All legal support obligations established must be on a monthly basis and due the first day of each month. The Social Security numbers of the dependent children's parents are placed in the record of proceedings. Various procedures are available for the establishment of the legal obligation of a parent to support dependent children. Factors exist that CSS must consider to determine which method to use to establish the child support obligation.
This topic contains information on the following subjects:
CSS must assess cases to determine if certain legal issues exist that can affect how the child support order will be obtained.
If at issue, paternity must be established before the legal support obligation, since no obligation for support can exist without a basis in law (such as, paternity or maternity) for such an obligation. However, the procedures for establishing paternity and a support obligation can be joined.
The proper venue, or physical location where a lawsuit should be brought, must be considered. A court action for custody and support can be filed in the county where a child resides or is physically present or in a county where a parent resides. NCGS 50.13.5(f) addresses the issue of venue.
If an action for annulment, divorce, or alimony without divorce has been filed previously, any claim for child support (or custody) must be brought within that action, until a final judgment has been made for that case. See NCGS 50-13.5(f). In those scenarios, CSS must file a motion to intervene to add itself as a party to the existing case. Additional action by CSS will depend on what has already happened in the existing case. Thus, it will be necessary to review the existing court file with the CSS agency attorney to determine the next appropriate steps.
If one of the parties is under order to pay child support to the other party and later physical custody of the child(ren) changes to the other party, CSS must determine what action needs to be filed when the new custodial parent (CP) of the child(ren) applies for and receives CSS services. An action can be filed under a new complaint, or a subsequent action can be filed in the same court file under the same docket number. Workers should discuss the situation with the CSS attorney to determine the appropriate action to file.
The CSS attorney can advise the worker to file an action in the same court file. If CSS initially established the original support order, then CSS was the plaintiff in the action and the noncustodial parent (NCP) was the defendant. When custody changes, CSS must file a motion to join the previous CSS CP as a party to the action. This action should be filed prior to (or at the same time as) the action to establish support on behalf of the new CP.
Sometimes when CSS has intervened in an existing order, the roles of the parties are reversed. The NCP becomes the custodian of the child(ren) and applies for and receives CSS services. This situation can be handled legally in several ways. CSS could file a motion in the same court file to dismiss the agency's prior role as an Intervenor Plaintiff or Defendant and request to join the former NCP as a party to the action, as an Intervenor Plaintiff or Defendant. CSS could decide to file a new action in the form of a complaint.
NCGS 110-136.3(a) requires that the address of the CP (or the child, if different) must be included in all new and modified child support
orders, unless a court order prohibits the release of the address to the NCP or a court determines that notice to the NCP is inappropriate due to verbal or physical threats by the NCP that constitute domestic violence under Chapter 50B of the NC General Statutes. Additionally, the address of a child in court-ordered placement is confidential and can be disclosed by a child welfare agency as allowed by Chapter 7B of the NC General Statutes.
To determine whether an address should be included in a court order, CSS caseworkers must:
The CSS agency attorney should draft or review the order prior to approval of the order by the judge.
To determine the appropriate legal actions in these situations, caseworkers should always consult the CSS agency attorney for direction.
When a noncustodial parent (NCP) does not cooperate with the CSS agency in providing information relevant to a support and/or paternity establishment proceeding, an Intrastate Administrative Subpoena (DSS-4709) can be used to attempt to obtain the necessary information.
The requested information should be specifically identified in the subpoena. The subpoena is signed by the CSS supervisor and can be delivered to the NCP by Rule 45e of the Rules of Civil Procedure, which allows for service by sheriff or registered or certified mail (return receipt requested). A minimum of five (5) business days should be allowed for receipt.
A Voluntary Support Agreement And Order (VSA) is the most expeditious method of establishing a legal obligation for the responsible parent to support his/her children, when parents are in agreement with all terms of the order. If all parties agree to an obligation that deviates from the NC Child Support Guidelines, the VSA must include findings of fact to explain and support the deviation.
