EXPEDITED CHILD SUPPORT
An Overview of the Commonwealth Countries'
and United States' Procedures for
Establishing and Modifying Child Support
The United States federal government's significant involvement with child support dates back to 1935 when the Aid to Families with Dependent Children Act (AFDC) was enacted. Since that time, the AFDC program has developed to assist the children of a parent who has left the home and is not making support payments. In David Chambers' view, the program is
"oddly conceived ... [providing assistance] solely to low-income single-parent families, not all low-income parents with children."
The federal government enacted the Child Support and Establishment of Paternity Act in 1974 and, through this legislative initiative, Title IV-D of the Social Security Act came into being in 1975. The purpose of Title IV-D is to establish and enforce support obligations owed by non-custodial parents to their children and former spouse. This legislation also establishes the federal standards for child support; these standards must be met in order to qualify for the federal contribution of 75 percent to the state's AFDC budget. The federal Child Support Enforcement Program was established pursuant to this legislation. The four major services provided by the Child Support Enforcement Program are locating absent parents, establishing paternity, establishing child support obligations and enforcing child support. The IV-D system applies to anyone who has children and requests the IV-D services; however, in the case of social assistance recipients, the IV-D system and the associated processes °set up to administer the IV-D program apply automatically. In other words, a high proportion of Title IV-D cases are people also collecting social assistance.
In 1984, the federal government passed the Child Support Enforcement Amendments, which required the states to provide child support guidelines to judges; however, the guidelines were not to be binding on the judiciary. The 1984 legislation also required that every state enact and implement expedited processes, either within the judicial system or through an administrative agency, for obtaining and enforcing support orders and, at the discretion of the state, for establishing paternity. The time limits for processing Title IV-D cases set by federal regulations are as follows:
- 90 percent within three months; and
- 100 percent within 12 months.
Since that time, changes have occurred for Title IV-D cases. The Family Support Act 1988 required the states to put certain procedures into place for periodic modification of child support. Further, the states were required to implement plans by 1990 outlining how child support orders would be reviewed and/or adjusted. Some state governments have chosen to set up expedited child support processes within the existing court structures, whereas others have opted for the administrative approach. Both approaches are surveyed in the following sections of this report.
Most American administrative child support systems deal with establishing, modifying and enforcing child support orders, either as an automatic course of action for a Title IV-D case or in response to an application for services from a parent in all cases. In most states, those parties going through a divorce deal with all of the issues, including support, through the court process. For this group of people, it is generally possible to request the services of the Child Support Agency for enforcement and/or eventual modification after the court has issued a support order. In some situations, once the court has issued the support order, further requests for modification must also be heard or at least signed off by a judge.
In these cases, the Child Support Agency is often set up to commence court proceedings, making it clear throughout the process that the agency is not representing either of the parents. Most child support agencies do not keep thorough statistics on who uses the administrative process as opposed to going through the court instead; however, various officials from the states' child support agencies speculate that the vast majority of users of the administrative process come from the ever-growing single parent population, usually from a lower socioeconomic position.
The Basic American Administrative Framework
Most American administrative systems follow certain general steps with some variation from state to state. The United States Department of Health and Human Services, in conjunction with the Office of Child Support Enforcement and the National Institute for Child Support Enforcement, outlined these steps as follows.
In Alaska, the Child Support Enforcement Agency operates as a division of the Department of Revenue. The duties and responsibilities of the agency are quite far ranging and include establishing, enforcing and administering child support obligations for Title IV-D cases. This system also manages out-of-state requests. Questions of paternity will also be processed through the system. Other family matters continue to be dealt with through the court process.
The Administrative Process
The child support program is administered by a system of 24 teams, each with an exclusive area of responsibility. As in other states, custodial parents may apply for the services of the agency; if they are on social assistance, the process is triggered automatically. The Alaskan administrative process follows the basic steps, as outlined below.
At the initial stage, the intake team sets up the case and determines whether the case is
- a child support case; or
- a paternity case.
If the case is a child support case, the file will be entered into an automated computer system which provides employees of the Child Support Enforcement Agency with basic case information including a brief case history, location information and addresses. At this stage, a corresponding hard file is also generated to include other pertinent documents.
Once this information is compiled, the intake team decides whether the case should be transferred to the establishment team or, in the case of an existing court order or ongoing court case, to the modification team.
