ESTABLISH ORDER

CS 350P Federal Regulations and State Laws

10/18/82 Revised 04/20/09

45 CFR 302.31, 45 CFR 302.33, 45 CFR 302.50, 45 CFR 302.56, 45 CFR 303.4, 45 CFR 303.8, 45 CFR 303.101, U.C.A. 62A-11-301 through 328, 63G-4, 78B-3-201 through 209, 78B-12-105, 78B-12-210 through 218, 78B-12-301 and 302, 78B-12-401 through 403, 78B-14, 78B-15.

 

Federal Regulations

 

1.                         45 CFR 302.50 states:
  “(a)  An assignment of support rights, as defined in Sec. 301.1 of this chapter, constitutes an obligation owed to the State by the individual responsible for providing such support. Such obligation shall be established by:
    (1) Order of a court of competent jurisdiction or of an administrative process; or
    (2) Except for obligations assigned under 42 CFR 433.146, other legal process as established by State laws, such as a legally enforceable and binding agreement.
    (b) The amount of the obligation described in paragraph (a) of this section shall be:
    (1) The amount specified in the order of a court of competent jurisdiction or administrative process which covers the assigned support rights.
    (2) If there is no court or administrative order, an amount determined in writing by the IV-D agency as part of the legal process referred to in paragraph (a)(2) of this section in accordance with the requirements of Sec. 302.56; or
    (c) The obligation described in paragraph (a) of this section shall be deemed for collection purposes to be collectible under all applicable State and local processes.
    (d) Any amounts which represent support payments collected from an individual responsible for providing support under the State plan shall reduce, dollar for dollar, the amount of his obligation under this section.
    (e) No portion of any amounts collected which represent an assigned support obligation defined under Sec. 301.1 of this chapter may be used to satisfy a medical support obligation unless the court or administrative order designates a specific dollar amount for medical purposes.”

 

2.                         45 CFR 302.31(a) states:
    “The IV-D agency will undertake:
    (1) In the case of a child born out of wedlock with respect to whom an assignment as defined in Sec. 301.1 of this chapter is effective, to establish the paternity of such child; and
    (2) In the case of any individual with respect to whom an assignment as defined in Sec. 301.1 of this chapter is effective, to secure support for a child or children from any person who is legally liable for such support, using State laws regarding intrastate and interstate establishment and enforcement of support obligations. Effective October 1, 1985, this includes securing support for a spouse or former spouse who is living with the child or children, but only if a support obligation has been established for that spouse and the child support obligation is being enforced under the title IV-D State plan.”

 

3.                         45 CFR 302.33(a)(1) states:
    “The State plan must provide that the services established under the plan shall be made available to any individual who:
    (i) Files an application for the services with the IV-D agency. In an interstate case, only the initiating State may require an application under this section; or
    (ii) Is a non-IV-A Medicaid recipient; or
    (iii) Has been receiving IV-D services and is no longer eligible for assistance under the title IV-A, IV-E foster care, and Medicaid program.”

 

4.                         45 CFR 302.56 states:
   “(a) Effective October 13, 1989, as a condition of approval of its State plan, the State shall establish one set of guidelines by law or by judicial or administrative action for setting and modifying child support award amounts within the State.
    (b) The State shall have procedures for making the guidelines available to all persons in the State whose duty it is to set child support award amounts.
    (c) The guidelines established under paragraph (a) of this section must at a minimum:
    (1) Take into consideration all earnings and income of the non-custodial parent (NCP);
    (2) Be based on specific descriptive and numeric criteria and result in a computation of the support obligation; and
    (3) Address how the parents will provide for the child(ren)’s health care needs through health insurance coverage and/or through cash medical support in accordance with subsection 303.31 of this chapter.
    (d) The State must include a copy of the guidelines in its State plan.
    (e) The State must review, and revise, if appropriate, the guidelines established under paragraph (a) of this section at least once every four years to ensure that their application results in the determination of appropriate child support award amounts.
    (f) Effective October 13, 1989, the State must provide that there shall be a rebuttable presumption, in any judicial or administrative proceeding for the award of child support, that the amount of the award which would result from the application of the guidelines established under paragraph (a) of this section is the correct amount of child support to be awarded.
    (g) A written finding or specific finding on the record of a judicial or administrative proceeding for the award of child support that the application of the guidelines established under paragraph (a) of this section would be unjust or inappropriate in a particular case shall be sufficient to rebut the presumption in that case, as determined under criteria established by the State. Such criteria must take into consideration the best interests of the child. Findings that rebut the 
guidelines shall state the amount of support that would have been required under the guidelines and include a justification of why the order varies from the guidelines.
    (h) As part of the review of a State's guidelines required under paragraph (e) of this section, a State must consider economic data on the cost of raising children and analyze case data, gathered through sampling or other methods, on the application of, and deviations from, the guidelines. The analysis of the data must be used in the State's review of the guidelines to ensure that deviations from the 
guidelines are limited.”

