities can be delegated to the TANF agency, the child support agency, or the Medicaid agency under the federal law. 42 U.S.C. § 608 (29)(A)(i).

Families receiving TANF funded assistance must cooperate with the state in establishing paternity and pursuing support unless they have “good cause” for refusing to do so. 42 U.S.C. § 608(a)(3).

Best Practices: To implement the federal law, states will have to develop a set of definitions and standards and a system for implementing those definitions and standards.

                   Current federal regulations defining “good cause” have proven to be workable, are familiar to caretakers, and are familiar to the workers who will have to administer the new requirements. Therefore, states should adopt the current federal “good cause” standards into their own law.

                   A set of “other exceptions” will need to be developed. There are a small number of cases where the current federal definitions don't apply but where paternity/support shouldn't be pursued because it would give the non-custodial parent a right to seek access to the child under circumstances where this may not be in the child's best interest. For example, if the non-custodial parent has a drug or alcohol problem or a record of violent behavior (not involving the family) it might be inadvisable for him to be around the children. There are also a small number of cases where the caretaker is unable--despite her good faith efforts--to meet the state's informational standard for cooperation. If the caretaker has done all she can do, it would not be in the child's best interest to sanction the family. States should use their authority to develop “other exceptions” to the cooperation requirement to design exceptions to cooperation in these cases.

States will have to develop standards of proof for “good cause” and “other exceptions” claims.( Hereafter, these will be referred to as “exemptions from cooperation.”) Given the time limited nature of TANF assistance, most caretakers will be anxious to obtain support payments to help them leave TANF before they have “used up” their eligibility. Therefore, it is likely that those who claim an exemption from cooperation will have good reason for doing so. The standards should be based on the notion that the caretaker can be believed and require minimal corroboration of the facts from her.

Thought must be given to the issue of who will inform caretakers about the exemptions from cooperation. The majority of claims under the current law involve domestic violence and this is likely to be the case under the federal law. Under the Wellstone-Murray amendment to  Section 103 of the PRWORA, states have the option--within the TANF program---to offer special protections to domestic violence victims. In states that do this, it would be logical to have the TANF workers---who are already providing notice about the and/or screening for domestic violence issues---be responsible for explaining the child support cooperation exemptions as well. In states not implementing Wellstone-Murray protections, either the TANF agency or the child support agency could provide the notice and periodically review it with clients.

 Multiple explanations of the exemptions should be offered and multiple opportunities to raise the issues should be provided. Victims of domestic violence, rape, and incest are reluctant to identify the problem to strangets. It may take some time before they will acknowledge the situation. For this reason, caretakers should be periodically re-notified about the operation exemptions and given a chance to raise the issue. Moreover, caretakers should be allowed to raise the issue at initial contact and at any time thereafter and have their claim considered.

 A decision will also have to be made about which agency (TANF, child support or Medicaid) will assist clients making a claim for an exemption and which will be responsible for adjudicating claims. An appeal procedure will also have to be established. Which agency is best suited for these tasks will depend on the structure of the state's TANF program and the culture, staffing and resources of the various possible agencies.        

Protocols will have to be established to protect those who could claim an exemption but would prefer to pursue support for their children if possible. A specially trained worker should examine the situation with the caretaker parent and determine whether child support should be pursued, a protective order sought (if one is not already in place) or a “good cause” exemption claimed. The case should be specially coded within the child support system so that information is not inadvertently released to an inappropriate party. The location of the caretaker parent and child should be protected by use of a dummy address. All cases in which “good cause” is claimed should be periodically reevaluated to determine whether the situation has changed and the caretaker parent now feels that it would be safe to proceed with a child support action.

37.   Guidelines for the amount of support

All states must have guidelines in place to determine the amount of support to be paid by October 1, 1987.  These guidelines must be a mathematical formula.  These can be by state law, or by judicial or administrative action. 42 U.S.C. § 667, 45 C.F.R. §§ 302.56, 305.47.

