1. California’s Child Support Program Family Law Bar Training October 4, 2010 Orange County, California Child Support Directors Association

2. Life of a Case Opening a Case Establishing a Court Order Enforcing a Court Order Closing a Case

3. Case Opening Sources –Welfare referrals from Social Services –Application (non welfare individual) –Petition from other jurisdiction (other State or Country) Regulations require that the Local Child Support Agency (LCSA) create a case within 20 calendar days

4. Summons and Complaint S&C package generated S&C documents filed with the court LCSA local early intervention practice: Letter sent to the Non-Custodial Parent (NCP)/Respondent NCP/Respondent served with S&C

5. Response to S&C The LCSA case will proceed based on NCP/Respondent’s response: Enter a stipulation in the LCSA office If agreement reached, stipulated judgment will be filed with the court May include stipulation for genetic testing File an Answer LCSA will file a notice of Motion for Judgment Do nothing LCSA will request the court to enter a default judgment

6. Relief Sought Orders Requested –Parentage –Child Support –Health Insurance, including payment of share of uncovered costs –Child Care, if requested by custodial parent

7. Basic Enforcement After Judgment Once a judgment has been obtained, the LCSA will send out an administrative wage assignment package to NCP’s employer to collect support –Order/Notice to Withhold Income for Child Support –National Medical Support Notice (NMSN)

8. Enforcement Tools If the NCP pays late or fails to pay court ordered child support, the LCSA has several enforcement tools to collect child support including: –Credit Reporting –Passport Denial –Property Liens –License Suspension –Income Tax Refund Intercepts

9. Other Enforcement Tools Disability Insurance Benefit Intercept Financial Institution Data Match (FIDM) Lottery Intercept Unemployment Insurance Benefit Intercept System Workers’ Compensation Appeals Board Match System

10. Case Closure If the LCSAs case qualifies for closure: –Child support services will no longer be provided –All governmental enforcement will terminate –Support order remains in effect –Any arrearages continue to accrue interest, until paid in full Note: The Custodial Parent (CP) can reopen case if child has not reached age of majority

11. Closing Criteria Non welfare CP requests case closure and there are no assigned arrears NCP deceased and has no estate Initiating jurisdiction requests closure The LCSA cannot locate NCP and/or NCP’s assets –Efforts to locate must be made over a period of three years if sufficient information is available for an automated locate effort –Efforts to locate must be made over a period of one year when there is insufficient information for an automated locate effort.

12. Closing Criteria Paternity cannot be established NCP institutionalized and has no ability to pay NCP permanently disabled and has no ability to pay NCP incarcerated with no chance for parole NCP and CP reconciled and no welfare arrears owed Finding of good cause by Social Services

13. Case Closure Continued enforcement not in the best interest of the child as determined by Foster Care Case opened for “locate only” services All support obligations paid in full

14. Establishment Overview Case Opening Paternity Child Support Medical Support

15. Sources of Cases Application requesting Local Child Support Agency (LCSA) services Request from other jurisdiction (other State or Country) Referral from Social Services Agency

16. Case Assessment Existing Order –Within the county –Outside the county Registration of other county California order or of other Jurisdiction’s order No Existing Order –The LCSA files S&C and Proposed Judgment Family Code Sections 17400, 17404 –Service on Respondent

17. Avenues To Judgment Enter into a stipulation in the LCSA office File Answer –Admits or denies parentage –LCSA files Motion for Judgment –Court-Ordered Judgment Default based upon proposed judgment –Family Code Section 17430

18. Judgment by Default If no answer or other responsive pleading is filed within 30 days of service, Respondent is defaulted and Proposed Judgment becomes effective as of the first day of the month following the filing of the complaint. –Family Code Section 17400 (d)(3)

19. Meet and Confer Pro Per Respondent can visit any LCSA office to discuss case Guideline calculation will be prepared and Respondent has opportunity to stipulate

20. Motion for Judgment Orders Requested –Parentage –Child Support –Health Insurance

21. Paternity Marital Presumption Marital Presumption (FC 7540) –Presumption conclusive on day after child reaches two years of age –Presumption rebuttable until day child reaches two years of age

22. Paternity Opportunity Program Voluntary Declaration of Paternity (POP) –Before the unmarried mother leaves the hospital, after giving birth, the health care provider shall provide a voluntary declaration of paternity along with written advisement materials. –Staff in the hospital shall witness the parents’ signature and shall forward the declaration to the State Department of Child Support Services –Family Code Section 7570 -7577

