12/84 Revised 05/05/15 Training Completed 05/15/15
Introduction Statutory Authority
When a custodial parent (CP) is receiving IV-A cash assistance from the State of Utah or a child has been places in state custody, the State has the right to receive child support payments to offset the costs of those programs. If the CP (or a former CP for state custody situations) receives direct payment of support from a non-custodial parent (NCP) during those time periods, the CP has “retained support” that legally belongs to the State of Utah.
U.C.A. 35A-3-108 states:
“(1)(a) The division shall obtain an assignment of support from each applicant or client regardless of whether the payment is court ordered.
(b) Upon the receipt of assistance, any right to receive support from another person passes to the state, even if the client has not executed and delivered an assignment to the division as required by Subsection (1)(a).”
U.C.A. 62A-11-307.2 states:
“(4)(a) If an obligee receives direct payment of assigned support from an obligor, the obligee shall immediately deliver that payment to the office.
(b)(i) If an obligee agrees with an obligor to receive payment of support other than in the court or administratively ordered manner and receives payment as agreed with the obligor, the obligee shall immediately deliver the cash equivalent of the payment to the office.”
On a child support case, retained support refers to a situation in which:
1. A IV-A or Medicaid recipient receives assigned spousal, child, and/or medical support directly from an NCP, the NCP’s employer, the clerk of the court, other jurisdiction, etc., and fails to forward the payment or cash equivalent to the Office of Recovery Services (ORS) in accordance with U.C.A. 35A-3-108(1)(b) and 62A-11-307.2(4). If the CP receives a support payment directly from an NCP during IV-A time periods, s/he is required to turn the payment over to ORS immediately.
2. The CP makes an agreement with the NCP to receive “in-kind payments” in lieu of court or administratively ordered child support payments, and fails to forward the cash equivalent to ORS.
3. The CP receives a child support payment from ORS during a time period the child is in state custody.
NOTE: If the NCP makes payments directly to the CP during a Non-IV-A time-period, it is not considered “retained support.” It is considered a “direct payment.”
Pursuant to U.C.A. 62A-1-117:
“(1) Child support is assigned to the department by operation of law when a child is residing outside of his home in the protective custody, temporary custody, custody, or care of the state for at least 30 days.
(2) The department has the right to receive payment for child support assigned to it under Subsection (1).
(3) The Office of Recovery Services is the payee for the department for payment received under this section.”
On CIC cases, if the NCP continues to pay the CP child support after a child has been placed in the custody of the state, the support is considered to be retained support and may have to be paid by the parent who received the support in error. Retained support may not be collected unless CIC has a Juvenile Court order requiring the parent(s) to pay support while the child is in care.
Procedures for IV-A Retained Support
If the NCP provides proof of payments made directly to the CP (e.g., receipt, cancelled check, etc.) for a IV-A time period, complete the steps listed below.
1. Verify the NCP’s proof of payment. The NCP must provide written proof of the payment made directly to the CP, which includes his/her endorsement. Acceptable types of payments made directly to the CP may include:
a. Cancelled checks (both the front and back);
b. Redeemed money orders (both the front and back);
c. Written receipts;
d. Court documents;
e. Notarized statements from CP; and/or,
f. Statements from the responding jurisdiction. The statement should include information indicating payments that were sent to the CP and redeemed. If possible, have the jurisdiction send copies of the cancelled checks (fronts and backs) that were sent to the CP.
Notify the NCP that if s/he provides insufficient information, the child support debt cannot be adjusted. In order to represent the case at a hearing, the retained support team must have proof that the CP actually retained child support.
Because most types of verification may contain financial account, identity, or other sensitive information, ORS will not image or maintain copies of this type of documentation in any other format. These documents will be processed by a designated Quality Assurance Specialist (QA) in each region. The QA’s will complete the Proof of Direct or In-Kind Payment worksheet and forward it to the assigned caseworker. The assigned caseworker will review the worksheet, determine if credit for the direct payment(s) is appropriate, notify the parties and make or request the appropriate adjustment in ORSIS and, if necessary, make an overpayment referral as described below. Make sure the worksheet is added to the case file.
1. Manually withdraw the electronic lien.
2. Check to verify that the CP received a IV-A grant for the month in which the direct payment was made.
3. Contact the CP either by phone or send the “Obligee Retained Support” letter and inform him/her of the retained support amount and ask the CP to forward the amount (or an equivalent amount if in-kind support was paid) to CSS. Instruct the CP to include the NCP’s case number with the payment amount. If you contact the CP by phone, narrate when the call was made and when the payment is expected.
If the CP
does not forward the retained support amount within a reasonable period of time
(approximately 30 days), make a retained support referral on ORSIS to the CSS
retained support team (Team 60). The retained
support team has a three-year statute of limitations from the date the retained
support was discovered to begin an
action against the CP to recover the debt.
EXCEPTION 1: If the amount of retained
support is less than $125.00, give the NCP credit for the support paid but do
not make the referral to Team 60. Be
sure to narrate that a retained support referral was not sent.
EXCEPTION 2: If the retained support was discovered more than three years ago (e.g., the NCP informed CSS of the retained support but a referral has not been made), give the NCP credit for the support paid but do not make a referral to Team 60. Be sure to narrate that a retained support referral was not sent.
