ESTABLISH ORDER

CS 356P-3 Specified Relative Cases, Enforcing Existing Orders and Support Follows the Child

11/94 Revised 04/11/12 Training Completed 07/28/05

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

 

Statute and Introduction

 

U.C.A. 78B-12-108 states that:

“(1) Obligations ordered for child support and medical expenses are for the use and benefit of the child and shall follow the child.
     (2) Except in cases of joint physical custody and split custody as defined in Section 78B-12-102, when physical custody changes from that assumed in the original order, the parent without physical custody of a child shall be required to pay the amount of support determined in accordance with Sections 78B-12-205 and 78B-12-212, without the need to modify the order for:
     (a) the parent who has physical custody of the child;
     (b) a relative to whom physical custody of the child has been voluntarily given; or
     (c) the state when the child is residing outside of the home in the protective custody, temporary custody, or custody or care of the state or a state-licensed facility for at least 30 days.”  (Emphasis added.)

 

This statute facilitates the collection of child support from a parent (or parents) who does not have physical custody of a child without the need to modify the order when there is an existing Utah support order and the parents have willingly agreed to a change in physical custody. 

 

Apply this statute from the date physical custody changed or May 1, 2000 (the date the statute went into effect), whichever is later.  For example, if physical custody changed January 13, 2000, you would only apply this statute from May 1, 2000.

 

Procedures to Evaluate an Existing Order for Enforcement and Support-Follows-the-Child

 

If there is an existing child support order for the child(ren), follow the steps listed below to decide if the support order can be enforced on the specified relative case.

 

1.                  Verification of specified relative’s custody of child(ren).  If there is an existing support order, verify physical custody of the child(ren) in at least one of the following ways.

a.                   Eligibility for IV-A financial, Medicaid, or childcare benefits:  Physical custody of the child(ren) is considered verified by the Department of Workforce Services (DWS) determination that the specified relative is eligible to receive financial, Medicaid, or childcare benefits for the child(ren). 

i.                     If a parent with legal custody disputes the determination of DWS, refer to CS 818P Support Follows the Child--Post-Order, Legal Custody Determined.

ii.                   If a parent disputes the determination of DWS, but does not have legal custody of the child(ren), inform that parent that as long as the specified relative is found eligible, the parent(s) has an obligation for support, but notify DWS that physical custody is being disputed so that they may conduct an investigation. 

b.                  Juvenile or district court order granting custody of the child(ren) to the specified relative.

c.                   Completed “Confirmation of Custody Change, Specified Relative Letter and Form” from the parent on an existing CSS child support case with legal custody of the child(ren) per a district or juvenile court order.  Send the form to the parent who has legal custody to obtain his/her confirmation of the voluntary change in physical custody. 

d.                  Completed “Confirmation of Custody Change, Specified Relative Letter and Form” from the parent on an existing CSS child support case who formerly had physical custody of the child(ren).  Send the form to the parent who had physical custody to obtain his/her confirmation of the custody change.  Legal custody is not determined when the only order is administrative, or when a judicial paternity order establishes paternity and a support award but does not address legal custody.

e.                   Written statement from the parent with legal or assumed physical custody if there is no existing CSS child support case.  The statement should include the names of the children in the care of the specified relative, and the duration of the physical custody change.  If the parent has legal custody, the statement must also indicate that the physical custody change is voluntary.

 

NOTE:  On a Non-IV-A case where the specified relative has not been granted legal custody by a court order, if the physical custody arrangement is disputed or is not voluntary, do not enforce the obligation of the parent who has legal custody.  Inform the parent and specified relative that they must resolve the custody issue before CSS will begin enforcing.  This may require the specified relative to petition the court to obtain legal custody or guardianship of the child(ren).  If you are unable to proceed on a case due to unresolved custody issues, close the case.

 

2.                  Duration of the physical custody arrangement.  If the change in physical custody is projected to be less than 12 months, enforce the existing obligation against one or both parents as allowed by the order; however, do not pursue the establishment of a new two-parent order.

