ENFORCEMENT OF SUPPORT OBLIGATION

CS 818P Support Follows the Child – Post Order, Legal Custody Determined

01/01 Revised 01/25/17 Training Completed 05/31/16

UCA 78B-12-102, 108, 205, 216, 212, 114

 

 

Statutory Authority

 

Utah Code Annotated (UCA) 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 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 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 for parents who willingly agree to a change in physical custody without the need to have their judicial order modified.  If physical custody of all of the children in the order changes from what is originally stated in the judicial support order, the obligation of the parent (or parents) who does not have physical custody may be due and payable.    

 

Only a court with jurisdiction or the parent who has court ordered legal custody of the child(ren) may decide if legal custody can or cannot change.  Even if physical custody of the child(ren) changes and the former custodial parent (CP) starts paying child support, legal custody does not change until the court orders a change in legal 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.

 

1.                   NOTE:  The support follows the child procedures in this section describe the process to end the support on a post-order case where legal custody has been determined. 

 

 

Forms Overview

 

1.                   “Confirmation of Custody Change Letter and Form.”

 

2.                   “Physical Custody Change Courtesy Letter.”

 

 

Definitions

 

The definitions listed below are provided to clarify the terms discussed in this section.

 

1.                   “Existing case” – is defined as the case that existed on ORSIS before the change in physical custody occurred.  This case may be closed when custody changes, depending on the circumstances, e.g., whether arrears are owed.

 

2.                   “New case” – is defined as the case that is opened after the change in physical custody occurred because either CSS has received a new IV-A referral, or the parent who now has physical custody has opened a Non-IV-A case.  This case may be closed depending on the circumstances of the case, e.g., the change in physical custody was not voluntary.

 

3.                   Receiving assistance” --For purposes of this section, if the CP is receiving cash assistance, Medicaid or child care, s/he is considered to be receiving assistance.  If the individual is receiving cash assistance, the current child support debt is a IV-A debt.  If there is no cash assistance, the current child support debt may be either be Non IV-A Medicaid only (family is receiving Medicaid), or Non IV-A child care, or Non IV-A (no financial or medical assistance being received by the family).  Food stamps, HEAT assistance or any other type of assistance are not considered to be “receiving benefits or assistance,” as defined by this section.

 

 

Support Follows the Child Criteria

 

If a child support order establishes an obligation for one parent, and legal custody is addressed in the order, but physical custody of the child (or all the children of the order if more than one child) has changed to the other parent, refer to the criteria listed below to determine if you can enforce the other parent's obligation without initiating legal action to modify the order.

 

1.                   The support order must be a Utah order or registered in a Utah court.  Utah’s support follows the child statute does not apply to out-of-state orders. 

a.                   IV-A case, out-of-state order: 

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

ii.                   If both parties do not reside in Utah, the laws of the issuing state will determine if the order can be enforced for the other parent or if the order must be modified by the appropriate state.

b.                  Non-IV-A case, out-of-state order:  The parents will need to resolve the custody and support issues with the courts in the appropriate state.

 

2.                   The individual whom you will be enforcing against must be listed as a party (specifically named) in the action to establish the order.   

 

EXAMPLE:  A Utah divorce decree issued in 1999 lists “Jane Doe vs. John Doe” in the header.  Sole legal custody was granted to the mother.  The support follows the child statute may be applied to physical custody changes from May 1, 2000 forward, if the other criteria are met.  

 

3.                   The underlying guideline worksheet to the Utah support order must list amounts that are greater than zero.  If a worksheet does not exist, is unavailable, is pre-guideline, or the ordered amount is zero or deviated from the worksheet, take the additional steps listed below.

a.                   IV-A case:  The order will need to be modified.  Refer the case to the modification team.  The modification agent will make a determination as to the temporary or long-term nature of the physical custody, and pursue a modification accordingly. 

b.                  Non-IV-A case:  The parent or specified relative requesting the enforcement must provide the worksheet, or obtain it from the court.  If the ordered amount is zero, pre-guideline or deviated from the worksheet, do not pursue a modification further due to a change in physical custody unless both parents are willing to stipulate to a modification of the order in accordance with current child support guideline amounts.  Otherwise, inform the parent that any modification of the order will need to be initiated privately by the parties, and close the case.  You may reinstate the case at a later date if the parent provides a modified order.