If the court has not already entered a support order for the case, the establishment team assumes conduct of the file at this point in the process. An establishment case is started against the obligor (the non-custodial parent). The case data will be verified and jurisdiction confirmed (the interstate team deals with any case over which Alaska has no jurisdiction).
The establishment team's two primary focuses are location of the obligor and the obligor's ability to pay, the latter being determined through income research and a calculation of the amount of child support based on criteria set out in Civil Rule 90.3.
Once the amount of support has been calculated, the enforcement team sends the obligor a notice of finding and financial responsibility (an NFFR), which will become a binding administrative order if not disputed. A copy of the NFFR is also sent to the obligee (the custodial parent) and at this point, either parent has the right to rebut the amount as calculated. If the amount is not disputed within the 30-day time frame specified on the notice, the NFFR becomes a binding administrative order on the obligor and the enforcement team will take over conduct of the file.
If either the obligor or the obligee wishes to dispute the assessed amount appearing on the NFFR, he or she has the right to attend an informal conference with the case officer who has been managing the file through the establishment team.
The informal conference is generally only attended by one of the parents, who is entitled at this stage to produce any relevant financial information which he or she feels has been overlooked. The case officer will subsequently recalculate the amount included on the NFFR.
If the informal conference does not settle the issues for the dissatisfied party, he or she can request a formal hearing before an external administrative hearing examiner, who is an experienced attorney appointed to the position by the Commissioner, who oversees all of the agencies throughout the state.
The assistant in this process is called a hearing officer. This person is technically a member of the Department of Revenue with a legal background. The officer attends a formal administrative hearing for the purpose of representing the interests of the child in the process. All of the officer's functions relate to the hearing stage of the process. When the agency receives a request for a formal hearing, the file is transferred to a hearing officer, who reviews the file and conducts a form of quality control over the file to determine whether or not it is worth proceeding to a hearing. The hearing officer can either file a motion to dismiss or a motion for summary adjudication with the hearing examiner. The documents used in this part of the process are very similar to court documents.
If the matter proceeds to a hearing, the hearing officer then prepares a written history of the case which serves as an overview of the case for the hearing examiner. Copies of the overview are sent out to the parties and, at this point, a hearing date is set.
The parties have the option of attending the hearing in person or over the telephone. Alternatively, a party can send an attorney to act on his or her behalf. The hearing itself is generally conducted in a room with an oval-shaped table surrounded by approximately six chairs. The hearing officer and the parties will usually be in attendance. The hearing examiner will then issue an administrative order that either upholds or modifies the existing child support order. If a party is still dissatisfied after the hearing examiner has rendered a decision, he or she has a right to request a further review by the Commissioner. It is also possible to file an appeal in superior court within 30 days.
The Role of the Court
In the situation where other issues such as custody and visitation are also being disputed, the case would be processed through the courts. The judge then has the power to halt the administrative process for that case. The usual practice, however, is that all other issues would be determined by the judge and the issue of child support referred to the administrative system pursuant to a court order. It seldom happens that a judge will set an amount of child support. There is case law in Alaska that establishes that a court order cannot be modified administratively but, rather, must be referred back to the court. In this situation, the court hearing would be facilitated in part by the child support personnel through filing of the motion to modify. Even in the situation where the court manages a file, Civil Rule 90.3 determines the amount of child support assessed.
In Maine, the Division of Support, Enforcement and Recovery, part of the Department of Human Resources, manages child support for Title IV-D cases. The state's administrative child support scheme, like other states' schemes, was modelled after the system operating in Washington state during the 1970s. Since that time, the Maine scheme has undergone some reform, including certain streamlining measures.
For establishment cases, the current procedure at the outset is that the non-custodial parent is sent a notice of intention to establish a support order, automatically in a Title IV-D case or upon the custodial parent's application for services in other cases. The notice states that a child support amount is going to be assessed. The non-custodial parent is also asked to supply income information on the statement of resources form provided. Finally, it is left to the non-custodial parent to request a hearing at this stage. In the past, a hearing was set in all cases and at this stage, the non-custodial parent was notified about the hearing date.
This approach was seen to be lacking for a couple of reasons. First, if the non-custodial parent was not served with notice of the hearing in a timely fashion, the hearing would then have to be rescheduled. Second, it was found that, often, the non-custodial parent was not attending at the prearranged hearing. The system was considered somewhat inefficient in this regard and, as a result, the onus for requesting a hearing has now been placed on the non-custodial parent instead.
