This topic contains information on the following subjects:
Federal Regulation 45 CFR 303.8 governs the review and adjustment process for child support orders. Under this regulation Child Support Services (CSS) is required to:
The following categories of CSS cases are exempt from the mandatory three-year review requirement:
1. Any case for 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 custodial parent (CP), and neither party has requested a review.
2. Any cases for which support rights are not assigned to the State, if neither party requests a review.
3. Any case for 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 CSS agencies to have procedures for conducting 3-year reviews that include the following time frame requirements:
A review is appropriate if certain criteria are met.
A open case is eligible for this review if:
1. It has been least three (3) years since the last review or modification of the support order was completed. To determine if a case meets this criteria, compare the date of the most recent order or review with the date of the request for review; and
2. The case has at least one (1) child who is younger than eighteen (18) years of age.
CSS can conduct a review in less than three (3) years after the last order on the basis that a change in circumstances regarding a child or parent has occurred since the date of the order. These reviews are conducted at the request of a party.
"Review" is defined as an objective evaluation of information 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 custodial parent (CP), the noncustodial parent (NCP), or any person or entity having a standing in the case.
Once the CSS agency receives the request for review, it must assess the potential for review under the 3-year and change-in-circumstances criteria and advise the requestor of whether the review will continue or be concluded on the basis that no criteria to continue the review has been met.
If the review will continue, CSS must provide notice of a planned review to all parties thirty (30) days prior to beginning a review for both mandatory and requested reviews. During this time, the CSS agency receives information but cannot begin assessment of the collected information until thirty (30) calendar days after the date of the notice, unless all parties consent to waive the allowed period.
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.
NCGS 50-13.4 provides that child support obligations are to be made with consideration given to the reasonable needs of the child for health, education, and maintenance, as well as the ability of each parent to provide support. In the review, CSS must assess the modification potential of the support order. This assessment must include consideration of the ability of both parents to provide support and any significant change in circumstances that could impact the welfare of the child. CSS must pursue the availability of health insurance if the order includes no medical support provisions.
CSS determines whether adjustment of the support obligation might be appropriate by using the most current information available and giving consideration to any changes in circumstances in application of the North Carolina Child Support Guidelines.
In any review, CSS should evaluate the order for needs for modification in addition to the support amount. Although not a basis for the review of an order, other factors such as conversion of non-monthly obligations to monthly orders due on the first (1st) day of the month can be addressed in any proposed adjustment of an order following a review.
NCGS 50-13.7 allows a court to modify a support order at any time based on a change in circumstances that is presented by any party. When reviewing a support order, CSS must evaluate information to determine whether any change in circumstances exists that warrants modification of the order.
NC Child Support Guidelines declare that if an order was entered at least three (3) years prior to the request for review, a fifteen percent (15%) difference, either upward or downward, between the previous court order and the amount resulting from a current application of the guidelines is a presumptive change in circumstances.
If the review of an order indicates a change of at least fifteen percent (15%), CSS should pursue a request for modification based on this change alone. No other justification or evidence of change in circumstances is necessary. If less than a fifteen percent (15%) difference exists in the amount of support, CSS should not pursue modification of the order based on the three-year criteria. A request for modification based on other changes in circumstances might be appropriate.
CSS must conduct a review for both Public Assistance (PA) and Non-Public Assistance (NPA) cases if requested by either party due to a change in circumstances within less than three (3) years since the last review or modification. Eligibility for review requires only that the requestor cite a change in circumstances that occurred after the date of the last order or review of the obligation.
Documentation or verification of the change in circumstances and determination of whether the cited change is a qualified change in circumstances warranting adjustment of the order are addressed during the review.
The following situations qualify as a valid change in circumstances that would warrant pursuit of modification of a support obligation by the CSS agency:
The following situations do not qualify as a valid change in circumstances for which the CSS agency should pursue a modification of the terms of a support obligation:
For a review completed in less than three (3) years, CSS pursues an adjustment of the order if:
If the local CSS agency discovers potential barriers to the review or modification of an order, such as the noncustodial parent’s (NCP’s) incarceration, hospitalization, temporary disability, layoff, unemployment or similar problems, the review can be postponed. Local CSS must determine whether to conduct or postpone the review. If the review is to be postponed, document the particular reasons that require the review to be delayed and notify the custodial parent (CP) and NCP.
It might be appropriate to complete the review and request that the court enter a temporary order, rather than postpone the review or modification until the circumstances have changed.
Once the review is completed, all parties involved must be advised of the results of the review and allowed thirty (30) calendar days to provide additional information that could affect the outcome of the review or to challenge the CSS agency’s decision. CSS cannot initiate any action to adjust the order until the end of the thirty (30) days.
If either party provides additional information, CSS must reevaluate the case and notify the parties of the results. No requirement exists to allow an additional thirty (30) days before pursuing the adjustment of an order. However, reevaluation and notice to all parties must be completed in a timely manner.
The parties also have the right to file a motion with the court to review the case for possible adjustment of the support obligation, if they disagree with the CSS agency's decision. CSS should advise both parties that if such a motion is filed, the CSS agency must be served notice of the hearing. The agency attorney and case manager or other agency representative should attend the hearing. However, CSS cannot advise or assist any party in this action.
If the review indicates that the support obligation should be adjusted, the CSS agency must initiate appropriate action to modify the order, in accordance with NC Child Support Guidelines. For information on determining whether an adjustment is warranted, see “Standard for Pursuit of Adjustment”.
When possible, obtaining the agreement of the parties for voluntary adjustment of the obligation is recommended. However, if a voluntary modification cannot be accomplished, the CSS agency must initiate a court action. If modification is indicated but neither party states a desire to pursue an adjustment of the obligation, CSS must initiate court action to modify the order.
If a review indicates that an order should be modified, but all of the parties are in agreement that an adjustment is not desired, CSS is not required to pursue modification. Documentation of this decision must be placed in the case record and should include the following information:
If the defendant is not present and has not appeared at a prior hearing or signed a consent order for the case, signifying awareness of the action, CSS must file an affidavit with the court that indicates whether or not the defendant is in the military or that CSS does not know whether or not the defendant is in the military before a default order establishing paternity is entered. For more information, see the “Military” Chapter.
When taking court action to modify an order, the local CSS agency does not represent either the custodial parent (CP) or the noncustodial parent (NCP) in the action. The CSS attorney presents the information and evidence from the review to the court for consideration of adjudication of the support obligation.
For questions or clarification on any of the policy contained in these manuals, please contact your local county office.