REVIEW AND ADJUSTMENT OF A SUPPORT ORDER

CS 450P-9 Procedures for Review and Adjustment – Non-Custodial Parent is Incarcerated

New 09/28/18 Training Completed 10/12/18

45 CFR 303.8

 

 

The overall steps for Child Support Services (CSS) cases and Child in Care (CIC) cases coded for review and adjustment are similar.  Any specific procedural differences discussed in this section will refer to “CSS case coded” or “CIC case coded.”  Every letter used in the review and adjustment process on a CSS case has a parallel letter to be used on a CIC case; however, the automation may not be the same.  Those differences are noted below where they are known.

 

 

Statutory Authority

 

Pursuant to 45 CFR 303.8(b)(2), after learning that a noncustodial parent (NCP) will be incarcerated for more than 180 days prospectively, the Office of Recovery Services (ORS) has elected to initiate a review and, if appropriate, adjustment of the child support order.  45 CFR 303.8(b)(2) states:

“The State may elect in its State plan to initiate review of an order, after learning that a noncustodial parent will be incarcerated for more than 180 calendar days, without the need for a specific request and, upon notice to both parents, review and, if appropriate, adjust the order, in accordance with paragraph (b)(1)(i) of this section.”

 

The agent must verify that the NCP’s expected release date is more than 180 days prospectively to determine whether the case qualifies for a modification due to incarceration.

 

 

Overview of Modifications for Incarcerated Individuals

 

In the past, Utah case law combined with Utah Code treated incarceration time frames and reduced earnings due to incarceration as “voluntary underemployment” which prevented most review and adjustment actions from resulting in a change to the order.  In December 2016, the Office of Child Support Enforcement (OCSE) passed new federal regulations which prevented incarceration from being treated as “voluntary underemployment” and required states to adopt one of three options for proceeding with review and adjustment processes for incarcerated parents after the agency learns that the non-custodial parent will be incarcerated for more than 180 calendar days (prospectively). 

 

The three options given to states are:

1.                   Notify both parents of the right to request a review [see 45 CFR 303.8 (b)(7)(ii)];

2.                   Initiate a review without a request [see 45 CFR 303.8 (b)(2)]; or,

3.                   Have a state law which modifies the obligation upon incarceration by operation of law [see 45 CFR 303.8(b)(7)(ii)].

 

ORS has adopted the second option listed. 

 

 

Procedures – Non Custodial Parent is Incarcerated

 

Workers may become aware that a non-custodial parent (NCP) is incarcerated through notifications that occur through normal business practices (e.g., locate results, phone calls, mail, researching local jail or prison sites, etc.).  This may include NCPs who are incarcerated in other states.  

 

When you become aware that an NCP on your caseload is incarcerated, attempt to obtain the sentencing information to determine if the NCP will be incarcerated for more than 180 days from that date.  The 180 days is calculated from the date that ORS receives verification that the NCP will remain incarcerated for more than 180 days.

 

1.                   If you verify that the NCP will be incarcerated for 180 days or less, no further action is necessary.

2.                   If you verify that the NCP will be incarcerated for more than 180 days, update ORSIS and write a detailed case narrative.

 

 

Non-Custodial Parent is Incarcerated – Automatic-Adjustment Provisions

 

When reviewing a case for review and adjustment of a child support award because the non-custodial parent will be incarcerated for more than 180 days from the date that ORS became aware of the incarceration, multiple guideline worksheets may be needed. 

 

When modifying a support award and including an automatic-adjustment provision due to the NCP’s incarceration, use the income worksheet to determine the correct income for the participants for periods during and after the NCP’s release from incarceration.