ESTABLISH ORDER

CS 356P-2 Specified Relative Cases, No Existing Order or One-Parent Order, Paternity and Order Establishment

11/94 Revised 08/18/08 Training Completed 07/16/07

U.C.A. 78B-12-108, 78B-12-205, 78B-12-113

 

Criteria for Order Establishment

 

If there is no existing child support order for either parent of the child(ren), review the following criteria to decide if the Office of Recovery Services/Child Support Services (ORS/CSS) will attempt to obtain a child support order against both parents.  The “Specified Relative/Legal Guardian Information” form is available to assist workers in gathering and evaluating this information; however, its use is not mandatory. 

 

1.                  Verification of specified relative’s custody of child(ren).  Attempt to establish an order only if the physical or legal custody of the child(ren) can be verified in at least one of the following ways:

a.                   The specified relative is receiving IV-A financial, Medicaid and/or child care services from the Department of Workforce Services (DWS) or similar out-of-state agency for the child(ren) in question.

b.                  There is a juvenile or district court order granting custody of the child(ren) to the specified relative.

 

NOTE:  If a Non-IV-A specified relative does not have legal custody of the child(ren), the custody issues must be resolved by a private judicial action initiated by the parties (at which time they may also resolve the child support issues) before CSS can provide child support services.

 

2.                  Information about existing orders for the child(ren). 

a.                   If there is no existing child support order for either parent, proceed to establish an administrative order against both parents.   

b.                  If juvenile court has continuing jurisdiction over the child(ren) but there is not a juvenile court order with a provision granting CSS authority to address child support, refer the case to the Attorney General’s Office (AGO) to establish a judicial support order.

c.         If there is an existing judicial order for one or both of the parents, do not establish a new administrative or judicial order based on a juvenile court provision allowing CSS to address the child support issue.  Instead, refer the case to the AGO to modify the existing judicial order to establish a support obligation against both parents, if both parents are located. If the parent who has the existing obligation cannot be located and served, the modification will only address the other parent’s new obligation.  However, the existing obligation in the underlying order is still valid and enforceable.  (When the other parent is located, ask your AG to modify the order again to include both obligations under one order.)  Prepare a guidelines worksheet based on current incomes for both parents.  If the parent with the existing obligation is not located, use best available income information for that parent, which may be what was included on the original worksheet if more updated information cannot be found.    

 

Paternity Establishment Procedures

 

If paternity is an issue, attempt to establish paternity and an order that includes an obligation for both parents.  The steps you will take depend on which parties are cooperative, and located, and if the paternity allegation is supported by the available evidence, 

 

1.                  Parents have previously signed an “Affidavit for Voluntary Declaration of Paternity by Parents” (VDP) and there is no order:  Establish an order that includes an obligation for both parents. 

a.                   If genetic testing has not been conducted, serve the mother and declarant father with a “Notice of Agency Action: Child Support” and include the paragraph that recommends genetic testing be conducted.

b.                  If genetic testing does not exclude the declarant father, obtain a child support order.

c.                   If the declarant father is excluded by genetic tests, initiate an action to rescind the VDP.

 

2.                  Mother is deceased, cannot be located, or refuses to cooperate:

a.                   Alleged father cooperative:  Have the alleged father sign the “Paternity Affidavit of Affiliation” acknowledging sexual contact with the mother during the conception period.  Consult with your manager, and ARD or RD to obtain permission to use motherless (dyad) genetic testing.  Encourage the alleged father to submit to genetic tests; however, if he refuses testing, you may attempt to establish an administrative paternity order by stipulation without serving a Notice of Agency Action.

b.                  Alleged father requires service:  If you must serve the alleged father to begin the establishment action, you need a paternity affidavit from the specified relative.  The “Paternity:  Affidavit of Affiliation, Relative” allows specified relatives to list reasons that could be personally known to them (i.e., other than conception) why they believe that the person named could be the father of the child.  This affidavit includes several reasons listed in pre-approved text. 

i.                     If the specified relative swears to one of the pre-approved reasons listed on the affidavit, you may proceed with the “Notice of Agency Action:  Paternity and Child Support” and include a completed copy of this affidavit in the packet to be served.

ii.                   If the relative lists a reason under “Other,” on the affidavit, the case will need to be reviewed by the Attorney General’s Office (AGO) to decide if there is sufficient evidence to pursue the alleged father judicially without the mother’s assistance. 

iii.                  If it is determined that there is insufficient evidence to proceed, you may close the case against the alleged father.

 

3.                  Paternity cannot be established:  If paternity cannot be established (e.g., unable to locate the alleged father or there is insufficient evidence to pursue paternity establishment), establish an order obligating the mother, if appropriate.

 

If genetic tests are needed at any point in the establishment process, schedule testing for all parties, with the following differences:

 

1.                  Schedule dyad genetic testing if the mother is deceased (see #2 above) or will not participate in the testing.  The results of dyad testing are as conclusive as those obtained from three person (triad) testing. 

 

2.                  Send the “Paternity:  Genetic Test Appointment, Specified Relative or Legal Guardian” when notifying a specified relative or legal guardian of the need for genetic testing and the child(ren)’s appointment time.    

 

Establish Order Case Procedures

 

If paternity is not an issue and there is no child support order for either parent, proceed to establish an administrative order that includes an obligation for both parents, even if the parents are living together in the same household.  When establishing an order, use the sole custody child support worksheet to determine each parent's support obligation.  Make sure you consider all the children of the marriage, not just the child living with the specified relative. 

 

Prepare the guidelines worksheet using current income figures for both parents.  (NOTE:  Using current income may result in a $30.00 order with an auto-adjustment provision for a parent who previously had a higher income amount.)  Prepare the appropriate Notice of Agency Action with a prospective child support obligation for both parents following the procedures in the Order Establishment sections of Volume 2 or refer the case to the AGO (if the existing order is judicial).  After obtaining the new order, send a copy to the post-order team responsible for the other parent's case.  The post-order Senior Agent is responsible for loading the new order on ORSIS for the existing case.