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46.   Legal notice of hearings (service of process)

The Fifth and Fourteenth Amendments to the Constitution state that the governments (state nor federal) shall not deprive persons of life, liberty or property without due process of law. For the most part, this means that the government cannot decide to take any action that would result in the taking of a liberty interest without giving that person a hearing, notice that the hearing is to take place, and an opportunity to be heard at that hearing.

Withholding must be carried out in full compliance with all procedural due process requirements of the State. 45 C.F.R. § 303.100(6).

The state must send advance notice in cases where there is not an order for immediate income-withholding, but instead there is an “initiated withholding”.  Initiated withholdings can occur when the non-payor fails to make a payment at least equal to one month’s support.  Initiated withholdings can also occur when the non-custodial parent requests income-withholding, or when the custodial parent requests income-withholding. 45 C.F.R. § 303.100(d).

The advance notice must inform the non-payor:

(1) of the amount of overdue support hat is owed;

(2) that the withholding applies to any current and future employers;

(3) of the procedures available for contesting the withholding;

(4) that the only basis for contesting a withholding is a mistake of  fact;

(5) of the time period to contest and of the fact that failure to contest within the time period   will result in the state notifying the employer to begin the withholding process.  45 C.F.R. § 303.100(c)(3)(d)

The state must notify the employer to initiate withholding within 15 days after the date when the non-payor has failed to make ordered support payments at least equal to support payable for one month, or the non-payor has requested the withholding to occur, or the custodial parent has requested the withholding to occur. 45 C.F.R. §303.100 (d)(2)(ii).

The state must develop procedures for use when the non-payor contests the withholding. 45 C.F.R.

§ 303.100(e).

Within 45 days of sending the advance notice to the non-payor, the state must:

- provide an opportunity for the non-payor to present his/her case to the state

-make a determination about whether or not the withholding should occur based on an evaluation of the facts, including the statement from the non-payor.

-notify the non-payor if the withholding is to occur and include in the notice when the withholding will begin and what information was given to the employer.

Federal law requires states to IV-D applicants and parties (includes TANF recipients) to IV-D cases with a notice and with a copy of any order establishing or modifying or determining that there should be no change in the amount of child support ordered. The state must furnish this information within 14 days after the issuance of the order or modification or determination.  42 U.S.C.  § 654(12).

47.   Location of absent parents

The Federal Case Registry of Child Support Orders contains 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. The Federal Parent Locator Service can match orders in the Federal Case Registry with information contained in the National Directory of New Hires, and other available data, to quickly track down any defaulting parent. The Federal Parent Locator Service sends the locate information on to the states which will then be able to enforce the order through income-withholding or other means.

Sections of 42 U.S.C. § 653 require the Federal Parent Locator Service to take the responsibility for locating missing parents through a variety of existing data sources. The Federal Parent Locator Service will now contain a National Directory of New Hires and a Federal Case Registry of Child Support Orders. The National Directory of New Hires will contain employment information about every person recently hired by any legitimate employer anywhere in the United States. The Federal Parent Locator Service must obtain and transmit data to any authorized person regarding: information on or facilitating the location of:

(1)  any individual who is under obligation to pay child support;

(2)  any individual who is being sought in order to establish an obligation;

(3)  any individual to whom such an obligation is owed;

(4)  any individual who may have parental rights.

The data to be collected includes: social security numbers, most recent address, name address and employer identification number of the individual’s employer, wage information, status of health care benefits, other employment benefits, assets information, debt information. 

 Information in each State Registry is shared with the Federal Parent Locate Service, IV-A (welfare agency) and Medicaid agencies in the state and in other states, and with other state agencies and interstate information networks involved in child support enforcement.

42 U.S.C. § 653(j)(3).Federal law  mandates a contractual agreement between the Federal Parent Locator Service and the state department of employment services for location information about non-payors. Also mandated is a contract between U.S. Department of Health & Human Services and the U.S. Department of Labor to access location and employment information about non-payors who are federal employees by 11/1/98. 42 U.S.C. § 653. The law also requires listing of parents' Social Security numbers on records attached to child's birth certificates. Bureau of Vital Statistics must provide this information to IV-D agencies upon request. 42 U.S.C. § 405.

Requires state to repeat location attempts in cases where previous location attempts failed, but adequate identifying information exists, quarterly when previous attempts were unsuccessful.

45 C.F.R. § 303.3(b)(5).

Allows states to close cases if after three years of quarterly checks, using multiple locate sources, to locate the absent parent are all unsuccessful. 45 C.F.R. § 303.11(b)(5).

