REVIEW AND ADJUSTMENT OF A SUPPORT ORDER

CS 450P General Information, Forms, Federal Timeframes

10/90 Revised 09/28/18 Training Completed 10/12/18

45 CFR 303.3, 303.8; U.C.A. 62A-11-304.4, 306.2, 320.5, 320.6; 78B-12-111, 112, 202, 204, 205; R527-231, 255, 601

 

 

Introduction

 

Federal regulations found at 45 CFR 303.8(b)(1) require states to:

“...have procedures under which, within 36 months after establishment of the order or the most recent review of the order (or such shorter cycle as the State may determine), if there is an assignment under part A, or upon the request of either parent, the State shall, with respect to a support order being enforced under title IV–D of the Act, taking into account the best interests of the child involved:

(i) Review and, if appropriate, adjust the order in accordance with the State’s guidelines established pursuant to section 467(a) of the Act if the amount of the child support award under the order differs from the amount that would be awarded in accordance with the guidelines. . . .”

 

The review and adjustment process is for those cases where the Office of Recovery Services (ORS) is simply reviewing the currently ordered child support amount (greater than zero) for the paying parent and the medical support provision to determine if another amount or medical provision is appropriate pursuant to the guidelines.  If an adjustment is required, the existing order is modified, or changed, to contain the updated provisions. 

 

There are other reasons to modify an existing order which are not the same as the review and adjustment process described below (i.e., modifying an existing order that contains no child support provision to establish a child support amount).  While these other types of modifications may share some similarities to the review and adjustment process, they are not reviewing an existing support amount greater than zero, so there are also elements of establishment.  This type of modification will be referred to as “modification to establish.”

 

Reviews and adjustments fall into four main categories:

 

·                  3 year review, mandatory review if child(ren) are receiving IV-A cash assistance.  If it has been 3 years or more since the order was issued or modified, the ordered amount for the payor only needs to change by 10% to qualify for a potential modification.  Cases that qualify for the mandatory review will be identified by the “3 Yr Review” report. 

 

·                     3 year review, substantial change in circumstances not required.  If it has been 3 years or more since the order was issued or modified on a Non-IV-A case, the ordered amount for the payor only needs to change by 10% to qualify for a potential modification. 

 

·                     Less than 3 year review, substantial change in circumstances required.  If it has been less than 3 years since the order was issued or modified, then the requesting party must prove that there has been a substantial change in circumstances in order to modify the support order.  In addition, the ordered amount for the payor must change by 15% in order to qualify for a potential modification.

 

·                      NCP incarcerated for more than 180 calendar days.  Pursuant to 45 CFR 303.8 (b), after learning that a noncustodial parent (NCP) will be incarcerated for more than 180 days, the Office of Recovery Services/Child Support Services (ORS/CSS) has elected to initiate a review and 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.”

 

NOTE:  Generally, the payor in the above instances is the non-custodial parent.  For specified relative cases or Children in Care (CIC) cases, the payor may be either or both parent(s).

 

An order may not be modified retroactively.  Utah Code Annotated (U.C.A. 78B-12-112(4) states:

“A child or spousal support payment under a support order may be modified with respect to any period during which a modification is pending, but only from the date of service of the pleading on the obligee, if the obligor is the petitioner, or on the obligor, if the obligee is the petitioner. If the tribunal orders that the support should be modified, the effective date of the modification shall be the month following service on the parent whose support is affected. Once the tribunal determines that a modification is appropriate, the tribunal shall order a judgment to be entered for any difference in the original order and the modified amount for the period from the service of the pleading until the final order of modification is entered.”

 

Some orders contain a provision that requires the parties to use mediation prior to modifying their order.  CSS is not bound by that provision and will proceed with reviews regardless of whether or not mediation has occurred.

 

If physical custody of all of the children has changed from that which is specified in the order, refer to the appropriate section in Volume 2.

 

 

Federal Timeframes for Review and Adjustment

 

The federal time frames listed below must be met when reviewing and adjusting a support order.

 

45 CFR 303.8(e) states:

“Timeframes for review and adjustment. Within 180 calendar days of receiving a request for a review or locating the non-requesting parent, whichever occurs later, a State must: Conduct a review of the order and adjust the order or determine that the order should not be adjusted, in accordance with this section. 