23. Paternity Opportunity Program Written materials advises: –That a signed (POP) declaration filed with State legally establishes paternity –Of the legal rights and obligations of both parents and the child that result from the establishment of paternity –Of an alleged father’s constitutional rights to have issue of paternity decided by a court –That by signing the (POP) declaration, the father is waiving his constitutional rights with respect to the issue of paternity

24. Set Aside of POP Declaration Court may set aside the POP declaration based upon genetic test exclusion, unless denial of motion to set aside is in the best interest of the child (taking into consideration FC 7575) –Age of child –Length of time since the execution of declaration –Nature, duration, and quality of any relationship between the man and the child

25. Set Aside of POP Declaration Con’t Benefit to the child in establishing the biological parentage of the child Whether the conduct of the man who signed the declaration has impaired the ability to ascertain the identity of the biological father.

26. Paternity Genetic Testing If no legal presumption applies or voluntary declaration exists, the LCSA will arrange for genetic testing if requested LCSA will schedule appointment and pay for testing

27. Guideline Child Support Child Support –Public Policy –Guideline Formula –Rebuttable Presumption

28. Public Policy Child Support –Public Policy Considerations (FC 4053) Parent’s first and principal obligation is to minor child Minor child should share in the standard of living of both parents

29. Gross Income Income (FC 4058) –Annual Gross Income derived from whatever source including but not limited to: Salary Overtime Commission Bonus Workers’ Compensation Unemployment benefits Disability Benefits Social Security Benefits Seasonal or fluctuating income Self Employment income

30. Proof of Income Establishing Income –Completed Income and Expense Declaration –Automated information from EDD and the New Hire Directory –Information from the CP –Presumption of Income

31. Income – Earning Capacity Child Support –Earning Capacity Court may consider earning capacity of parent in lieu of actual income pursuant to Marriage of Regnery (1989) 214 Cal.App.3d 1367 Does not require a showing of bad faith –IRMO Padilla (1995) 38 Cal App 4 th 1212

32. Support & Hardships Child Support Hardships (FC 4070 - 4073) –Extraordinary health expenses –Uninsured catastrophic losses –CP’s or NCP’s other natural or adopted minor children living with CP or NCP

33. Support & Deductions Establishing Deductions (FC 4059) –Produce credible, admissible documentation of deductions, such as: Work related expenses Payment of other child support Hardship minor children, and Health insurance premiums

34. Rebuttable Presumption Rebuttable Presumption (FC 4057) –Guideline amount is presumed to be the correct amount of child support to be ordered –The court may deviate from the guidelines, but must cite the reasons for doing so either in writing or on the record

35. Support & Visitation Visitation –Based on actual visitation regardless of court order –Duty to support minor child is unaffected by CP’s failure or refusal to implement visitation –Remedy is to file action in family court

36. Commencement Date Commencement date (FC 4009) –Initial orders may be retroactive to date of filing of S&C so long as Respondent was served within 90 days of filing of S&C –If the Respondent was not served within 90 days and the court finds that the Respondent was not intentionally evading service, support may start no earlier than the date of service of the S&C

37. Commencement Date Commencement date (FC 17400 (d)(2) –In IV-D judgments entered by default, the support order shall commence the first day of the month following the filing of the complaint

38. Spousal/Family Support Spousal Support –The LCSA does not establish spousal support or family support orders, but it will enforce orders for spousal or family support when appropriate.

39. Federal Mandate Federal Mandate (45 CFR §303.6) –Federal regulations require IV-D agency to identify a delinquency on the date it occurs –Delinquency defined as the failure to make a payment equal to one month’s support obligation –Once identified IV-D agency required to act

40. Enforcement Defined Collections Enforcement Defined –Broadly defined under both federal and state law (45 CFR §303.6; FC §17400) –Includes: Obtaining initial order for support Use of locate, intercepts and notification systems for collecting support

41. Earnings Assignment Order Earnings Assignment Order (EAO) (FC §5235) –Commonly referred to as a “wage assignment” –Used to collect current support and arrears from obligor’s income or earnings Earnings broadly defined --FC §5206 Employer broadly defined –FC §5210

42. Earnings Assignment Order Cont’d. Required on all support orders issued post 7/1/09 Binding on current and future employers LCSAs now use Federal IWO (Income Withholding Order/Notice for Support (formerly ONTW) –Administrative FC §5246 –Same force and effect as Judicial wage assignment

43. EAO and Employer Duties Employer Duties (FC §§5233-5235) –Deliver and copy statement of rights to employee within 10 days of service –Commence withholding within 10 days of service –Forward withheld amount to SDU within time frame specified by law

44. Employer Noncompliance Remedies available when employer fails to withhold or remit (FC §5241): –Employer liable for amount of support not withheld or forwarded –Civil contempt –Electronic payments from bank account –50% penalty