Guidelines formulas must be reviewed at least once every four years to ensure their application results in the right child support award amounts. 42 U.S.C. § 667(a).

The State must make all guidelines formulas available to all persons whose job it is to set child support award amounts. 45 C.F.R. § 302.56(b).

Guidelines established must:

-take into consideration all earnings and income of the non-custodial parent;

-be based on specific descriptive and numeric criteria;

-provide for the children’s health care needs through health insurance coverage or other means.

45 C.F.R. § 302.56.

There shall be a rebuttable presumption that the amount of the award resulting from the application of the guideline formula is the correct amount to be awarded. A written or specific on the record that the guideline amount would be unjust or inappropriate in a particular case as determined by criteria established by the state shall be enough to rebut the presumption.  42 U.S.C. §  667(b)(2).

Federal law requires the state to use one of three different methods for adjusting orders: 1) the child support guidelines (as in current law); 2) an inflation adjustment: or 3) an automated data method. The latter might include using wage data from the records of the state employment service or tax agency rather than soliciting information directly from the non-custodial parent. If either an inflation adjustment or an automated method is used, the state must allow either parent to contest the adjustment. 42 U.S.C.

§ 666(a)(10)(A)(ii).

38.   Income-withholding for child support (wage withholding, payroll deduction)

Income-withholding is probably the most effective and easy way to assure that child support  payments are made and reach the family. This method of payment includes issuance of an order from the court to the non-custodial parent’s employer. The employer is ordered to deduct a portion of the absent parents’ salary of earnings and forward that amount to the IV-D agency. The IV-D agency is then responsible for forwarding payment on to the custodial parent. 

On all orders which are initially established on or after 1/1/94, income-withholding procedures are to be established at the time the order is established unless the court finds that there is good cause not to establish this income-withholding, or both parties agree not to establish the order.

Federal law: 42 U.S.C. §§ 666(a)(1) and 666(a)(8)(B),  Federal Regulation: 45 C.F.R. § 303.100.

Requires income-withholding to be mandatory for IV-D cases when a child support arrearage equals one month support. 42 U.S.C. § 666(b)(3)(B), 45 C.F.R. § 302.70 (a)(1).

Requires immediate income-withholding for IV-D cases by 11/1/90 and all cases by 1/1/94.  Allows opt out agreement between spouses, and also discretion by the court to allow exceptions in cases where good cause exists. 42 U.S.C. § 666 (b)(3)(B), 45 C.F.R. §  303.100 (b).

Requires that non IV-D orders issued or modified before 1/1/94 are subject to standard income- withholding procedures if an arrearage occurs without the need for a new court or administrative hearing. 42 U.S.C. § 666 (a)(8)(A).

Money collected from income-withholdings must be processed through the Central Payment Registry on IV-D and non-IV-D cases. 42 U.S.C. § § 654(1), 666 (b)(2).

On IV-D cases when there is a match with the order registry and New Hire registry an income- withholding order must be sent to the employer within 2 days. This may be done electronically.

42 U.S.C. § 653(a).

States may have laws that allow an income-withholding to begin without advanced notice to the non-payor if previously notified about income-withholding procedures. Non-payor must be sent a notice that the income-withholding has begun. 42 U.S.C. §666(b)(4)(A), but see “state procedures when the absent parent contests initiated withholding in response to the advance notice”

45 C.F.R. § 303.100 (e).

Requires that the total amount withheld must not violate limits imposed under section 303(b) of the Consumer Credit Protection Act (15 U.S.C. § 1673(b)).

45 C.F.R. § 303.100(a)(3).

Requires the State to have procedures for promptly terminating withholding when there is no longet a current order and all arrearages have been paid, or when there is a written agreement between the custodial and non-custodial parents. 45 C.F.R. § 303.100(a)(7).

Requires the State to establish procedures for allocating support in cases where there is more than one support order, giving priority to current support but in no case should allocation result in an order not being implemented.

