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This topic contains information on the following subjects:
1. A definition of what a support order is;
2. The required information that support orders must contain;
3. Unity orders;
4. Prorated orders;
5. Changes that affect the disbursement of child support;
6. The effect of bankruptcy on the Establishment process;
7. Establishment policy concerning minor parents;
9. The time frames for establishing an obligation;
10. Scheduling an appointment with the noncustodial parent (NCP).
A "support order" is a judgment, decree, or order (whether temporary, final, or subject to modification) that is issued by a court or an administrative agency. It establishes the legal obligation for support or maintenance of a child up to the age of majority under the under the law of the issuing state.
However, if the child reaches the age of majority under the law of the issuing state and a support order has never been established, the case should be closed. See “Case Closure” in the Case Management chapter.
CSE does not establish spousal support orders. However, spousal support can be collected in conjunction with the collection of child support for that responsible parent's child.
All civil or criminal child support orders that are established or modified must contain the following:
1. A provision requiring the NCP to keep the CSE agency informed of his/her current residence and mailing address;
2. A provision requiring the NCP to keep the CSE agency informed of the name and address of any sources of disposable income and of the amount and effective date of any substantial change in his/her disposable income;
3. A provision to provide for implementation of immediate income withholding procedures as provided for in G.S. 110-136.4;
4. A provision for the custodian of the children to keep the NCP/obligor advised of the residence and mailing address of the child(ren), unless the court has determined that the NCP/obligor has made verbal or physical threats that constitute domestic violence under Chapter 50B of the General Statutes.
5. A provision requiring the NCP under order to provide medical insurance when available at a reasonable cost, to keep the CSE agency informed of any changes in the availability of health insurance, and to submit written notice of any change in the insurance coverage to the CSE agency and to the client. (Per G.S. 50-13.11.)
All child support orders established must be on a monthly basis, due and payable on the first day of each month.
“Unity orders” are child support orders for which the amount of child support is defined as a lump sum obligation. For example, an order for $300 per month that does not assign a specific amount to any child would be considered a unity order.
If the unity order is CSE-initiated (originated by the CSE agency), CSE can redirect the support to the appropriate party if all of the children who are included in the order remain with one caretaker. If the children are with multiple caretakers, CSE needs to petition the court for modification of the order so that support can be properly allocated, distributed, and disbursed among the different caretakers.
If a unity order with multiple children is not CSE-initiated and a child moves to the household of a new custodian or a change in a child's public assistance status requires a change of the recipient of child support payments, CSE petitions the court for a modification of the order to allocate specific amounts of support per child and to direct how money is to be disbursed based on the child's public assistance status. All the child support continues to go to the plaintiff who is listed in the original until the order is modified. In these situations, it is imperative that court action be initiated as quickly as possible.
"Prorated orders" are child support orders which specify that a portion of the total support obligation be allocated for each child listed in the order. For example, if the court orders the NCP to pay $300 per month for three (3) children, the court can specify that the $300 be divided equally among the children. Whenever possible, it is recommended to include language in the order specifying that the obligation be equally divided among the children. This can reduce the amount of CSE agents' time and effort that is spent petitioning the court to modify child support orders whenever a child leaves the home.
If the order is prorated and CSE-initiated, local CSE can redirect the support to the appropriate caretaker without court intervention.
If the order is prorated and not CSE-initiated, local CSE must intervene in that order to redirect child support to the appropriate party.
If a child receiving TANF becomes a SSI recipient or moves in with a new caretaker, it is necessary to examine the existing support order to determine what course of action to pursue in order to disburse child support payments. Children receiving SSI are considered Non-Public Assistance for the purposes of child support disbursement. When a child moves in with a caretaker, the CSE case needs to be examined to determine that child's share of the obligation and how it is to be disbursed. The establishment of prorated orders facilitates the disbursement of child support when these situations occur.
The establishment of paternity or support by CSE is not bound by a bankruptcy court's automatic stay. (An automatic "stay" prohibits creditors from attempting to collect debts of the individual, unless approved by the bankruptcy plan.) Bankruptcy legislation (P.L. 109-8) allows that actions to establish paternity and actions to establish child support are exempt from such automatic stays.
For more information, see the “Bankruptcy” topic in the Enforcement Chapter.
For CSE cases involving minor (under 18 years of age) putative fathers who are in school and have no resources or means to provide support, the issue of paternity can be resolved, provided the conditions stated in the Paternity chapter of this manual have been met.
Establishment of a support obligation for any minor parent must be based on the verification of income and resources to provide support.