 

3.                  Information about existing orders for the child(ren).  If there is an existing child support order that orders one of the parents (e.g., the father) to pay, proceed with enforcement action against that parent.  If the existing order does not specifically order the other parent (e.g., the mother) to pay, answer the questions listed below to decide if CSS can enforce the other parent's obligation using support-follows-the-child procedures or if further legal action is necessary.  If further legal action is necessary to obtain an enforceable order against the other parent, refer to CS 356P-2 Specified Relative Cases, No Existing Order or One-Parent Order, Paternity and Order Establishment.

a.                   Was the controlling order issued in Utah or has it been registered and modified in Utah?

i.                     Yes:  Proceed to the next question.

ii.                   No:   Enforce the child support order against the parent(s) specifically ordered to pay. 

A.                 IV-A case and IV-E cases, out-of-state order: 

(I)                 If only one parent is ordered to pay child support, the out-of-state order should be modified to establish a support obligation against the other parent.  The state with continuing exclusive jurisdiction (CEJ) will conduct the modification.  If the CEJ state is unable to modify the order, close the unobligated parent’s case.

(II)              If the case has an order from another state and both parents and the child (or children) reside in Utah, refer the case to the order establishment team.  The pre-order worker will review the case and refer the case to the Attorney General’s Office (AGO) for registration of the order and modification to establish an obligation against both parents if appropriate.

B.                 Non-IV-A case, out-of-state order:  Utah’s support follows the child statute does not apply to out-of-state orders.  The parties will need to resolve the custody and support issues with the courts in the appropriate state.

b.                  Were both parents respondents to the Utah support order?  Review the order to see if the parent you will be enforcing against was listed as a party (specifically named) in the action to establish the support order (either judicial or CSS administrative order). 

i.                     Yes:  Proceed to the next question.

ii.                   No: 

A.                 On a IV-A case, or a Non-IV-A case if the specified relative has been granted legal custody, an existing judicial order will need to be modified to establish a support obligation against both parents.  If the existing order is administrative, establish a new administrative order that includes an obligation against both parents.

B.                 On a Non-IV-A case, if the specified relative has not been granted legal custody of the child(ren), do not pursue the unobligated parent further.  Inform the specified relative that you cannot proceed and that any modification of the order will be initiated privately by the parties.  Close the case.

 

EXAMPLE 1:  A Utah divorce decree issued in 1999 lists “Jane Doe vs. John Doe” in the header.  The support follows the child statute may be applied to physical custody changes from May 1 2000 forward, and you may enforce the child support obligation against both Jane and John Doe, if the other criteria are met.

 

EXAMPLE 2: A Utah CSS administrative order issued in June 2000 states: “Office of Recovery Services/Child Support Services, Claimant, vs. Jane Doe, Respondent, John Doe, Respondent” in the header.  The support follows the child statute may be applied to physical custody changes, and you may enforce the child support obligation against both Jane and John Doe, if the other criteria are met.

 

EXAMPLE 3:  A Utah CSS administrative order issued at any time states “Office of Recovery Services/Child Support Services, Claimant, vs. John Doe, Respondent” in the header.  The support follows the child statute may not be applied to collect support from the Jane Doe because she is not specifically named as a party to the action.  John Doe’s support obligation may be charged on the specified relative’s case, but a new administrative order must be issued to establish a support obligation against Jane Doe and John Doe if the other criteria are met. 

 

NOTE:  CSS administrative orders have different headers, depending on when they were issued.  Be sure to review the order for the precise header in Example 2 above.

c.                   Is there a sole custody worksheet available with the support order?  If this is a Non-IV-A case, request that the specified relative/applicant obtain the worksheet from the court and provide it to you.

i.                     Yes:  Proceed to the next question.

ii.                   No: 

A.                 On a IV-A case, or on a Non-IV-A case if the specified relative has been granted legal custody, an existing judicial order will need to be modified to establish a support obligation against both parents.  If the existing order is administrative, establish a new administrative order that includes a support obligation against both parents. 

B.                 On a Non-IV-A case where the specified relative has not been granted legal custody, do not pursue the unobligated parent further.  Inform the specified relative that you cannot proceed and that any modification of the order will need to be initiated privately by the parties.  Close the case using the “AMC” closure code. 

d.                  Does the sole custody worksheet contain enforceable amounts for both parents?  To be enforceable, the worksheet must contain amounts greater than zero for both parties, it must not be pre-guidelines, and it must not deviate from the guidelines.

i.                     Yes: 

A.                 Use the amount listed on line 6 of the sole custody worksheet, or the amount from the low-income table, if appropriate, as the ordered child support obligation. 