 

4.                   The physical custody arrangement of the child(ren) must be verified.

a.                   IV-A case:   Once the family has been found eligible for cash assistance, Medicaid, and/or child care, DWS has determined that the child (or all the children if more than one child) is living with the parent receiving cash assistance, Medicaid and/or child care.  You may use this information to determine the physical location of the child(ren) in a IV-A case without an “agreement” unless the parent who has legal custody is disputing the change in physical custody, and proceed to enforce the obligation of the parent(s) who does not have physical custody. 

b.                  Non-IV-A case:  The parties must be in agreement that physical custody of the child (or all the children if more than one child) has changed, and that the change was voluntary on the part of the parent with legal custody, and is not simply an example of extended parent-time.  The parent with legal custody may provide a written statement that provides all of the necessary information, or complete the “Confirmation of Custody Change” form.  If there is any dispute in the custody arrangement, or any evidence that the change is without the voluntary consent of the parent with legal custody, the parents must resolve the custody issue before CSS will begin enforcing the obligation of the parent who has legal custody, but no longer has physical custody.

 

NOTE:  In addition to the above criteria, the order can only be enforced by contempt if both parties were in fact served, were present in court, or were represented by legal counsel. 

 

 

Support Follows the Child Not Applicable

 

The support follows the child statute is not applicable in the following situations:

 

1.                   Sole custody was ordered and all of the children are not residing with one of the parents.  The law only applies when all of the children are residing with one or the other parent. (Specified relative cases are an exception.)  If physical custody of the children in the order is split between the parents, take the following steps. 

a.                   IV-A cases: 

i.                     If the order provides for extended parent-time or the parents sign a written extended parent-time agreement, a partial reduction in the support obligation for the child(ren) living with the non-custodial parent (NCP) may be granted under U.C.A. 78B-12-216.

ii.                   If the parents cannot agree that extended parent-time applies, refer the case to the modification team to obtain a modification based on a split-custody worksheet and the child support guidelines.  Modification agents will make a determination as to the temporary or long-term nature of the physical custody, and pursue a modification accordingly.  In the meantime, continue to charge support based on the legal custody provision in the order until the order is modified.

b.                  Non-IV-A cases: 

i.                     If the order provides for extended parent-time or the parents sign a written extended parent-time agreement, a partial reduction in the support obligation for the child(ren) living with the NCP may be granted under U.C.A. 78B-12-216. 

ii.                   If the parents cannot agree that extended parent-time applies, ask if they are willing to stipulate to a modification of the support order to change legal custody and their support obligations in accordance with the split custody worksheet and the child support guidelines.  If they are willing to stipulate, refer the case to the AGO for a modification of the order. 

iii.                  If the parents are not willing to stipulate, they may pursue a modification on their own.  Until/unless the order is modified, the current order remains in effect.

 

2.                   Joint or split custody was ordered by the court in the most recent order. 

a.                   “Joint physical custody” is when the order specifies that each parent has physical custody of the child(ren) for a certain percentage of time during the year and a joint custody worksheet was used.  Support follows the child cannot be applied when a joint custody worksheet used.

b.                  “Joint legal custody” is the sharing of authority, responsibility and combined decision making by both parents in regard to the child(ren)’s welfare.  It does not affect the child support or where the child(ren) will live.  If an order mentions “joint custody” but a sole custody worksheet was used, it is considered to be a joint legal custody situation and not a joint physical custody case.  Support follows the child can be applied to joint legal custody when a sole custody worksheet containing support amounts for both parents was used. 

 

 

Procedures:  Physical Custody Change from Legal Custody on an Existing Non-IV-A Case

 

If you are contacted by a parent or a specified relative on an existing Non-IV-A case who does not have legal custody of the child (or all of the children if more than one child), and s/he now claims to have physical custody of the child(ren), and that individual is not applying for or receiving IV-A cash assistance, Medicaid, and/or child care for the child(ren), follow the steps listed below.

