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This topic contains information on the following subjects:
1. Review and adjustment of support order amounts;
2. Exemptions to the mandatory review requirement;
3. Review and adjustment time frames;
5. Pre-review notification requirements;
6. Case assessment/review policy;
Federal Regulation 45 CFR 303.8 governs the review and adjustment process for child support orders.
When modifying an order where the ordered payments for the support of a minor child are not monthly, due, and payable on the first day of each month, caseworkers are to request that the order be modified to reflect a monthly obligation, due and payable on the first day of each month. This is not a basis for modification of an order; however, any order that meets the criteria for modification should be reviewed for payment date and frequency change, if applicable.
The following categories of cases are exempt from the mandatory review requirement:
1. Cases in which child support rights are assigned to the state, but a IV-A, IV-E, or Title XIX agency has made a finding of Good Cause that a review is not in the best interest of the child and cannot proceed without risk of harm to the child or caretaker, and neither party has requested a review.
2. Cases in which support rights are not assigned to the state, if neither party requests a review.
3. Any case in which medical support rights are assigned to the state, child support is not assigned to the state, the child support order contains a provision for health insurance, and neither party requested a review.
Federal Regulation 45 CFR 303.8(e) requires CSE agencies to have procedures for conducting 3-year reviews that include the following time frame requirements:
The following criteria identify eligible cases:
1. NPA cases, TANF cases, Foster Care cases, Interstate Initiating cases, and Medicaid cases including support that contain an order that is at least thirty-five (35) months old;
NOTE: This gives local CSE the opportunity to process the case before the end of the 36-month time frame.
2. Cases in open or re-open status; and
3. Cases in which the children are not older than seventeen and a half (17.5) years of age.
Each party must be notified of a planned review at least thirty (30) calendar days before the review commences. A review is defined as an objective evaluation of information that is necessary for the application of the state's guidelines for support to determine an appropriate support award or the availability of medical support. "Party" is defined as the client, NCP, or any person or entity having an interest in the case.
Advance notice must be provided prior to conducting a review, regardless of whether the case is proceeding with a mandatory review or the review was requested by one of the parties. Once pre-review notifications have been issued, a request for review cannot be withdrawn by the requesting party. The assessment/review process must be completed and the parties informed of the results. The CSE agency must not commence a review until the thirty (30) calendar days have elapsed, unless both parties consent to waive the 30-day waiting period.
Upon identification of the cases that meet the criteria for review, local CSE must assess the modification potential of each case. This assessment must include consideration of both parties' ability to provide support, as well as any significant changes pertaining to the welfare of the child(ren).
1. Local CSE obtains information pertaining to both parties' ability to provide support. Additionally, the availability of health insurance is pursued if no medical support provision is included in the order. If health insurance is being added to an obligation or any change in the actual premium cost has occurred, the appropriate credit is applied to the computation of the support obligation. Division of Employment Security (DES) records and other wage data for either party are used to ascertain significant changes in income and/or resources. If a TANF client has earned income, the information is verified through IV-A or other resources.
2. If the review of DES records or other wage data indicates significant changes in either parties' income, every effort is made to verify financial information for the adjustment process.
3. Some methods of verifying income include written verification from employers, tax records, bank statements, health insurance coverage verification, or other financial information that can be subpoenaed. Written verification from employers should be the primary source of third party verification since under the provisions of G.S. 110-139(c1), North Carolina employers are required to cooperate with the CSE agencies in providing identifying information pertaining to NCPs as well as income information. The Employer Letter (DSS-4685) signed by the NCP's employer or a written, signed statement from the NCP's employer attesting to income is admissible evidence if the case should result in court action.
4. Local CSE agencies should never introduce the actual DES record as evidence in court. However, the Employer Letter (DSS-4685) signed by the NCP'S employer or a written, signed statement from the NCP's employer attesting to the NCP's income is admissable evidence if the case should result in court action.
G.S. 50-13.7 allows a court to modify a support order based on a change in circumstance of either party. Upon determination of significant change in circumstances by the CSE caseworker, adjustment should be considered.
Circumstances might warrant a review more often than every three (3) years, such as:
If the local CSE agency discovers obvious barriers to reviewing the case, such as the NCP’s incarceration, hospitalization, temporary disability, layoff, unemployment or similar problems, the review can be postponed. Local CSE must document the particular circumstances that require the review to be delayed and notify the client and NCP.
Sometimes the barrier to review can be a long-term situation of more than three (3) years duration, such as the incarceration of an NCP who is not eligible for work release or parole during the three-year period. If the situation can be substantiated and verified, local CSE must document the case accordingly so that it is not identified for review for the next thirty-five (35) months.
Once the review is completed, all parties involved must be advised of the results of the review. This applies to cases for which reviews have been completed but did not qualify for adjustment as well as to cases for which adjustment appears to be justified. Both parties must be allowed thirty (30) calendar days to provide additional information that might affect the outcome of the review. No action to adjust the order can be taken by the CSE agency until the end of the thirty (30) days.
Parties must also be informed of their right to initiate proceedings to challenge the decision within thirty (30) calendar days from the date of the notice of the results of the review. The court is the appropriate forum to review the adequacy of the support award absent an action of the CSE agency to adjust the order.
If either party disagrees with the decision of the CSE agency, both the client and the NCP have the right to file a motion with the court to review the case for possible adjustment of the support obligation. Both clients and NCPs should be instructed to notify the CSE agency if such a motion is filed so that the agency can be present at the hearing. Any time a party receives notification of an adjustment of a support order, a copy of the document must be included.
Following the review, the CSE agency must adjust the order or determine that there should be no adjustment in accordance with support guidelines. This would include determination of the need to include health insurance in the order. The adjustment procedure should be considered an administrative process to the extent possible. Every effort should be made to obtain a voluntary adjustment. However, if a voluntary modification cannot be accomplished, a court action must be initiated.
The minimal amount of potential increase or decrease in the support obligation should be equal to at least fifteen percent (15%) of the obligation to justify an attempt at adjustment. This threshold is used only as a basis to justify proceeding with a petition for adjustment, not as a criterion for deciding whether to review or as a restriction placed on the court to adjust the order. This standard protects the local CSE agency from frivolous requests for review, but at the same time allows those requests that are substantiated to be processed.
A review of the parties' income might indicate the potential for a downward modification. If so, the local CSE agency must advise both parties that a downward adjustment could be warranted, subject to the discretion of the court. Local CSE should provide the parties with information that is relative to the filing of the Motion And Notice For Modification Of Support Order (AOC-CV-600). The local CSE agency in no way represents the NCP in this action. If the local CSE agency is notified of a hearing on the matter, the CSE attorney must be present to represent the agency as in any other legal action.
A review for possible adjustment of a support order is conducted in the county that has the order. The county that has the support order is responsible for the review and adjustment process and, if necessary, should seek assistance from the county where the client resides.
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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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