2018 Child Support Commission Bill Amendments to the APA Statute HB18-1363 2018 CFSC Conference Crested Butte June 2018 Robert Kurtz Robert.kurtz@state.co.us 303-866-4459

What Does the Bill do? Expands use of Administrative Process Action (APA) Expands involvement of the obligee and due process rights of both parties Changes three deadlines/timelines Clarifies Attorney of Record in APA case Clarifies court approval process of default orders Preserves validity and survivability of APA orders Requires filing of all genetic test results and much more See

Other Bill Parts – HB18-1363 IV-D attorney files “Notice to Withdraw” (and not Motion and Order to Withdraw) Administrative genetic testing order in judicial cases via an administrative subpoena; Second subpoena issued or Motion to Compel filed if no compliance on first subpoena; Court may establish paternity by default Insurance Lien – Participation by all insurance companies is mandatory See sections 14-10-107.5, 19-4-112 and 26-13-122.7, C.R.S.

Handouts This Power Point (see the “Notes Pages”) view at the Colorado Family Support Council (CFSC) website for more session details HB18-13-63 Note: Also see handouts for session on Case Challenges & Problems

Expanded use of APA APA can be used when the applicant for services is the obligor Legal parentage of the applicant for services may be established in the APA case The obligee may fully participate in the APA case and must sign a Stipulated Order for it to be effective See §26-13.5-103, C.R.S.

New Party Titles APA-Petitioner (the person who applied for services or was mandatorily referred for services) APA-Respondent (the other party) The obligee or obligor can be either the APA-Petitioner or APA-Respondent See §26-13.5-102, C.R.S.

Other Definitions “APA” and “Administrative Process Action” “Currently Scheduled Negotiation Conference (N/C)” “Receipt of Notice” now includes signing a Waiver of Service of Process See §26-13.5-102, C.R.S. CRS

New Timelines/Deadlines Changes Scheduling the negotiation conference from date of “issuance of process”: 35 days (from 30) Service of process on the APA-Respondent and delivery of Notice of Financial Responsibility (NFR) packet to APA-Petitioner: 15 days (from 11) before the N/C scheduled date Standard Continuance (both parties have the right): 7 days (from 10) See §26-13.5-103, C.R.S (35 days), 26-13.5-104, C.R.S. (14 days notice) and 26-13.5-105(1), C.R.S (standard continuance).

Hearings The CSEU may refer an APA case to court without an APA order (and without new service of process) if: APA-Respondent is incarcerated and does not appear at the N/C and does not t sign a Stipulated order When a parent is excluded by genetic testing results but the CSEU has credible evidence that the person may be a “presumed” parent An adoption subsidy is paid on behalf of a child on the case, and Any other reason stated in Rule See §26-13.5-118, C.R.S.

Rights of Both Parties Right to attend the Negotiation Conference and participate in the APA case and sign a Stipulated order Right to contest legal parentage (paternity) of any parent Right to a one-time standard continuance not to exceed 7 days (No Change to “good cause” continuances) See

“Opting out “of apa Only the APA-Respondent may Opt Out The request for a court hearing must be: In writing and Delivered to the CSEU prior to the negotiation conference starting

Service of Process and delivery of Notices No change in service of process methods in APA cases Service is on the APA-Respondent only The Notice of Financial Responsibility (NFR) packet is delivered to the APA-Petitioner; APA-Petitioner voluntarily submits to personal jurisdiction in APA case If service was proper, no need to serve judicially if case is referred to court See

Delivery of Notices Delivery may be by: Hand delivery (includes FedEx. UPS. etc.) First class mail Fax Any form of electronic delivery if agreed to by the party in writing (but remember Confidentiality!)

Attorney of Record in the APA Case Must be in writing, signed by the party and attorney and delivered to the county CSEU to be effective Legal representation in a court case is not enough Party may fire his/her attorney at any time (in writing) See §26-13.5-116, C.R.S.

Attorney of Record in the APA Case Attorney to receive copy of all documents and must attend the negotiation conference Attorney may sign stipulated (agreed) order on behalf of client (client signature not required) However, attorney must sign stipulated order to be valid

Exchange & Delivery of Evidence Documents used to calculated the guidelines are provided to both parties If NDI is flagged on the case follow that procedure CSEU has no duty to redact documents CSEU held harmless for proper disclosure See §26-13.5-118, C.R.S.