 

1.                   Verify that the individual is not receiving IV-A cash assistance, Medicaid, and/or child care for the child (or children).  If the individual is in application status, proceed with the steps for a non-IV-A case.  Once the individual has been approved to receive cash assistance, Medicaid and/or child care, proceed with the steps for a IV-A case.

 

2.                   Ask the individual if the child(ren) is with him/her due to a change in physical custody or due to him/her exercising extended parent-time.

a.                   Extended Parent-time:  Refer to the Extended Parent-time procedures instead of treating the case as support follows the child.

b.                  Change in physical custody:  Proceed with the next step in this section.

 

3.                   Ask the individual if the parent with legal custody voluntarily consented to the change in physical custody.

a.                   The parent with legal custody did NOT consent to the change in physical custody:  Inform the other parent that s/he will need to obtain a court order that will address the change in custody and child support and that you will not stop the current support obligation on the existing case.

b.                  The parent with legal custody voluntarily consented to the change in physical custody:  Inform the individual that you will ask the parent with legal custody to confirm the change in physical custody.

 

4.                   Generate and mail a “Confirmation of Custody Change Letter and Form” to the parent with legal custody.   

 

5.                   Monitor for response.  The parent with legal custody has ten days to respond.  After the ten days have passed, take one of the following actions:

6.                    

a.                   If the parent with legal custody responds but does not confirm the change in physical custody or that the change is voluntary, inform the individual you cannot stop the current support obligation on the existing case;

b.                  If the parent with legal custody does not respond, or fails to provide all of the requested information within the ten day period, pend the case for closure due to applicant non-cooperation; or,

c.                   If the parent with legal custody returns the form and confirms that there has been a voluntary change in physical custody, proceed with the next step.

 

7.                   Adjust the debts on ORSIS.

a.                   End the current support debt.

b.                  Modify the Notice to Withhold on the existing case to an arrears-only payment, if arrears debts are still owed.

c.                   If no arrears are owed, pend the case for closure.

 

8.                   Send the NCP on the existing case a “Physical Custody Change Courtesy Letter.”  This letter informs that individual of the following:

a.                   CSS has ceased collecting his/her current support obligation;

b.                  any outstanding arrears must still be paid; and,

c.                   the NCP may apply for Non-IV-A services by completing and returning an application for services to CSS. 

 

NOTE:  In a Non-IV-A situation, if it is determined to be appropriate, child support services will commence the first day of the month following the date of the Non-IV-A application for services.

 

If the individual with physical custody requests a modification, and the worksheet amount is greater than zero, inform the individual that a modification request will need to accompany an application for services.

 

 

Procedures: Physical Custody Change from Legal Custody on an Existing IV-A Case

 

If you are contacted by a NCP on an existing IV-A case who now claims to have physical custody of the child (or all of the children if more than one), but s/he does not have legal custody, and s/he has been found eligible for and is receiving IV-A cash assistance, Medicaid, and/or child care by the Department of Workforce Services (DWS) (or by the Department of Health), take the following steps.

 

1.                   Verify that the individual is receiving IV-A cash assistance, Medicaid, and/or child care for the child (or children).  CSS will deem that the child(ren) is now living with that parent based on the DWS finding of eligibility.  In this situation, it is not generally necessary to obtain a written agreement from the parent with legal custody unless the parent who has legal custody is disputing the change in physical custody. 

 

NOTE:  If on an existing CSS IV-A case, the other parent or specified relative contacts you to inform you s/he now has physical custody of the child (or all the children), and this individual does not plan to apply for IV-A cash assistance, or was found to be ineligible for IV-A assistance, s/he must apply for Non-IV-A services in order for CSS to open and pursue child support for the child(ren).

 

2.                   Adjust the debts on ORSIS.

a.                   End the current support debt.

b.                  Modify or terminate the Notice to Withhold.  Consider if there is an arrears balance remaining and if the NCP on the existing case will be receiving IV-A assistance when deciding the appropriate withholding action. 

c.                   Pend the case for closure if there are no arrears owed. 

 

3.                   If the parent with legal custody does NOT dispute the determination of DWS, proceed with enforcement on the new case as of the date of the IV-A referral.

