UIFSA

CS 154-2 DCO Procedures – Utah Conducts Review

01/31/02 Revised 09/29/16 Training Completed 07/01/15

45 CFR 303.7(d)(5); U.C.A. 62A-11-304.2(3)(b), 63G-4-302, 78B-12-113, 78B-14-207; 18 U.S.C. 1151, 28 U.S.C. 1738B; IRS Publication 1075

 

 

Introduction, Formal DCO Process and Timeframes

 

After a CSS Senior agent completes the initial review and finds that a formal determination of controlling order (DCO) is necessary, the Senior agent is responsible to determine the appropriate jurisdiction for the “preliminary” and “final” stages of the DCO process.  If it is appropriate for Utah to conduct a DCO review, it may only be completed if Utah has personal jurisdiction over the Non-custodial parent (NCP) and Custodial parent (CP).  For example, both the NCP and CP reside in Utah or the NCP resides in Utah and the CP lives in another state, but submits to Utah’s jurisdiction by requesting a UIFSA action (interstate referral from CP’s state). 

 

If the DCO review is being made in preparation of a judicial action; i.e., registration of a foreign support order, judicial review and adjustment, etc., the adjudicative proceeding and final DCO order is completed judicially.  If the preliminary determination is not being completed for a judicial action, it may be conducted using the Utah Administrative Procedures Act (UAPA).  If the request is from another state, incoming interstate case, the DCO request must be filed with the appropriate tribunal, judicial or the Office of Recovery Services/Child Support Services (ORS/CSS), within 30 calendar days pursuant to 45 CFR 303.7(d)(5).

 

“If the request is for a determination of controlling order:

  (i) File the controlling order determination request with the appropriate tribunal in its State within 30 calendar days of receipt of the request or location of the noncustodial parent, whichever occurs later;”

 

 

Procedures:  Procedures:  Preliminary Determination, Judicial or Administrative 

 

Senior agents are responsible for completing all steps listed below as part of the preliminary determination of an alleged controlling order in preparation of a final DCO – judicial or administrative.

 

1.                   Review the appropriate jurisdiction for the DCO.  Determine if Utah has jurisdiction prior to starting the preliminary determination pursuant to  U.C.A. 78B-14-207(3),  “If two or more child support orders have been issued for the same obligor and same child, upon request of a party who is an individual or a support-enforcement agency, a tribunal of this state having personal jurisdiction over both the obligor and the obligee who is an individual shall determine which order controls under Subsection (2). . .” Personal jurisdiction is obtained by both parties residing in the state, Utah, or by having personal jurisdiction over one party and a request from the non-resident party or an intergovernmental referral from a support enforcement agency.

 

2.                   Gather the information needed to make a preliminary determination of the alleged controlling order, and to calculate an alleged arrears balance:

a.                   Gather the following information:

i.                     Copies of all existing support orders (copies of orders do not need to be certified); 

ii.                   All payment records.  This includes records from:

A.                  all states that issued a support order

B.                  IVDS agencies where the CP has received child support services,

C.                  the CP,

D.                  ORSIS QMF Case payment History and, if applicable, the Pre-ORSIS Case Payment History (form CPPH), etc.;

iii.                  All interest calculations that have been provided by other states for interest accrued and paid under existing orders;

iv.                 All calculations for fees accrued and paid under existing orders;

v.                   Time-frames of assigned arrears;

vi.                 Child and custody information; and,

vii.                Emancipation information.

b.                  Utilize the following tools to obtain the needed information:

i.                     Federal Case Registry.

ii.                   “Child Support Enforcement Transmittal #3—Request for Assistance/Discovery” for non-CSENet states. 

iii.                  CSENet.

iv.                 “Request for Information:  Determination of Controlling Order and Reconciliation of Arrears.”

v.                   “Statement of Arrearage Claimed.”

vi.                 ORSIS.

vii.                Court records.

 

NOTE:  If you are unable to obtain copies of an order, you may obtain reliable information about the order.  “Reliable information” includes (but is not limited to) information from computer records, court files, and other IV-D agency records.

 

3.                   Apply the controlling order rules to determine which order should be identified as the alleged controlling order.  All orders that potentially qualify for controlling order status must be given full faith and credit.  The results of the preliminary determination will be included in the Notice of Agency Action, which will be sent to all interested parties. 