39.   International cases

The State Department is authorized to enter into reciprocal arrangements with foreign countries whereby American state child support agencies would handle (without charging the custodial parent a fee) paternity and establishment/enforcement of child and spousal support orders for residents of that country if that country provides the same services at no cost to U.S. residents. 42 U.S.C. § 659a.

Parents with support arrears of more than $5,000 can have their passport limited, revoked or suspended.

42 U.S.C. § 652 (k).

40.   Interstate child support enforcement: URESA and UIFSA

Federal law requires states to have laws and procedures for interstate income-withholding.  Revised 1984  (URESA) Uniform Reciprocal Enforcement of Support Act allowed IV-D Child Support Enforcement Agencies to establish orders, establish paternity, modify orders, and enforce orders interstate. States implemented URESA, but it proved to be ineffective, so the American Bar Association developed the Uniform Interstate Family Support Act (UIFSA) and it was adopted by the National Conference of Commissioners on Uniform State Laws. The adoption of UIFSA had the effect of repealing URESA. The federal legislature incorporated UIFSA requirements into the IV-D requirements. The major difference between URESA and UIFSA is that UIFSA allows direct income-withholding from one state to an employer in another state without requiring the intervention of the other state. 45 C.F.R. § 303.100(f)(2). As of January 1, 1998, each state was required to have UIFSA in effect.  42 U.S.C.§ 666(f).

Federal regulations require states to establish a Central Registry to receive incoming cases, check paperwork and determine action needed within ten days of receipt, to forward to appropriate enforcement entity in the state and to require responding state to request needed information from initiating state; also to require status reports from initiating state every 90 days to responding state, to require use of state parent locator by responding state and use of administrative process for income-withholding. 45 C.F.R. § 303.7.

PRWORA Section 321 requires every state to adopt the Uniform Interstate Family Support Act (UIFSA) by January 1, 1998. States must give full faith and credit to out of state orders without registration and follow new ordering rules. State must use federal income-withholding, liens and subpoena forms interstate cases. Codified at 42 U.S.C. § 666(f).

State may electronically request interstate enforcement without transferring the case. State must respond within 5 days to an interstate request for administrative enforcement and maintain records. States must give full faith and credit to other state liens without registration of support orders. 42 U.S.C. § 666(a)(4)(B).

                PRWORA Section 322 clarifies the relationship between interstate orders and the full faith and credit              provisions of federal law. This should also make it easier to handle enforcement of interstate orders and               modifications. 28 U.S.C. § 1738B.

41.    IRS Offset ( attachment of Federal income tax refunds) for child support enforcement

Federal law allows child support enforcement agencies to request the IRS to collect back support  by attaching federal income tax refunds if there is at least $500 in arrearage, or $250 arrearage for TANF cases. 42 U.S.C. § 664(b)(2)(A), 45CFR 303.72

If the non-payor files a joint return with another person who does not owe support, that other person may file with the Secretary of the treasury to secure his or her proper share of the refund from withholding.

42 U.S.C. § 664(a)(3)(C).

If there is a notice to secure payment on a joint return, the Secretary may then delay distribution of the refund, but the delay may not exceed six months. 42 U.S.C. § 664(a)(3)(B).

42.     IRS Full Collection Service

For case with arrears over $750 the  IRS collects support using same process they use to collect back taxes. States must have tried other methods and they have failed to qualify for referral to IRS Full collection Service, 45 CFR 303.71

43.   Issues involving establishment of support obligations and paternity

Federal regulations require IV-D agencies, within 90 calendar days of locating an absent parent or of establishing paternity, to establish an order for support. If legal service of notice is needed it must be completed or documented that attempts of legal service of notice have been made. States must use diligent efforts to obtain legal service of notice.

Support orders must be established within 90 calendar days of successful legal service of notice. 45 C.F.R. § 303.4(d).

Regulations also require that in cases where a support order is dismissed without prejudice the IV-D agency must examine the reasons for dismissal and determine if it is appropriate to take more action in the future and do so if needed. 45 C.F.R. § 303.4(e).

