CHILD SUPPORT GUIDELINES

CS 417P Emancipation

10/89 Revised 04/17/17 Training Completed 04/28/17

U.C.A. 15-2-1, 62A-11-303(5), 62A-11-401(3),(4), 78A-6-1106, 78B-12-102, 78B-12-210, 78B-12-219, 78B-12-301 & 302; R527-250

 

 

Overview

 

The Office of Recovery Services/Child Support Services (ORS) will only establish paternity or a child support order, or enforce a current child support order for a minor child; i.e., a child who has not become emancipated by operation of law.   

 

A child may also become emancipated by his/her own actions, known as “factual” emancipation.  Factual emancipation may become a factor only in cases that do NOT have a judicial support order already established.  If “factual emancipation” is raised by the obligated parent(s) as a reason not to establish a child support order, inform the parents that the courts must issue a judicial order declaring a minor child factually emancipated.  In the absence of such an order, proceed with normal order establishment procedures.   

 

NOTE for Children In Care (CIC) Cases:  Factual emancipation is not applicable for Division of Juvenile Justice Services (DJJS), Foster Care, and other CIC child support programs.  Factual emancipation is inconsistent with the child’s inability to provide for himself/herself and his/her need for a state agency to give care to the child.  Factual emancipation is not applicable when the legal custody of a minor is vested by the court in a secure youth corrections facility or any other state agency other than the child’s parents. Pursuant to UCA 78A-6-1106, the court shall require the parents to pay support and may refer the determination of the amount to the Office of Recovery Services.  Factual emancipation is precluded by this statute.

 

In addition, ORS services do not extend to a child who is not considered legally emancipated, but has been tried as an adult and convicted of a crime.  If a court has certified an unemancipated minor child to stand trial as an adult, and that individual is sentenced to time in an adult prison (not a Youth Corrections facility) for the duration of his/her minority, ORS will not establish paternity and/or a support order, or enforce a support order for that individual.  If there is already a court order for support, ORS recognizes that there may still be an obligation until the child emancipates by law; however, ORS will not pursue the obligation of a child who is tried as an adult and incarcerated.  This rarely occurs in child support cases.  If the child had been tried as a juvenile s/he is in the custody of Youth Corrections and sentenced to serve time in a youth lock-up facility, such as Decker Lake.  Youth Correction cases are referred to the ORS CIC team and the parent(s) are responsible to pay child support to help offset state costs. 

 

 

Emancipation by Operation of Law Criteria

 

In accordance with Utah law a child may become emancipated by operation of law.  “Child” is defined in statute as follows:

 

In U.C.A. 62A-11-303(5),  Child” is defined as: 

“(a) a son or daughter under the age of 18 years who is not otherwise emancipated, self-supporting, married, or a member of the armed forces of the United States;

(b) a son or daughter over the age of 18 years, while enrolled in high school during the normal and expected year of graduation and not otherwise emancipated, self-supporting, married, or a member of the armed forces of the United States. . . . ”

 

Additionally, Utah law provides for a period of minority for a child, as follows:

 

UCA 15-2-1.   Period of minority.
“The period of minority extends in males and females to the age of eighteen years; but all minors obtain their majority by marriage. It is further provided that courts in divorce actions may order support to age 21.”

 

When a child legally emancipates the child support is automatically adjusted to reflect the table amount for the remaining child(ren).

 

UCA 78B-12-219 Adjustment when child becomes emancipated.
“(1) When a child becomes 18 years of age or graduates from high school during the child's normal and expected year of graduation, whichever occurs later, or if the child dies, marries, becomes a member of the armed forces of the United States, or is emancipated in accordance with Title 78A, Chapter 6, Part 8,, Emancipation, the base child support award is automatically adjusted to the base combined child support obligation for the remaining number of children due child support, shown in the table that was used to establish the most recent order, using the incomes of the parties as specified in that order or the worksheets, unless otherwise provided in the child support order.
(2) The award may not be reduced by a per child amount derived from the base child support award originally ordered.
(3) If the incomes of the parties are not specified in the most recent order or the worksheets, the information regarding the incomes is not consistent, or the order deviates from the guidelines, automatic adjustment of the order does not apply and the order will continue until modified by the issuing tribunal. If the order is deviated and the parties subsequently obtain a judicial order that adjusts the support back to the date of the emancipation of the child, the Office of Recovery Services may not be required to repay any difference in the support collected during the interim.”

ORS applies an automatic adjustment when/if a child dies before legal emancipation.  When a child dies the legal duty of support for that child terminates, as a deceased child no longer meets the definition of “child” found in UCA 62A-11-303(5) and 78B-12-102(7). 

 

If the order was entered before July 1, 1994 (the date the law was changed to include the graduation language), the child emancipates at age 18, unless stated otherwise in the order.  If the original order was entered before July 1, 1994 and modified after July 1, 1994, and emancipation language is not addressed in the modified order, refer back to the original order to determine what is stated. If emancipation language is contained in the modified order, it controls emancipation.

