ESTABLISH ORDER

CS 354P Referral to AGO for Order Establishment

07/88 Revised 05/20/17 Training Completed 06/02/17

45 CFR 303.101, 45 CFR 303.4

 

 

Introduction

 

At times it is necessary and appropriate to refer a case that has no support order to the Attorney General’s Office (AGO) to establish an order judicially. 

 

Individuals who work at the Office of Recovery Services/Child Support Services (ORS\CSS) and attorneys with the AGO who handle CSS cases do not represent the non-custodial parent (NCP), custodial parent (CP) (IV-A or non-IV-A), or their interests, including such issues as parent-time, custody, etc.  The NCP and CP should seek private counsel to assist them on these issues.  Refer the applicant to the “Notice of Services”.  CSS and AGO staff may not attempt to define reasonable parent-time or discuss parent-time or custody issues with either party. Remind CPs receiving IV-A services or Medicaid of the IV-A Good Cause option if they have safety concerns for themselves or their children.

 

In addition, it is not the responsibility of CSS or the AGO to notarize private agreements between the NCP and CP, or to obtain restraining orders for the CP.  The CP (IV-A and non-IV-A) should obtain private counsel or private agent service for these actions. 

 

 

Criteria for Referral When Judicial Action is Pending

 

If a judicial action is pending (e.g., divorce action) and no order has been established on a pre-order case, request the Attorney General’s Office (AGO) to establish a child support order if at least one of the criteria listed below applies. 

 

1.                   The State has a continued interest in the matter.  Generally the state is interested in the outcome of judicial actions on all IV-A cases, and could be interested in a Non-IV-A case in some situations.

 

EXAMPLE 1:

There is a provision in a petition for the state to pay attorneys fees and court costs, or comply in some way that does not appear to be supported by the facts and is not in the state’s best interest.

 

EXAMPLE 2:

The children are receiving Medicaid-only services and the petition for divorce does not contain a provision for medical support.  

       

2.                   The parties to the action are not represented by private attorneys and are unlikely to complete the action correctly.

 

EXAMPLE:

The NCP is acting pro se in a divorce action and the action is not progressing due to other issues s/he is raising.  It is not appropriate to initiate the administrative process because the judicial action has already been initiated and a hearing is scheduled in the near future.  The AGO can intervene and ask the court for a temporary order.

 

3.                The worksheets do not appear to be in compliance with the guidelines.

 

EXAMPLE 1:

The guidelines worksheet in a pending Utah divorce action does not include the “add on” cost of insurance premiums.

 

EXAMPLE 2:

The NCP on a IV-A case is self employed and it appears that the gross income amount used in the divorce worksheet is substantially lower than it should be.  There is evidence that the amount deducted from the gross business receipts as reasonable business expenses included private travel expenses unrelated to the business.    

    

4.                   The complaint or petition is incomplete which may affect the final support provisions in the order.

 

5.                   The parties to the action are disputing the State’s understanding of a statute which could influence the court’s interpretation of the statute with regard to this case and future cases.

 

6.                   The court requests the State’s participation in a judicial action.  (The court may order ORS to participate, even if we do not have an open case.)

 

7.                   The parties are represented by private attorneys, but the provisions in the legal pleadings and/or guidelines forms are not correct under current law.

 

If it is appropriate for the AGO to establish a child support order, complete the Establish Order Referral form.  The AGO may utilize an intervener procedure to accomplish this action if a judicial action is pending, but the end goal for ORS purposes is to establish a support obligation for the other parent.  Therefore, the referral reason will be establishment.  

 

 

Existing Judicial Order Does Not Include Support Obligation

 

If there is an existing judicial order on the case but it does not order either parent to pay support for the child(ren) (e.g. the order only addresses arrears for a certain timeframe and does not address a current child support amount) locate both parents and complete the “Establish Order Referral” referral form to request the AGO to establish a judicial child support order, and a medical support order if needed.  Do not establish a support order administratively unless the existing judicial order specifically authorizes ORS to do so. 

 

If there is an existing judicial or administrative order that requires one of the parents to pay support and now the other parent should pay due to a change in the physical custody of the child(ren), refer to Support Follows the Child for instructions.  If the case does not qualify for enforcement against the other parent using support follows the child, locate both parents and complete the Establish Order Referral) referral form to request the AGO to establish a  child support order, and a medical support order for both parents.  The AGO may utilize a modification procedure to accomplish this action, but the end goal for ORS purposes is to establish a support obligation for the other parent.

 

If there is an existing judicial or administrative order and a provision in the order needs to be modified, then this is considered a modification.  For example, there is a child support provision ordering the parents to pay a support and the support amounts are being changed.   

 

If there is an existing judicial or administrative order with no support provision in the order and a support provision is needed, this is considered an establishment because a provision is being added that was not there before. 

 

EXAMPLE 1: There is a Utah Divorce Decree signed February 28, 2005 ordering the father to pay $132.00 per month.  The child’s grandmother is awarded temporary custody in an order dated March 15, 2006 and begins to receive TANF benefits for the child; however, there is no provision for the mother to pay support.  Create a referral to the AGO using the Establish Order Referral referral form requesting the establishment of a two-parent support and medical order. 