 “Location” is defined as finding the physical whereabouts of the absent parent or the absent parent's employer, other sources of income or assets as necessary to take next appropriate action. 45 C.F.R. § 303.3 (a). Federal regulations  require IV-D agencies to use appropriate federal, interstate and local location sources such as state agency records etc. 45 C.F.R. § 303.3 (b)   All sources must be checked within 75 days. This includes using the Federal Parent Locator and seeking a State Parent Locator from the state where the absent parent lives.  45 C.F.R. § 303.3(b)(3). States are to refer the case to the interstate central registry for a state parent locator within 20 days of determining that the absent parent is in the other state. 45 C.F.R. § 303.7(b)(2). The state in which the absent parent lives must attempt to locate the absent parent at least quarterly. 45 CFR  § 303.3 (a)

States are required to run automated location attempts quarterly or immediately upon  receipt of new information which may aid in location, whichever occurs sooner. 45 CFR  § 303.3(b)(5).

New additions in federal law require states to have a process for allowing  access to information in state or local government records including tax, property, licensing, employment, motor vehicle, corrections, public assistance and vital statistics records. 42 U.S.C. § 653.

States must develop procedures so that they have access to information for private entities such as financial institutions. 42 U.S.C. § 666(a)(17).

New sections in federal law expand the Federal Parent Locator Service to include a Federal Case Registry of Child Support Orders by 10/01/98. Federal Case Registry is created from states’ Order Abstracts which make up the State Case ( Order) Registry. 42 U.S.C. § 653(h)

Persons authorized to access the information contained in the Federal Parent Locator Service include: agents and attorneys of the state under a duty to collect support; the court seeking to serve an order or action in the case; the resident parent,  legal guardian, attorney or agent of the child; the state agency administering the program. 42 U.S.C. § 653(c).

For all IV-D cases or any applying for services, the agency must attempt to locate all absent parents or sources of income and/or assets when location is necessary to take action.  45 C.F.R. § 303.3(b).

The IV-D agency must use appropriate location sources including the Federal Parent Locator, interstate location networks, check with social services agencies, check with friends and relatives of the non-payor, check with employers (current and past), check the local phone company, the U.S, Postal service, banking institutions, police and parole agencies, driver’s licenses, unemployment insurance, income taxation and other resources. 45 C.F.R. § 303.3(b)(1).

The agency must access all appropriate location sources within 75 days of determining that location is necessary. 45 C.F.R. § 303.3(b)(3).

48.   Modification for increase in child support payments

Federal law requires Child Support Enforcement Agencies to provide services relating to modification of orders  to payees. 42 U.S.C. § 654 (4)(A), 45 C.F.R. § 303.8.

Federal law also requires IV-D agencies to review individual cases if a parent requests or if there is an open IV-A (welfare) case for determination of appropriate amount of award for child support.  This can be done at least every three years or sooner if there is a change of circumstances. 42 U.S.C. § 666(a)(10), 45 C.F.R. §§ 303.8(c), 303.8(e).

 If the review indicates that an adjustment is in order, the IV-D agency is to seek an adjustment under the state's child support guidelines. 45 C.F.R. § 303.8(c)(8).

The state may 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).

Either parent can request a review at any time when an inconsistency exists between the current support award amount and the amount of support that would be the result of an application of the state guidelines.  45 CFR §§ 303.8(d)(1)(I), 303.8(d)(2).

Best Practices:

Custodial parents will be able to obtain a review and adjustment only if they ask for one. While the law requires that these parents be informed of their right to a review at least once every three years, it doesn't specify how this is to be done. That is up to the state. How the state does this is important. Individual, written, simple to read notices, (available in appropriate languages) should be mailed to the custodial parent around the time she/he is eligible to request a review.

The same considerations apply to non-custodial parents. They are entitled to notice of  their right to seek an adjustment.  How and when the notice is given may well determine whether they understand and can effectively exercise their rights. Individual, written, simple to read notice (in appropriate languages) should be mailed to non-custodial parents around the time they are eligible to request a review.

After receiving the notice, custodial parents will have to decide whether or not to exercise their right to a review and adjustment. It is hard for custodial parents who have no knowledge of the income and resources of the other parent to know whether they should seek such an adjustment. Many states deal with this problem by requiring parents to periodically exchange financial information.

The specifics of a system to challenge erroneous adjustments needs to be developed. Especially with the automated option, there is a possibility that factual errors will be made and will need to be quickly corrected. In addition, computational errors can occur and there needs to be a process in place for swiftly correcting them.

49.   National Directory of New Hires

Also within the Federal Parent Locator Service is a data base called the National Directory of New Hires. This data base was established October 1, 1998.  Data contained within the National Directory of New Hires is to include a list of multi-state employers that report to the Directory, and the State to which each employer has designated to receive that information. The information is then to be entered into the data base within 2 days of receipt. 42 U.S.C. § 653(i)(2).  