 

NOTE:  When/if a child emancipates, it may be appropriate to review the case and determine if a change to the insurance credit is appropriate. 

 

 

Normal and Expected Year of Graduation

 

Pursuant to R527-250-2 Normal and Expected Year of Graduation, the normal and expected rules for graduation for a minor child are as follows:

 

“R527-250-2. Normal and Expected Year of Graduation.

1.  For a child attending school in Utah, the normal and expected year of graduation is based on kindergarten plus twelve years of school, unless an exception as listed below applies.”

 

EXAMPLE 1:

A child is not mature enough to start school in 1990-1991.  Instead the child starts kindergarten in the school year 1991-1992.  The normal and expected year of graduation is kindergarten plus 12 years.  Accordingly, the normal and expected year of graduation would be in 2004, with the 2003-2004 graduating class.

 

EXAMPLE 2:

A child starts kindergarten in 1990-1991.  The child is held back in the third grade, after the child support order is entered, so this does not affect the normal and expected year of graduation.  Accordingly, the normal and expected year of graduation would still be in 2003, with the 2002-2003 class, even though the child will likely graduate in 2004.

 

                “2.   For a child attending school in Utah, ORS/CSS will presume that the normal and expected month of graduation is May of the expected graduating year, unless the parents provide documentation of a specific graduation date for their child.

3.    If a deviation to the “kindergarten plus twelve years” standard is known at the time of the child support order, the expected year of graduation is altered accordingly.  If a child has been held back a grade or experienced another delay in education before the child support order is entered, the “expected” year of graduation will be changed to extend the support obligation based on the known facts about the delay in education.  If the child has been advanced a grade or experienced some other acceleration in education before the child support order is entered, the “expected” year of graduation will change to potentially shorten the support obligation based on the facts about the acceleration in education.

4.  If a deviation to the “kindergarten plus twelve years” standard is not known until after the entry of the child support order, the “expected” year of graduation is not altered based on the new facts unless the child receives an early high school diploma, a high school equivalency diploma, or documentation is provided of early completion of high school course requirements.” (Emphasis added.)

 

NOTE:  For Utah support orders that were entered after July 1, 1994, presume that an 18 year old is in school and pursuing timely graduation unless you are notified by the parent(s) to the contrary.  Do not stop collecting current support until you have received proper documentation from the parent(s) showing an early graduation date (e.g., high school transcript, official letter from the high school, etc.), received an early high school diploma, or a high school equivalency diploma (e.g., GED, etc.).  Once documentation is received as described above, stop collection of the current support for that child, effective the month following the month the child emancipates.

 

If either parent alleges that the 18 year old has graduated or received a high school equivalency diploma but neither parent provides acceptable documentation as described above, continue to collect support until May of the normal year of the child’s graduation.

 

If either parent alleges that the 18 year old is not attending classes, or that s/he has officially dropped out of school and is no longer enrolled, continue to collect until May of the normal year of graduation.  The 18 year old may still resume attendance and graduate on time, or may have completed graduation requirements and is waiting to graduate with his/her class.  If the NCP disagrees, s/he may take the matter to court.  If you are notified that the NCP has taken the matter to court, refer the case to the Attorney General’s Office (AGO).  The AGO will represent the State’s interest and object to having the State participate in any potential reimbursement of support payments.

 

Child Working for General Educational Development (GED):  If a child is 18 and working toward a GED instead of attending high school, s/he is not considered emancipated until she/he receives a high school equivalency diploma or until his/her normal class graduates in May, whichever occurs first.

 

Child Completes Graduation Requirements Early:  Pursuant to R527-250-3,

ORS may cease collection of child support the month following in which the child is no longer enrolled in school, is 18 years old, and:

1.  the child receives a high school diploma at the time of early graduation;

2.  documentation is provided of the child’s early completion of high school course requirements; or,

3.  the child receives a high school equivalency diploma.

 

If a child is 18 and the NCP/CP provides documentation that the 18 year old has completed the graduation requirements ahead of his/her classmates, consider the child emancipated only if the child has actually received a high school diploma, provides other documentation from the school showing an early graduation date (e.g., high school transcript, official letter from the high school, etc.), or high school equivalency diploma (e.g., GED, etc.).  If you have questions about whether the provided documentation meets the standard for early graduation, consult with your Regional Director (RD) and/or your assigned AG.  For example, a child completes the graduation requirements in February and turns 18 in March.  The parents provide a high school transcript from the school showing an early graduation date of February 1, 2016 but the child does not receive a high school diploma until May with his/her normal graduating class.  Since the high school transcript shows an early graduation date, the child support would be charged through March (when the child turns 18) and not May with the normal graduating class.

 

Children in state custody:  Children in the care or custody of the state are required to attend school while in state custody.  Therefore, CIC workers will normally implement the graduation guidelines for children in the care or custody of the state and for siblings included on the Sole Custody Worksheet that are not in custody.  However, in the rare case that a child in state custody does not attend school during the time between his/her 18th birthday and the normal graduation date, CIC will apply the same rules as CSS in determining if child support continues until the normal graduation date based on if the child has received a high school diploma or high school equivalency diploma.