 

If during the 180-day time period you are unable to locate the non-custodial parent (NCP), the time frame stops until the NCP is located, unless you have sufficient information to proceed with the review and adjustment.

 

45 CFR 303.3(b)(3) states:

“Within no more than 75 calendar days of determining that location is necessary, access all appropriate location sources and ensure that location information is sufficient to take the next appropriate action in a case;

 

 

CSS vs. CIC Review and Adjustment

 

Effective July 2012, the Review and Adjustment Sections treat reviews and adjustments of existing orders completed by Children in Care (CIC) and by Child Support Services (CSS) in a similar manner.

 

Where possible, the ORSIS coding should be completed on an open CSS case for the parties, even if the request to modify is received for a CIC case number.  Use a IVDS (CSS) case for ORSIS coding whenever possible because of the increased automation of the ORSIS process.  The post order agent who receives the request may need to coordinate efforts with a different post order worker to code the correct ORSIS case for the review and adjustment process

 

The overall steps for CSS cases and CIC cases 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 in the procedures where they are known.

 

When a CIC Administrative order exists in addition to a CSS administrative order or a judicial order for support, refer to policy to determine which order will be modified.  In general, the only time the review and adjustment will be completed on a CIC administrative order is if it is the only existing order.

 

 

When CSS May Deny a Review or an Adjustment

 

Administrative rule R527-231-2 states when CSS may deny a review or an adjustment, as follows:

“1.  If the child is within one year of emancipation, ORS/CSS shall not be required to review the award for potential adjustment.”

 

If the youngest child is within one year of emancipation, do not conduct the review.  If a parent is requesting a review because a child has emancipated and the order is deviated, conduct the review based on review and adjustment procedures.

 

“2.  If the location of either parent is unknown, ORS/CSS shall not be required to review the support award for possible adjustment until both parents are located.” 

 

“4.  ORS/CSS shall pursue adjustment of a court order only for child support or medical support provisions. ORS/CSS shall not pursue modification of a court order for custody, visitation, property division or other non-child support related provisions.”

 

NOTE:  In the past, Utah has treated 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 incarceration is no longer a valid reason to deny a modification.

 

Additionally, CSS will not initiate a review if the case falls into one or more of the categories listed below.

 

1.                   It is not in the best interest of the child.  However, ORS/CSS is not in a position to determine whether the review is in the best interest of the child and will proceed based on a request from either party, or when Utah is required to initiate the review.

 

NOTE:  A determination of safeguarding or nondisclosure, or the existence of a protective order is not grounds for denying a review and adjustment request from either party.

 

2.                   An order includes a provision for an annual adjustment of the support amount under the guidelines but is not "self-executing".  CSS cannot conduct a review and adjustment because it requires involvement of the court to determine the new support amount.  

 

NOTE:  CSS can do annual adjustments if court involvement is not required, the order allows informal adjustment, and the parties agree.

 

3.                   The order is a tribal order that is not based on statutory guidelines and is therefore not subject to state procedures. 

 

4.                   U.C.A. 78B-12-202(6) states,

“If the monthly adjusted gross income of either parent is $649 or less, the tribunal shall determine the amount of the child support obligation on a case-by-case basis, but the base child support award may not be less than $30.” 

 

If the only change to an order would be to change a $0.00 child support award amount to $30.00, do not proceed with a review and adjustment.  The basic facts around the parent’s income have not changed, and a modification will not occur.

 

 

Present Family Considerations

 

UCA 78B-12-210 states:

“(6) (a) Natural or adoptive children of either parent who live in the home of that parent and are not children in common to both parties may at the option of either party be taken into account under the guidelines in setting a child support award, as provided in Subsection (7).
(b) Additional worksheets shall be prepared that compute the base child support award of the respective parents for the additional children. The base child support award shall then be subtracted from the appropriate parent's income before determining the award in the instant case.
(7) In a proceeding to adjust or modify an existing award, consideration of natural or adoptive children born after entry of the order and who are not in common to both parties may be applied to mitigate an increase in the award but may not be applied:
(a) for the benefit of the obligee if the credit would increase the support obligation of the obligor from the most recent order; or
(b) for the benefit of the obligor if the amount of support received by the obligee would be decreased from the most recent order.”