              The information compiled by the National New Hire Directory is then to be transmitted to the Social Security Administration for verification of key information, such as name, social security number, and birth date of individuals as well as employer identification numbers of employers. 42 U.S.C. § 653(i); 42 U.S.C.§ 653a(g)(2) ;  45 C.F.R. 303.108.             

              Combining the Two Directories- The Federal Parent Locator Service is required to match orders in the Federal Case Registry with information contained in the National Directory of New Hires, and other available data, to quickly track down any defaulting parent. This process is to occur every two days. The Federal Parent Locator Service sends the locate information to the states which is then used to enforce the order through income-withholding or other methods. 42 U.S.C. § 653(j)(2).

              Abstracts of information contained in the State Registries are sent to and entered into the Federal Case Registry of Child Support Orders. In addition, information in each State Registry is shared with the Federal Parent Locate Service (FPLS), IV-A and Medicaid agencies in the state and in other states, and with other state agencies and interstate information networks involved in child support enforcement. 42 U.S.C. § 653(j)(3), 45 C.F.R. § 303.108.

50.   Office of Child Support (OCSE), Division of U.S. Department of Health and Human Services, responsibilities

Federal rules require OCSE to supervise state enforcement and establishment activities, to initiate audits, allocate federal reimbursement, and incentives and assist states with technical needs.  45 C.F.R. § 305.0.

Minimal Staffing Requirements: states are required to have adequate staff to enforce collections of support via income-withholding or other enforcement methods. 45 C.F.R. § 303.20(g) states that if as a result of an audit it is found that the state has inadequate staff to carry out its responsibilities the Secretary of the US Dept. of Health and Human Services may set standards for the state to follow to ensure adequate staff. 45 C.F.R.§ 303.20.

51.   Payor service fees allowed for processing IV-D child support cases by the Child Support Enforcement Agency

Federal law allows states to charge payors a late fee for enforcement actions and allows them to charge the late payor a fee---uniform in percentage and set by the state (no judicial discretion as to amount) at no less than 3% and no more than 6% of the overdue support. 42 U.S.C. § 654(21)

The state must assure that the fee will be collected in addition to, and only after full payment of the overdue support. 42 U.S.C. § 654(21)(B).

The imposition of fees can not directly or indirectly result in a decrease in the amount of support paid to the family.  42 U.S.C. §654(21)(B).

The fee must accrue as arrearages, and cannot be reduced upon partial payment of arrears. The fee can only be collected after the full amount of overdue support is collected and all notice requirements have been met. 45 C.F.R. § 302.75(b)(2).

If the state does impose fees upon late payors, the state must reduce its expenditures claimed under the Child Support Enforcement program by the amount of fees collected. 45 C.F.R. § 302.75(b)(6).

See the section entitled “Status of Child Support Enforcement” for a state by state breakdown on fees.          

52.   Payors who place assets in someone else's name: (fraudulent conveyance) enforcement techniques

Federal law requires states to have laws under which fraudulent transfers of assets to avoid payment of child support can be voided. If the state knows of a transfer by a child support debtor and a prima facie case for fraudulent conveyance has been established, the state must either seek to avoid the transfer or obtain a settlement in the best interest of the child support creditor. 42 U.S.C. § 666(g).               

Best Practices: Aggressively implement and publicize procedures for voiding the fraudulent transfer of assets by obligated parents to family members, girl/boy friends, etc. Too often, an obligor gets away with non-payment of support by transferring all his/her assets to someone else so that they cannot then be seized or be subject to a lien to pay  arrears. Both the obligated parent and the person who accepts the fraudulent transfer should be punished for this conduct.

53.   Posting of bonds

This remedy is often used for self employed non-payors or for those who are repeat offenders (i.e. “Job hoppers” who quit job after income-withholding orders are issued, etc.).  Under federal regulations, states must have procedures which require that absent payors post security, bond, or some other guarantee to secure payment of overdue support. The guidelines for determining when a case is appropriate for application of a bond requirement must be generally available to the public. 45 C.F.R. § 303.104.

54.   Privacy safeguards

Effective 10/01/97 states must have safeguards on information where a protective order has been entered or if release may result in harm. These provision are to ensure safety of families affected by domestic violence especially since the new federal welfare laws allow non-custodial parent to seek location of custodial parents through the federal parent locator system Federal law about good cause may exempt some families from having to cooperate to establishes or enforce child support if they have been affected by domestic violence this covered under federal law.  42 U.S.C. § 653(m).

55.   Publicity for child support enforcement services

Federal law requires states to publicize child support enforcement and establishment services.

States must regularly and frequently publicize, through public service announcements, the availability of child support services.

Public service announcements must include information as to application fees, and a telephone number or postal address at which further information may be obtained.

42 U.S.C. § 654(23),  45 C.F.R. § 302.30.

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