45. Wage Assignment Stay of Service Stay of Service of EAO (FC §5260) –Service of withholding order can be stayed if: Court makes a finding of good cause –Child’s best interest –Uninterrupted payments for 12 months –No arrearages –Extraordinary hardship to obligor Alternative arrangement exists for payment consistent with Family Code –Must be in writing

46. EAO and Other Income Workers’ Compensation (CCP §704.160) –May issue wage assignment for 25% of temporary disability benefit –Applies to arrears and ongoing support –Messinese v. SCIF (2004) 69 Cal.Comp.Cases 480 –Compare with WCAB Liens pursuant to Labor Code §4903(e)

47. Social Security Benefits Social Security Benefits (FC § 4058, FC §4504, FC §5246) SSDI – 50% of benefits SSI If income is SSI/SSP only – case will be closed If income is both SSDI and SSI – 5% of SSDI

48. Real Property Liens Required by 22 CCR §116130: –Must be created within 45 days of obtaining order –Created by recording Notice of Support Judgment Notice must be filed in the counties where –Obligor resides –Obligor’s parents reside –Any other county where obligor reasonably expected to acquire property Extends to unpaid, matured installments plus interest

49. Real Property Liens Con’t Lien remains enforceable until all support is paid in full Generally, lien priority calculated by date of recording – first in time rule State regulations specify when an Acknowledgement of Satisfaction or a Release of Lien will be issued Discussed: CCP § 697.310 et seq (liens); §724.010 et seq (Satisfactions)

50. Other Liens Personal Property Liens –Writ of Execution more likely (CCP §699.010 et seq) Lien in pending civil action –Including some probate matters Workers’ Compensation Liens –Date of injury forward

51. State Licensing Match System Requirements (FC §17520): –Each month the LCSAs are required to submit list of obligors who are not in compliance with support obligation –The state child support agency consolidates lists from all local child support agencies and distributes a list to each board responsible for regulation of licenses –Procedures for issuance or renewal of license differs from procedures for license reinstatement

52. State Licensing Match System Con’t Policy –New Statewide Policy NCP may contact any local child support agency for license release –If an NCP received notification that his/her license will be suspended, the NCP may contact DCSS and request a review.

53. Passport Denial Passport Denial (42 USC §652(k)) –Effective October 1, 2006, amount of arrears required to trigger passport suspension decreased from $5,000 to $2,500 –The LCSAs lacks authority to stipulate release –No Constitutional issue –Zero tolerance policy Zero arrears One of a few narrow exceptions

54. State Intercept Program Include –State Lottery Intercept –Automated PERS Benefits Intercept –Child Support Lien Network (CSLN) –Tax Refund Intercept Programs –Financial Institution Data Match (FIDM)

55. Credit Reporting On a monthly basis, State DCSS forwards account status information to the Credit Reporting Agencies –Trans Union –Equifax –Experian/TRW –Inovis

56. Credit Reporting Con’t An NCP is submitted to the State Credit Reporting System (CRS) 60 days after the first payment was due (newly established orders) or a case is opening with an existing order NCP has 30 days to contact the LCSA in person, by phone, or letter to dispute the arrears or the credit reporting action

57. DCSS Full Collection Program State DCSS Full Collection Program (FCP) locates NCP’s assets and issues levies if the NCP is in arrears and program criteria are met AB 252 amended Revenue and Taxation Code §1927.6 to require all cases with arrears to be submitted Bank must inform customer of any pending levy

58. DCSS Full Collection Program Con’t Compliant NCPs are those who are complying with the court’s order (including an arrears component) or are paying pursuant to an Wage assignment that includes arrears –In compliant cases, the assets search is conducted and if assets are found, a levy (Order to Withhold) will be issued to the financial institution one institution at a time –If an NCP is compliant, the first $3,500 of the NCP’s assets are exempt from collection without any requirement that the compliant NCP files a claim of exemption (Family Code Section § 17453 (j) (2))

59. Contempt Contempt actions –Civil Contempt may be used for violations of any court order, such as failure to pay child or family support, or to perform job contacts as ordered (CCP §§ 1209, 1209.5, 1218, 1218.5)

60. Contempt –Criminal contempt, criminal non support or criminal abandonment are criminal enforcement mechanisms (PC §166(a) (4), PC §270, PC §271(a))

61. Other Enforcement Tools Include: –Order for Judgment Debtor Examination Including 3 rd Parties Turnover Orders per CCP §708.205 No 5 th Amendment Claim IRMO Sachs (2002) 95 Cal. App. 4 th 1144 –Court ordered job search FC §4505 Failure to do basis for contempt