 

Any qualifying present family credit can only be given to the obligor to mitigate an increase in the obligor’s child support amount and can only be given to the obligee to mitigate a decrease in the obligor’s child support amount. 

 

EXAMPLE 1:

 

Obligor’s current obligation is $300.00.
Obligor’s obligation without obligor’s present family credit is $350.00.
Obligor’s obligation with the obligor’s present family credit is $280.00.

Amount to use in the review process for this party is $300.00; this means the current obligation for this party would not change.  Only proceed with the modification if the other party’s obligation meets the criteria for an adjustment.  This is not a deviated order.  The credit is being applied to mitigate an increase.  Use the worksheet with the present family credit but do not lower the child support amount past the original amount.


EXAMPLE 2:  Obligor requests the present family credit.

 

Obligor’s current obligation is $300.00.
Obligor’s obligation without the obligor’s present family credit is $350.00.
Obligor’s obligation with the obligor’s present family credit is $320.00.

Amount to use in the review process for this party is $320.  The credit is being applied to mitigate an increase to the support amount and does not cause the new amount to decrease from the most recent order.

 

EXAMPLE 3:  Obligee requests the present family credit.

 

Obligor’s current obligation is $300.00.

Obligor’s obligation without giving the obligee present family credit is $325.00.

Obligor’s obligation with the obligee’s present family credit is $350.00.

 

Amount to use in the review process for the obligor is $325.00.  If present family credit is given to the obligee, it causes the obligor’s ordered amount to increase even more from the most recent order.

 

EXAMPLE 4:  Obligor and obligee request the present family credit.

 

Obligor’s most recent order obligation is $710.00.

Obligor’s obligation with no present family credit is $750.00.

Obligor’s obligation with the obligor present family credit is $730.00.

Obligor’s obligation with the obligee present family credit is $800.00.

 

Amount to use in the review process for the obligor is $730.00.  Credit would be allowed for the obligor because the new obligation amount with the obligor present family credit mitigates the increase in the support obligation from the most recent order.  Credit would not be allowed for the obligee because the new obligation amount with the obligee present family credit increases the support obligation from the most recent order.

 

When reviewing a case for a review and adjustment, any present family credit that was included in the order that is currently being enforced must be reviewed again in order to be considered in the new worksheet.  The party seeking the present family credit must cooperate with ORS (e.g., produce current income information for his/her spouse) so that an appropriate credit may be calculated based on the party’s current situation.  If a situation arises where a party was given a present family credit in the order that is currently being enforced, contact that party and inform him/her that s/he must cooperate with ORS and provide current information in order for a new present family credit to be considered during the modification.  Additionally, if a parent was given a present family credit previously and that parent and his/her spouse have since separated, an order for support between those parents may exist.  Review each credit on a case-by-case basis.

 

 

Previously Ordered Child Support Credit

 

U.C.A. 78B-12-204 states:

“(1) As used in this chapter, "adjusted gross income" is the amount calculated by subtracting from gross income alimony previously ordered and paid and child support previously ordered.
(2) The guidelines do not reduce the total child support award by adjusting the gross incomes of the parents for alimony ordered in the pending proceeding. In establishing alimony, the court shall consider that in determining the child support, the guidelines do not provide a deduction from gross income for alimony.”

 

UCA 78B-12-210 states:  

“(6)(a) Natural or adoptive children of either parent who live in the home of that parent and are not children in common to both parties may at the option of either party be taken into account under the guidelines in setting a child support award, as provided in Subsection (7).

(b) Additional worksheets shall be prepared that compute the base child support award of the respective parents for the additional children. The base child support award shall then be subtracted from the appropriate parent's income before determining the award in the instant case.

(7) In a proceeding to adjust or modify an existing award, consideration of natural or adoptive children born after entry of the order and who are not in common to both parties may be applied to mitigate an increase in the award but may not be applied:
(a) for the benefit of the obligee if the credit would increase the support obligation of the obligor from the most recent order; or
(b) for the benefit of the obligor if the amount of support received by the obligee would be decreased from the most recent order.”