 

 

Procedures:  Parent with Legal Custody Disputes Physical Custody Change on New IV-A Case

 

If the NCP (the parent with legal custody) on a new IV-A case disputes that physical custody has changed and/or that it was voluntary, or alleges extended parent-time is in effect instead of a change in physical custody, take the steps listed below.  

 

1.                   Generate and mail a “Confirmation of Custody Change Letter and Form” to the parent with legal custody.  

 

2.                   Monitor for response.  The parent with legal custody has ten days to respond.

a.                   If the parent with legal custody returns the form and confirms that there has been a voluntary change in physical custody, proceed with enforcement on the new IV-A case.

b.                  If the parent does not respond, or fails to provide all of the requested information within the ten day period, proceed with enforcement action on the new IV-A case. 

c.                   If the parent with legal custody responds and states the child(ren) is still residing with him/her, or confirms that a change in physical custody has occurred, but claims it was not voluntary, take the following steps.

i.                     Suspend all collection actions on the new case.

ii.                   Make a public assistance fraud referral to DWS to inform them that the physical custody of the child(ren) is in dispute, and to ask them to conduct an investigation and review the eligibility determination.  (Note that there is a time restriction for when these referrals may be made.)

d.                  If the parent with legal custody responds and states extended parent-time is in effect instead of a change in physical custody, take the steps below.

i.                     End the current support and any arrears debts on the new case.

ii.                   Terminate the Notice to Withhold.

iii.                  Refund any support that was collected inappropriately to the parent with legal custody.

iv.                 Pend the case for closure using closure code.

 

EXAMPLE:  The father has legal custody but the mother applied for and was found eligible for IV-A assistance during the summer months.  The father disputes a change in physical custody and claims he permitted the child to live with the mother only for a period of extended parent-time.  You treat the case as extended parent-time instead of support follows the child and do not charge the father for the months the child received assistance with the mother.

 

NOTE:  DWS policy allows a parent to be eligible for assistance if that parent has physical custody of the child, i.e. the child is with that parent more than 50% of the time.  Legal custody is not an eligibility requirement.  However, if a court has ordered joint custody, neither parent can be eligible.

 

3.                   If DWS has conducted an investigation, take the steps listed below.

a.                   If DWS determines that the parent with legal custody did not consent to a voluntary change in physical custody from the date of eligibility to the date s/he disputed the custody change, take the following steps.

i.                     End the current support and any arrears debts on the new case.

ii.                   Terminate the Notice to Withhold.

iii.                  Refund any support that was collected inappropriately to the parent with legal custody.

iv.                 Pend the case for closure using closure code.  

 

EXAMPLE:  The mother has legal custody but the father applied for and was found eligible for IV-A assistance.  The mother confirmed that a change in physical custody had occurred, but that it was not voluntary.  The mother would not be obligated for any child support on the new case with her as the NCP.

b.                  If DWS determines that that the parent with legal custody voluntarily consented to a change in physical custody from the date of eligibility to the date s/he disputed the custody change, and the parent with legal custody is not claiming the arrangement was extended parent-time, take the following steps.

i.                     End the current support on the new case.

ii.                   Modify the Notice to Withhold to an arrears-only payment, if arrears debts are owed. 

iii.                  If no arrears are owed, pend the case for closure.

 

EXAMPLE:  The mother has legal custody but the father applied for and was found eligible for IV-A assistance.  The mother voluntarily agreed in writing to the change in physical custody until contacted by CSS.  She is now disputing the custody change, but is not claiming the arrangement was extended parent-time.  Based on her written statement agreeing to the change in physical custody, she would be obligated for any arrears that accrued up until the date she disputed the custody change.

 

4.                   If appropriate, reinstate the existing case if it was closed at the time physical custody changed. 

 

EXAMPLE:  The mother has legal custody but the father applied for and was found eligible for IV-A assistance.  The mother confirmed that a change in physical custody had occurred, but that it was not voluntary, and the mother now has physical custody of the child.  DWS has determined that the father is not eligible for IV-A assistance.  After closing the new case, the existing case with the father as the NCP is reinstated.

 

 

Medical Support

 

Medical support does not change when support follows the child (or children).  Continue the current enforcement of the medical support according to the order.