Negotiation Conference Results Types of Orders / Other Action Both parties appear and agree – Stipulated Order, if appropriate Neither party appears – Default Order, if appropriate (and no Stipulated Order signed) One or both parties appear and there is no agreement – Temporary Order, if appropriate

Default Orders Before submitting a default order to the court for approval, the default order packet must be reviewed by the worker’s supervisor, administrator, IV-D attorney or county director If paternity is being established, the worker must complete and file with the court a Statement on Paternity confirming that paternity and legal research has been conducted and that there is only one alleged/presumed parent of the child See 26-13.5-106, C.R.S.

Court Approval of default order Court shall confirm that all documents required to be filed by statute and rule, were in fact filed with the court and That service of process (or Waiver) was proper Court has no subject matter jurisdiction to do anything else; approval of the default order is simply an ministerial act by the court This codifies part of the holding in Adams Cnty. DSS v Huhyn, 883 P.2d 573 (COA 1994).

Court Approval of Default Orders In approving the default order, the court can not: Recalculate any order amounts Request more evidence Schedule/conduct a court hearing These laws on default orders apply to both Establishment and modification actions

Default Orders “If the court has not approved or denied approval of the default order within thirty-six days after filing with the court, the delegate child support enforcement unit shall notify the court that the deadline for approval or denial is in seven days on the forty-second day.” See 26-13.5-106(1)(g)(I), C.R.S.

Survivability of APA Orders following marriage of the Parties Amendment overrules (in part) the case of In re Marriage of Doria, 855 P2d 28 (COA 1993) that states that the marriage of the parents to each other voids a prior child support order These APA orders now survive the marriage Establishment of paternity Judgment for Child Support Debt Judgment for Costs of Collection MSO & Retroactive Support due a Caretaker Assigned MSO and arrears See 26-13.5-122, C.R.S. It is automatic and no motion or order are required.

Survivability of APA Orders Following dismissal of parent judicial case An APA order of any types can be filed in to a pending judicial case relating to child support If that judicial case is dismissed (for any reason) the APA order survives the dismissal and is still a valid order unless, the court specifically dismisses the APA order as well.

Modifications The post-filing 15-day objection period and procedures has been deleted from statute This means that an APA Stipulated Order of Modification is effective (enforceable) upon filing with the court clerk or upon receipt of the Support Event 1 from the clerk if filed via DISH An APA Default Order of Modification is effective upon approval by the court See 26-13.5-112 (1.9), C.R.S.

Judicial Review of an APA order Judicial Review of an APA order by a court is controlled by Rule 60, Colorado Rules of Civil Procedure (C.R.C.P.) This means that a party wanting a court to determine the obligations of an obligor under an APA order must file this written request within 6 months of the effective date of the APA order The court may not conduct a review of pending APA order See 26-13.5-107, C.R.S.

Filing Genetic Test Results with the Court If, genetic testing has been conducted and those test results exclude the obligor and the CSEU dismisses the APA case, those test results are filed with the court Also file: Notice of Filing and Testing Sample Collection form See §26-13.5-110.5, C.R.S.

DISH Procedures are Codified Our current DISH procedures in the electronic transmission of order data elements and The county CSEU’s role as Custodian of the Record for APA orders not paper filed with the court are now stated in statute The bill does not otherwise affect current See §26-13.5-123, C.R.S.

Other Minor changes Minor re-writing of some language but no change in substance “C.R.S.” extension on all statutory cites is deleted Erroneous section cite to Cost of Collection is corrected Administrative subpoenas may now be served on all parties and third-parties having documents about a party in an establishment or modification action

Implementation of the bill Effective date of all APA sections is July 1, 2019 IV-D Administrator Letter when all 2018 bills signed Volume 6 revisions ACSES/DISH enhancements Revise/create manuals, procedures and desk aids Revise/create all DocGen forms (and other forms) Multiple Special Trainings Revise APA & Judicial Certification Training materials Revise APA Certification & Re-Certification tests

Questions? Thank You!