"Retroactive support" is a support amount established for a time period before the start date (or effective date) of a child support obligation. The start date is the date when the first payment is due. Support that is effective on or after the start date is considered to be "ongoing support". A retroactive support amount is owed to the state when clients assign their rights to support to the state when they receive Public Assistance for their children. A retroactive support amount is owed to the client if CSE establishes a support amount based on the NCP’s fair share of specific expenses that were incurred by that client for the child(ren) prior to the start date of the support obligation, or by establishing an amount pursuant to the guidelines for the time period for which support is sought.
Since June 30, 1975, acceptance of Public Assistance on behalf of a child creates a debt due and owing the state. Under the authority of G.S. 110-135, if child support was required to be paid for a period when Public Assistance was received, that support is owed to the state. CSE must address retroactive support owed to the state if Public Assistance was received for a child whenever an ongoing support obligation is being established.
If an ongoing obligation is not established, CSE does not pursue retroactive support owed to the state. (For example: The court establishes paternity but does not order ongoing support because the NCP is 17 years old and in school, or the client and NCP reunite after the establishment process has begun and no ongoing support is established. In these situations, an obligation for retroactive support that is owed to the state should not be established.) If ongoing support is established at a later date and the statute of limitation has not been reached, CSE addresses the establishment of retroactive support owed to the state.
NOTE: Establishing retroactive support is not to be confused with establishing ongoing support with an effective date in the past (prior to the filing date of the complaint).
Retroactive support is owed to the State if Public Assistance was paid on behalf of the child during any period(s) prior to the start date of the support order. When clients receive Public Assistance, they assign their rights to support to the State. Because of the legal principles of "res judicata" and "collateral estoppel", CSE must address the issue of retroactive support owed to the State when establishing the initial child support obligation. If retroactive support owed to the State is not included in the initial order, the opportunity to collect it is lost.
The CSE program is entitled to pursue retroactive support owed to the State for assistance paid after June 30, 1975 (G.S. 110-135). In accordance with 45 CFR 302.45, support must be based on the child support guidelines and must take into consideration the earnings and income of the parties in the CSE case.
Retroactive support owed to the State must be determined based on:
EXAMPLE:
Prior to the establishment of the initial child support order, CSE receives verification from IV-A that the client received TANF for six (6) months.
In accordance with G.S. 110-135, retroactive support owed to the State must be established within five (5) years of the receipt of the last grant of Public Assistance. If the child has received at least one TANF payment within the past five (5) years, retroactive support owed to the State can be established from the child's birth date to the present time, even if there were breaks in the Public Assistance periods or changes in payee.
Although support can be established retroactively and owed to the State, the total amount of Unreimbursed Public Assistance (URPA) might not be recovered because support must be based on the NCP's ability to pay during the time when the Public Assistance was paid to the family. NCPs who were physically or mentally incapacitated would not be expected to pay support for any period of time when they didn't have the ability to pay.
EXAMPLE:
Prior to the establishment of the initial child support order, CSE receives verification from IV-A that the client received TANF for eight (8) months.
Based on this information, retroactive support owed to the State can be established only for the four (4) months when the NCP was not incarcerated. The total retroactive support amount owed to the State can be established at $1100.00 ($275.00/month X 4 months).
When making a decision to pursue payment of retroactive support, it is also important to evaluate the NCP's current ability to provide support. It is not appropriate to reduce a parent's current support obligation in an attempt to increase the ability to pay retroactive support. If the the court attempts to do so, the agency attorney should state the agency's objection since such action is contrary to federal regulations.
Retroactive support owed to the client (previously called "prior maintenance") is a support amount that is established to reimburse a client for expenses incurred for the child(ren) prior to the establishment of a child support order. Upon the request from a client, the local CSE agency can attempt to establish a sum for retroactive support during the establishment of the initial support order, but only if a child support order has not been established previously.
The issue can be addressed using a voluntary support agreement (VSA) through other legal proceedings. The amount of the parent's obligation can be established either:
If actual expenditures are used, clients must complete a signed and and notarized affidavit with a monthly listing of expenses and provide supporting documentation (bills, receipts, etc.) to be filed with the court.
A three-year statute of limitation exists for each claim made by the client for retroactive support beginning on the date when the expenditure was made. This should not be confused with the 10-year statute of limitation for recovering a judgment entered for the retroactive support claim.
Federal regulations at 45 CFR 303.4 require that within ninety (90) days of locating an NCP , the local CSE agency must:
To comply with this requirement, a state must meet this requirement for ninety percent (90%) of all its open cases.
Additionally, federal regulations at 45CFR303.101(b)(2)(i) require the CSE program to process establishment cases, either administratively or judicially, within the following prescribed time frames. From the date of service of process, support must be established:
Once the NCP has been located, the first step in establishing a support order is to contact him/her. CSE caseworkers can schedule an interview with the NCP immediately, or they can request that the NCP call the office first.
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For questions or clarification on any of the policy contained in these manuals, please contact your local county office. |
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