 

 

Exceptions to the Emancipation Criteria

 

1.                   Utah order.  A Utah court order of any date may extend the usual age of emancipation, e.g., for a child that is incapacitated.

 

2.                   Non-Utah order.  If you are enforcing another state’s order, apply the emancipation law for that state.  To determine another state’s age of majority;  i.e, emancipation law, refer to the Intergovernmental Reference Guide (IRG).  For example, the state of New York’s age of majority is 21.  If the method for reducing the out-of-state child support order is not clear based on the information listed in the IRG and/or the other state’s order, contact the IV-D child support office in the state issuing the order and request assistance.  The IV-D office in the issuing state may inform you that the order must be modified for emancipation purposes.  If so, continue to charge the full current support amount until the modification is complete.  Pursuant to UIFSA, the issuing state always maintains jurisdiction over age of majority issues.  Always defer to the instructions given/received by the state or from the IRG for that state and document them in the case narratives.  

 

 

Deviated (Non-Guidelines) Orders and Emancipation

 

UCA 78-45-7.2 (3), (4) and (5) state:

“(3) A written finding or specific finding on the record supporting the conclusion that complying with a provision of the guidelines or ordering an award amount resulting from use of the guidelines would be unjust, inappropriate, or not in the best interest of a child in a particular case is sufficient to rebut the presumption in that case. If an order rebuts the presumption through findings, it is considered a deviated order.

4) The following shall be considered deviations from the guidelines, if:
(a) the order includes a written finding that it is a deviation from the guidelines;

(b) the guidelines worksheet has:
(i) the box checked for a deviation; and
(ii) an explanation as to the reason; or
(c) the deviation is made because there were more children than provided for in the guidelines table.
(5) If the amount in the order and the amount on the guidelines worksheet differ by $10 or more:
(a) the order is considered deviated; and
(b) the incomes listed on the worksheet may not be used in adjusting support for emancipation.

 

EXAMPLE 1:  If the worksheet indicates a guidelines table amount of $484.00 per month but the order is for $490.00 per month, the order is NOT a deviated order for purposes of adjusting support for emancipation regardless of whether if it has the wording described in UCA 78B-12-210(4)(a) or (b), because the difference between the worksheet amount and the order amount is less than $10.00.

 

EXAMPLE 2:  If the worksheet indicates a guidelines table amount of $484.00 per month but the order is for $500.00 per month, the order appears to be a deviated order for purposes of adjusting support for emancipation regardless of whether it has the wording described in UCA 78B-12-210(4)(a) or (b), because the difference is more than $10.00  from the table amount. 

 

EXAMPLE 3:  If the worksheet indicates a guidelines table amount of $484.00 and a child care amount of $100.00 but the order is for $590.00, the order is NOT a deviated order for purposes of adjusting support for emancipation regardless of whether it has the wording described in UCA 78B-12-210(4)(a) or (b), because the difference between the worksheet amounts and the order amount is less than $10.00.

 

If a child emancipates under a deviated order, it may not be possible to make an automatic adjustment to the current support because CSS may not be able to apply the normal deduction for emancipation.  Before determining that an emancipation adjustment is not possible under the current order, consult with the AGO. 

 

If a method for completing the emancipation adjustment cannot be found, let the parents know.

1.                  Non-IV-A cases – Determine if either parent would like the case reviewed for a guideline support order.  If neither parent on a Non-IV-A case requests a modification, continue charging current support based on the existing order.  If one of the parents would like the child support reviewed, s/he must put the request for a modification in writing and submit it to ORS.  Once the request is received, the case should be referred to the modification team.  The modification agent will proceed with the review of the case, collect the relevant current income information, and refer the case to the AGO, if appropriate based upon the procedures found in the modification policies.  If the order is modified, the ordered child support amount will be adjusted on ORSIS.

 

2.                  IV-A cases – Refer the case to the modification team for a review based upon the state’s request.  The modification team is responsible to review the case, collect relevant current income information, and refer the case to the AGO, if appropriate based upon the procedures found in the modification polices.

 

NOTE 1:  When the case is referred to the AGO for a modification, inform them that the order must be based on Utah’s guidelines and not deviate from guidelines as the former order did.

 

NOTE 2:  If a case opens or is reinstated and there is a child who has emancipated on a deviated order, consult with the AGO. 

 

NOTE 3:  On CIC Cases, if the administrative order is deviated and cannot be adjusted for emancipation and the parties will not stipulate, it may be appropriate to initiate the UAPA process to issue a new temporary administrative order for the remaining children.  Do not adjust the ongoing support amount until the new order is established.

 

 

CIC Cases:  Sibling of Child in Care Emancipates

 

A new worksheet should be completed when a sibling of a child in care emancipates.  If credit is given for a sibling who is eighteen years of age, the establish agent will create a mail-alert to notify the collection agent to complete a new worksheet excluding the emancipated sibling.