 

4.                   Complete the Reconciliation of Arrears:  As of May 16, 2004, Utah passed the 2001 version of UIFSA which requires a reconciliation of arrears (ROA) as part of the determination of controlling order. 

 

5.                   Proceed to the appropriate procedures for the notification of all appropriate parties which begins the actual DCO process.  The next procedures depend on whether the DCO will be conducted judicially or administratively.

 

 

DCO Procedures:  Judicial Process

 

If the final DCO should be made judicially, the Senior Agent is responsible to gather all necessary information; e.g., copies of order, payment history, etc., identify the alleged controlling order, and prepare the referral packet for the AGO.

 

1.                   Complete the “Presumed or Alleged Controlling Order Worksheet.”:

a.                   List all orders which potentially qualify for and were considered for controlling order status. 

b.                  Indicate which order is the alleged controlling order, and the reason for that decision.

c.                   Sign the “Presumed or Alleged Controlling Order Worksheet” in front of a Notary Public. 

 

2.                   Prepare documentation:  Ensure that Content manager for the case contains the notarized “Presumed or Alleged Controlling Order Worksheet,” the “Calculation for Reconciliation of Arrears” with a signed and notarized “Verification/Certification” section, copies of all orders, and copies of all payment records received from other agencies.  The AGO referral must contain a list of all interested parties and tribunals that must be notified as part of the DCO process.  All interested parties and tribunals must be notified as part of the DCO process.   

 

3.                   Send the referral packet to the AGO. 

 

 

DCO Procedures:  Administrative Process

 

1.                   Prepare a “Notice of Agency Action:  Determination of Controlling Order and Reconciliation of Arrears” packet.  The packet includes:

a.                   Notice of Agency Action;

b.                  “Courtesy Copy of Notice of Agency Action: Determination of Controlling Order and Reconciliation of Arrears;”

c.                   “Hearing Request:  Notice of Agency Action:  Determination of Controlling Order and/or Reconciliation of Arrears;”

d.                  “Reconciliation of Arrears Calculation;”

e.                  Copies of all orders considered;

f.                    Copies of all payment records (even the amounts that are restricted information on the payment records can be released to the parties, to IV-D agencies, and to courts); and,

g.                   Copies of any additional supporting documentation.

 

2.                   Maintain a paper copy of the Notice of Agency Action packet.  Keep the original packet signed by the Presiding Officer until service on the party/parties is successful.

 

3.                   Send by first-class mail or serve the Notice of Agency Action packet by certified mail on all interested parties as indicated below.  This may include:

a.                   NCP(s) (certified mail);

b.                  CP (certified mail) – if the CP’s address is not on ORSIS, obtain it from the interstate transmittal (received from the other state).  If the Interstate transmittal does not list the CP’s address, contact that state and get the address;

c.                   Specified relative or guardian (first-class mail);

d.                  Attorneys representing parents or guardians (first-class mail);

e.                  All tribunals that have issued support orders (first-class mail) – If the tribunal is a court in another state, you can obtain the address and phone number for the court by accessing the on-line Intergovernmental Reference Guide (IRG);

f.                    Any state with assigned arrears (first-class mail);

g.                   Initiating state IV-D agency in a two-state action (first-class mail); and,

h.                  Any other party with an interest in the arrears balance (first-class mail).

 

NOTE:  All parties must be notified to allow for due process.  If you are unable to notify one of the parties; e.g. you cannot locate an address for the party, do not continue with the process until you are able to locate an address and notify the party.

 

4.                   Monitor for service to be returned and imaged.

 

5.                   Refer the Notice of Agency Action packet to the appropriate Presiding Officer once all of the parties have been served. 

 

The Presiding Officer will complete the remaining steps.

 

6.                   Monitor for responses from any interested parties for 30 days after the last party was served.  Parties may respond in the following ways:

a.                   Any party can contest the alleged controlling order and/or alleged arrears balance. 

i.                     If the contesting party provides additional information (orders, payment records, etc.)

A.                  Send copies of the new information to all of the interested parties with the “Notice of Additional Information Received” letter.  

B.                  Monitor for another 20 days for any additional responses.  If any party continues to contest the controlling order or the reconciled arrears balance, refer the case to the AGO with all of the supporting documentation to complete the DCO (and ROA) judicially.