Federal regulations require state IV-D agencies to use competitive bid process for hiring a laboratory to do blood tests and to make the list available to courts, law enforcement officials and the public upon request. Term blood test is replaced with term genetic tests through out the regulation. 45 C.F.R. § 303.5(c).

Best Practices: Implementing the welfare reform law requirements involves balancing the needs and concerns of a number of actors and wrestling with some difficult policy choices. States must:

develop systems that are truly voluntary and incorporate the due process rights of both parents. This requires the development of comprehensive, explanatory materials at appropriate literacy levels and in all necessary languages. It also requires good staff training for hospital staff,  birth records agency personnel and others who will be involved in counseling parents about the process. Finally, it involves monitoring of the process by responsible state officials. This is especially true because, states are under pressure to increase their paternity establishment rates and face a reduction in their TANF block grant funds for failure to do so. In light of this, those administering the system  will be tempted to pressure reluctant parents to "voluntarily" establish their child's paternity undermining the foundation of the system itself. If this happens courts will find the paternity acknowledgment system unconstitutional.

address issues relating to the treatment of minor parents. This is complicated, in part, by the federal law's admonition to states to more actively prosecute statutory rape when the mother is a minor, as well as its exhortation to states to pursue the baby's grandparents for support if a minor father is unable or unwilling to do so. States will have to consider what policy they will adopt in these areas before deciding how to handle this issue.

deal with the issue of custody of the child once the acknowledgment is final. Unless this issue is resolved, the specter of child snatching will weigh on the mind of the mother and may make her reluctant to sign an acknowledgment. The best policy here would be a state law giving automatic custody to the mother (if the child is a newborn) or the primary caretaker (if the child is older) unless and until the parents agree otherwise or the father brings an action.

The standard for courts and IV-D agencies in  ordering genetic tests needs to be clarified. Some states allow the parents of children whose paternity has been established (e.g., marital children and children whose paternity has been acknowledged) to use this provision to obtain genetic tests to use in a  challenge to the child's paternity. They should not be able to do this. State law should clarify that genetic tests do not need to be ordered if the child's paternity has already been established.

States law should specify that genetic test results are admissible only if performed by accredited labs which follow accepted scientific protocols.

States also need to allocate resources to pay for the tests. Denying indigents access to testing if they are unable to pay raises serious constitutional problems.

44.  Judgments, liens, and execution of judgments (levies) for child support enforcement

The states are required to develop procedures by which liens arise by operation of law against real and personal property for amounts of overdue support owed by a non- custodial parent who resides in or owns property in the state. 42 U.S.C. § 666(a)(4)(A).

The state must accord full faith and credit to liens arising in other states.  42 U.S.C. §  666(a)(4)(B).

 Federal regulations require states to have guidelines which are generally available to the public to determine whether the case is inappropriate to place liens on property for child support enforcement. 45 C.F.R. § 303.103

Administration for Children and Families Action Transmittal 97-10 requires state to have administrative process for imposing liens and forcing sale of assets in case where arrears are owed and distribute the proceeds

States have latitude in how they will implement State laws regarding liens, including what procedures they determine are necessary to maintain records of liens for unpaid child support or to ensure notice of the existence of a lien

Also, the law requires state to use administrative process to impose liens and force the sale of assets in cases where arrears are owed and distribute the proceeds. 42 U.S.C. § 666(a)(4_(B)

45.   Laws prohibiting retroactive modifications

Federal law requires states to have a law that prohibits retroactive modification of child support orders. This means that states cannot allow retroactive lowering or increasing the amount of child support. When modification of current or future support occurs, there must be the opportunity for  a hearing specifically for this purpose. States must have a law that requires a special modification hearing.  States may not increase or decrease the amount of support effective before the date a motion was filed to obtain a court hearing for modification. 42 U.S.C. § 666 (a)(9)(C), 45 C.F.R. § 303.106(a)(3).

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