After CSS prepares the Guidelines worksheet and VSA, both parents should be allowed to review the documents to ensure that they understand and agree with the terms of the order before the VSA is approved by the judge. It is always recommended that both the CP and NCP sign the VSA as acknowledgment of their knowledge of and agreement with the order. If the parties are not in agreement with all terms of the order, court action is needed to obtain a support order.
A VSA becomes a legally binding order when it is approved by a district court judge and filed with the court. The CSS Attorney is responsible for reviewing the VSA prior to its being approved by the judge, unless the CSS Attorney has delegated this authority in writing to the CSS Supervisor.
When approved by the district court judge, the VSA has the same effect, both retroactively and prospectively, as a support order that is entered by that court following a full court proceeding on the issue of child support. For example, the VSA has the same force and effect as a divorce decree that includes an order for child support or a civil proceeding to establish support. A voluntary agreement to support that is not executed properly and filed with the court does not create a legal support obligation. A VSA alone is not sufficient to establish paternity. Paternity must be presumed or established voluntarily or judicially before a support obligation can be established. For more information, see Paternity Establishment.
Before preparing the VSA, CSS must advise the CP of the requirement to include the CP's or child(ren)'s address in the order.
If the CP objects to inclusion of the address, CSS should:
If the CP has no objections to the inclusion of the address or to any other terms of the order, CSS caseworkers should prepare the VSA with the address included for the CP and NCP to sign.
If the CP has no objections but obtaining the CP's signature within a
reasonable period of time is not possible, CSS should:
To establish the legal obligation by voluntary agreement, CSS
A separate procedure for establishing the legal obligation to support dependent child(ren) is available for CSS cases in which both parents have signed an Affidavit Of Parentage (DSS-4697 or DHHS-1660), but the father is unwilling or unavailable to execute a Voluntary Support Agreement
After an Affidavit Of Parentage has been executed and filed with the court, any interested party can petition the district court for a hearing on the issue of support of the dependent child(ren). Based on an Affidavit Of Parentage, the court can issue a support order requiring the responsible parent to make periodic support payments.
To establish the legal obligation of support by this method:
1. If the Affidavit Of Parentage is not yet filed with the court, attach the Application, Summons And Order To Show Cause (DSS-4532) and file the documents simultaneously with the Clerk of Court. When these documents are filed with the Clerk of Superior Court, a docket number is assigned.
2. The district court then issues the Summons And Order To Show Cause directing the responsible parent who has completed the Affidavit Of Parentage to appear in district court at a specified day and time and to show cause why the court should not enter an order requiring the responsible parent to support the dependent child(ren); and
3. CSS notifies the custodial parent (CP) of the hearing. CSS must ensure that the CP is advised of the requirement to include the CP's or child(ren)'s address in a support order and that the CP has completed the Custodian Address Memorandum document. They must advise the CSS agency attorney of any concerns regarding domestic violence.
4. The district court judge holds a hearing on the issue of support and could cause a support order to be entered. This order could include a provision for reimbursement of accrued maintenance. The admission of paternity made in the Affidavit Of Parentage must not be reconsidered at this hearing.
When using this method to establish a support order, an NCP can be ordered by the court to participate in job search or work activities if the NCP is not incapacitated.
A civil proceeding can be brought by any custodial parent (CP), organization, or guardian of a dependent child for the purpose of establishing a legal support obligation. NCGS 50-13.5 provides for the procedure to be followed in bringing a civil support action. This type of action requires a full civil proceeding including notice to all parties, a court hearing, the gathering and presentation of evidence, and other attendant legal procedures.
If an Affidavit Of Parentage has been executed by the parents of a child born out of wedlock, no further action for establishment of paternity is appropriate, since the executed Affidavit has the same legal effect as a judgment of paternity. CSS should file a certified copy of the Affidavit with the support action.
CSS caseworkers notify the CP of the hearing and ensure that the CP is advised of the requirement to include the CP's or child(ren)'s address in a support order and that the CP has completed the Custodian Address Memorandum document. They must advise the CSS agency attorney of any concerns regarding domestic violence.
When using this method to establish a support order, the court could order a noncustodial parent (NCP) to participate in job search or work activities if that NCP is not incapacitated.
