ENFORCEMENT OF SUPPORT OBLIGATION

CS 819P Support Follows the Child – Post Order, Legal Custody Has Not Been Determined

01/01 Revised 10/23/08 Training Complete 12/30/04

UCA 78B-12-102, 108, 205, 212, 113

                                                      

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.”

 

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 order modified.  If physical custody of all of the children in an order that has NOT addressed legal custody changes from what was originally assumed in the support order, the obligation of the parent (or parents) who does not have physical custody may be due and payable. 

 

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.

 

Administrative orders established by CSS under the state statutory guidelines are based upon sole custody worksheets.  CSS administrative orders issued prior to June 2000 presumed that the custodial parent (CP) named in the case had sole physical custody of the child, or all of the children if more than one child.  In June 2000 CSS implemented the support follows the child law and began to include both parents as respondents in administrative orders.  Therefore, CSS administrative orders issued after June 2000 have presumed that either one or the other of the parents would have sole physical custody of the child (or all of the children if more then one), and that either parent (custody switch) or both parents (specified relative cases) could have a support obligation, depending on the actual physical custody arrangements.

 

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 only established an obligation for one parent and did not address legal custody (e.g., CSS administrative order), and physical custody of the child (or all of the children if more than one child) has changed to the other parent since the time the order was issued, refer to the criteria listed below in order to determine if you may 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 Attorney General’s Office (AGO) for registration and modification of the order. 

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 support order. 

 

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

 

EXAMPLE 2: A Utah CSS administrative order issued in June 2000 states: “Office of Recovery Services/Child Support Services, Claimant, vs. Jane Doe, Respondent, John Doe, Respondent” in the header.  The support follows the child statute may be applied to physical custody changes if the other criteria are met.

 

EXAMPLE 3:  A Utah CSS administrative order issued at any time states “Office of Recovery Services/Child Support Services, Claimant, vs. John Doe, Respondent” in the header.  The support follows the child statute may not be applied to collect support from the other parent if physical custody changes because the other parent is not specifically named as a party to the action. 

 

NOTE:  CSS administrative orders have different headers, depending on when they were issued.  Be sure to review the order for the precise header in Example 2 above.

 

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.  Modification agents 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 who is 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 and is receiving 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 confirm the physical location of the child (or children) in a IV-A case without an “agreement” or “Confirmation of Physical Custody Change” letter 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(ren) has changed.  The parent who no longer has physical custody may provide a written statement that provides all of the necessary information or complete the form “Confirmation of Physical Custody Change” Attachment.  If there is any dispute in the custody arrangement, the parents must resolve the custody issue and/or go to court to obtain legal custody before CSS will close an existing child support case and begin enforcing the obligation of the parent who no longer has physical custody. 

 

Support Follows the Child Not Applicable

 

The law only applies when all of the children are residing with one parent or the other and a sole custody worksheet was used.  (Specified relative cases are an exception.)  If physical custody of the children in the order is split between the parents, take the following steps. 

 

1.                  IV-A case:  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 prior assumed physical custody until the order is modified.

 

2.                  Non-IV-A case:  CSS will not proceed with the action.  If the parties wish to proceed, they may pursue a judicial order on their own.

 

Procedures: Physical Custody Change 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 now claims to have physical custody of the child (or all of the children if more than one child), legal custody has not been determined, and that individual is not applying for or receiving cash assistance, Medicaid, and/or child care for the child(ren), follow these steps.

 

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 extended parent-time.

 

3.                  Inform the parent that you will be asking the CP/parent on the existing case to confirm the change in physical custody.

 

4.                  Generate and mail a “Confirmation of Physical Custody Change Letter and Form” to the CP on the case who no longer has physical custody.  Include a return envelope.

 

5.                  Monitor for response.  The CP has ten (10) days to respond. 

a.                   If the CP responds, but does not confirm the change in physical custody, inform the individual you will not stop the current support obligation on the existing case.

b.                  If the CP does not respond, or fails to provide all of the requested information within the ten (10) day period, pend the case for closure due to non-cooperation.  

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

 

6.                  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.

 

7.                  Send the non-custodial parent (NCP) on the existing case a “Physical Custody Change Courtesy Letter,” which 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 individual may apply for Non-IV-A services by completing and returning an application for services to CSS. 

 

NOTE:  If the individual requests and returns an application for services 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 this request will need to accompany an application for services.

 

Procedures: Physical Custody Changes on an Existing IV-A Case

 

If the family 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) and legal custody of the child (or children) has not been determined, 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 presume that the child(ren) is now living with that parent based on the DWS finding of eligibility.  In this situation, it is not necessary to obtain a written agreement from the CP on the existing case.

 

NOTE:  If on an existing CSS IV-A case, a parent contacts you to inform you s/he now has physical custody of the child (or children) and this individual does not plan to apply for IV-A cash assistance, or was found to be ineligible for IV-A assistance, inform the individual that they 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.                  Proceed with enforcement on the new case as of the date of the IV-A referral.

 

4.                  If a parent disputes the determination of DWS, inform that parent that as long as a parent (or a specified relative) is found eligible for cash assistance, Medicaid, and/or child care for the child(ren), the other parent (or parents) has the support obligation.

 

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.  You will need to open a new medical screen.  If you are enforcing medical support against an individual who was not a party to the original order, and the issue of not being a party arises, contact the CSS Policy Analyst Unit (PAU) for additional instructions.