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.
Venue (the physical location where a lawsuit should be brought) must be considered. NCGS 50.13.5(f) addresses the issue of venue. 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. However, if an action for annulment, divorce, or alimony without divorce has been previously filed, any action for custody and support of the minor child(ren) of the marriage must be filed in the same location until a final judgment is made for the case,. CSS must file a motion for child support, and that action must be joined with that previously filed annulment, divorce, or alimony action.
In some cases, it is appropriate to file a complaint. CSS caseworkers should confer with the CSS attorney regarding these types of cases to decide what action is appropriate. If the decision is made to initiate a complaint, CSS must file a motion to:
1. Intervene in the previous action; and
2. Consolidate the new child support file with the one in which the previous action was filed.
By the consolidation of the two court files, the legal history of what has transpired between the parties (including pleadings, evidence and orders) is readily available.
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.
When any of the above situations apply to a CSS case, it can be difficult for CSS caseworkers to assess the case and determine the appropriate legal action. Caseworkers must seek advice from the CSS attorney to determine the appropriate legal action.
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 (VSA) is the most expeditious method of establishing a legal obligation for the responsible parent to support his/her children. If a noncustodial parent (NCP) consents to a support amount equal to or greater than the obligation that is calculated using the State guidelines, an order can be established by using a VSA. In Non-TANF cases, the VSA also can be used for an amount less than the calculated obligation, if both parties consent to that amount. In any situation where the parents agree to an amount of support that deviates from the guidelines amount, both parties should sign the VSA to signify that agreement.
For the VSA to become a legal order, it must be filed with the Clerk of Superior Court for approval by a district court judge. 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 is insufficient; a legal process must be established. Neither is a VSA alone sufficient if paternity is not presumed and has not been established.
When establishing a VSA involving a putative father who is an unemancipated minor (under the legal age of 18), CSS caseworkers must
adhere to the same procedures that apply to paternity establishment.
The VSA contains a statement that addresses the issue of payment of paternity tests. While the issue must be considered when applicable, the VSA can and should be executed even if the issue of payment of paternity test costs cannot be resolved at that time. In most instances, the issue of payment of paternity test costs will already have been addressed.
To establish the legal obligation by voluntary agreement, caseworkers must generate the Voluntary Support Agreement (DSS-4517) and obtain the responsible parent's signature on it, witnessed by a Notary Public.
Generally, a VSA should be accepted only if the amount of support is equal to or greater than the guideline amount. However, a lesser amount can be accepted with the consent of both parties in Non-TANF cases.
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
Once the father has signed an Affidavit Of Parentage admitting paternity, 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. A properly executed Affidavit Of Parentage must be attached to the Application, Summons And Order To Show Cause (DSS-4532) and filed simultaneously with the Clerk of Court. When these documents are filed with the Clerk of Superior Court, a docket number is assigned.
2. An interested party must make an application to the district court for a Summons And Order To Show Cause to be issued to the responsible parent. The district court then issues the Summons And Order To Show Cause directing the responsible parent who has completed the Affidavit Of Parentage procedure 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. 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 signed 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.
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.
This method indirectly creates an obligation for support through the suspension of sentence procedure. A legal duty to support the child can result in a court order for payment by the responsible parent. It is enforced by the threat of imposition of the criminal sanctions (imprisonment) that are authorized by law.
The State must prove in trial the defendant's willful neglect or refusal 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.
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 noncustodial parent (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.
CSS should file a motion for review for the purpose of establishing a support order, unless DSS requests "Locate Only" services to obtain information on the location of the parent or putative father.
EX: Children are placed in a foster home at the request of the signing of voluntary temporary placement agreement by the parent. The placement and services are not different from services for children in DSS custody; however, the parent maintains the custody of the children and can request their return at any time. The full range of location sources should be used in this Locate Only request.
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.