C.                  If a party contests the arrears balance but doesn’t provide additional information, refer the case to the AGO with all of the supporting documentation to complete the ROA (and DCO) judicially. 

ii.                   Any party can request a judicial hearing to reconcile the arrears (and determine the controlling order) by completing the “Hearing Request:  Notice of Agency Action, Determination of Controlling Order and/or Reconciliation of Arrears.” 

A.                  Consider any additional information provided and redetermine the controlling order and/or recalculate the balance as appropriate.

B.                  Refer the case to the AGO with all of the supporting documentation to complete the DCO (and ROA) judicially.

iii.                  No contest to the controlling order or the reconciled arrears balance.  Begin procedures to finalize the DCO.

 

7.                   Document all actions taken in the case narratives.  

 

8.                   Adjust the obligation/debt.  If at any point you conclude that there is a different controlling order/current support amount than what is currently charging on ORSIS, update the current support obligation on ORSIS and provide the post-order team with a copy of the order that is now believed to be the controlling order.

 

 

DCO Procedures:  Final Determination, Administrative Process

 

If none of the parties contest the controlling order determination or the reconciliation of arrears calculation as described in the section above, complete the final determination, which is the last step in the determination of controlling order process.

 

1.                   Review the controlling order determination and the reconciliation of arrears that was included in the Notice of Agency Action.  Ensure that all new information has been provided to all interested parties and that a judicial determination is not necessary.

 

NOTE:   If any of the parties know of another order but do not notify the tribunal (CSS – Presiding Officer) of that order within the 30-day timeframe, the final determination is to made based upon the information received, along with any copies of the order(s), the payment records, and the reconciliation of arrears calculation (these become an official part of the record). 

 

2.                   Make a final decision.  Follow the established DCO procedures found in U.C.A. 78B-14-207.  Include all additional information received during the preliminary determination phase and recalculate the controlling order and/or balance as necessary. 

 

3.                   Issue an order:  Prepare the “Order: Determination of Controlling Order and Reconciliation of Arrears” packet.  The packet includes the following: 

a.                   Order;

b.                  “Courtesy Copy of Order:  Determination of Controlling Order and Reconciliation of Arrears;”

c.                   “Notice of Determination of Controlling Order;”

d.                  “Reconciliation of Arrears Calculation;”

e.                  Copies of all orders; and,

f.                    Copies of all payment records.

 

4.                   Send certified copies of the order to all interested parties. U.C.A. 78B-14-207(7): “Within 30 days after issuance of an order determining which is the controlling order, the party obtaining the order shall file a certified copy of it in each tribunal that issued or registered an earlier order of child-support.  A party or support enforcement agency obtaining the order that fails to file a certified copy is subject to appropriate sanctions by a tribunal in which the issue of failure to file arises.  The failure to file does not affect the validity or enforceability of the controlling order.” 

a.                   45 CFR 303.7(d)(5):  “Notify the initiating State agency, the Controlling Order State and any State where a support order in the case was issued or registered, of the controlling determination and any reconciled arrearages within 30 calendar days of receipt of the determination from the tribunal;”

5.                   Send copies to the following:

a.                   NCP(s);

b.                  CP;

c.                   Specified relative or guardian;

d.                  All tribunals that have issued support orders governing the same NCP/CP/child(ren);

e.                  All tribunals that have registered support orders governing the same NCP/CP/child(ren);

f.                    Any state with assigned arrears;

g.                   Initiating jurisdiction in a two-state action; and,

h.                  Any other party with an interest in the arrears balance.

 

NOTE:  This copy certification must be completed by a Notary Public and becomes the cover sheet to the order.      

 

6.                   Send a copy of the Order packet, minus the payment records and the “Calculation Reconciliation of Arrears” form, to the Central Imaging Unit.  The payment records must be secured as restricted information.

 

7.                   Document all actions you have taken during the final determination process in the case-level narratives.

 

8.                   If the DCO resulted in no controlling order, refer the case to the pre-order agent to begin the order establishment process.

 

 

Options After a Final Administrative DCO 

 

Once an Determination of Controlling Order has been issued, it is considered a final binding order, as long as all of the parties have been given proper notice and an opportunity to be heard by this tribunal.  The final order determining the controlling order is now entitled to full faith and credit.   