62. Other Collection Tools –Qualified Domestic Relations Orders (QDRO) 29 U.S.C. § 1056(d)(3) –Intervention in other actions or proceedings Probate proceedings –Liens –Spendthrift Trusts - Pro. Code §15305 –Creditor’s Claims Non-judicial foreclosure excess proceeds

63. Reimbursement of Uncovered Medical Expenses LCSAs currently enforce collections for specific dollar amounts designated for medical support in a court order (FC §4063) –When a parent contacts the LCSA to request assistance with the collection of unreimbursed medical expenses and a specific dollar amount for the expenses is not provided on the court order, LCSA staff will advise the parent that they must file their own motion

64. Bankruptcy Post October 2005 (P.L. 109-008) –New bankruptcy provision Applies to cases filed on or after 10/17/05 –New terminology – “domestic support obligation” (DSO) Debt owed to a spouse, child, parent of a child, governmental agency in the nature of maintenance, support or alimony. DSO is unequivocally non-dischargeable

65. Bankruptcy Con’t Following does not violate automatic stay: –Service of Notice/Order to Withhold –License Suspension –Credit Reporting –Tax refund intercept –Maintaining property lien –Establishing paternity and/or support –Modifying support –Passport Reporting

66. Bankruptcy Con’t –Ch. 13 debtor must pay ongoing support and his arrears or work a deal with the creditor –Interference with Plan (Gellington) –DSO entitled to “first priority”—doesn’t mean it will get paid first, but it will get paid in a Ch. 13

67. COMPROMISE OF ARREARS PROGRAMS There are two programs to assist parents in reducing their child support debt: –Compromise of Arrears Family Reunification Program (FR COAP) –Compromise of Arrears Program (COAP)

68. FR COAP (F.C. 17550) Program for parents who owe support because welfare benefits were paid for a child living with a relative, guardian or in foster case. Requirements: –Child is still a minor and now lives with the parent with past-due payments –Parent’s net income is less than 250% of federal poverty level

69. COAP (F.C. 17560) Program for parents who owe $501 or more for child support for welfare payments.

70. COAP Criteria LCSAs determines the noncustodial Parent's (NCP's) eligibility for COAP in accordance with specific eligibility criteria including the following: Minimum amount of Permanently Assigned Child Support Arrears (up to the Unreimbursed Assistance Pool amount) owed to the government of at least $501. No previous application to participate in COAP within one year prior to the date of application.

71. COAP Criteria con’t No rescission of a previous COAP agreement within two years prior to the date of application. No conviction or contempt finding for failure to pay child support within six months prior to the date of application. No intentional failure to pay in anticipation of COAP. NCP has no ability to pay off all arrears owed, including interest, within 3 years of application.

72. COAP Criteria Con’t Ability to pay current support, arrears owed that are to be distributed prior to the arrears owed to the government and the arrears repayment amount as provided in the compromise agreement within 3 years from the date of the Agreement from any source (e.g. gift, loan, income). No concealment of any income, assets, or any reasonably anticipated income or assets, and no intentional withholding or falsifying of financial information.

73. Statewide Audit Tool A web-based child support interest and audit tool Regularly used in child support cases “Simple Report – All Debt Types” is the report normally presented in court

74. Statewide Audit Tool Con’t Report displays –All support obligations (child, spousal, medical) –Current charges –Arrears/Adjustments –Interest charges –Amount paid –Principal due –Interest due

75. SDU/CCSAS SDU Functions –Centralized Payment Processing Collections Disbursement –DCSS Interface –Electronic Help Desk

76. SDU/CCSAS Critical Activities –Provide Employer FL 191 and FL 195 Forms –Courts – Submit FL 191 Forms to DCSS –Employers – Submit FL 195 or DCSS 0116 to SDU

77. SDU/CCSAS SDU Accepts Payments from Non Custodial Parties in the form of: –Checks made payable to the SDU –Credit Card Payments –Electronic Withholding

78. SDU/CCSAS SDU Payments to Custodial Parties –Electronic Payment Options Direct Deposits Electronic Payment Card (EPC)

79. SDU/CCSAS CA SDU Contact Information –WEB – www.casdu.comwww.casdu.com –Fax – (916) 576-8881 –Toll Free – (866) 325-1010

80. Questions? john.cardoza@ventura.org (805-654-5288) lori_cruz@cssd.lacounty.govori_cruz@cssd.lacounty.gov (323-889-3410) mreichman@css.ocgov.com (714-347-8028) lrovito@css.ocgov.com (714-347-5927)