 

EXAMPLE 2:  There is a Utah Divorce Decree that is signed September 5, 1997 ordering the father to pay $75.00 per month in child support; there is no amount for the mother to pay.  The mother sends in a written request for a review.  The case qualifies for the 30% increase in income for the father. Open a referral to the AGO using the “Review and Adjustment Referral” referral form requesting a modification to the support and a combination order for the mother to pay.  Since the request came from the custodial parent requesting a review of the child support amount and the amount for the father to pay will change due to an increase in income for the father, the case is considered to be a modification rather than order establishment.

 

 

AGO Referral Required for Same Sex Participants

 

If no order exists on a case where the child’s legal parents are the same sex, do not use the administrative process to establish a child support order.  This restriction to the administrative process includes cases when the obligee and the obligor are the same sex as well as when the two obligors on specified relative cases are the same sex.  Instead of using the administrative process, you are required to refer the case to the AGO to establish a judicial order for child support even when there is no judicial action pending. 

 

When referring the case to the AGO, complete the Establish Order Referral form requesting the establishment of a child support order to include both parents if possible (e.g., both parents live in Utah, ORS has long-arm jurisdiction, etc.).  On the referral packet, add information about the case having two parents of the same sex. 

 

 

Procedures for AGO Referral

 

Once you have determined that a referral needs to be made to the AGO for order establishment, take the steps listed below.

 

1.                   If the Notice of Agency Action (NAA) has not already been sent for service prior to the AG referral or if no hearing has been scheduled on a judicial action that is pending, send the NAA to both parties in correlation with the AG referral in order to meet federal timeframes tor process service.

 

Once the NAA response timeframes have expired, the Presiding Officer (PO) will consult with the AG handling the case to determine whether to proceed with an administrative order at that time or to wait for the pending judicial action to result in a support order.

 

If an administrative order is established and a judicial order is established afterward changing the monthly child support provision, the judicial order will supersede the administrative order child support provision from the date the judicial order is effective forward.  If paternity was established in the administrative order, the judicial order does not disestablish or void the paternity unless specifically stated.

 

NOTE:  This step may not be appropriate under certain case circumstances.  For example, Juvenile Court had jurisdiction prior to an NAA but has not granted ORS authority to proceed administratively.  Discuss possible exceptions with your manager and AGO on a case-by-case basis and document any exceptions in your case narratives.

 

2.                   Check courts online for any judicial action that may be pending or has been completed and has not been imaged into Content Manager.  Narrate the results of the search.  If an order does exist that has not been imaged into the electronic case file, obtain a copy of the order (e.g., court images, ORSCOURTDOCS, CP/NCP, etc.) and prepare the document to be imaged as Forward File.

 

3.                   Update ORSIS.

 

4.                  Complete the proper referral form(s).  Determine if the CP’s or NCP’s case information has been safeguarded on ORSIS.

                                                     

NOTE 1:  The referral form must be generated after the referral has been committed.

 

NOTE 2:  The referral form must be completed for a case to be referred to the AGO.  If the referral form is omitted, or questions on the form are left blank, the referral is not considered complete and the referral packet will be returned to the agent.

 

5.                  If there is pending judicial action, verify that the name listed on the judicial action is listed in ORSIS as either a Primary or Alias name.

 

                EXAMPLE:  A case is being referred to the AGO for order establishment since the CP is receiving financial benefits.  The participants have begun divorce actions; the petition has the mother’s name listed as Jackie Johnson.  The CP has since changed her legal name back to her maiden name, and her primary name listed in ORSIS is Jackie Call.  Verify that the name listed on the divorce petition (Jackie Johnson) is listed as an alias in ORSIS.

 

6.                  Write a narrative detailing the action being.

 

7.                  Prepare the referral packet.

 

8.                  Refer the referral packet to the AGO. 

 

NOTE:  Referral packets and AG litigation files are the property of the AGO and will not be used by CSS nor returned to the agent once the judicial action is completed.  CSS agents may not access the referral packets once they are referred to the AGO and may not obtain copies of any of the documents that may be contained in the AG litigation files.

 

Monitor all judicial referrals made to the AGO in order to ensure that federal timeframe standards are being met on the case.

 

NOTE:  The AGO will complete the Process Service Details and complete the Process Service Worksheet when personal service is required.  CSS agents should not complete this screen or the process service forms at the time of referral.

 

 

Father Out-of-State

 

If the father lives in another state, take the additional steps listed below if the AGO plans to have the Sheriff’s Office in the other state attempt to serve the father.

 

1.                   Obtain the name and address of the Sheriff in the county where the father resides.

 

2.                   Contact the Sheriff and find out how much the Sheriff charges for personal service.

 

3.                   Request a service fee check using the Request for Refund or Fee Payment.  Sign the form and fax it to the ORS Financial Services unit.  Keep the transmittal notice as a record that the request was transmitted.  Financial Services will prepare the check and forward it to you to include with the AG referral. 

 

NOTE:  This process may differ based on regional discretion, consult your manager or ARD.