Consequently, the non-custodial parent now has 30 days within which to request the hearing. A hearing is conducted by a hearing officer, who usually does not have legal qualifications but rather is an employee of the Department of Human Resources. Rules of evidence do not apply at the hearing and it is quite informal in its structure. The representative of the state initiates the hearing by presenting pertinent documents and outlining the amount of support the state has assessed.
If the request for a hearing is not received by the department, a decision will then be issued that incorporates the findings of the proposed support order. A copy of the decision is then sent to both parents by registered mail. At this point, the department is entitled to enforce the order.
Generally speaking, a modification of child support takes place when there is evidence to suggest that the amount of support assessed is based on currently inaccurate financial information. Even in a Title IV-D case, for which federal legislation provides for a periodic review, regular review has been found to be overly cumbersome in many cases. Consequently, the review takes place as needed.
In the case of divorce, the child support administrative process is not available for the custodial parent until after the divorce has been granted through the court process. If a parent then requests the services of the department, the administrative enforcement procedures kick in. The custodial parent might also request assistance with future modifications to the court-ordered support. In this case, the department would initiate the court process and follow it through at that level. Alternatively, the parent might decide to retain private counsel for the modification and utilize the administrative process for enforcing the order.
The Montana administrative model incorporates attempts at early resolution of the issues prior to a need for an actual administrative hearing. The Child Support Enforcement Division of the Department of Social and Rehabilitation Services administers the program. The authority is found in the Montana Code. As in other systems, the administrative child support process for establishing child support commences with the notice of financial responsibility. The person in receipt of the notice then has 10 days to respond. If the person does not respond, the default order will ultimately be sent to an administrative law judge.
Prior to a hearing before the administrative law judge, the general practice is to hold a prehearing conference aimed at resolving as many issues as possible and to sort out the evidence that is to be presented during the hearing. The administrative law judge directs this conference; however, the format is much more casual than the hearing itself. It is also possible that the case workers will conduct preliminary negotiations with the parties, either separately or together. The whole process is aimed at resolving outstanding issues as much as possible without the need to go to a hearing.
Administrative law judges are the hearing officers for the purpose of child support appeals. The Office of the Administrative Law Judge is directed by a separate agency and is responsible for conducting hearings about paternity, establishment and modification. The administrative law judges generally have family law experience.
The Modification Process - The Arbitration Master
The Montana administrative modification process was set up after the establishment system was already operational. At the time the establishment system was set up, the possibility of incorporating further formal alternative dispute resolution mechanisms in the administrative framework was not considered. Therefore, there exists some difference between the establishment and modification systems within the state. The Review and Modification Unit of the Child Support Enforcement Division conducts any reviews, whether the required three-year review for IV-D cases or, in other situations, a requested review. The cornerstone of the modification process is the use of the arbitration master to effect resolution of the issues.
Prior to the arbitration master's involvement in a modification case, an investigator of the Child Support Enforcement Division reviews the file and other available records. The investigator also looks at issues of jurisdiction, custody arrangements and whether either parent's financial situation has changed since the order was established. Administrative notices are then served on both of the parties and, if necessary, a party can be ordered to produce any required financial information. The parents are then telephoned individually about the proposed calculations of the child support to be payable. At this stage, it is possible that the parents may enter into a negotiated settlement through one-to-one discussions with the investigator. If there is no agreement reached, the file is transferred to the arbitration master. The investigator prepares the documents to be forwarded and the arbitration master supervises the exchange of documents between the parties. This unit also holds negotiations, usually by telephone.
Only after this extensive initial screening does the arbitration hearing take place. If there is still an objection, the matter will proceed to the arbitration hearing. The authority for the arbitration master program is found in the Administrative Rules of Montana. The arbitration master idea was created as a response to the federal mandate to review orders every three years; it was estimated that approximately 7,000 modification orders a year would have to be dealt with.
The arbitration masters have been trained in alternative dispute resolution and they usually have extensive experience in the child support system and a demonstrated basic understanding of legal procedure. Prior to the master's discussion with the two parties, there will be some investigation of the file and an exchange of information between the parties, directed by the master. Once both parties are ready to proceed, the arbitration master generally contacts them both by phone.
The arbitration masters function out of one centralized office, so the telephone is the most convenient means of communication. Sometimes one of the parents will come into the office. Although the office has been set up to accommodate both parents at the same time, the practice to date has been discussion over the telephone with at least one of the parents. The parents are telephoned by the agency and so incur no costs; if a parent at a distant location is without a telephone, it will be arranged that he or she can use a telephone at another government agency office in the vicinity. Basically, the telephone conversation provides the parties with the opportunity to ask questions of each other in a situation where the conversation is guided by the impartial third party arbitration master.