 

Only give new previously ordered child support credit to the obligor to mitigate any potential increase in the obligor’s support amount and to the obligee to mitigate any potential decrease in the obligor’s support amount.  Any new previously ordered child support credits may be applied for children who were born after the original and before the current review for modification.  See the instructions above for present home credit. 

 

Additionally, when reviewing a case for a modification, always apply any previously ordered child support credit that was included in the order that is currently being enforced unless you are made aware that the credit is no longer applicable (e.g., child[ren] is emancipated or deceased, the order has been voided, etc.).  If the amount of the previously ordered child support credit that was included in the order that is currently being enforced has changed due to an emancipation and you are aware of a new emancipation worksheet for that case (i.e., the case is in ORSIS and the new emancipation worksheet is in Content Manager), use the amount listed in the emancipation worksheet as part of the previously ordered child support credit for the case being reviewed for modification.  Write a detailed narrative explaining why the amount of previously ordered child support credit has changed.

 

Consult with the Attorney General’s Office (AGO) as needed for assistance in deciding which previously-ordered child support amounts should be applied on a case-by-case basis.  Write a detailed narrative regarding all previously ordered child support credits given during a modification

 

EXAMPLE 1:

 

Obligor’s current obligation is $450.00.

Obligor’s obligation without any new previously ordered child support credit is $600.00.

Obligor’s obligation with new previously ordered child support credit for the obligor is $500.00.

 

Amount to use in the review process is $500.00.

 

EXAMPLE 2:

 

Obligor’s current obligation is $500.00.

Obligor’s obligation without any new previously ordered child support credit is $300.00.

Obligor’s obligation with new previously ordered child support credit for the obligee is $400.00.

 

Amount to use in the review process is $400.00.

 

Pursuant to U.C.A. 78B-12-210, when appropriate, give credit to each parent for all previously ordered child support regardless of whether or not the support is being paid. 

 

On split custody worksheets, use the base child support award.

 

EXAMPLE:  Split custody worksheet.

 

Mom 1’s obligation is $350.00.

Dad’s obligation is $490.00.

Base child support award for dad to pay mom is $140.00.

Dad has another child with mom 2.  Give dad $140.00 previously ordered credit.

 

 

Upward or Downward Modifications

 

State attorneys and CSS agents must be neutral and unbiased when dealing with the review and modification issue, and cannot advocate one type of modification over another.  Do not consider whether a potential change in the support award may be upward or downward when deciding whether to complete a review.  Apply the Utah child support guideline statute uniformly, which provides for both upward and downward modifications based on the evidence and individual facts of the case. 

 

 

Request to Stop the Review from the Requesting Party

 

In some cases the requesting party may request that you stop the review and adjustment process after the review has begun.  The request may be active, such as the requesting party asking for the review to stop, or passive, such as the requesting party not providing the information necessary to take the next step on the review or their location becomes unknown to CSS.  If the requesting party requests the review to stop, the request must be in writing. The requesting party is the only parent that may request the review to stop.  The procedures for terminating the review vary depending on the phase of the review and adjustment, and who has been contacted regarding the review.

 

1.                   Requesting parent requests review to stop.  If the requesting party submits a written request for the review and adjustment to stop, follow the steps listed below:

a.                   Pre-request phase.  The requesting party is the only parent that has been contacted during the pre-request phase.  Because you have the written request to terminate the review, it is not necessary to contact either party before ending the review and adjustment process.

i.                     Complete the appropriate fields in ORSIS that the review is being stopped at the parent’s request.

b.                  Review and Adjustment phase.  In general, you have contacted both the requesting and non-requesting parent during the review and adjustment phases.  This means that the non-requesting parent has the chance to agree or disagree with the termination of the review.  Because the requesting parent has submitted the written request to terminate the review, it is not necessary to contact that parent regarding the termination.

i.                     Send the Review and Adjust: Review Termination Notice and select the “Review terminated” option to the non-requesting party to find out if the non-requesting party wants the review and adjustment to continue or to stop.  The non-requesting party has 10 days to ask for the review process to continue.