 

4.                         45 CFR 303.4 states:
   “For all cases referred to the IV-D agency or applying under Sec. 302.33 of this chapter, the IV-D Agency must:
    (a) When necessary, establish paternity pursuant to the standards of  Sec. 303.5;
    (b) Utilize appropriate State statutes and legal processes in establishing the support obligation pursuant to Sec. 302.50 of this chapter.
    (c) Periodically review and adjust child support orders, as appropriate, in accordance with Sec. 303.8.
    (d) Within 90 calendar days of locating the alleged father or NCP, regardless of whether paternity has been established, establish an order for support or complete service of process necessary to commence proceedings to establish a support order and, if necessary, paternity (or document unsuccessful attempts to serve process, in accordance with the State's guidelines defining diligent efforts under Sec. 303.3(c)).
    (e) If the court or administrative authority dismisses a petition for a support order without prejudice, the IV-D agency must, at the time of dismissal, examine the reasons for dismissal and determine when it would be appropriate to seek an order in the future, and seek a support order at that time.
    (f) Seek a support order based on a voluntary acknowledgment in accordance with Sec. 302.70(a)(5)(vii).”

 

5.                         45 CFR 303.8(b) states:
   “Pursuant to section 466(a)(10) of the Act, when providing services under this chapter, the State must:
    (1) Have in effect and use a process for review and adjustment of child support orders being enforced under title IV-D of the Act, including a process for challenging a proposed adjustment or determination.
    (2) Not less than once every three years, notify each parent subject to a child support order in the State of the right to request a review of the order, and the appropriate place and manner in which the request should be made.”

 

6.                         45 CFR 303.101 (b)(2) states:
   “(i) In IV-D cases needing support order establishment, regardless of whether paternity has been established, action to establish support orders must be completed from the date of service of process to the time of disposition within the following timeframes:
    (A) 75 percent in 6 months; and
    (B) 90 percent in 12 months.
    (ii) In IV-D cases where a support order has been established, actions to enforce the support order must be taken within the timeframes specified in Secs. 03.6(c)(2) and 303.100;
    (iii) For purposes of the timeframe at Sec. 303.101(b)(2)(i), in cases where the IV-D agency uses long-arm jurisdiction and disposition occurs within 12 months of service of process on the alleged father or NCP, the case may be counted as a success within the 6 month tier of the timeframe, regardless of when disposition occurs in the 12 month period following service of process.
    (iv) Disposition, as used in paragraphs (b)(2)(i) and (iii) of this section, means the date on which a support order is officially established and/or recorded or the action is dismissed.”
 
    Section (d) goes on to state:
   “Functions. The functions performed by presiding officers under expedited processes must include at minimum:
    (1) Taking testimony and establishing a record;
    (2) Evaluating evidence and making recommendations or decisions to establish paternity and to establish and enforce orders;
    (3) Accepting voluntary acknowledgment of paternity or support liability and stipulated agreements setting the amount of support to be paid;
    (4) Entering default orders upon a showing that process has been served on the defendant in accordance with State law, that the defendant failed to respond to service in accordance with State procedures, and any additional showing required by State law; and
    (5) Ordering genetic tests in contested paternity cases in accordance with Sec. 303.5(d)(1).”
 

State Laws

 

1.                  UCA 78B-12-105.   Duty of parents states:
     “(1) Every child is presumed to be in need of the support of the child's mother and father. Every mother and father shall support their children.
     (2) Except as limited in a court order under Section 30-3-5, 30-4-3, or 78B-12-212:
     (a) The expenses incurred on behalf of a minor child for reasonable and necessary medical and dental expenses, and other necessities are chargeable upon the property of both parents, regardless of the marital status of the parents.
     (b) Either or both parents may be sued by a creditor for the expenses described in Subsection (2)(a) incurred on behalf of minor children.”

 

2.                  UCA 62A-11-301 through 328 is the act which authorizes the administrative process.

 

3.                  UCA 63-46b is the Utah Administrative Procedures Act (UAPA).

 

4.                  UCA 78B-3-201 through 78B-3-209 address jurisdiction over non-residents.

 

5.                  UCA 78B-12-210 through 78B-12-218 is the Statewide Child Support Guidelines.

 

6.                  UCA 78B-12-401 through 78B-12-403 addresses the Child Support Guidelines Advisory committee.

 

7.                  UCA 78B-12-301 and 78B-12-302 is the Base Combined Child Support Obligation Table and Low Income Table.

 

8.                  UCA 78-45a is the act which addresses establishment of paternity.

 

9.                  UCA 78B-15 is the Utah Uniform Parentage Act.

 

10.              UCA 78B-14 is the Uniform Interstate Family Support Act (UIFSA).