Under Chapter 49, Article 1, of the NC General Statues, a criminal action can be initiated against a responsible parent who fails to provide support for his/her children. Any decision to pursue such a criminal action must be made in consultation with the CSS agency attorney and CSS supervisor.
In a criminal action, the CSS agency has the burden of proving beyond a reasonable doubt that the defendant neglected or refused to adequately support the child. Care should be taken to ensure that a demand for support of the child is made upon the defendant before the criminal process is begun. The defendant should be given adequate time to respond to the demand before CSS applies for a warrant.
If the court finds the defendant guilty, then the court is required to enter an order for support. NCGS 110-136.3 (a) requires that the address of the custodial parent (CP) or child(ren) be included in a criminal support order, unless issues regarding domestic violence involving the noncustodial parent (NCP) prohibit inclusion. Prior to the hearing, CSS must ensure that the CP is advised of the requirement to include the CP's or child(ren)'s address in a support order and that the CP has completed the Custodian Address Memorandum. They must advise the District Attorney of any concerns regarding domestic violence.
When support is established through criminal proceedings, the District Attorney acts on behalf of the State and the person who is bringing the action.
It should be noted that when an individual is incarcerated for nonpayment of the ordered support, no arrearages accrue unless the NCP is on work release or has other resources with which to make support payments.
An order by the juvenile court placing a child in the custody of the County Department of Social Services (DSS) under the provisions of NCGS 7B-904(d) should contain a provision for the support of the child (if the parents are available for support.) NCGS 7B-904(d) states:
"Whenever legal custody of a juvenile is vested in someone other than the juvenile's parent, after due notice to the parent and after a hearing, the court may order that the parent pay a reasonable sum will cover, in whole or in part, the support of the juvenile after the order is entered. If the court requires the payment of child support, the amount of the payments shall be determined as provided in NCGS 50-13.4(c). If the court places the juvenile in the custody of a county DSS and if the court finds that the parent is unable to pay the cost of support required by the juvenile, the cost shall be paid by the county DSS in whose custody the juvenile is placed, provided the juvenile is not receiving care in an institution owned or operated by the State or federal government or any subdivision thereof."
If a child has been placed in the custody of a county Department of Social Services (DSS) pursuant to this statute and provisions for support were not included in the order or are not sufficient, the county DSS should prepare and file a motion for review of the case.
The motion for review should set out that a provision for support was not entered, citing the statutes requiring such a provision. If the motion for review is a request for modification of the current support order, the basis for modification should be stated in the motion. If a child support order does not include a provision for medical support, the reason should be clearly documented.
If a referral is made to CSS for the pursuit of child support, CSS must contact DSS to confirm what services are being provided for the child(ren), and CSS must determine whether the confidentiality provisions of Chapter 7B of the NC General Statutes protect addresses or other information from being released.
According to NCGS 50-13.7: "An order of a court of this State for custody or support, or both of a minor child may be modified or vacated at any time upon motion in the cause, and a showing of changed circumstances by either party or anyone interested."
Often divorce judgments do not provide for support of the children of the marriage or do not provide for adequate support payments commensurate with the parents' ability to pay, or they set child support at zero dollars ($0.00). In some cases, the divorce improperly states that no children were born and often Social Security numbers are not provided for the plaintiff and the defendant. In such cases, the court can be petitioned to modify the divorce order.
To request modification to a divorce or other existing support order, CSS must motion the court to intervene in the matter on behalf of the party requesting CSS services. The granting of this motion causes CSS to become an Intervenor party to the action for child support. The CSS attorney represents the agency in this action.
If a divorce order exists but it is silent as to the issue of child support, CSS can proceed with a new action for establishment of child support.
If an action for divorce has been filed but no order has been entered, the action for child support must be joined with the action for divorce, per NCGS 50.13.5(f).
If the custodial parent (CP) does not provide a copy of the child's birth certificate and the child was born in North Carolina, CSS caseworkers can obtain a copy from the Register of Deeds in the child's county of birth or from NC Vital Records
For questions or clarification on any of the policy contained in these manuals, please contact your local county office.