 

2.                   Another jurisdiction requests to stop the review.  If the requestor was another jurisdiction and Utah has Continuing Exclusive Jurisdiction (CEJ) on a CSS case, the request to terminate the review and adjustment must be received in writing or via CSENET. 

a.                   If there has been a request for the review to continue, end the review and adjustment using the previous steps.  Then, start the review and adjustment process from the beginning because the change in requestor could affect which state should conduct the review and adjustment. 

 

1.                   Requesting parent fails to provide the requested information.  R527-231-2 states:

“5.  If the parent requesting the review does not provide the necessary information for ORS/CSS to conduct the review, ORS/CSS shall send notice to the address on record for the requesting and non-requesting parents that the review process will be terminated unless the non-requesting parent requests that the review process continue.”

 

If the requesting party fails to provide the requested information, follow the steps listed below:

a.                   Pre-request phase.  During the pre-request phase, the review and adjustment will be handled differently depending on the information received.  During the pre-request phase, the requesting party must submit the following required documentation:

·                     Completed financial statement or general testimony (if CEJ has already been determined);

·                     Proof of a change in circumstances (less than three year review);

·                     Findings of Fact (for judicial orders if it exists).  The Findings of Fact should provide more information about the terms of the order, such as whether the support award amount was based on imputed income; and,

·                     Notarized “Affidavit of Decreased Income”, if appropriate.  The letter may be sent to the requesting party during the pre-review stage if it is known that the requesting party’s income has decreased and additional information is needed.  If the letter is sent, the response must be notarized unless the requestor is incarcerated.

 

i.                     No information received or some information received.  If there is no response or only some information is received from the requesting party, complete the steps listed below.

A.                  Send the letter selecting either the “Final request” or “additional pre-review information is needed” option to the requesting party to inform the requesting party that they have 10 days to provide the information or the review will be stopped.

B.                  Work the alert.

I.                    Requesting party provides the necessary information.  Continue the review and adjustment process.

II.                  Requesting party does not provide the necessary information.  Take the necessary steps to terminate the review.

C.                  If the requestor was another jurisdiction and the requested information is not received, notify the other agency that ORS is unable to complete the review and adjustment through CSENET or if the other state is not CSENET active, send the Interstate Progress Report.

b.                  Review and Adjustment phase.  If at any time during the review phase the requesting party fails to provide needed information, follow the steps below. 

i.                     Send the letter selecting either the “Final request” option to the requesting party to inform the requesting party that they have 10 days to provide the information or the review will be stopped.

A.                  Work the alert. 

I.                    Requesting party provides the necessary information.  Continue the review and adjustment process.

II.                  Requesting party does not provide the necessary information.

(a)                Send the Review and Adjust: Review Termination Notice and select the “Review terminated” option to the non-requesting party to find out if the non-requesting party wants the review and adjustment to continue or to stop.  The non-requesting party has 10 days to ask for the review process to continue.

(b)               Work the alert. 

(c)                If there has been no request to continue.  Take the steps necessary to terminate the review.

(d)               If there has been a request for the review and adjustment to continue, update the appropriate fields in ORSIS.

 

If the non-requesting party fails to return any required documents during the review and adjustment process, attempt to obtain the best available information and continue with the review and adjustment.  This also applies for when Utah is the requestor and both parents are considered the non-requesting party.

               

 

Information Received from Requestor After the Review is Terminated

 

If the required documentation is received from the requestor within a reasonable time (generally 30 days) after ORSIS is updated, follow the steps below.

 

1.                   Contact the assigned worker and ask him/her to enter the correct code on ORSIS.  This gives the modification agent access to the case.

 

2.                   On the same day, enter the appropriate code on ORSIS.  This will stop the letter from being generated to the requesting party and begin the 180 day time frame.

 

3.                   Set a SELF alert for 20 days in lieu of the alert.  At that time, proceed as you normally would when you receive the alert.  A new alert will not generate since the letter will not be generated.  This will need to be manually monitored.

 

 

Intergovernmental Modification - Only

 

The Office of Recovery Services/Child Support Services (ORS/CSS) will not send an interstate referral/request to another state for a modification-only, or provide services for a modification-only request.  CSS will request or provide full services in these cases, with some exceptions on incoming cases.