The arbitration master has the power to enter a binding order so long as both parties stipulate to settle the matter. If they do not agree, the master will recommend a proposed modification, which is sent to the parties and to the administrative law judge for signature. The parties then have 30 days during which to request a hearing before an administrative law judge.
The Montana arbitration master program has been in existence since 1994 and, to date, approximately 95 percent of cases have been resolved without the need for an administrative hearing. In general, both the establishment and modification processes have developed in such a way so as to encourage a high percentage of case settlement as quickly as possible.
The administrative procedure used by the Oregon child support agency is regulated by the provisions of the Oregon Administrative Procedures Act. Like other administrative processes in the United States, it is directed at establishing, modifying and enforcing child support orders for IV-D cases or other applicants who request enforcement of a support obligation.
Within the state, all parents who are current or previous recipients of social assistance have their child support cases dealt with by the Support Enforcement Division of the Department of Justice. Anyone else in the state can apply for IV-D services, in which case they would make application to the District Attorney's Office. The current district attorney approach is to utilize the administrative process in some parts of the state and, in other places, to go through the courts. In the latter scenario, all of the filing fees would be incurred by the state, so the applicant parent would only need to pay to travel to court and to hire an attorney if desired.
There are currently 45,600 child support cases being dealt with through the District Attorney's Office. This number reflects not only those persons requesting establishment of a support order but also people requesting enforcement procedures for a court-ordered support order or modification of a court order, in which case the District Attorney's Office would facilitate the court process to have the modification addressed.
The number of cases processed through the Support Enforcement Division (that is, those persons either previously or currently on social assistance) is substantially higher at a total of 206,900. Of these cases, 42,300 of them are currently in receipt of social assistance.
The Administrative Process
In the Oregon system, the notice and finding of financial responsibility is used to establish a support order, past support order, health insurance order and/or paternity. A motion for modification would be used to modify a child support order. In the case of a pre-existing support order originally established by the court, the administrative process prepares a proposed modification, which is then sent to the circuit court for affirmation.
In regard to a contested case, the person who seeks to contest the contents of the notice and finding of financial responsibility must make a written request for a hearing to the division on the form provided by the division. As soon as such a request is received, the division forwards the relevant information to the State Employment Department Hearings Section.
The State Employment Department Hearings Section conducts the expedited process or administrative hearings for the Child Support Agency. The section was originally created to hear unemployment compensation hearings, but since its inception, the functions of the department have expanded to include conducting hearings for several different agencies. The hearing officers (otherwise known as referees or administrative law judges) are located out of three urban centers; approximately 20 of the officers hear child support cases. The members of the hearing section generally have legal backgrounds with substantial administrative law exposure. The Oregon Administrative Procedures Act governs the holding of the hearings, which are considered formal legal proceedings.
The hearing officers are also actively involved in the process leading up to the hearing itself. For example, when they have received a file from either the District Attorney's Office or the Support Enforcement Division, they review the file prior to the hearing and prepare any proposed exhibits, including the relevant documentation, such as the notices. The party is also notified within 30 days of having made the hearing request about both the date and the time set for the hearing. The governing administrative rules specifically provide for a telephone hearing. It is necessary that all parties to the hearing first be in possession of all relevant documentation that will be raised during the course of the hearing. There are existing standards stipulating that this expedited process must be completed within a few months of the time the obligor was served with the initial notice.
In just about every case, the hearing is conducted over the telephone and, if necessary, a language interpreter is employed for the occasion. The hearing is also tape recorded. The parties are generally not represented by counsel. Much of the hearing consists of the hearing officer asking relevant questions of the two parties.
As soon as the hearing is concluded, the presiding officer issues an order, which must include the date, a statement of jurisdiction, a statement of the issues and the law involved, findings of fact, and conclusions based on legal and factual findings, including a discussion of the rebuttal evidence raised. In addition, the order must set forth any actions to be taken and notice that the parties have a right to appeal to the circuit court within 60 days of receiving the order.
This administrative review process applies for both establishment and modification of administrative child support orders. For court orders, the Support Enforcement Division will arrange for the hearing to take place.