B.                 If the order is for more than one child, prorate the support for the number of children with the specified relative.  See CS 356-3.4 below. 

C.                 Add the support obligation to ORSIS. 

D.                 Send the “Notice of Child Support Obligation due to Physical Custody Change” letter to notify the parent of this support obligation.

ii.                   No: 

A.                 On a IV-A case, or Non-IV-A case if the specified relative has been granted legal custody, an existing judicial order will need to be modified to establish a support obligation against both parents.  If the existing order is administrative, establish a new administrative order that includes a support obligation against both parents. 

B.                 On a Non-IV-A case, if the specified relative has not been granted legal custody, do not pursue the unobligated parent further.  Inform the specified relative that you cannot proceed and that any modification of the order will need to be initiated privately by the parties.  Close the case.

 

If you determine that a case does not meet the support-follows-the-child criteria or that a two-parent obligation can not be established, close the case. Write a case narrative that explains the reason(s) for not proceeding against this parent.

 

Procedures for Pro-Rating Child Support

 

CSS only pro-rates child support obligations based on Utah guidelines in specified relative cases, Child in Care cases (CIC) and when an unemancipated minor child is the PI (primary information person) on their own eRep case.  In IV-A specified relative cases, ORSIS will attempt to automatically pro-rate the child’s portion of the current support debt, open a current support debt, and roll the child's portion of current support to the appropriate case.  Automatic debt roll will only occur when the "from case" non-custodial parent is the same as the "to case" non-custodial parent.

 

When pro-rating child support on a specified relative case or CIC case, only pro-rate child support for children who were included in the child support calculation on the latest child support worksheet.  If a child was not included in the order, refer to Establish Order sections of Volume 2 for information on establishing a child support obligation for this child.

 

To pro-rate child support for a specified relative case or CIC case, take the steps listed below:

 

1.                  Verify that the child(ren) for whom you are attempting to add a child support obligation on ORSIS are included in the latest order and worksheet.

 

2.                  Divide the total child support obligation that appears on the worksheet by the total number of children listed on the worksheet to arrive at a “per child” amount.

 

3.                  Multiply the “per child” amount by the number of children on the specified relative case.  This is the child support obligation you will enter on the case. 

 

NOTE:  If there is an existing case in which the child support obligation includes ALL children on the worksheet, adjust the current support amount on the existing case to reflect the difference between the total child support amount and the child support amount on the specified relative or CIC case.  This ensures that the non-custodial parent is not charged twice for the same child(ren). You must adjust the respective CRS debts on the same effective date to avoid charging for the same child twice.  Additionally, to avoid receiving inaccurate alerts, inactivate or activate the children on the respective debts and cases as appropriate. 

 

EXAMPLE 1: A non-custodial parent is currently paying $766.00 for 4 children living with the mother on an existing IV-A CSS case.  A specified relative begins to receive cash assistance for one of the children.  A specified relative case is opened and a copy of the latest order and worksheet listing a child support obligation of $766.00 is obtained.  The agent adding the obligation on ORSIS divides the total child support of $766.00 by 4.  The resulting per-child amount is $191.50.  The specified relative case has a child support obligation of $191.50 and the existing case is adjusted to $574.50 for the remaining 3 children in the mother’s home.

 

EXAMPLE 2:  A specified relative completes an application for services and provides a copy of the latest order; a Divorce decree with a child support worksheet attached that lists the child support obligation as $766.00 for 4 children.  The specified relative claims to have two children.  Verify the custody arrangement.  The CRS debt would be $383.00 on the specified relative case for the two children.

 

EXAMPLE 3:  A child goes into the custody of the State.  A copy of the CSS administrative order and worksheet is attributed to the CIC case in Content Manager.  The worksheet shows that the mother’s support amount is $30.00 per month and the father’s support amount is $650.00 per month for two children.  The agent adds the obligations on ORSIS divides the child support amounts by two (the number of children) to get a per child amount.  The CIC cases have child support obligations of $15.00 for the mother and $325.00 for the father.  The existing CSS case is adjusted to $325.00 for the remaining child still living with the mother.