EXCEPTION 3: If the support was retained prior to August 1995, give the NCP credit for the support paid but do not make the retained support referral to Team 60. Be sure to narrate that a retained support referral was not sent.
The internal referral will result in a case opened on ORSIS against the CP and Team 60 will pursue him/her for the amount of the retained support.
NOTE: If you need to make a retained support referral on a pre-order case, first establish the order giving the NCP credit for the amount of the retained support, add the full ordered amount on ORSIS, and then make the electronic referral for retained support.
If you need to make a retained support referral on a debt in which all or part of the arrears have been unassigned, adjust the balance of the unassigned debt up to the amount that was unassigned. If the retained support amount is greater than the amount that was unassigned, adjust the balance of the debt that remains assigned and make the retained support referral for the adjusted amount from the assigned debt only.
5. Adjust the debt balance to give the NCP credit for the amount of retained support.
6. You must contact the Department of Workforce Services (DWS) to see if the CP has reported the retained support and his/her grant is being adjusted accordingly. If the grant has been adjusted for the support retained, do not refer the case to Team 60.
7. If the debt group adjusted is a IV-A debt and the retained support is $125.00 or greater, make the retained support referral.
Add comments. Briefly
explain the evidence and state that the evidence will be sent to Content
Manager to the Team 60 case number.
9. If the NCP provided payment documentation during the review, complete the worksheet at the time of any adjustment. Add the worksheet into Content Manager.
10. Write a case narrative to explain the adjustment and that retained support was an issue. The narrative should explain evidence that was received, the amount of the retained support referral and the time periods for which support was retained.
11. ORSIS will create an overpayment case against the CP during the nightly update on the day that the referral is completed.
12. On the next business day, notify the manager of Team 60 of the new case.
13. Write a narrative that the retained support referral was made.
14. Team 60 will attempt to collect the retained support from the CP.
If the retained support team determines the referral was sent in error (e.g., not really a retained support situation or the proof of payment evidence is insufficient), the agent must add the amount of the retained support referral back to the NCP’s debt. Team 60 will notify the agent if this occurs.
EXCEPTION 1: If the amount of retained support credit was adjudicated in an administrative order by adjusting the less payment field in the judgment section of the NAA, do not reverse the NCP's credit.
EXCEPTION 2: If the retained support hearing is unsuccessful only due to the unavailability of prior evidence documented on the worksheet (e.g., Team 60 is unable to obtain copies of the cancelled checks from the NCP again, etc.), do not reverse the NCP's credit.
Procedures for CIC Retained Support
Child support is due and payable on the first day of the month. Therefore, if the child was removed from the home after the first day of the month, do not calculate retained support for that month. Likewise, if a child returns home after the first day of the month and the custodial parent received support for that month, calculate the retained support for that month.
1. Verify that there is a Juvenile Court order requiring the parents to pay child support while the child is in care. If there is not a Juvenile Court order, do not collect retained support.
2. Determine the amount of retained support.
NOTE: Both the payor and the recipient of the alleged retained support should receive an opportunity to review and possibly contest the credit being proposed and the allegation of retained support.
Based on the strength of the available facts and evidence, make a determination as to whether the NCP’s claims of direct payments are valid based upon the information.
3. If the former CP agrees to forward the identified amount of retained support s/he was paid by the NCP prior to giving the NCP credit on his/her CIC case, enter a posting instruction to direct the forwarded payment to the appropriate case and debt for the retained support time frame. Instruct the former CP to include the NCP's CIC case number with the payment amount.
4. If the former CP does not forward the retained support amount to CIC, give credit to the NCP who paid the support on his/her ORS/CIC case up to the amount indicated in the existing support order. Adjust the debt balance to give the NCP credit for the amount of the payments made. Follow the steps below to adjust the balance.
NOTE: If you need to address the issue of retained support on a pre-order case, first establish the order, giving the NCP credit for the amount of the retained support by including time period in the judgment for arrears section of the NAA and showing the credit in the less payment field. Finally, give the NCP the credit for the retained support reflected in the order by adjusting the debt balance as described above.
5. CIC pre-order will prepare a Notice of Agency Action Determination of Retained IV-E Child Support Obligation to the former CP on his/her CIC case. Include the retained support amount, time frames, and proof of payment information. List in the worker entered narrative the assigned support payments received and explain the proof of payment documentation. This order is separate from the order that addresses the child support for state custody time frames to facilitate the identification of CIC retained support obligations.
NOTE: If the respondent has filed for bankruptcy, do not issue a sum-certain judgment for retained support arrears on bankruptcy cases because issuing a judgment may be considered an “enforcement action.” Work with the AGO Bankruptcy Specialist for the next appropriate action and to determine what should be included on the Proof of Claim.
6. Once ordered, add the separate obligation and debt for retained support to the former CP's CIC support case on ORSIS.
7. Narrate in ORSIS all the actions taken.
8. The CIC post-order team will attempt to collect the retained support from the former CP. ORSIS distribution programming will automatically distribute payments based on priority posting rules. .
Retained Social Security Benefits on CIC cases
ORS/CIC will not collect the Social Security (SSA) benefit that a parent(s) may receive (prior to the State becoming payee of the benefit) for his/her child while his/her child is in care. If, after reviewing an existing case, ORS/CIC determines that the parents were charged for “retained” social security, refer to CS 852P Child Receiving Benefits Based on the Non-Custodial Parent’s Social Security or Veterans Benefits for instructions.