As in other jurisdictions, divorces are dealt with through the judicial process. Child support would then be established by the court in compliance with the child support guidelines. Currently in Oregon, there is a strong push toward using alternative dispute resolution methods, especially mediation, as much as possible prior to a full-blown court hearing. It is becoming more commonplace for mediators to assist the parties with child support calculations during the course of the mediation.
The Washington child support administrative scheme has been in place since 1971 and is widely considered to be the pioneer American administrative child support model. The Washington state Division of Child Support (DCS), part of the Department of Social and Health Services, administers the program.
This administrative scheme operates alongside the superior court, which has jurisdiction over family law including child support issues. The related orders that may issue from the superior court include decrees of dissolution for divorce, orders determining parentage (otherwise known as paternity orders) and orders of child support. When a case goes through the court process, it is possible that there will be mediation at the initial stage, offered by a social worker of family court services. Family court services operate as a support service to the judiciary. However, even if mediation is utilized, it is not possible for the parties themselves to resolve the issues without first obtaining the court's endorsement.
The child support process is authorized by Title 388 of the Washington Administrative Code (WAC) and by Titles 26 and 74 of the Revised Code of Washington (RCW) as well as Title IV-D of the federal Social Security Act 1975. The administrative process is laid out in Chapter 11 of Title 388 of the WAC. As in other jurisdictions, the process deals with both Title IV-D cases or, generally, persons on social assistance, and with people who make application for the services of the division.
The Administrative Process
In the absence of a pre-existing superior court order, DCS serves a notice and finding of financial responsibility on the responsible parent. Prior to this point, however, the custodial parent has been contacted by the case worker and asked to fill out a worksheet. Once the worksheet is returned and reviewed, the custodial parent is again contacted by the case worker, who suggests an amount that the responsible parent should be requested to contribute. The custodial parent has a right to agree or disagree.
If the custodial parent cannot come to an agreement about the amount that is to be requested from the responsible parent, he or she can request a hearing, to follow the same procedure outlined in the following paragraphs (i.e. the same process to be followed for a non-custodian's request). As with administrative schemes in other states, the notice to the responsible parent sets out the amount that has been assessed by the case worker as owing by the responsible parent (with or without the custodial parent's agreement), any income information known about the responsible parent and identification of the child in question. In addition, the responsible parent is given 20 days during which to request a hearing. Otherwise, the notice becomes a binding administrative order on the parent.
When a hearing is requested by either parent, the first review is done by the Office of Administrative Hearings and is usually held within 30 days of the request. The Office of Administrative Hearings is separate from DCS and holds hearings for several state agencies; these hearings are conducted by administrative law judges, who usually have experience as attorneys. One judge conducts the hearing, which is semi-formal and tape recorded in the event that there will be a further review requested. Both parties usually attend the hearing and present their cases.
If one of the parties is dissatisfied with the decision at this level, he or she must then petition for a further review to be conducted by the Office of Appeals, which is part of the Department of Social and Health Services. In other words, then, the review process involves a first level of review outside the department and a second level back in the department again. The Office of Appeals conducts reviews for any administrative decisions made by personnel of the department, such as "fair hearings" for welfare issues. If still dissatisfied with a decision from this review stage, a person can request a judicial review as the final step.
In regard to the available access to the services offered by DCS, there are nine field offices spread throughout the state - most offices have responsibility for three or four counties. When a party requests a review by the Office of Administrative Hearings, it is sometimes possible that the administrative law judge will travel to the closest office to the requesting party to conduct the hearing. The more common practice, however, is to have the hearing conducted over the telephone. In fact, all hearings are initially scheduled as telephone interviews, and a party can then request an in-person hearing instead.
If one of the parties requests a modification of the administrative support order in the state of Washington, a process closely resembling the establishment process applies. Information is gathered from both parents, and if one of the parties has concerns, he or she has the option of requesting a modification conference (although this practice varies from county to county), which would take place between a DCS employee and one of the parties. The conference, like a prehearing conference, represents a less formal attempt to effect resolution of any contentious issues prior to an administrative hearing.
In regard to court orders, the party may also request the services of DCS, in which case he or she may request modification through administrative means. If the parties agree to an appropriate modification, they do not need to attend at court but, rather, an agreed order would be drawn up at the conference and a superior court judge would then sign off the order. If the conference is unsuccessful in this situation, the matter must then be referred back to court. An administrative order, on the other hand, would proceed to the administrative hearing stage if the parents did not agree on the modification at this initial stage.
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