 

If the parties or entities wish to contest the final determination after the order has been issued, they may choose to take one of the following actions:

 

1.                   File a court action for judicial review within 30 days of the date of the order.  In accordance with U.C.A. 78B-12-113(2)(b) and (c), they must join ORS/CSS as a party to the action, or mail or deliver a written request to the Office of the Attorney General, Child Support Division asking that ORS/CSS be joined as a party. 

“(b) (i) When taking an action described in Subsection (2)(a), a person must file an affidavit with the court at the time the action is commenced, the pleading is filed, or the stipulation is submitted stating whether child support services have been or are being provided under Part IV of the Social Security Act, 42 U.S.C., Section 601 et seq., on behalf of a child who is a subject of the action, pleading, or stipulation.
     (ii) If child support services have been or are being provided, under Part IV of the Social Security Act, 42 U.S.C., Section 601 et seq., the person shall mail a copy of the affidavit and a copy of the pleading or stipulation to the Office of the Attorney General, Child Support Division.
     (iii) If notice is not given in accordance with this Subsection (2), the office is not bound by any decision, judgment, agreement, or compromise rendered in the action. For purposes of appeals, service must be made on the Office of the Director for the Office of Recovery Services.
     (c) If IV-D services have been or are being provided, that person shall join the office as a party to the action, or mail or deliver a written request to the Office of the Attorney General, Child Support Division asking the office to join as a party to the action. A copy of that request, along with proof of service, shall be filed with the court. The office shall be represented as provided in Subsection (1)(b).”

 

A copy of that request, along with proof of service, shall be filed with the court.  Send the referral packet and all supporting documentation to the AGO.

 

2.                   Request reconsideration:  A party that participated during the establishment action can request reconsideration of the order in writing within 20 days after the order was issued.  If a party requests reconsideration, take the following steps:

a.                   Consider the evidence.  Consider if the evidence provided at this time would alter the decisions made in the previous order (i.e., the order determined to be the controlling order is not valid, there is another valid order that was not considered during the controlling order process, or a new payment record is being submitted).

b.                  Grant or deny the request for reconsideration:

i.                     Request neither denied nor granted:  If the Presiding Officer neither grants nor denies the reconsideration request within 20 days, the request is considered denied per UCA 63-46b-13(3)(b), “(b) If the agency head or the person designated for that purpose does not issue an order within 20 days after the filing of the request, the request for reconsideration shall be considered to be denied.”

ii.                   Requested denied:  Issue the “Order:  Reconsideration” using the reconsideration denied options.  Send a copy to all of the interested parties who received a copy of the initial order.  Document your decision in the case narratives.  This form terminates the reconsideration process.

iii.                  Request granted:  Issue the “Order: Reconsideration” using the reconsideration granted options.  Then include the options showing the proposals for how the first order will be altered based on the new evidence provided with the reconsideration request.  Send a copy to all interested parties.  Proceed with the next steps.

c.                   Monitor for response for 35 days after the “Order: Reconsideration” is sent to all parties and monitor for any responses.

d.                  Issue “Order: Reconsideration” including the amended order options.

e.                  Update ORSIS as needed and document all actions in the case narratives.   

f.                    Send certified copies of the “Order Reconsideration” to all interested parties.

g.                   Send a copy of the order to the Central Imaging Unit to be imaged.

 

3.                   Request set aside:  A party that defaulted during the establishment action can request that the order be set aside.

a.                   Does the request meet the criteria for set aside?  See the criteria listed in CS 383P Set Aside Default Orders.

i.                     No.  Issue “Order: Set Aside” with the options to deny the set aside request.  Send a copy to all interested parties.

ii.                   Yes. 

A.                  Issue the “Notice of Agency Action:  Set Aside” to notify all interested parties of the intent to set aside the order.

B.                  Send a copy of the notice to the Central Imaging Unit to be imaged.

C.                  Monitor for responses from any of the parties for 35 days.

D.                  Issue the “Order:  Set Aside” to set aside the “Order: Determination of Controlling Order.”  Determine if it is also necessary to set aside the NAA at this time and choose the options accordingly.

E.                   Update ORSIS as needed and document all actions in the case narratives.

F.                   Send a certified copy of the “Order: Set Aside” to all interested parties.

G.                 Send a copy of the order to the Central Imaging Unit to be imaged.

H.                  If a DCO/ROA is still needed, consider why the “Order: Determination of Controlling Order” was set aside and refer to the previous steps to determine the appropriate process for obtaining a final determination (i.e., petition to other state, request for judicial determination, etc.